Opinion Right To Information For
All
by Gautam Sengupta
Jeremy Cronin
of South African Communist Party commented quite some years back, “Now
we need to speak truth to power, we now need to make truth powerful, we
now need to make the powerful truthful”. What Mr. Cronin was hinting at
broadly, was ‘right to information’ for all and more explicitly, the
need for transparency, accountability and responsiveness in the
functioning of all who are in power and in some way or other who are
concerned with the welfare of the people of the country, particularly
the poor.
This need has been
recognized as a felt necessity world over
for mitigation of poverty, sustained growth, socio-economic as well as
cultural development for all countries, developed, under developed and
developing. In case of the developed countries if it is a mere need, for
the developing and the underdeveloped it is to be reckoned as urgent.
Why?
This question draws in another long persisting, intriguing question the
mind blowing populace of a more than one hundred million citizenry of
our country is trying to find an answer to, over a period of sixty years
since independence. What does it take to replace a culture of secrecy
and control by one of openness and participative democracy? The answer
is still to be finally resolved. Mere representative democracy which is
in vogue for decades in India and many other countries of the world has
failed to offer an acceptable answer to this question and has also
failed to achieve any success in countering the ills of bad governance
that lie latent in the absence of a truly functional, participative
democracy. It is encouraging to know that though many miles of journey
are ahead of us before we reach the milestone and no one knows how many
years it will take, an honest effort is already on the anvil to find a
solution.
Right To Information Act, 2005 can be a solution for the dilemma we were
left to face for about 60 years after independence and the Act can be
used as a tool for ‘good governance’. Though never in its 31 sections
the Act has used the words ‘good governance’ it places in its preamble
ample emphasis in unambiguous, unbiased term on its three basic pillars,
i.e., ‘transparency’,’ accountability’ and ‘responsiveness’. Though the
word ‘responsiveness’ has not been used verbatim, the idea is all
through vibrant, clear and implicit. The words ‘accountability’ and
‘transparency’ have occurred repeatedly and purposefully, may be to
underline the objective and honesty of intention to give the citizens of
the country a truly operational law for asserting their right to know.
In its very opening the Act says that it intends to provide for setting
out a practical regime of right to information for citizens to access
information under control of public authorities in order to promote
transparency and accountability in the working of every public
authority. It goes on to say that the Act is necessary for the reason
that our constitution has established a democratic republic and
democracy requires an informed citizenry which are vital to its
functioning and also to contain corruption and to hold governments and
their instrumentalities accountable to the governed. The objectives of
the Act thus imply that accountability and transparency alongside
minimization of corruption in the functioning of the instrumentalities
of the governments being the basic premises the Act proposes to work
upon, responsiveness, the other ingredient of good governance, is liable
to automatically follow.
The words ‘practical regime’ at the very start of the preamble may look
somehow out of place and calls for an interesting bid for a look back.
Some, if not many, may know that RTI Act, 2005 is not the first
legislation the Government of India came forward to offer to the
citizens for their right to know. The Government had passed an Act
earlier in 2002 which was named as “Freedom of Information Act, 2002”
and was intended to be operational in all the States of the country
except Jammu & Kashmir. The subsequent RTI Act, 2005 is not effective
either in J&K and the State has its own law for right to information.
The FOI Act, 2002 could never be operationalized for the fact that the
Government had wanted that there would be central rules for a central
Act that would apply to all the States uniformly. This intention could
never be materialized for reasons best known to the Government and for
this basic reason the stillborn had to lie inert and immobile in its
mortuary for three years until repealed under Section 31 of RTI Act,
2005.
The now repealed Act had other areas of deficiency too. It had no
provision for a second tier of appeal and there was no provision either
for penalty against the Public Information Officer in case of his
providing wrong information, distorted information, malafide information,
part information without valid reason or altogether refusal to provide
information, having no cogent ground to rely upon. The present Act
provides for setting up powerful Information Commissions at the Centre
and the States which have been given authority to receive and decide
complaints against public authorities, second appeals against PIOs,
Appellate Authorities and impose fines and penalties. Here in this Act
the burden of proving, unlike the existing system of Indian judiciary,
that refusal to provide information or decision to give part information
was on justified grounds lies on the PIO and not on the appellant.
This ingredient of citizen friendliness, stakeholder-service provider
interface, clear and bright, was absent in the earlier legislation,
viz., FOI Act, 2002. The phrase ‘practical regime’ at the start of the
preamble of RTI Act, 2005 is an admission of the failure to achieve the
objectives of enactment of FOI Act, 2002 that rendered the Act
inoperative. Though honesty of intention in passing the first ever law
for right to information or freedom of information for citizens may not
be called into question, hesitation to give the people of India a just
and well deserved law for ensuring their right to know was clear in the
text of the FOI Act. Unlike in the RTI Act, 2005 the word ‘openness’ was
used in FOI Act, 2002 in place of ‘transparency’ and ‘freedom of
information’ was defined as ‘right to information’ obviously to make the
meanings discreet and less overt than in RTI Act, 2005. In the first
instance itself the lawmakers could name it as ‘Right to Information
Act’. But they refrained to do so most possibly out of a feeling of
uneasiness, dictated by the age old culture of secrecy and control that
they tided over most appreciably three years later when Right to
Information Act, 2005 got into existence in June, 2005.
