11 Years of RTI Regime in India : Challenges & Solutions

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In recent years, the Right to Information (RTI) has acquired a universal recognition. The intergovernmental organisations, civil society and many sections of the people have immensely contributed to this epoch making development. RTI is now being widely recognised as a Fundamental Human Right. It not only upholds the inherent dignity of all human beings, but also forms the crucial underpinning of participatory democracy, ensuring accountability and promotes good governance.

Submitted: October 25, 2016

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Submitted: October 25, 2016

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11 Years of RTI Regime in India : Challenges & Solutions

*Rajvir S.Dhaka

 

Introduction

In recent years, the Right to Information (RTI) has acquired a universal recognition. The intergovernmental organisations, civil society and many sections of the people have immensely contributed to this epoch making development. RTI is now being widely recognised as a Fundamental Human Right. It not only upholds the inherent dignity of all human beings, but also forms the crucial underpinning of participatory democracy, ensuring accountability and promotes good governance.

 

It is now widely recognized that democracy to be meaningful ought to be based on the notion of an informed public participating thoughtfully in its own governance. Information and knowledge are the instruments for transformation because these enable public to engage their representatives and the bureaucracy on an ongoing basis and to participate effectively in the formulation and implementation of policies and activities purportedly for their benefit. An empowered citizenry tends to make administration more accountable and participatory. It also ensures greater transparency and acts as a deterrent against the arbitrary exercise of official powers. 

 

The RTI has not only improved governance but also made the administration of the corporate houses and industries, which operate for profit, more transparent and accountable. That is why it has now been recognized as an essential requirement of good governance. Even international organizations such as World Bank, International Monitory Fund, United Nations Development Programme and Asian Development Bank prescribe RTI as a remedy to administrative ills.

 

As transparency sustains democratic governance, the access to information is specified by approximately fifty countries in their constitutions, another 80 countries have passed self standing access to information laws  and many more are in the process of doing so[1]. The enactment of RTI Act in India in 2005 marked a paradigm shift in Indian democracy. The experience of 11 years shows that the response to it has been very positive. A wide spectrum of people from various strata of society have been seeking different types of information from various authorities.

 

Need for Right to Information

The RTI had already acquired judicial recognition as a part of the Fundamental Right to Freedom of Speech and Expression. Its importance may be attributed many reasons.

The genesis and evolution of the Act may be traced from the following factors:

 

1. Good Governance - The access to information is essential for achieving the goals of good governance as it promotes transparency and public accountability in the working of government functionaries.

 

*  Faculty Member & RTI Cell In-charge, HIPA and since 2007, In-charge of the RTI Project sponsored by UNDP and  Department of Personnel & Training, Govt. of India, New Delhi.

 

2. The Global Trend - The emergence of new democracies in the 1980s following the collapse of authoritarian regimes has led to the enactment of new constitutions which specifically guarantee the Right to Information. At the same time, older democracies like United Kingdom too are seeing the wisdom in enacting such legislation. The international bodies like United Nations Organisation, the Commonwealth, Council of Europe and the Organisation of American States too have drafted guidelines or model legislation to promote freedom of information. The World Bank, the International Monetary Fund and other donors are also pressing the recipient countries to enact laws to enable access to information for increasing transparency and reducing corruption.

 

3. People's Participation –The governance in a democracy can be made participatory only when the people have access to the information for suggesting administrative steps as well as policy formulation. In other words, efficient governance requires that, in order to participate effectively in the process of governance the citizens must have necessary information to make informed decisions. The RTI not only helps in improving the quality of decision -making by removing the veil of secrecy, but also facilitates policy formulation on issue, of their concern.

 

4. Democratisation of Governance - Access to information is also a basic requirement for democratization of governance. It helps in checking misuse of administrative authority for private gains and in the process promotes justice and equity. L.D. White has observed, "Power in a democracy requires control, greater the power greater should be the control." RTI is one such device that ensures better accountability by controlling the power.

 

5. Public Accountability - The RTI promotes culture of accountability too by providing accessibility to information pertaining to finances, proceedings and decisions of all the social actors whose activities have an effect on public life. It can check mismanagement and malpractices.

 

6. Rule of Law - The RTI not only reduces the possibilities of misuse of resources but also checks corruption which in turn help better governance, make service providers accountable for their actions, create participatory and transparent environment for people to contribute in policy formulation and establish the rule of law.

 

7. Combating Corruption - The RTI also helps in reducing corruption and increasing administrative efficiency. It provides every citizen the enforceable right to question, examine, audit, review and assess government acts and decisions. It further ensures that these are consistent with the principles of public interest, probity and justice.

 

8. Checking the Misuse of Discretionary Powers – There are instances when the government officials abuse their discretionary powers to misappropriate public funds to promote political or vested interests. The RTI is indeed, a potent instrument to check it.

 

9. Administrative Efficiency – It is now accepted that the administrative efficiency in Government must focus on avoiding unnecessary delays. It is often noticed  that grievances of citizens in the form of representations or statutory applications or appeals are kept pending for long periods. Sometimes, it takes months or years. In other cases, applications are simply disposed off by conveying that the Government or the concerned authority "finds no reason" to accede to the request etc. Since the RTI Act requires information about their pendency, this is likely to improve the efficiency of various departments.

 

10. Efforts for a more Democratic and Open Society - There can be no democratic participation in decision-making without transparency and sharing of information. Free flow of information is essential to identify and solve problems. The culture of secretive governing creates suspicion, insulates the governance from the public domain and it is also resistant to change. The remedy lies in RTI to open up the government systems.

 

11. Protection of Civil Liberties - The RTI is also essential for protecting liberties of citizens by making it easier for Civil Society Groups to monitor wrong-doings like custodial deaths and misuse of preventive detention legislation. Effective community monitoring of custodial institutions depend, to a great extent, on access to information.

