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KEY TRENDS
• Right to Information enacted in 2005 is meant to ensure transparency and accountability in governance
• The RTI (2005) is considered as the most effective tool to counter corruption and empower citizens
• Freedom of expression is protected in Article 19 of the Constitution of India*
• In 1982, the Supreme Court of India ruled that access to government information was an essential part of the fundamental right to freedom of speech and expression*
• The Freedom of Information Act 2002 (FOIA) was passed in December 2002 by the Government of India and received the Presidential assent in January 2003*
• In the early-1990s, in the course of the struggle of the rural poor in Rajasthan, the Mazdoor Kisaan Shakti Sangathan (MKSS) hit upon a novel way to demonstrate the importance of information in an individual's life -- through public hearings or Jan Sunwais*
• The Right to Information Act suffers from the problems of a weak infrastructure and public information officers (PIOs) who are unaware of their exact role**
• Rural residents overwhelmingly see information as key to solving village problems**
• Most applicants had relied on help from friends, family or NGOs in filing their RTI applications**
• Every State has its own set of RTI fee and mode of payment rules. In some States, the application fee is Rs 10 and can be paid by IPO; in others it is Rs 20 and can only be paid by Demand Draft or a court fee stamp issued in that particular state**
* Final Report of the Vision Foundation (2005), Planning Commission, Government of India
** Safeguarding the Right to Information-Interim Findings of the People’s RTI Assessment 2008, October 2008, conducted by RTI Assessment & Analysis Group (RaaG) and National Campaign for People’s Right to Information (NCPRI) (in collaboration with other institutes/ organizations)
**page**
According to Evidence-Based Research Mobilising Action for Policy-Influencing in Two Provinces: Policy Changes under the Right to Information Act in India, which has been prepared by Vikas Jha, Society of Participatory Research in Asia (PRIA), March 2010, http://www.pria.org/docs/RTI%20Case%20Study%282%29.pdf:
• In India, in the last 15 years, there has been a fifteen-fold increase in Central Government Budget spending on anti-poverty programmes from around Rs.75,000 million in 1993-94 to well over Rs.1,20,0000 million in 2008-09. Yet, inefficient and leaky delivery mechanisms have resulted in the diversion of resources, and merely marginal improvements in the condition of the poor.
• The government of Bihar has moved ahead and created mechanisms which have had tremendous influence on compliance with RTI in India, while the government of Uttar Pradesh has not responded to evidence-based research and community mobilisation.
• Socio-economic indicators in Bihar and Uttar Pradesh are more or less similar, predominantly due to the crisis of governance in the two states. Public institutions have largely become non-accountable and non-responsive to citizens. A study by Transparency International India and the Centre of Media Studies, 2007, covering 11 services with a focus on Below Poverty Line families demonstrates that Bihar and Uttar Pradesh have alarming levels of corruption. These studies substantiate the citizens’ perception that elected representatives and public officials work for themselves and not for citizens.
• From a study conducted by Participatory Research in Asia between April to September 2006, it could be assessed that in Uttar Pradesh and Bihar, there are several instances of PIOs refusing to accept applications. Government officers are frequently absent from office and nobody accepts the application in his absence. In Uttar Pradesh’s Bahraich district, PIOs refused to accept the fee by postal order saying that they do not have a Government Order for the same, whereas the government has already passed the order that the fee can be paid by postal order. Most of the time, information provided was partial or half-baked.
• Regarding the role of the Information Commissions, the findings pointed out that the SICs are very reluctant to penalize PIOs for dereliction of duty i.e., denial of information to the public. In some provinces like Bihar, Jharkhand, Uttar Pradesh, Himachal Pradesh, Haryana and Rajasthan, the constitution of the SIC was delayed by several months.
• It was also found that SICs were not provided adequate infrastructure, e.g. office space, computers, staff, funds and so on. For example, the Uttar Pradesh SIC has a very heavy workload, but only two Information Commissioners have been appointed.
• The Bihar CIC has recently taken oaths and the official address is still not available even on the website. People in rural areas also felt that the appeal process was very expensive. There is a provision for sending the appeal by post but people feel that in their absence, their case would not be presented properly.
