Right to Information Act, a great step forward
Right to Information Act, a great step forward
Dr. Tejinder Singh Rawal
Chartered Accountant
tsrawal@tsrawal.com
The Right to Information Act, passed recently is a milestone in India’s progress as the biggest democracy in the world. The law recognises the fact that the right to access the information collected by the Government, and lying in the records of the Government is a fundamental right of the citizens of India. Such information is collected by public servants for public good, using public money and the new law recognises the fact that the public has every right to know what lies buried within the red tape. The right is no less than the citizens’ fundamental right.
India enjoys the dubious distinction of being one of the most corrupt countries in the world, and this law may be considered the first major step in the direction of making the working of the Government more transparent, and accountable to the real power: the common man.
The Object: The purpose of the Act, as stated in the preamble is “to provide for setting out the practical regime of right to information for people to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and for matters connected therewith or incidental thereto.”
Freedom of Information Act, 2002 repealed: The Act replaces the Freedom of Information Act(FOI Act), which was passed in 2002 and received the Presidential accent in January, Unfortunately, the FOI Act did not have enough teeth. Moreover, no date of commencement of the FOI Act was provided, as a result the provisions of FOI Act were never implemented, and it remained a non-starter. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the FOI Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law.
The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Officers; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc.
In view of significant changes proposed in the FOI Act, the Government decided to repeal the Freedom of Information Act, 2002. The new Act comes into force 120 days after its enactment, which is quite an achievement, considering the fact that the FOI Act did not specify any date for its own commencement, and thus never saw the light of the day.
The Act declares unequivocally that subject to the provisions of this Act, all citizens shall have the right to information. ( S.3) One far reaching effect of the Act is to reduce the force of the Official Secrets Act, a Act which has existed since 1923, and which should have been scrapped at the time India became independent of the British rule, and established a democratic system of Government.
The Act declares that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Moreover, no court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
Right to information defined: The Act defines ‘right to information’ to mean the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
The definition is vast enough to cover inspecting the work, obtaining the certified copies, samples, and also the digital copies. The terms, ‘information’ and ‘record’ have also been suitably defined.
The Act casts an obligation on Public Authorities to maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. (S. 4(1)(a)
A great deal of spadework shall have to be done before the commencement of the Act: The Act shall commence 120 days after its passing. The Government machinery shall have to work overtime to gear up for the responsibilities the Act places on it in respect of providing the right to information to citizens. It casts an obligation on Public Authorities u/s 4(1)(b) to publish before the commencement of this Act, a great deal of information including the particulars of its organisation, functions and duties, the powers and duties of its officers and employees, the procedure followed in the decision making process, including channels of supervision and accountability, the norms set by it for the discharge of its functions, the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions, a statement of the categories of documents that are held by it or under its control, the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof, the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use, the names, designations and other particulars of the Public Information Officers etc
The Act does not stop at that, and exhorts the public authorities 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 so that the public have minimum resort to the use of this Act to obtain information, and every such information shall be disseminated widely and in such form and manner which is easily accessible and comprehensible to the public.
All such materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Public Information Officer, available free or at such cost of the medium or the print cost price as may be prescribed.
Appointment of Public Information Officers (PIO’s):
The Act provides that every public authority shall, within 180 days of the enactment of this Act, designate as many Public Information Officers as may be necessary to provide information. Such officers are also required to be designated at every sub-divisional or sub-district level. ( S.5)
Procedure for obtaining the Information
Request for obtaining information (S.6): A person who desires to obtain any information shall make a written or electronic request in English or in the official language of the area, to the PIO or the Assistant PIO. The Act even provides that the PIO shall render the assistance for reducing the request in writing the person making the request, where such person is not able to make the request. The person making the request is not required to give the reason for making the request, nor his personal particulars, except the contact information. It the application is made to one pubic authority and the matter falls more clearly within the jurisdiction of another authority, within 5 days such application shall be transferred to the proper authority.
Disposal of request (S.7): The PIO shall, on receipt of request for information, provide the requested information as expeditiously as possible, but in any case, within 30 days, on payment of the prescribed fees or of he cannot so provide, reject the request for reasons specified in the following paragraph. Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. Failing to providing the information within the time specified shall amount to the refusal to provide the information. An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question
Exemption from disclosure of information: The Act has excluded certain items from disclosure, like, information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security, strategic, scientific or economic interest of the State, relation with foreign State; or lead to an incitement to commit an offence; information, which has been expressly forbidden to be disclosed by any court of law or tribunal or the disclosure of which may constitute contempt of court; information, the disclosure of which may result in a breach of privileges of Parliament or the Legislature of a State; information, including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. Provided that such information may be disclosed, if the Public Information Officer is satisfied that a larger public interest warrants the disclosure of such information; 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:
The guiding rule is that an information which cannot be denied to Parliament or Legislature of a State shall not be denied to any person. A public authority may, notwithstanding the exemptions specified above, allow access to information if public interest in disclosure of the information outweighs the harm to the public authority.
