Governance · Law · Public Policy

Lacunae in the Right to Information Act, 2005

Right to Information Act, 2005 (hereinafter RTI Act) is a law which gives every citizen of India the power to obtain information under the control of a public authority in a purely cost effective and time bound manner. This Act also provides for penalty for any delay in providing the required information. It clearly states that every public authority shall maintain its records which should be duly catalogued and indexed so as to facilitate the access to the same. It asks the public authority to proactively provide the information so that citizens of India have minimum difficulties to approach the concerned authority for the required information. Thus, this law seeks to regulate the actions of the people who govern the society and hence the onus is on the officer to justify why certain information was not provided or disclosed.

RTI Act promotes transparency and accountability in functioning of government institutions which function more effectively and objectively. Furthermore, it gives information to the citizens and thereby enables them to participate in the democratic system. In totality, RTI Act ushers good governance. The law is very comprehensive and is applicable to the government at all levels i.e. Union, State and Local (Panchayats). It even includes NGOs which are financed by the government either directly or indirectly.

Despite of all its merits, RTI Act only confers rights but does not prescribe any duties. There have been demands that certain duties and responsibilities should also be incorporated in the Act. Also no additional resources, which include manpower, were being provided to the Central and the State agencies to implement the Act. There is no provision for to deal with discouraging annoying and vexatious demands which deprive genuine information seekers. There is an additional issue of large number of RTI cases pending at various levels and hence there is a need for reducing pendency of cases at all levels lest the law seems to be ineffective and dead. The government spends a lot of money for disposal of a case and therefore there is also a requirement to evolve a cost effective strategy and capacity building to handle this increased load. The range and scope of exemptions under the Act is narrower. Access to information under the RTI Act is very extensive and with minimum exemptions. Also, the information may be released if the public interest in disclosure outweighs the harm to the protected interest and hence we find that there is an overriding effect to the Act.

The emerging problem of misuse of the Act needs a serious check. This is done due to various reasons such as:-

  • using abusive language in the applications,
  • repeated applications on a single issue,
  • applications seeking voluminous information,
  • applications seeking old and complex information,
  • false claims of public interest or life and liberty,
  • misuse of BPL status and
  • Blackmail

The RTI Act does not have any provision for imposition of fine or penalty on the applicant for any misuse of the Act. This has been deliberately not provided as the current disposition is strongly in favour of the establishment.

Apart from these issues, the Act has been criticized on various grounds. It provides for information on demand but does not stress on information related to the matters of food, water, environment and other survival needs that must be given sufficiently by the public authorities. Also, the Act does not greatly emphasize active involvement in educating people about their right to access information which is most vital in our country with high levels of illiteracy and poverty. That is to say that there is no promotion of a culture of openness within official areas. Therefore, if education is not fully widespread and people are not fully aware about the possibilities under the Act, it would just remain on paper and will not turn into actuality. There are restrictions on accessing information pertaining to security, foreign policy, defence, law enforcement and public safety which are quite standard but the RTI Act also excludes cabinet papers, including records of the council of ministers and other officials and thereby effectively shields the whole process of decision making from compulsory disclosure.

Another scornful criticism of the RTI Act is the recent amendment that was to be made allowing for file notings except relating to social and development projects to be given exemption from the purview of the Act. As we know that file notings are most crucial when it comes to the policy making of the government, it is these notes that hold the rationale behind the actions or the change in certain policy i.e. why a certain act was done or withheld to prosecute a corrupt official. Therefore, the government’s intention to exempt the file notings from the purview of the Act has come in for stringent criticisms.

Now, pointing out some faults in the clauses itself:-

  • Firstly, Clause 5 of the RTI Act gives an obligation to the public authority to designate PublicInformation Officer (P.I.O). Adding to that the Act has not prescribed any criteria or qualification for the P.I.O. to designate. As a result, there are so many public offices all over where the employees are working in a clerical cadre and thereby contributing to the fault in the Act.
  • Secondly, Clause 6 of the RTI Act does not specify or limits the quantum of information to be gained by anindividual or a group of people i.e. Association/Organization, nor its requirement or necessity.
  • Section 26 of the Act says that government should educate the masses about the RTI act but this isn’t actually happening effectively.
  • Section4 says that there should be computerization of records which in actuality is not happening.
  • Section 4(1) b talks about the Proactive Disclosure which is also not dynamic in nature and not periodically updated. It just becomes a mere paper formality.
  • Section 8(d) and 8(j) are generally worded and are greatly misused due to their wide parameters. Thus they need critical scrutinization.

Adding on to the open ended nature and vagueness of the Act there is lack of awareness among the citizens related to which public authority has the required information is the key problem with the Act. The government’s move to exempt CBI from the RTI Act has met with widespread criticism from activists who have described it as a “retrograde” step. Dilution of the Act has been deliberately done. Most of the Information Commissioners are ex IAS, while the Act clearly states that information commissioners may be selected from diverse backgrounds like technology, law, journalism etc. Thus, the procedure for appointment should be re-studied. There is a need for capacity enhancement in Public Authorities for handling RTI queries since ten information commissioners are too less for a country like ours with 2 billion population.

Weaker sections of society are hesitant in filing RTI applications because sometimes it involves submission of application fee in cash and the person has to be physically present in front of the PIO. Hence, usage of RTI is limited to middle class and social activists only. When an information request is transferred under (2f) to a private body, RTI does not provide any legal measures to seek compliance from the concerned private party.

Hence, the solution lies in only empowering the ordinary people of the country by which the nation can progress to its greatness. By the enactment of the RTI Act, the government has taken a small step but a significant one towards that goal. Thus, in the end, I would like to give my suggestions for better implementation of the RTI Act, though some of these might have been covered under the Right to Information (Amendment) Bill, 2013. Firstly, the government has to take keen interest for the proper implementation of the Act and strive towards creating awareness among the masses. Apart from this government should soften the tough procedures so that it becomes easy for the applicants to retrieve information. Most importantly, the government should think towards scrapping off the fees at the time of filing applications which was also recommended by a parliamentary committee and was welcomed by the then Central Information Commissioner Wajahat Habibullah when the Act was only two years old.

Therefore, the need of the hour is to make the Act accessible at the grass-root level as it has not reached the common man yet and is still utilized by the creamy layer of the society. Also, the accountability of the bureaucrats should be duly verified. The bureaucrats should make sure that the applications received should be precise and clear and try to minimize the misuse of the Act. Thus, the gap between government and citizens should be relined through effective implementation of RTI Act. Once this is done, the RTI Act would be viewed as being properly and fully utilized.

About the Author

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Garima Singh is pursuing her B.A. LL.B. (Hons.) degree from National Law School of India University, Bangalore and is currently in her third year. She is a research fellow under the Ministry of Housing and Urban Poverty Alleviation (HUPA), Chair on Urban Poor and the Law, Karnataka. She has worked with several NGOs on human rights and child rights issues and has written essays and articles particularly dealing with these issues. Her work has been acknowledged and she has received awards for them too. She likes reading books and loves to paint and sing. Currently, she is interning with the Model Governance Foundation.

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