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RIGHT TO INFORMATION ACT,2005 Rajkumar S. Adukia [email protected] [email protected] http://www.carajkumarradukia.com 093230 61049 / 093221 39642

Professional Opportunities For Chartered Accountants •

Maintenance of records (Sec 4 (1)(a))

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Preparation of details of publication(Sec(4((1) (b))

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Audit on compliance of legal issues

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Establishing internal controls

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Monitoring and sending progress reports at regular intervals Rajkumar. S. Adukia

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Right to Information in India - An overview

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Information is Key to Democratic process and good governance Curb corruption and Inefficiency in public offices

Human development

Realization of human rights

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Right to Information In India Constitutional Background  Indian constitution was adopted by the Constituent Assembly on 26.11. 1949 and has been in force since 26.01.1950  Part III addresses fundamental rights  Article 19( 1) (a) guarantees freedom of speech and Expression

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A few Landmark Supreme Court judgments

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In Bennett Coleman v. Union of India , AIR 1973 SC 60 the right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19(1) (a).

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In State of UP v. Raj Narain, (1975) 4 SCC 428 the Court explicitly stated that 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.’ Rajkumar. S. Adukia

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In S.P. Gupta v. UOI, AIR 1982 SC 149 the right of the people to know about every public act, and the details of every public transaction undertaken by public functionaries was described.

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In Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal , (1995) 2 SCC 161 the right to impart and receive information from electronic media was included in the freedom of speech. The airwaves were held to be public property and hence distribution of these waves between government and private channels was to be done on an equitable basis.

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In People’s Union for Civil Liberties v. UOI, 2004 (2) SCC 476 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

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Problems in Accessing information? •

Sec 5 of the Official Secrets Act, 1923

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Sec 123-126 Indian Evidence Act 1872.

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Provisions in The Central Civil Services ( Conduct) Rules,1964 that restrict right to information ( Rule 11)

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Culture of secrecy prevalent in government

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Lack of accountability in public offices

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Lack of knowledge as to where to go for information

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Illiteracy

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Badly maintained records

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Need for an Act on Right to Information •

To make access to information a reality for every citizen

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To make operational the fundamental right to information.

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To set up systems and mechanisms that facilitate easy access to information.

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To promote transparency and accountability and enable people’s participation in governance.

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To minimize corruption and inefficiency in public offices.

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Historical Background •

1990-P.M Mr.V.P.SINGH stressed on RTI as a legislative right

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1994- A strong grass root movement spearheaded by MKSS ( Mazdoor Kissan Shakthi Sangathan) created mass awareness and a demand for legislation

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1996- Press Council drafted a law- NIRD ( National Institute of Rural Development) Freedom Of Information Act,1997

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1997- A working committee headed by Mr. Arun Shourie drafted the Freedom of Information Bill,1997

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1998- The then P.M .Shri. Vajpayee announced that law will be enacted soon

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2000- Freedom of Information Bill,2000 was tabled before the Parliament and after some debate was referred to a committee for review

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2002- NDA Government enacted The Freedom of Information Act in 2002 and adopted in January 2003 but never came into force.

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2004- The UPA Government finally tabled a New Bill RTI,2004 in Parliament

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2005 – On 15 June, President Mr.Abdul Kalam gave his consent and The Act became operative from 12 October,2005

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RIGHT TO INFORMATION ACT,2005 •

The Freedom of Information Act, 2002 has been repealed by the emergence of this Act.

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This is a Central Act which extends to the whole of India except the state of Jammu & Kashmir.

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Act received the assent of the President on the 15th June, 2005

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The Act contains 6 chapters and 31 sections with 2 schedules

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The provisions of sub-section (1) of section 4, sub-sections (1) and (2) of section 5, 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.

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The weapon of the common Man

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Access •

No fee for BPL.( Below Poverty Line) ( Proviso to S 7(5))

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No need to specify reason for seeking information or other personal details( S 6 (2))

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Provision to reduce oral requests into writing( proviso to S 6(1))

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Provision to provide all required assistance, including to disabled persons. ( S 7(4))

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Information to be provided in local languages( S 4(4))

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Provision for penalties( S 20)

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Open only to citizens of India.( S 3)

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Bird’s Eye View of the Act Chapter

Section No

Title

I

1-2

Preliminary

II

3-11

Right to Information and Obligations of Public Authorities

III

12-14

The Central Information Commission

IV

15-17

The State Information Commission

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Chapter

Section No

Title

V

18-20

Powers and Functions of the Information Commissions, Appeal and Penalties

VI

21-31

Miscellaneous

The First Schedule

Form of Oath or Affirmation to be made by the Chief Information commissioner/ Information Commissioner/State chief Information Commissioner/State Information Commissioner

