The Supreme Court recently took a serious view that the Central Information Commission (CIC), under the Right to Information (RTI) Act, has eight vacancies out of a total eleven sanctioned posts.
About RTI Act, 2005
- Enactment and Implementation: The RTI Act was enacted in June 2005 and came into force in October 2005.
- Purpose: To provide citizens the right to access information under the control of Public Authorities (PAs).
- Nodal Agency: Ministry of Personnel, Public Grievances, and Pensions (MoPPG&P).
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Background
- 1990: Former Prime Minister V.P. Singh first proposed the idea of the RTI
Judicial Verdicts:
- Raj Narayan vs Uttar Pradesh Government case, 1975: The Supreme Court upheld the Right to Information as a fundamental right under Article 19 of the Indian Constitution.
- L.K. Koolwal vs State of Rajasthan and Ors, 1986: The Rajasthan HC ruled that the right to information is implied in the freedom of speech and expression guaranteed by Article 19 of the Constitution.
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- 1994: The Mazdoor Kisan Shakti Sangathan (MKSS) launched the first grassroots campaign for the RTI
- 1996: The National Campaign for People’s RTI was formed and drafted the first version of the RTI law
- 1997: Tamil Nadu became the first state to pass an RTI law
- Freedom of Information Act, 2002: India initially introduced the Freedom of Information Act, 2002, to promote transparency and accountability.
- This was later replaced by the RTI Act, 2005, to strengthen these principles.
RTI vs Right to Privacy
The Right to Information (RTI) and the Right to Privacy are both fundamental rights in India, but they can sometimes conflict.
- Definition
- RTI: Allows citizens to access information held by public authorities, ensuring transparency in governance, as per the RTI Act, 2005.
- Right to Privacy: Recognized as a fundamental right in 2017, it protects personal information from unnecessary disclosure by the state or others.
- Key Differences
- RTI promotes transparency and allows access to government information, but certain personal data may be exempt from disclosure under Section 8.
- Right to Privacy ensures the protection of personal and sensitive information, such as medical and financial data.
- Points of Conflict
- Personal Information: RTI requests for personal information can conflict with privacy rights. However, personal data can be disclosed under RTI only if public interest outweighs privacy concerns.
- Public Interest vs Privacy: Information about public officials may be disclosed, but personal information unrelated to public duties is protected.
- Legal Balance: The Supreme Court has ruled that the Right to Privacy is not absolute and can be limited for public interest, while RTI also has exceptions for personal privacy.
- Recent Developments: The DPDP Act, 2023 strengthens personal data protection, affecting how public authorities handle personal data requests under RTI.
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- Establishment: The CIC was established in 2005 by the Central Government under the provisions of the Right to Information Act, 2005.
- Nature: It is not a constitutional body but a statutory authority.
- Composition: The CIC comprises:
- A Chief Information Commissioner.
- Up to ten Information Commissioners.
- Appointment Process
- The Chief Information Commissioner and Information Commissioners are appointed by the President of India.
- The recommendation is made by a committee consisting of:
- The Prime Minister as Chairperson.
- The Leader of the Opposition in the Lok Sabha.
- A Union Cabinet Minister nominated by the Prime Minister.
- Tenure and Conditions of Service
- The tenure of the Chief Information Commissioner and Information Commissioners is determined by the Central Government or until they attain the age of 65 years, whichever is earlier.
- They are not eligible for reappointment.
- Removal of Commissioners
- The President can remove the Chief Information Commissioner or an Information Commissioner.
- Powers and Functions
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- The CIC acts as an appellate authority under the RTI Act.
- It is empowered to:
- Receive and inquire into complaints related to RTI non-compliance.
- Conduct inquiries suo moto if reasonable grounds exist.
- Exercise civil court powers, such as summoning and requiring the production of documents.
- The CIC entertains complaints and appeals pertaining to offices, financial institutions, public sector undertakings, and other entities under the Central Government and Union Territories.
- Each state government constitutes an SIC. It includes:
- A State Chief Information Commissioner (SCIC).
- Up to ten State Information Commissioners (SICs).
- Appointment: Members are appointed by the Governor based on recommendations from a committee consist:
- The Chief Minister as the Chairperson,
- The Leader of the Opposition in the State Legislative Assembly, and
- A State Cabinet Minister nominated by the Chief Minister.
- Removal: The Governor can remove the State Chief Information Commissioner or any State Information Commissioner from the office
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Key Features of the RTI Act
- Institutional Framework:
- The Central Information Commission (CIC) and State Information Commissions (SICs) are established to oversee the Act’s implementation and to address appeals regarding the denial of information.
