Anand Doctrinal on right to information act

Electronic copy available at: http://ssrn.com/abstract=1758022

RIGHT TO INFORMATION

1


IN INDIA

OUTLINE

NAME PAGE NO.

Introduction 3

Research methodology 5

CHAPTER - 1

What is the need for Information? 6

CHAPTER - 2

Right to Information as a tool to combat corruption 7

CHAPTER - 3

Constitutional development of the Right to Information 10

CHAPTER 4 Legislating the Right to Information 13

CHAPTER - 5

Right to Information Act, 2005 15

CHAPTER 6 Issues in Implementation of the RTI Act 16

CHAPTER 7 Right to Information and the Higher Judiciary in India 19

Conclusion 23

Suggestions 25

Bibliography 26

Electronic copy available at: http://ssrn.com/abstract=1758022


2

INTRODUCTION

Right to Information is the bulwark of democratic government. This right is

essential for the proper functioning of the democratic process. Right to Information is an

integral part of the freedom of speech and expression enshrined in Article 19(1)(A) of the

constitution, which is regarded as the first condition of liberty. It occupies preferred

position in the hierarchy of liberties giving succour and protection to other liberties. The

expression freedom of speech and expression in Article 19(1)(a) has been held to include the right to acquire information and disseminate the same. It includes the right to

communicate it through any available media whether print or electronic or audio-visual,

such as, advertisement, movie, article or speech, etc. This freedom includes the freedom

to communicate or circulate ones opinion without interference to as large a population in the country, as well as abroad, as is possible to reach. Communication and receipt of

information are the two sides of the same coin. An important aspect of freedom of speech

and expression is considered the freedom to receive and disseminate information without

any hindrance. Without adequate information, a person cannot form an informed opinion.

In a country like India where the government consists of numberless agents of the

public, each one of them has to be responsible for their own conduct and hence, there is

no room for maintaining secrets. In less than a decade, the flourishing movement for the

right to information in India has significantly empowered the ordinary citizen. He can

now exercise significant check over the arbitrary use of power by the State functionaries

and thereby the democratic set-up of the country is expanding. People of India have long

battled to achieve the Constitution and thereby the inalienable fundamental rights. The

right to information is also one of fundamental rights implicit in the Constitution.

Fundamental Right to Information is the sine qua non of democracy in India because

historically the culture of the executive has been one of secrecy in India since the colonial

rule. There has never been constant and resolute access to information.

Where the disclosure of information is required proactively, it is often ignored or

taken very lightly. The growing number of complaints and appeals are responsible to

strain enforcement mechanisms for the new law. Nonetheless, the potential of

transformation of the new law has already been demonstrated by the advocates of RTI

Act, and they are continuously pressing for proper implementation in a very energetic

way. Innovations have been developed in practice by the public officials and civil society

organizations which may prove to be of great use to other countries ready to adopt similar

laws.

One thing should be kept in mind that Judiciary is one of the three wings of the

government along with the Legislature and Executive, and it is also accountable to the

people like the other two. If any sort of immunity is resorted to the judiciary from Right

to Information Act then it will be completely in contradiction of the basic principle of

transparent and accountable governance, that the enforceable right of the citizen to

government held information must be the rule, with only a few exceptions for genuine


3

considerations of national security and individual privacy. Right to Information is no

doubt a key to good governance.

There was never a doubt that Indian judiciary is one of the strongest judiciaries in

the world. This strength of the judiciary can be evidenced by protection from

accountability afforded to judges include the virtual immunity from public criticism due

to the law of contempt of court, lack of any effective disciplinary mechanism, the self

acquired protection from even being investigated for criminal offences, and finally by the

immunity from public scrutiny by another judicially created insulation from the Right to

Information Act.

But the right does not carry with it a right in an absolute sense of the term to

gather information. A reasonable restriction on the exercise of the right to know or right

to information can always put in order to ensure the security of the State. Generally, the

exemptions/exceptions under the laws referred to in Article 19(2) entitled the

Government to withhold information to the following matters:

1. International relations. 2. National security (including defence) and public safety. 3. Investigation, detection and prevention of crime. 4. Internal deliberations of the Government. 5. Information received the confidence from a source outside the Government. 6. If the information can violate the right to privacy of an individual, if disclosed. 7. If information can confer an unfair advantage on some persons or to an unfair

disadvantage i.e. of an economic nature, (including trade secrets), if disclosed.

8. Information which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and

the patient.

9. Information about scientific discoveries.1 10. Much of this has been covered by the Right of Information Act, 2006.

1 Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476 : AIR 2004 SC 1442.


4

RESEARCH METHODOLOGY:

AIMS AND OBJECTIVES:

The aim of the researcher is to outline firstly the significance of the right to

information, particularly in empowering ordinary citizens to combat state corruption as well as to highlight some lacuna in the Right to Information Act. The aim is to focus over the efforts at the national level to legislate this right. The researcher has tried

to focus over the implication of Right to Information Act over the Higher Judiciary in the

light of latest controversy in the case of The Central Public Information Officer, Supreme Court of India v. Subhash.

STYLE OF WRITING:

The researcher has used analytical and descriptive style of writing

SOURCE OF DATA:

The researchers main source of data collection was secondary data as collected from various books, articles, journal and the various website.

MODE OF CITATION:

The researcher has followed a uniform mode of citation throughout this project.

SCOPE AND LIMITATIONS:

Whether the RTIA is meeting expectations about its revolutionary potential? This is a

question that is relevant not only in India, but in many other countries in similar

circumstances, which have either adopted or are considering the adoption of FOIA-style

legislation. The aim of this article to is synthesize the main findings of these recent Indian

studies.

RESEARCH QUESTIONS:

What is the need for the information in a democracy? What are the constitutional developments for the right to information? Whether the Higher Judiciary should be covered within the scope of of the RTI

Act or not?

HYPOTHESIS:

The only way to secure substantial right to information available to the citizens of India is

to implement the Right to Information Act, 2005 strictly according to the provisions of

law. It is essential that the Higher Judiciary should realize its responsibility and should be

covered within the scope of the RTI Act. Higher the authority, higher should be the

accountability to the people of India.


5

CHAPTER 1

WHAT IS THE NEED FOR INFORMATION

It should be remembered that Right to Information or the Freedom of Information

has the ability to generate more controversy and heated debate than virtually any other

aspect of contemporary government and administration. Freedom of Information has long

been a rallying cry of libertarians. But what does freedom of information mean? For most

those who employ the phrase it means that the public files, documents or the information

in any form, should be normally accessible to the common people so as to know what

government in up to. In some jurisdictions, it may mean not only allowing access to

government documents in whatever form they happen to exist, but also opening up the

meetings of governments, their advisory bodies and client groups to public scrutiny. Or it

may involve access by individuals to files containing information about themselves and an assurance that the information is not being used for improper or unauthorized purposes.

