Thursday, May 11, 2006

Right to Information in India

Here is my article on Right to Information in India. Right to Information Act 2005 came into existance on National level in June 2005 and was completely implemented in October 2005.

Right to Information

-Divya Jyoti Jaipuriar[i]

The Right to Information movement has begun in India when Ms Aruna Roy took the initiative in Rajasthan to get accountability in the functioning of the state government.

The Indian Evidence Act also talks about similar right when it provides for getting a certified copy of any document kept by any public authority.[1] The Indian Evidence Act, 1872 gives a right to inspect any public document and even get a certified copy of it by paying a legal fee. Such a copy is considered as good as the original copy of the public document for all legal purposes. Though this right was only used to get the certified copies of the court judgments and documents, which were primarily of use in the courts.

The Hon’ble Supreme Court of India has also interpreted fundamental rights incorporated in articles 19 (1) (a) and 21 of the Constitution of India and said that the Right to Information is the fundamental right of the citizens of India. In R P Lmited v. Indian Express Newspapers[2], the Hon’ble Supreme Court of India has ruled that the Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. Again in State of UP v. Raj Narain[3], the Hon’ble Supreme court of India had taken a very bold stand. In this case, Justice Mathew ruled that in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary when secrecy is claimed for transactions, which can at any rate have no repercussion on public security. But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people. (sic) The Hon’ble Court has shown resentment over over-use of the government privilege under section 123[4] of the Evidence Act, 1872 that was under the review in this case.
Mr. Soli Sorabji, a constitutional expert, and former Attorney General of India feels that It was in 1982 that the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India[5](popularly known as Judges Transfer Case). The Supreme Court by a generous interpretation of the guarantee of freedom of speech and expression elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees. The Supreme Court has emphasised that open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. In a country like India, which is committed to socialistic pattern of society, right to know becomes a necessity for the poor, ignorant and illiterate masses and this right is drawn from right of free speech and expression guaranteed under article 19 (1) (a). The Hon’ble court in S.P. Gupta case held that where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their Government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy…The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world. In Secy., Ministry of Information and Broadcasting v. Cricket Assn. of Bengal[6] while dealing with the telecast rights of a person to telecast a sports event and quoted article 10 of the European Commission on Human Rights and observed that the true democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs to the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. In this judgment the court underlined the importance of the right to information of the common man. In a case dealing with the disclosure of the Vohra Committee Reports the Hon’ble Supreme Court has acknowledged the importance of the participatory democracy and the right to know about the affairs of the government. The Hon’ble Court in Dinesh Trivedi v. Union of India[7] commented that in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.

Indian Movements

Ms Aruna Roy, in early 1990s took lead in Rajasthan for the Right to Information movement. She demanded the information from the Government which were directly related to the welfare of the common mass. The Mazdoor Kisan Shakti Sangathan (MKSS) set up by her in Bhim Tehsil of Rajasthan made the government to reveal information, which were kept confidential till date. MKSS took the initiative primarily in matters related to the minimum wages to the workers in government projects. When the bureaucracy became unresponsive, MKSS started to take judicial remedies. In the meantime, when these cases were pending, MKSS started to look for the alternatives to solve these problems. Some officials did provide some information sought by MKSS and on their verifications, widespread corruption in the government projects surfaced. Not only were workers being denied minimum wages but the records also showed that large sums of money were diverted from projects as a result of blatant fraud. Names of non-existent workers were listed on records, and a nexus of elected representatives and government officials to fraudulently obtain funds from development accounts used bills for non-existent purchases. The Jan Sunwai, the public hearing, where the accounts of public expenditures on development works in a village are accessed, collated, and distributed among villagers, led to disclosures of large scale corruption and the government was forced to take corrective action. In the Jan Sunwai the media, government officials, local elected representatives, and all residents of the area are invited to attend the hearing. A formal discussion is held on each of the projects and development expenditures involving the villagers (who are the workers in question) and the officials.[8] This initiative of MKSS made the implementation of government projects more accountable and people centric. This movement underlined the right to information of the common man and as a result National Campaign for People’s Right to Information (NCPRI) started in late 1990s. With this the Right to Information campaign spread over other parts of the nation and as a result various state governments passed the Right to Information legislations. Tamil Nadu became the first state in India to enact its Right to information Act in 1997. Goa, Madhya Pradesh, Rajasthan, Karnataka, Maharastra, Gujarat, Delhi and Kerala followed suit in coming years and enacted similar laws for their states. But at union level, there was still no enactment until 2000 when Freedom of Information Act was passed.