• On the government’s role in educating people, the study pointed out that a large percentage of people (nearly 90%) are not aware of the Act which becomes a hindrance in the filing of applications. In all the states utilisation of the RTI is far less in rural areas as compared to urban areas. The government has not undertaken any campaign, either in the electronic or print media, for making RTI popular among people, while it regularly launches campaigns on the achievements of the railways, health programmes and birthdays of politicians. So far, only one large-scale campaign has been launched on RTI, which was organized by NGOs and the media. Governments, both central and state level, have neither allocated adequate funds to nodal agencies for organising campaigns on RTI nor supported such activities in any other way.
• Community-based research was undertaken by a group of RTI activists in Bihar. They collected the qualitative data by conducting several meetings in the districts of Gopalganj, Siwan, Khagadia, Begusarai, Samastipur, Patna, Muzaffarpur and Madhubani.
• A research study was carried out by Sahbhagi Shikshan Kendra (SSK) in Uttar Pradesh in the districts of Sitapur, Bahraich, Varanasi, and Mirzapur. Kabir (an NGO from New Delhi) and Poorest Area Civil Society Project (PACS) partners Akhil Bharatiya Samaj Sangha had also taken up an initiative named Action Research Villages (ARV) in four districts (Banda, Chitrakoot, Allahabad, and Bahraich) of Uttar Pradesh in December 2006.
• The initiative began with the training of villagers on RTI so that they could participate in the research. The research and advocacy initiative was conducted over a period of one year to find out peoples’ opinion on RTI and its use, and how it affected the day-to-day lives of the villagers, changed overall village conditions and affected the reform of existing governance mechanisms.
• The research in both the provinces demonstrated that the people in rural areas faced tremendous difficulties in accessing information.
• The role of the Information Commission and the state government was found to be grossly inadequate. Regarding the role of the apex body of RTI, the UP State Information Commission, the research pointed out that poor disposal rate of appeals, citizens not being called for hearings, sympathy for bureaucracy and a wait of four to six months for appeals were common complaints of citizens. Such a state of affairs at the RTI’s apex body worried people, as it would lead to long waits where justice was indefinitely delayed.
• The research also demonstrated that people were able to solve small service delivery problems in housing, unemployment, roads etc. through RTI and expose cases of corruption in some districts (Bihar and Uttar Pradesh). The findings from the community-based research were shared regularly with the media through regular press briefs.
• Some of the research findings in Uttar Pradesh, such as corruption in the National Rural Employment Guarantee Scheme (NREGS), mid-day meals, scholarships and school uniforms were highlighted in newspapers, which built pressure on the government to take corrective action. Some cases of harassment of the common citizens were also highlighted in the media.
• PRIA in 2008 took up a study entitled “Review of Right to Information Rules in Seven States”. The study pointed out that the RTI rules framed by the states go against the letter and spirit of the RTI Act, 2005. It is a well-settled principle of delegated legislation in the federal structure of India that the rules made to enable legislation cannot go against the provisions of the parent Act they seek to enforce.
• The study finds that in many instances the rules were framed violating the provisions of the RTI Act.
• The Uttar Pradesh Government did not seem very comfortable with the widespread use of the RTI Act by common citizens. It tried to expand the list of exemptions by excluding 14 items from the purview of the RTI Act. These items were the appointment of the Advocate General; notifications related to the Uttar Pradesh Rules of Business 1975; the Government of India’s Allocation of Rules of Business; matters related to the other states’ rules of business; probe against ministers and Members of Parliament; all matters related to the Padma awards, appointment of the Governor; the appointment of ministers, ministers of state and deputy ministers; the code of conduct for the ministers and the Chief Minister’s instructions to them; the appointment of judges and the Governor’s monthly report that is sent to the President of India.
