Right to Information

THE RIGHT TO INFORMATION AND PREVENTION OF CORRUPTION*

Chief Guest of the day, Sri G. Dakshinamurthy, Director, KILPAR, Bangalore, President of the Inaugural session of the seminar, Prof. H. S. Sheshadri, Managing Trustee, Vidyodaya Foundation Trust, Tumkur, esteemed Principal of the Vidyodaya Law College, Prof. K. Venkatachalapathi Swamy, distinguished resource persons, delegates, invitees, students, members of the press and media, ladies and gentlemen. It gives me immense pleasure to inaugurate and deliver the key note address in this One Day State Level Seminar on The Right to Information and Prevention of Corruption organised jointly by KILPAR,Bangalore and Vidyodaya Law College, Tumkur.

India is a young democracy experimenting with variety of democratic principles and values. It is becoming a more disturbed society in the recent past raising certain fundamental questions. Are we entitled to call ourselves sovereign, when we have scant regard to materialize our constitutional ideals, which we have set for ourselves?  Aren’t we becoming more and more lethargic to bother about our own governmental functioning?  Aren’t we aware of the fact that bureaucrats are frequently   lured by the fishes and loaves of their offices and by now, corruption has become a habit hard to kick? Do we really bother to ask ourselves the question, whether the government owes us a better deal?  Is corruption a preventable problem?  Has ignorance become our bliss? If yes, is the game all over, or can we still swing our way by oxygenating the constitution? These are a few questions among many that lurk in the minds of conscious citizenry.

It is after years of turmoil and labour, we are gifted with a panacea in the form of Right to Information Act, 2005, to redress the grievances arising from the above questions. The enactment is instilling hope of having a dirt free society. The purpose of the enactment will be served only when the people are enlightened about it. The answers to the above gamut of problems lie in the standalone remedy namely, education; unless the layman is informed of his discretion to exercise his right to seek information, the weeds of mendacity, corruption and inefficiency cannot be uprooted. Hence, educating the public on the utility of the Act is   the primary duty. It becomes the responsibility of the persons belonging to the faculty of the law to take the rest of the population and walk with them as their shadows at least to a distance so as to strengthen them by educating about the Right to Information Act, 2005. The fruits of Act can only be achieved only by mass participation.

The Right to Information is a massive weapon in the hands of the citizens of a democratic set-up; it is a magnifying glass which makes the governance transparent. Most of us in a democracy are of the belief that our responsibility ends with the casting of a vote during the elections, but it is not so. For the proper functioning of a democracy the citizens should be vigilant; they should have right to access information, they should exercise such right to access information and thus comes the transparency and accountability in the working of the public authorities, which brings along with it ‘the efficiency’ in the working of the public authorities.

The Right to Information Act, 2005, sets out “a practical regime of right to information for citizens 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”. But, one cannot expect transparency and accountability in the working of every public authority by merely guaranteeing a right to access information; which is only possible when such right is exercised by the citizens. And, the citizens can only exercise such a right, only when they are aware of their right to have access to information, the procedure for obtaining such information, the recourse available when such information is denied and other related issues.

In a nation where substantial number of the population is not aware of at least the fundamental rights guaranteed by the Constitution, it becomes very indispensable to make the people aware of at least this right, which is also instrumental in safeguarding their many rights by bringing about transparency and accountability in the working of public authorities.

Right to Information: Concept

Information which is either held by or under the control of any public authority can be accessed. Work, documents, and records regarding the information sought can be inspected. Notes, extracts or certified copies of documents or records pertaining to the information can be taken. Certified samples of the material can also be taken. In case, if the information is stored in a computer or other device, such information can be obtained in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode, or printouts.

Public authority means any authority or institution established or constituted under the constitution; Authority or institution established or constituted under any law made by the Parliament; Authority or institution established or constituted under any law made by the State Legislature; Authority or institution established or constituted under the notification or order of the Government; A body owned, controlled or substantially financed by the Government; and A non-governmental organization which is substantially financed by the funds provided by the Government. In The CPIO, Supreme Court of India, Tilak Marg, New Delhi Versus Subhash Chandra Agarwal & Another[1] the High Court of Delhi while answering the question whether the CJI is a public authority and whether the CPIO, of the Supreme Court of India, is different from the office of the CJI and if so, whether the Act covers the office of the CJI, said that the CJI is a public authority under the Right to Information Act and the CJI holds the information pertaining to asset declarations in his capacity as Chief Justice; that office is a “public authority” under the Act and is covered by its provisions.

