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Special Content


Issue no 29, 15-21 October 2022

360° View of India's Right to Information Act

 

Darpan Mago

The Centre for Law and Democracy (CLD) ranks India 8th (2021 ratings) in terms of the efficacy of its Right to Information (RTI) Act. Evaluating the spot in comparison to the ranking of the United States, considered one of the most developed nations, which stands at the 74th position, India's RTI journey has been progressive. CLD is a non-profit based in Canada which releases the RTI rankings in collaboration with Access Info Europe (AIE), a Spain-based non-profit. The ranking analyses a country's legal framework and enablers provided by the Government to its citizens to conveniently access the information contained in Government documents. While this rating does not assess India's active or live performance towards execution or implementation of the RTI Act, yet can be seen as a credible measure of the strength and power that is enshrined in the RTI law and conduciveness in the system towards supplying information to its citizens hassle-free. The top 10 countries in CLD rankings are as under:

Ranking

Country

Marks Scored (out of 150)

1

Afghanistan

139

2

Mexico

136

3

Serbia

135

4

Sri Lanka

131

5

Slovenia

129

6

Albania

127

7

Gambia

127

8

India

127

9

Croatia

127

10

Liberia

126

 

The yardsticks chosen by CLD and AIE to generate the rankings are publicly available on their website and might not be exhaustive yet are elaborate enough. These rankings have been chosen for this article because both organizations, prima facie, seem credible in their marking framework and analysis, with their work being popularly quoted by both Indian and international media houses

The Genesis of RTI in India Before the RTI Act promulgated in 2005, all initial methods to seek information from the Government were complicated and often involved elaborate judicial procedures and authoritative due diligence of the Government officials. Releasing the information was like letting out gold reserves from Government vaults. All this conscientiousness was unnecessary, which was more of an obsolete approach left by the British rulers to hide information and retain power.

Giving access to information to citizens is a well-defined right equal to the fundamental right of freedom of expression guaranteed by Article 19 of the Universal Declaration of Human Rights (1948) of the United Nations. Importantly, this article might not be exhaustive on historical events that led to the birth of the RTI Act in India, yet sincerely attempts have been made to encapsulate many of those events, which were a precursor to the final RTI Act that is in place today. Beyond what has been captured here, there might be other important events and contributions. Initially, the Right to Information about Government's functions was first echoed in several court proceedings like in the 1975 case of the State of Uttar Pradesh vs Raj Narain, wherein the Supreme Court bench led by Justice KK Mathew, ordered to disclose the Blue Book to the applicant titled "Rules and instructions for the protection of the Prime Minister when on tour or in travel." Herein, the Hon'ble Supreme Court ordered that part of the documents be disclosed to the applicant from this 'Blue Book' because the citizen has the right to know and that it was in the public interest. After many similar cases, the debate about giving the citizens free access to government information gained momentum. In India, the Right to Information Act came into existence primarily through the efforts of the Mazdoor Kisan Shakti Sangathan (MKSS), a nonpartisan and non-governmental organization working for the upliftment of peasants and workers in rural areas of Rajasthan. When these workers faced a series of systematic instances of corruption, they sat on a historic 40-day long protest in Beawar in the year 1996 to open the Government's information vaults and seek access to vital information about their wage work like vouchers, bills and muster rolls of public works in Panchayats. On witnessing this struggle Prabhash Joshi, a Hindi journalist of Gandhian bent, pledged his strong support to the struggles of these people and wrote an editorial in the newspaper Jansatta titled: 'Hum Janenge, Hum Jiyeinge, which later became a popular slogan 'The Right to Know and the Right to Live'. Further, in 1977 the commotion around the choked information corridors of India resurfaced when the then Government led by Morarji Desai constituted a working group to ascertain the usefulness of the Official Secrets Act, 1923, enacted by the British, which was then considered the biggest hurdle in the release of Government information to the public. A few years later in 1989- 90, the then Prime Minister VP Singh became the first politician to recognize the importance of information release and attempted to enact a legislation, but political instability thwarted the effort. In 1996, the National Campaign for People's Right to Information (NCPRI) was formed, which resulted in a nascent draft of the RTI law in India. This group comprised people working in academia and leaders of progressive community movements like lawyers, journalists, activists and retired civil servants. NCPRI, along with the Press Council of India, came up with the first draft of the RTI bill. On 04th May 1997, Tamil Nadu became the first Indian state to pass the RTI law. However, the bill was deemed to have many loopholes and hence faced a lot of criticism. Nevertheless, states like Goa, Madhya Pradesh and the NCT of Delhi followed suit shortly. In 2002, the Parliament passed the Freedom of Information Act (FOIA), which was a precursor to the RTI Act and a better version of what was there in Tamil Nadu and other states. This law applied to all of India except the State of Jammu and Kashmir (now a Union Territory). This version also came under criticism as it did not fairly recognise a citizen's right to be entitled to critical information on the Government's functions, and also curbed the appeal mechanism without introducing any independent body to offer relief to dissatisfied citizens. It further ran the risk of being misused because it had a provision to reject applications that were perceived as "general information" by any Government body. When people who need the RTI Act the most, are often from the grassroots, and might not be as precise and artful in questioning, this rejection provision in FOIA kept the entire onus of releasing information on the Government in good faith. Observing the limitations of the Freedom of Information Act, NCPRI continued its efforts, which contributed to strengthening and suggesting changes in this Act. In 2004, the inputs from NCPRI were presented to the National Advisory Council (NAC) to make this law even stronger and more effective. Despite some political hiccups, amid pressure from the civil society, a strict version of FOIA, 2002 transitioned to become the RTI bill, which was passed by the parliament and finally promulgated as the Right to Information Act, 2005 on October 12, 2005.

