Central RTI law: some shine, still shackled

The Central Right to Information Act as tabled before the Parliament is flawed. The penalty clause as proposed by the Sonia Gandhi chaired National Advisory Council (NAC) has been mercilessly diluted. The provision to keep the cost of information at a reasonable and affordable level has been removed. While the NAC recommended that the central law should apply to offices and public bodies of state governments, the union law department intends applying it only to the central government offices and public bodies. Last year, the NAC had to sent its draft of amendments to remedy the original central Freedom of Information Act, 2002.

Still, the bill is superior to most of the prevailing state laws in the country. It is, therefore, very essential for right to information activists all over the country to forge a common front and have the flaws in the new bill removed and to see that this bill when converted into an Act applies to the entire country including state governments.

The most outstanding provision of the central RTI bill is the provision for the appointment of an Information Commission. For the first time in the country, we see the possibility of a high-level commission at the level of the Secretary to the Government of India dedicated to its implementation. The bill envisages an Information Commissioner and up to 10 deputy commissioners appointed by the President of India on the recommendation of a panel comprising the Prime Minister, the Leader of the Opposition in Lok Sabha and the Chief Justice of India. The appointments would be made from among "persons of eminence in public life with wide knowledge and experience of administration and governance."

The decision of the proposed Commission will be binding; it will enjoy the powers of civil court while deciding a second appeal in (a) summoning and enforcing the attendance of persons and compelling 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 and (e) issuing summons for examination of witnesses or documents.

In its mandate, the Commission will have the powers to order the public authority to act in accordance with the provisions of the Act which include:

• providing access to information in the form in which it is sought
  
• designating a Public Information Officer if not designated already
  
• publishing general information of public utility without expecting citizens to unnecessarily invoke their right to know for such routine information
  
• presenting a annual report listing what information has thus been published
  
• evolving a well-defined practice in relation to the maintenance, management and destruction of records and
  
• promoting training of officials on the right to information.
  

The bill tabled before Parliament also empowers the Commission to require the public authority to compensate a complainant for "any loss or other detriment suffered" and to impose "any of the penalties provided under this Act".

Ironically though, no penalty has been prescribed. This is where the entire scheme unravels.

All the Commission "may" do is authorise any officer of the Central Government to file a complaint against a Public Information Officer (PIO) before a Judicial Magistrate of First Class if the Commission is of the opinion that the PIO "has persistently failed to provide information without any reasonable cause within the period specified". If the prosecution leads to conviction, the defaulting PIO will be liable to pay a fine up to Rs 25,000 or undergo imprisonment for a term up to five years, or both.

The NAC wanted the Information Commission to have powers to directly impose a penalty on a defaulting officer at a rate of Rs 250 for each day’s delay and award a fine of not less than Rs 2000 and imprisonment of up to five years, or both, by a summary conviction. This, if the Commission found the designated or deemed PIO to have i) refused to receive an application for information; (ii) mala fide denied a request for information; (iii) knowingly given incorrect or misleading information, (iv) knowingly given wrong or incomplete information, (v) destroyed information subject to a request, or (vi) obstructed the activities of another PIO, the Commission itself or the courts.

But bureaucrats in the union law department have in their wisdom removed the provision authorising direct penalties. Instead, for a PIO found to have been prima facie guilty of defying the Act, they preferred that the Information Commission merely authorize another government officer to initiate the PIO's trial in a criminal court. At best, this is deliberately roundabout. Further, in knocking off a vital penalty measure, the bureaucrats have shown their contempt for the wise advice of a council presided over by the president of the ruling Congress party and comprising as members “persons of eminence in public life with wide knowledge and experience of administration and governance" (to borrow words from the Bill itself).

Despite this major handicap manipulated into the Bill, the central Bill still has several features which distinguish it from the state RTI laws. (Over half a dozen states in India have passed their own RTI laws.)

