Law · Public Policy

RTI Act, 2005: A Critical Analysis

The Right to Information Act, 2005 is one of the most prominent pieces of law which is a significant instrument of democracy and aims to uphold transparency and accountability in the working of the public authorities substantially financed by the government. It enforces the right of every citizen of India to have an access to the information regarding any money given by the State to any authority, thereby causing such authority to utilize such money reasonably and judiciously and also for keeping a check over their conduct and indulgence in corrupt activities. It is, therefore, very pertinent for every individual to know where their money which they pay in terms of tax to the government is being used so that they get further encouraged to abide by the taxation rules, whereas if they aren’t satisfied and feel that their money is being used for unlawful purposes rather for the development of the nation then they will lose confidence in the system. In fact, one has a right to know even about the credentials and background of the candidates contesting elections so that the voters know how far such candidates are qualified to contest the elections so that they may ensure the capability and worthiness of that person by whom they would be governed in future.

In fact, the Supreme Court of India ruled in a landmark judgment of Union of India v. Association for Democratic Reforms and Anr. (2002) 5 SCC 294, that the citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service and public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of misgovernance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen’s right to information is given greater primacy with regard to privacy. In addition to above, even the political parties, temples, schools and also privatized public utility companies are bound to be covered under the ambit of this Act and hence should be made answerable for their working to the citizens of the nation. Nevertheless, there exist certain loopholes in the Act that cause ambiguity and confusions. For example, Section 2(h)explains what comes under the purview of the term “public authority” but it does not give a comprehensive idea and creates ambiguities which pose problems for the Information Commission to decide the nature of an authority. Moreover, the phrase “substantially financed” also does not give a clear picture that what constitutes the word “substantial” which cause sheer confusion. For instance, the municipal corporations, state and central governments are increasingly opting for Public Private Partnerships (PPP) owing to which it seems that transparency could be hindered, as private organizations are excluded from under the Right to Information (RTI) Act and in such partnerships one can get access to public documents by putting a query to the ‘public partner’ only. But at the same time if private organizations are “substantially” funded then they come under the purview of public domain but who is to decide what is “substantial funding”?

Thus, it is a big lacuna as this decision becomes subjective with no authenticity and completely relies on the whims and fancies of the Information Commissioner. Furthermore, there is no clarity in the matter of NGOs and other organizations which are receiving significant amounts of finance however, the aided schools and colleges deem to be the public authorities if they have significant government nominees; or companies where the government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act and those which are privately owned and managed are covered under the arena of “third party” as stated under Section 11 whose information can be obtained from a public authority because the issues relating to management and regulation of schools responsible for promotion of education are so important for development that it cannot be left at whims and caprices of private bodies, whether funded or not by the Government. Even temples prima facie appear not to be public authorities as they are managed and financed usually by trusts but several judgments have been passed where they have been treat as public authorities. These judgments have lead to new developments with respect to determining the public character of the authorities, yet the ambiguity continues since there is no concrete legal provision under the Act, pertaining to the same. Thus, there is a dire need of introducing a new definition of public authority under the Act which would explicitly define the parameters of determining the public character of the organizations and should also include all such possible organizations which can be called as a public authority with an aim to clear any doubts that might crop up in the minds of the citizens seeking information about various organizations.

Another discrepancy in this Act is under Section 11 that whether the third party’s denial is the final verdict because when it comes to disclosure of information pertaining to the third party, its consent is required to be taken and in most of the cases they refuse to disclose the information stating the reason of it being an encroachment on their privacy and the Public Information Officer (PIO) abide by it blindly without weighing the ramifications on the general public. Instead, the PIO is supposed to determine whether the information is exempt under the provisions of the Act and only if it deems to be an exemption stated under Section 8 of the Act can the third party’s denial be considered valid while in some cases, right to privacy virtually fades out in front of the ‘Right to Information’ and ‘larger public interest’. Thus, it calls for a balanced and fair outlook which would facilitate reasonable decisions. Though, it is completely just to offer an opportunity to the party to allow or reject to disclose anything which relates to them however the reasons stated for such non-disclosure shall be based on equity, justice and good conscience and also primarily covered under Section 8. The PIO is necessitated to wisely weigh the pros and cons of such non-disclosure and how far that would have an impact on the citizens and their rights and such other party too, thereafter whichever seems to be more reasonable shall be given preference over the other.

Above all, the RTI, Act is a useful legislation apart from the aforementioned loopholes which if removed can further improve the Act. Also, the public needs to become more vigilant and responsible and use this right in order to make oneself aware about the allocation of public funds, the election candidates, political parties, private institutions, schools, colleges etc. and contribute in eradication of corrupt practices from the political, economic as well as social scenario. It is because, if people become well informed then they will be able to make better choices when it comes to electing government representatives and the possibility of being fooled by those in power might reduce drastically.

About the Author

DSC05965Shakha Jha is a IV Year law student pursuing B.A. LL.B. from Symbiosis Law School, Pune. She is keenly interested in researching on varied subjects. She also holds a diploma in Intellectual Property Laws and has authored four papers. She is presently working as a Research Associate with Alexis Department of Public Policy.

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