RIGHT TO INFORMATION ACT 2005- AN OVERVIEW
BY- HEMANT KUMAR HIMANSU
The Right to Information Act 2005 is inimitable and one its kind. It has been enacted for the suitability of the citizens of the country and to uphold the transparency between the government working and the public who are the recipients. As the Act aims at making the government transparent and moreaccountable, the effective use of it would, in a long run, curb corruption.
If we do not have data on how our Government and Public Institutions function, we cannot express any informed view on it. Democracy revolves around the basic idea of Citizens being at the centre of governance. And the freedom of the press is an essential element for a democracy to function. It is thus obvious that the main reason for a free press is to guarantee that Citizens are informed. Thus it undoubtedly flows from this that the Citizens Right to Know is of apex importance .
Right to Information is a Fundamental Right and guaranteed as per Article 19and 21 of the Constitution of India. It is part of the Fundamental Right to Freedom of Speech and Expression recognized by the Constitution and various Supreme Court decisions . This act has repealed the Freedom of Information Act, 2002.
The Act does not emphasize active interference in educating people about their right to access information- without prevalent education and awareness about the possibilities under the new Act; it could just remain on paper. The Act also reinforces the controlling role of the government official, who retains wide discretionary powers to withhold information.
However it can be said without any unwillingness that India has finally woken up to realize that right to information is a key component in the attainment of economic ,social and political rights of an individual as well as the community at large,
Right to Information is a Fundamental Right and guaranteed as per Article 19and 21 of the Constitution of India. It is part of the Fundamental Right to Freedom of Speech and Expression recognized by the Constitution and various Supreme Court decisions. The Right to Information Act 2005 (Act No. 22/2005) is a law enacted by the Parliament of India giving citizens of India access to records of the Central Government and State Governments. The Act applies to all states and Union Territories of India, except the State of Jammu and Kashmir – which is covered under a State-level law. Under the provisions of the Act, any citizen ( including the citizens within J&K ) may request information from a “public authority” ( a body of Government or “instrumentality of State”) which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.
The RTI Laws were first successfully enacted by the state governments — Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001),Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004).
The Maharashtra and Delhi State level enactments are considered to have been the most widely used. The Delhi and J&K Right to Information Acts are still in force. The first draft of the Right to Information Bill was presented to Parliament on 22December 2004. After intense debate, more than a hundred amendments to the draft Bill were made between December 2004 and 15 June 2005, when the bill finally passed. The Act came fully into effect on 13 October 2005. The Act covers the whole of India except Jammu and Kashmir. It is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies “owned, controlled or substantially financed” by government, or non-Government organizations “substantially financed, directly or indirectly by funds” provided by the government are also covered in the Act’s ambit
Ideal Status of Right to Information:
The ideal status the right to information deserves is that of a fundamental right under our Constitution. With the Constitutional guarantee to conform to, the Act could have been used as an instrument constituting the requisite authorities, apart from laying down the quintessential exceptions to granting information, such as national security and parliamentary privilege.
An Act to provide for setting out the practical regime of right to information for citizens to secure admittance to information under the control of public authorities, in order to promote transparency and answerability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected there with or incidental thereto. The Act comprises of six chapters and two schedules – preliminary, right to information andobligations of public authorities, the central Information Commission and State Information commission, powers and functions of the Information Commissions, appeal and penalties, and miscellaneous.
The Right to Information Act basically has two Parts-(a) Substantive law, and(b) Procedural law. Section 3 could coupled with nearly other provisions like sections 8, 9, 18, 19 and 20 of the Act deal with substantive law while section 6 along with some other provisions like section 7 of the Act deal with procedural law. Thus the Act is a completed Code in itself. The core of the representation is that the citizen can obtain such information he needed from public authorities. It is the mandate of sections 3 and 4 of the Act to provide information to the citizens.
The Act defines information in sec. 2(f) as any material in any form, including the records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data substantial held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time presence in force.
Sec. 2(i) defines the word ‘record’ as including (a) any document, manuscript and file,(b) any microfilm, microfiche and facsimile copy of a document, (c) any replica of image or images embodied in such microfilm and (d) any other material produced by a computer or any other device.
The information under this Act contains any mode of information in any form of record, document, e-mail, circular, press issue samples, samples of electronic data, etc. The most welcoming feature of this enactment is that the information can be obtained within a secure time frame of 30 days and if the information relates to life or personal liberty, then it can be obtain within 48 hours. No such time frame provision has been made in any Act or code till this date. There are certain limitations or exemption under section 8 of the Act which precludes the citizen getting such information. Subject to the limitation narrated under section 8, every public authority is under an obligation to provide the information.TheAct made provisions for the Constitution of Central Information and State Information Commissions for the respective States as the appellate authorities and for nursing the proper working of this Act.