- Public Information Officers (PIOs) are appointed at both the central and state levels to provide information to citizens as per their requests.
- Provision for Appeal:
- An appeal can be made to a departmental Appellate Authority and also a second appeal can be made, if the decision of the Appellate Authority is not satisfactory.
- Rights Provided Under the Act:
- The Act allows every citizen to request information from public authorities.
- Section 4 mandates public authorities to maintain records systematically and proactively disclose specific categories of information to minimize formal RTI requests.
- Applicability:
- The Act applies to all public authorities, including government bodies established by the Constitution, legislation, or notifications.
- Organizations and NGOs that receive substantial funding from the government, whether directly or indirectly, are also covered.
- Exemptions:
- Section 8 specifies certain exemptions, such as information related to national security, personal privacy, or trade secrets.
- Provision for Exceptions under Section 8 of the RTI Act:
- The sovereignty and integrity of India
- Security, strategic, scientific or economic interests of the State
- Relations with Foreign States
The Official Secrets Act, 1923:
- Origin: Modeled on England’s Official Secrets Act of 1911, enacted to stifle nationalist movements in colonial India.
- Purpose: To maintain secrecy in governance and curb political awareness raised by newspapers.
- Scope: Applies to all aspects of secrecy and confidentiality in governance.
- Key Provisions
- Spying/Espionage (Section 3): Secret information includes official codes, passwords, sketches, plans, models, documents, or any related data.
- Disclosure of Secret Information (Section 5): Punishment applies to both the communicator and recipient of classified information.
- No clear definition of “official information,” often limited to governance aspects requiring confidentiality.
- Conflict with RTI Act, 2005:
- Section 22: RTI Act supersedes other laws, including the Official Secrets Act, on disclosure issues.
- Sections 8 & 9: Allow withholding information under RTI if classified as secret under the Official Secrets Act.
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- Lead to incitement of an offense
- Section 8 (2) provides exemption under Official Secrets Act, 1923.
- Certain intelligence and security organizations listed in the Second Schedule, like the Intelligence Bureau (IB), RAW, and National Technical Research Organisation (NTRO), are excluded from the Act’s purview.
- Time Frame and Appeals:
- Information must be provided within 30 days of a request, or within 48 hours if the matter concerns life or liberty.
- Citizens can file appeals if they are denied information or are dissatisfied with the response provided by PIOs.
- Jurisdiction:
- The Act bars lower courts from entertaining suits or applications related to RTI requests.
- However, writ jurisdiction under Articles 32 and 226 of the Constitution remains unaffected.
Amendments to the Act
- The RTI (Amendment) Act, 2019 gave the central government the authority to determine the tenure, salaries, and terms of service for CICs and Information Commissioners (ICs), raising concerns about their independence.
- The Digital Personal Data Protection (DPDP) Act, 2023 amended Section 8(1)(j) to exempt all personal information from disclosure under the RTI Act.
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- Sweden – Freedom of the Press Act: 1766
- One of the oldest and most comprehensive freedom of information laws in the world, allowing unrestricted access to documents held by government agencies.
- United States – Freedom of Information Act (FOIA): 1966
- Allows U.S. citizens and permanent residents to access information from federal agencies, with exemptions for national security and law enforcement. The law is enforced by the Department of Justice, with a response time of 20 working days.
- United Kingdom – Freedom of Information Act (FOIA): 2000
- Grants access to information held by public authorities, including government departments and local authorities. It has exemptions for national security, personal data, and law enforcement.
- European Union – EU Directive on Access to Documents: 2001
- Applies to documents held by EU institutions, promoting transparency in decision-making. It has exemptions for defense, foreign policy, and personal data protection.
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- Empowerment of Citizens: RTI empowers citizens to actively participate in the democratic process by providing access to information about government policies, decisions, and activities.
- It strengthens the role of individuals in questioning and holding authorities accountable.
- Promotion of Transparency: Proactive disclosure of information by public authorities (as mandated by Section 4 of the RTI Act) ensures transparency in governance. It minimizes secrecy in the functioning of public institutions.
- Example: RTI revealed irregularities in the coal block allocation (Coalgate scam), compelling systemic reforms in resource allocation.
- Accountability in Governance: RTI establishes a mechanism for public authorities to justify their actions and decisions.
- It helps citizens monitor government efficiency and ensures that officials remain answerable for their conduct.
- RTI uncovered the non-utilization of funds allocated under the Member of Parliament Local Area Development Scheme (MPLADS) in several constituencies, ensuring better utilization of public money.
