Towards participatory democracy

Amitabha Bhattacharyya
The Statesman, 25 November

The Right to Information Act has been in operation for a couple of years now. One of the fundamental requirements of successful implementation of the Act is the existence of a high degree of public awareness about the legislation. Unless citizens are aware that the Act has furnished them with a weapon to expose the proverbial skeletons in the cupboard, it will continue to exist like many another piece of well-intended but sterile addition to the statutes.

The right to information is defined by the Act as follows: (1) Right to inspect works, documents, records; (2) right to take notes, extracts or certified copies of documents or records; (3) right to take certified samples of material; (4) right to obtain 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.

Secondly, information means any material in any form, including records, documents, memos, e-mails, opinions, advices, Press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. While the concept of “public authority” does not require any elaboration as such, it includes even NGOs financed by government funds, directly or indirectly.

In terms of the Act, any public authority is required to have a public information officer to whom a citizen can make a request for providing information pertaining to the operation of the said organisation. Such requests should be accompanied by a fee of Rs 10 either in cash or by demand draft or banker’s cheque, payable to the accounts officer of the public authority. In addition, the applicant will be required to pay a fee to the public authority at the following rates: (a) Rs 2 for each page (in A-4 or A-3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost or price for samples or models; and (d) for inspection of records, no fee for the first hour; and a fee of Rs 5 for each subsequent hour (or, fraction thereof) thereafter.

However, the RTI Act exempts certain areas from general disclosure in public interest: (a) Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (d) 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; and (e) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.

On receipt of a request for information, the public information officer (PIO) is required to furnish it as expeditiously as possible and in any case within 30 days from the date of receipt of the request. In case the public information officer rejects the request for any of the reasons specified in the Act under “Exemption from Disclosure of Information”, the applicant is required to be advised accordingly within the above timeframe. If the PIO fails to give a decision on the request within the period specified, he shall be deemed to have refused the request.

If a person does not get an answer in time, there is a provision for appeal. A public sector organisation is required to appoint an officer designated as appellate authority for the purpose of receiving such appeals. The Act provides a timeframe of a maximum of 30 days for the disposal of such appeals.

If the first appeal fails to yield any results, the applicant has a further right of appeal to the chief information commissioner, office of the Central Information Commission at August Kranti Bhavan, Bhikaji Cama Place, New Delhi.

One of the most notable features of the Act is the provision whereby the chief information commissioner is empowered to award an appropriate financial penalty on the delinquent authority of the organisation in question.

Here are a couple of instances of the operation of the Act:

The Supreme Court was approached for various data concerning the awarding of a death sentence. The initial response of the Central Public Information Officer of the Supreme Court was that no subject-wise record was maintained in the SC registry. On submission of the first appeal by the applicant, it was held by the first appellate authority that there must be a record with the SC where the full name and address of the person who was awarded the death sentence would be available and the record would also contain the names of the counsel as also duration of hearing.

It was thereupon stated by the CPIO that the compilation of the data would require voluminous paper work and there was no sufficient staff strength for the purpose. Thereupon, a further appeal was preferred and the appellate authority decided as follows:

(i) That how people are awarded death sentence is something which the common man must know. (ii) Death sentence is awarded only in the rarest of rare cases. Consequently, the importance of information ought to be seen vis-a-vis the amount of work involved. (iii) The three bodies, that is the executive, judiciary and the legislature are supposed to be equal; but in truth, the legislature, being the representative of the people, is supreme. The courts are to follow the law and not lay down the law, the only exception being where they find something violative of the Constitution or of fundamental rights. When the representative of the popular will confers a specific right to people, the judiciary ought not to deny such right on the excuse of there being shortage of manpower. (Shri Manish Kumar Khanna vs Supreme Court of India).

In the second instance, the Union Public Service Commission declined to disclose the proceedings of the departmental promotion committee on the ground of confidentiality. On a second appeal, the chief information commissioner directed the UPSC to submit a statement within 10 days specifying the reasons why the information must be kept sealed and, by keeping this information confidential, how does the protected interest outweigh the public interest in the context of S 8(2) of the RTI Act. (Ms Jyoti Legha vs Union Public Service Commission)

The RTI Act augurs well for the future of participatory democracy in the country. It has posed the most timely challenge to the vintage Official Secrets Act 1923, which is the last resort of a complacent bureaucracy.

(The author, working in a public sector undertaking, is a freelance contributor)