• A lot many civil society organizations demanded that the RTI Act should be followed in letter and spirit, a single window system should be created to facilitate access to information and RTI laws should be citizen-friendly. A demand for RTI call centres on the lines of Bihar was also made in Lucknow, the capital of Uttar Pradesh by Action Group for Right to Information (AGRI, a partnership and network group of RTI activists in the state) and national-level activists Arvind Kejriwal and Manish Sisodia.
• The Bihar Government established the ’Jankari’ call centre on 29 January 2007. The centre records the voices of the citizens over the phone and drafts the application in a manner that can be put before the Public Information Officers in the Public Authorities.
• Since a large chunk of the rural population is unable to read and write, the call centre is proving to be beneficial as it writes applications on behalf of the complainants. A sum of Rs. 10 is charged as fees (under the RTI provisions) and is automatically charged in the caller's telephone bill.
• Bihar is the first state in India to accept RTI applications on the phone with the objective of ensuring transparency in the functioning of public institutions and that of expanding the reach of RTI to the villages.
• The RTI call centre had a slow start but it has gradually picked up. The analysis of data of two years (2007 –2009) of the RTI call centre’s working shows that it has facilitated in the filing of applications and Appeals in a big way.
• A comparison of the data of six months in 2007 and 2009 on details of calls received at the call centre shows that the number of applications filed has jumped nearly three times from 2007 to 2009. The number of First Appeals and Second Appeals has seen a huge increase over these two years.
• The analysis of call details helps us find out the government departments which are getting the maximum number of RTI applications. The maximum number of RTI applications was filed in the Personal and Administrative Reforms Department and Rural Development Department.
• Interaction with community and civil society organisations in Bihar brought out the reasons for RTI usage in these two departments; community members said malpractices in huge recruitment drives for primary school teachers and in rural employment drives under the National Rural Employment Guarantee Scheme were the reason they wanted to find out whether entitlements were granted in a fair manner.
• The three- to four-fold increase in the number of queries over these two years substantiates the conclusion that the call centre has been able to educate and guide a number of citizens. Though the number of 12,628 (2009) seems to be quite small compared to the huge population of Bihar, this method of responding to RTI applications, appeals and queries assumes importance, as no such method exists in other states.
• Information technology then, if used innovatively, can provide solutions for poor grievance redressal, poor transparency and non-accountability of government institutions.
• There have been some logistical constraints in the call centre’s operations as citizens complain that the phone lines are often jammed and it is not possible to call from all the districts in Bihar. It is also seen in some cases that the questions are not framed with the applicants’ information needs in mind. Hence, wrong information is furnished to the applicant. These must be seen as small operational bottlenecks which can be easily sorted out if the call centre is expanded.
I. Constitution of State Information Commission and its role
1. State Information Commissions (SIC) have been constituted in all states (Except Arunachal Pradesh). But in some states like Bihar, Jharkhand, Uttar Pradesh, Himachal Pradesh, Haryana and Rajasthan, the constitution of SIC was delayed by several months.
2. State Information Commissions were not provided adequate infrastructure e.g. office, computers, staff, funds etc. e.g. Uttar Pradesh SIC function under heavy workload but only two Information Commissioners have been appointed, Bihar CIC has recently taken oath and official address is not available even on website, Rajasthan SIC is functioning from one room.
3. State Information Commission are very reluctant to penalize PIOs for dereliction of duty i.e. denial of information to public. There have been very few instances of penalty (Uttarachal, AP & Uttar Pradesh have some penalty cases). SIC often say that PIOs are in a learning stage; can there be some clarification on the time frame of the learning phase of PIOs?
4. People in rural areas feel that the appeal process is very expensive (fees for appeal exist in MP, Orissa, Maharastra and Chattisgarh) as they have to come to the city in case of hearings. There is a provision for sending the appeal by post but people feel that in their absence, their side would not be presented properly.