It covers individual access to information, and the protection of information upon

individuals form unjustified use. If individual access to such information is too costly, or

too sensitive or not worth the effort because of public apathy, or because there is little

public feedback of views or ideas to inform specialists or decision-makers, is this an

argument against freedom of information? Or is it an argument in favour of the provision

of essential and unadulterated information to bodies that we trust, so that they may check

the policy-making process, render that process accountable, and report on their findings?

The reason for coining the phrase Information Society was to evaluate the essence of the advanced computerized world. From financial markets to government,

from national security to education, form multinational corporations to small employers,

from police to social welfare, medical treatment and social services, we are confronted by

information repositories and retrieval systems whose capacity to store and transmit

information is staggering. If we study the constitutional history of Britain then we will

find that parliaments desire to know about who counselled and advised the monarch in the formulation of policy was a major factor in the struggle between Crown and

Parliament. What is novel in our society, however, is the heightened awareness of the use,

collection, dissemination or withholding of information. Our capacity as human beings to

acquire, use and store information is essential for our survival. This might appear a tall

claim for something which in English law cannot be the object of theft.2At a practical

level, disasters are avoided, accidents prevented and sustenance provided by our use of

information. Hamlets tragedy was that he was accurately informed; Othelos that he was not. While information itself is important, our ability to discern the degree of the

reliability of the information provided is essential in the exploitation of resources or

relationships, or in the exposure of sham.

2 Oxford v. Moss (1978) 68 Cr App Rep 183


6

INFORMATION AND THE STATE:

The position that a ruling body adopts towards the provision of information about

its activities to a representative chamber or the civil society at large will inevitably be

coloured by considerations about the proper role of government, as well as sheer political

experience. When the government was in the personal household of Monarch, the words

of James I of England expressed the private nature and arcane mysteries of state business by warning that None shall presume henceforth to meddle with anything concerning our government or deep matters of state.3The nature of the bond between the citizens and the State, and the bond between citizens among themselves, is formulated in

an implied contract, not an unalterable status. Breach by the government justifies its

removal.

It was the theme that was to be developed in the liberal tradition. There are

arguable reasons why confidentiality must be maintained or not maintained in various

relationships. These relate to individual respect and integrity. A problem arises when the

private body in question exercises considerable influence in public life but insists on

confidentiality in its operations to such an extent that it is effectively its own master. A

lack of information facilitates a lack of accountability for the exercise of power and

influence and the impact these forces have upon the public interest where democratic

controls are absent.4

Secrecy being an instrument of conspiracy, said Bentham, ought never to be the system of a regular government.5Secrecy was the climate in which, at worst, those placed in government would abuse the power which had been given to them. It protected

misrule. Publicity, regular elections and a free press were needed to safeguard the

electorate from their chosen governors-from the excesses of bullies, blackguards and buffoons. What can we reason but from what we know? Bentham.

The UN General Assembly adopted Resolution 59(I), stating, Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to

which the United Nations is consecrated. 6 Article 19 of the Universal Declaration of Human Rights Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers7

3 Science and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture (1994).

4 Patrick Birkinshaw LLB, Freedom of Information, (3rd Edn. 2001), at p. 25.

5 Works of J Bentham, (1843) ed H Bowring , 2, pp 310-17.

6http://webcache.googleusercontent.com/search?q=cache:CUWp4ghUOL0J:www.humanrightsinitiative.or

g/programs/ai/rti/articles/undp_rti_2006/annex4_global_perspective

7http://www.humanrightsinitiative.org/programs/ai/rti/articles/undp_rti_2006/annex4_global_perspective_o

n_rti.pps


7

CHAPTER 2

RIGHT TO INFORMATION AS A TOOL TO COMBAT

CORRUPTION

In India today, being a welfare-state, the state has spread its tentacles to virtually

every aspect of public life. The person on the street is condemned to grapple hopelessly

with corruption in almost every aspect of daily work and living. Information is power,

and the executive at all levels attempts to withhold information to increase its scope for

control, patronage, and the arbitrary, corrupt and unaccountable exercise of power.

Ultimately the most effective systemic check on corruption would be where the citizen

herself or himself has the right to take the initiative to seek information from the state,

and thereby to enforce transparency and accountability. It is in this context that the

movement for right to information is so important. The statutory right to information

gives a legal right to have access to government-held information strengthens democracy

by ensuring transparency and accountability in the actions of public bodies. It enhances

the quality of citizen-participation in governance from mere vote-casting, to involvement

in the decision-making that affects her or his life.8

A statutory right to information would secure for every citizen the enforceable right

to question, examine, audit, review and assess government acts and decisions, to ensure

that these are consistent with the principles of public interest, probity and justice.

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. Article 39 of the Constitution of India

makes clear that the end of State in India is not doctrinaire but practical. The humanist

path towards socialistic pattern of society is ideal for India and Article 39 (b)9 and (c)

illustrates this ideal and it also illustrates the doctrine of growth accompanied by

distributive justice.10

These clauses, together with other provisions of the constitution,

contain one main objective, namely, the building of a welfare State and an egalitarian

social order, to fix certain social and economic goals for immediate attainment by

bringing about a non-violent social revolution. Through such a social revolution, the

Constitution seeks to fulfill the basic needs of the common man and to change the

structure of the society, without which political democracy would have no meaning.11

The

expression Material resources is wide enough to include not only natural or physical resources but also movable or immovable property. It would include all private and

public sources of meeting materials needs, not merely public possessions.12

Then why

cant the public information be included with the meaning of material resources of the community. And if the public information is a material resource then the State is duty

8 SHALU NIGAM, Right to Information Law & Practice, at p. 4.

9 The ownership and control of the material resources of the community are so distributed as best to

subserve to common good. 10

Churk Cement Mazdoor Sangh v. State of U.P., AIR 1992 All 88. 11

Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 : 1973. 12

D.D. BASU, Constitutional Law of India, (8th Edn. Vol. 3), at p. 4087.


