Presentation on Right to Information Act : by Hemant Goswami

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Presentation on Right to Information Act : by Hemant Goswami : Burning Brain Society : at Chandigarh Central State Library, Sector 17, Chandigarh 160017 INDIA

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Presentation on Right to Information Act : by Hemant Goswami

  1. 1. .'trl- I Hill’ - i"l l“ I i: r “Right to Information” Hemant Goswami 11"/5:) Hz. ’ , ( v—i I I>>>BECAUSE >>> IT'S Y(_)UH RIGHT TO LI"l‘. IN A Cl)RRUI"I"llJ. ‘-I FI-I: '7.l‘. INDIA >>> .17 . L‘ I — . L J . _l_ _l . _’l_. .» ' I] l. I r -. ... . ->__
  2. 2. #9 +9 +§ 0+ 90 A legislation (Act) passed by the Indian Parliament in 2005 Citizen's right to obtain information from any public authority relating to its administration, operations or decisions. A fundamental democratic right. It is a human right to access information, to seek receive and impart information The fundamental right to freedom of expression and upon which all other rights depend ,3‘ . //4 .13 Lac .4“ r“ 1 I _ I E I. g ‘Q 5 .1 ‘C
  3. 3. WHATS GREAT ABOUT RTI? +: +RTl is the ‘Oxygen of Democracy. ’ Gives meaning to participatory democracy +: »Supports participatory development and is a proven anti- « ~ corruption tool +: ~Marginalised groups are given a voice and tool to scrutinise development activities +: «Democracy, equitable economic development and national stability is enhanced +: ~ Promote openness, transparency and accountability in public administration. «: » Prevent administrative arbitrariness +: ~ Bridge the gap between provider & recipient of public services ti» Make citizens part of decision-making ~: ~ Make Government responsive ‘+ Strengthen the foundations of democracy
  4. 4. oz» Marginalised groups given a rightful voice, a powerful tool to scrutinise, engage and access information about their development rights «: ~ Conflict will be reduced because government secrecy exacerbates perceptions of favouritism and/ or exclusion «: « In the words of Kofi Annan; “The great democratising power of information has given us the chance to effect change and alleviate poverty . ... ... ... ... .. With , ,, L_ information on our side, with knowledge a potential for L all, the path of poverty can be reversed”
  5. 5. The Indian bureaucracy has inherited administrative culture of secrecy as a colonial and feudal legacy. SECRECY has been the most common feature of bureaucratic cultural As Max Weber observed: Insofar as it can, bureaucratic administration “hides its knowledge and actions from criticism. .. The concept of the official secret is the specific invention of bureaucracy. ..". o: -Secrecy was the “Order of the day” due to hurdle created by the pre-constitutional law; examples; , ,7:-. .. . '2' The Official Secrets Act, 1923 ‘ '1-11:3?‘ ~: - Section 123 of the Indian Evidence Act, 1872, provides that and head of the department can refuse to part with an information [he/ she has to merely swear that it is a state secret] «: ~ Rule 11 of the Central Services (Conduct) Rules. 1964 prohibits a government servant to part with any official document «to Rule 9 of All India Services (Conduct) Rules. 1968 — No unauthorised Li¢: ‘.l*. .”. . = —communication of information : Lit i III a l —. |’[—| ___l: ‘ _. _ ; ~ I ) . .i|
  6. 6. BRIEF HISTORY Sweden: The flrst country to provide freedom of information (FOI) to its citizens way back in 1766. Finland — 1951 : Denmark & Norway — 1970 USA: Fol Act - 1966 (200 years after Sweden) Amended in 1974 to make it easier for citizens to enforce their right to access & to provide for penalties against officials who treat Fo| A request in an arbitrary or capricious fashion. France — 1978 Canada — 1982 India - 2005
  7. 7. Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 - ‘the court recognised the citizen’s fundamental right to information and even went to the extent of saying that such a right should be recognised and fully effectuated’ [right to know the antecedents of the contesting candidates] Aruna Roy v. Union of India, AIR 2002 SC 3176 — ‘The S. C located the right to information under Article 21’ (composite code theory of the SC in Maneka Gandhi v. Union of India) Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922 — The right of the workers (asbestos) to know the details of the mandatory medical examination, held to be valid by the S. C
