RIGHT TO INFORMATION ACT 2005MEANING:

Information is the currency that every

citizen requires to participate in the life and governance of

society. The greater the access of the citizen to

information, the greater would be the responsiveness of

government to community needs. Alternatively, the greater

the restrictions that are placed on access, the greater the

feelings of `powerlessness’ and ‘alienation’. Without

information, people cannot adequately exercise their rights

and responsibilities as citizens or make informed choices.

Government information is a national resource. Neither the

particular government of the day nor public officials create

information for their own benfits.The Right to Information is

the right of the public to know how certain decisions are

taken, how the expenditure is incurred by the public

authorities and the various aspects of functioning of a

public authority.

The Right to Information Act was passed in India by

Parliament on 15 June 2005 and it came into force on 15

October 2005.The RTI has made information accessible to

the public which they were earlier deprived off. The basic

aim of the act is to bring about openness, transparency

and accountability of the government. This act allows the

public to seek information from any governmental

department, thereby increasing accountability and the

transparency of the establishment and allowing it to share

power with the humblest and poorest of the society.Now

India has joined the sixty odd countries around the world

which have this provision in the Constitution. There are 40

countries waiting to join this group of enlightened

democracy. Transparency is an important discipline in

governance. Right to Information is the backbone of a

democracy. The State is given immunity from this rule on

certain occasions in order for it to effectively carry on its

work. The State by virtue of being granted certain

privileges has been given certain exceptions to present all

evidence before the Court. In India too statutory

safeguards exist for ensuring government secrecy.

Sources of the Right to InformationFirst, is the constitutional basis derived from Article 19(1)

(a) of the Indian constitution which states that “All citizens

have the right to freedom of speech and expression”.

India’s Supreme Court from the case of Bennett and Co Vs

the Union of India, 1973, read it as an integral element of

the purpose of Article 19. As the majority opinion then put

it,” freedom of speech and expression includes within its

compass the right of all citizens to read and be informed”.

In state of U.P Vs Raj Narain,1975 AIR 865 , 1975 SCR (3)

333, the apex court of the country stated, “In a government

of responsibility like ours where the agents of the public

must be responsible for the conduct there can be but a 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. They are entitled to know the

particulars of every public transaction in all its bearings.”

The second basis for RTI is democratic. India is a

democracy where the government is of the people, by the

people for the people. The public servants derive power

from the people as they are either elected by the people

directly or indirectly; or nominated by the people directly or

by representatives of the people. Therefore they exercise

power on behalf of the people.Thirdly, the Constitution

guarantees, under Article 19(1)(a), to every citizen the

freedom of speech and expression. In order to exercise the

freedom of speech and expression effectively, you need an

informed public opinion. The right to knowledge includes

the right to information. The right to information thus flows

out of freedom of speech and expression. The right to

information Act, 2005 is not the repository of the Right to

Information. Its repository is the constitutional right to free

speech and expression. The Right to Information Act is

merely an instrument that lays down the statutory

procedure in the exercise of this right. The fourth basis for

RTI is logical. The Citizens pay taxes. They have a right to

know how their money is being spent, by whom, when and

where their money is being spent.

Liberal and conservative on the Right to Information Act The proponents of the liberal view have

argued information as defined under the Act includes

opinions and advices and is therefore broad enough to

cover file notings. File notings are essentially to

understand not merely the fairness of the decision but also

the decision-making process. Contrarian viewpoints upon

consideration of which the Government decides become

clear once the decision-making process is made public. If

merely the final decision is conveyed, the rationale and

logic behind the decision may not become apparent. Any

unfair influence or collateral considerations in decision-

making will not be known. The reasons why a more logical

point has been overruled will never be known. The right to

information will itself be incomplete without notings and

observations on various files given by officials being made

public. In our system of governance, we expect the civil

services to advise the political executive freely and

objectively.

It will have to be made known why in

certain cases this professional advice has not been

accepted. Governments are expected to act fairly and

rationally. All actions must be informed by reason.

Decisions must necessarily be in the public interest and

not suffer the vice of arbitrariness.

Supporters of the conservative view, on the

other hand, have sought to contend that the original Act

never conferred the right to know the notings, advices, and

opinions. The amendment reaffirms that position with an

exception that decisions relating to various social sectors

would now be made more transparent. The civil service

has consistently been advising the political executive that

since it is under an obligation to advise the political

executive correctly and objectively, the prospect of a public

gaze on its advice would deter it from taking strong

positions on various issues. If bureaucratic notings are to

be made public, officials would tend to be non-committal;

or at times they would merely place alternative viewpoints

before the decision-making authority for its direction.