 

12. Reducing Poverty - Legislation on RTI is also necessary for effective development of society and for eradication of poverty. Information can help in empowering poor communities to fight their battle. It also helps in balancing the unequal power dynamics.

 

13. Effective Implementation of Government Schemes - Numerous central and state schemes for providing food, housing, employment and education are being implemented in rural areas. These are meant for the poorest of the poor. Funds are routed through a network of government agencies but these are being routinely misappropriated or misused. Availability of information on schemes and access to records concerning their utilization would certainly improve their implementation.

 

14. Reforming Administration- Common people perceive Government Servants as uncaring, callous, slow, unaccountable and corrupt. The public perception is not too far from the reality. The RTI provides a mechanism for fixing the responsibility on the Government servant. Thus, it can significantly help in improving governance.

 

15. Right to Information as a Fundamental Right - RTI is a Fundamental Right. It flows from Art. 19(1) (a) of the Indian Constitution. Over the years, the Supreme Court has consistently ruled in favour of the citizen's Right to Know in a number of cases such as in Bennett Coleman vis-a-vis Union of India, Raj Narain vis-à-vis U.P. Government, S.P.Gupta vis-à-vis. Union of India, Cricket Association of Bengal vis-a-vis Union Ministry of Information & Broadcasting, and P.U.C.L. vis-à-vis Union of India.

 

In all these cases, Supreme Court has pronounced that the citizens of India have the Right to Freedom and Speech under Article 19(1) (a) of the Constitution and this Right is not complete unless the citizens have the Right to know. These judgements as a matter of fact, laid the foundation of RTI in India.

 

16. Media’s Effectiveness - The media - the newspapers, radio, television etc serve as a link between the citizens and the government. It is essential for them to have access to information. The concept of a balanced reporting providing information covering all possible aspects becomes difficult when primary sources of information are denied. In the absence of access to information they provide biased news and suppress or distort information. The RTI empowers both media and citizens to make the government more accountable.

17. Movement for Transparency - The RTI has been made possible by continuous struggles by many activists' and citizens' groups. The Mazdoor Kissan Shakti Sangthan (MKSS), movement led by Aruna Roy, in a backward region of Rajasthan's Bhim Tehsil in 1990 was to assert their Right to Information by asking for copies of bills and vouchers and names of persons who have been paid wages mentioned in muster-rolls for the construction of school, dispensaries, small dams and community centres. It spread quickly to other areas of Rajasthan and other states. The attempts of Harsh Mandara, the Divisional Commissioner of Bilaspur, Madhya Pradesh in 1996, to throw open the Registers of Employment Exchanges and the records of Public Distribution System to the citizens and the agitation led by Anna Hazare in Maharashtra in 2001 are some of the examples. 

These individual efforts led to the formation of the National Campaign for People's Right to Information (NCPRI). It became a broad-based platform for action in the late 1990s. As this nationwide campaign gathered momentum, the debates and discussions paved the way for that the RTI could be made legally enforceable.

Freedom of Information Bill 2000. 

 

The BJP led National Democratic Alliance (NDA) govenrment reworked on the Shourie Draft to finalise the Freedom of Information Bill, 2000. It was considered a weak legislation, because there were no provision for any penalty  in case the information is denied to the applicant.  It was introduced in the Lok Sabha on July 25, 2000. It included new provisions like fixing of the time limit of 48 hours for life and liberty related information. The provisions of the Act were, more or less, similar to that of the RTI Act.

 

The activists for an effective RTI Act criticised the new legislation on account of the followings flaws: It reinforced the controlling role of the government officials, who retained wide discretionary powers to withhold information. It also gave the sweeping exemptions viz. information shared between the Union and states. Moreover, there was neither any penalty provision nor any provision for Information Commission. The private bodies too were kept out of its purview.

 

Before the introduction of the Freedom of Information Bill in Parliament and also after its enactment, a number of states- Tamil Nadu in 1996, Goa in 1997; Karnataka in 2002; Maharastra in 2000; Delhi in 2001, Rajasthan in 2000; Assam in 2001; Madhya Pradesh in 2002; and Jammu & Kashmir in 2004 and 2009 had enacted the RTI Act. Kerala and Gujarat had also decided to introduce the RTI Bills in their respective assemblies. However, except Goa and Delhi, the RTI Acts enacted in the states were very weak. The Goa and Delhi's Acts were, however, somewhat progressive.

 

The RTI Act, 2005

 

It took another four years to enact this act. Parliament passed the legislation on RTI, in 2005. It had been cleared by the Lok Sabha on May 11, 2005 and by the Rajya Sabha on May 12, 2005 and received the assent of the President of India on June 15, 2005 and came to force on October 12, 2005. Around 150 amendments had been introduced in the original draft. The Act aims at establishing the practical regime of RTI to provide access to information under the control of public authorities to the citizens.

 

The Preamble of the Indian RTI Act states that democracy requires an informed citizenry and transparency of information are vital to its functioning for containing corruption and for holding the governments and their instrumentalities accountable to the governed.

