Sceptics among us may find it hard to believe that we are on the way to having a progressive law on people's right to know at the national level in a matter of a few months. The pro-active stance adopted by the central government and the immense contribution by the National Advisory Council (NAC) as well as right to information campaigners throughout the country have helped bring the nation to this situation.

The bill adopted by the Parliament during the second week of May is undisputedly a good piece of legislation. The country will now have a powerful information commission comprising independent stalwarts whose task will be to usher in the information regime in this largest democracy in the world.

New information commission

An elaborate clause spelling out the powers of the commission has emerged without serious distortions, except for one change. The high-power panel under the chairmanship of the Prime Minister that will select the commission's incumbents will now be heavily political. In earlier drafts of the law, the Chief Justice of India was to be a member of this appointing panel. In the final draft that passed Parliament, the CJ was replaced by a minister to be nominated by the Prime Minister. The third member is the Leader of the Opposition. The same arrangement goes for the state information commissions. The panel to be chaired by the chief minister will have a minister instead of the chief justice of the high court.

Still, the scope for selection of commissioners has been widened. The earlier draft bill seemed to create a niche merely for retired bureaucrats. With the scope now enlarged, we can now reasonably hope for appointments of persons with a fiercely independent mindset who would dedicate themselves to the removal of the culture of needlessly excessive secrecy, without compromising on genuine privacy rights of an individual and the preservation of confidentiality of sensitive information.

Penalties on errant officers

The national bill has struck a golden mean between most of the prevailing state laws and the rather over-ambitious state law of Maharashtra on the location and designations of Public Information Officers. Assistant Public Information Officers will be posted at the sub-district level.
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Penalties have been restored, though with some hurried distortions. A public information officer (PIO) who delays disclosure of information beyond the prescribed time frame will now be liable to pay the penalty of Rs 250 for every day's delay, subject to the maximum of Rs 25,000. However, no independent penal clause has been prescribed for other serious violations by the PIO like "knowingly giving incorrect, incomplete or misleading information or destroying information which was the subject of the request or causing obstruction in the dissemination of information". Penalty for these offences will now attract the same penalty, that is, Rs 250 "each day", whatever "each day" in these situations may mean.

It will now be the task of the information commission to inject some sense in this muddled provision and impose penalty up to Rs 25,000 depending upon the severity of the offence of the officer.

Provision for errant officials incurring criminal liability has been removed, apparently because the information commission has been granted civil jurisdiction. An earlier draft enabled the commission to recommend to the government launching of a criminal action against the defaulting officer. RTI campaigners wanted these powers vested directly in the commission, but the government in its wisdom has preferred to remove any mention of criminal liability.

Still, the absence of criminal liability does not grant any absolute immunity to a delinquent PIO against such liability. A pro-active information commission can still initiate criminal proceedings against such defaulters under prevailing criminal law and an aggrieved citizen can also take recourse to the criminal law to discipline such wayward officials.

Costs to citizens

An earlier draft left the discretion of evaluating the cost of disseminating information to the whims and fancies of the PIO. The amended bill as adopted by the Parliament now confines in to the 'reasonable' limits. Bureaucrats framing rules under the legislation will define this `reasonability' in more specific terms. The rules as drafted by the bureaucracy, of course will have to be circulated for eliciting suggestions and objections from among the citizens, and particularly the RTI campaigners.

Exemptions from disclosure obligations

The exemption clauses – this is where our governments can easily cripple any right to information law - are trim. Even an earlier curious provision of granting blanket exemption to select intelligence and security organisations has been opened. The bill makes allowance for disclosure of information on both allegations of corruption as well as alleged human rights violations in these organisations.

Public information officers

The national bill has struck a golden mean between most of the prevailing state laws and the rather over-ambitious state law of Maharashtra on designations of Public Information Officers. In most laws, including those elsewhere in the world, PIOs are senior officers and no PIO is appointed at lower levels of the hierarchy. This may not be entirely suitable in our conditions where we must put in place a user-friendly mechanism to ensure that the citizens dwelling in rural areas are able to exercise their fundamental right to know without a great deal of difficulty. The RTI Act of Maharashtra had gone to the extent of providing that every administrative unit and every office of the government and its public bodies must have a PIO. This well-intentioned provision in turn created a fresh difficulty for citizens. PIOs were never designated at rural levels and those designated were poorly equipped to interpret the law and take decisions.