8

bound to distribute it so as to subserve the common good. And the Right to Information

Act is the best way to fulfill this requirement. No type of information is created by any

government or public officials for their individual benefit. This information is created so

that the duties of office could be properly discharged by the public officials and for

purposes related to the legitimate discharge of the service of the public for whose benefit

the institutions of government comes into existence, and by whom ultimately the salaries

of the officials and institutions of government are funded. It follows that government and

officials are `trustees of this information for the people. The members of the public are enabled to have legal access to documents, information and files of the government

through the Right to Information Act that may not otherwise be available without the

discretion of government. Under the parliamentary system the information is transferred

from government to the parliament and the legislatures, and from these to the people. It is

hoped that the gap between the information rich and the information poor would be reduced through the recent technological developments in the country. However, it may

be found that in practice the situation of bureaucracy in India remains the same as was

prevalent during the rule of British. Bureaucracy, even now, can be found as one of

secrecy, distance and mystification. In fact, this preponderance of bureaucratic secrecy is

usually legitimized by a colonial law, the Official Secrets Act, 1923, which makes the

disclosure of official information by public servants an offence.

It is expected that the quality of decision making by public officers will improve by

the right to information, in all sorts of matters, when the unnecessary secrecy around the

decision making process will be removed. The quality of participatory political

democracy will definitely improve after the citizens are given a chance to participate in

the political process in an informed way in the political process. The citizen would be

able to assess the performance of the government and public officers, and to have a role

in participating and influencing the decision-making process of the government, after

having an access to pertinent information. It would be important to see an increasing

impact on eradication of corruption and the control on arbitrary exercise of power with

the availability of such information to the citizens.


9

CHAPTER 3

CONSTITUTIONAL DEVELOPMENT OF THE RIGHT TO

INFORMATION

It is required to stress at the very threshold that the movement of right to

information in India was never aimed to merely ensure an access to the public

information. Rather, the aim is create such favourable conditions so that the right to

information can be effectively exercised. It is for sure that that the Indian Constitution

does not contain any specific right to information or even right to freedom of the press.

The Chapter on Fundamental Rights when interpreted broadly guarantees the right to

information as a part of freedom of speech and expression. As pointed out by H.M.

Seervai, Corruption, nepotism and favouritism have led to the gross abuse of power by the Executive, which abuse has increasingly come to light partly as a result of

investigative journalism and partly as a result of litigation in the Courts13. It is submitted that the provisions of the two constitutions (US and Indian) as to freedom of speech and

expression are essentially different. The difference being accentuated by provisions in our

Constitution for preventive detention which have no counterpart in the US

Constitution.14

Several decisions given by the Supreme Court from time to time have been

actually responsible for the development of legal position with regard to the right to

information in India. These decisions were not given specifically in the context of the

right to information, but specifically in the context of the Right to Freedom of Speech and

Expression. Right to Freedom of Speech and Expression has been said to be the opposite

or invert side of the Right to Know, and it is not possible to exercise one without the

other.

The landmark case in freedom of the press in India was Bennett Coleman & Co.

vs. Union of India15

in which the court struck down the newsprint control order saying

that it directly affected the Petitioners right to freely publish and circulate their paper. In

that, it violated their right to freedom of speech and expression. The judges also

remarked, It is indisputable that by freedom of the press meant the right of all citizens to speak publish and express their views and Freedom of speech and expression includes within its compass the right of all citizens to read and be informed. The dissenting judgements of Justice K.K. Mathew also noted, The freedom of speech protects two kinds of interests. There is an individual interest, the need of men to express their opinion

on matters vital to them and a social interest in the attainment of truth so that the country

may not only accept the wisest course but carry it out in the wisest way. Now in the

method of political government the point of ultimate interest is not in the words of the

speakers but in the hearts of the hearers. This principle was even more clearly enunciated in a later case

16where the court remarked, The basic purpose of freedom of

13

H.M. SEERVAI, Constitutional Law of India, (4th Edn. Vol. 2), at p. 1096. 14

H.M. SEERVAI, Constitutional Law India, (4th

Edn. Vol. 1), at p. 710. 15

AIR 1973 SC 783 16

Indian Express Newspapers(Bombay) Pvt. Ltd.vs Union of India (1985) 1 SCC 641)


10

speech and expression is that all members should be able to form their beliefs and

communicate them freely to others. In sum, the fundamental principle involved here is

the peoples right to know. Another development on this front was through a subsequent case

17in which it was held that if an official media or channel was made available to one

party to express its views or criticism, the same should also be made available to another

contradictory view. The Court held that a state instrumentality having monopolistic

control over any publication could not refuse to publish any views contrary to its own.

The right to have transparency in criminal justice system and to have it free from any sort

of arbitrariness has been developed by the courts in the area of civil liberties. In Prabha

Dutt Vs. Union of India18

the Court held that there excepting clear evidence that the

prisoners had refused to be interviewed, there could be no reason for refusing permission

to the media to interview prisoners in death row. In State of U.P v. Raj Narain19

the Court

said, While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction

to giving the executive exclusive power to determine what matters may prejudice the

public interest. Once considerations of national security are left out there are few matters

of public interest which cannot be safely discussed in public. Justice K.K.Mathew went further to say, In a government of responsibility like ours, where all the 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. They are entitled to know the particulars of every

public transaction in all its bearing. Whenever one claims secrecy for his public activities

which do not have any negative effect over the public security, must be cautious of the

right to know available to the people. It is not in the public interest to cover the routine

business with the veil of secrecy. Such secrecy can seldom be legitimately desired. It is

generally desired for the purpose of parties and politics or personal self-interest or

bureaucratic routine. The responsibility of officials to explain or to justify their acts is the

chief safeguard against oppression and corruption.20

The expression freedom of speech and expression in Article 19(1)(a) has been held to include the right to acquire information and disseminate the same. It includes the

right to communicate it through any available media whether print or electronic or audio-

visual, such as, advertisement, movie, article or speech, etc. This freedom includes the

freedom to communicate or circulate ones opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.

21In Peoples Union for Civil Liberties

22, the Supreme Court dealt with this aspect of the freedom elaborately.

The right of the citizens to obrain information on matters relating to public acts flows

from the Fundamental Right enshrined in Article 19(1)(a). The right to information in

basic part of Article 19(1)(a) as for the promotion of freedom of expression it is essential

to secure the information related to the basic details of the candidate contesting the

17

Manubhai D. Shah v. Life insurance Corporation AIR 1981 Guj 15 18

AIR 1982 SC 6 19

AIR 1975 SC 865 20

State of U.P. v. Raj Narain AIR 1975 SC 865 21

M.P. JAIN, Indian Constitutional Law, (6th Edn., Vol. 1), at p. 1418. 22

Peoples Union for Civil Liberties (PUCL) v. Union of India, AIR 2003 SC 2363.