Main Provisions of the RTI Act, 2005 are as under:

  • All the citizens have the RTI, subject to the provisions of the Act and it extends to the whole of India except Jammu and Kashmir.
  • It covers all the three tiers of government i.e. central, state and local governments and all the three branches i.e. legislative, executive and judiciary of the government.
  • It applies to "Public Authorities" which are owned, controlled or substantially financed directly or indirectly by the appropriate Government and the NGOs and private bodies substantially financed by the government.
  • The Act provides that information of the third party can also be accessed after following the due procedure.
  • It casts an obligation on Public Authorities to proactively disclose information about itself. They are also supposed to maintain records in an indexed and catalogued manner.
  • The Act provides for the designation of PIO/APIOs for giving information.
  • Provision has also been made for transfer of a request by a public authority to another one wherein the information is held by the latter.
  • A time limit of 30 days has been prescribed for compliance with requests for information under the Act for normal information, 48 hours for Life and
  • Liberty related information, 40 days for 3rd party information and 45 days for corruption and human rights related information of the listed organisations.
  • The Act excludes the time taken for calculation and intimation of fees from the time frame.
  • It provides that in case a PIO rejects the application, he/she is bound to give reasons for the same. The period within which an appeal against such rejection may be preferred as well as the particulars of the appellate authority have also to be given by her/him.
  • The Act prescribes for a reasonable fee for providing information.
  • No fee to be charged from persons below poverty line.
  • Information has to be provided free of charge if it is given after the time limit.
  • Certain categories of information have been exempted from disclosure. However, these can be given if public interest is greater than the protected interest.
  • The Act contains a provision for revealing an information, which is otherwise, exempted from disclosure, on completion of 20 Years of the incident.
  • The Act incorporates the principle of severability in the exempted category of information.
  • ¨ It provides for a two-tier Appellate Forum. First Appeal is to be made to departmental officer senior to the Public lnformation Officer. The Second Appeal has to be made to the Commission.
  • The Central and State Information Commissions have the status of independent non-judicial machinery.
  • While inquiring into any matter, the Commission has the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure.
  • The Act prescribes for the procedure to be followed by APIO/PIO, FAA and IC while carrying out their duties and responsibilities.
  • It defines legal framework for exercise of powers by the Commission.
  • It also prescribes the time limit for preferring an appeal to FAA and IC.
  • In case of a grievance at PIO level, a provision has been made in it for directly making complaint to the Commission
  • The decisions of the Commission have been made binding by the Act.
  • Listed agencies  in its Schedule II have been kept out of its ambit. However, the exemption is not absolute in matters relating to corruption and human rights violations.
  • The jurisdiction of subordinate courts has also been barred by the Act.
  • Its provisions have been made overriding in character.
  • The CIC/SIC can impose a penalty of Rs.250/- per   day on PIO. This penalty can go upto a maximum of Rs.25000/- under the provision of the Act.
  • There is also a provision of disciplinary action against the PIO for its persistent contravention.
  • The Act provides that there is no criminal liability of the PIO and the PIO and they have been made immune from the actions done in good faith.
  • The Central and State Information Commissions have been mandeted to monitor its implementation and to prepare an Annual Report to be laid before Parliament/State Legislature.
  • For its effective operation, the Act gives rule making power to the appropriate government and the competent authorities.

 

Some Deficiencies in the RTI Act

 

Despite being exhaustive and positive in content, the RTI Act suffers from followings weaknesses:

 

(i). Missing Definitions- The following dimensions are conspicuous by their absence:

(a) Substantial Financing - The Act does not define the words "substantially financed" and "indirectly financed" which have been used several times in it. It has resulted in creation of confusion and led to its improper implementation.

(b) Life and Liberty - Similarly, the Act does not define information falling under the phrases "Life and Liberty" and "Public Interest".

 

(ii) No Provision [has been made] for Ensuring the Fulfilment of Obligations by Public Authorities - The Act imposes certain obligations on public authorities in Section 4. These relate to (a) proper maintenance and upkeep of records and (b) suo moto dissemination of information through publication of information about the functions and functioning of each public authority. However, no penalty clause has been for their violation. Hence, the task is not viewed as an obligation by them.

 

 

(iii) Confusion about First Appellate Authority - The Section 19(1) provides for the designation of an Appellate Authority at the Public Authority level who has to be an officer senior in rank to the PIO. However, powers and functions of the First Appellate Authority have not been spelled out. This has led to confusion about their roles and responsibilities.

 

Moreover, the Act does not make the First Appeal mandatory when it says that any person aggrieved by the decision of the PIO may prefer an appeal to such officer further that is senior in rank to her/him. This has resulted in the creation of unnecessary confusion among the information seekers. Instead of approaching the First Appellate Authority, some of them file an appeal with the Information Commission. It has been further confounded by the fact that some Information Commissions directly entertain an appeal even when the first appeal has not been made by the appellant. As a matter of fact, there also prevails a great deal of confusion about the status of the First Appellate authority vis-a-vis the Information Commissioner as both have been appellate authorities under the Act. [However, Supreme Court of India in Namit Sharma vis a vis Union of India on 13.09.2012 has made it very clear that complainant will have to exhaust first appeal before approaching Information Commission.]

 

(iv)  Appeal Procedure - Section 19(9) of the Act states that the Information Commission shall give notice of its decision, including right to appeal to the complainant and the public authority. It does not clarify whether the Right to Appeal can be exercised at the Commission level itself. It would have been better if the cases and situations in which the Review Petitions may be filed for reconsideration of the decision of a Single Commissioner Bench or by two or more Commissioners' Bench or by a full Commission had been specified.

 

(v)Overlapping of the Grounds of Appeal and Complaints - The grounds of a complaint under Section 18 and for an appeal under Section 19 are overlapping. Separate grounds should have been made for appeals and complaints. Three clauses of Section 18 (1) i.e. Clause (b) relating to refusal of access to information;  (c) relating to no response to the request for information within the stipulated time; and (e) relating to giving incomplete, misleading or false information should have been deleted from the Act as these grounds are basically for exercising appellate powers u/s 19.

 

(vi) Absence of Contempt Provisions - Its Section 19(7) states that the decision of the Information Commission shall be binding. But it has not been supported by 'Contempt of Court' provision for enforcing compliance of its decision by the public authority.

 

(vii)  No Time Limit for IC to Decide the Appeals - Unlike the time limit for the First Appellate Authority for giving decisions on appeals, the Act does not provide for any time limit for decision on the appeal at the level of Second Appellate Authority.

