Constituional Perspective of Right to Information : A

Crtical Analysis
SUBMITTED BY:

Vyom Kumar Tiwari, B.A. LL.B. (Hons.), Roll no.- 2378

Semester-5th

SUBMITTED TO:

Dr. S.P. Singh,

Professor of Political Science

This Final Draft is submitted in partial fulfilment of the (B.A.

LL.B.) course in Political Science- II

Chanakya National Law UniversityNyaya Nagar,

Mithapur, Patna-800001
 Table of content
 Introduction…………………………………………………...……………03
 Aims & Objectives……………………………………………………..………………..03
 Research Questions……………………………………………………………...……….03
 Research Methodology…………………………………………………...……04
 Need of RTI………………………………………………...………………04
 Features of Right to Information Act, 2005………………………………..06
 Complaint……………………………………………………………..……08
 Objective of RTI……………………………………………………………11
 Critical Appraisal of Right To Information Act……………………………12
 Conclusion……………………………………………….…………………14
 Bibliography………………………………………..………………………14

2
 Introduction
India is considered as the largest democracy in the world. The basic feature of every democratic
setup is transparency, openness and accountability. In India, public authorities or administrative
authorities have a wide discretionary power, so feeling has been arisen in the mind of legislators
as well public that this may lead to misuse of power which will ultimately result in
maladministration and corruption.

For this purpose there should be a right vested in the common people of the country to access the
information regarding the conduct or act discharged by public officials, so the system of check
and balance can be maintained. Therefore, Right to Information has emerged. Right to
Information implies that the public can participate in governance by accessing the information
held by administrative or public authorities regarding the function discharged by them for the
public welfare.1

It is not only a statutory right but also a fundamental right of a citizen to know the information
related to the public act performed by public authorities. It is fundamental for good governance
and makes governmental authorities more transparent and accountable towards the common
people of a country. There is a proximate relation between Right to information and
Administrative law as Administrative law can be defined as “branch of public law deals with the
operation performed by administrative authorities”, and Right to Information empowers the
public to access information held by public authorities.

Aims & Objectives

 To analyse the Constitutional authority of RTI Act, 2006

 To analyse the Impact on the society and people.
 To critically analyse the Important constitutional development related to this act.

Research Questions

1
Roberts, A. (2001). Structural Pluralism and the Right to Information. The University of Toronto Law Journal,
51(3), 243–271. https://doi.org/10.2307/825940

3
  What is the Constitutional authority of RTI Act, 2006?
 What is the Impact of this act on society and the people?
 Are there any Important constitutional development related to this act?

Research Methodology
This is a purely exploratory research. The analysis is done on the basis of Primary and
secondary data. The researcher adhere himself only to the Doctrinal method of research. In the
dictomy of qualitative and quantitative research it is primarily qualitative. This method is
sufficient to address the findings and to arrive at concrete conclusions.

SOURCES OF DATA COLLECTION

The researcher will collect data from primary as well as secondary sources.

• The primary sources are

1. Legislations
2. Bare Acts
3. Judgments of the competent court of law.

• The Secondary sources are

1. Journals
2. Blogs

3. Books

Need
Right to information is the need of the current scenario because it assists to maintain
transparency and accountability in government work. It helps to create a situation where the
general public can get details of government action, plans, Yojana, schemes, etc., which aids to
enhance the responsiveness of government towards society.

4
Right to Information Act in India took around 80 years to transform a grimy system of authority,
valid by the “colonial officials secrets act”, where people can demand the “right to information”.
India having a feeling of self-esteem in being the largest democracy, but with the passing of the
recent enactment of the “Right to Information Act, 2005”. India has also become a strong
democracy. The remarkable shift for Indian democracy, for the more access to the information
by the citizen. Its “main focus on transparency and accountability in relation to the public
authorities has been basically financed by the government”. Right to information has
constitutional status, also it is enforced from Article 19 (1)(a) which talks about “fundamental
rights of freedom of speech and expression”.

