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Venkatesh Nayak and Charmaine Rodrigues

10 May 2005

Venkatesh Nayak and Charmaine Rodrigues of the Commonwealth Human Rights Initiative provide an analysis of the Right to Information Bill 2004, currently in Parliament. The original draft of this Bill was prepared by the National Advisory Council. A severely diluted version of the NAC's draft was then tabled in Parliament at the fag end of 2004, amidst criticism from civil society groups, activists and media.

The bill was then examined by a parliamentary standing committee which consulted with civil society organizations on amendments, and a group of cabinet ministers. The Bill was given its final shape by the government recently and tabled in the parliament on May 10 by Suresh Pachouri, Minister of State in the Ministry of Personnel, Public Grievances & Pensions and Minister of State in the Ministry of Parliamentary Affairs. It is slated to be passed on May 11, 2005.

Positive Amendments

1) Jurisdiction

While the original Bill covered only the Central Government and Union Territories, the amended version of the Bill covers the States as well. This is a welcome change as it facilitates for all citizens easier access to appellate bodies. State Information Commissions will be set up in all States as appellate bodies to review the refusal of Public Information Officers (PIOs) to give information.

2) Fee

The application fee and document copying charges will be fixed at reasonable levels. Fee for applicants belonging to below the poverty line ( BPL) income group has been waived. This is a welcome change, as it will help underprivileged people to access information without undergoing further financial hardship.

Amendments with Diluting Effect

1) Appointment committee will be government controlled

In the original version of the Bill, the Committee for appointing the Chief Information Commissioner and the 10 Information Commissioners who will function at the Central level, was made up of the Prime Minister (chair), the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This process was designed to ensure that selection was a bipartisan process and that no single party or alliance could control selection of Information Commissioners.

However in the amended version of the Bill, the Chief Justice of India has been dropped and the Prime Minister is given the power to nominate a Cabinet Minister of his/her choice to this committee. At the state level, a similar composition of the Committee to appoint the State Information Commissioners has been provided for where the Chief Minister as Chair nominates a Cabinet Minister to the committee. If approved by Parliament, this will result in a government controlled committee and in all probability lead to the appointment of individuals who are likely to toe the line of the party/alliance in power.

The appointments clause has the potential to make the Information Commission amenable to the control of the political dispensation in power.

2) Penalty clause

In the original version of the Bill there was no provision for penalizing PIOs for every instance of violation of this law. Only in persistent cases of violation could the Information Commission recommend filing of a complaint against the erring official with a Judicial Magistrate (First Class). Upon conviction, the erring official was liable to a fine of Rs. 25,000/- at maximum and imprisonment for up to five years or both.

In the amended version the penalty clause has been strengthened in some respects but diluted in others. Every PIO will now be liable for fine of Rs. 250 per day up to a maximum of Rs. 25,000/- for :

    not accepting application; delaying information release without reasonable cause; malafidely denying information; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner.

The Information Commission (IC) at the Centre and the State levels will have the power to impose this penalty. This is a welcome development.

However there are two problems with the penalties clause

a) The various possible instances of violations of this law are all treated as being of the same level of seriousness. Even for serious offences like destroying requested records or knowingly giving wrong information, the PIO will be penalised from Rs. 250/- per day up to a maximum of Rs. 25,000/-. It is absurd to stipulate daily fines for such offences. The punishment for these offences should have been spelt out separately.

b) The provision for prison sentence has been dropped from the amended version. The Information Commission can only recommend disciplinary action for persistent violation of the law against a PIO. This is a further dilution of the original provision where the IC could recommend filing of a complaint. It is unreasonable to try the erring official under civil service rules for violation of the Right to Information law. The more stringent punishment envisaged in the original Bill should be restored to give the law more teeth.

3) Third Party Clause

In the original Bill, if the PIO received an application about information of a confidential nature that was given by a third party (definition of a third party includes another (public authority) the PIO was required to give notice to the third party and invite any objections. This clause has been severely criticised by civil society organisations and activists advocating for a strong right to information law. Another public authority or department cannot be treated as a third party as it belongs to the second party itself namely the Government. The Standing Committee headed by Mr. E M S Natchiappan which vetted the RTI Bill, after inviting submissions from civil society, had recommended that public authorities not be included within the definition of third party.

However this suggestion has been ignored in the amended version and in fact this provision has been strengthened by allowing third parties the right of appeal at both levels (internal to the department concerned and external the Information Commission concerned). This will in effect allow two public authorities to collude in refusing information to the applicant and will unnecessarily delay the process further requiring the applicant to go on appeal.

4) The jurisdiction of Information Commissions

The amended version of the Bill does not clarify the relative jurisdiction of the Central and State Information Commissions. For example - can an applicant file an appeal with the State Information Commission for unreasonable refusal of a local office of the Central government department or agency to give information? This could happen in the context of the telephone department which is controlled by the Central Government but function at all levels in States. Conversely can an applicant file an appeal with the Central Information Commission against a refusal of a state government department or agency? These questions arise because of the lack of clarity in the amended version of the Bill.

5) The status of the State Information Commissioners

The amended version of the Bill does not spell out clearly the status of the State Chief Information Commissioner and the Information Commissioners unlike that of the Central Information Commissioners. The Chief Information Commissioner at the Centre is equal in status to Chief Election Commissioner and the Information Commissioners equal to Election Commissioners.