  8. 8. -zo Onkar Lal Bajaj v. Union of India (2003) 2 SCC 673 - ‘Articles 21 & 14 - right to information — allotment of retail outlets, distributorships and dealerships of petroleum products — political _ patronage for allotment was alleged by the press — Under such ’f- , circumstances, the public in general has a right to know under If‘; r, ‘ 1 what basis their elected representatives got such allotments’ Nandkishore Ganesh Joshi v. Municipal Corporation of Kalyan, Dombivali 2004) 11 SCC 417 — ‘Under the Bombay Provincial Municipal orporation Act, 1949 the Standing Committee sought additional documents from Commissioner with a bona fide performance of its statutory functions — Commissioner is bound to comply with such request unless there exist strong and co ent reasons for not doing so — Commissioner cannot contend t at all information have been supplied in a proforma and cannot seek protection uls 123 of Evidence Act (privileged documents)- . ,1, ‘ tenders — duty bound to provide additional documents sought by ithe Standing Committee under R.24 of Working Rules. _. _' ; ~ I y l I
  9. 9. SOME CASES PRIOR TO RTI A. .. — obligation to furnish information — intra vires articles 14, 19, 20(3) and 21 — Neither a lawyer can claim professional communication beyond what is permitted u/ s 126 of Evidence Act, nor is there any law permitting a newspaper or a journalist to withhold relevant information from courts, nor can withholding of such information be traced to the right to privacy, which itself is not an absolute right’
  10. 10. «: « Public Records . '-zct, 1993 [Act no.69 of 1993] - Came into force w. e.f 1.3.1995 «: « ‘An act to regulate the management, administration and preservation of public records of the Central Government, Union Territory Administration, Public sector undertakings, Statutory bodies & Corporations, Commissions and Committees constituted by the Central Government or a Union territory Administration and matters therewith or incidental thereto’
  11. 11. THE RIGHT TO INFORMATION ACT , 2005 Act No. 22 of 2005 Received President’s assent on 15 June 2005 Notified in Official Gazette No. 25, dated 21 June 2005 — came into force on 9'
  12. 12. ‘An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of Central Information Commission and State Information Commissions and for matters connected therewith or incidental theretoi ,7-g
  13. 13. In the objectives to the Act it is provided that ‘democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed’
  14. 14. RTI PROVISIONS Sections 4 (1), 5 (1) and (2), 12,13, 15,16, 24, 27 and 28 came into force with immediate effect, while the other provisions shall come into force on the 120*“ day of its enactment (15 June 2005) provides various definitions for phrases used like, competent authority, information, record, right to information, third party and the like
  15. 15. SECTION 2 — Information ‘means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force’ — Public authority means ‘any authority or body or institution of self- overnment established or constituted (a) by or under the Constitution; b) by any other law made by Parliament; (c) by an other law made by state legislature; (d) by notification issued or ma e by the appropriate government, and includes any (i) body owned, controlled or substantially inanced; (ii) non-government or%anization substantially financed, directly or indirectly by funds provided y the appropriate government’ — record includes (a) any document, manuscript & file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and ) any other material produced by a computer or any other device
  16. 16. °» Section 2 (j) — right to information means ‘the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes. floppies. tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device
  17. 17. RT 1 OBLIGATIONS OF PUBLIC AUTHORITIES — Subject to the provisions of this Act, all citizens shall have the right to information % — Every Public Authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records facilitated — also to provide the information to the public at regular intervals through various means of communications, including Internet — dissemination, eeping in mind the cost effectiveness, local language.
  18. 18. HOW TO OBTAIN INFORMATION Provisions of Section 6, 7, 18 and 19 applicable A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to— (a) the Central Public Information Officer (CPIO) or State Public Information Officer (SPIO), as the case may be, of the concerned public authority; (b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her: Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.
  19. 19. HOW TO OBTAIN INFORMATION An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. Where an application is made to a public authority requesting for an information, - (i) which is held by another public authority; or (ii) the subject matter of which is more closel connected with the unctions of another public authority, the pubic authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub—section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.