 

Operational Problems

There are following operational problems in the Act:

 

1. Poor Suo Moto Disclosure - The obligation of public authorities under Section 4(1)(b) for self disclosure of information is rarely followed. Their websites are either non-existent or are rarely updated. Even the names, phone numbers and addresses of their PIOs, APIOs and the Appellate Authorities are generally not put in public domain.

2. Non Enlisting of the Public Authority- In the absence of a proper definition of public authority or individual or substaintially financed self-governing institutions etc., the Act cannot be properly implemented.

 

3. Poor Record Maintenance - Improper indexing, maintenance of records, absence of annual statements and reports etc by some of the offices are also a main hurdle in its implementation.

 

4. Junior Officers have been appointed as PIOs in some Organisations - They are not able to get cooperation of their colleagues and support of their superiors for gathering information requested by the applicants.

 

5. No free hand to PIOs in discharge of their Duties - The PIOs seek approval from their bosses before disclosing the information. Consequently, in most cases, they follow the letter of the RTI Act but violate its spirit. Since views of both PIOs and FAAs are same, and applicants do not get any relief at the level of public authority the number of appeals has increased at the IC level.

 

6. Poor Infrastructural Facilities with the PIOs/SPIOs - PIOs/SPIOs have not provided adequate infrastructure like photocopier, fax, accommodation, separate office, secretarial assistance, computers, Internet facilities etc

 

7. Overburdened PIOs - The PIOs have to perform their role in addition to their role as employees in public authorities. Hence they feel overburdened due to increase in volume of work.

 

8. No Additional Payment to PIOs - No provision has been made by additional payment to PIOs for the performance of their role. Hence they take little interest in it and perform their role in a formal manner.

 

9. Insensitive PIOs/APIOs - It has been reported that some of them are reluctant to receive the application by hand on the payment of fee in cash or through IPO. They insist on payment of fee in the form of bank draft. This causes unnecessary harassment to information seekers.

 

10. Tendency to Shift Responsibility upon APIOs - Most of the PIOs tend to treat APIOs as their assistants and very often expect them to handle RTI applications. This is in violation of Sections 5(3) and 5(2). Superiors in public authority also support PIO.

 

11. Poor Knowledge of the Act - Most of the PIOs and APIOs do not have adequate knowledge about the act and the rules as training policy is conspicuous by its absence.

 

12. Appointment of Inadequately Educated PIOs/ APIOs - The problem has been compounded by the appointment of such officials as SPIOs and APIOs as are devoid of the needed academic and professional background such as Illiterate Sarpanches, Gram Sachives most of whom are not graduates.

 

13. Difficulties in Locating the PIO office at the District Level - A lot of difficulty is being experienced by information seekers in locating their offices some of these are functioning from private buildings.

 

14. Appellate Authority only at the State Capital - People in rural areas find the appeal process expensive as they have to go to the state capital for the hearings. Besides Unlike the CIC, there is no provision of video conferencing in most of the states for hearing the cases.

15. Inadequate Strength and Lack of Autonomy of the Commission - Though the strength of the ICs has been increased at the centre and state levels, even then it is far lesser than the earmarked strength.

 

16. Question mark on the Composition of Information Commissions - Voices have also been raised against the composition of the State Information Commissions. Most of the ICs have been packed by those retired bureaucrats who had been in the good books of their political masters.

 

17. Misuse of Exemption for BPL Information Seekers - The information seekers from BPL families have been exempted from payment of fee and other charges. The provision is being misused by unscrupulous persons. In fact, in some cases the BPL information seekers have been used by them for hiding their identity and for escaping payment of fee and other charges.

18. Confusion about the Exemption for BPL Information Seekers - Many PIOs/APIOs are of the view that only RTI application fee is exempted and not the photocopy, CD and floppy charges in case of the BPL applicant. This confusion often deprives those information seekers who cannot pay for these charges.

19. Problems regarding the details on First Appeal Authority- Identification of First Appeal Authority has been found difficult particularly in those cases, where applicants do not receive information within the stipulated time frame and have to file the First Appeal. Under Section 7(8) of the Act, PIOs are duty bound to provide details on the Appellate Authority to the applicant in case of refusal of information and the third party in case of disclosure of the information of the third party. But this mandate is generally not followed.

20. Confusion about treating Subordinate Staff as Official PIOs (Deemed PIOs) - Some of the ICs are not treating the Superintendents, Assistants and Clerks etc as deemed PIO under the Sections 5(4) & 5(5) vide. This is in of contravention of the RTI Act according to which the subordinate employee can be designated PIO. Many SIC Haryana are of the view that as the word 'officer' has been used in Sections 5(4) & 5(5), therefore, subordinate officials are not officers, and hence cannot be treated as PIOs. This has not created a very difficult situation but also a great deal of confusion.

21. Reluctant use of Penalty Clause - The reluctance of the Information Commissioners to use the penalty clause against officials providing wrong information or for their failure to provide information has been an issue of discontent. The Commissioners feel that indiscriminate use of this clause may lead to collapse of the administrative machinery. Thus, an impression has been created that the government departments need not take this Act seriously. Moreover, the government departments also do not always comply with the orders of the Information Commission. The powers under the Act for enforcing the Commission's orders are limited. Hence, there have been instances of recalcitrance by public authorities.

22. Delays in the Disposal of Appeals by the Commission - There have been inordinate delays in the disposal of appeals by the Commission. Although the Act has fixed the time limit for the PIOs and the Appellate Authorities for deciding the cases, no such time frame has been made for the Commission.

 

23. Lack of Awareness - Awareness is lacking both among the information seekers and information providers. Guidelines for them have not been widely disseminated. Moreover, awareness seems to be much less in rural areas than the urban area..

