Where we stand and Where to go ?
This Seminar, timely though, is being held at a critical juncture, when the RTI Act 2005 is already in force with effect from 15th June last and its Rules are yet to be finally notified by the appropriate Governments and competent authorities. However, the entire process of giving operational shape to the provisions of the Act including the indispensable business of Rule making needs to be at any rate completed by the 12th of October 2005, i.e. the 120th day of the enactment, as mandated under the Section 1(3) of the Act itself. Keeping this statutory constraint in view, I would suggest that this Seminar in stead of debating pros and cons of a legislation which is already a fait accompli in our national life and a part of our statute book, should exercise itself over the moot question of the hour i.e. how to ensure that the appropriate Governments and competent authorities frame Rules which are citizen-friendly, and secondly how the loopholes and the missing links in the original legislation could be effectively plugged in.
Publish the Draft Rules for public comments before finalising them
Just for your information, while writing this article for today’s Seminar, I chanced to come across the website ( http://persmin.nic.in/RTI/WelcomeRTI.htm ) of the Ministry of Personnel, Public Grievances and Pension, Government of India- the nodal agency for the overall implementation of the Act at national level - where they have of late published the Rules under the Act as applicable to the public authorities under the Central Government, giving the date of its publication as 16th of September. They simply call it rules, not draft rules, obviously to avoid inviting any public comments thereon. It is worthwhile to recollect here that the present Government way back in August 2004 last had publicised the draft rules under the now impugned FOI Act 2002 giving the public an interval of a fortnight to comment thereupon. The first and foremost, and so to say, a non-negotiable concern of the alert citizenry at the moment should therefore be to tell the Government that they should invite public opinion on the draft rules before finalising them. As you might know, the Section 24 of the Orissa General Clauses Act 1937 obliges the State Government to invite public views on the draft rules made under an Act before finally notifying the same. And I presume, there must be some such statutory provision for the Government of India too to bind them to such a rudimentary, legislative norm that is barely observable in a democratic polity like ours.
What the Rules of the Central Government say
Before I switch over to the substance of my talk proper, let me just share with you the provisions made under the Government of India’s recently published Rules under the Act, on which you may like to deliberate here and then reflect back to the concerned Ministry in the form of a rejoinder. For the application fee under Section 6, any non-BPL person has to pay Rs.10/-. If the information be provided in the form of a print-out, Rs.2/- shall be charged against each page. If the applicant asks for a sample or a model, he has to pay the actual cost of the same. In case of a person wanting to inspect an official record, no fee shall be charged for the first hour of his inspection, but for every 15 minutes thereafter, Rs.5/- shall be charged. A flat charge of Rs.50/- shall be claimed for each floppy or CD carrying the information sought
Progress by the State Government of Orissa
As for the Government of Orissa, which is in fact an independent entity like any other State or Centre, competent enough to makes its own Rules under the Section 27, they though still in a ‘wait and see’ mood, have however made some tangible progress in respect of giving operational shape to some provisions of the Act. The Department of Information and Public Relations has been identified as the nodal agency for the purpose. Apart from the 3 member High level Committee for selection of the Information Commissioners formed under the Chairmanship of the Chief Minister as required under Section 15 of the Act, an 11-member Core Committee of the top officials of the State has been formed and in their first meeting held on 22nd August 2005 took some decision towards the implementation of the RTI Act in the State. The proceedings of the said meeting are available under the website of the Dept of Information and Public Relations (http://orissagov.nic.in/I&pr/corecom.htm) for every body to see and comment on. By the way, while they have appointed PIOs and APIOs and corresponding departmental appellate authorities under the Act at every level from the Secretariat down to GP, they seem to be oblivious of their bounden obligation under the Section 4 of the Act to arrange for the provision for instant inspection by the intending citizens of the public offices and the records thereof w.e,f. 12th October ’05.
