The Practical Lawyer

The Right to Information Act, 2005—Use & misuse

The Right to Information Act, 2005—Use & misuse

By Dr. Ajay Kumar Jain*
Cite as: (2011) PL February S-35

In modern democracies, citizens have a right to know about the affairs of the Government and its policies aimed at their
welfare. In a democratic government of the people, by the people and for the people, the foundation of a healthy
democracy lies in well-informed citizens. Enlightened and informed citizens definitely enhance the democratic values of a
country. The right to information in a democratic set up is recognised all over the world and it is a natural right flowing
from the very concept of democracy.

The concept of openness in governance has its origin in the right of freedom of speech and expression conferred in
Article 19(1)(a) of our Constitution. The Supreme Court has held that the right to freedom of speech and expression
includes the right to receive and impart information1. Article 19(1)(a) of the Constitution provides the right to freedom of
speech and expression because the governmental functions must be transparent2 and the three instrumentalities3 of the
State should be prevented from deceiving the people.

In order to promote openness, transparency and accountability in public administration, it is required that every citizen
has a right to information under the control of public authorities. No democratic government can survive without
accountability and the basic postulate of accountability is that the people should have information about the functioning of
their Government.

Evolution of the right to information In 1948, the United Nations proclaimed a Universal Declaration of Human Rights. It
was followed by the International Covenant on Civil and Political Rights, 1966 (ratified in 1978). Article 19 of the
Covenant declares—

“everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinion without
interference and to seek, and receive and impart information and ideas through any media and regardless of frontiers.―

In keeping with the spirit of the Universal Declaration of 1948, the Preamble of our Constitution embodies a solemn
resolve of its people to secure, inter alia, to its citizens, liberty of thought and expression. In pursuance of this supreme
objective, Article 19(1)(a) of the Constitution of India guarantees to the citizens, the right to freedom of speech and
expression as one of the fundamental rights.

In India, the process of formulating a law relating to right to information gained momentum in the 1990s. The Law
Commission of India in its 179th Report of 2001 and several other committees emphasised upon the need of a
meaningful law to ensure access to information, which eventually resulted in enacting of the Freedom of Information Act,
2002. The Freedom of Information Act, 2002, was enacted to provide for freedom to every citizen to secure access to
information under the control of public authorities in order to promote openness, transparency and accountability in the
working of public offices.

The National Advisory Council, however, suggested certain significant changes to be made in the law to ensure
smoother, effective and greater access to information. The changes related to the following:

(a) establishment of an appellate authority with investigating powers;

(b) penal provisions for failure to provide information;
(c) provisions to ensure maximum disclosure and minimum exemptions. Incorporating these changes, Indian
Parliament has enacted the Right to Information Act, 2005. It has replaced and repealed the Freedom of Information Act,
2002.

The Right to Information Act, 2005, is an important weapon in the hands of Indian citizens, empowering them to seek
any accessible information from a public authority. It makes the Government and its functionaries accountable and
responsible to the public. The aim of the Right to Information Act, 2005, as set out in its Preamble, is to secure
information under the control of public authorities, to promote transparency and accountability in the working of public
authorities and also to contain corruption and to hold Governments and their instrumentalities accountable to the
governed.

Request for obtaining information Section 6 of the Right to Information Act, 2005, provides that a person, who desires
to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or
in the official language of the area, to the PIO, specifying the particulars of the information sought by him or her. The
information shall be provided to the applicant on payment of such fee (if not belonging to the below poverty line category)
as may be prescribed. The applicant shall not be required to give reasons for requesting the information or any other
personal details except those that may be necessary for contacting him.
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 The Practical Lawyer

The PIO, on receipt of a request under Section 6, shall provide the required information within 30 days of the receipt of
the request and where, the information sought for concerns the life or liberty of a person, the same shall be provided
within 48 hours of the receipt of the request.