Limitation: The Act provides for a limitation of 20 years. Thus, information relating to any occurrence, event or matter which has taken place or occurred ten years before the date on which any request is made shall be provided to the person making the request under that section:
Appeal: Any person who, does not receive a decision within time or is aggrieved by a decision of the PIO, may within 30 days prefer an appeal to such officer who is senior in rank to the PIO. The second appeal lies to the Information Commission. In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the public authority which denied the request. An appeal shall be disposed of within 30 days or within such extended period not exceeding a total of 45 days from the date of filing thereof ,for reasons to be recorded in writing. An appeal against the decision of the Central Information Commission shall lie in the High Court on any point of fact and law.
Penalties provisions watered down: The original draft proposed that any Public Information Officer who is in default shall be liable on conviction to fine which may extend to rupees twenty-five thousand or a term of imprisonment which may extend to five years, or with both. However the provision of imprisonment has been removed and instead the Act now provides for a departmental proceeding against the erring officer.
Intelligence and security organisations excluded: The Act shall not apply to the intelligence and security organisations specified in the Second Schedule. Provided that the information pertaining to the allegations of corruption, and human rights violations shall not be excluded under this provision..
Only citizens have the right to information: The Act declares that ‘all citizens shall have the right to information’. This means incorporated bodies, like limited companies, trusts and other institutions shall not have any right to information under the Act. Moreover, non-citizens, which would also include foreign nationals living in India, would also not be entitled to information under the Act.
State Authorities also covered: The original draft of the bill applied it only to the public authorities belonging to the Central Government. Perhaps they thought it more expedient to leave the State Governments make their own respective laws in respect of the right of information of the citizens in respect of the public authorities belonging to the States. However the law as passed has been extended to State authorities also. The non-Governmental organizations substantially funded, directly or indirectly, by the public funds also fall within the ambit of this Bill
It means that States, like Maharashtra, Tamilnadu, Karnataka, Goa, Jammu Kashmir, which have already enacted similar laws in respect of right of information from State authorities shall now have to scrap such laws.
Dr. Tejinder Singh RawalM.Com, MA( Economics and Public Administration), LLB, FCA, ISA, CISA, CISM, PhDChartered AccountantE 13, Anjuman Complex, Sadar,Nagpur 440 001 IndiaPh: +91 712 2582923 Fax +91 712 2583522Email: tsrawal@tsrawal.com
Dr. Tejinder Singh Rawal
Chartered Accountant
tsrawal@tsrawal.com
The Right to Information Act, passed recently is a milestone in India’s progress as the biggest democracy in the world. The law recognises the fact that the right to access the information collected by the Government, and lying in the records of the Government is a fundamental right of the citizens of India. Such information is collected by public servants for public good, using public money and the new law recognises the fact that the public has every right to know what lies buried within the red tape. The right is no less than the citizens’ fundamental right.
India enjoys the dubious distinction of being one of the most corrupt countries in the world, and this law may be considered the first major step in the direction of making the working of the Government more transparent, and accountable to the real power: the common man.
The Object: The purpose of the Act, as stated in the preamble is “to provide for setting out the practical regime of right to information for people to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and for matters connected therewith or incidental thereto.”
Freedom of Information Act, 2002 repealed: The Act replaces the Freedom of Information Act(FOI Act), which was passed in 2002 and received the Presidential accent in January, Unfortunately, the FOI Act did not have enough teeth. Moreover, no date of commencement of the FOI Act was provided, as a result the provisions of FOI Act were never implemented, and it remained a non-starter. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the FOI Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law.
The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Officers; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc.
In view of significant changes proposed in the FOI Act, the Government decided to repeal the Freedom of Information Act, 2002. The new Act comes into force 120 days after its enactment, which is quite an achievement, considering the fact that the FOI Act did not specify any date for its own commencement, and thus never saw the light of the day.
The Act declares unequivocally that subject to the provisions of this Act, all citizens shall have the right to information. ( S.3) One far reaching effect of the Act is to reduce the force of the Official Secrets Act, a Act which has existed since 1923, and which should have been scrapped at the time India became independent of the British rule, and established a democratic system of Government.
The Act declares that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Moreover, no court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
Right to information defined: The Act defines ‘right to information’ to mean the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
The definition is vast enough to cover inspecting the work, obtaining the certified copies, samples, and also the digital copies. The terms, ‘information’ and ‘record’ have also been suitably defined.
