People are denied the opportunity to reach their full potential and exercise all of their human rights due to a lack of information. According to Aristotle, “If liberty and equality, as is thought by some are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost”. The information available to each person and society at large shapes individual personality, political and social identity, and economic capability. The practise of routinely withholding information from the public turns people into "subjects" rather than "citizens," and it is a violation of their rights.
• The United Nations recognised this right from the start, in 1946, when the General Assembly resolved: “Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated”.
• The right's status as a legally binding treaty obligation was affirmed in Article 19 of the International Covenant on Civil and Political Rights, which reads as follows: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”
• As a result, the right to access information has been firmly enshrined in international human rights law. All other human rights are founded on the right to information.
• Good governance also includes the right to access information. Transparency, accountability, predictability, and participation are the four elements of good governance.
CONSTITUTIONAL PROVISIONS, JUDICIAL PRONOUNCEMENTS AND RTI ACT
RTI is a derivative of Article 19 of the Constitution, which deals with the protection of certain rights such as freedom of speech and expression. RTI is linked to the Indian constitution's Right to Life and Personal Liberty (Article 21).
The Supreme Court has consistently ruled in favour of citizens' right to know over the years. The nature of this right, as well as the restrictions that apply to it, has been debated by the Supreme Court in several cases:
• The right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19(1) in Bennett Coleman v. Union of India (1972).
• The Supreme Court explicitly stated in State of UP vs. Raj Narain (1975) that officials' responsibility to explain and justify their actions is the primary safeguard against oppression and corruption.'
• The right of the people to know about every public act and the details of every public transaction undertaken by public functionaries was described in S.P. Gupta v. President of India (1982).
• The right to information was elevated to the status of a human right in the People's Union for Civil Liberties v. Union of India case, which is necessary for making governance transparent and accountable.
The Mazdoor Kisan Shakti Sangathan (MKSS), which began its right to information work in Rajasthan in the early 1990s, was India's first and most well-known right to information movement.
• The Right to Information Act was enacted in 2005 in response to the need for a practical regime for citizens to obtain information from public authorities, as well as to promote transparency and accountability in the work of all public authorities.
• The law is comprehensive, and it covers almost all aspects of governance disclosure. It applies to all levels of government, including the federal, state, and local governments (both rural and urban), as well as government-owned, controlled, or substantially financed bodies, and non-governmental organisations that receive government grants.
• It encompasses the legislature, the judiciary, the executive, and all other constitutional institutions.
• In the case of Sarbajit Roy vs DERC, the Central Information Commission ruled that even private bodies that perform a "public" function are subject to the RTI Act.
The following are the key features (or provisions) of the Act:
1. Governments at all levels must develop RTI educational programmes for the general public, particularly disadvantaged communities. Officers will receive training in this area.
2. The Act grants all citizens the right of access to information and, as a result, makes public authorities responsible for disseminating that information.
3. It requires each department to appoint a public information officer who will provide information to the public upon request.
4. It establishes a 30-day deadline for providing information, with a 48-hour deadline if the information concerns a person's life or liberty. People living in poverty will have access to free information. Others will pay a reasonable fee.
5. The Act requires public agencies to disclose information on their own initiative in order to reduce the number of requests for information. Government agencies are required to publish information about salaries and budgets for their employees.
6. Certain types of data are not required to be disclosed. These concerns India's sovereignty and integrity, as well as its security, scientific and economic interests, and cabinet deliberations.
7. If a request for information involves an infringement of copyright owned by someone other than the state, the request may be denied. Third-party data is subject to restrictions. When deciding whether or not to disclose information, the submission of a third party must be taken into account.
8. It establishes a Central Information Commission as well as State Information Commissions to carry out the Act's provisions. They will be powerful independent bodies with the authority of a civil court to act as appellate authorities.
9. The Central Information Commission hears complaints and appeals from offices, financial institutions, public sector undertakings, and other entities under the control of the Central Government and the Union Territories, whereas the State Information Commission hears complaints and appeals from entities under the control of the concerned State Government.