This Act is very necessary for each and everyone due to this our government officials and public
institutions gathered information and work upon them. It embedded the right of every citizen of
India to have access or control of the information related to finance to any authority by the state,
thereby responsibility arises on the authority to use the information effectively without including
into any corrupt activities. “In one of the cases, the Supreme Court of India ruled that every
person has a right to know about expenses and assets against candidates for election, because
these candidates offer the public services with their own desire so that they cannot demand
exemption from any of the details related to assets or any charges against them.” According to
the above case, not only candidates but a political parties, worship places, education centres, but
even private schools and public companies fall under this Act.2

The Mazdoor Kisan Shakti Sangathen (MKKS) was founded by social activists Aruna Roy and
Nikhil Day in the year 1990 in the state of Rajasthen. This organization plays a very important
role in the struggle of right to information. With the efforts of activists and international
agencies, a large number of states enforced RTI Acts. They were Tamil Nadu (1996), Goa
(1997), Madhya Pradesh (1998), Maharashtra (2000), Rajasthen (2000), Karnataka (2000 ),
Delhi(2001), Assam (2002), and Jammu Kashmir(2003).

2
Afro Asian Journal of Social Sciences Volume 1, No. 1 Quarter IV 2010 ISSN 2229 – 5313,
https://onlineresearchjournals.com/aajoss/art/49.pdf

5
 Features of Right to Information Act, 2005
Public authorities have a duty to provide any information which is claimed by a citizen.

Public authorities are under the obligation that they need to circulate the information to the
person who demands the information. However, this Act comes with certain obligations relating
to the security of the nation, personal information & other person’s information.

There is a time limit on the authority to give information within 30 days.

If the authority denies providing any kind of information then the person has the power to go to
the appellate authority. Later they can also go for the second appeal which falls under the
“central information commission/state information commission”.

Local court commands cannot be entertained in these scenarios.

There are 25 organizations which are exempted from the right to information under the “second
schedule” of this Act. These include Central Economic Intelligence Bureau, Intelligence
Agencies, etc., certain bodies which basically perform the research work with regard to the
country’s security, special service bureau, narcotics control board, but RTI Act is not applicable
to “Dadra and Nagar Haveli & Lakshadweep”. This Act has done marvellous work because it
gives the path to access information which earlier remained secret. This Act impacted the system
and the people both tangible and intangible. People use this activity as a tool to get their
documents and avail services like “passport, death certificate, pension, birth, ration card and
income tax return”.

Many people who are incapable, poor or physically disabled get benefits from this Act. RTI Act
works with “administration in which there is more transparency with regard to the functioning of
public bodies” due to which they maintain all records which are categories as the indexed. If
transparency is removed or abolished from this Act then the chances of corruption practices
increase and the delaying of work would become slower due to which lower investment means
misuse of power, authority and the funds used for private purposes.

RTI helps the administration to take proper action and adopt a policy which helps the
government to reduce corruption and work effectively. It also involves the selection of

6
appropriate programmers to achieve government objectives. The largest indicator of “RTI Act”
has slowly lowered the level of corruption in India.

Chapter 1 of this Act deals with the definition that is covered under this Act e.g. definition of
“information”, “competent authority”, “state public information officer”, “Right to Information”,
“public authority”, etc. Chapter 2 deals with the obligation of public bodies against the
maintenance of books and records in their interest areas of work and the different procedures
related to the application of information.

Section 8 is defined as “exemption from disclosure of information”. Sub-Section (1) states that
Notwithstanding anything contained in this Act, there shall be no obligation to any citizen.

Disclosure of the information would prejudicially affect the sovereignty and integrity of India,
the security, strategic, scientific or economic interests of the State, relation with foreign States or
lead to incitement of an offence.

 The 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 satisfied that larger public interest warrants the disclosure of such
information.
 The 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.
 Information received in confidence from a 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.

