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  1. On International Right to Information Day Copies of Guide Book on The RTI Act Sent to 1500 People Naveen Agrawals novel effort to create Public Awareness Mr. Naveen Maheshkumar Agrawal, Registrar, Dada Ramchand Bakhru Sindhu Mahavidyalaya, Nagpur has made a very novel effort to bring about the awareness about RTI Act 2005 in public by sending Guide Book on the RTI Act to 1500 different people from various walks of life on the International Right To Information Day and has created a history. The Book has been prepared by YASHADA, Pune and it contains 466 pages highlighting the contents of the act in a very lucid language. Naveen Agrawal has sent the soft copy of the same to 1500 people and greeted them on the International RTI Day. The Guide Book also contains some of the important Court Decisions, Government Resolutions and Model Correspondence in regard to RTI cases. Naveen Agrawal, who is an RTI trainer identified by YASHADA, Pune and various government and non government organisations has created a record in 2017 by sending application under RTI Act seeking information from 101 organisation and in 2018 by sending the Copies of RTI Act to 1000 people with a view to creating awareness about the RTI Act and its provisions. On the invitation of YASHADA, Pune which is the Apex body set up of Government of Maharashtra for imparting training to state level officers, Mr. Naveen Agrawal has so far imparted training to more than 1000 government and semi government officers in the RTI Act. Dr. S.V. Kasbekar, Officiating Principal, Dr. S.V. Tewani, Dr. A.G. Thadani, R.R. Shimpi, Vice Principals, Raju Gehani, Shyam Shende, Milind Ambade, Dinesh Gupta, Ram Tejwani, Rajesh Tharwani, Shailendra Hanwate, Mulchand Mohadikar, Mahesh Asudani, Jai Keswani, Ashok Sharma, Dipak Pardesi, Kapil Kukreja, Vicky Datre, Anil Madke, Jyoti Jeswani, Jamuna Hirani, Poonam Sadnani, Devi Methwani, Jaya Hingorani, Megha Korde & Sarika Narayani congratulated Mr. Naveen Agrawal for his grand efforts in this direction.
  2. Shree Vathsan

    Information denied under 8(1)(d)

    I had sought details of loan and copies of agreement entered with World Bank, JICA etc. of IT Expressway Chennai (created in partnership with Govt of TN) However the PIO has replied that they have moved out of world bank loan and taken loan from other banks details of which cannot be disclosed under 8(1) d of RTI Act citing "commercial confidence". However the IT Expressway is a public limited company having entered into agreement with Govt of TN and others for developing and maintaining a particular stretch of road. Kindly help me frame a good first appeal. Sent from my SM-J510FN using RTI INDIA mobile app
  3. Hello, I require help on co-operative issue. I had filed the RTI with the PIO, Dy registrar of co-op societies seeking information on affairs of society. The PIO has replied stating that the information I am seeking is available with co-operative society. My query is: 1] Can PIO direct an applicant to private body for information? 2] The society in question comes under the jurisdiction of the PIO, since PIO is public authority and co-operative society a private body, is it not duty of PIO to seek information from society and give it to me? How can PIO direct me back to society? This is RTI application, either I have to appeal or I have to forego. I cannot complaint against reply. So I want to approach FAA, under what grounds can I? 3] What kind of violation PIO has committed by directing me back to private society? 4] Does co-operative society come under the purview of RTI ACt? Your views are appreciated. I am fighting lone battle with corrupt system.
  4. Can the General Diary of the police station where particulars of "All the details in r/o criminals arrested and entry of arrival/departure of all enrolled police officers on duty with nature of their duties, duty performed and places visited etc." are maintained be inspected and photo copies sought from a particular police station under RTI? Is there any particular clause/section that needs to be quoted for inspection under RTI? Any format available for inspection under RTI?
  5. Shree Vathsan

    PIO Sends a staff to my house

    The person in the article below is me. I had a corporation official visit my house with the RTI and asking for my whereabouts. However the PIO has sent a reply on 8/5/19 stating that AE Div 170 is the person responsible for inspecting the banners on the particular stretch. It is after finalising this reply that I had got a call from AE Div 170 on 8/5/19 evening and a person visited my house on 9/5/19. The reply sent by PIO dated 8/5/19 was received on 11/5/19. Further The AE has stated that he has inspected the stretch and removed illegal banners immediately. However I have material evidence that the banners remained in the same place from afternoon till late night. Only the persons who kept the banner had removed them. So can I penalise the PIO for providing false and incorrect information.
  6. I had been taken to govt hospital to get report before being lodged in jail in a false case. Now my RTI to the govt hospital seeking copy of Accident Report/OP Ticket/Medical Examination report has been replied stating no such report available in my name on the date of occurance of the said incident. But I was lodged in prison only after submitting the report given by hospital to prison authorities. Now I would like to inspect the records available with the govt hospital on that day from 8 pm to 12 am. Can I go for first appeal seeking clarification as incorrect information is furnished and a report has been given by the hospital ? What Are Grounds clauses to be included? I have not asked for inspection in the original RTI. Now can I request inspection in the first appeal or should i file a new RTI for that?
