Information: The Currency of Power

Summary and Key Findings

The Right to Information (RTI) Act 2005, a legislation firmly anchored to ideas of transparency and democracy in India, has also been consistently undermined by political regimes. Built on the premise of dusting the cobwebs of secrecy around governance and helping the disenfranchised access crucial information, the law has been backed over the years by several Supreme Court judgments.

The Apex Court, had time and again, given legitimacy to information access, ruling that the right to information is implicit in the right to freedom of speech and expression, explicitly guaranteed in Article 19 of the Indian Constitution. Its judgments, over the years, have added more vigour to the transparency legislation by linking the right to information with the right to life, enshrined in Article 21 of the Constitution.

Despite rapidly losing ground (dysfunctional Information Commissions in several states, glaring vacancies in state and central commissions and swelling pending appeals and complaints), the RTI Act continues to be regarded as a powerful tool for unravelling the truth and challenging arbitrary power1 . It is the only means available to the oppressed and marginalised to push back against their exploitation.

This article attempts to simplify as well as add clarity to the transparency law through a series of edited extracts. The extracts are part of ‘Right to know, right to live -- A Primer on The Right to Information Act, 2005,’ written by Anjali Bhardwaj and Amrita Johri, who work with Satark Nagrik Sangathan (SNS), the National Campaign for Peoples’ Right to Information (NCPRI) and the RTI Assessment & Advocacy Group (RaaG). This primer, prepared in 2016, provides an introduction to the RTI Act and has been compiled in a question-answer format for easy comprehension and reference. The authors updated the primer for publication in 2021 to reflect the changes made since the original version was prepared.

What is the meaning of Right to Information?

The RTI Act provides a practical regime for people to access information from public authorities. Under the Act, people have the right to seek 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 which is held by or under the control of any public authority (Section 2(f)).

Further, it includes the right to:

  1. inspect work, documents, records;
  2. take notes, extracts, or certified copies of documents or records;
  3. taking certified samples of material;
  4. obtaining information in the form of diskettes, tapes or electronic mode etc. (Section 2(j)).

Using the RTI Act, citizens can access copies of contracts, receipts, estimates, details of development funds, information about implementation of laws, schemes and policies, status of application forms, requests or complaints submitted to the government, samples of material used in construction of roads, buildings etc.

The Supreme Court in the matter of CBSE Vs.

Aditya Bandopadhyay in August 2011, held that if a public authority has any information, an applicant may access such information, subject to the exemptions of the Act.

Where the information requested is such that it is required to be maintained under any law, or as per the rules or regulations of the public authority, there is an obligation on the public authority to provide this information, subject to the provisions of the RTI Act.

The Supreme Court in another case, T.S.R. Subramanian Vs. Union of India, held that all verbal and oral instructions to civil servants must subsequently be recorded so as to facilitate their disclosure under the RTI Act.

Who is covered under the RTI Act?

The RTI Act originally extended to the whole of India except the State of Jammu and Kashmir (Jammu and Kashmir had its own state RTI law). Following the abrogation in 2019 of the special status guaranteed under Article 370 of the Constitution to the state of Jammu & Kashmir and the concomitant administrative reorganisation, the state specific RTI Act of J&K stood repealed and now all appeals/complaints from J&K and Ladakh are heard by the Central Information Commission. Under the Act, people can seek information from public authorities. Public authority means any authority or body or institution of selfgovernment established or constituted-

  1. by or under the Constitution;
  2. by any law made by Parliament or State Legislature;
  3. by notification issued or order made by Central or State Government; It also includes any-
  4. body owned, controlled or substantially financed directly or indirectly by Central or State Government;
  5. non-Government organisation substantially financed, directly or indirectly by funds provided by Central or State Government; (Section 2(h))

Information can therefore be accessed from the central, state and local governments; the executive, legislature or judiciary; corporations established through law or notifications and all bodies owned, controlled or substantially financed by the government. Further even those non-government organisations which are substantially financed by the government are public authorities under the law.

An RTI application can be directly filed to seek information from any of the public authorities.

Apart from this, the Act also empowers people to seek information relating to any private body which can be accessed by a public authority under any other law for the time being in force (Section 2(f)).

In order to access information related to a private body, the RTI application has to be filed to the public authority which is empowered by law to seek that information from the private body.

Intelligence and security organisations which are listed in the Second Schedule of the Act are exempt from disclosing information, except information pertaining to the allegations of corruption and human rights violations (Section 24).

What information is exempt from disclosure?

