A New Right to Information Bill
Will we finally get what we deserve?

- Charmaine Rodrigues & Mandakini Devasher
RTI Team, CHRI

On 23 December 2004, the United People’s Alliance (UPA) Government in India finally tabled a new Right to Information Bill 2004 (“RTI Bill”) in Parliament. When passed, the RTI Bill will replace the Freedom of Information Act 2002 (“FOI Act”) which was passed more than 2 years ago but was never implemented.

The right to information has been recognised for decades by the Supreme Court of India as a fundamental right of every Indian under Article 19 (Right to Freedom of Speech and expression) and Article 21 (Right to Life) of the Constitution. In practice, this right recognises that every person in India has a guaranteed right to access information held by government departments information which explains what they do, how they do it and how much it costs. Information is not a gift graciously given by Government. It is collected on our behalf with our money and we should be able to access it as of right.

Currently, much of the Government's information is kept secret, particularly if it might lead to exposing of corruption. A properly drafted and effectively implemented Right to Information Act can be used by the public to ensure that the Government will no longer be able to dodge our questions. If civil society is active in using the right to information to scrutinise the Government it could serve to change the very nature of governance in India as we know it by finally forcing public officials to be answerable to us, the public.

The FOI Act passed in 2002 was poorly drafted. As such, it was hoped that the new RTI Bill would offer the country a new opportunity to effectively implement our fundamental right to information. While considerably improved, the new Bill still contains a number of drawbacks, which need to be fixed before the Bill is passed.

It is in all of our interests to make sure that the very best Bill possible is passed by Parliament – and passed quickly. A good law will give us a powerful tool, which we can use to hold government officials to account. This is long overdue.

Background to the Development of the RTI Bill

The campaign for a comprehensive right to information regime celebrated its ten-year anniversary at the second National Right to Information Convention held in Delhi in October 2004. The campaign, which started as a grassroots movement in Rajasthan, has grown to encompass activists from all over the country. Over the years, it has notched up many successes. Most notably, nine states in India have already passed Right to Information laws – namely, Tamil Nadu, Goa, Rajasthan, Karnataka, Delhi, Maharashtra, Madhya Pradesh, Assam and Jammu Kashmir.

Unfortunately, at the national level, progress has been much slower. Although the FOI Act was passed in 2002, it was very weak, failing to conform to well-accepted international standards. In any case, although the FOI Act was published in the Official Gazette in 2003, the Government never notified a date for it to come into operation. It has thus remained a paper tiger.

In 2004, hopes were bolstered when the UPA Government specifically promised in the Common Minimum Programme (CMP) to make the FOI Act more “progressive, participatory and meaningful”.

The National Advisory Council (NAC), set up to oversee the implementation of the CMP, took an immediate interest in the issue, discussing right to information at their very first meeting in July 2004. Based on submissions by CHRI, the NCPRI and other civil society groups, the NAC as quickly as August 2004 submitted a set of recommendations for amending the FOI Act to the Prime Minister’s Office.

Information under lock & key

Unfortunately, between August and December 2004, when the UPA Government tabled the Right to Information Bill 2004 in Parliament, it appeared that the bureaucracy had got its hands on the NAC amendments and used this opportunity to remove and/or dilute some key recommendations in the
final version of the Bill.

This is not entirely surprising. The bureaucracy is probably well aware of the potential for the right to information to finally make them accountable to the public – and it’s doubtful that they are keen to see that happen.

Despite these setbacks, campaigners remain hopeful that a stronger Act can still be passed by Parliament. It appears that a special group of Ministers may be made responsible for reviewing the RTI Bill. Already, the RTI Bill has been referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for consideration. The public is encouraged to write to the Committee, calling on members to recommend that the Bill be improved to bring it into line with best practice standards – and then passed as a matter of priority.

Key provisions in the RTI Bill

The RTI Bill 2004 sets out to provide a ‘practical regime of right to information for people to secure access to information…in order to promote transparency and accountability. If passed, the RTI Act 2004 will extend to the whole of India except Jammu and Kashmir and will come into force on the 120th day of its enactment.

Coverage

- Only “citizens” can request information from a “public authority”, defined as anybody constituted under the Constitution or a law made by Parliament, or anybody owned or controlled by the Central Government. This definition does not include private bodies which perform public services or which receive funds or concession from the Government.

- All public authorities are required to proactively publish information about their organisation, function, duties and services, including proposed development activities and recipients of subsidies.

- Certain types of information are exempt from disclosure, such as information which if released could harm national security or international relations, legally confidential or commercially sensitive information, or where release would impinge on the right to privacy. Unfortunately, the Act also provides a blanket exemption for all documents of Cabinet or the Council of Ministers, and does not cover a range of intelligence and security agencies such as Intelligence Bureau, Research Analysis Wing, Directorate of Revenue Intelligence and Central Economic Intelligence Bureau.

Applications

- Citizens must request information in writing (including by email). Applications are submitted to a Public Information Officer (PIO) or an Assistant PIO who is appointed at the sub-divisional or sub-district level. An application fee will need to be paid (to be prescribed).

- Applications must be responded to within 30 days, except in cases concerning the life and liberty of the person where information must be provided within 48 hours. Where no response is received, this will be deemed as a refusal. Applications must be rejected in writing.

- Where applications are approved, a fee will be imposed for accessing the information. However, if the application is not dealt with in time, the fees will not be returned. Information can be requested in hard copy in any form (e.g. paper, video, tape, sample) and people can also inspect documents or public works.

Appeals & Penalties

- If a person feels they have been wrongly denied information, they can appeal to the officer immediately senior to the PIO.

- A second appeal can be lodged with an independent “Central Information Commissioner” (CIC), a newly established position under the law. The CIC and his/her Deputies constitute an independent, impartial appeals mechanism. They can override public authorities and require disclosure. Their decisions are binding.

- Penalties can be imposed on PIOs of up to Rs. 25,000 or a prison term extending up to five years for “persistently failing to provide information within the specified period”. This penalty clause is very weak, because it only sanctions persistent non-compliance.