  7. एक शहीद सैनिक के जान की कभी भी क्षतिपूर्ति नहीं हो सकती । फिर भी, शहीद सैनिकों के परिवारों के लिए किया हुआ ये एक छोटा सा प्रयास । A small effort for the families of martyred soldiers: Since last 2 years, I have been filing series of RTI applications related to Indian Armed Forces and Central Armed Police Forces (CAPF) for ensuring ex-Gratia etc. to families of martyred soldiers or soldiers declared as battle casualty from Central level. Also, filed different grievance applications for giving ex-Gratia to families of martyred soldiers from State level as required. Attached photo copies are just some of the responses received to the different applications. During above long process, responses and actions were taken by various departments like Ministry of Defense (Navy), Department of Ex-Servicemen Welfare (DESW) MoD, IHQ of MoD (Army), Air Head Quarters and many Zilla Sainik Welfare Offices and many District Collector offices and also Mantralaya at state level. Note: The RTI applications were primarily around Indian Armed Forces and Central Armed Police Forces (CAPF). 1) Indian Armed Forces: This includes below 3 professional uniformed services: i] Indian Army, ii] Indian Navy, and iii] Indian Air Force. 2) Central Armed Police Forces (CAPF): This includes forces like: i] Border Security Force (BSF), ii] Central Reserve Police Force (CRPF), iii] Central Industrial Security Force (CISF), iv] Indo-Tibetan Border Police (ITBP), and v] Sashastra Seema Bal (SSB). and others. Hope the world will reach to a civilization level wherein there won’t be any need of violence. उम्मीद है कि दुनिया एक दिन सभ्यता (civilization) के उस स्तर तक पहुंच जाएगी, जहां हिंसा या war की कोई आवश्यकता नहीं रह जायेगी । Abhijit Dabhekar.
  8. saavee

    RTI support

    This has reference to my need to initiate - RTI. queries. The queries have the following origins ... Social - for my initiatives under - www.saveaamadmi.com Commercial - for my initiatives under - www.saveaamvypari.com The nature of - RTI. Query will be sufficient indication - if it's meant - for - social or commercial - purpose. avishik01@hotmail.com is my email id & 9831033484 is my - personal mobile number & you can please send a what's app ...
  9. I wish to know, How to file RTI to information about OBC Non Creamy Layer. As per OM, for children of class iii/class c state government officer income test is not applicable. But OBC issuing authority/SDM of our state is not aware of this and rejects our application. So i filled an RTI to get information about same, but got reply as queries/clarification does not come under RTI act. So how do i file an RTI to know applicability of INCOME TEST for CLASS C officer. Please reply..........
  10. Dear sir Please 1 year old rti file no information my department Sent from my A37fw using RTI INDIA mobile app
  11. The RTI query, sent to the Ministry of Finance, sought details on individual exposure of various PSBs to corporate borrowers. The questions that were asked in the RTI query sought information on the loans given to the Reliance Industries, Adani Group, GVK Group, GMR and Jaypee Group. The RTI was first directed to the Finance Ministry, which then forwarded the RTI request to various banks asking them to provide the information. The RTI had questions on the money loaned to big industrial houses by government-run banks. However, all public sector banks except Andhra Bank and Allahabad Bank have refused to divulge information citing either the 'personal nature' of questions or how they don't fit under the provisions of the RTI Act. In their reply to the RTI query, the banks have said that the information available with banks under "fiduciary relationship" is exempted from disclosure. Read about: Fiduciary Relationship under RTI While Andhra Bank and Allahabad Bank have disclosed the loans given to big corporates, all other lenders refused to do so. Banks which did not disclose any detail in their reply to the RTI query include State Bank of India (SBI), Bank of Maharashtra, Corporation Bank, Indian Bank, Canara Bank, UCO Bank, Indian Overseas Bank, Central Bank of India, Bank of India and Syndicate Bank. Earlier this month, Finance Minister Arun Jaitley informed the Rajya Sabha that loans worth Rs 81,683 crore were written-off by public sector banks (PSBs) in 2016-17. Country's largest public sector lender, the SBI, said, "The information sought by you under point number three to eight is the third party personal information held by the bank in a fiduciary capacity, the disclosure of which is not warranted for any larger public interest and as such is exempted from disclosure."
