Critical Analysis of Right to Information Act, 2005

Right to Information Act, 2005 (RTI Act, 2005) was enacted in India in replacement of Freedom of Information Act, 2002. It was enacted on the grounds of fundamental rights of citizens of India where under Article 19 of the Constitution of India, 1950, Right to Freedom of Speech and Expression is mentioned. Therefore, the right to information is considered an implied fundamental right of the citizens.

This act provides the right to information for citizens to legally help them in accessing the information in the control of ‘public authorities. This ensures accountability and transparency in the working of public authorities. It is also responsible for forming and setting procedures related to the work of the Central Information Commission (CIC) and State Information Commission (SIC) in its ambit. (1).

Objectives of the RTI Act, 2005

The most basic objective of the RTI Act is to make democracy work in real sense for the people. When the citizen will be more informed about the working of the government and the ‘public authorities’, the accountability of government to govern efficiently will increase. (2). The extent to which the public authorities have to disclose in the RTI subjected to certain exceptions are-

  • Disclosure of the organization, functions and power of organization and its employees and organization structure.
  • Financial information of Public Authorities.
  • Budget allocation of its agencies
  • Important decisions related to
  • Take Suo moto cognizance of publishing necessary information under section 4(1)(b) at regular intervals to the public through all possible means of communication.

How does the active approach fare in providing information to citizens?

Section 6 of the RTI Act talks about the procedure laid down to request the necessary information which is:

  1. A request mentioning the particulars of the information shall be made in English, Hindi or the official language of the area where the application is made to Central/State Public Information Officer or Centre/State Assistant Public Information Officer.
  2. The request has to be reverted to the person within 30 days with the decision and within 48 hours if the request amounts to the concerns regarding the life and liberty of a person. (RTI Act, Section 7(1))
  3. In case of rejection of the request, the person should be communicated with the reason of rejection and information about redressal for the same i.e. about the appeal and its particulars.
  4. Such appellate authorities go to CIC or SIC as the case may be and the commission constitutes a chief information Commissioner and up to 10 information commissioners. (3)

Exceptions of Disclosure under RTI Act, 2005

Section 8 of the RTI Act, 2005 deals with exceptions from the disclosure of information which are:

  • Against the sovereignty and integrity, security, scientific and economic interests of India.
  • Forbidden by the judiciary and may result in contempt of court.
  • Likely to cause a breach of privilege of Parliament or State Legislature.
  • Related to the third party and cannot be given without their consent.

Any other information which might create a problem for the third party, or the executive body of the country. However, in every disclosure, the public interest is evaluated and if it outweighs the harms of protected interests then it may be disclosed.

Right to Information: A Fundamental Right

RTI Act came in existence because of the right to information being a part of freedom of speech and expression which is a fundamental right. However, the right to information has become a fundamental right in itself instead of being an implied version of a fundamental right. in the Supreme Court, the Judges has favoured citizen’s Right to Know overtime. (4)  In the Judgement of State of Uttar Pradesh V Raj Narain (A.I.R 1975 SC 865), it was stated that despite any law which prevents disclosure of information of ‘Public Authorities’ may be overridden provided that the citizen’s interest or the public interest prevails over keeping the document Secret.

In the landmark judgement of the case Mr Justice RN Mishra Rtd v CBI (July 1, 2011), it was held that the exemptions mentioned under the act are adequate and are made in light of national security of the nation. Therefore, the right to information of citizens is a fundamental right while keeping in mind the necessary exemptions. (5) when it comes to elections and election campaigns, an instrument like RTI helps a lot in ensuring transparency. As the same is said in the landmark judgment of the Supreme Court in the case Union of India v Democratic Reforms and Anr. (2002 SCC 294) that because the election candidates offer themselves for public services, the public needs to know about the candidates and their assets. 

The critical analysis

As mentioned above, the need for the act was to establish transparency in the government system and to keep a check on practices that might include Corruption in it. However, because of the ambiguity in the act and lack of clarity in terminologies, it has become an easy pass for different public authorities to work freely without disclosing any information.

The critical analyses of the act are as follows-

The failure of spreading awareness

The biggest challenge that the act faces is when it comes to spreading awareness about the Act to the citizens of India. It is mentioned under Section 26 of the Act that necessary education programs and awareness programs shall be instituted in the disadvantageous communities and also Central/State Public Information Officers shall be provided training materials. However, it was very surprising to see that in a survey by the government, only 15% of the people were aware of the act. Out of these 15% people as well, source of awareness for most of the people was either mass media or word of mouth only (6). Therefore, it will be safe to say that none or negligible efforts are seen by the authorities to spread awareness about the act in the country is taken as a whole.

