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India’s national Right to Information Act (RTI) was approved by Parliament in May 2005 and came into force in October 2005. It has been described as “the most exciting experiment with FOIA-style laws in the world today – not only because of the number of people whose well-being could be improved, but also because it is being conducted under much more difficult circumstances than those prevailing in the early-adopter nations”. [1]

Background and History

In 1975 the Supreme Court ruled that access to government information was an essential part of the right to freedom of speech and expression, constitutionally guaranteed in article 19(1). [2] However, it would take over 20 years for any national RTI Act to be formally implemented.

Considering its status as a well established democracy with stunted economic development, India’s experience with RTI is relatively unique. The creation of India’s national RTI Act started in Rajasthan in 1990 with a grassroots movement known as the Mazdoor Kisan Shakti Sangathan (MKSS). In an attempt to improve living and working conditions, farmers and rural workers held protests, marches and hunger strikes. When local authorities stated that the workers did not appear on the muster rolls (written records of employment and payment) and thus could not be entitled to minimum wage, the workers demanded to see the documents. Eventually, the Rajasthan authorities released the information and corrupt public officials were exposed. [3] After further mobilization and increased media interest in the movement, the government of Rajasthan appointed a committee to draft an RTI bill for the state in 1998, and in 2000 the Act was finally approved. The localised efforts of rural workers and farmers, many of whom were illiterate, would have a huge impact on the nation.

Inspired by the workers of Rajasthan’s ongoing efforts and their highlighting of the importance of RTI, The National Campaign for People’s Right to Information (NCPRI) was set up in New Delhi in 1996. The organisation relies on individuals who come from various sectors of society (including both the very poorest and the educated elite) and a number of whom were members of the original MKSS movement. In the same year as its creation, the NCPRI sent the central government the draft of a national RTI bill.

In 2002 a watered down version of the NCPRI’s proposed bill was introduced in Parliament. Whilst the bill was signed in 2003, it was never enforced simply because no date for its enforcement was ever set. [4] During this period, nine states passed their own RTI laws.

In 2004, the United Progressive Alliance (UPA) made a promise in its manifesto to pass a RTI Law, and when they won the election this promise honoured. In May 2005 the Right to Information Act was approved by Parliament and the following month it was signed by the President. In October the Act finally came into full force.

Legislation

The fundamental aim of the Right to Information Act 2005 is “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”. [5] India’s Act gives all citizens the right to ask for information from central government public authorities, as well as from public authorities under the jurisdiction of the states. The Act has a broad scope, covering local level bodies, public authorities set up by the constitution and bodies controlled or substantially financed by the government. [6] Furthermore, public authorities must undertake proactive disclosure of information and index all records.

Numerous exemptions apply, although they can be overridden if public interest in disclosing the information outweighs the harm to the protected interest. Information is exempt from the Act if:

  • Disclosure would affect the sovereignty, integrity, security or economic interest of the state or relations with other states.
  • Disclosure would lead to incitement of an offence, would endanger the safety of a person or identify a source used by a law enforcement body. Personal information (unrelated to any public activity) which would cause an invasion of privacy if released is also exempt.
  • Disclosure would impede an investigation, apprehension or prosecution of an offender.
  • Disclosure would break commercial confidence or publicise trade secrets.
  • The requested information is intellectual property and disclosure would harm the competitive position of a third party.
  • Information was obtained from a foreign government in confidence.
  • The requested information would breach parliamentary privilege.
  • Cabinet papers are also exempt.

Operation

Requests for information are submitted to a Public Information Officer (PIO), one of which must be appointed to every public authority. Assistant PIOs can also be given requests which must then be forwarded to the PIO. There is one central Chief Information Commissioner and twenty-seven state Chief Information Commissioners. [7] Citizens can request to inspect or copy information, inspect public works or take samples. Requests for information must be answered in writing within 30 days, however, a 48-hour limit is imposed if the requested information concerns the life or liberty of a person.

If a request for information is rejected, the RTI Act allows for appeals to be made, similar to the UK system. Firstly, a requester can appeal to an officer senior to the PIO. The requester can then make a second appeal to the State or even Central Information Commission. Information Commissions have the power to investigate particular cases, make necessary decisions to ensure compliance with the Act, order compensation to be made and impose penalties if rules have been broken by public authorities (such as delaying the provision of information or providing false information). [8]

How is RTI working?

As David Banisar explains, “implementation of the Right to Information Act has been varied across the country”, [9] just as results have altogether been mixed. [10] In 2009, two large-scale assessments of RTI in India were produced; one by the RTI Assessment and Analysis Group (RaaG) and the National Campaign for People’s RTI (NCPRI) and another by PricewaterhouseCoopers (PWC).

RaaG and NCPRI’s vast study covered villages and towns across ten states of India (plus Delhi). By interviewing 17,000 people (including PIOs and users of RTI) and holding 630 focus groups, along with inspecting the offices of 1,027 public authorities and filing over 800 RTI applications, RaaG and NCPRI were able to gain insight into how well RTI was functioning in its first few years.

Of those they interviewed, 45 per cent of urban respondents claimed to know about RTI whilst very few who lived in villages knew of the Act. It appeared that the government had not been a major force in raising public awareness of RTI. RaaG and NCPRI estimated that in the first two and a half years since the RTI Act was passed, 2 million requests for information were submitted (400,000 in rural villages and 1.6 million submitted in urban areas). PWC estimated that 850,000 RTI requests were made in 2008 alone but that only 15 per cent of the general public were aware of RTI.