  12. Dear Members, For the past few month I have been trying to get some information through https://rtionline.maharashtra.gov.in from the Maharashtra State and Dhule city administration regarding Sewage system of Dhule City. The request to the Collector office was forwarded to the Pollution Control Board. No reply was received from the board. The request to the Municipal Corporation, Dhule received a reply to contact Water Supply and Sanitation Department, Maharashtra (WSSD). The request to WSSD was forwarded to Urban Development Department, Maharashtra (UDD). Today I received a reply from UDD that the request has been forwarded to Municipal Corporation, Dhule I have attached the list of questions asked and replies received from all the departments. Request you to please suggest future course of action. WSSD_reply.pdf UDD_reply.pdf questions.pdf MCO_reply.pdf CLO_Reply.pdf
  13. Arrears and Backlog: Creating Additional Judicial (wo)manpower GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Report No. 245 July, 2014 The 20th Law Commission was constituted for a period of three years from 1st September, 2012 by Order No. A-45012/1/2012-Admn.III (LA) dated the 8th October, 2012 issued by the Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi. The Law Commission consists of a full time Chairman, four full-time Members (including Member-Secretary), two Ex-officio Members and five part-time Members. Chairman Hon’ble Justice A.P. Shah Full-time Members Justice (Mr.) S.N. Kapoor Prof. (Dr.) Mool Chand Sharma Justice (Ms.) Usha Mehra Mr. N.L. Meena, Member-Secretary Ex-officio Member Mr. P.K. Malhotra, Secretary (Department of Legal Affairs and Legislative Department) Part-time Members Prof. (Dr.) G. Mohan Gopal Mr. R. Venkataramani Prof. (Dr.) Yogesh Tyagi Dr. Bijai Narain Mani Prof.(Dr.) Gurjeet Singh The Law Commission is located in 14th Floor, Hindustan Times House, K.G. Marg, New Delhi-110 001 Member Secretary Mr. N.L. Meena Research Staff Dr. (Smt.) Pawan Sharma : Joint Secretary & Law Officer Shri A.K. Upadhyay : Additional Law Officer Shri S.C. Mishra : Deputy Law Officer Dr. V.K. Singh : Deputy Legal Adviser The text of this Report is available on the Internet at : http://www.lawcommissionofindia.nic.in © Government of India Law Commission of India Acknowledgements The Commission deeply appreciates valuable inputs received from the Group it had constituted in finalising the report on “Imtiyaz Ahmad v. State of Uttar Pradesh and Ors (Criminal Appeal No.s254-262 of 2012)” to the Hon’ble Supreme Court of India and the present report. The group that initially comprised : Prof. Theodore Eisenberg, Henry Allen Mark Professor of law, Adjunct Professor of Statistical Sciences at Cornell University; Prof. Sital Kalantry, Clinical Professor of Law and Director, International Human Rights Clinic, University of Chicago Law School; Prof. Sri Krishna Deva Rao, Registrar, National Law University, Delhi (as representative of NLU Delhi); and Mr. Nicholas Robinson, Fellow at Centre of Policy Research was expanded when Dr. Aparna Chandra and Mr. Utkarsh Saxena, Consultant to Law Commission of India joined it. Mr. Madhav Mallya and Ms. Vrinda Bhandari, Research Associates, National Law University and Mr. Saral Minocha and Ms. Sonal Sarda, students of National Law University also helped in analysing and compiling the data. Enthusiasm and dedication apart from research inputs of Dr. Aparna Chandra deserves special mention. INTRODUCTION Denial of ‘timely justice’ amounts to denial of ‘justice’ itself. Two are integral to each other. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice which is a guaranteed fundamental right. However, as the present report indicates, the judicial system is unable to deliver timely justice because of huge backlog of cases for which the current judge strength is completely inadequate. Further, in addition to the already backlogged cases, the system is not being able to keep pace with the new cases being instituted, and is not being able to dispose of a comparable number of cases. The already severe problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the Constitutional guarantee of access to timely justice and erosion of the rule of law. The present report is aimed at addressing this scenario that demands a multi-prong approach including more sensitive and rational judicial (wo)manpower planning. It may be acknowledged that the present report is largely driven by the Hon’ble Supreme Court when in the matter of Imtiyaz Ahmad1 it directed the Commission to undertake an inquiry and submit its recommendations in relation to the following: “I. Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional Courts and other allied matters (including a rational and scientific definition of “arrears” and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised; and II. Specific recommendations whenever considered necessary on the above aspects in relation to each State be made as a product of consultative processes involving the High Courts and other stake holders, including the Bar.” For arriving at informed understanding of the problem at hand and for making any meaningful suggestion(s), to deal with it, the Commission requested all the High Courts to provide data on litigation in each district within their jurisdiction. To facilitate orderly organization and supply of data, the High Courts were sent a prescribed format (Annexure I). Some very useful data was produced. However, most High Courts due to variety of reasons, could not fully provide the data / information sought. Keeping in view insufficiency of the data received, after detailed in-house discussions and also involving experts that an additional questionnaire was sent to various High Courts. In response, no doubt, some relevant data was received. However, lack of scientific collection, collation and analysis still remained a serious constraint. Despite these constraints, reading and analyzing data received very closely, especially in the light of different methods of data analysis available that the Commission gave its response to queries and matter raised by the Hon’ble Supreme Court and the same has provided the basis of this report. While acknowledging that the problem of delay is not only enormous but complex, the Commission in the present report has remained confined to developing more informed understanding of as to whether problem of delay and strength of judges is a related one in some ways and if so how? In the report, an attempt has been made to suggest number of judges as are required to reduce delays. In a way, the report provides a roadmap for judicial (wo)manpower planning. While agreeing that there exists no clear ‘time standard’ or a ‘reference’ to which a case can be classified as ‘delayed’. How one defines ‘timeliness’ (and, therefore, how