What does information mean? Section 2(f) of the Right to Information Act, 2005, provides that:
2. (f) “information― means any material in any form including records, documents, memos, e-mails, opinions, advices,
press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any
electronic form and information relating to any private body which can be accessed by a public authority under any other
law for the time being in force;

What is public authority? The Right to Information Act, 2005, Section 2(h), provides that:
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 organisation substantially financed, directly or indirectly by funds provided by the appropriate
Government; Powers and functions of the Central Information Commission/State Information Commission The Central
Information Commission/State Information Commission has a duty to receive and inquire into a complaint from any
person—

(a) who has been unable to submit a request for information because no PIO has been appointed under the Act;
(b) who has been refused access to any information requested under the Act;
(c) who has not been given a response to his/her request for information within the time-limits specified under the Act;
(d) who has been required to pay an amount of fee which he/she considers unreasonable;
(e) who believes that he/she has been given incomplete, misleading or false information under the Act; and
(f) in respect of any other matter relating to requesting or obtaining access to records under the Act. The Central
Information Commission/State Information Commission has the powers of a civil court in respect of the following matters,
namely,—

(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and
to produce the documents or things;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any court or office;
(e) issuing summons for examination of witnesses or documents; and
(f) any other matter which may be prescribed. The Central Information Commission/State Information Commission has
the power to require the public authority to take such steps as may be necessary to secure compliance of the provisions
of the Act, including—

(a) providing access to information in a particular form;

(b) appointing a PIO where none exists;
(c) publishing certain information or categories of information;
(d) making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(e) enhancing the provision of training on the right to information for its officials;
(f) requiring it to provide an annual report in compliance with Section 4(1)(b) of the Act;
(g) requiring it to compensate the complainant for any loss or other detriment suffered;
(h) imposing any of the penalties provided under the Act;
(i) rejecting the application. Use and misuse of the Act—My personal encounters As an information seeker, I have
received information under the Act and at the same time I have provided information as a Public Information Officer of an
institution to those who have sought information under the Act. I have experienced its working and had some sweet and
some sour encounters with the Public Information’s Officers and the information seekers.

It is true that the Act has helped the bona fide information seekers in getting the required information from the public
authorities which were not responsive at all before the passing of the Act. Now they are more vigilant, more responsive
and more caring in view of the penal provisions of the Act. At the same time, some persons, in the garb of RTI activists
and out of vengeance and personal vendetta, have misused the provisions of this Act. Having ulterior motive in mind,
they have asked absurd, irrelevant and uncalled for questions under the Act. In order to get recognition in public offices,
these RTI activists ask some very embarrassing questions under the Act, unmindful of the fact that the answer to these
questions may involve wasting of lots of time of public authorities without serving any purpose at all.

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 The Practical Lawyer

Now I shall discuss some of my personal experiences covering both sides of the Act.

A research scholar of Dr. Bhim Rao Ambedkar University, Agra, submitted his PhD thesis in Botany. Reports of both of
the examiners of his thesis were submitted to the University in time. More than one year passed and the candidate made
every effort to see to it that his viva voce date is fixed. But nothing happened. Fortunately, the candidate happened to
meet me and narrated his story to me. I asked him to file an application under the RTI Act to the Public Information
Officer of Dr. Bhim Rao Ambedkar University, Agra and ask one simple question, what was the maximum time limit for
conducting viva voce of a candidate after reports of both the examiners of his thesis are available with the University? To
my utter surprise, the research scholar received a letter from the University within 30 days informing him that his viva
voce date had been fixed and he could now withdraw his RTI application. The viva voce of the candidate was conducted
within a month of the filing of the application under the RTI Act.

