Lacunae in the Right to Information Act, 2005

Excerpts of the essay by the winner of the contest on “Lacunae in the Right to Information Act, 2005”

"If we were to see information as a product, government information is indeed a property of the sovereign. In a democracy, the sovereign rests with the people. Therefore, this right must be established naturally."

Such a right enjoyed by the citizens was consolidated with the enactment of the Right to Information Act, 2005 (hereinafter referred to as the ‘Act’). But, however important the enactment of the Act is to the civil society movement, it must also be ensured that that law is freed of its lacunae in order to realize its ultimate objectives. This essay deals with such shortcomings in the Act, as well as its practical implementation. Moreover, the researchers also suggest possible recommendations to deal with the outlined challenges.

Certain Private Entities to Disclose Information

Sec. 2(f) “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 and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; provides that information includes those of private parties which can be accessed by a public authority under any law. However, as is apparent this is very limited. Given recent developments, like performance of functions that were earlier carried out by public sector, the scope of RTI needs to be extended to bring within itself private entities. In deciding which such entities should be included, reliance can be placed on the objectives of RTI. For instance, functioning of private bodies to the extent to which it affects public interest could be subject to the Act.  

Self-Disclosure of Information

Although Sec. 4 of the Act clearly requires the public authorities to declare and publish information, it is a veritable fact that the same has been done in a poor and superficial manner. It is deplorable that even though the citizens have been guaranteed suo moto disclosure by public authorities, no instrumentality under the act can enforce such disclosure. The Act does not provide for any penalty for non-compliance with Sec. 4. The provisions for penalty under Sec. 20 target only the failure to adhere to responsive duties, that is, the duty to provide the information when it is sought by the way of filing an application.

It must be realized that the future of the RTI regime lies in progressively strengthening the pro-active disclosure of information so that there is little need for applicants to apply for information and for officials to process, and respond to, these. In light of the problems relating to self disclosure, it is suggested that the State Governments must evolve elaborate norms for suo moto publication of the information. Also, the CIC and the SICs must be authorized to take cognizance of non disclosure of information under Sec. 4 of the Act and similarly Sec. 20 be amended to impose penalties for the same. Where an appeal or complaint comes before an IC relating to information that should rightly have been made available suo moto under section 4 of the RTI Act, but was not, the IC should exercise its powers under Sec. 19(8) (b) and compensate the appellant/complainant for the time and energy wasted in seeking information that should have been provided proactively. This will not only encourage applicants to complain against PAs not complying with Sec.4, but also encourage PAs to fully observe the same.

Moreover, all the information which has previously been sought by filing applications under Sec. 6 of the Act must be necessarily disclosed under Sec. 4. This would result in a reduction in the number of applications reduced as much of the information sought may be readily available to the public. Sec. 4 and other provisions of the Act must suitably be amended to incorporate all the aforementioned changes.

Working of the Commissions

According to a number of reports, the working of the CIC and the SICs has been found out to be slow and lax with huge and growing backlogs of cases. This problem may further intensify post the Supreme Court’s decision in Namit Sharma v. Union of India (WP Civil No. 210 of 2012), decided in September, 2012. According to this all appeals and complaints have to be heard by two member benches of which one has to be a judicial member and the other an expert. Given that, there is a paucity of commissioners, the number of benched would further be reduced. Thus, either a revision of the Supreme Court decision is required or the legislature needs to amend the Act in a way that undoes the effect of the decision. The latter can be achieved by specifying the qualifications required for Commissioners, excluding the necessity of judicial member along with increasing the number of sanctioned commissioners under chapter III and IV of the Act.    

Another lacuna is reflected in the functions of the commissions under Sec. 18 as there is no provision regarding any interim order to be made while the complaint is being dealt with. Hence, an amendment to the Act must be made incorporating a provision for interim orders to be passed while pendency of the complaint before the commission.

Friction caused by Ss. 18 and 19 deal

While Sec. 18 deals with complaints to Commissions, Sec.19 is with respect to appeals to officer senior in rank to State Public Information Officer or Central Public Information Officer, as the case may be. However, this demarcation disappears in case the applicant seeks redressal of grievance arising out of either turning down of application or non-receipt of reply within the specified period. For these, the applicant can either appeal or file a complaint. This would lead to confusion with regards multiplicity of forums or even result in forum shopping. Also, the Act is silent on resultant situation of res judicata. For instance whether in this scenario, the decision of one forum would be conclusive and not be heard afresh in the other forum? To resolve this issue, the provisions need to be altered accordingly.    

File to Include Notings

A positive development has been in the form of withdrawal of the 2012 amendment to the Act. The amendment was to exclude file notings from the purview of information that could be sought. This would have diluted openness as notings give insight into the decision making process. Given the significance of the same, such a measure should be discouraged in future as well.  

General Recommendations

1. As of now different states have different rules to RTI. There should be certain basic rules. For instance, the rules with respect to appeals, basic application fee and mode of payment like the Indian Postal Order must be uniform.
2. The 2^nd Administrative Reforms Commission stated that a number of Information Officers, especially the Panchayats do not have adequate knowledge of the Act. This can be addressed by conducting regular training programmes, providing adequate funds and training material. NGOs and self help groups with credibility and spatial reach can assist in such programmes.
3. The Government must ensure that the user guides for information seekers must be published and widely circulated, as is required under Sec. 26 of the Act.
4. Need to make application process less cumbersome. For instance, the Government must ensure compliance with Sec. 5(3) of the Act, according to which the PIO is expected to assist the information seeker with drafting RTI application. Moreover, the Bihar model can be followed where the application can be phoned in.
5. It has also been particularly noted that the rural folk face more problems in accessing as well as making sense of the information since a lot of records such as tenders, contracts, estimates and measurement books are generally written in English language. The Act must be amended so as to make it compulsory to publish all the information not only in English, but also in the local language to ensure increased access.
6. It has been noted that CIC and SICs are reluctant in taking action against deviant PIOs. There must be a renewed consensus with respect to imposing penalties and taking disciplinary action more vociferously against PIOs in order to ensure compliance with the provisions of the Act.

The essay recognised a range of obstacles varying from the ones in the text of the Act to its implementation. Further, recommendations have been put forth to address the same. If these are adhered to there appears to be a possibility for making right to information a practical realty free from loopholes.

Devank Maheshwari and Shrishti Singh

(Both the authors are III Year B.A. LL.B. (Hons.) students at National Law School of India University, Bengaluru).