The Act provides for appointment of Public Information Officers in each of the public authorities at different levels. They are appointed by designation of their existing staff. Assistant Public Information Officers are also similarly designated in every division and sub-division of the administrative units.
The first step to be taken by the citizen seeking information is that he may send the application for information to the Assistant Public Information Officers who will transmit it within 5 days to the Public Information Officer. The application so transmitted shall be attended to and disposed of by the Public Information Officer within 30 days of its receipt by him. Here disposal of application means a real and substantial disposal. He should make available the full information in the form it is requested. If the entire material is not available he must make available so much of information as is available with him in the first instance and transmit within 5 days, the rest of the application to the concerned Public Information Officer for disposal who should in his turn shall comply with the request within 30 days as originally fixed. If the information is partly made available and the rest is rejected, theInformation Officer shall state the reasons thereof.
The next stage is that if the Public Information Officer refuses to make the information either partly or fully or fails to respond or respond in an unsatisfactory manner, the applicant for information may file an appeal before the officer higher in status over the Public Information Officer. This appeal before the higher officer is called the First Appeal.
Second Appeal is the third stage. The authority to entertain the Second appeals the Central/State Information Commission. The powers of Information Commissionare very extensive. If the appeal is allowed the Commission may direct theInformation Officer to furnish the information in the manner asked for. If theCommission finds the Information Officer to be at fault, the Commission may levy on him heavy penalties and may also direct initiation of disciplinary proceedings against him to the original Appointing Authority. The mechanism thus created for making the information available to the citizen is four-tired commencing from Assistant Public Information Officer, above him, the Public Information Officer, then Senior Officer who is the Appellate Officer and finally the Information Commission that is the Second Appellate Authority. In addition to making the application for information, the Citizen has another right to file a complaint to the Central/State Information Commission direct if the services being provided under the above chain of officers are found to be wanting in any respect. The Commission while disposing of the complaint may in addition to granting the reliefs as applied for, may further issue General Orders for rectifying the deficiencies in the system complained against by the citizens. While that much is the procedure to be followed by the citizens in obtaining the information from public authorities, the Central/State Commissions, which areindependent statutory bodies, have overall control over the whole system. TheCommissions have power to supervise the work of Information Officers and call from them the reports. The Commission will prepare an Annual Statement of the work done, the number of applications for information received and the method of their disposal. The Commission while submitting its own report containing the above particulars to the Government may also include the action taken by the Commissions against erring officers.
The Act is complete code in itself as it is having penalty clause. Section 20 of the Act authorized the Central/States Information Commission to impose penalty of Rs.250 up to Rs.25,000, on erring officials, by giving an opportunity to them. More so the commissions are also authorized to recommend for disciplinary action against the erring public authorities as well as for non-complying the provisions of the Act, under the service rules applicable to them.
However, Central Intelligence and Security agencies specified in the Second Schedule like IB, RAW, Directorate of Revenue Intelligence, Central EconomicIntelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police are excluded from disclosures. Agencies specified by the State Governments through a Notification will also be excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission.
Another anomaly that is noticeable is the omission in the statute that the rule making power of the Competent Authority may be subject to the approval or ratification by the Government. Here the power to make rules is vested in theSupreme Court, High Court, Speaker or Chairman of the Parliament/Legislatures. While the rules made by the Government are subject to the rule of laying them on the Table of Legislature, the rules made by the Competent Authority are not required under this Act to be laid before the legislature nor are they made subject to thesupervisory control of the Central or State Governments or the legislature. It is possible that the rules made by Competent Authorities may sometimes conflict with those of others made by the Central or State Governments. Hence it is suggested that the rules that may be made by the Competent Authority shall be subject to either prior permission or subsequent ratification by the concerned Governments.
Another feature of this Act is that judicial intervention is prohibited i.e. the Court has no power to entertain any suit or application or other proceedings in respect of any order made under this Act. The Act provides for rule making power to both Central and State Governments and such rules that were framed shall be laid before parliament in case of Central Govt. and State Legislature in case of State Govt.
This Act is designed to facilitate and further its end i.e., empowerment of public to know what is going on under the guise of administration and should not be treated as an enactment providing penalties and punishments. Without any hesitation it can be said that this Act should be the voice of so called voiceless in our society. Lastly, remind everybody that one should not be crazy about rights only and one should also be mindful about ones duties. Rights and duties are the two sides of a coin.
In recent years, there has been an almost unstoppable global trend towards recognition of the right to information by countries, intergovernmental organizations, civil society and the people. The right to information has been recognized as a fundamental human right, which upholds the inherent dignity of all human beings.Moreover, the Right to Information Act is for the smooth functioning of thegovernment by maintaining transparency between the government working and the public who are the beneficiaries. In nutshell it can be said that this piece of legislations’ unique in many aspects. It entitled the citizen to know the details of governance subject to certain limitations. It will further reduce the gap between the rulers and ruled.