5. Application fee is high in Haryana (Rs. 50) and photocopying fee is very high in HP ( Rs. 10 per page). State governments should take cues from AP where there is no fee at GP level, Rs. 5 at Mandal level and Rs. 10 at district level. The mode of fee payment is complicated – payment in cash made against a treasury head and PIOs have no information on it, bank draft is expensive, postal order and non judicial stamps payment applicable only in few states. (HP has notified common treasury head for all departments)
II. Role of Nodal Agencies
1. Nodal agencies in the states have initiated the process of training of PIOs in Uttaranchal, MP, Chattisgarh, Andhra Pradesh, Rajasthan and Kerala. Centre for Good Governance, Yashada (Pune) and Public Administration Institutes are handling the training for PIOs in the surveyed states. Training of PIOs, particularly BDOs and officials of line department is not sufficient, as most of them are simply not aware of the act. Uttar Pradesh, Bihar, Jharkhand, Himachal Pradesh and Haryana are lagging behind in training of PIOs.
2. How the nodal agencies are planning to take up training of BDOs and Panchayat secretaries is not clear– no time frame or road map has been prepared. In Uttar Pradesh alone, Panchayat secretaries of 52,000 GPs (Gram Panchayat) are to be trained and the budget of SIC (UP) is Rs. 10 lakhs per annum.
3. Nodal agencies in some states- AP, MP, Uttaranchal, have prepared learning materials on RTI (in English, Hindi and local languages) and template for suo motto disclosure of information; while other states are very slow on this front. In Kerala, the RTI Act in Malayalam is so tough that even educated person find it difficult to understand it.
4. Nodal agencies have prepared directories of PIOs which in most states is available on web site, but in several instances, the list is incomplete with several omissions – some departments / districts or PIOs are missing. Directories should be made available in printed form.
III. Appointment of PIOs
1. Public Information Officers have been appointed in most public authorities in the states. The process of accessing information by people has started slowly through Right to Information Act.
2. There exits great confusion in definition of public authority - in some states like Kerala, several public authorities example Cooperative Banks, aided educational institutions – schools and colleges claim that they are not covered under RTI Act. similarly private builders of dams in Himachal Pradesh & Uttaranchal and private banks claim that they do not fall in the purview of act. This issue needs clarification from the Central Information Commission and SIC. There is no PIO in high courts of Haryana & Punjab, despite the fact that it is a public authority.
3. Sometimes, officials / persons who do not have easy access to information are appointed as PIO. In Uttaranchal, Sarpanch is PIO ; in Himachal Pradesh , BDO is PIO even for GP (Gram Panchayat); PIOs are normally junior officers in the department, they find it difficult to get information from senior officers.
4. PIOs are being appointed but not according to the requirement of public authorities. In Kerala , DoPT has 42 PIOs but Kerala Water Authority has 1 PIO. Nameplates of PIOs are not there in most public authorities particularly at the district level, so people simply do not any idea where the application is to be submitted.
IV. Experience of Seeking Information from PIOs
1. Most of the PIOs at state level and district level are not cooperative and they sometimes threaten applicants to withdraw applications. In Haryana, our activists were threatened by PIOs for seeking information. In Uttar Pradesh, Madhya Pradesh , Rajasthan and Chattisgarh, there are several instances of PIOs refusing to accept applications.
2. PIOs often say that they do not know under which head the application fee is to be deposited. They are frequently absent from office and no body accepts application in his absence. In Uttar Pradesh, Bahraich district , PIOs have refused to accept the fee by postal order saying that they do not have Government Order for the same whereas the Government has already passed the order that fee can be paid by postal order. In the same district, PIOs do not accept application but they provide information, which, is most of times, partial.
3. PIOs should be given more training so that they are sensitive to people’s need and PIOs who are guilty of deliberate denial of information should be penalized.
V. Mandatory disclosure under Section IV of RTI act
1. Our study shows that most of the ministries and directorate level offices in Madhya Pradesh, Uttar Pradesh, Uttaranchal, and Andhra Pradesh have disclosed information about their activities on their website while some government departments (ministries and directorate level) in Himachal Pradesh, Haryana, Jharkhand, Rajasthan and Bihar have still not taken steps to implement Section IV of RTI Act. Department of Agriculture (Rajasthan , UP, Uttaranchal , AP) have done well in self disclosure, they have covered most of the items of Section IV RTI Act.
