Right to Information Act, 2005

The Right to Information Act 2005 (Act No. 22/2005) is a law enacted by the Parliament of India giving citizens of India access to records of the Central Government and State Governments. The Act applies to all States and Union Territories of India, except the State of Jammu and Kashmir - which is covered under a State-level law. Under the provisions of the Act, any citizen (including the citizens within J&K) may request information from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerise their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

This law was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005 . Information disclosure in India was hitherto restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes.

Background

Disclosure of Government Information in India is governed by a law enacted during the British rule over large parts of what is now India, the Official Secrets Act of 1889 which was amended in 1923. This law secures information related to security of the State, sovereignty of the country and friendly relations with foreign states, and contains provisions which prohibit disclosure of non-classified information. Civil Service conduct rules and the Indian Evidence Act impose further restrictions on government officials' powers to disclose information to the public.

In 1975, the Supreme Court delivered a landmark judgement on the citizen's Right to Know.

State-level laws

The RTI Laws were first successfully enacted by the state governments — Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004). The Maharashtra and Delhi State level enactments are considered to have been the most widely used. The Delhi RTI Act is still in force. Jammu & Kashmir, has its own Right to Information Act of 2009, the successor to the repealed J&K Right to Information Act, 2004 which was amended in 2008.

Freedom of Information Act

Passage of a national level law, however, proved to be a difficult task. Given the experience of state governments in passing practicable legislation, the Central Government appointed a working group under H. D. Shourie and assigned it the task of drafting legislation. The Shourie draft, in an extremely diluted form, was the basis for the Freedom of Information Bill, 2000 which eventually became law under the Freedom of Information Act, 2002. This Act was severely criticised for permitting too many exemptions, not only under the standard grounds of national security and sovereignty, but also for requests that would involve "disproportionate diversion of the resources of a public authority". There was no upper limit on the charges that could be levied. There were no penalties for not complying with a request for information. The FoI Act, consequently, never came into effective force.

Enactment

The doomed FoI Act led to sustained pressure for a better National RTI enactment. The first draft of the Right to Information Bill was presented to Parliament on 22 December 2004. After intense debate, more than a hundred amendments to the draft Bill were made between December 2004 and 15 June 2005, when the bill finally passed. The Act came fully into effect on 13 October 2005.

Scope

The Act covers the whole of India except Jammu and Kashmir. It is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies "owned, controlled or substantially financed" by government, or non-Government organizations "substantially financed, directly or indirectly by funds" provided by the government are also covered in the Act's ambit.

Private bodies are not within the Act's ambit directly. However, information that can be accessed under any other law in force by a public authority can also be requested for. In a landmark decision of 30-Nov-2006 ('Sarbajit Roy versus DERC') the Central Information Commission also reaffirmed that privatised public utility companies continue to be within the RTI Act- their privatisation notwithstanding. The Act also explicitly overrides the Official Secrets Act and other laws in force on 15-June-2005 to the extent of any inconsistency.

Information

The Act specifies that citizens have a right to:

• request any information (as defined).
• take copies of documents.
• inspect documents, works and records.
• take certified samples of materials of work.
• obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts.

Process

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

The Act specifies time limits for replying to the request.

• If the request has been made to the PIO, the reply is to be given within 30 days of receipt.
• If the request has been made to an APIO, the reply is to be given within 35 days of receipt.
• If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.
• Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.
• However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

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

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

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

7(3) Controversy

There is a raging controversy whether sub-section 7(3) of the Act permits the PIO to demand unprescribed "further fees" from the applicants "representing the cost of providing the information". A full Bench of the Central Information Commission is likely to hear the matter in the second week of December 2008.

Information defined

In terms of the section 2(f) of the Act, information has been defined as 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.

What is not open to disclosure?

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

• information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, *strategic, scientific or economic" interests of the State, relation with foreign State or lead to incitement of an offence;
• information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
• information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
• information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
• information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
• information received in confidence from foreign Government;
• information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
• information which would impede the process of investigation or apprehension or prosecution of offenders;
• cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;
• information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied by this exemption);
• Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (NB: This provision is qualified by the proviso to sub-section 11(1) of the Act which exempts disclosure of "trade or commercial secrets protected by law" under this clause when read along with 8(1)(d)))

Partial disclosure

Section 10 of the Act allows those part(s) of the record which are not exempt from disclosure and which can reasonably be severed from parts containing exempt information to be provided.

Exclusions

Central Intelligence and Security agencies specified in the Second Schedule like IB, RAW, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified by the State Governments through a Notification will also be excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission

Role of the government

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

• Develop educational programmes for the public especially disadvantaged communities on RTI.
• Encourage Public Authorities to participate in the development and organization of such programmes.
• Promote timely dissemination of accurate information to the public.
• Train officers and develop training materials.
• Compile and disseminate a User Guide for the public in the respective official language.
• Publish names, designation postal addresses and contact details of PIOs and other information such as notices regarding fees to be paid, remedies available in law if request is rejected etc.

Power to make rules

• The Central Government, State Governments and the Competent Authorities as defined in S.2(e) are vested with powers to make rules to carry out the provisions of the Right to Information Act, 2005. (S.27 & S.28)

Who has the power to deal with the difficulties while implementing this act?

• If any difficulty arises in giving effect to the provisions in the Act, the Central Government may, by Order published in the Official Gazette, make provisions necessary/expedient for removing the difficulty. (S.30)

Effects

In the first year of National RTI, 42,876 (not yet official) applications for information were filed to Central (ie.Federal) public authorities. Of these 878 were disputed at the final appellate stage - the Central Information Commission at New Delhi. A few of these decisions have thereafter been mired in further legal controversy in the various High Courts of India. The first stay order against a final appellate decision of the Central Information Commission was granted on 3.May.2006 by the High Court of Delhi in WP(C)6833-35/2006 cited as "NDPL & Ors. versus Central Information Commission & Ors". The Government of India's purported intention in 2006 to amend the RTI Act was postponed after public disquiet.

See also

• Freedom of information legislations in several countries

External links

• Indian Government Links
  • CIC - The Central Information Commission is charged with interpreting the Right to Information Act, 2005.
  • DoPT - The Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Pensions, is charged with being the nodal agency for the Right to Information Act, 2005. It has the powers to make rules regarding appeals, fees, etc.
  • Complete text of the Right to Information Act

• Online groups discussing the Right to Information Act
  • RTI INDIAYahoo RTI e-group
  • Right to Information Community Portal of India
  • RTI Users Association
  • Youth Forum for RTI
  • Aid india
  • Parivartan
  • CIC best practices
  • Sakshi Trust
  • Satyameva Jayate
  • rti.org.in Provides a wide range of information and

networking opportunities for RTI practitioners and citizens: Handbooks, Articles, Case Law Directory.

• • Right to Information Act