  20. 20. «z» Rule 3 of RTI Fee and Cost Rules; An applicant making request for information shall pay an application fee of Rs 10/- by way of DD/ Bankers Cheque/ IPO (Postal Order)/ Cash (Rs. 10/- in Punjab : Rs. 50/- in Haryana : Rs 10/- in HP through treasury challan) «to Other fee payalale: -: - Rs 2/- for each copy of a document -: - Rs 50/- for floppy/ CD/ DVD -: - Actual price of samples or documents -: - Inspection free for first one hour thereafter Rs 5/- for every subsequenthour ~: ~ i~'o adciiiional fee if information is not provided in -j¢_~_ isstipulated time (30 days from when it reaches the PIO) 1fi| l ' I
  21. 21. ~: ~ Section 7 — Disposal of request — as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9 — failing which it shall be deemed to have refused the request
  22. 22. ACTION REQUIRED BY P10 Subject to the proviso to sub-section (2) of section 5 or the proviso to sub—section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be. on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. If the Central Public Information Officer or State Public Information Officer, as the case ma be, fails to ive decision on the request for information wit in the perio specified under sub-section (1 ), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request. L
  23. 23. 0:0 0 0.9 . ,1‘-» . -I I! .x| i« a! II — . ,. |.« . . E . - 2: . . __ , »i “I I. I r. K . l / . I ’- K . . II Section 7. (3) . ..shall send an intimation to the person (bl information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms. Section 7.(4 Where access to the record or a part thereof is required to be provided un er this Act and the person to whom access is to be provided is sensorily disabled, the Central Public lnfonnation Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection. Section 7.(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee rescribed under sub-section (1) of section 6 and sub- sections (1) and (5)0 section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. Section 7(6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified , sin sub-section (1).
  24. 24. ~ Section 19. (1) Any person who, does not receive a decision within the time specified in sub-section (1 ) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public aut ority: ~: . Section 19. (3) A second appeal against the decision under sub- section (1) shall lie within ninety days from the date on which the decision should have been made or was actuall received, with the Central Information Commission or the State In ormation Commission: ~: o Section 19. (7) The decision of the Central Information Commission or State Information Commission, as the case . 11'' n— , ,-= ,[-, ~ ‘may be, shall be binding.
  25. 25. POWERS AN D PUNISHMENT In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to— (a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including- (i) by providing access to information, if so requested, in a particular form; (ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records; (v) by enhancing the provision of training on the right to information for its officials; (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4; (b) require the public authority to compensate the complainant for any loss or other detriment suffered;
  26. 26. COMPLAINTS TO CIC/ SIC Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person, - (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been agpointed under this Act, or because the Central Assistant Public Information 0 icer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appea under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1 of section 19 or the Central lnforigation Commission or the State In ormation Commission, as the case may e; (b) who has been refused access to any information requested under this Act; (c) who has not been given a response to a request for information or access to information within the time limit specified under this Act; (d) who has been required to pay an amount of fee which he or she considers unreasonable; (e) who believes that he or she has been given incomplete, misleading or false information under this Act; and (f) in respect of any other matter relating to requesting or obtaining access to records under this Act.
  27. 27. POWERS OF C IC/ SIC The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while t ing a suit under the Code of Civil Procedure, 1908, in respect of the ollowing matters, name| y:— (a) summoning and enforcing the attendance of persons and compel 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) rfefqulsltioning any public record or copies thereof from any court or 0 ice; (e) issuing summons for examination of witnesses or documents; and (0 any other matter which may be prescribed.
  28. 28. ~: ~ Section 8 — Exemptions from disclosure of information 8 (1 )-Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, — (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, reéation with foreign State or lead to incitement of an o ence; (b) 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; (c) information, the disclosure of which would cause a , breach of privilege of Parliament or the State Legislature; . VIII mu:
  29. 29. SECTION 8 - EXEMPTIONS (d) 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; (e) 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; (f) information received in confidence from foreign Government; (g) 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; (h) information which would impede the process of investigation or apprehension or prosecution of offenders;
  30. 30. SECTION 8 - EXEMPTIONS (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) 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: that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
  31. 31. SECTION 8 - EXEMPTIONS Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1 ), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Subject to the provisions of clauses (a), (c) and (i) of sub-section (1 ), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is ma e under secton 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.
  32. 32. SECTION 9 - EXEMPTION Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.