Inadequate time limit

According to the act, the Information Commission is supposed to acknowledge the request of the information within 30 days (or 48 hours as the case may be) but according to a study, more than 50% of citizens who asked for information received it after 30 days. (7)

Life at the stake of RTI activists and users

India is run by bureaucrats and it is an obvious fact that the information which is asked for is mostly the one which is not published anywhere and has the potential of exposing potential stakeholders. Also, there has not been any step taken by the government for the safety of RTI activists who have a fundamental right to raise their voice for the right and yet have to face death. According to a data, 53 attacks were registered against RTI Activists including 9 of murder along with many other cases which were not reported in the time phase of 8 years after the implementation of the act(8). Other than the activists, a study by Commonwealth Human Rights Initiative suggests that the country has seen numerous cases of attacks on RTI users after the implementation of the act in the year 2005 where Gujarat and Maharashtra topped in the rank of most no. of cases. (9)

Failure of the doctrine of public interests over disclosure in case of third-party involvement

Section 11 of the act says that in the case of information which involves any third party as well, the final call or discretion will be taken of the third party. In most of the cases, these third parties deny to disclose the information for the reason being it affects their privacy and the Public Information Officer goes with the decision instead of cross-checking it with the exemptions mentioned under the act. This leads to the failure of doctrine where the need of disclosure by the court of law and the nodal departments is evaluated based on public benefit and the need of disclosure and if the public benefits overweigh the need of disclosure, then the information is disclosed.

The inappropriate use of the term ‘Substantially Financed’

The term substantially financed has been used under the definition of ‘Public Authority’ with no fixed scope and extent as to what is meant by the term substantially financed. In the modern time of liberation where the growing interests of government and private players to enter into a public-private partnership (PPP) because of what it brings to the table; PPPs are still not a part of RTI Act and consequently, it demands a need of clarity in the definition of Public Authority as to what percentage of the total capital of the venture should be in hands of government to consider it as Public Authority.

The flaw in the definition of ‘public authority’-

According to the act, the public authority is the one which is constituted by legal provisions like by Constitution, by law made by Parliament/State Legislature or by any order made by appropriate Government. The act also mandates the authority to include body owned, controlled or substantially financed directly or indirectly with the funds provided by the appropriate Government. Such bodies can be NGOs’ as well.

The act further defines the scope of the term appropriate government with relation to Public Authority. It is said to be anybody or institution which is a public authority in terms of ownership and the flow of funds is provided by the central government, UTs, or the State Governments.

However, the act has failed to define as to what will be the scope and extent of control, ownership and a body being substantially financed to call it a Public Authority. Because of this, there have been cases where higher authorities have rejected several authorities to be considered as a public authority where it could be established that they were public authorities such as:

Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)

PM CARES Fund is a dedicated national fund made to deal with distress situations like COVID-19 Pandemic. It is aimed to provide financial relief to the affected people in distress situations. It is also responsible for making new structures like hospitals etc.

The Prime Minister is the ex-officio chairman of the trust and Ministry of Defense, Home Affairs, Ministry of Finance and Government of India is the ex-officio trustees of the Fund.

However, it is peculiar of this fund that it is not considered as Public Authority and therefore, it does not come in the ambit of the RTI Act, 2005 which questions its working and anti-corruption practices. There has not been any statement by the Prime Minister’s Office (PMO) regarding the allocation of the fund or anything.

To understand this, it is important to correlate the essentials of Public Authority and the PM CARES Fund. The structure of PM CARES Fund shows that it is substantially owned and controlled by Government and in the case of National Stock Exchange of India Limited v Central Information Commission, it was held that all the essentials of the definition of public authority are distinct any applicability of any one essential will also amount to the body or institution to be called as Public Authority. Therefore, it will be safe to say that as PM CARES Fund is owned and controlled by the government, it can be called as Public Authority under RTI Act, 2005. (10)

Conclusion

RTI Act, 2005 is one of the most powerful weapons that the citizens of India currently have to make government system accountable. If the challenges faced by the act can be eradicated where more clarity could be provided to certain definitions in the act and the interpretation by Courts of law, this act can be used to enforce its preamble in the true sense which aims for making citizens informed and bring transparency in the system. for this, the public also needs to be vigilant so that they can actively question the otherwise free flow of funds and working of political parties amongst other activities.

Shivam Goel from Institute of Law, Nirma University, Ahmedabad

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