24. Demand for Irrelevant or Frivolous Information - The RTI is also being misused by some mischievous persons for harassing their colleagues and blackmailing the authorities. Moreover, there are numerous instances of applicants demanding irrelevant or frivolous information and there is no provision for action against them.

25. Suffering from Railway Coach Syndrome - Spreading of awareness on RTI Act is also suffering from “Railway Coach Syndrome" wherein the passengers of an overcrowded Railway Coach are reluctant to let the new passengers get in and once a new passenger gets in, she/he also shows the same behaviour. Similarly, a person who has undergone training and has knowledge of the RTI Act, she/ he is not willing to disseminate it to others.

26. Problems on the part of Judiciary -The judiciary is also expected to frame its own rules for dissemination of information under the Act. Though some High Courts have framed RTI rules, others have not taken steps in this direction. The judgements of some of of some of the High Courts have added to the problem. For illustration Stay Order given by Delhi High Court on disclosure of assets of SC Judges created a lot of doubt about the future of transparency regime. Fortunately, several judges have disclosed their assets on their websites of their High Courts after a clarification from the Supreme Court.

27. Lack of Uniformity in Rules - There is no uniformity in RTI rules and fee structure among different states of the country. Some states have even made rules which contravene the RTI Act. For example , Haryana has prescribed time limit for depositing additional fee.

28. Heavy Cost of Information - A major hurdle in the way of the success of the information regime is the heavy cost that information seekers are required to bear. It dampens the enthusiasm of information seekers.

29. Confusion about the Jurisdiction of Courts: Sections 19 (7) & 23 of the RTI Act clearly stipulate that there is no provision for an appeal against the decision of the Commission in any court. In other words, the jurisdiction of the Court has been barred in clear cut terms. Despite this, thousands of appeals are pending in the Courts against the decisions of various State Information Commission and Central Information Commission. Moreover during the last 11 years the Courts have decided various such cases. The Courts have been entertaining appeals against the decisions of Information Commissions under Articles 226/227 and 32 of the Indian Constitution not under any provision of this Act. The High Courts and the Supreme Court have pronounced that Indian citizens are enjoying right to freedom of speech and expression under Article 19(1)a which includes the right to know which is presumed as an inferred fundamental right. This creates a lot of confusion in the mind of many people.

Roadmap for the Future

Despite the deficiencies and operational shortcomings, the RTI Act is a major step towards a participatory and transparent developmental process in the country. Amartya Sen describes as "a momentous engagement with the possibilities of freedom". Some of steps, required for its effective implementation and operation are being discussed as under:

1.Activating Public Authorities-To remove ambiguity pertaining to Public Authorities, the competent authorities should notify all public authorities under Section 2(h) of the Act. The CIC and SICs should act pro-actively in this context. There should also be frame time-bound action plan, with outcome budget and clear-cut physical targets with accountability for not fulfilling the obligations under Sections 4 and 5. They should also play a pro-active role in disclosing information as mandated under Section 4. The details about the APIO/PIO and First Appellate Authority must be on the Notice Boards. Moreover, the task of RTI implementation should not be left to the PIO alone. The Public Authority and the First Appellate Authority should also be made accountable for it.

2.  Proper Management and Computerisation of Records - Section 4(1) (a) of the Act requires records management policies and procedures to be made compatible with the RTI Act. The Public Authorities should, therefore, initiate measures so that all the decisions are mandatorily disclosed on its website. Extensive computerisation, networking and budgeting support is essential for this task.

3.Effective Suo Moto Disclosures by the Public Authorities- Disclosures under Section 4(1)(b) should be printed and updated periodically. It should be obligatory for the Public Authorities to publish the disclosures in their Annual Reports. The scope of "suo moto" disclosure of information by public authorities needs to be expanded to minimize citizen's resort to RTI for getting the information needed by them. Citizen's Charter should therefore form an integral part of Section 4(1)(b) disclosures. 

Extensive use of Information Technology need to be resorted for addressing the obligations related to suo-moto disclosures.

The penal provisions should also be invoked against Public Authorities for not doing disclosure under Section 4(1)(b).

4.  Effective Record Management - The State Information Commission should be made powerful enough to ensure that public authorities take initiative in this regard. All of them must quickly review the existing Weeds Rules framed under the Destruction of Records Act, 1917. Records in the Government offices need to be digitized and indexed for easy retrieval. Clear cut accountability must be fixed for delays or non-traceable list of any document with reference to the Weeding Rules.

5.  Appointment of APIOs/PIOs by Public Authorities -Effective steps should also be taken by the ICs and concerned governments so that all the Public Authorities designate PIO/APIOs not only at the headquarter level but also at the district and block levels. Furthermore for better coordination with PIOs of other departments, one officer in each line department could be designated as Nodal PIO. Details of all RTI Act functionaries should be available at one place and these should be displayed on their notice boards etc.

6.  The PIOs need to be senior officials supported by adequate Infrastructure- To ensure effective implementation of the RTI, the PIOs need to be of a sufficiently senior rank. The organisation must also provide them adequate budgeting support and infrastructure such as photocopier, fax and accommodation for enabling them to handle the responsibilities under the Act.

7.Proper Training to the PIOs- Adequate training too is needed to sensitize the PIOs the needs of people and about their functions. Training techniques such as distance education, computer training etc. should be used for this purpose.

8.  Separate Cadre of the PIOs- They should be relieved of the extra burden to reduce in volume of work that they have to perform. To avoid the problem of their frequent transfers and for their better sensitization on RTI Act, a separate cadre in civil services like IPS, IAS may be formed and named Indian Public Information service.

9.Incentive for Work - Since the PIOs are required to handle challenging work, they should be given incentives in the form of perks or extra allowances so that they are able to perform their duties gladly and effectively.