  33. 33. SECTION 24 - EXEMPTION — Act not to apply to agencies specified in Schedule II to the Act— IB, RAW, DRI, CEIB, DE, NCB, ARC, SPF, BSF, CRPF, ITBP, CISF, NSG, ASSAM RIFLES, SPECIAL SERVICE BUREAU, SPECIAL BRANCH (CID) ANDAMAN & NICOBAR, THE CRIME BRANCH—C| D-CB DADRA AND NAGAR HAVELI, SPECIAL BRANCH OF LAKSHADWEEP POLICE However in case of information being older than 20 years or in cases of Corruption or Human Right violations; information can be obtained
  34. 34. »: ~ Section 1 CI — severability of information to be given - possible +: ~ Section ’i' —third party information — time schedule — five days — written notice to the third party inviting to make a submission in writing or orally and such submission of the third party shall be kept in view while taking a decision about disclosure of information [10 days]
  35. 35. SECTION 12 &. I7 The Central Government shall, by notification in the Official Gazette, constitute a body to be known as the Central Information Commission . ... .. CIC — Office at Delhi (www. cic. gov. in) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the . ... ... .. (name of the State) Information Commission to exercise the powers. SIC — Normally operates from State Capital Other provisions about appointment and terms of appointment / ‘” . _/
  36. 36. SECTION 20 - PENALTIES for actions Rupees 250 for every day but subject to a maximum of 25,000 Also for initiating disciplinary proceedings against CPIO or SP| Os under the respective service rules applicable to them
  37. 37. SECTION 20 - PENALTIES Where the Central Information Commission or the State Information Commission, as the case may be. at the time of deciding any complaint or appeal is of the opinion that the Central Public lnforrnation Officer or the State Public Information Officer. as the case may be, has. without any reasonable cause, refused to receive an application for information or has not fumished information within the time specified under sub-section (1 ) of section 7 or malafidely denied the request for information or knowingly given incorrect. incomplete or misleading information or destroyed information which was the sub'ect of the request or obstructed in any manner in fumishing the infomiation, It s all Im ose a penalty of two hundred and fifty rupees each day till application is receive or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Where the Central Information Commission or the State lnforrnation Commission, as the case may be. at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplina action against the Central Public lnforrnation Officer or the State Public Information fficer, as the case may be, under the service rules applicable to him.
  38. 38. «z» Section 2' — protection of action taken in good faith «: « C: -:c’iion ’9_'). i'-"‘()verriding effect over the Official Secrets Act 1923 ~: ~ Section '23 — Bar on the jurisdiction of courts
  39. 39. Raeokriisie REQUIREMENTS .1 7’ “or The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions 0 this Act during that year and forward a copy thereof to the appropriate Government. Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concernina the furnishin of that information and keeping of records fort e purposes 0 this section.
  40. 40. POWER TO MAKE RULES The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, name| y:— (a) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4; (b) the fee payable under sub-section (1) of section 6; (c) the fee payable under sub-sections (1) and (5) of section 7;
  41. 41. MYTHS & MISINFORMATION File nothings are not obtainable — WRONG - No such amendment has been made — All files can be seen and copies obtained RTI is being misused — WRONG — RTI only allows access to information and can never be misused, it has no such possibilities — Information and transparency only hurts the . . corrupt and inefficient
  42. 42. MYTHS &. MISINFORMATION Ngj NGO’s & Corporate can not seek information- WRONG — Any Person can seek information and this includes NGO’s, Companies, etc. — There were some erroneous interpretations initially. Information older than 20 years cannot be obtained — WRONG — All information/ documents however old they might be can be obtained. Rather if the information is older than 20 ears then even secret documents/ in ormation can be obtained from CBI, Parliament, etc. I. ] Age.
  43. 43. MYTHS & MISINFORMATION NQLJ RTI application hampers routine functioning of the office and work - WRONG — It enables better functioning as envisaged in the Constitution of India and is a positive tool to bring in a long term tool. RTI is an enabling instrument and not a hindrance to work. Only corrupt fears RTI. - ~ A n lo:
  44. 44. LET'S MAKE INDIA A BETTER Let’s use RTI and let’s motivate others to use RTI so as to make our country a better place Let’s free our country fro Corruption and Colonial mindset
  45. 45. LETS CQNITRTB UTE when vou use IITI. you also heln in creating a corruntion Free India

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