As we have discussed at the beginning, necessity to give people of the
country their right to know is nothing new in the global perspective and
India’s joining the queue to bring out her own legislation in this area
is liable to be described as a rather late decision though many of the
countries of the world are either yet to formulate a law or to make it
operational even though formulated.
The first information law for the citizens of their country was awarded
by Finland and Sweden in the year 1766. One clergyman of Finland named
Anders Chydenius who was also a Parliamentarian of the joint Parliament
of Finland and Sweden drafted the first information law of the world
which he called ‘Access to Public Records Act, 1766”. The Act was passed
in the Parliament. Finland was then a governed territory of Sweden.
Though may be a just co-incidence, it is mention worthy here that as per
Transparency International, an organization preparing and releasing
corruption perception index worldwide and releasing reports on level of
corruption persisting in several countries of the world on regular
basis, Finland is the cleanest country of the world figuring at number 1
in the list alongside Iceland and New Zealand when India’s position is
at 70. This position of India was at 91 a couple of years back which got
elevated by more than 20 points in two years after implementation of
Right To Information Act, 2005. This may not be a mere coincidence.
This Act, a great deal of credit for which is due to Mrs. Aruna Roy and
her team, the villagers of Devdungri of Rajsamand district of Rajasthan
and members of MKSS for pioneering a major people’s movement demanding
right to information for all from a remote, draught prone village of
half-fed, half clad people, is on date one of the most progressive,
sincere RTI legislations of the world that has made India proud. This
can be used as a potential tool for ushering in an era of good
governance countering corruption and promoting transparency and
accountability in the working of public authorities. The exemptions have
been kept at the minimum and the information commissions have been
vested with ample power to set right any lackadaisical, malafide move at
the end of the Public Information Officer or the Public Authority.
The Act has made provision for enough number of Information
Commissioners to assist the Chief Information Commissioner to receive
and dispose of appeals and complaints expeditiously, expediently and
impartially. The Chief Information Commissioner and Information
Commissioners can be chosen from the most eligible personalities of the
country from the field of science and technology, journalism, media,
social work, law, governance and administration etc. and even the leader
of the opposition of the largest party of the Parliament, in case of
Central Chief Information Commissioner and Central Information
Commissioners and the leader of the largest opposition party of the
State legislature in the case of State Chief Information Commissioner
and State Information Commissioners, has a say in their selection as a
member of the high power selection committee composed of the Prime
Minister and a Cabinet Minister in case of the Central Information
Commission and Chief Minister and a Cabinet Minister besides him (leader
of the opposition) in case of the State. The Act stipulates that no
person having any stake in any trade, business and politics can be
selected as a Chief Information Commissioner or Information
Commissioner. His tenure to function as such has been restricted to
maximum five years.
The RTI Act, 2005 has 30 sections effectively, under section 31 only the
earlier FOI Act, 2002 being repealed. The definition of ‘Information’
and ‘Right to Information’ is quite exhaustive. Nothing has been left
out of the scope and meaning of the terms. Under the meaning of
‘Information’ even the tour diary of an official, the log book for the
vehicle he uses for public purpose or the log book for the generator he
runs for his office during power cut have been covered. There is no
scope for controversy about the note sheets and disclosure of the file
notings contained therein as the definition of ‘Information’ also
contains these words, ‘advices’ and ‘opinions’ which are liable to
dispel all shades of doubt in this regard.
Today it is possible for even a man from the street to approach the CPIO
or the SPIO under a public authority, whatever may be his rank and
standing in his establishment, to ask for a file for inspection, for
taking notes and extracts and for obtaining certified copies of
documents. He can spend the entire day in an office for the purpose on
payment of a nominal fee or no fee at all if he belongs to the BPL
category. The only eligibility criterion he has to fulfill to access
information under control of public authorities is that he needs to be a
citizen of India. He does not need to disclose why he is seeking
information and he even does not need to know to write his application.
When verbally intimated, the PIO is under obligation to get his request
for information reduced in writing. The PIO is also under obligation to
provide all necessary support to an information seeker who is sensorily
disabled, to enable him to exercise his right to information which
includes not only inspection of documents and works but also right to
obtain certified sample of material.
Under the Right To Information Act, 2005 even the first citizen of the
country, i.e., the President of India has to submit his application for
information to a Public Information Officer in his/her own name as an
individual citizen and not under the authority of his/her office. The
Act has placed enormous emphasis on the importance of a person as a
citizen of the country admitting with all seriousness that democracy
requires an ‘informed citizenry’.
The Right To Information Act, 2005 is democratic in all its fabrics and
is out and out citizen-friendly. Now it is time for all of us to speak
truth to power, to make truth powerful and to make the powerful
truthful. The Act will stand by us in our endeavour.
February 16, 2008
Gautam Sengupta is Additional Director,
Administrative Training Institute, Government of West Bengal.
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Jeremy Cronin
of South African Communist Party commented quite some years back, “Now
we need to speak truth to power, we now need to make truth powerful, we
now need to make the powerful truthful”. What Mr. Cronin was hinting at
broadly, was ‘right to information’ for all and more explicitly, the
need for transparency, accountability and responsiveness in the
functioning of all who are in power and in some way or other who are
concerned with the welfare of the people of the country, particularly
the poor. 