Right to Inspection of Public Offices – the heart and soul of the RTI Act
The Section 4(1b) lists out 17 nos. of subjects on which each public authority has to keep suo moto ready necessary manuals or handbooks of information by 12th of October, so that a member of the public without having to apply as required under Section 6, can just walk in during the working hours of an office to procure any of them free or at the cost of production only, or even to inspect the functioning of the concerned public authority in regard to the records mentioned in the said manuals and handbooks. As a matter of fact, the Section 4(2) rightly enjoins upon each public authority ‘to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of the Act to obtain information’. Thus in my view, every public authority should concentrate its time, energy and resources to set up, as required under Section 4, a durable and pucca administrative-system in place for making maximum suo moto disclosures of all enlisted categories of information at regular intervals coupled with a liberal, enabling provision for the members of the public to visit a public office and inspect the records thereof free of cost as and when necessary. It goes to the credit of the Ministry of Personnel, GOI that they have proactively published on the above said website a ‘Template for Information Handbook under the RTI Act’ for every public authority under the Centre or States to follow in getting their respective handbooks/manuals on the enlisted 17 items under Section 4(1b) ready by the 12th of October, so to say the D-Day of the new Act.
Acknowledgement Receipt, a must
Next, only those kinds of information, which couldn’t be made available through the mandatory suo moto disclosures, may be applied for as per the procedure given under the Section 6. It goes without saying that besides fixing the application fee and other fees as minimal as possible as expected under the Section 7(5) of the Act itself, the Rules should prescribe the provision for an acknowledgement receipt to be instantly issued to the applicant, which, like an FIR received from a Police Station, would enable him to pursue his case all through, especially when the aggrieved applicant wants to make the first appeal before the departmental appellate authority, or a complaint or the 2nd appeal before the Information Commission.
Barely necessary- a time limit for disposal of the Complaint and Appeal
The Rule makers at both Central and State level should address to a very, very serious and visible lacunae in the Act in the very interest of realising the true intentions of this unique legislation. While there is time-limit provided for disposal of an application for information (ordinarily 30 days –Sec 7) and of the 1st appeal [ordinarily 30 days- Sec 19(6)], no such time-limit has been stipulated for disposing of the complaint and of the 2nd appeal made before the Information Commissions under the Sections 18 and 19 respectively. Without such a time-limit to bind the process of adjudication of a case by the Commission, the latter which has been accorded the quasi-judicial status of a Civil Court [Sec 18(3)] and which shall enjoy the benefits more or less equivalent to that of the Election Commission [Sec 13(5) and Sec 16 (5)] shall, whether anybody wants or not, degrade itself in practice and in due course to such type of quasi-judicial Commissions in the country such as Human Rights Commission, Scheduled Caste and Scheduled Tribe Commission and Lok Pal etc., which though enjoying powers of a Civil Court have utterly failed to provide time-bound redressal to the public grievances and in stead turned white elephants.
Information Commissions: a human touch required
A large chunk of the text of the new Act is occupied by the provisions relating to the Information Commissions at Central and State level, which are conceived as, so to say, the very fulcrum of the new information regime. Such Commissions, as the Sections 12 (4) and 15(4) inter alia say, are expected to act ‘autonomously without being subjected to directions by any other authority under this Act’. Once formed, the Information Commissions, being statutory bodies, can’t be dissolved and reconstituted at the sweet will of the ruling party/coalition (Sections 12 to 17), except the extraordinary power of the President and Governor to suspend and dismiss an individual member of the Central Commission or of the State Commission respectively, and that too, on the proven ground of misdemeanour as enquired into and reported by the Supreme Court. (Sections 14 and 17). The annual reports on the progress of the RTI Act at national and State level shall be ultimately prepared by these Commissions for presentation to Parliament and State legislatures respectively. More significantly, the said Reports shall also carry recommendations for administrative and legislative reforms necessary for further expanding the citizen’s access to information under this law. Besides, the Commissions have sweeping powers to penalise a defaulting Public Information Officer with a fine of Rs.250/- per day upto a maximum of Rs.25,000/- and also with disciplinary action against him ( Section 20). At the same time the Commissions can order a compensation to be paid by the defaulting public authority for the loss or detriment suffered by the applicant citizen under the Section 19(8b). Above all, the Commission apart from being the highest appellate authority under the Act, has the duty to receive directly any complaint from any citizen against the recalcitrant attitude or behaviour of any public authority in respect of the discharge of obligations under the Act (Sec 18).