11

elections. In Dinesh Trivedi, M.P. and Others v. Union of India23

, the Supreme Court

dealt with the right to freedom of information and observed in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the

government which, having been elected by them, seek to formulate sound policies of

governance aimed at their welfare. It has been recognized that the right to know, right to receive and disseminate the information is within the right to freedom of speech and

expression. Using the best possible means to impart and receive the information has been

recognized as a fundamental right of the citizen of India. The right to know has, however,

not yet extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923

which prohibits disclosure of certain official documents.24

Moreover the right to know in a democratic system is neither a fundamental right nor a common law right. It is pure and simple because it is a statutory right and this right

originates from Constitution of India in accordance with the Article 19(1)(a) and it was

shaped in a statute i.e. The Right to Information Act, 2005. Hence it cannot be described

as pure and simple statutory right. The information which is best facilitated meaningful

cannot be read as an integral part of any fundamental right. The enforcement of the right

can create confusion and at initial stage this right cannot be placed in the pedestal of the

basic or fundamental right but when citizen will go to a department or organization then

only such right will take a crises in many a cases for both citizen seeking information and

authority supplying it with a rightly sharpened sword over his head at the point of heavy

penalty and punishment. Hence the whole Act can be judged at the point of its

implementations and contemporary development wherein each citizen is involved in

plethora of informations and each organization is pre-occupied with abundant work

burden.25

Here RTI Act is concerned with the crystal clear information which must be furnished to each citizens of India who seek this information. It is very important for

every government to set up effective machinery for the good governance of citizens26

.

23

4 SCC 306 : (1997) 1 SCJ 697. 24

MAHENDRA P. SINGH, Constitution of India, (11th Edn.), at p. 130. 25

P.K. DAS, The Right to Information Act 2005, at p. 16. 26

The Constitutional Law of India J.N.Pandey at p.175


12

CHAPTER - 4

LEGISLATING THE RIGHT TO INFORMATION

Two infamous cases can be stated here. One was the imposition of the Official

Secrets Act being used to prohibit entry of journalists into an area where massive

displacement is taking place due to construction of a large dam, one of the worlds largest dams displacing hundreds of thousands, the Sardar Sarovar Project. Activists discovered

that the potential oustees had little or no knowledge of how their lives were going to be

affected, no knowledge of the time or extent of displacement, nor any idea of the plans

for re-location and rehabilitation. Another dramatic instance which has been in the eye of

international attention during the last few years is the Bhopal Gas Tragedy in Bhopal, the

capital of the largest state in India, claimed several thousand lives and maimed and

handicapped at least the next three generations. Not only did the government refuse to

make public details of the monetary settlements between the government and the Union

Carbide, but several participants at a workshop on the medical aspects of the victims

were arrested for taking notes under the provisions of the Official Secrets Act!

These cases were strong reasons to demand for provisions to be made in a law, so

as to bind government as well as private entities to disseminate information voluntarily

on issues affecting the public interest. The Indian government established a Working

Group in 1977 in order to recommend amendments to the Official Secrets Act to enable

greater spread of information to the public. In 1991 sections of the press27

reported the

recommendations of a task force on the modification of the Official Secrets Act and the

enactment of a Freedom of Information Act, but no legislative action followed. During

the late nineties, the citizens groups started demanding repeal of the Official Secrets Act, and replace it by a comprehensive legislation so as to make duty to disclose.

The first major draft legislation right to information in the country that was

widely debated, and generally welcomed, was circulated by the Press Council of India in

1996. One important feature of the Press Council draft legislation was that it affirmed in

its preamble the constitutional position that the right to information already exists under

the Constitution, as the natural consequence of the fundamental right to free speech and

expression under Article 19(1) of the Constitution. Any fact related to the affairs of the

public authority or body may be defined as information for the purposed of Right to

Information including any of the records related to the affairs of government. The

extraction and receiving certified copies, inspection and taking notes of the public

documents were all included within the right to information. Significantly, the term

`public body included all undertakings and non-statutory authorities, and most significantly corporation, society, trust, company, firm or a co-operative society, owned

or controlled by private persons or groups able to affect the public interest by their

activities. The few restrictions that were placed on the right to information were similar

to those under other Fundamental Rights.

27

The Hindu, 13th December,1991


13

Later on a working group chaired by consumer activist H.D. Shourie to draft

legislation for consideration of government submitted its report in May 1997, advanced

on the Press Council Legislation in one respect. Most importantly, it widened the scope

of exclusions to enable public authorities to withhold `information the disclosure of

which would not subserve any public interest. The powerful clause referred to earlier, which provided that only such information that can be denied to parliament or the

legislature can be withheld from the citizen, was not included. The Shourie draft also

made no provisions for penalties in the event of default, rendering the right to

information toothless. However, with the demise in quick succession of two left-leaning

United Front governments, this draft also went into cold storage.

Later on the government started contemplating only to amend a few sections of

the Official Secrets Act, and to list a dozen items on which it would become mandatory

for government to give information on demand. Items not covered by this list would

continue to be covered by the Official Secrets Act. Law Commission of India in its 179th

report and reports of the number of the committees and Councils working on this subject

sensitized the government of India to enact a specific law on the right to information and

also recommended the need for an act on public interest disclosure and protection for

citizens right related to information sought from every public authority.28

An Act was

required to provide a statutory frame work for this right so that rights can be easily

implemented.

SEEDS FOR THE LEGISLATION ON RIGHT TO INFORMATION:

In 1966, the right to information was established for the federal government

agencies when the United States adopted the Freedom of Information Act (FOIA). After

the resignation of President Richard Nixon in 1974, FOIA strengthened and became the

model for other states of the US who adopted similar statutes. FOIA also became the

model for other countries, such as Canada, Australia, and New Zealand all of which adopted similar laws in 1982. By 1990, fifteen other nations, mainly the developed

countries in Europe had similar statutes. In the next two decades, similar statutes were

adopted by some of the other developed countries like Germany, United Kingdom and

Japan. While acting as per the advice of international institutions like World Bank, the

FOIA style laws were also adopted by some of the governments later on. By 2010, over

seventy nations had adopted the FOIA style of laws. Even in China, a right to information

was provided by way of adopting certain regulations. The laws adopted by most of the

countries over the last two decades, however, differ in many respects from the United

States and the other countries who had adopted it earlier.

28

179th

Report of the Law Commission of India December 14 2001


14

CHAPTER 5

RIGHT TO INFORMATION ACT, 2005

In order to promote, transparency and accountability in administration,

Parliament passed Right to Information Bill, 2004 on 15th June, 2005, The Right to Information Act was notified in the Gazette of India on 21st June, 2005, after repealing the Freedom of Information Act, 2002. The Right to Information Act has become fully operational from 12th October, 2005 so as to enable a citizen of India to secure access to

information under the control of Public Authorities.29

This law satisfies a long standing

demand of the people raised through various peoples movements, and gives content and meaning to the right to information recognized since 1973 by the Supreme Court as a

concomitant of the fundamental right to freedom of speech and expression guaranteed

under Article 19(1)(a).30

It is enacted to provide for setting out the practical regime of

right to information for citizens. 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.