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  The information which would impede the process of investigation or apprehension or
prosecution of offenders.3
 Cabinet papers including records of deliberations of the Council of Ministers, Secretaries
and other officers: Provided that the decisions of the Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were taken shall be made
public after the 14 decision has been taken, and the matter is complete, or over: Provided
further that those matters which come under the exemptions specified in this Section shall
not be disclosed.
 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 unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be, is satisfied that
the larger public interest justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature shall not be
denied.

The above Section talks about the exemption in which public organization cannot disclose their
information because that likely to threaten for the society and the parliament or not mandate to
disclose. Only with permission, it can be disclosed.

Complaint
The Act also said that any person may file a written request to an officer (PIO) which is
appointed by the authority which is covered by this Act. It is the obligation to entertain the
request made by citizens. If the officer is not present then the applicant has the option to file a
request in front of state or “central information commission”. It also provides a time limit so that
the process can be done speedily. Different time limits are prescribed for different situations:

 When an application is entertained by any PIO then they have an obligation to reply to
the application within a time limit of 30 days and any application which is presented
before assistant PIO must be replied to within 35 days.

3
https://rti.gov.in/

8
  The application transfers to another PIO in 30 days which starts or counts from the day
on which its application is transferred.4
 Any application presented in relation to information regarding corruption by any
schedule secured agency or any kind of violation of human rights which are covered
under schedule II of RTI Act then reply must be given within 45 days with the permission
of the central information commission.
 PIO is required to give information which includes “right to life and liberty” of the
person.

Any person can file an application on any matter which is related to RTI simply by making an
account and pay a nominal amount for the filling of application. Right to information is not only
a statutory right which emerged from Right To Information Act, 2005 but it is preexisted and
considered as a fundamental right enshrined in Part III of the Constitution. Although it is not
expressly mentioned anywhere in the Indian constitution but falls within the purview of
“Freedom of Speech and Expression” and “Right to life and Personal Liberty”. Through
Interpretation of the Supreme Court in various landmark Judgments, we can infer that Right To
Information is Fundamental Right.

In the case of Bennett Coleman vs. Union of India, the Apex Court stated that “Right to
information is our fundamental right falls within the purview of article 19(1)(a) of the
Constitution of India”. In Express Newspaper Ltd VS. Union of India, the court observed that the
foremost purpose of the right to freedom of speech and expression is that people should be able
to form an opinion and freely communicate it to others.

In the case of SP Gupta vs. Union of India, the court observed that “It is a right of the public to
get information regarding public functions performed by the public authorities and authorize
public to access the information related to public transactions performed within the scope of the
public act”. In RP Ltd. vs. Indian Express Newspaper, the court held that “Right to information is
a basic right and falls within the purview of Article 21 i.e. right to life and personal liberty”.

In the case of People Union for Civil Liberties vs. Union of India, the Apex Court analyzed right
to information in the light of human rights which is requisite for making administration and

4
1982 2 SCR 365

9
governance accountable and more transparent. Therefore from the above observation of the
Supreme Court, we can say that Right to Information is our fundamental right.

There is a famous saying that ‘power corrupts and absolute power corrupts absolutely’. So, no
right can be absolute in nature. Every right is subject to certain reasonable restrictions. Hence
Right to information is also subject to reasonable restrictions given under Article 19(2) of the
Indian Constitution. Certain exemptions from disclosure also given Under Right To Information
Act, 2005 which are as follows:

The information which tends to prejudice the international relations, integrity and national
security of the country;

The information which is expressly forbidden from disclosure by tribunals and court.

The information which related personal details and not in the interest of the public, and if there
is access to information it may violate the right to privacy.

Information related to trade secrets, commercially confidential information and intellectual

property.

Confidential information received from foreign government etc.

There is another issue also arise while exercising Right to Information that it may lead to
invasion in right to privacy because both these rights are in conflict or position. On one side
Right to Information empowers the citizen to access the information held by public authorities,
on the other it restricts the access of personal information, therefore a balancing view can be
adopted that Right to information cannot be exercised with regard to personal information until
and unless it is important for public interest.