The following categories of information which are listed in Section 8 and 9 of the RTI Act are exempt from disclosure-

  • Where disclosure would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or leads to incitement of an offence;
  • Where release of information has been expressly forbidden by any court/ tribunal;
  • Where disclosure would cause a breach of privilege of Parliament or Legislature;
  • Commercial confidence, trade secrets or intellectual property, where disclosure would harm competitive position, unless larger public interest so warrants;
  • 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;
  • Which endangers life or physical safety or identifies confidential source of information or assistance given in confidence for law enforcement or security purposes;
  • Which impedes the process of investigation or apprehension or prosecution of offenders;
  • Cabinet papers, provided that after the cabinet has taken its decision and the matter is complete, the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public;
  • Personal information which would cause invasion of the privacy unless larger public interest justifies it.
  • Which would cause an infringement of copyright, subsisting in a person other than the State.
To narrow the scope of exemptions, the Act specifies-
  • Information which cannot be denied to the Parliament or a State Legislature cannot be denied to any person.
  • If public interest in disclosure outweighs the harm to the protected interests, then even exempted information is to be disclosed (Section 8(2)).
  • Most exempt information to be released after 20 years

Apart from categories of information listed in Section 8 and 9, all other information can be accessed under the RTI Act.

Further, Section 10 provides that if part of a record is exempt, then that part may be severed and the rest released.

The RTI Act overrides the Official Secrets Act, 1923, and any other law which is inconsistent with the provisions of the RTI Act (Section 22).

How to use the RTI Act?

A person can apply for information to the Public Information Officer (PIO), by making an application in writing or electronically, along with the prescribed fee. A PIO has been designated in each department/ agency to receive requests and provide information. Further, to ensure ease of use in remote places, Assistant PIO (APIOs) have been designated at sub-district levels to receive applications and forward them to the appropriate PIO.

There is no mandatorily prescribed format for applying for information and therefore, an application can be made on a blank sheet of paper. The applicant must include their contact details; the name of the public authority from whom information is sought and details of information sought under the RTI Act in their application for information. The Central government provides a facility for filing online RTI applications to all the ministries and departments of the Central government. The facility can be accessed at https://rtionline.gov.in/

Upon receiving an RTI application, the PIO is either required to provide the information, after collecting the stipulated fee, or reject the application citing any of the exemptions enumerated in Section 8 or 9 of the Act (Section 7(1)). Where further fee is charged, the PIO must inform the applicant about the calculation used to arrive at the exact fee.

Whenever an information request is rejected, the PIO must communicate the reasons for such rejection to the information seeker. Further, every reply must contain details of the right of the applicant to appeal the decision, including the particulars of the appellate authority

Time frame for receiving information

The RTI Act clearly defines the time-frame within which the PIO is required to provide information. Ordinarily, information is to be provided within 30 days. In certain circumstances, a different time-frame has been defined, details of which are given below-

  • Where the RTI application pertains to life or liberty: 48 hours
  • Where the RTI application was filed to Asst. PIO: 35 days
  • Where information pertaining to allegation of corruption or human rights violation is sought from an exempt agency: 45 days

Upon receipt of an RTI application, the PIO is required to within 30 days of the receipt of the request, either provide the information on payment of further fee or reject the request for any of the reasons specified in Sections 8 and 9. Where the PIO is seeking further fee, the period intervening between the despatch of the intimation of further fee and payment of fees is excluded for the purpose of calculating the period of 30 days.

The failure of the PIO to respond to the RTI application within the stipulated time-frame is a deemed refusal and the applicant can move to the appellate process. Information shall be provided free of charge where a public authority fails to comply with the time limits specified in the law (Section 7(6)).

Is there any fee to be paid for accessing information?

Yes. The RTI Act stipulates that a fee may be charged as application fee and a further fee may be prescribed representing the cost of providing the information. However, the Act stipulates that the fee prescribed as application fee or further fee must be reasonable. The quantum of fee and mode of payment are to be prescribed by the appropriate government or competent authority through rules and therefore, may vary.

The Central government and most of the state governments have prescribed an application fee of Rs.10 and a further fee of Rs. 2 per page of information or Rs. 50 for information on a CD. Usually, the fee is payable through various modes including cash, Indian Postal Order etc. For online RTI applications filed to the Central government, the fee can be paid through debit/credit card or internet banking.

People living below the poverty line are exempt from paying any fee (application fee and further fee). Further, Section 7(6) of the RTI Act states that if the requisite information is not provided within the stipulated timeframe, it shall be provided free of cost to the information seeker.

In case of violations of the law, is there an appeal process?