Under the circumstances, the Information Commissions to do justice to the multidimensional role (investigative, adjudicative, supervisory, and corrective) expected of them, should be provided with adequate infrastructural facilities including modern gadgets of communication necessary to swiftly contact and converse with the concerned parties in the field as and when need be. Unlike the conventional law courts, the office of the Commissions should also provide for adequate sitting and waiting arrangements along for the persons to visit in connection with their complaint or appeal. Unless the performance and propriety of the Information Commissioners match with their perks and powers, the magnificent architecture of an independent and autonomous Commission, as drafted under the Act shall collapse in no time, causing thereby a double disaster to the nation- extravaganza and hypocrisy.
The RTI Act just in the manner of Section 76 of the Evidence Act 1872 embraces the three principal organs of State- executive, legislative and judiciary- that together constitute the sovereign authority, within the purview of the citizen’s right to information. The Section 2 of the Act inter alia declares the Chief Justices of Supreme Court and High Courts as Competent Authorities, who are obliged to frame Rules on the matters specified under Section 28 of the Act to give operational effect to its provisions, applicable to themselves and to all subordinate courts and their administrative offices, who are deemed public authorities under the Act. Just read the Section 5(1), that says, “Every public authority shall, within one hundred days of the enactment of the Act, designate as many officers . . . . in all administrative offices under it as may be necessary to provide information to persons requesting for the information under the Act.” And today is already the 102nd day of the said enactment. Have the Supreme Court or our High Court complied with this obligation under the law even by today ?
As a matter of fact, to our pleasure, the Orissa High Court Rules 1948 does already contain an elaborate set of rules for providing information to the members of public, which can be easily and suitably redesigned to serve the purpose under the new Act. The judicial and legal fraternity know very well that many, many people in our country remain in complete dark for years on end about the progress of their cases at the level of the Courts. The professional lawyers have also not proved a great help to them in this regard, since they themselves feel handicapped, due to various reasons, in getting the exact and timely information about the status of a case they happen to handle, from the concerned offices of the Court. So it is hoped that the Supreme Court and the High Courts shall frame the Rules under the RTI Act in such a manner that the main query to be made by the concerned citizens about the status, next date of hearing and possible date of disposal of a pending case is squarely met as expeditiously as possible, as also required under Section 7 (1) of the Act.
Whatever may befall its actual fate in future, the RTI Act 2005 shall go down in the annals of India’s legislative reform for its recognition in no uncertain terms certain unique principles of jurisprudence as characteristic of a democratic polity in true sense of the term. It is worth looking into some salient ones-
· The new Act presumes the citizen to be innocent, but the public authority as a potential defaulter. The Section 19(5) of the RTI Act says, “In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or the State Public Information Officer as the case may be.” Again, the Section 20(1) of the Act says, “the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the state Public Information Officer, as the case may be.”
· A citizen has now the same right as that of a legislator- As well-known, the Section 8 of the RTI Act lays down various grounds of exemption from the disclosure under the Act, such as sovereignty and integrity of the country, foreign relations, contempt of court, privilege of the legislature, cabinet papers and the like. But after such exempted grounds are listed out under the sub-section (1), the saving proviso occurring at its end says, “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” Similarly, the exemptions are also not absolute on other counts. For instance, the subsection 1(j) says, “the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken , and the matter is complete and over”.
