Thursday, January 10, 2013

Lacunae in the Right to Information Act, 2005

 “A rights-based enactment is akin to a welfare measure. [It] should receive a liberal interpretation.[1]

The Right to Information Act boosts transparency and eliminates exceptions provided under the Freedom to Information Act, 2000 and the Official Secrets Act, 1923 which take away accountability. Since its enactment in 2005, the RTI Act has played a significant role in increasing transparency in government offices.

 It requires government officials to furnish information requested by citizens and provides for computation of services[2]. It gives people the power to exercise far greater control over corrupt and arbitrary power and thereby to enforce transparency and accountability[3]. Indeed, the most effective check on corruption would be where the citizen has the right to take the initiative to inquire about the activities of the state.  In a recent case the Under- Secretary of the Finance Ministry Jagbir Sigh Phaugat said while deeming a settlement between the Central Bank of India and a whistleblower, Abhijit Ghosh, illegal that “The agreement debars Ghosh from his constitutional rights of freedom of press and no one can debar A person form invoking the provisions of the RTI  Act.”[4]

This Act along with various Central and State government established vigilance commissions has considerably reduced corruption and has opened up avenues to redress grievances.
However, there are still some lacunae in the Act that need to fix in order to ensure smooth functioning. For example, the Section 20 of the Act, which deals with Penalties, does not specify on how to recover the penalties imposed on officials who have acted malafidely or negligently. The Act is also silent on the quantum of the penalties. This makes it difficult for the State Chief Information Commissioner’s to recover the penalties.
Section 6(1) of the Act provides that any person who desires certain information may make a request in writing to the Public Information Officer of the public authority. The Public Information Officer (PIO) is requires to provide the information within a period of 30 days, failing which s/he shall be deemed to have refused to provide the requested information. Section 19(1) of the Act, gives the person requesting the information the right to file the first appeal to an officer who is senior in rank to the PIO in the concerned public authority, if s/he does not receive the PIO’s reply within 30 days or is aggrieved by the reply or information provided by the PIO. The first appeal is also required to be disposed of within 30 days or an extended period of not more than 45 days[5]. Section 19(3) provides for filing of a second appeal before the Central Information Commission (CIC) or the State Information Commission (SIC). However, the RTI Act does not provide any time limit for the CIC or SIC to give the decision of the second appeal. This is one of the biggest lacunae in the Act, since the person requesting information is left with no choice but to approach the Court if the decision is not received for an unreasonably long time. Other than that the person can only send reminders to the CIC or SIC and pray for an early decision.
Another Lacuna was pointed out by one of the retired State Chief Information Commissioner Vilas Patil. He reportedly stated that Section 4[6] of the RTI Act says that government authorities ought to voluntarily and ‘suo motu’ disclose information. However, this provision is unclear as to who will be held accountable for disclosing of the information, in case the government authorities do not act on the request.
Retired State Chief Information  Commissioner: Vilas Patil
Retired SCIC:  Vilas Patil
Furthermore, the Act must lay down some high qualifications required for different officials such as the Information Commissioner. On 13 September 2012 in the case of Namit Sharma v Union of India[7] the Supreme Court held that only a sitting or retired Chief Justice of a High Court or a Supreme Court judge could head the Central and State Information Commissions.
Also, the power given to various government authorities to make rules regarding RTI has led to numerous fee rules. (Image taken from here.)
Section 8 of the Act is perhaps the most important provision, since it enlists cases in which authorities are exempted from the obligation disclosing information. Section 8(1)(j) of the Act provides an exemption for Public authorities to disclose information which relates to personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. The term ‘Personal Information’ is capable of wide interpretation and has often been an issue in several cases. It is of the utmost importance that Section 8 list, not necessarily exhaustively, some aspects which would fall under ‘personal information’. This can be done by reference to already existent precedents and case laws. Enlisting matters which fall under personal information may prove more beneficial than attempting to give it a clear-cut definition, like the definition that has been given by Central Information Commission for the term ‘Intrusion of Privacy’.
Thus, it can be seen that several provisions of the RTI Act are open-ended need to be amended in order to eliminate the huge lacunae present in it. 
“Let people have the truth and freedom to discuss it and all will go well.”[8]

This article reflects the position of law as on November 14, 2012
* The author is a student of Government Law College, Mumbai and is presently studying in the Third Year of the Five Year Law Course.
[1] The Delhi High Court judgment by Justice Ravindra Bhat’s order in WP(C) No. 3114/2007 
[2] R.K. Gupta P.K. Saini, Right to Information Act, 2005: implementation and challenges, Deep and Deep Publications, 2009, 350;
Equitable Tourism Options (EQUATIONS), Humanity-Equality-Destiny? - Implicating Tourism in the Commonwealth Games, 2010, 69
[3] Harsh Mander and Abha Joshi, The Movement For Right To Information In India: People’s Power for the Control of Corruption, 1
[4] Marpakwar, Prafulla, “Bank - whistleblower deal illegal”, Times of India, 24th December, 2010.
[5] Section 19 (6) of the Right to Information Act, 2005 ‘An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.’
[6] ‘4. Obligations of public authorities:- (2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.’
[7] Writ Petition (Civil) No. 210 of 2012
[8] Bryce, Chapter X, The press in a democracy, 104-124 at 105

Keywords: lacunae in rti, right to information act 2005, State Chief Information Commissioner, Personal Information Section 6, Section 8, Vilas Patil


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