Dr.V.C.VIVEKANANDAN

1. Dr.V.C.VIVEKANANDAN Director- Legal Information Institute of India- (National Academy of Legal Studies and Research University, Hyderabad) & Professor Ranbir Singh, Vice Chancellor, National Law University, Delhi vivek@nalsarpro.org / singhrabir@yahoo.com Auditing the Indian Right to Information Act 2005 and its Impact on information AccessTrack -Emerging Patterns of Information Access and Usage- LVI 2013 - Jersey

2. The Presentation • RTI- the concept • RTI- Legislations world wide • RTI-Indian context • RTI-The Act and salient features • RTI-Emerging case laws/issues

3. RTI- The concept • Changing role of Governance- • tribes to kings to presidents • King can do no wrong – • Magna Carta- “We the people”-Shift of Sovereignty- • Bureaucracy to Civil servants • Yet secrecy is the Viagra for private Power

4. RTI-Governance in Democracies • Governance is a tricky business in a democracy • Change or retention of Power is periodic • Opposition wants to audit • Emergence of Media and NGOs • Classified and De-classified information

5. RTI- the concept • Freedom of speech and Expression does not include Access to Information • First Amendment of Article 1 of US does not include access to information • The contribution of Empire- British Official Secrets Act

6. RTI- The Changing Paradigm • Sweden- Freedom of Press Act 1776 • USA-Freedom of Information Act 1966 • Hungary-Freedom of Information Act 1992 • Thailand-Official Information Act 1997 • Latvia, Bulgaria, Check –1998-2000 • South Africa 2000 • India -2002 • UK waits till 2005

7. RTI –the dynamics • Moral Indictment of Official Secrecy ? • Strategic change of Governance ? • Growing power of Media ? • Changing tactics of Politics ? • A tool for market and economic growth?

8. : International Covenant on International Dimension. • Article 19-ICCPR- • Everyone shall have the right to freedom of opinion. • Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.

9. Sawant committee • the Press Council of India headed by Justice P. B. Sawant, had, after the series of consultations with NGOs, journalists, lawyers and other public persons drafted the ‘Right to Information Bill’, which was comprehensive and powerful.

10. Jethmalani trigger • In 1999, when Mr.Ram Jethmalani –an eminent Criminal Lawyer-was the Minister for urban development, he passed an administrative order in his ministry that any citizen would be entitled to inspect and take photocopies of any file in his ministry. • In his order, Jethmalani pointed out that the Supreme Court had in at least two Constitution bench decisions held that the citizens have the right to get information about all aspects of government functioning.

11. Supreme court judgment • This was held on the basis that the fundamental right to speech and expression could be effectuated only if the citizens had effective right to access information available with the government. • It was also pointed out by the Indian Supreme Court, that in a democracy, all public servants exercise power only on behalf of the people and it would be an anathema if what they did were hidden from the people.

12. Supreme Court judgments • After these judgments there have been several other judgments of the Supreme Court where it has upheld the right to information as the fundamental right, including most recently the election reforms case where they directed the Election commission to compel disclosure by candidates of information regarding their criminal antecedents and their assets and liabilities.

13. The Government relents • Centre for Public Interest Litigation and Common Cause – a Delhi based NGO- in a writ petition in the Supreme Court seeking effectively three types of relief: • 1) That the Cabinet Secretary's restraint on Jethmalani's order be declared unconstitutional and violative of the citizens right to information; • 2) That section 5 of the Official Secrets Act, which makes it an offence for a public servant to disclose any information that has come to his knowledge in his official capacity, be declared unconstitutional;

14. Supreme Court directive • 3) That the government of India be directed to frame and issue suitable administrative instructions on the lines of the Indian Press Council's draft of “Right to information Bill” • After several adjournments finally Supreme Court ordered that by January 2003 hearing- the Government has to take its responsibility- thus RTI finally arrived

15. preamble ‘An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto’

16. OBJECTIVE • In the objectives to the Act -it is provided that ‘democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed’

17. Defining information • Section 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’

18. Public authority • Section 2 (h) – Public authority means ‘any authority or body or institution of self-government established or constituted • (a) by or under the Constitution; • (b) by any other law made by Parliament; • (c) by any other law made by state legislature; • (d) by notification issued or made by the appropriate government, and includes any • (i) body owned, controlled or substantially financed; • (ii) non-government organization substantially financed, directly or indirectly by funds provided by the appropriate government’

19. Other definitions • Section 2 (i) – record includes (a) any document, manuscript & file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device

20. What are the rights? • Section 2 (j) – right to information means ‘the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device

21. District Registrar & Collector v. Canara Bank (2005) 1 SCC 496 ‘Articles 19 (1) (a) & (d) and 21 – Right to Privacy of the person – right to freedom from unreasonable search and seizure – confidentiality of bank documents, telephone calls and correspondence – SC held that state cannot have unrestricted access to inspect and seize or make roving inquiries into all bank records relating to a person, without any reliable information before it prior to such inspection, Search, taking notes or extracts or seizure of the said documents would amount to a breach of confidentiality and be violative of privacy rights of customers of the bank, unless there is some probable or reasonable cause or basis, to be recorded in writing, or materials before the authority making or authorizing the search etc.’