- Tool to Combat Corruption: By uncovering malpractices and irregularities, RTI acts as a powerful instrument to fight corruption.
- Example: The RTI Act was instrumental in exposing the Adarsh Housing Society scam in Maharashtra.
- Effective Implementation of Policies: RTI enhances the implementation of government schemes and welfare programs by enabling citizens to verify and monitor their progress.
- Example: RTI was used in Rajasthan to expose discrepancies in MGNREGA records.
- Strengthening Democracy: RTI fosters participatory democracy by creating an informed citizenry.
- It ensures that the government remains responsive to the needs of the people.
- Encouragement of Better Record-Keeping: The obligation to disclose information encourages public authorities to maintain records systematically and efficiently.
- Following multiple RTI queries, the Ministry of Corporate Affairs revamped its filing systems under the MCA21 initiative to improve access to corporate records.
- Enhancing Public Trust: Transparency and accountability foster trust between the government and its citizens.
- Safeguarding Fundamental Rights: RTI strengthens fundamental rights like freedom of speech and expression (Article 19(1)(a)) by enabling access to essential information.
- Promoting Good Governance: RTI serves as a cornerstone for good governance by fostering accountability, transparency, and citizen empowerment.
Challenges in the Implementation of the RTI Act
- Functional Challenges
- Vacancies in Information Commissions: Many Central and State Information Commissions (CICs and SICs) remain under-staffed, with several posts, including Chief Information Commissioners, lying vacant.
- As of Oct 2024, seven out of 29 state information commissions (SICs) in India were defunct or understaffed due to vacancies.
- Backlog of Appeals and Complaints: Over 4 lakh appeals and complaints are pending under the Right to Information Act as of June 30, leading to significant delays in grievance redressal.
- Some SICs take over a year to dispose of cases, undermining the effectiveness of the Act.
- Inadequate Gender Representation: Since 2005, only 9 % of all Information Commissioners have been women, highlighting gender imbalance.
- Structural Challenges
- Exemptions under Section 8: Exemptions for reasons like national security and personal privacy are often misused to deny information.
- Dilution through Amendments: The RTI (Amendment) Act, 2019 gave the Central Government the power to determine the tenure, salary, and service conditions of Information Commissioners, potentially affecting their independence.
- Procedural Challenges
- Bureaucratic Resistance: Public officials are often reluctant to disclose information to protect themselves from scrutiny or to conceal inefficiency and corruption.
- Non-Compliance by Political Parties: Despite being brought under the RTI Act’s purview, major political parties have not appointed Public Information Officers (PIOs).
- Delays in Providing Information: While the Act mandates information to be provided within 30 days, delays are common due to inefficiency or lack of accountability.
- Awareness and Safety:
- Safety Concerns for RTI Activists: Activists who expose corruption or misuse of power face threats, harassment, and even violence.
- Several RTI activists have been attacked or killed in retaliation for seeking information.
- Weak Whistleblower Protection: The Whistleblowers Protection Act, 2014, lacks robust provisions to safeguard those who expose wrongdoing, including RTI activists.
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Way Forward for RTI in India
- Filling Vacancies: Ensure timely appointments to CICs and SICs to reduce pendency and improve efficiency.
- Recommendations from the 2nd ARC:
- The 2nd Administrative Reforms Commission (ARC) in its report “Right to Information – Master Key to Good Governance” recommended the establishment of a National Coordination Committee (NCC) to monitor RTI implementation, evaluate its impact, and ensure the smooth functioning of the national portal for RTI.
- It also recommended awareness campaigns to be entrusted to credible non-profit organizations at the state level and the recruitment of adequate staff in public authorities for proper RTI functioning.
- Enhancing Awareness: Conduct widespread awareness campaigns, especially in rural and marginalized areas.
- Protecting RTI Activists: Introduce robust mechanisms to safeguard whistleblowers and activists.
- Strengthening the Whistleblowers Protection Act: Introduce stringent provisions and enforcement mechanisms to protect whistleblowers and RTI activists from threats, harassment, and violence.
- Improving Record Management: Digitize records and provide adequate training to PIOs for better record maintenance and retrieval.
- Independent Functioning of Information Commissioners: Amend the RTI Act to ensure the autonomy of Information Commissions by shielding them from political or executive interference.
Conclusion
The Right to Information Act is a crucial tool for ensuring transparency, accountability, and citizens’ empowerment in governance. However, addressing the challenges of vacancies, delays, procedural inefficiencies, and the protection of RTI activists is essential to fully realize its potential in fostering an open and accountable government.
November 28, 2024