2. Self-disclosure by ministries and directorate level offices in some states are poorly presented – only 6-7 items out of 17 items of Section IV RTI Act are disclosed e.g. only targets and outline of schemes are given, list of officials and PIOs are not there, expenditure details only in broad heads, district and block wise dispersal of funds not available, date of update is not mentioned (eg Department of Education & Department of Dairy, Rajasthan).
3. It is surprising to find that self-disclosure at district, block and panchayat level have not started in the twelve states, so the departments, which are closer to the people are still lagging behind in implementing Section IV of RTI Act.
VI. Role of Government in educating people under section 26 of the Act
1. Our experience of training programmes, campaign on RTI shows that large percentage of people (nearly 90 percent) is not aware of the Act and they cannot file the applications. Use of RTI is restricted to educated sections particularly government servants. In Haryana, 70 percent of appeals filed are by Govt. employees and nearly all of them are from urban centers. Utilization of RTI in rural areas is far less in all the states.
2. Government has not undertaken any campaign, either in electronic and print media for making RTI popular among people, while it regularly launches campaign on achievements of railways, health programmes and birthdays of politicians. So far only one large-scale campaign has been launched on RTI, which was organized by NGOs and media.
3. Governments, both central and state level, have neither allocated adequate funds to Nodal agencies to organize campaign on RTI nor given support to such activities in any other way.
According to the Final Report of the Vision Foundation (2005), http://planningcommission.gov.in/reports/sereport/ser/stdy_sagspr.pdf, which has been submitted to the Planning Commission, Government of India:
Freedom of expression is protected in Article 19 of the Constitution of India: All citizens shall have the right to freedom of speech and expression
In 1982, the Supreme Court of India ruled that access to government information was an essential part of the fundamental right to freedom of speech and expression. The Court stated, “ The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest”.
Section 76 of the Indian Evidence Act, 1872, contains what has been termed a 'Freedom of Information Act in embryonic form'. This provision requires public officials to provide copies of public documents to anyone who has a right to inspect them.
The system of governance in India has traditionally been opaque, with the State retaining the colonial Official Secrets Act (OSA) and continuing to operate in secrecy at the administrative level. The OSA enacted in 1923 was functional in its original form, apart from some minor amendments in 1967. These provisions had been roundly criticised. The Central Civil Service Conduct Rules, 1964 bolstered the provisions of the OSA by prohibiting government servants from communicating any official document to anyone without authorisation.
Section 123 of the Indian Evidence Act, 1872 prohibited the giving of evidence from unpublished official records without the permission of the head of the relevant department, who is free to grant or to withhold such permission as he or she sees fit.
The poor flow of information is compounded by two factors -- low levels of literacy and the absence of effective communication tools and processes. In many regions, the standard of record keeping is extremely poor. Most government offices have stacks of dusty files everywhere, providing an easy excuse for refusing access to records on the specious excuse that they have been 'misplaced'.
In the early-1990s, in the course of the struggle of the rural poor in Rajasthan, the Mazdoor Kisaan Shakti Sangathan (MKSS) hit upon a novel way to demonstrate the importance of information in an individual's life -- through public hearings or Jan Sunwais. The MKSS's campaign demanded transparency of official records, a social audit of government spending and a redressal machinery for people who had not been given their due. The campaign caught the imagination of a large cross-section of people, including activists, civil servants and lawyers.
The Press Council of India drew up the first major draft legislation on the right to information in 1996. The draft affirmed the right of every citizen to information from any public body. Significantly, the term 'public body' included not only the State, but also all privately-owned undertakings, non-statutory authorities, companies and other bodies.
Next came the Consumer Education Research Council (CERC) draft, by far the most detailed proposed freedom of information legislation in India. In line with international standards, it gave the right to information to anyone, except "alien enemies"
Finally in 1997, a conference of Chief Ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997.
Even before the Central FOI (Freedom of Information) Act was passed some of the States introduced their own right to information legislation. The first amongst these was Tamil Nadu (1997), which was followed by Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu & Kashmir (2004).
