The RTI Act, 2005 A Seven-Year Retrospect

The RTI Act A Seven-Year Retrospect

A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both, said James Madison, an American political theorist and its fourth President. If this quote is put in perspective, then until 2005, India should have been considered as being on the peril of such farce. Prior to 2005, neither was there any provision mandating the disclosure of all public information, nor was there any means to access such information. The Right to Information Act, 2005 (RTI Act/ Act) was the citizens answer to the norm of secrecy and opaqueness in governmental proceedings that was once the order of the day. The free flow of information in this country has been halted by legislations like the Official Secrets Act, 1923, parliamentary privileges, the culture of arrogance and complacency that has come to be identified with the Indian bureaucracy and general lack of awareness among citizens. The RTI Act, thus, aimed to concentrate power in the hands of the citizens who may demand, even without giving a reason, any information which they think will help them exercise their rights more effectively and take an informed decision. The Preamble of the Act, which states that it is an Act to provide for setting out the practical regime of right to information for citizens is also evidence as to for whom the Act was introduced the citizens. It is the pro-active citizenry, with the help of the weapon called RTI, who have been at the helm of disclosures of several scams involving MPs and civil servants. If not for that one person who filed an RTI application regarding allotment of flats at the now infamous Adarsh building in Colaba, we would have never known the extent to which environmental norms were flouted and quid pro quo existed between politicians and builders to allot homes in a building meant to house Kargil widows. It is important to trace the journey of the Act in order to understand how governance in India has undergone changes from functioning in a closed and secretive manner to now being under the public glare.

Recognition of the 'Right to know"

The Supreme Court has interpreted Article 19(1)(a) and Article 21 of the Constitution, which enforce freedom of speech and expression and the right to life and liberty respectively, as including the right to know. If the public does not have access to information about the functioning of the government and other public institutions, the above rights become merely ornamental, with no real power attached

to it. In other words, the right to speech cannot be exercised in the absence of the right to know. In State of UP vs. Raj Narain, the Supreme Court held that, In a government of responsibility like ours, where all agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.to cover with veil of secrecy the common routine business is not in the interest of public. Thus, it is clear that the judiciary of the country recognized the citizens right to information a long time ago.

The RTI Act

Interestingly, even before 2005, several states in India had come up with their own RTI legislations. Tamil Nadu was the first state in India to enact an access law the Tamil Nadu Right to Information Act, 1997. At the Central level, the first attempt to enact a law was made in 2002 when the Freedom of Information Bill was introduced in the Parliament. The Bill was based on a draft prepared by the Press Council of India and National Campaign for Peoples Right to Information. The Bill was passed in 2002 and also received the Presidents assent, but could not come in to force due to a want of notification from the central government. It was the 2002 draft to which more than hundred amendments were made before it was passed as the Right to Information Act in 2005, coming into force from 12 October, 2005. Section 3 of the Act declares that all citizens have the right to information. Section 2(h) contains the definition of public authority from whom information can be sought under the Act. The Act makes it obligatory for the public authorities to maintain and publish all their records. The RTI Act states that public authorities shall make known the particulars of facilities available to citizens for obtaining information and the names, designations and other particulars of the Public Information Officers. Another instance where the Act empowers the citizens is Section 6(2) which provides that an applicant need not give any reason for requesting the information or provide any personal details other than what is necessary to contact him. One of the obvious rationales behind this section is that the identity of the person seeking information must be withheld in order to protect him from any possible threats from the person about whom information is sought.

Under Section 7 of the Act, within 30 days of the receipt of the request, either the information has to be provided on payment of fee or the request rejected and the reasons have to be mentioned. If the information sought concerns the life or liberty of a person, the same has to be provided within 48 hours. Even though the Act has been lauded for the impact it has had on taking on the corrupt practices of the government, where it has ably struck the right chord is in enabling the common man to overcome problems he may face due to a particular official act. .

Success stories
There are innumerable inspiring stories about the RTI Act, reinforcing the belief that power in a democracy is concentrated in the hands of the people. For instance, in 2006 a 70-year old rickshawpuller from Bihar filed an RTI application with the help of a local NGO. He wanted information connected to his application under the Indira Awas Yojana (a national housing scheme). The block development officer, on receiving his application, handed him a cheque of Rs. 15000, his first instalment under the Indira Awas Yojana. In 2007, an under trial in Gujarat had filed an application under the RTI Act to be allowed to inspect files relating to vigilance enquiries against him in a financial misappropriation case. The said files were not presented by the bank where he was an employee to the Gujarat CID Crime Branch. There are many such instances, where the RTI has been used by the citizens especially when the authorities try to withhold information. In times where the law and order situation in the country has been delicate, the citizens have used the RTI to make sure that the authorities are not overstepping their mandate hiding behind the shield of the situation. For instance, the power of people was at display when they demanded information about the public prosecutors (who had amassed assets disproportionate to their income) in the Gujarat Godhra riots case. Similarly, the Act has also been used during the conflict in the north-east and also Maoist affected areas. The RTI Act has removed the need for a common man to approach an NGO or any other group to represent him by empowering him to approach the concerned authorities in his individual capacity. Furthermore, even the judiciary has liberally interpreted the provisions of the Act, thereby making the public authorities more accountable. For instance, in Shyam Yadav vs. Department of Personnel. Training, the Central Information Commission held that property statements filed by civil servants are not confidential and information can be disclosed after taking the views of concerned officials as per the provisions of the RTI Act.

