Issue 69 Vol III, August 15, 2008

L A W  &  J U S T I C E

Transparency in Public Affairs
A partial fulfillment of Promise
Joginder Singh Toor

DR. Manmohan Singh, Prime Minister of India, in his 5th year independence day speech, claimed to have provided the promised transparency in the affairs of the government and its undertakings and public bodies by providing Right to Information Act,2005. The claim if scrutinized from various angles seems to be only partial fulfillment of the promise.

The right to information emanates from the United Nations universal declaration of Human Rights 1948, followed by the international covenant on civil and political rights declaring that “every one has the right to freedom of opinion and expression, the right includes freedom to hold opinion without interference and seek and impart information and ideas through any media and regardless of frontiers.

In India the process of formulating a law gained momentum some where in 1990’s particularly in Rajasthan where Veterinary Hospitals were opened on considerable state expense, but no information was being provided to the public as to the location and expense involved. When pressed to the wall the government had to disclose the locations and one of the veterinary hospital was found to be located on the third floor of a building. It was on-paper hospital.

The Law Commission’s 179th report and of several other Committees culminated into Freedom of Information Act, 2002 which never came into force. On the recommendations of the advisory council a more comprehensive law, the Right to Information Act,2005 was enacted. It applied to whole of India and came into force on 15.6.2005.

Any person desirous of any information, i.e. any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log-books, 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, can get the same by making a request on a prescribed form and on payment of fee prescribed, at his own cost in preparing, copying or downloading etc.

The Public Information Officers are duty bound to provide the information within 30 days failing which they can be penalized and compelled by the appellate authority to do so. However, information relating to third party cannot be provided if kept confidential, except after giving a notice to the concerned party.

The infrastructure provided in the Act is not complicated. The authorities are adequately empowered but there are bottlenecks in the Act itself.

Section 8 of the Act provides exemptions. Notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information, the disclosure of which prejudicially affects the sovereignty and integrity of India, the security, the strategic, scientific or economic interests of the State, relations with foreign State or lead to incitement of an offence.

This section is very comprehensive and subjective. There is an age old Official Secrets Act,1923 which besides repeated demands from almost all sections of society is still in force. Any information, marked as secret cannot be disclosed subject however again to a subjective decision that the interest of disclosure out weighs the harm to the protected interests. The decision that it will prejudicially affect the economic, political interests etc. is entirely subjective and is not questionable.

Other information not allowed to be imparted under Section 8 includes forbidden by court to be made public, information likely to cause breach of privilege of Parliament, information regarding commercial confidence, trade secrets or intellectual property, Cabinet Papers including the record of deliberations of Council of Ministers, secretaries and other officers, subject to certain exceptions.

There is another provision contained in Section 24 providing that the Act shall not apply to security and intelligence organizations, except however information as to allegations of corruption and human rights violations. It also provides that they shall not apply to such intelligence and security organizations being organized by State Governments which the State Government may notify in the State Gazette. As a result the States of Gujrat, Haryana, Maharashtra, Orrissa, Rajasthan etc have notified number of organizations not covered under the Act.  Gujrat has notified 11, Haryana 6, Maharashtra 3, Orrissa 5, Rajasthan 3 organization such as State Intelligence Bureau, Anti-terrorist Squad, Criminal Investigation Department, Commando unit, Border Wing Home Guards, Local Intelligence, Forensic Science Laboratories etc. in the State of Gujrat.

No doubt the Right to Information Act is great weapon of transparency and authorities concerned are annoyed of it, still the Act hides more than it provides. It is a partial fulfillment of promise.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court. E-mail: jogindersingh_toor@yahoo.com]

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