10. Working of ICs be made more Effective - Disposal of the cases in the ICs should be made faster. The CIC and SICs should constitute benches of two or more than one Commissioners to review the decisions made by a Single Commissioner. Video Conferencing too may be used extensively for hearing the appeals. A time-limit should be put by the Commissions for taking up of the cases suo moto for ensuring disclosure of important information through their websites. The appeals and complaints under the Act should not be dismissed due to non-appearance of appellants/complainants and give another chance for appearance before them. Alternatively, they could decide the case on merit.

11. Autonomy of the Commissions-The ICs at the centre as well as in the states should have financial autonomy so that they are not compelled to go to the Finance Department or to the concerned Administrative Department for funds.

12. Need for Performance Monitoring under the Act - The Central Information Commission and the State Information Commissions must use the monitoring and reporting powers given to them under Section 25 of the RTI Act to ensure satisfactory compliance of their orders. The Second Administrative Reforms Commission has also recommended this in its report.

 

For this the Commissions also need to be given a separate set up with adequate staff. They may also be authorized to engage the services of retired officers and renowned members of the Civil Society for this purpose.

13. Contempt Power with the ICs- The Information Commissions have the powers of a Civil Court for only limited purposes. This should be widened so as to enable them to appropriately deal with contempt matters. The Commissions should also be empowered to enforce their decisions including those of penalising the heads of the Public Authorities for continued contempt of their orders. Till that is done the Commissions may use Section 19(8)b compensation clause against the non-cooperating heads of public authorities.

14. Moderate Fee and Simple Modes of Payment- To avoid confusion in depositing fee, there should be a receipt head in every public authority to which the application fee is to be credited. Instead of bank drafts, prescribed in some States, which cause undue extra burden, payment by way of Postal Orders, cheques and non judicial stamps, banks debit and credit cards should be allowed as modes of fee payment.

15. Uniformity of Rules and Procedures - It is necessary that uniformity is maintained in formulating the rules and devising procedures by the competent authorities at different levels of the government. The Department of Personnel and Training, Government of India should conduct the audit of RTI rules of all the states so that Aberrations especially the rules contravening the Act such as the time limit of 15 days for depositing the additional fee, as has been prescribed in Haryana, could be removed.

16. Pro-Active Role of Judiciary- The judiciary also needs to initiate measures for effective implementation of the RTI. It should frame rules, as required under the Act for this purpose. It could also consider giving priority to the disposal of cases where public authorities have with held Information by getting stay against the orders of Commissions.

17. Enlisting the help of Civil Society for training and Social Audit of PIOs- There is need for formal involvement of intermediary civil society organisations to train the PIOs and the APIOs in collaboration with other government nodal agencies. Social audit of certain public authorities by NGOs, Citizens Forum and Civic Bodies of repute would help in fighting corruption and effective implementation of the RTI Act.

18. Awareness Generation and Capacity Building- Capacity building of officials too is needed to meet information requirements of the citizens in addition to creation of awareness, in citizens capacity building of the cutting edge level functionaries forms the key element in this context as this level facilitates the first interface with the citizens. A massive round of training of PIOs/APIOs must be undertaken to achieve the Objective of Maximum Disclosure and Promotion of Open Governance.

 

The following steps may be taken for it:

i)The RTI Act should be included in the syllabi at the Secondary school and College level education.

ii)The RTI User guide/ Guidelines and Directory of PIOs/APIOs/FAAs should be published in English as well as local language and these be circulated widely by the government.

iii)  Effective training programmes for both the information seekers and the information providers should be organised by Administrative Training Institutes and NGOs at different level.

iv)  Multimedia, especially the TV Channels, should be used for the information dissemination.

v)Best practices in RTI should be documented and show-cased.

vi)  Though Department of Personnel and Training, Government of India has declared second week of October as RTI week for spreading awareness about the Act but awareness about it is very poor among people. However, it seems to be only Central Government affair, State Governments are not taking effective steps in this direction.

vii)  Nukkad Nataks, Talk Shows etc should be organized regularly by various forms of media. Other modes such as Kala Jathas and puppet shows could also be used for this purpose.

19.The use of Common Service Centre (CSCs) and Call Centers as APIOs- For facilitating the access to information, the concept of RTI Call Centers needs to be introduced. As per the concept, information seekers are to make calls on these centres and operators at these centres would convert oral request of the information seeker into written forms. Then it would be sent to the PIO of the concerned public authority. This is being practiced in Bihar to some extent. There the Government hires such Call Centres. Few states have also established Common Service Centres (CSCs) in the rural and urban level area respectively. These CSCs could also be used as APIOs for receiving and for forwarding RTI applications to the PIOs of the concerned Public Authorities. However, these are yet to be operational many states.

20. Single Window Service at the E-Disha Centres in the District Headquarters- A counter can be opened at the E-Disha centre of every district to help information seekers. An officer may be specifically designated as APIO under the Act to collect applications meant for Public Information Officers of the district and sub-divisional headquarters. The fee may also be deposited and the application be forwarded by her/him to the concerned Public Information Officer in the district.

21. Use of Post Offices as APIOs- The state governments in consultation with the Post Master General of the State can have a similar arrangement as has already been adopted by the Central Government. It has designated certain specified post offices in the country as APIOs to collect applications on behalf of the Public Authorities of the Central Government and forward them to the concerned PIOs. Fee can also be easily paid there through postal orders

22. Confederation of ICs and Nodal Officers of RTI Cells- A Confederation of Information Commissions and Nodal Officers of RTI Cells of National/State Training Academies may also be formed. It can hold regular meetings for having better coordination among the Commissions and greater cohesion in their decisions. This may also ensure exchange of information relating to Annual Confidential Reports (ACRs), Answer Sheets, Annual Property Returns (APRs) and Income Tax Returns etc.

 

23. Priority to Public Interest - Information Commissions should prioritize second-appeals / complaints, of public interest, over the ones which are self-centric and self-serving. Moreover, information sought by the applicants in public interest should be used for the purpose of furtherance that cause.