many cases are delayed) is crucial to suggest any kind of basis for computing how many additional judges are required to process cases in timely manner. Without arriving at some such definition, it is difficult to suggest any appropriate method for planning and computing additional resources required to contain problem of delay. Similarly, the Commission is fully aware as thus undermined in the report that terms, such as ‘arrears’, ‘pendency’ and ‘backlog’ which are so oftenly used in almost all kinds of discourse on working of justice administration system in India are used very vaguely and beg clear and precise definition. The report is an attempt to reflect and throw more light on some of these terms, and it is hoped that the policy makers and other stakeholders in the system may find these reflections and attempt to introduce some clarity by the present work of some use during their course of deliberations on judicial reforms. As the pivotal issue for the report is to suggest some basis for computing as to how many additional judges are required to process cases in ‘timely’ manner to large extent, answer to this question depends on how one defines ‘timeliness’ (and, therefore, how many cases are delayed). As already mentioned in the foregoing paragraphs, it may be emphasized at the cost of sounding repetitive that without arriving at some such definition, it is difficult to suggest any appropriate method for planning and computing additional resources required to contain the delay. A significant portion of the report right at the start, after critical examination of various approaches to defining terms like ‘arrears’, ‘pendency’ and ‘delay’ as floating around in the literature on the subject incorporates Commission’s own reflections. These reflections, while may provide little more clarity to assigning meaning to above referred terms which have been generally understood so ambiguously, the Commission still views that it may not be possible to devise any perfectly scientific and uniform definition of these concepts. Acknowledging such definitional limitation and of inadequacy of data received, present report culminates in making some suggestions on the additional resources required to dispose of the current pendency, and to prevent the backlog in future. DEFINING KEY CONCEPTS: PENDENCY, DELAY, ARREARS, AND BACKLOG There is no single or clear understanding of when a case should be counted as delayed. Often, terms like “delay,” “pendency,” “arrears,” and “backlog” are used interchangeably. This leads to confusion. To avoid this confusion and for the sake of clarity, these terms may be understood as follows: a. Pendency: All cases instituted but not disposed of, regardless of when the case was instituted. b. Delay: A case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of. c. Arrears: Some delayed cases might be in the system for longer than the normal time, for valid reasons. Those cases that show unwarranted delay will be referred to as arrears. d. Backlog: When the institution of new cases in any given time period is higher than the disposal of cases in that time period, the difference between institution and disposal is the backlog. This figure represents the accumulation of cases in the system due to the system’s inability to dispose of as many cases as are being filed. Therefore, as is evident, defining terms like delay and arrears require computing “normal” case processing time standards. How should the normal time frame be determined? It may be noted that since the Supreme Court had directed the Law Commission to recommend a “rational and scientific definition of “arrears” and delay,” the Commission clarified to the Hon’ble Court at the outset that there exists no single “objective” standard or mathematical formula by reference to which “normal” case processing time and hence delay can be defined or calculated. However, Commission is of the view that various methods, drawing on statistics, social science research techniques and experiential inputs can help make “rational” determination of “normal” case disposal times, and hence of delay. Based on a survey of various jurisdictions and previous reform efforts in India it is revealed that two approaches, and combinations thereof, are generally used in computing rational timeliness requirements. The first approach, which can be called the Practice Assessment Approach, involves studying the patterns of current filing, disposal, case-length and pendency. A comparative analysis of these patterns inter se and between jurisdictions, can help policy makers determine whether a particular Court takes more or less time compared to either a system-wide average, or the median case in the system. This analysis does not tell the policy maker whether a particular Court or type of case is delayed. However, it does allow for a relative assessment of which Courts are taking longer than others, such that they may require targeted intervention in terms of greater allocation of resources, etc.2 When a Court is a complete outlier in terms of its case processing time, the policy maker (or superior Court) may be able to draw an inference that cases in that Court are unacceptably delayed and are, therefore, in arrear. 3 Further, while current practice assessments are inadequate for defining delay, they can reveal when and where (in which Court and in which types of cases) backlog is being created, so that targeted intervention is possible to address the issue. In the absence of other measures, this is the approach that the Commission has adopted in examining the question of adequate judicial strength for the Subordinate Judiciary. Another approach, which may be called the Normative Assessment Approach, is to fix time standards for the disposal of cases. Cases that are disposed of within such time are not delayed; cases beyond such time are delayed; cases which exhibit unwarranted delay are in arrears. One of the means by which such standard setting can take place in a rigorous and rational manner is to begin by studying the current patterns of filing, disposal, pendency, length, etc. Based on this study, the policy maker can determine the average or median time taken for processing various types of cases. Studies based on interviews with stakeholders, examination of the life cycle of sample cases, etc, can then be undertaken to understand whether these time frames reflect an optimal standard for timely disposal. A committee of experts, drawn from persons with extensive experiential knowledge of the system, can then review the current patterns to determine optimality, keeping in mind resource constraints, Court cultures, system goals and constitutional and statutory requirements. The Normative Approach therefore, relies on an amalgam of past and current statistics, social science research