The Second Schedule

Intelligence and Security Organizations established by the Central Government

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Important DefinitionsSec 2 2 (a) Appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly (i) by the Central Government or the Union territory administration, (ii) by the State Government,

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 2 (b) "Central Information Commission" means the Central Information Commission constituted under sub-section (1) of section 12;  2 (c) "Central Public Information Officer" means the Central Public Information Officer designated under sub-section (1) and includes a Central Assistant Public Information Officer designated as such under sub-section (2) of section 5;  2 (d) "Chief Information Commissioner" and "Information Commissioner" mean the Chief Information Commissioner and Information Commissioner appointed under sub-section (3) of section 12;

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 2 (i) Record" includes— (a) any document, manuscript and 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;

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What does Right to Information mean?- Sec 2(j)

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What Is Not Open To Disclosure? The following is exempt from disclosure [S.8)] b)

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

c)

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;

d)

information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature Rajkumar. S. Adukia

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a)

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 satisfied that larger public interest warrants the disclosure of such information;

b)

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;

c)

information received in confidence from foreign Government;

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•

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;

b)

information which would impede the process of investigation or apprehension or prosecution of offenders;

c)

cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

d)

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; Rajkumar. S. Adukia

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Public Authority Right to Information Act gives right to access information held by “ public authorities” "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,;

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Public Authority…. 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

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Obligations Of Public Authority -Sec 4 4 (1) Every public authority shall— a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated;

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(b) The public authority shall publish within 120 days from enactment of Act ii.

the particulars of its organization, functions and duties;

iii.

the powers and duties of its officers and employees;

iv.

the procedure followed in its decision making process, including channels of supervision and accountability;

v.

the norms set by it for the discharge of its functions;

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v. the rules, regulations, instructions, manuals and records used by its employees for discharging its functions; vi. a statement of the categories of the documents held by it or under its control; vii. the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

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viii. A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted by it. Additionally, information as to whether the meetings of these are open to the public, or the minutes' of such meetings are accessible to the public; ix. a directory of its officers and employees; x. the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; iv.

the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

v.

the manner of execution of subsidy programmes, including the amounts allocated and the details and beneficiaries of such programmes

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xiii. particulars of recipients of concessions, permits or authorizations granted by it; xiv. details of the information available to, or held by it, reduced in an electronic form; xv. the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; xvi. the names, designations and other particulars of the Public Information Officers; xvii. Such other information as may be required.

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Public Information Officers PUBLIC INFORMATION OFFICERS (PIOs) PIOs are officers designated by the public authorities in all administrative units or offices under it to provide information to the

The Act also requires public authorities

citizens requesting for information

to designate Assistant PIOs at the sub-

under the Act

district or sub-divisional level, to forward applications to the relevant PIO located at higher levels. Rajkumar. S. Adukia

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Steps for requesting Information •

Step 1- Identify the public authority which holds the information

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Step 2- Identify who to submit application to within the public authority

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Step 3 -Draft a clearly focused application

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Step 4- Submit your application

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Step 5- Wait for a decision

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Time Limit To Get The Information •

30 days from the date of application ( S 7(1)

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48 hours for information concerning the life and liberty of a person ( proviso to S 7 (1))

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5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer. ( proviso to S 5(2))

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If the interests of a third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation). ( S 11(3))

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Failure to provide information within the specified period is a deemed refusal. ( S 7 (2))

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Ground For Rejection

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If it is covered by exemption from disclosure. as detailed in Sec 8

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If it infringes copyright of any person subsisting in a person other than the State as detailed in Sec 9.

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Appellate Authorities

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First Appeal: First appeal to the officer senior in rank to the PIO in the concerned Public Authority within 30 days from the expiry of the prescribed time limit or from the receipt of the decision (delay may be condoned by the Appellate Authority if sufficient cause is shown). ( S 19(1))

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Second Appeal: Second appeal to the Central Information Commission or the State Information Commission as the case may be, within 90 days of the date on which the decision was given or should have been made by the First Appellate Authority. (Delay may be condoned by the Commission if sufficient cause is shown) ( S 19(3))

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Third Party appeal against PIO's decision must be filed within 30 days before first Appellate Authority;( S 19 (2))

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Burden of proving that denial of Information was justified lies with the PIO.

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First Appeal shall be disposed of within 30 days from the date of its receipt. Period extendable by 15 days if necessary. (Sec 19)

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Central Information Commission •

CIC shall be constituted by the Central Government through a Gazette Notification.