10. The President will appoint the CIC and Information Commissioners based on the recommendations of a committee that includes the Prime Minister as Chairperson, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister to be nominated by the Prime Minister.
11. The CIC shall be appointed for a period of 5 years from the date of his appointment or until he reaches the age of 65, whichever comes first. He is ineligible for re-election. The Chief Election Commissioner's salary will be the same. During service, this will not be changed to the CIC's detriment.
12. State information commissioners will be appointed by governors. They will serve a five-year term.
13. An annual report on the Act's implementation will be published by the Chief Information Commissioner and the State Information Commissioner. These reports will be presented to the House of Commons and the state legislatures.
14. The Official Secrets Act of 1923 is repealed by this Act. If the public interest outweighs the risk to protected individuals, information commissions can grant access to the information. The Official Secrets Act of 1923 is a British colonial-era anti-espionage (Spy) and "Secret agent" law in India. This act makes it illegal to disclose any information that could jeopardise India's sovereignty and integrity, security, or friendly relations with foreign countries.
15. It imposes severe penalties for failing to provide information or disrupting the flow of it. Departmental proceedings will be brought against the wrongdoing officials.
16. If information is delayed for more than 30 days without reasonable cause, the information commission may fine an official Rs. 250 per day (up to a maximum of Rs. 25,000).
17. If the information is denied, the Act provides for two appeals: the first within 30 days to the senior of the concerned public information officer, and the second within 90 days to the Information Commission. The Information Commission's decision is final.
18. Both stages of the appeals must be resolved within 30 days, which can be extended by 15 days if necessary. However, the decision must be made within 45 days in any case.
19. The courts' jurisdiction is limited. As a result, no court can hear any suit, application, or other proceeding relating to an order issued under the Act.
20. Its jurisdiction does not include intelligence and security agencies such as the Intelligence Bureau, RAW, BSF, CISF, NSG, and others. Information about allegations of corruption or human rights violations by these organisations, on the other hand, will not be excluded.
21. The Act repealed the previous Freedom of Information Act (2002), which had gone unnoticed and thus had no effect.
Achievements of RTI act
Apart from its impact on improving governance and exposing corruption, the right to information has empowered individual citizens by enforcing human dignity. Among its accomplishments are:
• Scams Exposed: The RTI Act was used to expose several scams, including the Adarsh Housing scam, which resulted in Maharashtra's Chief Minister resigning. The 2G, coal block allocations, and Commonwealth Games scandals all used RTI.
• Rights-based Demands: It sparked calls for a slew of other crucial rights, including the right to work, the right to education, and the right to food security.
• Parties' I-T Returns: In 2008, the CIC ordered the disclosure of political parties' I-T returns, sparking a fight to bring political parties under the RTI umbrella.
• Accessible File Noting: In 2012, the government made file notings available under the RTI Act, following a series of orders and reminders from the CIC. This has put pressure on bureaucrats to properly document their work.
• Ministers', bureaucrats', and judges' Assets and Liabilities: As a result of the transparency law's pressures, ministers', civil servants', and judges' assets and liabilities are now available in the public domain and are updated annually.
• An RTI request filed by a Punjab-based NGO in 2008 revealed that local branch heads of the Indian Red Cross Society had used money meant for victims of the Kargil war and natural disasters to buy cars, air conditioners, and pay hotel bills.
Negative repercussions of RTI act
There is no doubt that the RTI Act is assisting in bringing greater transparency and accountability to government operations. However, it has been observed that this mechanism has occasionally been abused in the following ways:
I. Frivolous RTI requests that serve no public interest
II. Abuse of these provisions in the interests of vested interests
III. Interference and pessimism in public servants' decision-making
IV. Officers' apprehension to make risky decisions
V. Added to an already overburdened administration's workload. The large number of RTI requests makes it difficult for government agencies to respond in a timely manner.