6) New class of agencies exempt from the purview of the law

The amended version of the Bill introduces a new class of government agencies that will be exempt from the purview of the Bill. All intelligence and security agencies established by the State governments will be exempt from the purview of this law as and when notified by the respective governments. Citizens can seek information from these agencies only in matters of corruption or violation of human rights. This multiplies the number of agencies exempt from the purview of the law manifold. Even in these cases only the State Information Commission will have the discretionary power to decide whether such information will be given or not. At the Central level this power is wielded by the Central Information Commission.

Venkatesh Nayak and Charmaine Rodrigues
10 May 2005

The authors are with the Commonwealth Human Rights Initiative, New Delhi. Contact email: venkatesh@humanrightsinitiative.org and charmaine@humanrightsinitiative.org.

Citizen Direct is India Together's channel for publishing reports from citizens who have detailed information about specific civil society concerns and matters, by virtue of their participation, association, or independent observation. These reports are therefore as witnessed and understood by the authors themselves; India Together accepts no liability or responsibility for them.   More

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EXISTING COMMENTS

  • Posted by Prakash Kardaley on May 10, 2005 07:15 PM

    What the law and judiciary planned may not have been the same as what has finally been returned to the parliament in the amended format.

    There must have been some hurried changes in the ministry at the last minute (like incorporating penalty clause, extending jurisdiction to states etc) and that probably explains the awkward ambiguities.

    My comments:

    1 Jurisdiction:

    It is welcome that the legislation will extend to states as well.

    People of many states presently not having their regional information laws will finally have a law empowering them to seek information from their respective state governments and public bodies.

    However, what will be the procedure? if state governments do not voluntarily accept this, will it be `imposed'? and if imposed, who will foot the bill for the state information commission?

    Will it be imposed on states already having their regional laws directing them to repeal their existing state laws?

    Fees: making it free to BPL requesters is welcome. not clear it refers only to the application fee or also to the cost of information as well.

    For others, the word `reasonable' is rather `unreasonable' unless the clause spells out (as we have been insisting) that the cost of information shall not exceed the the actual cost
    of copying, testing etc.

    2. Information Commission:

    Government controlled appointment obviously is worrysome. Yet, let us hope for the best.

    At least there are two positive provisions:
    that the commission has the mandate (unlike apex appellate authorities in present state legislations) and that the central info commission will enjoy the status of the Chief Election Commission.

    3. Penalty:

    Let us all rejoice the provision for penalty of rs 250 per day's delay (as in maharashtra) is back in the bill. that was the most worrying factor.

    That it is an hurried (and perhaps involuntary) inclusion at the last minute is evident from the clumsy construction of the penalty clause.

    The Information Commission, as demanded by all of us, also has been empowered to impose this penalty. (apex appellate authorities in any of the existing state laws, including maharashtra, do not have these power.)

    Venkatesh and Charmaine are absolutely right. Other defaults like not accepting application; malafidely denying information; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner etc cannot be clubbed with the arithmetical computation of penalty for delay.

    There has to be separate provision for penal action, ranging from departmental action to penal action and even criminal prosecution.

    It was there in the draft submitted by the National Advisory Council. All that the ministry had to do was to lift the provision from that draft.

    I wonder why the provision for criminal prosecution (though weak in the original draft) has been totally removed.

    Defaults like malafidely denying information; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner
    cannot be dealt with by mere departmental action or a fine.

    4. Third party clause:

    My regret goes beyond yours. You are merely worried that 'other public bodies' have been retained in the definition of the third party.

    Actually, I do not foresee any situation when information concerning one public body will be demanded from another. At least such instance will be rare.

    To have 'other public bodies' among 'third parties' is absurd, but the damage is not as high as having the 'third party' clause itself.

    Yes, any individual has a privacy right. As the information regime sets in, it is imperative that this privacy right is spelt out and defined. It cannot be allowed to counter and negate people's right to know.

    When the government or its public body deals with some matter concerning a private individual, it may not necessarily affect the person's privacy. actually, in 99 per cent cases it wouldn't.

    A building permission sought by an individual from a planning authority is not a private and confidential matter. So is the disbursement of foodgrains to eligible individuals by an authorised outlet.

    So matters which could be considered to be affecting the privacy could be identified (like medical records etc) and preferably incorporated in the exclusion clause 8 (if these have been left out now).

    But a separate clause empowering the pio to make a reference to a third party on everything that she or the third party thinks is an infringement of privacy will be grossly misused by the bureaucracy in stalling/denying information (sought in genuine public interest).

    Even in the Maharashtra Act, a provision in the exclusion clause is being blatantly misused in denying information such as exemptions granted to developers under the urban land ceiling act etc

    That provision (7 (k)) reads: 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 Competent Authority is satisfied that the larger public interest justifies the disclosure of such information.

    5. Jurisdiction of Information Commission

    If the bill does not clearly spell out relations between central and state info commissions, I am sure this can be sorted out in the rules.

    Obviously the central commission will deal with central matters and state with matters of the state government and its public bodies.

    So matters conerning central departments and its agencies in a state will be dealt with not by the state commissioner but by the nearest central deputy information commissioner.

    I am also sure that the rules will demacate geographical jurisdictions of the ten deputy info commissioners to be appointed.

    6. Status of the state informaiton commission:

    Venkatesh and Charmaine are right again, that should have been spelt out. The state info commimssion should have been equated in status with the Lokayukta, but of course enjoying much more powers than the Lokayukta.

    7 Intelligence and security agencies:

    A lost cause. At least we should be happy that matters concerning corrupt practices could be retained at the NAC stage and those concerning human rights could be introduced at the stage of the parliamentary standing committee.

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