The appellate mechanism prescribed under the RTI Act consists of two appeals-

  • First Appeal- If an applicant does not receive any reply in the requisite time-frame or is aggrieved by the decision of the PIO, (s)he can file a first appeal with the First Appellate Authority (FAA). The FAA is an officer senior in rank to the PIO and is located in the same public authority where the RTI application was originally filed. The first appeal has to be filed within 30 days of the date of response of the PIO. In case of no response, it has to be filed within 30 days from the date of expiry of the stipulated time frame. The First Appellate Authority is ordinarily required to decide each appeal within a period of 30 days, extendable to 45 days with reasons for delay to be recorded in writing.
  • Second Appeal- The RTI Act envisages an independent Information Commission to be established at the Central and State level, to be the final appellate authority under the Act. Any person who does not receive a decision of the FAA within the stipulated time frame or is aggrieved by the decision of the FAA, may file a second appeal to the Information Commission. The second appeal is to be filed within 90 days from the date on which the FAA decision should have been made or was actually received. For Central government public authorities, the second appeal will lie with the Central Information Commission while for state government public authorities, the second appeal will lie with the respective State Information Commission. The commissions consist of the chief information commissioner and up to 10 information commissioners, appointed by the President of India at the Central level and by the governor in the states.

The commissions have various powers under the Act, including ordering disclosure of information, requiring public authorities to publish categories of information or make changes to its practices of information maintenance, powers to penalise PIOs for violating the RTI Act, awarding compensation to information seekers for any loss or detriment suffered etc. The Act does not define any time frame within which the Commission should dispose the second appeal.

One of the most critical parameters for assessing the efficacy of any transparency law is the independence of the appellate mechanism it provides. Security of tenure and high status had been provided for commissioners under the RTI Act of 2005 to enable them to function autonomously and direct even the highest offices to comply with the provisions of the law. However, the passage of the RTI Amendment Act in July 2019, and the concomitant rules promulgated by the central government, have dealt a severe blow to the independence of information commissions. The amendments empower the central government to make rules to decide the tenure and salaries of all commissioners in the country. The RTI rules, prescribed by the central government in October 2019, reduced the tenure of all information commissioners to three years. More significantly, Rule 22 empowers the central government to relax the provisions of the rules in respect of any class or category of persons, effectively allowing the government to fix different tenures for different commissioners.

  • In any appeal proceedings, the onus to prove that a denial of a request was justified is on the PIO who denied the request.
What action can be taken against officials who violate the RTI Act?

The Information Commissions have the power to penalise PIOs for violating the RTI Act under Section 20 of the Act. The penalty is to be paid by the PIO and not the public authority. The penalty recovered is not paid to the information seeker.

The RTI Act provides for the following penalties to be imposed on the PIO-

  • Penalty of Rs 250 per day up to Rs 25,000 for each day of delay, without any reasonable cause.
  • Penalty of up to Rs. 25,000 for, without any reasonable cause, refusing to accept an RTI application, malafidely denying the information request, knowingly giving incorrect/ incomplete/ misleading information or destroying information or obstructing furnishing the information.

The Act specifies that the PIO must be given an opportunity of being heard before a penalty is imposed on him/her. Further, for persistently violating the RTI Act, the Information Commission can recommend disciplinary action against the PIO, under the service rules applicable to him/her.

The imposition of a penalty in cases of violation of the RTI Act is mandatory. Therefore, in disposing each appeal/complaint in which a violation of the Act is evidenced, the commission should either impose the penalty or record reasons on the mitigating circumstances due to which penalty is not being imposed.

What is proactive disclosure?

Section 4 is perhaps the most significant component of the RTI legislation. Among other things, it states that “It shall be a constant endeavour of every public authority to take steps…to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information”.

Section 4 lists various categories of information which should proactively or suo motu be made available to the public and should not require the filing of any RTI application. It also prescribes the manner in which the information should be proactively provided.

Section 4(1) lists the particulars of information which were to be published within 120 days of the enactment of the RTI Act and subsequently updated every year, by each public authority. The particulars of information to be disclosed proactively by the public authority include-

  • information about its functions
  • duties of its officers,
  • procedure for decision-making,
  • documents held by it,
  • norms/rules prescribed for its functioning,
  • arrangements for public consultation,
  • details about advisory committees,
  • directory of officers,
  • budget allocated to the authority,
  • details of subsidy programmes executed and details of beneficiaries,
  • salaries of employees,
  • facilities available for citizens to access information
  • and contact details of the PIOs etc. 

Section 4(1)(c) and (d) require public authorities to proactively disclose relevant facts while formulating policies and also provide reasons for their decisions. Under Section 4(3) and 4(4), information has to be disseminated in the local language, taking into consideration, “…the most effective method of communication in that local area and the information should be easily accessible…” Therefore, information has to be made available not only through the internet, but also through notice boards, newspapers, wall paintings etc.

Endnote
  • Joy, Shemin, (2021, October 11). RTI Act completes 16 years as watchdogs paint dismal picture. Deccan Herald. Retrieved December20, 2021, from https://bit.ly/3mlVRYm

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