Indian Right to Information Act

The Right to Information Act, 2005 provides a mechanism to the ordinary Indian citizen to access information relating to public authorities. The Act creates an obligation on part of the Government to provide information to the citizens of India. It sets out a system, including Public Information Officers (PIOs) and Central and State Information Commissions who must regulate this flow of information. The Commissions under s.18, also have the power to hear grievances of the people with respect to the procurement of information. It also sets a time-limit within which such applications must be answered. Further, it provides certain exemptions to the citizen’s right to information.

The Act defines ‘information’ as any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data materials held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force. [2] Thus the definition of information is wide, and pertains to information with public authority, about the State and its functionaries or about any private authority that the public authority is authorized to access. Clearly, with such knowledge, great power is placed in the citizens’ hands and it becomes difficult for the Government to take excesses. However, with great power comes great responsibility and citizens must use this legislation with caution so as not to misuse its beneficial provisions.

This paper seeks to look at the pros and cons of access to information, with emphasis on the Right to Information Act, 2005. In furtherance of this objective, the paper has been divided into two parts: the first deals with the pros and cons of a system that provides access to information. It also looks at the barriers that exist to the free flow of information in India. The second part studies the Act itself, with emphasis on how the Act deals with the cons of proving information. In order to understand the effectiveness of the RTI, the paper looks at the exceptions provided in the act and at the way it has been administered.

Access to Information—Issues

Pros of a system of governance that provides access to information

There are a number of reasons for a legal system that provides for access to information. First and foremost, access to information is central to the idea of a democratic society. Governments have a vast amount of power, and power tends to corrupt. In a democratic society, the government should be accountable to the citizens and this is not possible if the citizens do not have information about the functioning of the government. The actions and policies of a government affect the economic interests and personal liberty of individuals that make up a nation. The government thus, should use this vast power to act for the public good and not for the private gain of the few individuals who hold such power. Therefore an open government allows the people keep a check on the abuse and misuse of power by the Government. [3]

Other than working towards governmental accountability, public disclosure of information furthers democracy by facilitating people’s participation. It enables interested citizens to contribute more effectively to the debate on important questions of government policy. [4] Moreover, if the people are to choose their government every five years, they must have information about the performance of the government. Giving the individual access to government information ensures that people will make an informed choice when they select those individuals who will make policy decisions about their lives. [5]

If the government can be held accountable by the citizens, or if people can participate effectively, it leads to fairness in the administrative decision-making process. [6]

Before the RTI was passed, the Supreme Court held, in a wide variety of cases that the right to information is a fundamental right. A study of these cases exemplifies the benefits of a system which provides access to information. In Indian Express Newspaper (Bom) Pvt. Ltd. v. Union of India [7] , the Supreme Court discussed the importance of freedom of press (which is integral to freedom of speech and expression) and stated that it included the freedom of information of citizens. The Court opined that the constitutional guarantees of freedom of speech and press are not for the benefit of the press so much as for the benefit of the people. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. The author submits that without freedom of information, the press will not be able to perform its duty of acquiring and disseminating correct and logically true facts to the common man. Indeed, in order to form opinions that a citizen can express, it becomes vital that he have information on that subject.

In Union of India v. Association of Democratic Reforms [8] , the Supreme Court upheld the voter’s right to know about the candidates contesting elections, since it believed that adult franchise and general elections are the minimum requirement of the Indian participative democracy. The Court stated that, “…the little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.”

Similarly, the right to information is implicit in Article 21 of the Constitution. In D.K. Basu v. State of West Bengal [9] , the Court laid down guidelines to protect the fundamental rights of arrested persons. Among other things this included his right to be informed of who is arresting and interrogating him and why and also his right to have a friend or relative informed of the arrest, as soon as is practicable.

These cases illustrate how access to information in a society results in a healthier democracy and improved participation. The author submits that this leads to improved decision making and in effect, better allocation of the society’s resources which results in greater economic and social well-being of the people.

Barriers to Information

In order to understand the need for (and also the faults of) providing access to information, one must first study the barriers that exist to the free flow of information in India.