RaaG and NCPRI found there to be eighty-eight different sets of RTI rules, providing some explanation for the inconsistency of implementation across the country. Furthermore, Information Commissions who took part in the study stated that there was no uniformity in their funding or staffing, little financial or infrastructural support provided by the government and a need for norms to be developed. Shockingly, 50 per cent of rural PIOs did not hold a copy of the RTI Act. In their study, PWC found that only half of PIOs had received adequate training and many offices lacked essential equipment such as photocopiers and computers. [11].

The research carried out by PWC highlighted the fact that a RTI request can ultimately cost much more than the standard ten rupee application fee. Requesters often have to make repeated requests and follow-up visits to obtain the information they want. As with RaaG and NCPRI’s findings, PWC found that RTI requesters could also pay a psychological fee, with public officials displaying intimidating and threatening behaviour as well as physically attacking requesters on occasion. Interestingly, 40 per cent of rural respondents stated that hostility, intimidation and threats from officials were the most significant obstacles they faced in making an RTI request. This figure was 15 per cent for respondents who lived in urban areas. “RTIA is construed by some officials as an assault on long-standing power relationships, particularly in rural areas”. [12] This worrying aspect of RTI in India is discussed in further detail below.

The appeal mechanisms established within India’s RTI Act seem to be failing. When a first appeal is made (as outlined above) it is common for the senior official to support the PIO’s initial decision. The second step in the appeal process is also riddled with bias as many Chief Information Commissioners at both state and national level are ex-members of the Indian Administrative Service (an elite group who have much power within Indian bureaucracy). [13] The credibility of appeal mechanisms is therefore questionable.

Interestingly, unlike in other countries with Freedom of Information regimes, two groups are not using RTI in India: aggrieved government employees and the media. Whilst national and local media has covered RTI focussed stories, they are yet to use RTI for investigative journalism. [14] With regard to demographics of RTI requesters, significantly more males have made use of RTI than females according to RaaG and NCPRI (over 90 per cent of rural applicants were male, and 85 per cent of urban applicants), and males are altogether more aware of the Act then women (PWC).

RTI has not, however, solely been used to simply access information held by public authorities: Indian citizens have used RTI requests as a means of keeping officials in check. For example, when applying for a driving license or passport, an RTI request can be used to track the application’s progress, thus “keeping an eye” on those handling the application, and allowing the applicant to show an awareness of their rights. In this way, RTI can almost be used as a threat and decreases the opportunity for officials to demand bribery payments, a recurring problem in Indian bureaucracy.

Right to Information Martyrs

Unfortunately, RTI activists and users who have sought to unearth corruption and improper conduct have been the targets of violent attacks. In numerous instances, parties have learnt of RTI requests concerning them and attacked the requester in an attempt to stop the damaging information from becoming public. Tragically, in well over a dozen cases (the exact figure is not known), advocators of RTI have been killed. Amitabh Thakur and his wife initiated the formation of the National RTI Forum following the deaths of a number of RTI activists, and began writing a book to pay homage to the RTI martyrs of India. [15] The Central Information Commission has recently taken measures to protect RTI users. Any attack on a requester will now prompt the immediate release of the information they have sought. Therefore whilst violence has in the past been used to stop the releasing of information via RTI, the opposite will now apply. It is hoped that the initiative will act as a deterrent, and is supported by RTI users. [16]

Recent developments and issues

Whilst implementation and use of RTI in India has been varied and bought with it violence, Roberts stresses the need to be optimistic. [17] RTI in India has been innovative and used as a “laboratory” for new initiatives. For example, Indian citizens are able to use their mobile phones to track the progress of the RTI requests, and in Bihar RTI requests can be made using a toll-free number and request fees are then charged to the phone bill. Considering these technological innovations, India’s experience with RTI has been used as an example, and in 2010 the USA and India announced a joint effort to export lessons from India’s experience and encourage other countries to use technology as a means of increasing government accountability. [18]

[1] Roberts, A., 2010. A Great and Revolutionary Law? The First Four Years of India’s Right to Information Act. Public Administration Review, 70(6), p. 24

[2] The Constitution of India: http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss%286%29.pdf

[3] Puddephatt, A., 2009. Exploring the Role of Civil Society in the Formulation and Adoption of Access to Information Laws, p. 23

[4] Puddephatt, A., 2009. p. 25

[5] Right to Information Act, 2005: http://righttoinformation.gov.in/webactrti.htm

[6] Banisar, D., 2006. Freedom of Information around the World 2006: A Global Survey of Access to Government Information Laws, p. 85

[7] RTI Assessment & Analysis Group and National Campaign for People’s RTI., 2009. Safeguarding the Right to Information: Report of the People’s RTI Assessment 2008 (Executive Summary).

[8] Banisar, D., 2006. p. 85

[9] Banisar, D., 2006. p. 86

[10] RTI Assessment & Analysis Group and National Campaign for People’s RTI., 2009. p. 29

[11] Roberts, A., 2010., pp. 1-29

[12] Roberts, A., 2010.

[13] Roberts, A., 2010.

[14] Roberts, A., 2010.

[15] Thakur, A., 2011. RTI Martyrs: Saluting the Brave. http://www.freedominfo.org/2011/02/rti-martyrs-saluting-the-brave/

[16] FreedomInfo., 2011. http://www.freedominfo.org/2011/10/indian-cic-takes-steps-to-stem-attacks-on-rti-users/

[17] Roberts, A., 2010.

[18] FreedominInfo., 2010. http://www.freedominfo.org/2010/11/u-s-india-seek-to-spread-transparency-experience/

Page last modified on 06 dec 11 18:00

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