The conflict between the need for transparency and accountability and the need to protect honest civil servants from undue harassment must be resolved. It is possible to accomplish this.
1. Providing monitoring mechanisms to ensure that programme implementation is transparent.
2. Providing adequate safeguards to officers in order to balance autonomy and accountability.
3. By rewarding officers for success, officers are encouraged to make decisions.
4. Defining standard operating procedure and the Code of Conduct for officers in the context of RTI.
5. Encouraging voluntary information disclosure.
6. Everyone should value education.
7. Using trust-building measures to encourage people to participate in governance.
8. The use of measures for personal gain is punishable.
9. Promoting positive values in order to bring people under moral (if not legal) regulations.
10. Media can limit its ability to cross boundaries by establishing media activism norms.
Challenges/Obstacles for the Successful Implementation of RTI
Several restrictive pieces of legislation, such as the Official Secrets Act of 1923, are part of the legislative framework.
• Within the bureaucracy, there is a pervasive culture of secrecy and arrogance; it provides information on demand, but it does not place enough emphasis on information on food, water, the environment, and other survival needs, which must be provided pro-actively, or suo moto, by public authorities.
• The Bill has received the harshest criticism from critics who point to the broad exemptions it allows. Security, foreign policy, defence, law enforcement, and public safety information are all subject to restrictions. However, Cabinet papers, including records of the council of ministers, secretaries, and other officials, are exempt from the RTI Act, effectively shielding the entire decision-making process from mandatory disclosure.
• The infrastructure available to the Information Commissioner's Office is insufficient. As a result, there is a delay in processing applications and authorities are penalised.
• State governments, such as Karnataka, have issued orders reducing the word limit, creating question formats, and prohibiting questions in regional languages in some cases.
• In 2014, the Maharashtra government issued a directive to all departments and offices, instructing them not to provide any information under the RTI Act unless it "contains any public interest."
• According to an analysis by the Delhi-based advocacy group National Campaign for People's Right to Information, there have been more than 350 cases of citizen harassment since the law was enacted in 2005, including murder, attacks, and intimidation (NCPRI).
Political Parties under RTI
• Six Indian national parties have refused to comply with the CIC order declaring them Public Authorities in 2013.
• In March 2015, the CIC issued another order, effectively stating that it was powerless to intervene and that it would not impose penalties or enforce compliance with its 2013 order. It had previously issued three summonses to the parties involved to present their arguments, all of which had been ignored.
• The new order states that penalties can only be imposed on the Public Information Officer (PIO), and that no action can be taken because political parties have not appointed them.
• The CIC suggested that the Union government or the courts take further action in the face of the only such case of non-compliance in the RTI's history. The move by the CIC was dubbed "an abdication of its responsibilities" by the petitioners. "The CIC is a quasi-judicial body, not a court." It is expected to follow the spirit of the law rather than the letter of the law. Following that, the Act expressly grants it the authority to impose penalties and compensation."
Rationale for defining political parties as public authorities
• They received valuable state resources in the form of land, lodging, and tax exemptions, amounting to "substantial funding" from the public purse.
• During election season, get free airtime on AIR or DD.
• They should also be open to public scrutiny because they are acting on behalf of the public.
• PPs are recognised by the Constitution under Article 102(2), 191(2), and the Tenth Schedule, as well as by the law under RPA 1951 section 29(A).
Arguments for bringing political parties under RTI
• Greater transparency: Bringing political parties under the RTI umbrella would result in greater financial transparency in their operations.
• More Accountability: Political parties receive large sums of money as donations from the public and are not required to pay taxes, so they must be accountable to the public.
• Due to a lack of transparency in the political system and political parties, great harm is being done to the public interest, as the electoral system generates large amounts of black money and large sums of money are spent on each election, resulting in violations of citizen's rights under Article 14, 19(1)(a), and 21 of the Indian Constitution.
• Real democracy is one in which political parties are more than just vote-gathering machines; they are vibrant, democratic organisations that are truly representative of, by, and for the people.