The Official Secrets Act, 1923, originally enacted during the time of the British to protect against spying, now stands as a barrier to the flow of information from the Government to the citizens. Section 5 of this Act has a wide ambit. It virtually prohibits the disclosure of any information which the government considers to be confidential and makes it a punishable offence to violate these rules.

The All India Services (Conduct Rules), 1968, through s.9, which provides that civil servants shall not divulge official information, restrict the disclosure of official information.

S.123 and s.124 of the Indian Evidence Act, 1872 have placed restrictions on using official information as evidence. S.123 prohibits the use of unpublished official records without appropriate permission while s.124 disallows the compelling of an officer to disclose communications made to him in official confidence. In an effort to circumvent this privilege, courts adopted the practice of inspecting the documents in-camera and if it was found that their disclosure might adversely affect public interest, the claim for non-disclosure was upheld. [10]

Lastly, certain acts contain provisions against the disclosure of information. For example, the Atomic Energy Act, 1962 places severe restrictions on the releasing of information about atomic plants. Sathe contends that these restrictions are so wide that the population surrounding a reactor cannot ask for what hazards it must take precautions against. [11]

These provisions prevent the common man from accessing information about the Government. Designed to enable the state to protect its secrets, they can be used to hide inefficiencies and errors on part of the state from public scrutiny and accountability. In such a scenario, a vast amount of information may be shielded from the public.

Cons of Providing Information

However, one must remember that these barriers exist for a reason. In actual practice, the unrestrained revelation of information can conflict with other public interests such as efficient operations of the Government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. [12] The costs of compiling and providing information are huge. Moreover, certain operations of the Government, such as defense, cannot always be open to public scrutiny.

Does the citizen’s right to information include the disclosure of confidential government documents. For example, should a sensitive document containing details about India’s nuclear projects be made available to the public. Obviously there is public interest in its disclosure since the taxpayer’s money is being utilized for it and the people have a right to know how it is being done. However, in the interest of the nation’s security, would it not be safer to keep such details confidential? Bhagwati J. very aptly termed this question as a conflict between public interest in the fair administration of justice and public interest in the non-disclosure of documents. [13]

The Right to Information can collide with the Right to Privacy. The protection of privacy principle holds that that individuals should, generally speaking, have some control over the use made by others, especially government agencies, of information concerning themselves. Thus, when an applicant seeks access to government records that contain personal information about certain identifiable individuals, these individual’s right to privacy conflicts with the applicant’s right to information. [14]

A question that arises is whether access to information can be extended to accessing information from private organizations. If yes, then where does one draw the line between invasion of privacy and the right to information. With the passing of the RTI, in India private organizations too can be scrutinized via s.2(f) which defines information as including information relating to any private body which is accessible by a public authority under any other law for the time being in force. Further, information can also be sought from a non-Governmental body if it is financed substantially by the Government. [15] However, in order to protect the privacy of such bodies, the Act treats them like any other third party and object to the supply of information. [16]

Thus, one may conclude that unlimited access to information cannot be provided. It should be limited, at least, for the following reasons:

the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

the protection of the individual and of privacy, and

the protection of commercial and industrial secrecy.

In such cases, disclosure of information harms and does not further public interest.

Right to Information Act

The obvious advantage of the legislation is that it provides a system through which people can obtain information. It is necessary to cast a specific duty on public bodies to provide information, and this can only be done through a legislation that lays down these duties and recognizes the right of the citizen. [17] However, the manner in which the Act deals with the disadvantages of providing information shows whether the Act truly furthers public interest or not.

Dealing with the Cons

The Act, through s.8, attempts to deal with some of the problems that arise out of providing information. A perusal of the section shows that access to information may be denied if the disclosure of the information sought for affects the sovereignty and integrity of the nation, or affects foreign relations with another country, or has been expressly forbidden by a court or Tribunal, or causes breach or privilege of State Legislatures or the Parliament or which harms the competitive position of a third party, or impedes the process of an investigation or invades the privacy of an individual or has been obtained in a fiduciary capacity.