The drawbacks
As much as the Act has empowered the citizen and given them a weapon to keep the public officers in check, not everything about it is foolproof. The Act has flaws some of them in its implementation, and some in its interpretations. One of the latest blows to the Act has come in the form of a Supreme Court judgment in the

case Namita Sharma vs. Union of India. In this case, the constitutional validity of provisions dealing with the eligibility criteria for Information Commissioners at both the Central and State level, was challenged. The Act provides that members of the State and Central Information Commission should be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. It was the contention of the petitioner that the Information Commission performs duties of judicial and quasi-judicial nature; however, the qualifications prescribed for the same are vague, general and ultra vires the Constitution. The Supreme Court upheld the validity of the sections but ruled that the Information Commissions are quasi-judicial authorities or tribunals performing judicial functions and that they will have to work in a bench of two members, one judicial member and the other a qualified person from a specific field. The judicial members will be appointed in consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be. About the consequence of such a move, Shailesh Gandhi, former Central Information Commissioner, opined that, Effectively the disposal of pending cases will drop to about 50% of the current disposals. This will lead to Commissions deciding cases after five years or more in the next few years. Also, some activists opine that the inclusion of a judicial member will deprive the Act of the personal touch that it could boast of, since information officers do not come with aura that surrounds a judicial person. At present, a review petition against this judgment has been filed by the Union government and is pending before the Supreme Court. There are also some specific problems with the implementation of Acts in certain states. For instance, Chattisgarh has increased the fee for an RTI application to Rs. 500, placing it beyond the reach for a lot of people. This is despite the fact that the Act stipulates a nominal fee. Yet another bone of contention with respect to the Act has been the (non) application of the Act to public-private-partnership (PPP) projects, which rule the roost as far as infrastructure projects in the country are concerned. As per section 2(h) of the RTI Act, in case of non-governmental organisations, only those that are financed, directly or indirectly, by funds provided by the government fall under the purview of the RTI Act. The Central Information Commission has made repeated pleas to the government to include PPP projects under the purview of RTI Act as public money and interest are involved in such projects. However, Prime Minister Manmohan Singh, at the annual convention of information commissioners, said that a blanket extension of the RTI Act to such PPP projects may discourage private enterprises to enter into partnerships with the public sector. On the other hand, a blanket exclusion may harm the cause of accountability of public officials, thus not taking a clear stand on the same. However, RTI activists have criticised this statement, arguing that since public interest is at stake in infrastructure projects, these projects should be under the purview of the RTI Act.

Attacks against RTI activists, some of them even fatal, have also been a major deterrent in the RTI movement, a situation compounded by fact that there are no express provisions in law for the protection of applicants. For instance, activist Amit Jethwa, who had filed several RTI applications and had named an MP while exposing illegal mining in the Gir forest, was gunned down outside the Ahmedabad High Court in July 2010. There is hope though. The Whistleblowers Protection Bill is closely connected with the success of the RTI Act, considering the increasing attacks on RTI Activists who have dared to register complaints against corrupt politicians, and wilful misuse of power by them. The legislations to protect whistleblowers, when enacted, shall provide safeguards to an RTI applicant.

The challenges
The general awareness amongst people about the RTI Act and how it can be used for their benefit is still low. Moreover, there is a lack of sincerity on the part of government officials in disclosing information, who often threaten the applicant or refuse to provide information. Additionally, the Information Commissioners have time and again cited the lack of man power required to comply with all the provisions of the Act. Recently, the Union Cabinet was contemplating amendments to the RTI Act, which were subsequently withdrawn after pressure from activists. The amendments, if cleared, would have restricted the disclosure of file notings in government departments under the RTI Act only to the ones related to social and developmental issues. Also, the selection process for appointments made to public offices would have been concealed from the public. However, the very fact the such an amendment was even considered by the government and moreover, the Supreme Courts judgment in Namita Sharmas case has set the alarm bells ringing as far as the future of the RTI Act is concerned.

Conclusion
The RTI Act has been lauded by democracy advocates all over the world, since it is at par (or even better) than similar laws enacted in countries in the West. For instance, in the US and UK, the respective information disclosure acts require the applicant to disclose his personal details, whereas in India, no such details are required. The RTI Act is one legislation that is indeed the pride of Indian democracy. The RTI Act, as it stands today, is a strong tool to uphold the spirit of democracy. The need of the hour is that the RTI Act should be implemented to ensure that the objects of the RTI Act are fulfilled. Any attempt to dilute the provisions of the RTI Act will only quell its success.