There has been some controversy regarding file notings. Officials creating FAQs for their offices played mischief and excluded file notings from the domain of information to be provided. In Satyapal v. TCIL,[2] Central Information Commission held: “no file would be complete without note sheets having ‘file notings’. In other words, note sheets containing ‘file notings’ are an integral part of a file. Sometime notings are made on the main file also, which obviously would be a part of the file itself. In terms of S.2(i), a record includes a file and in terms of S2(j) right to information extends to accessibility to a record. Thus a combined reading of Ss 2(f), (i) & (j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part.”  “Therefore, we are of the firm view that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in ‘file notings’ unless the same relates to matters covered under S.8 of the Act. Thus the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that ‘file notings’ are exempt is misplaced.” In Pyare Lal v. The Ministry of Railway, the Commission noted with serious concern that some public authorities were denying request for inspection of file notings and supply copies thereof to the applicants despite the fact that the Act does not exempt file notings from disclosure. The reason they were quoting for non-disclosure of “file notings” was the information posted on the DPOT website www.righttoinformation.gov.in to the effect that ‘information’ did not include file notings. Thus the DOPT website is creating a lot of unnecessary and avoidable confusion in the minds of public authorities. The Commission had written to the DOPT on 26th Feb., 27th March, 8th May & 26th May, 2006 for removing the restriction on ‘file notings’ from their website. The DPOT regrettably had not acted on the issue so far. The Commission hereby directs the Secretary… u/S.19(8) to remove the instruction…failing which the Commission shall be constrained to proceed against the Ministry of Personnel.”

Persons Entitled for Information

All citizens of India have a right to seek information from a public authority. Age, gender, religion, caste, or place of residence is no bar for seeking information from a public authority.

Accessible Information

Only information, which is either held by or under the control of any public authority can be accessed. Information may be contained in any form. Any form means that it may be in the form of records, documents, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form like diskettes, floppies, tapes, video cassettes, etc. Information may be related to a private body, which can be accessed by a public authority.

Information that cannot be Accessed

Following information cannot be accessed:

1. Information, disclosure of which would prejudicially affect the sovereignty  and integrity of India, the security, strategic, scientific, economic interests, of the State, relation with foreign state or lead to incitement of an office;

2. 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;

3. Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

4. 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 the larger public interest warrants the disclosure of such information;

5. 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;

6. Information received in confidence from foreign government ;

7. 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;

8. Information which would impede the process of investigation or apprehension or prosecution of offenders;

9.Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers.

Judges Asset

It is no doubt that all public authorities are required to disclose information under this Act. However, the Supreme Court of India war averse to disclose information regarding the assets of judges. In The CPIO, Supreme Court of India, Tilak Marg, New Delhi Versus Subhash Chandra Agarwal & Another[3] the High Court of Delhi held that the second part of the respondent’s application, relating to declaration of assets by the Supreme Court judges, is “information” within the meaning of the expression, under Section 2 (f) of the Act. The point is answered accordingly; the information pertaining to declarations given, to the CJI and the contents of such declaration are “information” and subject to the provisions of the Right to Information Act. Regarding the petitioners’ argument about the CJI holding asset declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the manner sought by the applicant) is insubstantial, the Court held that the CJI does not hold such declarations in a fiduciary capacity or relationship. It also held that the contents of asset declarations, pursuant to the 1997 resolution – and the 1999 Conference resolution- are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); they are not otherwise subject to disclosure. As far as the information sought by the applicant in this case is concerned, (i.e. whether the declarations were made pursuant to the 1997 resolution) the procedure under Section 8(1)(j) is inapplicable. On the question whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their disclosure, unworkable, the Delhi High Court ruled that these are not insurmountable obstacles; the CJI, if he deems it appropriate, may in consultation with the Supreme Court judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declarations to be made. The forms evolved, as well as the procedures followed in the United States, - including the redaction norms- under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007, which amends the Ethics in Government Act of 1978 to: (1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports may be considered.