Concept of Public Authority (PA) under the RTI Act Any entity from which the information is being sought by the applicant, under the RTI Act, is known as a Public Authority. All Government bodies are Public Authorities, but not all Public Authorities might be seen as Government bodies. Some non-Government bodies can also be brought under its purview. What would happen if a body, which is supported or funded by the Government, yet is not administered by it, goes on to dispute its compliance with the RTI Act? This non-compliance would certainly raise questions about transparency. However, Indian lawmakers are a step ahead and had already envisioned this situation before hand. So that such bodies that are supported by the Government through funding, do not try to escape their responsibilities and transparency norms under the RTI Act, the term Public Authority has been beautifully and cleverly introduced in the RTI Act. Below is the interesting definition of Public Authority (PA) quoted from the RTI Act itself:

"Public Authority means any authority or body or institution of self-government established or constituted

(a)    by or under the Constitution;

(b)   by any other law made by Parliament;

(c)    by any other law made by State Legislature;

(d)   by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government"

To uncomplicate, any entity or a body, which has been covered under the Right to Information law is safely known as a Public Authority (PA) instead of being a called Government body, which as the name suggests, is answerable and accountable to the people of India. Every citizen of India has a right to complain about any entity, directly or indirectly financed by the Government, to the Central Information Commission, State Information Commissions or Courts, if it is not adhering to the RTI Act, even if such entity is not directly run or owned by the Government. Importantly, then the decision to bring such bodies under the purview of the RTI Act is up to these judicial bodies.

Public Information Officer (PIO) and Deemed Public Information Officer (DPIO)

A PIO is an officer nominated from within the Public Authority, who is on permanent muster rolls of the Public Authority, having functions of receiving the information requests and ensuring their timely disposal within the stipulated 30-day period. Playing the role of PIO is the hardest, when an errant might just want to promote opacity, the PIO from within the same Public Authority is entrusted to be independent under the RTI Act and ensure transparency. As a PIO does not perform all operational functions in a Public Authority (PA), so they might not have all information demanded by the RTI applicants at their immediate disposal. To support the PIO here, section 5(4) and 5(5) of the RTI Act says that the PIO is empowered to approach or seek the assistance of any person in the Public Authority, whom they think might have that information. Now, if a PIO writes to any person in the Public Authority to cooperate with releasing the sought information, which they intuitively think is stored with this other person of a different department, then this person is deemed as an extension of the PIO, who has to fully extend support to the designated PIO by sharing them the sought information. Upon receipt of information from this other person or conveniently termed as - deemed PIO, the designated PIO will then evaluate to see if the information shared meets the regulations of the RTI Act and that all queries posed by the applicant have sufficiently been responded to. When everything is found okay, the PIO can dispatch the information to the applicant or object to responses from the deemed PIOs and have them revised. To note, a PIO functions independent of the local hierarchy in that Public Authority and has to fairly discharge their duties being governed only by the RTI Act, which can override the local and usual official rules and regulations. The RTI Act mentions no term as the "deemed PIO" however the same has come to light from several hearings conducted at the Central Information Commission, wherein the Commission has extended the accountability of the designated PIO, to someone who was assisting or in turn providing information to this PIO. If the PIO has been acting honestly throughout, yet the problem is at the end of someone who is supplying the information to the PIO, the Commission has gone to the extent of holding this other person (deemed PIO) fully accountable and bringing them under equal penalty provisions or strictures as the designated PIO.

First Appellate Authority (FAA):  After the PIO, the First Appellate Authority is also from within the same PA, which is usually a senior person or the management personnel from that PA. When the Public Information Office of a Public Authority, for any reason, fails to satisfy the applicant by giving part or no information, the RTI Act has an escalation provision, wherein usually, this First Appellate Authority (FAA) is approached for seeking relief. The First Appellate Authority examines the pleas of the citizen while considering the views of the PIO. If there is a genuine public interest that is being marred by withholding a piece of information from the applicant, the FAA has the power to overrule the PIO and can direct them to supply the information as demanded by the applicant. On the contrary, if the FAA finds PIO's reservations in releasing that information are valid, they will reject the citizen's demand for that information. Usually, Section 8 of the RTI Act has all major provisions under which a citizen can be denied information by the PIO.