techniques and experiential inputs to make a “rational” determination of “normal” case disposal times, and hence of delay. One method of defining delay through the Normative Assessment Approach is by determining the normal time frame within which cases of a particular type should be processed through a Court. If a case takes longer than this time frame, then the case is delayed. Time frames can be in the nature of mandatory time limits, or they can provide general guidelines that are normally to be followed, but can be departed from in exceptional circumstances. Countries like the US have limited mandatory time frames, for example under the US Speedy Trial Act, 1974.5 However, India does not have general statutory time limits comparable to the US Speedy Trial Act. While the Civil Procedure Code, and the Criminal Procedure Code, have time frames for completing certain stages of the case, these statutes generally do not prescribe time limits within which the overall case should be completed, or each step in the trial should be concluded.6 On the judicial side, setting of mandatory time limits was attempted by the Supreme Court in a series of cases.7 However, in 2002 a seven judge bench of the Court in P. Ramchandra Rao v. State of Karnataka8 held that mandatory time limits could not be prescribed by the Court.9 Though the Court was not in favour of mandatory time limits, it did not find problematic the use of time frames as guidelines for the Court. The prescription of such non-binding, directory guidelines has been a common means of defining normal time frames and evaluating delay, both in India and abroad.10 In India, previous Law Commissions and various Governmental Committees have suggested various directory time frames both as guidelines to Courts for the timely disposal of cases, and as standards by which delay in the system can be measured.11 However, all these suggestions are based on ad-hoc prescriptions rather than grounded in empirical analysis and observation. And thus the concern raised by the Hon’ble Supreme It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay’s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused. Court in Imtiyaz Ahmad, viz., of providing “a rationale and scientific definition of ‘arrears’ and ‘delay’ demands deeper study and rigorosity in terms of data. Time frames serve as performance benchmarks and provide guidance to Courts as well as other stakeholders on what constitutes the timely disposal of a case, and enable them to determine both whether an individual case is being processed in a timely manner; and whether a Court or system as a whole is providing timely justice. Where time frames are not mandatory, they can be departed from, but only in limited circumstances, and often with the requirement of justification for why such departure from the time frame is necessary. This provides the flexibility needed to individualize case processing, while at the same time, taking care of the systemic concerns over timeliness. Though general time frames of this type serve a useful benchmarking purpose, and are well suited as a time template for the run of the mill or average case, they require further fine tuning for cases which require less or more time. A standardized time frame is likely to be both over and under inclusive in determining the requirements of timely justice. The intention behind benchmarking performance is not to have all cases processed at the same time. Each case is different and might have different requirements. Therefore, apart from general guidance there is a requirement for case-specific determination of what would amount to a timely disposal of the case. Case-specific time tables are generally adopted to meet this object of individualized timely justice. Such time tables are fixed by the judge hearing a particular dispute, generally at a scheduling hearing held towards the start of proceedings, so that all parties know who has to perform what activity, and by when. Setting individualized time-tables allows the judge to mould the general time frame to suit the requirements of the individual case, while at the same time keeping in mind the needs of the overall case-load before the judge. The time table set at the beginning of the case proceedings then becomes the benchmark by which the timeliness of the proceedings is measured. Unforeseen events may de-rail the time-table, but the case, though delayed, would not be counted as an arrear, if the delay was warranted. Case specific time-tables are used as timeliness standards, delay reduction methods, and yardsticks for measuring delays in the system in various jurisdictions around the world, including U.S.,12 U.K.,13 and Canada.14 In India the Supreme Court has also recently advocated the use of case-specific time tables for the timely disposal of cases, in the case of Ramrameshwari Devi v. Nirmala Devi.15 As a staple part of systematic case management strategies, such timetables provide clear time frames for dispute resolution, define litigant expectations of timeliness, and thus impact the litigant experience of delay. They allow the judge flexibility to take into account the specific aspects of an individual case in framing a time schedule for that case. When accompanied by general time frame guidelines, the possibility of abuse of the power by setting long time frames can be avoided. When case-specific targets cannot be met because of systemic delays the system needs to take responsibility for allocating proper resources. Where the delay is because of the conduct of parties, the judge can provide sanctions for such behavior, including, dismissing the application, imposing costs, etc. The Normative Assessment Approach requires state level studies to determine optimal time frames. High Courts are best placed to take into account state level concerns and circumstances in determining adequate time standards. Within the frame work of these time standards, individual Subordinate Court Judges can set time frames for individual cases. For this system to work, a strong monitoring frame work would be required, whereby the timeliness of the caseload of individual judges can be supervised by High Courts. Annual reporting of disposal and timeliness data will also ensure public scrutiny and add another layer of accountability towards timeliness goals and standards. As a beginning however, the Normative Assessment Approach requires extensive and sustained study over a period of time in order to provide a rational and scientific definition of delays and arrears. In the meantime, in the absence of such time frames, and for the purposes of the study of adequate judicial strength in India’s Subordinate Judiciary, the Commission has examined the current patterns of institution, disposal and pendency, to address the question of whether more