I filed an RTI application on 27-7-2007 with the Public Information Officer, Regional Passport Office, Ghaziabad,
seeking information relating to the status of passport applications of self, spouse and son. The PIO vide his letter dated
13-8-2007 replied to my RTI application. Not satisfied with the reply of the PIO, I filed an appeal with the first appellate
authority on 24 8 2007 and then approached the Central Information Commission on 20 11-2007. The Bench of Dr. O.P.
Kejariwal, Information Commissioner, heard the matter on 9-5-2008 and decided the following:

(i) The respondents will ensure that the passports are issued within a week of the appellant having fulfilled the
requirements of the passport application;
(ii) The PIO and the RPO will personally conduct an inquiry into the functioning of the website and submit a report about
the two different versions in the same case placed on the website. He will report to the Commission with the full details
of the case by 13-6-2008;
(iii) The Commission awards a compensation of Rs 5000 to the applicant in view of the mental agony that he has gone
through over these one-and-a-half years without any fault of his. The respondent Department will ensure that this
payment is made to the appellant by 30 5-2008. The respondents, that is, the PIO will fix responsibility as to the person
who was responsible for asking for blank signatures and take necessary measures to recover the full amount from him.
In the first instance, however, this payment will be made by the Department or the person on whom the responsibility is
fixed for this major error, whichever is earlier.4 One of the RTI activists sought the following information under the RTI
Act respecting an institution wherein I am acting as a Public Information Officer:

- What is the daily consumption of petrol in the official vehicle of the Principal of the Institution? How many kilometres it
runs daily? Names of places where it goes.
- Number of RTI applications the institution has received till date.
- Number of cases wherein the Public Information Officer of the institution was reprimanded/fined by the State
Information Commission.
- Amount of TA/DA paid to the Public Information Officer of the institution for attending the State Information
Commission.
- Action taken against the Public Information Officer of the institution for not attending to his duties, etc. I, as a Public
Information Officer of this institution, tried my best to attend as much as possible to each and every query of the RTI
activist. When I attended the State Information Commission, I stated before the Bench that the questions asked by the
RTI activist had nothing to do with him, neither were they of public interest. The RTI activist is a local leader and he
wants favours from the Principal of the institution in the matter of admissions in the institution. The Bench asked me, Mr
Jain, have you read the Act? You cannot ask the applicant why he requires the information. I told the Bench, Sir,
technically we cannot ask the applicant why he requires the information. But suppose, next time, this RTI activist asks us
the number of female students in our institution, their names, their addresses, their phone numbers and photocopies of
their admission forms, are we supposed to provide all this information to the RTI activist? Is it feasible? The Bench got
the sense of my argument and said, this we will ask the RTI activist. Since he has not appeared today, next time, when
he appears, we will put this question to him.

Again, an RTI activist asked the Bombay Municipal Corporation the number of street dogs loitering in the municipal
limits of Bombay.

Finally, we have to evolve a system of checks and balances if we really want the Act to serve the purpose for which it
has been enacted. It should not be made a tool in the hands of overenthusiastic RTI activists who ask irrelevant
questions and waste precious time of the public authorities. Bona fide information seekers should be encouraged and at
the same, the RTI activists, who seek information for the sake of information, should be discouraged. The Central
Information Commission/State Information Commission should not hesitate in punishing the erring public officials who
harass the public. Initial screening of all RTI applications should be made mandatory so that the public authorities are not
forced to attend the Central/State Commission repeatedly without serving any purpose. The system of initial screening of
all RTI applications is, to some extent, working in the Central Information Commission where frivolous applications are
rejected at the time of registration itself. Besides, as I have myself experienced, the State Information Commissions lack
basic infrastructure to discharge their functions under the Act. They should be made well equipped to deal with
thousands of RTI applications which they receive daily.
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 The Practical Lawyer

*Associate Professor, Deptt. of Law, D.S. College, Aligarh.

- Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161.
- K. Ravikumar v. Bangalore University, AIR 2005 Kant 21.
- Executive, Legislature and Judiciary.
- Ajay Kumar Jain (Dr.) v. Regl. Passport Office, No. CIC/OK/A/2008/00001, dated 31-7-2008.

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