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( S (12(1))

Commission includes –

one Chief Information Commissioner (CIC) and

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Not more than ten Information Commissioners (IC), who will be appointed by the President of India. ( S (12(2))

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Oath of Office will be administered by the President of India according to the form set out in the First Schedule. ( S (13(3))

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Commission shall have its Headquarters in Delhi. Other offices may be established in other parts of the country with the approval of the Central Government. ( S (12(7))

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Powers And Functions Of Information Commissions Commission will exercise its powers without being subjected to directions by any other authority. (S.12(4)) •

The Central Information Commission/State Information Commission has a duty to receive complaints from any person ( S 18(1))

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Who has not been able to submit an information request because a PIO has not been appointed

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who has been refused information that was requested; Rajkumar. S. Adukia

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Power to order inquiry if there are reasonable grounds (S 18(2))

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Power to examine all records covered by this law (including those covered by exemptions) must be given to CIC/SCIC during inquiry for examination ( S 18(4))

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•

CIC/SCIC will have powers of Civil Court such as -

 summoning and enforcing attendance of persons, compelling them to give oral or written evidence on oath and to produce documents or things;  requiring the discovery and inspection of documents; receiving evidence on affidavit ;  requisitioning public records or copies from any court or office  issuing summons for examination of witnesses or documents  Any other matter which may be prescribed.

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Penalty Provisions ( S 20) Every PIO will be liable for fine of Rs. 250 per day, up to a maximum of Rs. 25,000/- for – •

not accepting an application;

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delaying information release without reasonable cause;

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malafidely denying information;

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knowingly giving incomplete, incorrect, misleading information;

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destroying information that has been requested and

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Obstructing furnishing of information in any manner.

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Reporting Procedure ( S 25) •

Central Information Commission will send an annual report to the Central Government on the implementation of the provisions of this law at the end of the year. The State Information Commission will send a report to the State Government.

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Each Ministry has a duty to compile reports from its Public Authorities and send them to the Central Information Commission or State Information Commission, as the case may be.

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Central Government will table the Central Information Commission report before Parliament after the end of each year. The concerned State Government will table the report of the State Information Commission before the Vidhan Sabha (and the Vidhan Parishad wherever applicable). (S.25)

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If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.

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Jurisdiction Of Courts

Lower Courts are barred from entertaining suits or applications against any order made under this Act. (S.23)

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Appropriate Government to prepare programmes ( S 26) The appropriate Government to: b)

Develop and organize educational programmes to advance the understanding of the public, particularly the disadvantaged, to exercise right to information.

b)

Encourage public authorities to participate in programmes;

e)

promote timely/ effective dissemination of accurate info on activities.

g)

Train CPIOs and produce relevant training materials Rajkumar. S. Adukia

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Notifications •

Right to Information (Regulation of Fees and Cost Rules),2005

•

Central Information Commission (Appeal Procedure Rules),2005

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Right to Information (Regulation of Fees and Cost Rules),2005 •

Application Fee – Rs.10

Additional fee•

A4/A3 paper – Rs 2 per page;

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Larger paper – actual cost;

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Printed publications – fixed price,

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photocopies/extracts – Rs 2 per page;

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Floppy/diskette – Rs 50;

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Samples/ models – actual cost;

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Inspection of records – 1st hour free and Rs 5 for each subsequent hour.

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State Legislations The following states and Union Territories have enacted Right to Information Rules: ( The list includes the states to the extent details are available at the respective state sites)

Andaman & Nicobar Islands Daman & Diu

Andhra Pradesh

Madhya Pradesh

Arunachal Pradesh Assam

Maharashtra

Chattisgarh

Nagaland

Goa

Orissa

Gujarat

Punjab

Haryana

Rajasthan

Himachal Pradesh

Sikkim

Jharkhand

Tamil Nadu

Karnataka

Tripura

Kerala

Uttar Pradesh

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Meghalaya

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State Appeal Rules The states which have prescribed appeal fees are listed below: Government

Fee for Appeal Fee for to AA Appeal to IC

Mode of Payment

Arunachal Pradesh

Nil

Rs.50

Treasury Challan

Madhya Pradesh

Rs.50

Rs.100

Cash/Non-judicial Stamp

Maharashtra

Rs.20

Rs.20

Cash against receipt/demand draft/bankers’ cheque/ court fee stamp

Orissa

Rs.50

Rs.50

Court fee stamp

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Web-sites For Reference • www.persmin.nic.in • www.freedominfo.org • www.cfoi.org.uk • www.rti.gov.in • www.cic.gov.in • www.humanrightsinitiative.org • www.mahadhikar.org • www.righttoinformation.info • www.parivartan.com/ • www.satyamevajayate.info/

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QUESTIONS? SUGGESTIONS? COMMENTS??

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