The RTI Act is unique as it shifts the responsibility from appellant to respondent. India adopted the FOIA-style legislation like the United States. However the RTIA is

broader in scope. While the US FOIA applies only to national government, the RTIA

applies to all of India's state and local governments as well. Under the provisions of the

Act, any citizen may request information from a "public authority" which is required to

reply expeditiously or within thirty days, thus making the Government and its

functionaries more accountable and responsible.31

Unlike many other countries (for e.g. UK) which took several years to

operationalise the Act post the enactment, India took only a few months to bring it into

force. This time was inadequate to change the mindset of the people in Government,

create infrastructure, develop new processes and build capacity to deliver information

under this Act. This has led to implementation issues which need to be identified and

addressed.32

India, although a long-established federal democracy, stands to face challenges in

economic and political development unknown to the wealthy and developed nations that

first adopted FOIA-style laws. Around two-thirds of the total population of India is still

living in rural areas irrespective of a rapid urbanization done throughout the country

during the last few decades. Though the Indian literacy rate grew to 68% in 2007 from

12% at the end of British rule in 194733

, but still a person is said to be literate if he is able

to read and right anyone language. Government programs to promote social and

economic development are often undermined by mismanagement and systemic

corruption. 29

http://rti.gov.in/rticorner/RTI_methodology%5B1%5D.pdf 30

S. P. Sathe, Right to Information, at p. 1. 31

http://en.wikipedia.org/wiki/Right_to_Information_Act 32

http://rti.gov.in/rticorner/studybypwc/key_issues.pdf 33

http://en.wikipedia.org/wiki/Literacy_in_India


15

CHAPTER 6

ISSUES IN IMPLEMENTATION OF THE ACT

One was completed by the private consultancy Price Waterhouse Coopers (PWC)

for the Indian government's Department of Personnel and Training. The other was

undertaken by a coalition of civil society organizations, the RTI Assessment & Analysis

Group (RAAG), with support from the philanthropy Google.org. Each of the studies

relied on surveys or interviews of thousands of Indian officials and citizens, and both

reached broadly similar conclusions.

The RAAG study estimates that Indian citizens filed about two million requests

for information under the RTIA in the first two and half years of its implementation, from

October 2005 to March 2008. The RTI Act under section 27(1) and 28(1) specifies to the

appropriate Governments and the Competent Authorities to make rules pertaining to

implementation of the Act. Under Section 6 of the RTI Act, PIOs are required to provide

reasonable assistance to the applicant in drafting and submission of the application. But

unfortunately the implementation of these clauses seems to far short of satisfaction.

Unless the various problems attached to implementation of RTI ACT are addressed

comprehensively by the appropriate Government and Public Authority in tandem, it

would continue to be an issue.

Going through the studies done by RAAG and PWC, the following issues related

to implementation of the RTI Act can be illustrated, point by point:

1. Low level of awareness: Section 26 of the Act states that the appropriate Government may develop and organize educational programmes to advance the

understanding of the public, especially disadvantaged communities, regarding

how to exercise the rights contemplated under the Act.34

But, no proper

educational program has yet been organized by the government to improve the

awareness of the RTI Act among the common people of India.

2. Quality of awareness: It is important to highlight that the quality of RTI awareness in common public is significantly low, particularly among the

disadvantaged communities such as women, rural population and the people

belonging to OBC/SC/ST category.

3. Non-availability of User Guides for RTI implementation for information seekers: Under Section 26 of the RTI Act, the appropriate Government is obliged

to publish and distribute user guides (within eighteen months of enactment of the

Act) for information seekers. However, it is found that the Nodal Departments

have not yet published these guides in most of the states. The Central Government

34

Section 26 of the Right to Information Act, 2005


16

(through the Nodal Department DoPT) has published Guides for Information Seekers in 2007.

4. Standard forms for RTI application: While the Act does not necessitate having a standard application form, some States have provided a standard form using

Section 26(3) (c) of the RTI Act. The standard form helps in getting basic

information such as address/ contact numbers, form in which information is

requested etc. Then it is helpful for the Public Authority to identify the nature of

frequent information requests so that it can be provided as a suo-moto disclosure

as per Section 4(2) of the Act. Till now, only 2-3 States have prescribed a

standard form.

5. Inconvenient submission channels for RTI application: As per Section 6(1) of the Act a citizen can make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is

being made. However, inadequate efforts have been made to receive RTI applications through electronic means i.e., on email/ website etc, which can be

done by the appropriate Government using Section 26(3c). There is no provision

in any of the governmental Website to get information; along with that there is no

way to pay the prescribed fees online for such information. It means that online

information is still not possible after five year.

6. Inconvenient payment channels for submission of application fees: In the absence of clear guidelines and instructions, PAs have chosen a subset of the

allowed payment channels, and majority of PIOs use cash and demand drafts,

which causes inconvenience to citizens.

7. Lack of assistance in filing the application: Under Section 5(3) of RTI Act, it is expected of the PIO to assist citizens in drafting RTI applications. However, the

respondents are not found to have received any assistance from the concerned PIO

while drafting and filling RTI applications.

8. Constraints faced in inspection of records: Under Section 7(9) of the Act, information is to be provided in the form it is requested in, unless it would

disproportionately divert the resources of the Public Authority. Some information

requests require the PIOs to do a collation and analysis of data for past 10 years or

more. However, it is found that most of the PIOs never use the provision for

inspection of records. During the information provider survey it was noticed that

Bombay Municipal Corporation (BMC) was using this provision to provide

information to the applicants.35

9. Failure to provide information within 30 days: Once the appeal or complaint is filed by the complainant, the Information Commission gets to know the failure of

the Public Authority in providing the information within prescribed time period

35

http://rti.gov.in/rticorner/studybypwc/key_issues.pdf


17

(30 days or 48 hours or 35 days or 40 days as may be the case). It is found that

more than 50% of the applicants have not received the information within the

prescribed time limit from the Public Information Officer.

10. No Judicial power given to the appellate authority: Section 19 contains the provision for appeal in case information is denied or given mala fide, unwillingly

and wrongly. First problem is that the appeal process is very lengthy and the

appellate authority has not been given judicial power regarding this. It is

suggested that an amendment should be made in Cr.P.C. regarding appeal for the

information which is denied or wrongfully given and the District Court must be

made as an appellant authority.