The provision for an Information Commissioner should in itself encourage of citizens and champions of transparency and RTI in India because of the comparative status of prevailing state laws. One of the prime concerns in the states has been the need for a powerful independent appellate mechanism, particularly to make the position of the second appellate authority much stronger. This was prompted by the frustrations experienced by citizens in Delhi, Maharashtra and Karnataka in getting quick and certain justice from their respective second or final appellate authorities. In Maharashtra, the second appeal goes to the state's anti-corruption watchdog body, the Lokayukta. Yet, this arrangement has somehow not worked.

An Information Commissioner being dedicated to the right to information law and having powers to ensure compliance of orders will certainly be much more effective than the apex appellate authorities in the prevailing state laws who are barely effective. This is also borne out by encouraging reports about the performance of Information Commissioners in countries like Canada and South Africa. The UK's Commission has done a commendable job streamlining management of records and promoting the nation's Freedom of Information law before it became enforceable there from January 1 this year.

The new RTI bill's listing of public authority obligations in maintaining its records duly catalogued and indexed is impressively elaborate. This has no parallel in any of the state laws. While promoting the right to know through requisitioned disclosures, we also have to lay equal stress on this 'duty to publish' suo motu by the public authority and therefore this section is almost as vital for an effective RTI Act as a provision on penalty.

That the new bill makes advances over state laws isn’t surprising. After all, the better among all existing state Acts – that of Maharashtra – was considered as a model when the exercise for the first draft for a fresh central law was undertaken by the National Campaign for People’s Right to Information (NCPRI). NCPRI activists did meticulous homework. The NAC's recommendations were then derived from the NCPRI's draft. The experiences of hundreds of RTI users in Maharashtra, Delhi and Karnataka was thus taken into consideration in the attempt to improve the central law.

The section on exemptions from disclosure of information is reasonably trim – though one wishes it was trimmer. But it surely is a vast improvement over the exemptions listed in its predecessor, the unnotified Freedom of Information Act. The bill does exempt certain intelligence and security organizations – a hangover from the previous Act. The compromise was made at the very stage when the National Advisory Council formulated the draft recommendations.

Yet even here, there have more exemptions than the NAC was willing to tolerate. The NAC desired that the Act be made to apply to get information on matters pertaining to violations of human rights, the life and liberty of human beings and allegations of corruption. The bureaucrats have conceded allowing RTI only for one item -- the allegations of corruption -- and exempted the other situations.

Unduly generous protection to so-called third party information also has remained. The third party information has been cursorily defined as one that "relates to, or has been supplied by a third party and has been treated as confidential by that third party". Transparency activism has always generated concerns over confidentality of information, and section 8 of the bill does offer adequate protection to genuine third party interests.

Still, bureaucrats have added an independent provision and a nebulous definition of third party information to the new bill. This is unwarranted and bound to seriously jeopardize a requester’s sincere attempt in seeking public interest information. Again, the inserted provision was there in the outgoing Freedom of Information Act and has snaked into its successor.

But the risk of old craft creeping back into the new was a risk the NAC took. It must be noted that the NAC made its recommendations rather guardedly as amendments to the flawed Freedom of Information Act, rather than asking for a fresh bill altogether. The NAC feared perhaps that the latter approach would lead to abnormal delays. Irksome provisions from the unnotified predecessor coming into the new bill were therefore inevitable compromises. The bureaucracy offered to pilot a fresh bill but gleefully consolidated as many shortcomings in the old Act as it could.

Now it is our turn to perform. Citizens must forge a common front and make sure that all deficiencies in the bill are removed while it is examined by the Cabinet's Group of Ministers and the Standing Committee of the Parliament. Failing that, the opportunity to change exists even when the bill comes up for discussion on the floor of the House. We need a uniform law on the right to know to prevail in the entire country and that must be the better than the best from among the existing state laws.

I am not competent to comment on the legality of the central law extending to state governments and their public bodies, but as a lay person, I feel that the National Advisory Council had made a reasonably sound recommendation that the central legislation should apply to the state matters as well and where a state law already existed, people in that state be given the choice by harnessing any of the two pieces of legislation. But if it turns out a reformed central Act does come out but remains applicable only to central government bodies, citizens of every state will have to start demanding that their state governments bring in identical statutes, even by scrapping the existing (and poorer) state laws wherever they exist.