judicial resources are required (and where they should be targeted) in order to clear the current pendency and prevent the accumulation of backlog in the future. COMPUTING JUDGE STRENGTH A. Overview of Data and its Limitations Lack of complete data was a great handicap in making critical analysis and more meaningful suggestions as responses to questionnaires received from many High Courts16 were incomplete. However, data supplied by High Courts of Andhra Pradesh, Bihar, Delhi, Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka, Kerala, Punjab & Haryana, Sikkim, and Uttarakhand proved very useful in furnishing the basis for the present work. The analysis in this report is based on the data received from these High Courts. High Courts have provided data for the period 2002 to 2012. All the data received has been computed on an annual basis. Therefore, for example, each High Court has provided data as on 31st December of each year, under the categories of institution, disposal, pendency, etc. Some High Courts provided data that was disaggregated into two categories: Higher Judicial Service and Subordinate Judicial Service. Other High Courts provided data disaggregated by cadre, i.e., Higher Judicial Service, Civil Judge (Senior) Division, and Civil Judge (Junior) Division. For uniformity of analysis, all the data has been analysed in the two broad categories of Higher Judicial Service and Subordinate Judicial Service. It is important to note that the data on institution, disposal and pendency does not indicate the actual number of cases in the system. High Courts count data in various ways. Some High Courts such as those of Himachal Pradesh, Jammu & Kashmir, Orissa and Sikkim count interlocutory applications before Subordinate Courts as separate institutions, disposals and pendencies. Kerala even counts committal proceedings as separate for purposes of institution, disposal and pendency. Therefore, a single case may be counted multiple times in some High Courts. Thus, the number of cases pending, instituted or disposed of by the Courts is significantly smaller than the overall pendency, institution or disposal figures would suggest. Further, the multiplicity of approaches in tabulating data make a cross-comparison between different High Courts problematic. For example, in the High Courts of Delhi, Andhra Pradesh, Bombay, Karnataka and Madhya Pradesh, B. Analysis of Data The data shows that overall, institution, disposal and pendency have all been on the rise in this category in the last decade. The data shows that while the annual rate of institution, disposal and pendency has increased overall in the 2002-2012 period, in the last few years, pendency has been on a decline whereas institution and disposal are largely constant. The data for the Higher Judicial Service also indicates that in the 2002-2012 period, by and large, more cases have been instituted than have been disposed of in any given year. As a result, a backlog is being created in the system. 12. Backlog Creation Rate is the ratio of institution to disposal in any given year. If the ratio is greater than 1, this implies that more cases are being instituted than are being disposed of. If the ratio is less than one, then more cases are being disposed of, than are being instituted. A number less than 1, therefore, indicates that the judicial system is being able to handle new institutions. As the figures indicate, the Higher Judicial Service is disposing of fewer cases than are being instituted. As such, it is adding to the backlog of cases in the system. On the other hand, in the Subordinate Judicial Service, the disposal rate is higher than the institution, implying that the backlog is being reduced. It should be pointed out here that the backlog creation analysis does not indicate whether the same cases that were filed in a given year were disposed of in that year. Rather, it takes a systemic perspective and looks at how many new cases are coming in, in relation to how many cases are going out. A low backlog creation rate, therefore, indicates that the system as a whole is incapable of dealing with the recurring annual demand for Judicial Services, and is, therefore, in need of additional resources. As mentioned realier, the Backlog Creation Rate focuses on the number of cases going in and out of the system in a given year and does not take into account the already backlogged cases that carry forward from year to year. To understand how well Courts are handling the already backlogged cases, the Pendency Clearance Time is useful. This figure is arrived at by dividing the pendency at the end of the year by the disposal that year, and indicates the amount of time it would take to dispose of all pending cases if no new cases were filed. The following figures indicate the annual pendency clearance time in the 2002-2012 period for the Higher Judicial Service and the Subordinate Judiciary, respectively. Overall, for both the Higher Judicial Service and the Subordinate Judicial Service, the time it would take to clear pendency has declined in the 2002-2012 period. This implies that overall, the system is processing cases faster at the end of 2012 than it was in 2002. While these figures do not indicate the types of cases that are being processed through the system, the figures do provide an overall picture of the system and indicate the broad trajectory of the system in the past decade. The data also indicates that in the High Courts under consideration, in the last three years 38.7% of institutions and 37.4% of all pending cases before the Subordinate Judicial Services were traffic and police challans.19 An additional 6.5% and 7.8% cases account for institution and pendency respectively of Section 138 Negotiable Instruments Act, matters.20 Annexure V provides the numerical data and the following figures provide State-wise breakup of institution and pendency including data on traffic/police challans and Negotiable Instrument Act matters. Cases of traffic and police challans generally do not require much judicial involvement. However, given the high volume of such cases, they cumulatively take up a significant amount of judicial time. The bulk of these cases deal with the payment of fines and are usually uncontested by parties. For such cases, automation of the system through the ability to pay fines online or at a designated counter in the Court complex, can significantly free up valuable Court time. For the remainder, the Commission considers that the creation of separate Special Traffic Courts, over and above the regular Courts, may significantly reduce the burden on regular Courts. These Special Courts can sit in two shifts (morning and evening). Since most such cases are not contested and do not involve lawyers, the shift system is not likely to inconvenience other