 

Summing up:

The enactment of the Right to Information (RTI) Act in India in 2005 marked a paradigm shift in Indian democracy. Legislating this right, was the first confession on the part of the political parties that democracy needs continuous dialogue between the people and the government comprising political leaders and civil servants. It is now widely recognized that democracy, to be meaningful, ought to be based on the notion of an informed public participation in its governance. The Information and knowledge are the instruments for transformation as these enable the public to engage with their representatives and the bureaucracy on an ongoing basis and also to participate effectively in the formulation and implementation of policies and activities purportedly for their benefit. An empowered citizenry, undoubtedly, tends to make administration more accountable and participatory. It ensures greater transparency too and acts as a deterrent against the arbitrary exercise of official powers. The RTI has not only improved governance but also made the administration of the corporate houses and industries, which operate for profit, more transparent and accountable. That is why it has now been recognized as an essential requirement for good governance. As transparency sustains democratic governance, the access to information has been specified by approximately fifty countries in their constitutions, another 80 of them have passed access to information laws. And, many more are in the process of doing so.

The RTI Act, 2005 is a first law in India, which has a wide angle to access information about any institution, where the tax-payers money is invested. It has caused much discomfort to many, because it covers not only the public sector but also the NGOs and the private sector to some extent. This legislation is admired for its structural responsive system for an applicant. The provision of First and Second Appellate Authorities ensures that the information seeker gets the information as required. India is not the first country to empower her citizens with this law, but it is, perhaps, the one of the toughest legislations of its kind in the world. It is the only RTI Act which imposes penalty for any contravention of the provisions of the Act.

The RTI provides an impeccable mechanism to redress the grievances of the people, but it needs committed government approach to make it an instrument of the governance. The governments, both at the Union as well as state level need to take more and effective steps to optimize its potential.

This Act has enabled people to discern the mistake if committed anywhere in the administration. They are also learning the importance of the power of information for making the daily governance more responsive towards the citizens. The experience of 11 years shows that the response to it has been very positive. A wide spectrum of people, from various strata of society, has been seeking different types of information from various authorities.

During the initial years, public offices were inundated with RTI applications. The people of every section have been seeking information from the different authorities. It served the twin purpose of accountability as well as transparency. With more and more experience, the Public Authorities and Public Information Officers are becoming increasingly aware of their specific role forcing them to commit their loyalties to the political masters only in a limited term. They have started realizing their full responsibilities, because the majesty of the law has started prevailing upon them. For the most of the officials, it has been a learning experience for each entity involved in its role under the wings of the new law.

However, there have been large scale instances of misuse of the Act, blackmailing of the officers and extra burden on government exchequer. Besides there have been many operational impediments in the effective implementation of the Act such as non designation of RTI functionaries in several organizations. However, many Public Authorities, particularly at the district level do not display names and details of PIOs on their notice boards. Furthermore very junior officers are often appointed as PIOs. They are unable to collect information from the departmental employees. Above all, only PIOs can be penalised under the Act. But they have not been provided adequate infrastructure for performing their duties and discharging their responsibilities.

People in rural areas find the appeal process rather expensive. Many times, there is just one First Appellate Authority for the whole department and that too is located in the state capitals. The BPL exemptions are also being widely misused by unscrupulous elements. 

The Information Commissioners have not been frequently using the penalty clause against those officials who provide wrong information or deny it altogether. As a result, an impression has been created that the government departments need not take this Act very seriously. They also do not always comply with the orders of the Information Commissions, Which have not been provided with enough teeth and adequate infrastructure. The Commissions' autonomy is compromised as they have to rely on Government for infrastructure and financial support. The awareness is also lacking among the information seekers and information providers in urban as well as rural areas.

However, even after 11 years, there are inadequacies in the implementation of this law. The Public Authorities are yet to give shape to any time-bound action plan for the implementation of the RTI Act especially volunteering suo-moto disclosures. It may be attributed to the reason that under this Act, there are no penal consequences for Public Authorities for incomplete or insufficient disclosures. Besides, the experience regarding seeking information is also not very encouraging, because most of the officials continue to have the old mindset. The fees charged and the manner of payment is not uniform. Some States charge very high fees which runs counter to the spirit of the Act. There is confusion also about the head of accounts to which the amount received as application fees and other fee are to be credited. Most of the Public  Information Officers at state and district levels are not truly cooperative and they sometimes force the applicants to withdraw applications.

The governments, with a view to overcome the problems in its effective use, need to take steps to propagate this Act among the illiterate population living in the villages. The states should increasingly adopt and popularize the use of information technology (IT) or e-governance. The huge records in the government offices need to be digitized and indexed for easy retrieval and access. The provision of video conferencing should be used extensively for hearing the appeals. Proactive disclosure of public authorities should be audited by a team of high-level government officials and authorized NGOs.

Penal provisions, as stipulated under the Act for malicious and unreasonable refusal of information, by the Information Commission should be strictly implemented. Compulsory training of officers of central and state governments on RTI should be organized. What is most important at present juncture is to give an honest chance to the Act to operate without creating negative stumbling blocks and bottlenecks. There is a special duty cast upon the organizations of the civil society to be vigilant so that the objectives of the Act do not get frustrated by the bureaucratic manipulations. This necessitates attitudinal change in bureaucracy to successfully implementing the RTI Act, 2005. At the same time, there is a dire need to initiate suitable amendments in the conduct rules for public servants. Efficient information management systems too need to be created without delay. More frequent use of this Right by media and citizens to utilize its access to government files and information is expected to go a long way in achieving the objectives of the Act.