Governance may suffer on this count.

The Goals of the Right to Information Act

One of the principle aims of administrative law is to ensure

the effective functioning of the government and the state in an

accountable and transparent manner. Administrative law

strives to ensure that the government is responsible and

answerable to the people. Democracy is built upon the

fundamentals of an informed citizenry and transparence in

information which are vital to its functioning and also to

contain corruption and to hold governments and their

instrumentalities accountable to the governed. This belief

forms the bedrock of the Right to Information Act. The

preamble to the Right to Information Act specifies that the Act

has been enacted for establishing the practical regime of

Right to Information for citizens in order to secure access to

information under the control of public authorities, and to

promote transparency and accountability in the working of

every public authority. The preamble, however, also refers to

the exemptions and says that, in some cases, revelation of

information in actual practice is likely to conflict with other

public interests including efficient operations of the

Governments, optimum use of limited physical resources and

the preservation of confidentiality of sensitive information.

Terms used in the Right to Information Act

"Competent Authority" means—

(i) the Speaker in the case of the House of the People or

the Legislative Assembly of a State or a Union territory

having such Assembly and the Chairman in the case of the

Council of States or Legislative Council of a State;

(ii) The Chief Justice of India in the case of the Supreme

Court;

(iii) The Chief Justice of the High Court in the case of a

High Court;

(iv) The President or the Governor, as the case may be, in

the case of other authorities established or constituted by

or under the Constitution;

(v) The administrator appointed under article 239 of the

Constitution;

"Information" means any material in any form, including

records, documents, memos, e-mails, opinions, advices,

press releases, circulars, orders, logbooks, contracts,

reports, papers, samples, models, data material held in

any electronic form and information relating to any private

body which can be accessed by a public authority under

any other law for the time being in force;"Prescribed"

means prescribed by rules made under this Act by the

appropriate Government or the competent authority, as the

case may be;

"Public authority" means any authority or body or institution

of self- government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate

Government,and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate

Government;

"Record" includes—

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a

document;

(c) any reproduction of image or images embodied in such

microfilm (whether enlarged or not); and

(d) any other material produced by a computer or any other

device;

"Right to Information" means the Right to Information

accessible under this Act which is held by or under the

control of any public authority and includes the right to—

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents

or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies,

tapes, video cassettes or in any other electronic mode or

through printouts where such information is stored in a

computer or in any other device;

PROCEDURE OF RTI:

1. What is the Application Procedure for requesting information? 1. Apply in writing or through electronic means in English or Hindi or in the official language of the area, to the PIO, specifying the particulars of the information sought for.

2. Reason for seeking information are not required to be given;3. Pay fees as may be prescribed (if not belonging to the below poverty line category

2. What is the time limit to get the information? 1. 30 days from the date of application

2. 48 hours for information concerning the life and liberty of a person

3. 5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.  

4. If the interests of a third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation).  5. Failure to provide information within the specified period is a deemed refusal.

3. What is the fee? 1. Application fees to be prescribed which must be reasonable.

2. If further fees are required, then the same must be intimated in writing with calculation details of how the figure was arrived at;

3. Applicant can seek review of the decision on fees charged by the PIO by applying to the appropriate Appellate Authority;

4. No fees will be charged from people living below the poverty line5. Applicant must be provided information free of cost if the PIO fails to comply with the prescribed time limit.

4. What could be the ground for rejection? 1. If it is covered by exemption from disclosure.2. If it infringes copyright of any person other than the State

Features of the Right to Information Act

This act extends to the whole of India except

the State of Jammu and Kashmir. Under the Right to

Information Act, 2005, Central Information Commission

and State Information Commission have been set up.

These are the supreme appellate authorities to exercise

the power conferred on and to perform the functions

assigned to under this Act. In all administrative units of the

Government there shall be Central Public Information

Officer or State Public Information Officer as the case may

be for providing information to the person requesting under

the Act. A person who desires to obtain information shall

make a request in writing or through electronic means of

communication to the Central Public Information Officer or

State Public Information Officer of the concerned public

authority along with prescribed fees. The Central Public

Information Officer or the State Public Information Officer

shall within 30 days of the receipt of such request either

provide information to the person or reject the request. If

he fails to give any decision it will be presumed that he has

refused the request.A second appeal may be preferred to

the Central Information Commission or the State

Information Commission established under the Act.

