After a number of false starts and even one Act which was on the books but never came into force, it is with much excitement that the Right to Information Act 2005 has finally been enacted by the Indian Government. The Act has been passed after hectic lobbying by civil society over the last year, since the new Government came into power with an explicit commitment to making the old law "more progressive, participatory and meaningful".
The Act is considerably better than the previous national law, although it still contains some shortcomings. Below is a brief review of the key provisions in the new law.
The Good
The Act has gone considerably further than the Freedom of Information Act of 2002 in a number of areas, including independent appeals, penalties for non-compliance, proactive disclosure, and clarity and simplicity of the access process.
- Information Broadly Defined: The Act confers a right to "information" rather than just "records" or "documents". In keeping with best practice in some Indian States, information has broadly defined to permit the inspection of public works including taking samples of materials. (In Delhi, a similar provision has been used to expose corruption in public construction activities.) The definition also includes "information relating to a private body which can be accessed by a public authority under any law". This provision is an interesting variation on promoting disclosure by private bodies. It has been designed to keep the onus on the Government to collect information from private bodies, rather than requiring the public to chase private bodies themselves.
- Proactive Disclosure: The list of information to be proactively published by public authorities is very broad. In addition to standard provisions commonly contained in access laws, public authorities must publish: the budget allocated to each agency, including plans, proposed expenditure and reports on disbursements; the manner of execution of subsidy programmes, including the amounts allocated and beneficiaries; recipients of concessions, permits, licenses; and relevant facts while formulating policies or announcing decisions. The Act explicitly states that it "shall be a constant endeavour�to provide as much information suo moto�so that the public have minimum resort [to the Act]".
- Appointment of PIOs: Public Information Officers (PIOs) are required to be appointed "in all administrative units/office�as may be necessary to provide information to persons requesting it". Assistant PIOs are also to be appointed at each sub-divisional or sub-district level, and these Assistants are tasked with receiving applications and passing them on to the relevant PIO. These provisions combined are designed to bring access closer to the people, by ensuring that applicants can submit requests in their local area, rather than having to rely on the post or travel to the city.
- Time Limits: Thirty days for normal applications and 40 days where a third party submissions is to be called for. In a novel approach, these time limits are reduced to a mere 48 hours where the information sought "concerns the life and liberty of a person".
- Fees: The application fee is explicitly required to be "reasonable" and no fee shall be charged for persons who are below the poverty line, as determined by the Government. Where a public authority fails to comply with time limits under the Act, the information shall be provided to them free of charge.
- Public Interest Override: All of the exemptions under the Act (except the exemption for information which is subject to copyright) are subject to a public interest override, whereby information may be disclosed "if public interest in disclosure outweighs the harm to the protected interests".
- Independent Appeals: The Act establishes new Information Commissions at the Centre and in all the States. The Commissions are given broad powers to hear appeals and are also tasked with regular monitoring of the law (including production of annual reports). The Commissions can make any order required to bring about compliance with the law, including ordering release of documents, appointment of PIOs and publication of specified information. The Commissions are made up of a Chief Information Commissioner and up to 10 Information Commissioners.
- Penalties: Every PIO can be penalised Rs 250 per day up to a maximum of Rs 25,000 for not accepting application; delaying information release without reasonable cause; denying information in bad faith; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner.
The Bad
Despite progress on a number of fronts, the Act still retains a number of restrictive provisions, which could be abused to deny information which rightly belongs in the public domain.
- Cabinet Exemption: An overly broad exemption has been included for "Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers". A proviso is added that decisions of the Council of Ministers, their reasons and the materials on the basis of which the decisions were made will be published after a decision is taken and the matter is complete. However, there is no harm test included in the exemption, nor is there a definition of Cabinet paper, such that many documents may still not be released. Additionally, the extension of the exemption to records of deliberations of "Secretaries and other officers" is unjustifiably broad and could be used to exempt a large amount of non-sensitive information.
- Intelligence & Security Agencies Exemption: A range of Central intelligence & security agencies are specifically and entirely exempted from the Act, except where the information request pertains to allegations of corruption or human rights violations. (In the latter case, the Information Commission will make the decision regarding whether or not to release the information.) State Governments are also permitted to prescribe their own list of intelligence & security agencies which will be exempt from the Act.
- 20 Year Rules Exemptions: Some information which is more than 20 years old can be released to any person. However, this clause has been substantially weakened because a number of exemptions will continue to apply even after 20 years, most notably, the exemption which protects information which would "prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relations with foreign States of which would lead to the incitement of an offence", the Cabinet exemption, and the exemption for information which would cause a breach of parliamentary privilege if disclosed.
- Public Authorities as Third Parties: Third parties are permitted to make representations where a PIO intends to disclosure information supplied by the third party and "treated as confidential by the third party". There is some concern that this provision could be abused in practice to improperly delay responses to requests, particularly because the Act defined third parties to include other public authorities.
- Penalties: The final form of the Act removed references to imprisonment for serious acts of non-compliance with the Act. It is notable in this respect that while the Act now allows for a fine for "denying information [in bad faith]; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner", the fine is to be calculated on a daily basis! It is not clear how this provision will apply in practice - how many days of fine will be imposed for destruction of a document?
The Ugly (maybe?)
The Act also contains certain provisions whose impact will likely not be fully appreciated until the implementation process is worked through. They could work well - but if implemented poorly, they could cause problems in administering the Act in practice.
- Coverage: In response to strong lobbying from civil society, the original Bill was amended to extend coverage to all State and local bodies as well as Central Government public authorities. This reflects the approach taken in the earlier Freedom of Information Act 2002. It is undoubtedly positive that the Act is designed to apply across the country at all levels, because only eight States and one territory have passed their own access laws. However, in practice it remains an open question as to whether and how a law which was passed by the Central Parliament will be implemented by State Governments. Key issues for consideration include: (a) how will current State laws and the new Central law interact; (b) who will provide implementation funds; (c) what is the jurisdictional and operational interaction between the Central and State Information Commissions; (d) where will staff for Information Commissions be drawn from?
- Selection of Information Commissioners: The original Bill required that Information Commissioners were selected by a Committee comprised of the Prime Minister, leader of the Opposition and Chief Justice of India. The Bill was amended however, so that the Chief Justice was replaced by a Cabinet Minister selected by the PM. This could now mean that the selection process will be partisan because it is dominated by Government.