Information Commission(s) and the Concept of Second Appeal: Let us say the RTI applicant has approached both the PIO and the FAA, yet is still not satisfied with their response. Then they have the right to approach the Central Information Commission or the State Information Commission (if it is a State Government matter) to either file a complaint against the PIO or contest the received response for having it judged before the independent Information Commissioners (IC). This stage is known as the Second Appeal process. All Second Appeals are settled at the Central Information Commission or the State Information Commissions, before the bench of the respective Information Commissioner (IC), where both the RTI applicant and the PIO appear together in a hearing process. Here, a PIO has to explain why they supplied part or no information to the applicant and if such withholding duly falls under the provisions of the RTI Act, and the applicant has to argue how the release of that information would satisfy the public interest at large. Hearing sides, the PIO and the applicant, the Commission on the merits of arguments presented strikes a balance, and takes a stand either with the applicant or with the PIO or can reach a middle ground. The Information Commissioners truly perform the functions of striking a delicate balance by holding the true public interest in prominence. In this second appeal stage, it all depends on how the subject matter is being argued before the IC by both the RTI applicant and the PA respondents (PIO). The Information Commissioners (IC) has the power, which is somewhat similar in modality to a judge in a court of law. If an IC chooses to overrule both the PIO and its FAA, and issues orders for the release of this information to satisfaction of the applicant, they become statutory directions that have to be immediately followed with by the PIO. The First Appellate Authority (FAA) is usually immune to strictures or penalties, yet the PIO (or deemed PIO) can be given a stricture or imposed a financial penalty of Rs. 250/- per day to a maximum of Rs. 25,000/-, in case any malpractice is observed by the IC. The days for deciding the penalty amount are usually counted from the 31st day of filing the RTI application when the information release was due from the PIO's end, yet they failed to do so.

RTI Transparency Audits: The Government and its stakeholder functionaries, through RTI Act's section 4, fundamentally believe that there must be a good standard and quantum of information already available in the public domain so that there isn't a need to frequently file RTI applications. While this was enshrined in the Act, there earlier was no provision to check if all public authorities were even doing it, and were doing it right. To ensure that no Public Authority (those under Central Government) fail to relay information in the public domain Suomotu (automatically), the Central Information Commission (CIC) has laid down about 120 parameters, against which the Public Authorities are expected to have information readily available on their websites. In the year 2017, the Government got strict and introduced the norm of RTI Transparency Audits, wherein directions were issued to all Central PAs to appoint an auditor, who will audit their website's information disclosures on an annual basis to evaluate if those PAs were compliant with those 120 Suomotu information disclosure parameters. It is highly pertinent to note that, Section 4 of the RTI Act lays emphasis on Suomotu disclosures, however, mandates no annual RTI audit. It is only the Central Government's constant endeavour to improve the automatic information release mechanism to its citizens, that they now sternly issue directions to public authorities under them to get the RTI transparency audits done annually. As per observable information available to this author, there are over 2,200 (and counting) Public Authorities registered with the Central Information Commission, which are due for RTI audits every year. Out of these, in the last few years, close to 700-800 PAs got their audits done and reports sent to the Central Information Commission for final recommendations. It is important to note that the first RTI transparency audit took place in the year 2017-2018. Ensuring that all Public Authorities connected to Central Government come under the RTI audit purview is a gigantic timeconsuming exercise. Despite this, the Central Information Commission (CIC) and the Department of Personnel and Training (DoPT) are leaving no stone unturned toward constantly increasing the number of audits every year. These audits are currently being done by the Public Authorities connected with the Central Government, while some Public Authorities connected with the State Governments have much work ahead of them. Importantly, as per observable information, there are about 80 Government auditing institutions available to conduct such RTI audits for PAs at a not-for-profit fee.

Conclusion: The Way Ahead:  The Central Government's notable efforts to make basic information to be always there in the public domain by enforcing annual RTI transparency audits is a commendable move that has elevated the overall RTI Act performance standards. We are at a juncture when India has completed 75 years of its independence, and the RTI Act has played a prominent role for 17 years in supporting the public to directly evaluate Government's service quality standards. As India is an RTI Act-compliant nation, every errant officer today is naturally discouraged to attempt anything illegal, while the honest ones must never fear!

[The author works as Deputy Manager (Public Relations) in the Right to Information and Public Grievances Department of Energy Efficiency Services Limited (EESL), a JV company under the Ministry of Power, Government of India. EESL's RTI transparency audit score has been 97% and 99% in the years 2021 and 2022 respectively. The author may be contacted at darpanmago@gmail.com]

Views expressed are personal.