Decision of the Commission is final and binding. Thus a

hierarchy has been set up within the public authority and

the power of court has been curtailed.

Now the court is not entitled to entertain any suit,

application or other proceeding in respect of any order

made under this Act and no such order shall be called in

question in court. Thus jurisdiction of the court cannot be

invoked because there exists a statutory bar under Section

23 of the Act. Now Right to Information has become a

statutory right and any person aggrieved with the decision

of the Central Public Information Officer or the State Public

Information Officer has statutory remedy under the Act. He

does not have to knock the door of the court.

Restrictions Imposed by the Act:

The Act itself is self-restrictive in nature. The Act does not

make the Right to Information an absolute right but

imposes restriction on this right. Section 8(1) of the Act

deals with exemption from disclosure of information. The

section says that “Notwithstanding anything contained in

this Act, there shall be no obligation to give any citizen, –

(a) 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

offence;

(b) 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;

(c) Information disclosure of which would cause a breach

of privilege of Parliament or the State Legislature;

(d) 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;

(e) Information available to a person is his fiduciary

relationship, unless the competent authority is satisfied that

the larger public interest warrants the disclosure of such

information;

(f) Information received in confidence from foreign

Government;

(g) Information, 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;

(h) Information which would impede the process of

investigation or apprehension or prosecution of offenders;

(i) Cabinet papers including records of deliberations of the

Council of Ministers, Secretaries and other officers;

Provided that the decisions of Council of Ministers, the

reasons thereof, and the material on the basis of which the

decisions were taken shall be made public after the

decision has been taken, and the matter is complete, or

over; Provided further that those matters which come

under the exemptions specified in this section shall not be

disclosed;

(j) Information which relates to personal information the

disclosure of which has no relationship to any public

activity or interest, or which cause unwarranted invasion of

the privacy of the individual unless the Central Public

Information Officer or the State Public Information Officer

or the appellate authority, as the case may be, is satisfied

that the larger public interest justifies the disclosure of such

information; Section 9 of the Act says that a Central Public

Information Officer or a State Public Information Officer

may reject a request for information where such a request

for providing access to information involves an

infringement of copyright subsisting in a person other than

the state. Section 24 lays down that the Act has no

application to certain organizations.

These are the intelligence and security organizations

specified in the Second Schedule of the Act, as

organizations established by the Central Government.

The Act also cannot be applied for certain intelligence and

security organizations established by the State

Government as that Government may, by notification in the

Official Gazette specify. Information pertaining to the

allegations of corruption and violation of human rights shall

not be excluded under this Section. Only one exception is

that if the information in respect of violation of human rights

is there, after obtaining the approval of Central Information

Commission such information shall be provided. The

intelligence and security organizations established by the

Central Government not under the perview of the Act

1. Intelligence Bureau

2. Research and Analysis wing of the Cabinet Secretariat

3. Directorate of Revenue Intelligence

4. Central Economic Intelligence Bureau

5. Directorate of Enforcement

6. Narcotics Control Bureau

7. Aviation Research Centre

8. Special Frontier Force

9. Border Security Force

10. Central Reserve Police Force

11. Indo-Tibetan Border Police

12. Central Industrial Security Force

13. National Security Guards

14. Assam Rifles

15. Sasastra Seema Bal

16. CID Special Branch, Andaman and Nicober

17. The Crime Branch – CID – CB, Dadra and Nagar

Haveli

18. Special Branch, Lakshadweep Police

19. Special Protection Group

20. Defence Research and Development Organisation

21. Border Road Development Board

22. Financial Intelligence Unit, India.

Laws Relating to the Restriction on Communication of

Information

The Constitution is the supreme law of the land and any

law which ultravires the Constitution or made in violation of

it is void. Article 19(1)(a) is the main source of Right to

Information and Article 19(2) puts reasonable restriction on

it. It is not wise to make access to information absolute for

the security of the state and to maintain tranquility and

harmony within the country some facts / information must

be kept unpublished. Under Article 19(2), the state is

empowered to make any law which imposes reasonable

restrictions on such right on the grounds of sovereignty

and integrity of India, security of the state, friendly relation

with foreign states, public order, decency or morality or in

relation to contempt of court, defamation or incitement to

an offence. The All India Service (Conduct) Rules, 1968

prohibits unauthorized communication of information by

member of All India Services.Under the Atomic Energy Act,

1962 the Central Government is empowered to declare

any information as restricted information which cannot be

made public or published.