Countdown Begins

In 1996, Justice P B Sawant, Chairman of the Press Council of India at that time, drafted a bill in this regard. This bill took all governmental and non-governmental entities, which perform public functions, into the purview of the Right to information. On 2nd January 1997, Government of India set up a working group on Right to Information and Promotion of Open and Transparent Government’ under the chairmanship of Mr. H D Shouri. The committee came up with detailed report and Draft Freedom of Information Bill on 24th May 1997. This draft provided that not only the Central and the State Ministries, but also public sector undertakings, municipal bodies and panchayats and other bodies substantially funded by Government, would come within the purview of the Act. Later the Consumer Education Research Council (CERC) draft also came up. It was by far the most detailed proposed freedom of information legislation in India. In 1997, a conference of chief ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997. The central and state governments also agreed to a number of other measures to promote openness. These included establishing accessible computerised information centres to provide information to the public on essential services, and speeding up ongoing efforts to computerise government operations. In this process, particular attention would be placed on computerisation of records of particular importance to the people, such as land records, passports, investigation of offences, administration of justice, tax collection, and the issue of permits and licences.[9]

International practices

Sweden was the first country in the world to enact the Right to Information Act as early as 1774. In USA, the Freedom of Information Act was enacted in 1966 and amended in 1974 and 1986. This act obligates the Government authorities (Agencies) to publish some basic information regarding the functioning of that agency and there is a duty on the agencies also to provide certain documents for public inspection and copying. The United Nations also recognised freedom of information as a fundamental right within the UN. In 1946, at its first session, the UN General Assembly adopted Resolution 59(1), which stated: "Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated." In 1948, the UN General Assembly also adopted the Universal Declaration of Human Rights (UDHR) which guarantees freedom of opinion and expression: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." The International Covenant on Civil and Political Rights (ICCPR) was adopted by the General Assembly in 1966. This guaranteed: a) Everyone shall have the right to freedom of opinion; b) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any media of his choice; and c) The exercise of the rights … carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.[10] In 1980, in the meeting of the Law Ministers of Commonwealth nations at Barbados agreed that public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information. This has made various commonwealth countries to have Right to Information legislations. Till date, 12 out of 53 commonwealth nations have enacted Right to Information laws.

Indian Law

For the first time in 2000, the Freedom of Information Act was passed by the parliament of India. This enactment never came into force as the appointment the officers to execute the act and the modalities to enforce the act were never notified. This act was a weak legislation and was not at all operational. This enactment was replaced by Right to Information Act, 2005 which came into force from 12th October 2005. Prior to this date modalities like appointment of Public Information Officers (PIOs) and other modalities were completed. Now this act is in force and can be used in every state of India.

Provisions of the Act

In every public office, there is a provision of appointment of Public Information Officers (PIOs) to accept the application under this act and to provide information to the applicant. The Public Information Officers (PIOs) are the link between the public authorities and the citizens seeking the information. The act also provides for appointment of Assistant Public Information Officers (APIOs) as well to accept the applications and forward those to the Public Information Officers (PIOs) for further actions.

To obtain the information from a public authority, the applicant is required to apply in writing or through electronic means, (in English, Hindi or in the official language of that area.) with following details:
J Particulars of the information sought
J Details necessary to contact the applicant.
Apart from these the applicant is not required to divulge any other information like purpose of seeking the information or otherwise, to the public authority. He is required to deposit a fee of Rs. 10/- for each application to the accounts officer designated for this purpose. The fee can even be deposited in form of drafts as well. In case of the applicant being a person from below poverty line, no fee will be charged from him.