• Industrial houses have less influence on policymaking: Nearly 75% of political parties' income comes from unknown sources. Generally, corporate and industrial houses provide them with funds in order to change policies, grant illegal clearance, and thwart the interests of their competitors. It may also jeopardise people's and the country's interests.
Arguments against bringing political parties under RTI
• Unfurling the RTI umbrella over political parties has ramifications for political strategy and functioning, as once granted, even information on ticket distribution or denial can be sought — clearly an untenable situation given the competitiveness, secrecy, and complexity of political decision-making.
• Political rivals with nefarious motives would file RTI applications, jeopardising the parties' ability to function.
• Political parties do not keep the documentation required to respond to broad RTI requests, and they cannot be expected to create a new organisation solely to respond to the broad questions that will be raised under the RTI.
• If the argument that political parties received "substantial funding" is applied fairly, it will apply to all NGOs in a similar position.
• In its counter-affidavit, the government argued that the Representation of People Act of 1951, as well as the Income Tax Act of 1961, already contain provisions that promote transparency in the financial aspects of political parties.
• While there may be legitimate concerns about potential abuse by political opponents, neither the government nor political parties have proposed a plan to implement the recommendations of the various Law Commission reports on political party financial transparency.
Future prospects: why RTI needs a second revolution?
• The Civil Society's enthusiasm for using RTI as a tool for transparent government has waned.
• Civil servants' continued indifference and hostility toward RTI. Many small-time blackmailers, posing as journalists or RTI activists, have successfully milked the RTI for a living or to settle personal scores, earning it a bad reputation among government officials.
• Most information commissions have a long pendency — some for a year or more — which indicates their laid-back attitude. As a result, public authorities are emboldened to treat the RTI lightly.
• A general sense of laxity in the enforcement of this law stems from a widespread reluctance to punish errant government officials.
• The appointment of information commissioners, particularly in states, has seriously eroded citizen trust in information commissions, as many of them are not intellectually or physically qualified for the job.
• The information commissions are powerless due to a lack of enforcement provisions in the law.
• The law is overly ambitious and, some argue, unrealistically written because it defines "information" and "public authority" in the broadest sense possible. As a result, the sheer volume and variety of data sought places a significant burden on government agencies. This instils in them a strong sense of resistance.
India's post-independence history can be divided into two periods, one before the RTI Act and the other after the RTI Act. The 'Right-to-Information' Act has given India a second freedom, empowering citizens significantly. But it is only the beginning, not the end. RTI is in desperate need of a second revolution to rekindle the zeal with which it was first launched. In terms of legislation, the RTI Act is the best thing that has happened since India's Constitution; we must make it work.
Quotes on Transparency
1. “I for one have the conviction that the government ought to be outside and not inside. I, for my part, believe the three ought to be not place where everything can be done that everyone does not know about. Everyone knows corruption thrives in secret place and avoid public place.” — Woodrow Wilson
2. “People who mean to be their governors must arm themselves with power which Knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” — James Madison
3. “Nothing is safe that does not show that it can bear discussion and publicity.” — Lord Action
4. “Governments which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper function require, or which turn information services into propaganda agencies, will lose the trust of the people. It will be countered by ill-informed and destructive criticism.” — British Franks committee (1972)
5. “Secrecy in government is fundamentally antidemocratic, perpetuating bureaucratic error. Open discussion based on full information and debates on public issues are vital to our national health.” — Just Douglas of USA
6. A lack of transparency results in distrust and a deep sense of insecurity. — Dalai Lama
7. The keys to brand success are self-definition, transparency, authenticity and accountability. — Simon Mainwaring
8. Transparency in government, no less than transparency in choosing government, remains a vital national interest in a democracy. — Merrick Garland
9. There can be no faith in government if our highest offices are excused from scrutiny - they should be setting the example of transparency. — Edward Snowden
10. Connectivity enables transparency for better government, education, and health. — Bill Gates