The Act casts an obligation on Public Authorities to maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. (S. 4(1)(a)
A great deal of spadework shall have to be done before the commencement of the Act: The Act shall commence 120 days after its passing. The Government machinery shall have to work overtime to gear up for the responsibilities the Act places on it in respect of providing the right to information to citizens. It casts an obligation on Public Authorities u/s 4(1)(b) to publish before the commencement of this Act, a great deal of information including the particulars of its organisation, functions and duties, the powers and duties of its officers and employees, the procedure followed in the decision making process, including channels of supervision and accountability, the norms set by it for the discharge of its functions, the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions, a statement of the categories of documents that are held by it or under its control, the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof, the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use, the names, designations and other particulars of the Public Information Officers etc
The Act does not stop at that, and exhorts the public authorities 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 so that the public have minimum resort to the use of this Act to obtain information, and every such information shall be disseminated widely and in such form and manner which is easily accessible and comprehensible to the public.
All such materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Public Information Officer, available free or at such cost of the medium or the print cost price as may be prescribed.
Appointment of Public Information Officers (PIO’s):
The Act provides that every public authority shall, within 180 days of the enactment of this Act, designate as many Public Information Officers as may be necessary to provide information. Such officers are also required to be designated at every sub-divisional or sub-district level. ( S.5)
Procedure for obtaining the Information
Request for obtaining information (S.6): A person who desires to obtain any information shall make a written or electronic request in English or in the official language of the area, to the PIO or the Assistant PIO. The Act even provides that the PIO shall render the assistance for reducing the request in writing the person making the request, where such person is not able to make the request. The person making the request is not required to give the reason for making the request, nor his personal particulars, except the contact information. It the application is made to one pubic authority and the matter falls more clearly within the jurisdiction of another authority, within 5 days such application shall be transferred to the proper authority.
Disposal of request (S.7): The PIO shall, on receipt of request for information, provide the requested information as expeditiously as possible, but in any case, within 30 days, on payment of the prescribed fees or of he cannot so provide, reject the request for reasons specified in the following paragraph. Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. Failing to providing the information within the time specified shall amount to the refusal to provide the information. An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question
Exemption from disclosure of information: The Act has excluded certain items from disclosure, like, information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security, strategic, scientific or economic interest of the State, relation with foreign State; or lead to an incitement to commit an offence; information, which has been expressly forbidden to be disclosed by any court of law or tribunal or the disclosure of which may constitute contempt of court; information, the disclosure of which may result in a breach of privileges of Parliament or the Legislature of a State; information, including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. Provided that such information may be disclosed, if the Public Information Officer is satisfied that a larger public interest warrants the disclosure of such information; 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:
The guiding rule is that an information which cannot be denied to Parliament or Legislature of a State shall not be denied to any person. A public authority may, notwithstanding the exemptions specified above, allow access to information if public interest in disclosure of the information outweighs the harm to the public authority.
Limitation: The Act provides for a limitation of 20 years. Thus, information relating to any occurrence, event or matter which has taken place or occurred ten years before the date on which any request is made shall be provided to the person making the request under that section:
Appeal: Any person who, does not receive a decision within time or is aggrieved by a decision of the PIO, may within 30 days prefer an appeal to such officer who is senior in rank to the PIO. The second appeal lies to the Information Commission. In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the public authority which denied the request. An appeal shall be disposed of within 30 days or within such extended period not exceeding a total of 45 days from the date of filing thereof ,for reasons to be recorded in writing. An appeal against the decision of the Central Information Commission shall lie in the High Court on any point of fact and law.
Penalties provisions watered down: The original draft proposed that any Public Information Officer who is in default shall be liable on conviction to fine which may extend to rupees twenty-five thousand or a term of imprisonment which may extend to five years, or with both. However the provision of imprisonment has been removed and instead the Act now provides for a departmental proceeding against the erring officer.
Intelligence and security organisations excluded: The Act shall not apply to the intelligence and security organisations specified in the Second Schedule. Provided that the information pertaining to the allegations of corruption, and human rights violations shall not be excluded under this provision..
Only citizens have the right to information: The Act declares that ‘all citizens shall have the right to information’. This means incorporated bodies, like limited companies, trusts and other institutions shall not have any right to information under the Act. Moreover, non-citizens, which would also include foreign nationals living in India, would also not be entitled to information under the Act.
State Authorities also covered: The original draft of the bill applied it only to the public authorities belonging to the Central Government. Perhaps they thought it more expedient to leave the State Governments make their own respective laws in respect of the right of information of the citizens in respect of the public authorities belonging to the States. However the law as passed has been extended to State authorities also. The non-Governmental organizations substantially funded, directly or indirectly, by the public funds also fall within the ambit of this Bill
It means that States, like Maharashtra, Tamilnadu, Karnataka, Goa, Jammu Kashmir, which have already enacted similar laws in respect of right of information from State authorities shall now have to scrap such laws.
Dr. Tejinder Singh RawalM.Com, MA( Economics and Public Administration), LLB, FCA, ISA, CISA, CISM, PhDChartered AccountantE 13, Anjuman Complex, Sadar,Nagpur 440 001 IndiaPh: +91 712 2582923 Fax +91 712 2583522Email: tsrawal@tsrawal.com
posted by Dr. Tejinder Singh Rawal at 3:32 am
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