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The Right to Information : A Tool For Good Governance And How to Use RTI Effectively ?

The Right to Information : A Tool For Good Governance And How to Use RTI Effectively ? By: Abdul Hafiz Gandhi, Research Scholar, JNU. Email: abdulhafizgandhi@gmail.com www.facebook.com/abdulhafizgandhi Mob.: 09953585693 26 th March, 2013 11.30 am to 1.30 pm

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The Right to Information : A Tool For Good Governance And How to Use RTI Effectively ?

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  1. The Right to Information : A Tool For Good Governance And How to Use RTI Effectively ? By: Abdul Hafiz Gandhi, Research Scholar, JNU. Email: abdulhafizgandhi@gmail.com www.facebook.com/abdulhafizgandhi Mob.:09953585693 26th March, 2013 11.30 am to 1.30 pm Organised by: Faculty of Law, Aligarh Muslim University, Aligarh, UP.

  2. Why we need RTI? • Culture of secrecy prevalent in government • Lack of accountability in public offices • Lack of knowledge as to where to go for information • Badly maintained records • To make government more responsive

  3. Democratic process and good governance Information is Key to Curb corruption and Inefficiency in public offices Human development Realization of human rights

  4. Chronology of Freedom of Information Laws Sweden 1766 Colombia 1888 Finland 1951 USA 1966 Denmark, Norway 1970 France 1978 Australia, New Zealand 1982 Canada 1983 India 2005 (But prior to this, state legislations were there)

  5. Status of RTI Laws on the Planet

  6. Chronology of Right to Information Laws in Indian states : • Tamil Nadu and Goa 1997 . Rajasthan, Karnataka 2000 • Delhi 2001 • Maharashtra, Assam 2002 • Madhya Pradesh 2003 • Jammu and Kashmir 2004

  7. Status of RTI Laws in India

  8. Decisions of Supreme Court of India making right to information as ‘Fundamental Right’ In Bennett Coleman v. Union of India, in 1973, Supreme Court of India ruled that the right to freedom of speech and expression guaranteed by Art. 19(1) (a) included the right to information. • In State of UP v. Raj Narain, in 1975, Justice Mathew explicitly stated: It is not in the interest of the public to ‘cover with a veil of secrecy the common routine business … the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.’ Maneka Gandhi v. Union of India [AIR 1978 SC 597] Justice V.R.Krishna Iyer observed that ‘a government which functions in secrecy not only acts against democratic decency but also buries itself with its own burial’

  9. • In S.P. Gupta v. Union of India, in 1982, the right of the people to know about every public act, and the details of every public transaction undertaken by public functionaries was illustrated. • In Secretary, Ministry of I & B, Government of India v Cricket Association of Bengal, in 1995, the Supreme Court held that the right to impart and receive information from electronic media was included in the freedom of speech. • In People’s Union for Civil Liberties v. Union of India, in 2004, the right to information was further elevated to the status of a human right, necessary for making governance transparent and accountable. It was also emphasized that governance must be participatory.

  10. Justice Mathew of Supreme Court of India ruled in the Raj Narain case,1975, "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to knowevery public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security."

  11. Constitutional Provisions for RTI • The Right to Information is a fundamental right under theConstitution of India • Information is necessary to form and express opinions, dissent or support on any matter. It is therefore a part ofArticle 19 (1)(a) • Information is necessary for protection of the right to life and liberty. It is therefore the part ofArticle 21 also.

  12. This right started to be recognized by Indian judiciary by 1970s. This right was difficult to enforce without going to the Higher Judiciary. One needed to approach Supreme Court and High Courts under Article 32 and 226 to enforce this right. The Right to Information Act, 2005 is a codificationof this important right of citizens.

  13. Why was there need for RTI? Because overriding all these, was the Official Secrets Act, 1923 whichthrew a veil of secrecy on Government procedures/processes. Because Article 19(1)(a) is not absolute right and has reasonable restrictions under Article 19(2)

  14. Section 5 of the Official Secrets Act, 1923 Section 5 (1) of the Official Secrets Act, 1923 says- The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this Act. Thus in the name of sovereignty, information was kept in secrecy.

  15. But openness of governmental processes is conducive to good governance

  16. Key Attributes of Good Governance • Transparency • Responsibility • Accountability • Participation and • Responsiveness (to the needs of the people) Transparency andAccountability for

  17. Need for a Law on Right to Information • To make access to information a reality for every citizen • To make operational the fundamental right to information. • To set up systems and mechanisms that facilitate easy access to information. • To promote transparency andaccountability and enable people’s participation in governance. • To minimize corruption and inefficiency in public offices.