There is also a need for capacity building to optimize the operations of this legislation.  Further, making it more effective, the RTI requires capacity building of the information providers as well as to the information seekers. The capacity building of the cutting edge level functionaries forms the key element as it facilitates the first interface with the citizens. To ensure that the RTI regime is in tune with the spirit and philosophy of the Act would require institutional mechanism for improved government citizen interface, capacity building of officials to meet citizen's information requirements and awareness and empowerment of citizens to enable them to exercise RTI in the right earnest. 

The 11-year old the Right to Information Act  2005 is universally admired for its efforts to make Indian democracy transparent, all inclusive and proactive enabling to allow common citizens to have access to the government documents making India a participative democracy.  This legislation has enabled the intergovernmental organizations, civil society and allowing almost each section of Indian people to contribute to this unprecedented experiment of public administration from the village-level to the higher echelons of the Union government in New Delhi.

The RTI is now being widely recognized as a Fundamental Human Right to ensure self-governance for millions of people across the globe. The UN Charter upholds each human beings right to live in freedom and millennium development goals have further upheld this. It is now universally recognized that RTI enables participatory democracy, thus upholds the dignity of tall human beings.  

Unless the people are informed, all this could not be achieved. It is now widely recognized that democracy ought to be based on the notion of an informed public participation thoughtfully, if it has to be made meaningful and responsive.

The 11-year old legislation, has witnessed a sea-change in the approach of governance in the country. It has been accompanied by hiccups of the high-profile bureaucratic order, which many think as a problem and feel the prospects of this Act is always under cloud.

 

Currently, the RTI regime is passing through a decisive phase in India. Much more needs to be done to facilitate its growth and development. It can be made effective only through people's active involvement. Much would depend on the seriousness of Central and State Governments and Public Authorities in fulfilling their obligations under the Act and in ensuring removal of difficulties in its operation. Finally, it can be said that the enactment of RTI Act is indeed, a bold step and will go a long way to promote citizen-friendly environment to fully achieve our constitutional mandate to responsive and transparent governance.

 

 

 Notes & References

1. Simi T.B., Madhu Sudan Sharma & George Cheriyan, Analysing the Right to Information Act in India, CUTS International,  1/2010 http://www.cuts-international.org/cart/pdf/Analysing_the_Right_to_Information_ Act_in_India.pdf

2.Good Governance: Lessons from International organizations,

https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP54e.pdf

3. Harsh Mander & Abha Singhal Joshi, The Movement for Right to Information in India: People's Power for the Control of Corruption,

http://www.humanrightsinitiative.org/programs/ai/rti/india/articles/The%20Movement%20for%20RTI%20in%20India.pdf

4. Y.K. Sabharwal, Right to Information, Issues of Administrative Efficiency, Public Accountability and constitutional Governance, www.supremecourtofindia.nic.in/speeches/speeches_2005/rti.doc 

5. Jaytilak Guha Roy, Right to Information Initiatives and Impact, Occational Paper, IIPA, New Delhi, March, 2006.

6. Suchi Pande and Shekhar Singh, Right to Information Act, 2005: A Primer, National Book Trust, India, New Delhi, 2008.

7. R.S. Tolia, Towards a Transparent and Accountable Uttarakhand, Information Commission,  Dehradun, 2007.

8. B.P.Maithani, Some Grey Areas of the RTI Act, Uttarakhand Information Commission,  Dehradun, Uttarakhand, 2007.

9. Indra J. Mistry "Breaking the bureaucratic Mould" Yojana January 2006.

10. Ranbir Singh, RTI Ineffectiveness in Haryana, The Tribune, Chandigarh, July 01, 2009.

11. Anu Kumar, Right to Information background and Perspective, (Info-change India) (1999).

12. Report of National Sub Committee of CIC on Implementation of RTI Act, 2005, New Delhi, July, 2008.  http://cic.gov.in/Sub-Com-1-Report/1_Title.pdf

13. http://www.cic.gov.in/Conference/Program.htm (Recommendations of the Three National Conventions i.e. 2006, 2007 and 2008.)

14. The Right to Information Act, 2005. www.righttoinformation.gov.in/

15. Toby Mendel, Freedom of Information: A Comparative Legal Survey, Second Edition, United Nations Educational Scientific and Cultural Organisation, 2008. www.unesco.org/webworld/en/foi>

16. Guide on Right to Information Act, 2005, Government of India. http://rti.gov.in/RTICorner/Guideonrti.pdf

17. Article 19, The Public's Right to Know: Principles on Freedom of Information Legislation, International Standards Series, 1999, London, www.article19.org/pdfs/standards/righttoknow.pdf>

18. David Banisar, Freedom of Information around the World - A Global Survey of Access to Government Information Laws, Privacy International, 2006, www.sspa.it/share/pagine/1635/global_survey2006.pdf>

19. M. M. Ansari, Impact of Right to Information on Development: A Perspective on India's Recent Experiences, United Nations Educational Scientific and Cultural Organization, 2008, http://unesdoc.unesco.org/images/0018/001865/186510m.pdf

20. Alasdair Roberts, A great and revolutionary law? The first four years of India's right to information act, Suffolk University Law School, Revised March 2010, http://ssrn.com/abstract=1527858

21. Commonwealth Human Rights Initiative, Right to Information: International, Member States' Laws and Papers, http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm

22. History of Rising RTI in India,

< http://www.nyayabhoomi.org/treatise/history/history1.htm>

23. Global Trends on the Right to Information: A Survey of South Asia,  http://www.article19.org/pdfs/publications/south-asia-foi-survey.pdf

24. Swedish Freedom of the Press Act, 1766

ARTICLE 19 Welcomes UNESCO Declaration on Right to Information, Press Release, ARTICLE 19, 4 May 2010, www.article19.org/pdfs/press/article-19-welcomes-unesco-declaration-on-right-to-information.pdf

https://www.google.co.in/images/branding/googlelogo/2x/googlelogo_color_272x92dp.png

 


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