Commenting on the attitude of the highest court in the matter Hon'ble Mr. Justice Shylendra Kumar has said, "It is a matter of utmost paradox that the chief justice of the most powerful Supreme Court in the world should be expressing apprehension for the safety and security of the judges of the superior courts in this country by saying that revealing the particulars of assets of the judges and throwing open the information to the public domain may result in harassment to judges and in turn prevent the judges from performing their duties without fear or favour. He has also expressed his fear that this may impair the independence of judges and affect their functioning."[4]

Duties of Public Information Officer

Every officer of the concerned Public Authority, who receives the application for information, has to give an acknowledgement of receipt of the application. The Public Information Officer has to inform the person who has filed an application seeking information as to whether he holds that information or not. If he holds the information sought for, then he has to communicate it to the person who has applied for such information within 30days of the application. In case where the information sought for concerns the life or liberty of a person, he should provide such information within forty-eight hours of the receipt of the request. Five days shall be added to the above response time, in case the application for information is given to assistant public information officer. If the interests of the third party are involved then time limit will be forty days. If the Public Information Officer fails to provide the information within the specified period then it is deemed to be a refusal, against which an appeal can be filed. If it does not hold the information, then it should transfer the application to the public authority, which holds such information, within five days. In case the request has been rejected, the Public Information Officer has to communicate the reasons for such rejection to the person who has requested for information; the period within which an appeal against such rejection may be preferred; the particulars of the appellate authority.

Procedure for Obtaining Information

Application may be either in Form-A (See appendix below) or in any other format as far as possible containing the particulars specified under the format to the State Public Information Officer or State Assistant Public Information Officer as the case may be. Every public authority has an obligation to designate as many officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. Application can be either in writing or through e-mail or any other means of electronic communication. Language should be English, Hindi or the official language of the region where the application is being filed; for example: a). If the application is being filed in Karnataka, it should be either in English, Hindi or Kannada (as Kannada is the official language of Karnataka).b). If the application is being filed in Andhra Pradesh, it should be either in English, Hindi or Telgu (as Telgu is the official language of Andhra Pradesh). Name of the applicant, and address for correspondence should be clearly stated in the application. The information required should be clearly stated in the application. Reason for seeking information need not be stated. The applicant cannot be compelled to state the reasons of any other personal details except those that are necessary for contacting him. Application should be made accompanying the initial fee of Rs.10/- . Application should be addressed to the State Public Information Officer, State Assistant Public Information Officer, Central Public Information Officer or Central Assistant Public Information as the case may be.

Right to information is not available in case of certain organizations:

The Right to Information is not available in case of the following Intelligence and Security Organisations established by the Central Government:

1. Intelligence Bureau;

2. Research and Analysis Wing of the Cabinet Secretariat;

3. Directorate of Revenue Intelligence;

4. Central Economic Intelligence Bureau;

5. Directorate of Enforcement;

6. Narcotics Control Bureau;

7. Aviation Research Centre;

8. Special Frontier Force;

9. Border Security Force;

10. Central Reserve Police Force;

11. Indo- Tibetan Border Police;

12. Central Industrial Security Force;

13. National Security Guards;

14. Assam Rifles;

15. Sashtra Seema Bal;

16. Directorate General of Income Tax(Investigation);

17. National Technical Research Organisation;

18. Financial Intelligence UnitIndia

19. Special Protection Group;

20. Defence Research and Development Organisation;

21. Border Road Development Board;

22. National Security Council, Secretariat.

Similarly, the Act has no application to the Intelligence and Security Organisations established by the State Government.  However, if the application for information relates to the allegations of corruption and human rights violations against the officials of Intelligence and Security Organisations then, such application is maintainable. And in that case the Central Information Commission or the State Information Commission as the case may be, has to approve for the provision of the information sought, and the information if provided, will be made available within forty-five days from the date of the receipt of request.