11. Higher Judiciary and the Right to Information Act: This is again an issue that whether the higher judiciary of the country is covered under the provisions of the

Right to Information Act or not. The issue has been discussed in detail in the next

chapter. NHRC chief KG Balakrishnan who demitted office of the Chief Justice

in May 2010, favoured changes in the RTI Act to protect independence of

judiciary and right to privacy, saying loopholes in the law, probably enacted

"hurriedly", were being grossly misused. I dont find anything which can actually damage the judiciary. The judiciary is independent and will remain independent

even if some relevant information is asked for the public good. Balakrishanna

maintained that the Act is "mainly" intended to give information regarding the

spending of the public money.36

He had consistently been maintaining during his

tenure as the chief justice of India that the office of the chief justice of Supreme

Court does not come under the Right to Information Act and hence cannot be

made bound to disseminate any of the information like, disclosure of the assets of

the judges. I cannot understand why he is so much worried about giving any

information related to his office. Transparency is meant for the public good.

Every person is having a right to know what the government agencies are doing.

And the judiciary is well within the definition of government against. Judiciary is

a State well within the meaning of Article 12 of the Indian Constitution, as has

been decided by the Supreme Court in A.R. Antulay v. R.S. Nayak case. The

further argument of the former CJI that in over 50 countries, which have Right to

Information Act, judiciary is "completely" exempted from the purview of the

legislation except in India is again not acceptable. Unless the higher judiciary will

start considering its responsibility, total transparency is impossible.

36

http://www.zeenews.com/news664624.html


18

CHAPTER 7

RIGHT TO INFORMATION ACT AND THE HIGHER JUDICIARY

IN INDIA

HIGHER JUDICIARY( including the judges of the Supreme Court and various

High Courts in India) has recently received a lot of condemnation when Supreme Court

of India preferred to appeal against the judgment of Single Judge of High Court of

Delhi37

in Secretary General, Supreme Court of India v. Subhash C. Agarwal. The Delhi

High Court upheld an earlier order of Chief Information Commissioner (CIC), whereby

CIC directed Central Public Information Officer (CPIO) of the Supreme Court to furnish

information sought by the respondent in the present case, under the Right to Information

Act, 2005.38

The assets of the judges of Supreme Court and High courts were sought to

be disclosed under the Right to Information Act. In order to preserve their honour,

prestige, dignity and the faith that the general public repose in them, the judges of the

Supreme Court and High Court declared their assets voluntarily, as there was severe

criticism by media and public at large. After giving sermons on the significance of such a

declaration to ensure accountability which is directly proportional to independence of the

judiciary, they have granted exemption from disclosure to the contents of such

declaration classifying it as personal information under the section 8(1) (j) of the Act, and

further making such disclosure purely an act of volition of the individual judge. Apart

from the issue of judicial accountability the decision also re-surfaced the debate of

judicial hierarchy. However, the judgment can also be seen as a ray of light in darkness

because judiciary, for the first time, has acknowledged its accountability towards the

people of the country.

I. Background

The Applicants request (made on November 11, 2007) under the Act had basically two parts:

1. To furnish a copy of the 1997 resolution, which requires every judge of the Supreme Court and high courts to make a declaration of his/her assets.

2. The information regarding compliance of the above resolution.

After receiving the application, CPIO informed the applicant that a copy of the resolution

would be furnished on remitting the requisite charges. CPIO informed that the registrar of

the Supreme Court never holds or controls the information related to declaration of assets

of the judges of the Supreme Court. On appeal by the applicant, the appellate authority

remanded the matter back to the CPIO observing that he should have disclosed the name

37

The Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, W.P. (C) no. 288/2009; judgment pronounced on Sep. 02, 2009. 38

Sec. 8(1)(j) of Right to Information Act, 2005


19

of the authority holding the requisite information and should have referred the application

to the latter authority in light of section 6(3) of the Act. After remission CPIO rejected the

application presented afresh holding that the applicant should file applications to the

designated authorities of respective high courts to get information related to asset

declaration by their judges. The applicant then approached the Chief Information

Commissioner (CIC) in an appeal.

The CIC order rejected the contentions of CPIO, Supreme Court and held that the

Supreme Court is a public authority under section 2(h) of the Act it is established by the

Constitution of India. Section 2(e) (i) was referred by CIC to hold that the CJI is a

competent authority, under the Act, empowered to frame rules under section 28 of the

Act to carry out provisions of the Act. Rule making power under the Act is conferred

upon the CJI and the Supreme Court who cannot disclaim being public authorities. The

single judge bench of Delhi High court upheld the above mentioned order of CIC. It was

held that the office of CJI is not a distinct public office from the Supreme Court and as

CJI his office is covered under the provisions of the Act. It was also held that information

sought by the applicant cannot be exempted under sections 8(1) (e) or (j) of the Act.

The division bench of the Delhi High Court framed three issues for their

consideration, which are as follows-

1. Whether the respondent had any right to information under section 2 (j) of the Act in

respect of the information regarding making of declarations by judges of the Supreme

Court pursuant to the 1997 resolution?

2. If yes, whether CJI held the information in his fiduciary capacity within the meaning of

the expression used in section 8(1) (e) of the Act?

3. Whether the information about the declaration of assets by the judges of the Supreme

Court is exempt from disclosure under the provision of section 8(1) (j) of the Act? [

II. The Judgment and its Repercussions

Deciding the first issue, court dealt with two aspects:

1. Establishing what is information held by a public authority, 2. Establishing that the nature of resolutions passed in 1997 and 1999 are binding on

the members of higher judiciary.

Court emphasized the importance of information and knowledge, and to establish that

Right to Information is a universally established principle cited relevant provisions of

several international agreements. Further, the court reiterated that Right to Know is a

necessary concomitant of the fundamental freedom of Speech and Expression enshrined

in article 19(1)(a) of the Constitution of India, and held that responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption. While deciding on the nature of the said resolutions, court found that the decision

involved, to a great extent, the examination of role of judiciary in a democracy. The court

cited, Justice Michael Kirby (former judge, Australian High Court) who said, A judge without independence is a charade wrapped in a farce inside oppression. Further the


20

court tried to establish that greatest strength of judiciary is the faith people repose in it.

Finally it was held that the 1997 and the 1999 resolutions are meant to be adhered by;

therefore they have a binding effect. Therefore the petitioner has the Right to Information

in respect of information regarding making of declarations by the judges of the Supreme

Court.

Bhagwati J. once said, Concept of independence of judiciary is not limited to independence from executive pressure, it is a much wider concept It has many dimensions, namely, fearlessness from other power centers, economic or political, and

freedom from prejudices acquired and nourished by the class to which the judges

belong. Further, the Supreme Court itself had emphasized on one occasion that it is an inalienable duty of judges to maintain highest possible standards of conduct, both on and

off their official duty. The court rightly pointed that if the judiciary fails to assume

responsibility for ensuring high standards of ethical conduct expected by its members,

public opinion and political expediency may lead the other two branches of government

to intervene. The inevitable consequence of such an action will be a compromise on the

principle of independence of judiciary itself.