In India, the Democratic form of government has established which means that the government
has to work according to the “will of the people’. The main focus of the government is to
transform people’s will into their actions and take responsibility for it. This democratic system
only works properly when people become more aware, alert, and conscious and get information
about political agendas, policies, schemes, plans, Yojana, which is introduced by the
government. Right to Information Act, 2005 trying to facilitate the general; public to access the

10
information regarding government plans. Act provide modus operandi to acquire information and
data related by the public office to affected parties, NGO, co-operation and the general public
with the intention of social welfare.

Objective of RTI
Right to Information Act, 2005 promotes harmonious construction between people and the
government of people. Earlier, where situation arose public officer became superior-oriented
rather then service-oriented because there were no checks upon them regarding their services.
But the RTI Act, provide a straitjacket solution to make public officer again service oriented.
Now under RTI Act, people have right to get details of public authorities so, it creates a fear of
exposing upon the mind of the public servant, which is changing the attitude of public officers
towards their duties and responsibilities.5

Role of Right to Information Act,2005 for Good Governance because RTI Act helps to
improvement in accountability, the performance of government. The act facilitates a mechanism
to access upon information by the public from public office. Any kind of administrative action or
quasi-judicial judgment taken by any public authorities so, minute details are required to
maintain. The general public or affected parties can collect that information from public office
and time. Act also appreciates the participation of citizens in the decision making process. NGO,
co-operation, institution or general people have right to get information regarding various yojana,
plans, schemes, allocation of resources and funds by the government in a rural and urban area.
With the help of those data NGO and social welfare, the institution gets an idea about the
problem in the society and their solutions too. Act provides aids to reduce corruption in public
offices, now the public officer is not utilizing the fund for their private use, and not abuse their
public power.6

5
Pozen, David E. "Freedom of Information beyond the Freedom of Information Act." University of Pennsylvania
Law Review, vol. 165, no. 5, April 2017, p. 1097-1158
6
1973 SCR (2) 757

11
 Critical Appraisal of Right To Information Act
The RTI Act makes the right to information as a tool to check upon the misuse of the
discretionary power of administrative authorities but it suffers from several drawbacks which
weaken the position of the right to information. The drawbacks are as follows:

Section 2(h) defines the term ‘public authority’ but it does not give a comprehensive and
exclusive definition of public authorities which might create confusion. The term ‘Public
Authorities’ includes Non-government organization which are funded by the government either
directly or indirectly but there are some NGOs which are funded by the public then the question
has been arising that whether these NGOs falls within the category of public authorities or not.
Temples appeared not as public authorities because they are funded by trusts but in many cases,
the Supreme Court considered temple as public authorities. So, here also there is no clear picture
in the Act whether the temples considered as public authorities or not.

Another loophole in this Act is absence of contempt provisions, this stated that the information
commission shall be binding but the provision of ‘contempt of court’ is absent due to which it
cannot force or compliance to the public to follow the rules. the absence of ‘contempt of court’
make the non-compliance of the order passed by the information commission .there must be
provision insert in this Act.

And there is no penalty upon appellate authority, the applicant should receive the information
requested in the RTI application within 30 days of receiving such application and within forty-
eight hours in case of life and liberty as per Section 7(1) of the act. But if that limit exceeds or in
no limitation time period this work not done then there is no proviso or concept introduced. It is
necessary because it makes the whole process lazy and wasting without any penalty.