Fee for Information

The application should accompany an initial fees of Rs.10/-. The fee for supplying the information, under subsection (1) of section 7, is Rs.2/- for each page in respect of matters in A4 size paper. For information disseminated under sub-section (4) of section 4 shall be rupee one per page in respect of matter in A4 size. For providing information under subsection (1) of section 7, in the case of Maps, Plans, Reports, a Partial record or any Technical data or Sample or Models, a reasonable fee is fixed by the State Public Information Officer in each case depending upon the cost of labour and material required to be employed. For inspection of records and documents, no fee for the first hour will be charged. For every subsequent half an hour or fraction thereof, rupees ten will be charged from persons making application along with initial payment of Rs.10/-. For inspection of works a reasonable fee will be fixed by the State Public Information Officer in each case depending upon the cost of labour and material required to be employed apart from initial fees of Rs.10/-. The fees for supplying information in Diskette or Floppy or C.D. (Compact Disc) or in any other Electronic mode shall be Rs.50/-. The fee can be collected in the form of Indian postal order or D.D. or Bankers Cheque or Pay order drawn in favour of the State Public Information Officer or in cash or by remitting it to the Treasury as per Karnataka Financial Code (KFC).

Exemption from the payment of fees

The persons who are of below poverty line are exempted from payment of fees. In case of below poverty line card holders, if the information requested for is within one hundred pages, no fee will be charged. In case, the information sought exceeds one hundred pages, the Public Information Officers may allow inspection of the required documents, charging fee of Rs.2/- for each page in respect of matters in A4 size paper. A person claiming exemption should produce a valid certificate issued by the concerned authority that he/she belongs to the Below Poverty Line category.

Appeal

A person who does not receive a decision within the specified time. A person who is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be. This appeal will be called as the First Appeal. The first appeal has to be filed within thirty days from the expiry of the specified period or from the receipt of the decision by which the person filing an appeal is aggrieved. The appeal should be addressed to the senior officer of the Public Information Officer, who is designated by the Public Authority to try appeals. The appeal should be accompanied by a copy of the order against which the appeal has been filed, and the appeal should specify the name and address of the applicant, the particulars regarding the State Public Information Officer appealed against, the date of receipt of order, the grounds of appeal and the relief sought for. A person who is aggrieved by a decision in the first appeal may prefer a second appeal against the decision in the first appeal. The first appeal has to be filed within ninety days from the date on which the decision in the first appeal. The appeal should be addressed to the Central Information Commission in case the order was passed by the Central Information Officer. The appeal should be addressed to the State Information Commission in case the order was passed by the State Information Officer.

An appeal to the State Information Commission should contain the following: the name and address of the applicant; the particulars regarding the State Public Information Officer appealed against; the  particulars of  the order including number; the grounds of appeal; if the appeal is preferred against deemed refusal, the particulars of the application, including number, date, name and address of the State Public Information Officer to whom the application was made; the relief sought for along with the grounds; verification by the appellant; and any other information which the Commission may deem necessary for deciding the appeal.

Conclusion

RTI Act is a fine piece of legislation aimed at transforming public administration transparent and clean. All the wings of the State should not shy away from their responsibility in making Indian democracy work on the invaluable principles of Truth, Dharma, Nyaya and Neeti. If any organ of the State shy away from their role, the posterity may not excuse such organ. People should be more responsive towards RTI so that the spirit of the legislation becomes a reality. I am grateful to the organisers for giving me this wonderful opportunity to share my few random thoughts on this very important topic this morning. I would conclude with the following statement of a vibrant judge:

It is ... very necessary for the high constitutional functionaries to bear in mind that they should not conduct or act in a manner which can in any way disable them from performing their duties and functions assigned to them. At any rate, so far as the judges are concerned, a judge cannot and should not by his/her conduct and expressions outside the court disable himself/herself from his/her duty to be performed as a judge inside the court.

Thank you.

Dr. J. S. Patil**

* Inaugural and Key Note Address delivered in One Day State Level Seminar on "The Right to Information and Prevention of Corruption" organised by the KILPAR, Bangalore in association with Vidyodaya Law College, Tumkur on March 10, 2011. I acknowledge the research contribution for this address by my LL.M. students Mr. Sarfaraz Kittur and Miss. Sumangala Chakalabbi.

** Vice Chancellor, Karnataka State Law University, Hubli

[1] W.P. (C) 288 of 2009, CDJ 2009 DHC 682

[2] (ICPB/A1/2006) of January 31, 2006

 

[3] W.P. (C) 288 of 2009, CDJ 2009 DHC 682

[4] ‘Reluctance to disclose assets creates impression that judge has something to hide... majority of judges are definitely not reluctant’,  Posted online: Saturday , Aug 22, 2009 at 0323 hrs.

 

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