  18. Historical Background • 1990- PM Mr. V.P. SINGH stressed on Right to information as a legal right, which need to be codified • 1994- A strong grass root movement spearheaded by MKSS ( Mazdoor Kissan Shakti Sangathan) created mass awareness and a demand for legislation • 1996- Press Council of India drafted a Bill • 1997- NIRD ( National Institute of Rural Development) Freedom of Information Bill,1997

  19. 1997- A working committee headed by Mr. Arun Shourie drafted the Freedom of Information Bill,1997 • 2000- Freedom of Information Bill, 2000 was tabled in the Parliament and after some debate was referred to a committee for review

  20. 2002- NDA Government enacted The Freedom of Information Act , 2002 but it never came into force. • 2004- The UPA Government finally tabled a new Right to Information Bill, 2004 in Parliament • 2005 – On 15 June, 2005, President Mr.APJ Abdul Kalam gave his assent and The Act became operative from 12 October, 2005 .

  21. RIGHT TO INFORMATION ACT, 2005 • The Freedom of Information Act, 2002has been repealed by the Right to Information Act, 2005. ( Section 31 of RTI, Act 2005 ) • This is a Central Act which extends to the whole of India except the state of Jammu & Kashmir. • The Act contains 6 chapters and 31 sections with 2 schedules .

  22. So What is Right to Information? Asking for and being given information as a matter of right

  23. What Right to Information Act does? • It establishes a process for accessing information held by public authorities • It ordinarily places an obligation on public authorities to give information • It provides a grievance redressal mechanism for citizens who have been denied information in an unreasonable manner

  24. Important Facts about RTI in India • Grassroot level movement • India is the only country to call it a ‘Right’ and not ‘Freedom’. • RTI, FOI, ATI

  25. Enforcement of the RTI Act, 2005 The provisions of section 4 (1), sections 5(1) and 5(2) sections 12, 13, 15,16, 24, 27 and 28 came into force at once, and the remaining provisions of this Act came into force on the one hundred and twentieth day of its enactment. ( i.e. after 4 months)

  26. Extract from the Preamble to RTI Act, 2005 • Democracy requires • an informed citizenry • transparency of information which are vital to its functioning • to contain corruption and • to hold Governments and their instrumentalities accountable to the governed • RTI declares that Sovereignty is vested in the Citizen

  27. A paradigm shift • From repressive regime of Official Secret • to • Practical regime of right to information • From office-centric • to • citizen-centric regime • thus promoting - transparency • - accountability • - containing corruption • Results: 1. Informed citizenry • 2. New relation between government and governed

  28. All Citizens shall have the Right to Information (Section 3)

  29. ‘Definitions – Section 2’ Information- 2 f • logbooks, • contracts, • reports, • papers, • samples, • models, • data material held in electronic form • Records, • documents, • memos, • e-mails, • opinions, • advice, • press releases, • circulars, • orders, Information about private bodies that can be accessed under existing laws by a public authority (Sec. 2)

  30. ‘Record’ - Definitions Any document, manuscript and file Any microfilm, microfiche and facsimile copy of a document Any reproduction of image or images embodied in such microfilm (whether enlarged or not) Any other material produced by a computer or any other device Sec. 2 (i)

  31. Section 2 (j) “Right to Information means the right to information accessible under this Actwhich 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 modeor through printouts where such information is stored in a computer or in any other device.

  32. What Right a citizen has under the Act • A citizen has right to information at par with the Members of Parliament. • A citizen has a right to seek information from a public authority which already exists and is held by the public authority. • The PIO is not supposed to: • create information; • to interpret information; • to solve the problems raised by the applicants; • to furnish replies to hypothetical questions. • The right includes: • inspection of work, documents and records; • taking notes, extracts or certified copies of documents or records; and • taking certified samples of material. • seeking information

  33. Seeking information • Identify the Public authority where the information is available • Draft focused questions • Submit the application to the PIO or APIO • Wait for the decision

  34. Competent Authority • Speaker Lok Sabha / Vidhana Sabha • Chairman of the Rajya Sabha / Legislative Council • Supreme Court and High Courts – Chief Justices • President of India or the Governor for all other authorities created by or under the Constitution • For UTs – Administrator (Lt. Governor) [Sec. 2(e)]

  35. Definition 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 order 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 fundsprovided by the appropriate Government. Note: What is ‘appropriate government’? Section 2(a)

  36. What is Public Authority? • Any authority or body constituted under the Constitution or law made by Parliament / State Legislature • Any authority or body constituted by notification issued or order made by Central /State Govts. • Any other body owned or controlled by the Central / State Govts. [Sec. 2(h)]