It provides that serviceman also become Central Public Information Officer [CPIO] even if they
don’t have any knowledge about the Act and work still they appointed as the additional duty. As
the dealing with the RTI application is necessary and the relevant information is required and
dealing with the applicant is very crucial and important but the qualification of CPIO is not given
and not mention anything about the qualification. And training should be provided to the fresher
persons and the appellate authority and review them from time to time about the amendment test
along with the training should also be conducted so they can get the information and knowledge.
12
There are various other loopholes in the Right to Information Act, 2005 which create hurdle in
better administration and to fulfil the objectives of this Act. RTI Act, 2005 which ensure that
information must be delivered to the public within 30 days of application and if the public officer
fails to provide information within prescribed time so, the penalty will impose upon officers. It
is not practically possible that in each case, that all the information is collected accurately within
time, to the applicant. There are various factors which cause delay to deliver information like
elections, holidays, emergency, disaster management, and old data from different branches
which talk a long time to recover etc.7

The information which is providing to the applicant can be any for either soft copy or hard copy.
It is also not necessary that each public information office which is situated in hilly, rural and
village area have the proper facility of fax, telephone, electricity, internet facility. Lack of
infrastructure and facilities may also delay in delivery of information to the applicant. Now, a
day’s people started misusing the information which is collected from the Public information
office. The primary objective is to provide information for public welfare. But, in today’s era, the
aim of the act is defeated and it is becoming the tool of the person with the malicious intention to
harass their co-operation and blackmail their colleagues etc.8

There are many provisions in RTI Act, which impose obligations, duties responsibilities as well
as a penalty upon public officer but no provision for the appreciation for their hard works, which
create a situation of de-motivation in the mind of public employees. Act also not provides any
kind of protection to the whistleblower. Basically, Whistleblowers get information with the help
of right conferred under the RTI Act, from public information office and give the report to Civil
Vigilance Commission (CVC) about corruption, illegal works, malpractices etc. Whistleblower
Protection Act is introduced by the government in 2014 but that Act has many loopholes and no
proper protection provided to a whistleblower in RTI Act which makes the worst condition for a
man who raises their voice against injustice. Poipynhun Majaw murder case (2018), Nanjibhai
Sondarva murder case (2018), Bhupendra Vira murder case (2016), Nandi Singh murder case
(2012) etc. are the example of whistleblower murder cases.

7
https://www.indianjournals.com/ijor.aspx?target=ijor:tajmmr&volume=10&issue=11and12&article=001
8
https://cic.gov.in/sites/default/files/RTI-Act_English.pdf

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 Conclusion
Right to information is a weapon in the hands of citizens of the country to know the functions
performed by public authorities, the purpose of the public transaction said to done in the name of
the public act and the source of finance to discharge such functions. Right to information exists
before the enactment of Right to Information Act,2005 because it is considered as one of the
fundamental rights within the purview of Article 19(1)(a). This right promote transparency,
accountability in function discharge by public authorities. Although Right to information is
considered as advancement in India it suffers from several drawbacks which need to be revised
and improved.

Bibliography

 1973 SCR (2) 757

 1982 2 SCR 365
 https://rti.gov.in/
 https://cic.gov.in/sites/default/files/RTI-Act_English.pdf
 Roberts, A. (2001). Structural Pluralism and the Right to Information. The University of
Toronto Law Journal, 51(3), 243–271. https://doi.org/10.2307/825940
 Afro Asian Journal of Social Sciences Volume 1, No. 1 Quarter IV 2010 ISSN 2229 – 5313,
https://onlineresearchjournals.com/aajoss/art/49.pdf
 https://www.researchgate.net/profile/Smita-Deshpande-
2/publication/23455585_Privacy_and_the_Right_to_Information_Act_2005/links/0912f5
0c767f9d1fe2000000/Privacy-and-the-Right-to-Information-Act-
2005.pdf?_sg%5B0%5D=started_experiment_milestone&origin=journalDetail
 https://doi.org/10.1111/j.1540-6210.2010.02224.x
 Pozen, David E. "Freedom of Information beyond the Freedom of Information Act."
University of Pennsylvania Law Review, vol. 165, no. 5, April 2017, p. 1097-1158.
HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/pnlr165&i=1122.
 https://www.indianjournals.com/ijor.aspx?target=ijor:tajmmr&volume=10&issue=11and
12&article=001

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