The PIOs are required to furnish the information within 30 days from the receipt of the application. In calculation of this period, 5 days are additionally added, if the application is deposited to the APIOs. Further, if the applicant seeks information, where the third party is affected, an additional 10 days will be added, which is necessary for obtaining clearance from the third party. If the information is in form of hard or soft copy of any document, the PIOs are required to inform the applicant to deposit the cost of copying the document. Such information must state exact cost of the copy and the calculations by which such figure is reached at. The period from the intimation of such cost to the depositing the cost to the public authority by the applicant is not added in the stipulated 30 days period. In cases, where the life and liberty is at stake, or is in question, the PIOs are required to furnish the information within 48 hours of receiving the application.

The PIOs are to inform the applicant about the rejection of the application within that period of 30 days, if his application has been rejected. In such a case, the PIOs are required to give reasons for the rejection of the application and also the information about the Appellate Authority for filing the appeal and the stipulated period by which such appeal can be filed. For disposing the appeals, the Appellate Authority in every Public Authority is also appointed as per the provisions of the act. The apex body of the Appellate Authority is also created which is known as ‘Central Information Commissioner’ at Union level and ‘State Information Commissioner’. The final appeal lies in these offices. The Central/ State Information Commissioners are given powers of a Civil Court under the Code of Civil Procedure, 1908 to deal with the appeals. He is also given powers to impose penalties to the erring official in cases where the orders are of the Central/ State Information Commissioners are not complied with or there is no reasonable reason to refuse the application for the information or there is an unreasonable delay in giving the information.

The public authority is under no obligation to divulge any information to the applicant, if sections 8 & 9 of the act cover it. These sections prohibit publication of that information which largely affects the sovereignty and integrity of the country. Any information, which affects the security concerns of the nation or deals with the matters where the trade secret, intellectual property matters, and even the deliberations with the foreign nations are involved, are largely covered by these sections. This act does not apply to the intelligence and security organisations, which are specified in Second Schedule of the Act.

Errors in the Act

The Right to Information Act, 2005 provides that the information regarding the life and liberty of the person is to be furnished within 48 hours. But in case of failure in doing so, or rejecting the information, there is no time limit set for the appellate authority. The first appeal is to be disposed off even in this case, in 30 days. Further there is no time limit to dispose off the cases pending at Information Commission levels.

Again, the accepted modes of payment of fee for obtaining the information are cash, or through bank draft/ banker’s cheques. No other mode of payment of fees like postal order, postal stamps, credit cards or any other modes are not recognised.

Further more there is no penalty, if the public office does not appoint the PIO in time. In case of failure to display basic information in every public office as provided in the act, there is no penal clause and no responsibility is fixed against any public officer.

In Conclusion

With the enactment and implementation of the Right to Information Act, 2005 India has stepped from the age of secrecy to the age of knowledge. The Right To Information Act, 2005 has given a tool into the hands of the citizens of India to demand from their elected representatives lawfully to give details of the functioning of the Government and the account of the spending of their taxes. But there is a need to develop a forum where the information gathered from the Government authorities can be questioned and scrutinised. Now, apart from the doors of the courts, there is no such platform, where the information of the Government can be challenged. Though, in rural areas, with the development of Panchayati Raj Institutions, there is a forum to challenge the information gathered from these agencies. But there is no such forum at the urban areas as there is nothing like “Gram Sabha” in Urban Local Bodies. It’s a matter of development of such forums where the information from the Government Bodies can be challenged and questioned in easier and effective manner.

The transition from an opaque system of governance, legitimised by the colonial Official Secrets Act, to one where citizens can demand the right to information marks a significant shift for Indian democracy, for the greater the access of citizens to information, the greater the responsiveness of government to community needs

© Divya Jyoti Jaipuriar, 2005
[1] Section 76 of the Indian Evidence Act, which reads: 76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.
[2] 1989 AIR SC 190: 1988 SCC (4) 592
[3] AIR 1975 SC 865
[4] Section 123 reads: 123. Evidence as to affairs of State - No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
[5] 1981 Supp SCC 87: AIR 1982 SC 149
[6] (1995) 2 SCC 161 at p 229
[7] (1997) 4 SCC 306 at p 314
[i] The author is a final year student of Law Centre-I, Faculty of Law, University of Delhi, Delhi. His email address is

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