22. Onkar Lal Bajaj v. Union of India (2003) 2 SCC 673 - • ‘Articles 21 & 14 – right to information – allotment of retail outlets, distributorships and dealerships of petroleum products – political patronage for allotment was alleged by the press – Under such circumstances, the public in general has a right to know under what basis their elected representatives got such allotments’

23. PUCL v. Union of India (2004) 9 SCC 580 • ‘section 14 of POTA – obligation to furnish information – intra vires articles 14, 19, 20(3) and 21 – Neither a lawyer can claim professional communication beyond what is permitted u/s 126 of Evidence Act, nor is there any law permitting a newspaper or a journalist to withhold relevant information from courts, nor can withholding of such information be traced to the right to privacy, which itself is not an absolute right’

24. Emerging Pattern- • The Implementation of the Right to Information Act of 2005 in India has heralded a new jurisprudence of empowerment to the people to audit and engage with the various issues of governance of Public Institutions. • The last eight years have seen the piercing of the veil of secrecy leading to accountability of the decision makers in various institutions of Government like that of the administration, education, Judiciary and Public Sector undertakings.

25. Right to legal information-LII of India • March 9 of 2011 saw the formal launch of LII of India by Hon’ble Law Minister of India –Dr.Veerapa Moily in Delhi with satellite launches at Hyderabad, Bangalore and Kolkata • Eight partners of AustLII, NALSAR- Hyderabad, NLU-Delhi,NLS-Bangalore NUJS-Kolkata, GNLU-Ahmedabad, TNDALU- Chennai, RGNLU- Patiala

26. The Latest in the landscape of information • Hearing two separate complaints filed by the RTI activist Subhash Chandra Aggarwal and Anil Bairwal of the Assosication of Democratic Reforms, the Central Information Commission (CIC) has held that the political parties are covered under the definition of the public authority as defined under section 2(h) of the Right to Information (RTI) Act, 2005.

27. CIC order • 1. Substantial financing by the government (both direct and indirect) for the political parties: • a)      large tracts of land in prime areas are provided to them • b)      huge government accommodations at subsidized rates • c)      income tax exemptions given to the parties d)      free air time given by All India Radio and Doordarshan )      electoral rolls given by the Election Commission

28. CIC order – cont. • 2. These parties perform public duty and vested with rights and liabilities. • The political parties affect the lives of the citizens, directly or indirectly in every conceivable way and are continuously engaged in performing public duty. • In spite of being non-governmental, the political parties come to wield or influence exercise of governmental power. • It is, therefore, important that they become accountable to public.

29. The Parties strike back • The Cabinet of the Indian Government approved an amendment to Section 2(h) of the Act on the grounds that political parties are not public authorities and, hence, this law does not apply to them. • The second amendment says that parties cannot be brought under the Act regardless of any order passed by a court or a tribunal.

30. Campaign of Public Activists • Pressure of public opinion and protests by activists forced the government to shelve its plan to exclude political parties from the ambit of the Right to Information (RTI) Act and refer the proposed amendment to a parliamentary committee.

31. Spin offs- National Data Sharing and Accessibility (NDSAP) initiative • Though there is resistance in certain quarters on the information access and usage, there has been a steady and concrete influence among the policy makers that an open government and enlarged information access results in development and restoration of faith in democratic processes. • In this context a new Policy draft of the National Data Sharing and Accessibility has been initiated by the Ministry of Science and Technology of the Government of India which aims to share non sensitive data in the form of digital and analog form created by various Government Departments/Subordinate offices/agencies of the Government to the public aimed at socio economic development in a proactive and open manner.

32. NDSAP aims to • 1. Opening up of the information out of the Government System • 2. Makin available of the Accurate, Reliable and Unbiased information • 3. Providing single data portal for the country for data sharing • 4. Establishment of a platform to promote innovation in government applications • 5. Enhancing government Transparency, Accountability and Public Engagement • 6. Effective utilization of Government data by providing meaningful visual representations • 7. Enabling development of Innovative Applications around datasets or mash-up from multiple datasets hence giving different perspectives to government data • http://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines-2.1.pdf

33. Do you know this ? • A last word- what does ‘okami’ in Japanese mean ?

34. ‘okami’ • ‘okami’ means GOD and Bureaucrats are referred as ‘OKAMI’

36. A last word • Thank you • Any questions ? • vivek@nalsarpro.org • www.nalsarpro.org • singhranbir@yahoo.com • www.nludelhi.org