The Freedom of Information Act 2002 (FOIA) was passed in December 2002 by the Government of India and received the Presidential assent in January 2003. This legislation was to be uniformly applicable all over the country. But, the provisions of the Act was criticised by the Civil Society, calling it ineffective.
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According to Safeguarding the Right to Information-Interim Findings of the People’s RTI Assessment 2008, October 2008, conducted by RTI Assessment & Analysis Group (RaaG) and National Campaign for People’s Right to Information (NCPRI) (in collaboration with other institutes/ organizations),
http://rti-assessment.org/interim_report.pdf
• The Right to Information Act suffers from the problems of a weak infrastructure and public information officers (PIOs) who are unaware of their exact role. Almost half the PIOs interviewed in rural India said they were not aware that they were PIOs
• An overwhelming number of PIOs—nodal officers who receive and dispense with RTI applications — cite lack of training and unfamiliarity with the law as key hurdles in their ability to effectively service RTI requests
• The RTI Act has made a positive impact on the lives of people like no other Act has done before. More and more people are filing RTI queries to procure information, which was earlier denied by government officials.
• The government responds, though sometimes slowly. Of the total RTI applications filed, nearly two-thirds got a response from the public authorities. However, only a third of these applications were responded to within the stipulated 30 days.
• Meghalaya was “the worst performer” with no PIOs found at the village level, while Rajasthan was “the best performer” with nearly all PIOs available and interviewed. The other major finding of the study was that more men than women were using RTI across the country. Rural applicants were overwhelmingly male. And the same goes for Delhi, where over three-fourths of 162 randomly selected applicants surveyed were male
• In Maharashtra, the Act has been a success with around 3.7 lakh citizens filing RTI queries in the last three years. RTI activists and citizens, however, say the growing pendency of second appeals is cause for concern.
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"Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated."
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The International Covenant on Civil and Political Rights (ICCPR) was adopted by the General Assembly in 1966, which guarantees right to freedom of opinion.
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In 1993, the UN Commission on Human Rights established the office of the UN Special Rapporteur on Freedom of Opinion and Expression. Part of the Special Rapporteur's mandate is to clarify the precise content of the right to freedom of opinion and expression
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In 1980, the Commonwealth Law Ministers meeting in Barbados stated "public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information".
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In March 1999, the Commonwealth Expert Group Meeting in London adopted a document setting out a number of guidelines on the right to know and freedom of information as a human right
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Principle 10 of the 1992 Rio Declaration on Environment and Development first recognised the fact that access to information on the environment, including information held by public authorities, is the key to sustainable development and effective public participation in environmental governance.
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Agenda 21, the 'Blueprint for Sustainable Development', the companion implementation document to the Rio Declaration, states: "Individuals, groups and organisations should have access to information relevant to environment and development held by national authorities, including information on products and activities that have or are likely to have a significant impact on the environment, and information protection measures."
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At the national level, several countries have laws, which codify, at least in part, Article 10 of the Rio Declaration.
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In 1998, as a follow-up to the Rio Declaration and Agenda 21, Member States of the United Nations Economic Commission for Europe (UNECE) and the European Union signed the legally binding Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).
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Sweden's Freedom of the Press Act required the disclosure of official documents upon request.
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Another country with a long history of freedom of information legislation is Colombia, whose 1888 Code of Political and Municipal Organisation allowed individuals to request documents held by government agencies or in government archives.
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The USA passed a freedom of information law in 1967; this was followed by legislation in Australia, Canada and New Zealand, all in 1982.
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In Asia, the Philippines recognised the right to access information held by the State relatively early, passing a Code of Conduct and Ethical Standards for Public Officials and Employees in 1987. A Code on Access to Information was adopted in Hong Kong in March 1995, and in Thailand, the Official Information Act came into effect in December 1997. In South Korea, the Act on Disclosure of Information by Public Agencies came into effect in 1998, and in Japan, the Law Concerning Access to Information Held by Administrative Organs was enacted in April 2001.
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South Africa remains the only African country to have actually passed freedom of information legislation.
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Landmark cases on Right to Information decided by the
Supreme Court of India
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