stakeholders. In fact, the evening Court shift is likely to assist parties to come to Court after work hours and pay their fines. Recent law graduates can be recruited on a temporary basis (e.g., for 3 year periods) to preside over these Courts.21 However, cases in which there is a possibility of imprisonment, should be tried by regular Courts. Thus, a simple analysis of data supplied shows that there is a large amount of double counting of institution, disposal and pendency figures in the Subordinate Judiciary, such that the total volume of cases being processed through the system is significantly less than the figures supplied by the High Courts. Tit is also evident from the data that a high proportion of cases before the Subordinate Judicial Service comprises of petty matters like traffic and police challans. As already suggested, it is reiterated that these petty matters can better be dealt with by special morning and evening Courts over and above the regular Courts. The burden on the regular Courts will be significantly reduced as a result. C. Methodologies for Computing Adequate Judge Strength Most oftenly referred methods in most discussions for computing adequate judge strength are: the judge-population ratio, the judge-filing ratio, the ideal case load method, time based methods, and the rate of Disposal Method. Briefly analyzing these methods and looking into their pros and cons the report finds greater favour with the rate of Disposal Method. 1. Judge to Population Ratio & Judge to Filing Ratio One method commonly advocated for determining how many judges are required in the judicial system is the judge to population ratio, i.e., the number of judges per million persons in the population.22 The Commission finds this method very wanting because there is no objective number by reference to which we can determine whether the judge to population ratio of any State is adequate. It is known that filings per capita vary substantially across geographic units. Filings per capita are associated with economic and social conditions and can vary across India’s States by as much as a factor of 50.23 The justice needs of different societies thus vary, and no universal standard can be prescribed in this regard. Therefore, while population might be the appropriate metric to measure the availability of other essential services like health care and nutrition, it is not an appropriate standard for measuring the requirement for Judicial Services. Another similar method oftenly referred to on various discussions is to look at the Judge to Institution Ratio.24 This would tell how many judges a State has relative to the existing pattern of demand for judicial services within that state. Here, again, however, there is no ideal number of judges per 1000 instituted cases, by reference to which one can determine whether or not a State needs more judges and by how much. Further, institution figures often vary depending upon the issue area and the social identity of those instituting cases. Socially marginalized groups are likely to have lower institution rates for reasons of lack of access to Courts.25 Institution figures may also vary depending upon the geography. Far-flung areas, where physical access to Courts is a problem, may have low institution figures compared to the population. No doubt, while these are not by themselves reasons to discard the judge to institution ratio method but they do caution that merely meeting some ideal ratio will not necessarily fulfill the justice needs of a society. 2. The Ideal Case Load Method Another method sometimes advocated for fixing the appropriate judge strength is the ideal case load method. This method requires a determination of the ideal number of cases that a judge should have on his/her docket. The total caseload (existing pendency plus new institutions) can then be divided by the ideal case load to estimate the number of judges required by the system. Where the number of cases per judge is disproportionately higher than the ideal case load, additional judges are required to be recruited.26 The ideal case load method seems difficult to implement in practice. One is absence of any exhaustive study, one does not find any fixed criteria for determining what the ideal case load should be. Generally, ideal case loads are fixed on an ad hoc basis. To give one illustration, the Law Commission vide letter no. 6(3)/224/2012-LC(LS) dated 28.05.2012 had asked High Courts to provide “reasonable workloads that each category of Courts (DJ, Sr. Civil Judge, Jr. Civil Judge/Magistrate) can bear in order to establish better and speedy access to justice.” However, the information received from various High Courts revealed that measurements of ideal case load for each cadre of judge varies widely across states. Thus for instance, the reasonable workload for the Higher Judicial Service was suggested to be 120 in Madhya Pradesh, 500 in Andhra Pradesh, 750 in Jammu and Kashmir and 1000 in Orissa. This wide variation across states is a result, in part, of the lack of a rational basis for determining the ideal case load. Second, different types of cases require different amounts of judicial time. A murder trial is generally likely to consume much more time, for example, than a summary trial in a petty offence. An ideal case load approach that looks only at the number of files before the judge, will treat both cases as equal even though a judge with 500 murder cases is likely to be over-stretched and one with 500 summary trials, under-utilized. To be fruitful, the ideal case load method requires some analysis of the types of cases likely to come up before a judge. Also, there is need to analyze as to the amount of time each type of case normally takes. Such analysis may probably give an idea of what should constitute ‘ideal case load’ before a judge. However, there is need to be cautious because the existing case mix can change fairly quickly, for instance, through the emergence of new laws and increased rights awareness. For example, The present section 138 of the Negotiable Instruments Act, was a result of an amendment in 2002 vide the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (55 of 2002). This provision has been wide used and has drastically changed the number and type of cases in the case mix before the Subordinate Judiciary. Finally, if we were to do the study into the case mix and case times required to operationalize the ideal case load method, this information can be directly used to determine the appropriate number of judges required by the system. The via media of ideal case load would not be required. The method to determine the appropriate number of judges by using case mix and case times is discussed below. 