Furthermore, the double standards laid down in respect of accountability of

separate classes of judiciary, namely, lower judiciary and the higher judiciary are not

justifiable. For example, service rules for the lower judiciary mandates disclosure of

assets to ensure accountability, but there is no such compulsion for the judges sitting on

higher pedestal, where there should have been stricter accountability requirements.

Deciding on the second issue, court rejected the contention of the appellant alleging that

since the resolution itself provides for confidentiality as a condition to any such

declaration, therefore the CJI holds such information under a fiduciary capacity, which

exempts it from disclosure under section 8(1)(e) of the Act. Section 22 of the RTI Act has

an overriding effect on all other legislations (including the Official Secrets Act); therefore

merely because a document contains a condition of confidentiality, it cannot be exempted

from disclosure under section 8(1)(e) of the Act. Furthermore it is very well argued that

CJI cannot be fiduciary vis--vis judges of the Supreme Court as judges of the Supreme

Court hold independent office, and there is no hierarchy. The document is open for

observation of successive CJIs and hence cannot be exempted from disclosure under

section 8(1) (e) of the Act. The court studied the inherent relation between the two rights,

while it decided the third issue. The Right to Information is derives its authority from the

freedom of speech and expression and the Right to Privacy is derived from right to life

and liberty. The court held that this was the confronting relation between the two rights

that made legislature to enact section 8(1) (j) of the Act exempting the disclosure of

personal information, so as to protect the right to privacy of the public officials. The court

finally decided that the information sought by the applicant does not justify or warrant

protection under section 8(1)(j) of the Act, inasmuch it required the furnishing of the

information related to compliance of 1997 resolution, but the details of any such

declaration will be protected under section 8(1)(j) of the Act as personal information.

Under the RTI Act, public authorities are bound to disclose information which is

sought by any of the citizen of India with an exception under Section (8) of this Act. A


21

very interesting point is that there is no absolute exemption under clause (e) and (j) of

section 8 of the RTI Act, and bar can be put off if the authority is satisfied that disclosure

is in the interest of the general public. Keeping the faith of general public in the judiciary

intact is in fact the actual fulfillment of public interest. To disclose the information

protected under section 8(1)(j), the public interest is sufficient. The openness is the

necessary concomitant of democracy. Opposition to openness will result in serious

undermining of the faith reposed by general public in the honesty, integrity and

impartiality of the judiciary. The common man usually does not trust the legislature and

remain suspicious of the acts of the executive, but it always trusts the judiciary. The sole

reason of this blind faith is the self-regulation and abstinence from extraneous influences

exercised by the judiciary, and that image is slowly but surely dampening. It is better if

the judiciary act of its own. Only then it can save its independence, prestige and honour.

If the legislature comes to intervene in this regard to enact a law for disclosure of assets

by the judges then it will not be good for the honour of judiciary itself. The legislature is

all set to bring an enactment on disclosure of assets by judges, which is already in

pipeline. Though the newly introduced Bill was taken back for reconsideration, the

reasons for doing so were not in favour of the principle of independence of judiciary.

In a significant statement given in an interview to leading news channel of India,

Chief Information Commissioner Wajahat Habibullah has remarked that the judiciary too

falls under the purview of the Right to Information Act. He asserted that the Right to

Information Act applies to all the organs of the Government and all Constitutional bodies,

which includes the legislature, executive and the judiciary. He added that he does not

want to indulge in any kind of fight with the judiciary but differences are bound to occur

between the two bodies.39

Again Balakrishnan says that "Like every other legislation, this (RTI Act) is also

grossly misused by some people. Just like right to information, right to privacy is also an

important right and independence of judiciary is an important thing. These are all on the

basis of Constitution. Just like RTI Act, any other constitutionally valued principles

should also be protected.40 I admit that the chances of misuse of this act are always present. But can there be any law which can be perfect or cannot be misused. Controlling

the misuse of any law is in the hands of the government. And we are already having

sufficient provisions for curtailing the misuse in the form of exception in the Act where a

person cannot seek any information like in matters like public safety, integrity and safety

of country, criminal investigations.

In the famous case of Khanapuram Gandaiah v. Administrative Officer & Ors,41

Supreme Court held that judicial officers are not bound to give their reason for judgment.

This is also doesnt seem to be correct because the judiciary is not expressly excluded in u/s 2 (h) and 8 of RTI Act. I suggest that the definition of public officer under RTI Act

cover the judicial officer well within its purview.

39

http://www.india-server.com/news/right-to-information-act-covers-1156.html 40

http://www.zeenews.com/news664624.html 41

AIR 2010 SC 615


22

CONCLUSION

It is too early to say whether RTIA will be a "great and revolutionary act. Whether the RTIA fulfills the hopes of the people of India hinges largely on how it is

implemented. It is difficult to predict whether India is at last at the verge of the passage of

a landmark law which would explicitly guarantee the peoples right to information. The rapid legislation of FOIA-style laws in many countries both developed and developing

has caused increasing problems of implementation. But the implementation in India has

been examined more persistently and stubbornly than any other country. Corruption and

mismanagement have been reduced and the governmental responsiveness has improved

according to the reports as the civil society organizations and common men have started

using the RTI Act. Provisions in the law to promote "proactive disclosure" of key

information are often disregarded. It has been seen that due to the non-compliance by

public officials the number of cases complaining for the same have quiet gown up

making the commissions to struggle, which are established for the enforcement of law.

If these challenges are not adequately grappled then it would mean that the law is

meant to serve only those people who are wealthy and have knowledge and resources to

get the law enforced in their favour. The same has been seen in many other countries also

where a law was adopted to meet and serve progressive aims in public interest ultimately

serves interests of already advantaged people by reinforcing their position. Like the other

countries, in India also, the advocates of RTI Act have been continuously facing attempts

of amending the Act, launched from the ministers and bureaucrats so as to restrict the

right to information.

Bureaucratic habits as well as administrative practices in India are built up over

decades owing to traditions and British colonial rule. Indeed, it is to some extent still true

that India is struggling with administrative system. Introduction of Right to Information

Act in India is a good practical with FOIA-style laws. This is because of mainly two

reasons: the vast population of the country who is going to be benefitted and much more

difficult circumstances under which the law is introduced as compared to the other

nations who had adopted it earlier. Numberless challenges are still waiting to come across

and the adoption of an FOIA-style law is merely a step towards the long way to

transparency. This is not possible until the judiciary in the country, especially the higher

judiciary recognizes its responsibility towards the peoples right to information. Because, ultimately it will be one best way for judiciary maintain the confidence and trust of the

common man of the country in it.

