The right to information

The Right to Information Act, 2005 (the Act) recently enacted by Parliament secures to citizens access to information held by or under the control of public authorities in order to promote transparency and accountability in their working, being integral to good governance. It ensures maximum disclosure and minimum exemptions, consistent with constitutional provisions, preserving at the same time confidentiality of sensitive information. It also ensures effective mechanism for access to information and disclosure by authorities. The Act thus provides an effective framework for effectuating the right to information guaranteed under article 19(1) of the Constitution of India. It is a beneficial piece of legislation conferring an important right on citizens to obtain information from public authorities regarded as essential prerequisite of a democracy.

The Act gives all citizens the right to information. "Right to information” is defined to mean the right to information accessible under the Act which is held by or under the control of any public authority and includes the right to inspection of work, documents or records; taking notes, extracts or certified copies of documents or records; taking certified samples of materials; obtaining information in the form of diskettes, floppies, tapes, etc. "Information” means any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form, etc. The Act thus authorizes citizens to obtain information available to or under the control of public authorities.

The definition of "public authority” is crucial in the present case. It is defined to mean any authority or body or institution of self-government established or constituted by or under the Constitution; by any other law made by Parliament or State Legislature; by notification issued or order made by the Central Government or a State Government and includes any body owned, controlled or substantially financed and non-government organization substantially financed, directly or indirectly, by funds provided by the Government. Thus a public charitable trust, educational or medical institution or hospital would not be "public authority” required to furnish information on request, unless it is substantially financed by the Central or a State Government.

Every public authority shall designate officers as central or state public information officers (PIO) in all its administrative units or offices to provide information to persons requesting for the information under the Act. It shall also designate an officer at the appropriate level as a central or state assistant public information officer to receive the application for information, etc.

A person desiring to obtain any information under the Act shall make a request in writing or through electronic means to the PRO of the concerned public authority specifying the particulars of the information sought by him. He is not required to give any reason when a request is made for the information or any other personal details except those that may be necessary for contacting him, eg his address, telephone numbers, etc. If the public authority asks the applicant to give reasons for such request he may refuse to oblige the authority.

On receipt of the request the PIO concerned shall within 30 days thereafter provide the information on payment of the prescribed fee or may reject the request for reasons specified in the Act. (The Act specifies certain exemptions from disclosure of information.) If he fails to comply within the aforesaid period, he shall be deemed to have refused the request and thereupon the applicant shall be provided the information free of charge. He has also the right to appeal against such failure. Where a request is rejected the PIO shall communicate to the person making the request the reasons for such rejection, the period within which an appeal against such rejection may be preferred and the particulars of the appellate authority. For certain failures by PIOs penalty is also provided under the Act.

The Act further provides for the constitution of the Central Information Commission and State Information Commissions to receive and inquire into a complaint from any person. It also includes establishment of appellate machinery with investigating powers to review decisions of PIOs.

The Second Schedule to the Act specifies 18 intelligence and security organizations established by the Central Government to which the Act shall not apply (similar power has been given to the State Governments as well). The Central Government has been also given the power by notification in the Official Gazette to amend the Schedule by including other organizations or omitting any specified organization. That is why more organisations seek exemption by citing the bogey of national security and the sensitive nature of investigations undertaken by them.

Some time back the President of India sought exemption regarding correspondence between him and the Prime Minister, relying on article 74(2) of the Constitution of India providing that what advice was tendered by Ministers to the President shall not be inquired into by any Court. Thus even the judiciary is not allowed to inquire into any such communication. The latest to join the clamor for exemption are the Central Bureau of Investigation and the Central Vigilance Commission who want their agencies to be included in the list of exemptions contained in the Second Schedule. To promote transparency and accountability, hallmarks of true democracy, in the working of organizations or public authorities the Government should not entertain such requests and enlarge the Second Schedule. There are already provisions in the Act regarding exemptions from disclosure of information. The information base should be kept as wide as possible and should not be allowed to shrink by granting exemptions, otherwise the object with which the Act is enacted would be frustrated. Exceptions should be reduced and brought to the requisite minimum, since the process of information goes long way in making public authorities more democratic. Bureaucracy should consider the Act as an instrument of social change or economic reform rather than as a challenge to its role in governance. Political agencies and civil society groups should maintain pressure on public authorities to abide by the provisions of the Act. It cannot be gainsaid that information is power and those who wield power know it well.

If a non-government organization is substantially financed by funds provided by Government it would be "public authority” as defined by the Act and would be obliged to furnish information under the Act on a request being made by a citizen for the purpose. A public charitable trust is not public authority required to provide such information, unless it receives financial grant or aid from the Central Government or a State Government and such grant or aid is substantial in nature.

Similar observations proprio vigore apply to any other non-government organization, eg a hospital, nursing home or other medical institution, a university, college or other educational institution, etc.

Some State Legislatures have also enacted laws akin to The Right to Information Act, 2005 enacted by Parliament e.g. The Maharashtra Rights to Information Act, 2002. When a State Legislature and Parliament have both enacted laws on the right to information the position under the Constitution of India is that if any provision of law made by State Legislature on the subject is repugnant to The Right to Information Act, 2005 enacted by Parliament, the said Act shall prevail and the law made by the State Legislature shall to the extent of the repugnancy be void.

Rustom S. Gae, former law secretary to the Government of India, is presently a senior advocate practising in the Supreme Court of India. He is known for his expertise on subjects relating to fiscal laws, company law and constitutional law. He writes frequently on legal issues pertaining to the community.