Thus, the Act provides a large range of exemptions. These exemptions can be used to restrict the flow of sensitive information, but can also be misused to restrict the flow of information if it serves the interest of the public authority. As a result, in order to understand whether the exemptions work for the benefit of or to the detriment of the Right to Information, one must study the manner in which they are used by the PIOs and the Commission. A few cases handled by the Commission are given below:

Information regarding a plan of and building restrictions around an Indian Air Force Station in Pune was exempted from disclosure by the Commission as it could prejudicially affect national security. [18]

A request seeking for copies of the correspondence between the Ministry of External Affairs and the Governments of the USSR over the disappearance of Netaji Subhash Chandra Bose was denied as the disclosure of such information could affect relations with a foreign state. However, giving due consideration to the applicant’s right to information, the Commission directed that the said correspondence be examined by experts and if the experts are of the opinion that it would affect relations with the Government of Russia, then the issue be settled only after a reference has been made to the Government of Russia. [19]

Where the applicant sought the names and addresses of the buyers and sellers in the cases of transactions of securities with the Reserve Bank of India, the information was denied on the ground that such information is market sensitive and its disclosure would prejudicially affect the RBI’s competitive position and also the market in government securities. Hence, it was furnished to the appellant without disclosing the names of individual buyers and sellers. [20]

It must be noted that the term ‘personal information’ does not mean information relating to the information seeker, but about a third party. If one were to seek information about his own case the question of invasion of privacy does not arise. Therefore, the Commission directed the release of the information sought by the appellant when it concerned his own company. [21]

These cases show that where ever possible, the Commission has made attempts to supply as much information as it can, without affecting protected interests, to the applicants. However, notwithstanding anything under the Official Secrets Act or any of the exemptions in s.8(1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. [22] For example, human rights violation and corruption-related information falls within the domain of this test and must be disclosed, even if attracts the exemptions in s.8(1)(a). [23] In another case, where the appellant, who was unfairly wronged in an inquiry, was allowed to obtain the names of those who participated in the decision-making despite the exemption in s.8(1)(g) since such blatant unfairness raised questions of good governance. [24] Thus, the exceptions become part of the advantages to access to information in India.

Misuse of the act

The disadvantages of the act, however, are to be found often enough in its use by the applicants for information. While the Act, via s.19, provides for compensation to the complainant in case of any loss or other detriment suffered, it does not contain any provision for imposition of penalty in case the applicant has attempted to misuse the Act.

Further, there being no provision in the Act to recover from information seekers the larger costs of compiling and disclosing the information, certain people frequently and repeatedly put an application under this act. [25] There are some who are genuinely fighting for a cause, and there are

others who do this in an attempt to harass public authorities. Often, such applications are quite frivolous. In Shri R.P. Azad v. Development Commissioner (Handicrafts) [26] , the Commission cautioned the complainant against using the RTI, as the cost of servicing frivolous complaints was huge and he had already obtained a huge amount of information relating to his grievances, through 24 applications.

Often, applicants attempt to misuse the beneficial provisions of the RTI for personal gain, rather than public gain. As an example, in one application, the applicant, who was under suspension and had suffered a major penalty, had asked for voluminous information, including explanations, from his employer about their operations. The Commission held that his intention was to further his own personal gain and to harass the authorities and therefore dismissed his application for even more information. [27]

Conclusion

All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.

—Edmund Bruke

A system that provides access to information has the advantage of furthering democracy by increasing people’s participation in the decision-making process, allowing them to keep a check on Governmental excesses and enables the better protection of human rights. Given the barriers to availability of information in India, it would be very hard to obtain any information without such a system. However, unrestrained flow of information on the other hand, acts against public interest since it may endanger public and national security, and even impede the efficient working of the Government. Moreover, questions arise when one considers the conflict between the right to privacy and the right to information or the need to protect trade secrets. The system for accessing information is provided for in the Right to Information Act, 2005. The Act lays down a system of obtaining information from public authorities. It deals with the disadvantages of providing information cautiously, and such provisions have been applied by authorities effectively.

However, with the people’s right to obtain information comes the duty to use this information judicially and wisely. The Act should not be used as a means to harass the authorities or to further one’s personal gain instead of public gain. As with the Government, the citizens of a country too need to be responsible and conduct themselves with dignity. A system proving access to information gives society the chance to further the aim of democracy and lead to an open and fair society.