Judicial independence doesnt mean that judges are above the law - Lord MacKay.42 This decision showed that higher judiciary could only preach accountability to other organs of state, viz. legislature and executive (sometimes it includes lower

judiciary also), but when it comes to following their own preaching they are fearful. The

42

Cyrus Das and K.Chandra, Judges and Judicial Accountability (Universal Publication)


23

Apex Court has itself mentioned in several cases that societys demand for honesty of a judge is exacting and absolute, therefore a judge must keep himself absolutely above

suspicion. The confidence of the common in the honesty and impartiality was destroyed

after seeing the panic and apprehension among the judges, when they were asked to

disclose their assets. Instead of keeping themselves absolutely above suspicion, the act of

opposing disclosure of assets brought them into the centre of suspicion.

It is appreciable that the judiciary has used its craftsmanship to harness the right

to information to achieve an extremely laudable social objective, viz., that of preventing

criminalization of the Indian politics. This seems to be really unfortunate to say that the

judicial system in India has proved itself to be an instrument not really meant for

protecting the rights of the oppressed and poor, rather it has become an instrument to

harass the common man. The system functions with great speed and eagerness when it is

invoked by powerful and rich man, while its functioning becomes abnormal and impaired

in case of the weak and the poor. The courts are increasingly displaying their elitist bias

and it appears that they have seceded from the principles of the Constitution which set up

a republic of the people who were guaranteed "Justice- social, economic and political". It

is again hard to digest that why the higher judiciary is so much insisted for making itself

out of the realm of Right to Information Act because only those who are guilty of errors, incompetence, misbehavior, dereliction of duty and malpractice may be concerned and wish that the fact relating to such matters are not made public.

We have got a very good tool in the form of Right to Information Act to ensure

transparency in the public working, but all depends upon its proper implementation. If an

executive is not working properly then we can trust the Judiciary, but now who will

tackle with the judiciary when they are not ready to consider their responsibility towards

the nation in terms of the Right of Information of the people of India. Modern democratic

government means government of the people, by the people and for the people and if they

are ignorant of the issue to be resolved the argument for and against different solution

and the fact underlying those argument the business of the government is not an activity

about which only those professionally engaged are entitled to receive information and

express opinion.43

It is or should be participatory process, but there can be no assurance

that government is carried out for the people unless the facts are made known and the

issues is publicly ventilated.

Since right to information is not absolute, a report made by Committee of Judges

regarding the conduct of High Court Judges to the Chief Justice of India is wholly

confidential and is only for the purpose of satisfaction of the Chief Justice of India. It is

purely preliminary in nature, ad hoc and not final. The authority be which the Chief

Justice of India can exercise this power of inquiry is moral or ethical and not in the

exercise of powers under any law. Exercise of such power of the Chief Justice of India

based on moral authority cannot be made the subject matter of a writ petition to disclose a

report made to him.

43

P.K.DAS, The Right to Information Act ,2005, at p. 6


24

SUGGESTIONS

1. The role of the Information Commission has to go beyond the Hearing of the appeals. As per the Act, they are expected to issue orders/directions to the Public

Authorities to carry out their duties as per the mandate of the Act. However till

the time Information Commission assumes the role of ensuring the compliance of

the RTI Act by the various Public Authorities, there would not be any control

mechanism.

2. The efforts made by appropriate Governments and Public Authorities have been restricted to publishing of rules and FAQs on websites. As compared to RTI Act

the common citizens (and disadvantaged communities) are significantly more

aware of other Government schemes focused on socio-economic development.

Analyzing the issues highlighted in the section, it is clear that the appropriate

Governments and the Public Authorities have taken inadequate steps to make the

RTI process citizen-friendly.

3. The process of RTI application submission should be so designed as to suit the needs, aspirations and convenience of the citizens. The quality of response

provided can be a direct consequence of the record management practices within

the Public Authority, the transparency in its processes, the training provided to the

concerned PIO, drafting of the RTI application itself.

4. The higher judiciary should understand its responsibility towards the nation. They must know that how much trust the people of this country repose on them and

they must keep themselves above any sort of suspicion. Ultimately, government

of India consists of three wings, i.e., Legislative, Judiciary and Executive. Hence

judiciary, irrespective of higher or lower, is well within the need for transparency.

This fact should be understood by our higher judiciary. It is the right time for the

judiciary to introspect and save its independence, which it itself has established as

part of the basic structure of the Constitution of India.

5. There is a need to make the laws stringent against the public officers erring in giving the information under this section. An amendment should be made in

Cr.pc. so as to make a provision for appeal under the cases in which disclosing of

information is denied or is given wrongly by the public authority. The District

court should be given power to hear the appeals under such cases.

6. An amendment in section 166 of Indian Penal Code should be made so as punish the public officers who try to conceal the relevant information and give wrongful,

mala fide and misleading information. Failure to provide information by a public

servant must be considered as a non bail able offence as well as a provision

service degradation should be there.


25

BIBLIOGRAPHY

.

1. Basu Durga Das, The Constitutional Law of India, (8th Edn. Vol. 3, 2008) Lexis Nexis Butterworths Wadhwa, Nagpur.

2. Das P.K., The Right to Information Act, 2005,(2nd Edn., 2008), Universal Law Publishing Co., New Delhi.

3. http://en.wikipedia.org/wiki/Right_to_Information_Act 4. http://rti.gov.in/rticorner/RTI_methodology%5B1%5D.pdf 5. http://rti.gov.in/rticorner/studybypwc/key_issues.pdf 6. http://www.india-server.com/news/right-to-information-act-covers-1156.html 7. http://www.zeenews.com/news664624.html 8. http://en.wikipedia.org/wiki/Literacy_in_India 9. Jain M.P., Indian Constitutional Law,(6th Edn. Vol. 1, 2010) Lexis Nexis

Butterworths Wadhwa, Nagpur.

10. Nigam Shalu, Right to Information Law & Practice, (2006), JBA Publishers, Noida.

11. Ptrick Birkinshaw LLB, Freedom of Information, (3rd Edn., 2001) Lexis Law Publishing, Virginia.

12. Sathe S.P., Right to Information, (2006), Lexis Nexis Butterworths Wadhwa, Nagpur.

13. Science and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture (1994).

14. Seervai H.M., Constitutional Law of India, (4th Edn. Vol. 1, 1991), Universal Law Publishing Co., New Delhi.

15. Singh P. Mahendra, V.N. Shuklas Constitution of India, (11th Edn., 2008), Eastern Book Company, Lucknow.

Anand Doctrinal on right to information act

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