The new national bill provides for designations of Assistant Public Information Officers at the sub-district level. These officers will merely collect the requisitions and pass these to the designated PIO for disposal. It will thus greatly facilitate a requisitioner in the interior parts of the country to personally approach an Assistant PIO and deposit the requisition. The Assistant PIO has been granted additional five days to pass on the requisition to the PIO. This sounds like a sensible arrangement.

Third parties given a say in determining disclosure

The national bill provides that a reference must be made to a 'third party' – that is, any person any organisation other than the requisitioner and the department or organisation processing the query – if the information sought "relates to or has been supplied" by that third party "and has been treated as confidential by that third party".

The bill grants an additional 10 days for the PIO to consider the representation to be submitted by the third party on disclosure of that information and take a final decision on disclosure. Apparently this clause has noble intentions. It is intended at safeguarding privacy rights of individuals, but activists who have been extensively using their own state laws on RTI seriously apprehend that objections would be raised by third parties even to disclosure of any kind of information, thus blatantly going against the spirit of transparency in public interest. They fear that the PIOs, instead of taking a firm decision in favour of disclosure – which they are empowered to – would rather play safe and deny the information, forcing the requisitioner thus to go in for appeals.

This anxiety is not entirely misplaced. However, a series of rulings by the information commission, during the practical use of the law should greatly minimise any possible damage by this provision.

Covering the states

Unrelenting efforts by RTI campaigners have paid dividends and the bill has finally been extended to state matters as well. Modalities have still not been spelt out, but extension of the jurisdiction to states should come as a bonanza for citizens in states which presently do not have a law on the right to information, particularly those from states where governments have not been too enthusiastic in bringing in one.

What would be the fate of the existing state laws? We have in the past heard two diverse legal opinions – right from states not having legislative jurisdiction to enact such a law in the first place to the states having an inherent power to have its own law on the right to information since after all it is the fundamental right and it is the obligation of both the central as well as the state governments, independent of each other, to provide for a practical regime for the citizens to exercise this right. The previous government did not appear to be in favour of allowing the state laws to survive once the national law was enforced. The present government, however, has clarified that both laws can co-exist.

Despite this generous offer, it is time for RTI campaigners in states with their own laws to ask themselves: is it necessary for the two parallel laws to co-exist? First of all, prevalence of two parallel pieces of legislations on the same subject with their own independent procedures has the potential of creating confusion. The uninitiated and the ill-equipped will easily be mislead by mischief mongers in committing technical errors and may forego their right to elicit information.

Secondly, let us admit it. The national law that is coming is superior to most of the state laws. Most activists have acknowledged this. After all, it has been drafted by the National Advisory Council with careful study of the provisions and performance of all these existing state laws. But some fear that the third party clause – peculiar to the national law and not existing in any of the state laws – might be misused by bureaucrats in delaying and eventually denying legitimate information.

Barring this, the national bill scores over the state laws on many counts. As I have argued in this forum in the past, the single provision on the appointment of an information commission with powers to enforce its decisions should tilt the balance in favour of the national laws. Users of the state laws in Maharashtra, Delhi and Karnataka have experienced that the apparently independent apex appellate authorities in their respective laws have not been able to ensure full justice to the common requisitioner in absence of decisive powers.

If the national law is more citizen-friendly and progressive than most state laws, then I think it would be prudent for RTI activists in states with their own laws either to call upon their state governments to repeal these legislations or modify these to incorporate all progressive provisions in the national law. Yet one cannot be sure if state governments would be willing to go in for such an overhaul of their laws. They might take the simpler option of withdrawing their laws to leave the field option to the national law.

What next?

The bill now awaits the assent of the President of India, after which it is for the government to notify it without any delay. Countdown begins instantly with the notification. Public Information Officers and Assistant PIOs will have to be designated within 100 days from the beginning of the countdown while the information commission should be in the saddle within 120 days. Rules have to be framed and notified during this period.

So the legislation will come into force in four months from its notification. The President had taken about three weeks to grant his assent to the original and toothless Freedom of Information Act 2002 brought in by the previous government at the centre, though the government never enforced it. Going by the present indications, one should not expect any delay from the government in starting the 120-day countdown as soon as the assent is granted by the President.