The Central Government may by order restrict the

disclosure of information relating to atomic plant, mode of

operation, substances, mode of acquisition of materials,

transaction, purchase, theory, design, construction,

research, technology etc. of an atomic plant. Sections 123

to 126 deals with communications of which evidence

cannot be given. Section 123 says that no one is permitted

to give any evidence derived from unpublished official

records relating to any affairs of State, except with the

permission of the head of the department concerned who

shall give or withheld such permission as he thinks fit.

Under this Act official communication is immune from

disclosure. Public officer cannot be compelled to disclose

official communication made to him in official confidence,

when he thinks that public interest would suffer by such

disclosure. Information as to the communication of offence

and professional communication are also exempted from

disclosure.

Section 52 of the Competition Act,2002, says that

information relating to any enterprise , being an information

which has been obtained by or on behalf of the

Commission , without the previous permission in writing

shall not be disclosed. In the Bureau of Indian Standard

Act, 1986, it has been laid down that any information

obtained by an inspecting officer or the Bureau from any

statement made or information supplied or any evidence

given or from inspection made under the provision of this

Act shall be treated as confidential.

The Central Civil Services (Conduct) Rules,1964, also

prohibits unauthorized communication of information. By

virtue of Article 19 (2), the State has made many laws like

The Official Secrets Act which prohibits disclosure of

official communication and enacted restrictive provisions in

other laws on communication of information. In public

dealings and state affairs high secrecy was used to be

maintained by public officers as part of their duty.

Confidentiality remained a condition of public service and

violation of it attracts penalty including dismissal.

No Right to Information in the Private Sector:

The Right to Information Act, 2005 is applicable in respect

of public authorities established, owned or substantially

financed by the Central Government, State Government,

administration of Union Territories, panchayat, municipality

or local bodies. So far as private sector is concerned like

partnership business, private companies and factories,

multinational companies which have their head offices

outside India, NGOs not financed by the government etc.

the Act remains silent. Therefore private bodies or

authorities are not under obligation to furnish any sort of

information if asked for. The Act is operative in the public

sector only. The Act has no application in the private

sector.

Loopholes in the Right to Information

There are certain loopholes in the Right to Information.

These loopholes have been identified within this short

period of time of application. Firstly, the official mindset

does not seem in favour of sharing any information.

As per S.P. Sathe, the main obstacle is the attitude of the

bureaucracy which is accustomed to working in closed

corridors. While most public departments may not say “no”

directly to any information sought, but there are enough

grounds in the Act on the basis of which information won’t

be given or would be delayed, viz pretext of lack of

manpower to compile the data or finalize the accounts, or

safety of the document, etc. The researcher feels that this

discretion that has been conferred upon PIOs may be used

against the purposes of the Act, unless efforts are made to

make the official mindset conducive to sharing information.

Secondly, The Act stipulates a penalty in case of

information is denied without adequate reasons, but it is

not harsh enough. There may be cases where

administrative accountability can be dispensed by

deliberate act of government in lieu of paying this meager

amount. Rather denial to provide information should be

made a much more serious offence with a heavier penalty,

and if the denial is malafide then it should be made a

ground for dismissal as well.

Thirdly, express bar on Jurisdiction of court gives a

freehand to all administrative decisions under the Act.

Although an appeal may lie to the Courts for violation of

fundamental rights, there must be a provision for appealing

to the court, in line with a similar provision that exists in the

British Freedom of Information Act.

Fourthly, the Act does not help people other than citizens.

At least NRI’s and concerned foreigners should be

allowed to access to documents required so as to set a

good international trend. Moreover, courts have interpreted

Right to Information in preview of Article 21 of the

Constitution which is guaranteed to each and every person

irrespective of citizenship.

Fifthly, under Section 7(9) information may be declined if it

disproportionately diverts the resources of the public

authority. This provision gives a lot of discretion to the

public authorities and safeguards must be provided to

ensure that it is not misused. There also should be a

provision to identify genuine requests so that the public

authorities are not burdened unnecessarily.

Conclusion In a society that suffers the curse of both arbitrariness and

corruption, sunlight could be the best disinfectant. The

advantages of transparency are far too many. Public

interest in transparency will override the relative discomfort

of the civil service against public disclosure. It is this

overweighing public interest that has persuaded media

opinion, public opinion, and even parliamentary opinion to

scoring in favour of greater transparency. In any case, it

may be difficult for the Government with the evolution of

constitutional law to contend today that advices and

opinions can still be kept as secret.