· No locus standi problem- As all of us experience, quite many petitions are not admitted by the Courts simply on the ground that the petitioner has no substantial connection or interest with subject matter of the petition. Most of our current laws and rules and regulations even including the Orissa High Court Rules 1948 require an applicant to state the purpose of seeking a piece of information or redress of a grievance, failing which his application shall not be entertained. But the RTI Act 2005 in its Section 6 (2) clearly says, “An applicant making a request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.” Again, except the application fee to be prescribed, the applicant needs no stamp paper or a given format for applying for the desired information. Just a plain sheet of paper and a little writing skill in mother tongue are sufficient to enable a person to make an application for information or approach the Information Commission directly by way of a complaint against the derelict public authority. So under the circumstances, any body can become an advocate for any other person in the matter of securing an information from a public authority, whom the other person due to some handicap or the other might not be able to approach for the purpose.
· No body is absolutely exempt from the purview of RTI law
On a plain reading, the Act in the first para under Section 24 (1) exempts 18 nos. of the security and intelligence agencies of the Centre as listed under the Second Schedule from the purview of citizen’s right to information. Similarly, the Section 24(4) provides for each State Government to notify a list of such agencies under their control for the said purpose. Thus ordinarily, a citizen won’t have to apply to these agencies for this or that information under the Act. But the proviso commonly added to the said sub-sections under Section 24 clearly says, “…..the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section”. Further, ‘such information shall be provided within 45 days from the date of the receipt of the request.” Another proviso to the said sub-sections says that only after the approval of the concerned Information Commission, the requested information can be supplied. So it becomes the job of the enlisted agency itself to get the timely approval or otherwise of the Information Commission for the disclosure of the requested information, so as to comply with the said time-limit as specified. Thus, no public authority is absolutely immune from its obligation to disclose information under the Act.
Article 74(2): Ironically, the Constitution, which is supposedly the mother of all legislations including the RTI Act itself still remains, thanks to some of its notorious provisions, the prime prop for maintenance of official secrecy at various levels of governance including the top functionaries of the State. It is strange but true that the President of India Dr.A.P.J.Abdul Kalam while assenting the RTI Bill in June last, pleaded for excluding the Rashtrapati Bhavan from the purview of the Act on the ground that the article 74(2) of the Constitution debars even the Courts to call for the records pertaining to the correspondence between the President and Council of Ministers, let alone a common citizen. Moreover, the same constitutional provision Dr.Kalam has been quoting before the Nanavati Commission in support of his hesitancy to disclose what transpired between the former President and former PM in respect of the measures to address to the Gujurat riots of 2002. So unless and until the Constitution’s controversial article 74(2) be removed or amended suitably, the abovesaid provision made under Section 8(1j) for ensuring transparency of the cabinet functioning can’t materialise at all.
Oath of Secrecy: As everyone knows, a Minister-designate at Centre or in a State, before assuming his office is sworn in an Oath of Secrecy along with an Oath of Affirmation as mentioned under the Third Schedule of the Constitution. Ironically enough, the said Oath binds a Minister not to disclose any official information to any member of the public by whose votes he was elected and then chosen as a Minister as such. It is simply anathematic to think that a Minister who is at one stretch both a leading member of the legislature and as well the executive head of a Government Department should utter such an oath of secrecy, the like of which is not found anywhere in the democratic world even including England which had perfected a regime of secrecy in India during their long colonial rule. Moreover, is it not simply ludicrous to hear that the very Ministers who legislated the Right to Information for the citizens, should continue to swear by an Oath of Secrecy because it is in the Constitution? The only happy thing is that the National Commission to Review the Working of the Constitution in their Report of 2002 have pleaded for abolishing the Oath of Secrecy and its replacement by an Oath of Transparency.
(Presented by the author in the Seminar on Right to Information Act 2005 held under the aegis of Orissa High Court Bar Association on 24th Sept. 2005 at Cuttack)
Author:Chitta Behera, 4A Jubilee Tower, Choudhury Bazr, Cuttack-9, Mob: 9861091455,
PH: 0671-2623518 Email: chittabehera@rediffmail.com