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Dr Shailesh N Hadli

Asst Prof RNPI School of Law & justice

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An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

Whereas the Constitution of India has established Democratic Republic;

And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

The Right to Information Bill was introduced in the Lok Sabha in December 2004. It was passed by both the houses of Parliament in May 2005. The assent of the President was received on 15th June and the Act was notified in ‘The Gazette of India ‘on 21st June, 2005. The Right to Information Act will become operational by the 12th October 2005. The Freedom of Information Act passed by the Parliament in 2002 has been repealed.

The Right to Information Act (RTI Act) shall cover all the establishments as defined under Article 12 of the Indian Constitution (‘Sarbajit Roy Vs. DERC’ 30/11/2006) unless until expressly exempted by the RTI Act 2005.

{ State as provided under Article 12 of the Constitution has four components:

( a ) The Government and Parliament of India- Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of State.

( b ) The Government and Legislature of each State- State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.

( c ) Local Authorities within the territory of India- Authority means.

( i ) Power to make rules, bye- laws, regulations, notifications and statutory orders.

( ii ) Power to enforce them.

Local Authority means Municipal Boards, Panchayat, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.

( d ) Other Authorities

Authorities other than local authorities working

( i ) Within the territory of India or;

( ii ) Outside the territory of India.}

More specifically it includes all levels of government Centre, State, district and local self governing bodies like Panchayat and Municipal bodies. It will also cover non-governmental organizations- i.e. NGOs and other private bodies- that are financed substantially with public finds provided by the Government. This means every citizen has the right to put in an application requesting information or copies of records held by these bodies and such information should be given by the concerned body.

 

The citizens’ right to information is not explicitly mentioned in the fundamental rights chapter of the Constitution. But in many cases the Supreme Court of India has declared that the fundamental right to life and liberty [Art.21] and the fundamental right to freedom of speech and expression [Art.19 (1)] include every citizen’s fundamental right to access information. Parliament passed the RTI Act to enable all citizens to use their fundamental right to access information from public bodies.

 

The main objectives of the RTI Act are –

  •  To promote transparency and accountability in the working of every public authority and,
  •  To set up a practical regime for giving citizens access to information that is under the control of public authorities.
  •  To project the policies and programs of the Government to the people and to inform them about the plans and schemes formulated for their benefit.
  • To educate the people about the fundamental national values, like democracy, socialism and secularism and to reinforce their faith in them through constant personal contacts.
  • To establish rapport with the people at the grass root level for their active participation in the developmental activities, as also to mobilize public opinion in favour of implementation of welfare and developmental programs.
  • To gather people’s reactions on the programs and policies of the Government and their implementation and to report them back for appropriate and corrective action by the Government. The Directorate thus acts as two-way channel of communication between the Government and the people.
  • As a step to proactively disclose required information regarding the duties and day-to-day functioning of every establishment coming under the Right to Information Act a Information Manual has to prepared in line with the provision of Sec. 4 in the RTI Act 2005 and where in there is no separate Manual prepared under Section 4 of the RTI Act 2005, then the main RTI Act shall be applicable to that establishment.
  • The main objective of the manual is to proactively publish to the maximum extent of information that will be of interest to the common people so that the need for requesting information becomes minimal. This is in accordance to Sec.4 of RTI Act 2005.
  • This proactive disclosure of information is aimed at providing to the common people the kinds of information that common people; ordinarily seek while approaching the different offices of the Board.
  • With a view to providing adequate information to the common people easily, categories of information are listed and the same is disclosed in the manual so as to bring down to a minimum their need for seeking information through applications.
  • The information contained in these manuals is intended for the convenience of the common people who desire for information relating to the functioning, duties and performance. Important information is made accessible for the public though the manual.

The Act specifies that citizens have a right to:

• request any information (as defined).

• obtain copies of documents.

• inspect documents, works and records.

• take certified samples of materials of work.

• obtain information in form of diskettes, floppies, tapes, video cassettes ‘or in any other electronic mode’ or through printouts.

Under the Act, all authorities covered must appoint their Public Information Officer (PIO). Any person may submit a request to the PIO for information in writing. It is the PIO’s obligation to provide information to citizens of India who request information under the Act. If the request pertains to another public authority (in whole or part) it is the PIO’s responsibility to transfer/forward the concerned portions of the request to a PIO of the other within 5 days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority. The applicant is not required to disclose any information or reasons other than his name and contact particulars to seek the information.

The Act specifies time limits for replying to the request.

• If the request has been made to the PIO, the reply is to be given within 30 days of receipt.

• If the request has been made to an APIO, the reply is to be given within 35 days of receipt.

• If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.

• Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

• However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

Since the information is to be paid for, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/or providing a computation of “further fees”. The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed.

If information is not provided within this period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.

For Central Departments as of 2006, there is a fee of Rs.10/- for filing the request, Rs.2/- per page of information and Rs.5/- for each hour of inspection after the first hour. If the applicant is a Below Poverty Card holder, then no fee shall apply. Such BPL Card holders have to provide a copy of their BPL card along with their application to the Public Authority. States Government and High Courts fix their own rules.

The Act specifies the appeal to the request not provided. (Section 18 &19)

It shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,— who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be

who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

  • who has been refused access to any information requested under this Act;
  •  who has not been given a response to a request for information or access to information within the time limit specified under this Act;
  •  who has been required to pay an amount of fee which he or she considers unreasonable
  •  who believes that he or she has been given incomplete, misleading or false information under this Act; and
  •  Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.
  •  The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908
  •  If the Information is not received by a person with in the time prescribes as mentioned above an appeal can be preferred to the appellate authority and the Appellate authority will be a senior person in rank of the same department with 30 days from the date of actual date of receiving information, The Appellate authority may receive the appeal even after 30 days if it is satisfied the delay was not deliberate (Section 19).
  •  If the Appellate authority is of the opinion that the PIO as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees.

The Act specifies Exclusions to the request.

Central Intelligence and Security agencies specified in the Second Schedule like IB, RAW, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence 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. 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

The following is exempt from disclosure [S.8)]

• Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, “strategic, scientific or economic” interests of the State, relation with foreign State or lead to incitement of an offense;

• Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

• Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

• Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

• Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

• Information received in confidence from foreign Government;

• Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

• Information which would impede the process of investigation or apprehension or prosecution of offenders;

• Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

• Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied by this exemption);

• Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (NB: This provision is qualified by the proviso to sub-section 11(1) of the Act which exempts disclosure of “trade or commercial secrets protected by law” under this clause when read along with 8(1)(d))

Role of the government

Section 26 of the Act enjoins the central government, as also the state governments of the Union of India (excluding J&K), to initiate necessary steps to:

• Develop educational programs for the public especially disadvantaged communities on RTI.

• Encourage Public Authorities to participate in the development and organization of such programs.

• Promote timely dissemination of accurate information to the public.

• Train officers and develop training materials.

• Compile and disseminate a User Guide for the public in the respective official language.

• Publish names, designation postal addresses and contact details of PIOs and other information such as notices regarding fees to be paid, remedies available in law if request is rejected etc.


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1 Comment on "Right to Information Act 2005"

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vijay
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Seldom RTI Act is implemented by the individuals who matter. RTI (CIC) has become vruddhashram like CVC.

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