  37. PublicAuthority Duty of Pro-active Disclosure-Soul & Heart Section 4: Every Public Authority must publish these on a regular basis - 1. Particulars of its organisation, duties and functions 2. Powers and duties of its officers and employees 3. Procedure to be followed in its decision-making process, including channels of supervision and accountability 4. Norms set out by it for discharge of its functions

  38. 5. Information about rules, regulations, instructions, manuals & records used by its employees for discharging its functions 6. Statement of the categories of documents held by it or under its control 7. Details of any arrangement for consultation or representation by members of public in relation to policy formulation and implementation

  39. 8. List of boards, councils committees and other bodies consisting of 2 or more persons for getting advice including whether their meetings are open to the public or if minutes of meetings are accessible to them 9. Directory of its officers and employees 10. Monthly remuneration received including the system of compensation as provided in its regulations 11. Budget allocated to each of its agencies, indicating particulars of all plans, proposed expenditure and reports of disbursements

  40. Information Disseminators • Public Information officers (PIOs)must be designated in each Public Authority at the level of its administrative units or offices under it • Asst. PIOsmust be designated at sub-divisional or sub-district level [Sec. 5]

  41. Duties of PIO • Accept requests and give information within time limit • Assist those who cannot read and write to fill up application • Give information in the format requested as far as possible • If granting partial access give reasons why and the materials on the basis of which this decision was taken

  42. Appellate Authority (AA) First Appeal (Internal) [Sec. 12-19] The officer senior in rankto the PIO in the concerned public authority (Within 30 days from the date of refusal letter but delay may be condoned if sufficient cause is shown) Time limit = 30 days

  43. AppellateAuthority(AA) Second appeal(External) [Sec. 12-19] to Central/State Information Commission (within 90 days from the date of decision of first AAbut delay may be condoned if sufficient cause is shown) No time limit for CIC/SIC to decide on appeals Decision of CIC/SIC is binding Burden of proof lies on PIO for justifying denial of information Appeal against IC’s decision can be filed in High Courts/Supreme Court, not lower courts

  44. What is not open to disclosure? Section 8 • Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence • Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; • Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; • Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfiedthat larger public interest warrants the disclosure of such information;  • Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

  45. Information received in confidence from foreign Government; • Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; • Information which would impede the process of investigation or apprehension or prosecution of offenders; • Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers; • Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual; • Notwithstanding any of the exemptions listed above, a public authoritymay allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

  46. Time bound disclosure • All information about any event, occurrence or matter must be given after 20 years Except… • information relating to sovereignty, security, integrity, scientific and economic interest of the State • information that may lead to commission of an offence • Cabinet papers and records of deliberations of Council of Ministers , Secretaries and other officers • information that may lead to breach of privileges of Parliament and State Legislatures [Sec. 8(3)]

  47. ApplicationProcess [Sec. 6 & 7] • Apply in person or electronically request in English or local official language • Time limit for giving information 30 days • If information concerns life and liberty of a person must be given within 48 hrs • If information is given by third party then invite objections if any add 10 extra days • No action on application for 30 days deemed refusal (Reasons for seeking information shall not be asked)

  48. Fees payable • Must be reasonable. No fees for Below Poverty Lineapplicant • Application fees prescribed by appropriate Govt. (Rs.10/-) • Cost of giving information may be charged on the requestor (Details of fees and how the figure was arrived at must be given in writing) • Rs. 2/- per page; Rs. 50/- per floppy, others and samples - actual cost; inspection – 1st hour free, Rs. 5/ - every subsequent 15min • Requestor may seek review of the fees from the Appellate Authority if it is unreasonable • Time between date of dispatch of intimation about fees and actual payment excluded while calculating 30 day time limit If information is not given within time limit it must be given free of cost

  49. CentralInformationCommission • 1 Chief Information Commissioner (5 yr term) and max. 10 Information Commissioners (ICs) ( one 5 yr term) • Central Information Commission to be based in Delhi • Chief Information Commissioner to be in Delhi but ICs could be based in other parts • Commission will be independent of Govt. control • CIC and ICs to be appointed by President • Names recommended by committee - PM (Chair), Leader of Opposition in the LokSabha and 1 Cabinet Minister nominated by PM

  50. State Information Commission • 1 State Chief Information Commissioner (5 yr term) and max. 10State Information Commissioners (SICs) (one 5 yr term) • State Information Commission could be in any part of the State – to be decided by the States • Commission will be independent of State Govt. control • SCIC and SICs to be appointed by Governor • Names recommended by committee - CM (Chair), Leader of Opposition in the Vidhan Sabha and 1 Cabinet Minister nominated by CM • Similar powers and functionsas Central Information Commission

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