3. The Time Based Method Another model often used, as for example in the US, for determining the number of judges required by the judicial system is the Time Based Method.28 Broadly speaking, this method determines the time required to clear the existing judicial caseload. It then determines the time available per judge for judicial work. Dividing the first number by the second provides the number of judges required to deal with the existing caseload. In more detail, the time based method involves determining the ideal or actual time taken by judges in deciding a particular type of case on average. Then it requires determining the average number of cases of that type being instituted and pending in the Courts. Multiplying the number of cases with the time required per case, gives the number of judicial hours required to deal with cases of that type. Dividing this by the number of judicial hours available per year gives the number of judges required to deal with cases of that type. Adding this information for all types of cases that a particular category of judges deals with gives the number of judges required for disposing of the caseload. In the United States where this approach is followed, the National Centre for State Courts (“NCSC”) conducts studies to determine the number of minutes it takes judges to resolve certain cases. Judges are interviewed and are often required to keep time sheets in order to determine the time value of each type of case. The Time-Based Method, as followed by the NCSC computes the number of judges using four pieces of data: 1) The number of cases instituted by Court, district, and type of case 2) The average bench and non-bench time a judge requires to resolve each type of case within the Court 3) The amount of time a judge has available to complete case-related work per year 4) The number of active judges by Court and district All the information required to run this model for Indian Courts is not available. In India, the system does not have any information about the time required by judges to resolve each type of case. This lack of information points to a larger systemic problem. Any effort at delay reduction has to first determine how many cases in the system are delayed. This requires determining what the normal time frame for a particular type of case should be, such that anything beyond this time frame is considered delayed. The judicial system has no such benchmark and, therefore, has no data on how many cases are delayed (as opposed to pending). One proxy for time could be units. Since judges are required to complete a certain number of units per month, and one knows the time available per judge for judicial work per month, and can calculate the time value of each unit. One can then determine the time value of each type of case by looking at the number of units allotted to that type of case. This would give the data required in point 2 above. However, two problems arise: 1. Units are not a good proxy for time. Units serve as performance benchmarks for judges. As such they are used for different purposes. Often units are used to incentivize the quick disposal of certain types of cases, for example, cases pending for a certain number of years. Second, they are used to incentivize greater productivity. Therefore, for the same type of case, more units per case is sometimes awarded if a judge completes a certain number of such cases. Therefore, the allocation of units is not based solely on time. 2. The data about institution, disposal and pendency that High Courts record, often do not map well against the information available on units. For example, while it is known that the number of Section 302, IPC cases instituted and pending before the Sessions Courts of Delhi, it is not clear how many witnesses are required to be deposed in each case. Units though are awarded, inter alia, on the basis of the number of witnesses in a particular case. Hence, even if one knew the time value of each unit, one would not know the unit value of each murder case instituted or pending before the Court. For these reasons, the Commission feels that any approach that uses “unit as a proxy for time” may not be a sound approach. There is no other proxies for time and further no scientific data in this regard is available. The time Based Method as practiced elsewhere may not be applicable or feasible in Indian context. 4. The Rate of Disposal Method In the present scenario, especially in the absence of complete and scientific approach to data collection that the commission finds the use of the Rate of Disposal Method to calculate the number of additional judges required to clear the backlog of cases as well as to ensure that new backlog is not created as more pragmatic and useful. This method generally speaking addresses two important concerns: (a) a large existing backlog of cases and (b) new being instituted daily which are adding to the backlog. To address both these concerns, the Rate of Disposal Method can be applied to provide for two sets of judges: (a) Number. of judges required to dispose of the existing backlog and (b) Number of judges required for ensuring that new filings are disposed of in a manner such that further backlog is not created. It may not be out of context to briefly explain what constitutes “Rate of Disposal Method”. Under the Rate of Disposal Method, one first looks at the current rate at which judges dispose of cases. Next one determines how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals the number of institutions in any one year time frame. As long as the institution and disposal levels remain as they currently are, the Courts would need these many additional judges to keep pace with new filings in order to ensure that newly instituted cases do not add to the backlog. Second, working with the current rate of disposal of cases per judge one is also required to look at how many judges would be required to dispose of the current backlog. Backlog, for the present, has been defined as those cases which have been pending in the system for more than a year.30 It has to be noted that in the past the Law Commission and other Committees have suggested that since the judges required to dispose of the backlog are needed only till the backlog is cleared, therefore, short-term ad hoc appointments be made from among-st retired judges, for the purpose of clearing backlog. Most recently, the National Vision Statement and Action Plan presented by the Law Minister in October 2009, also recommended that retired judges and eminent lawyers may be appointed as ad hoc judges for a period of one year for dealing with arrears.32 However, as previous experiences with appointing ad hoc judges has shown, there are serious concerns about such appointments, especially the lack of accountability in the functioning and performance of ad-hoc judges, since these are short term appointments. Further, even if ad hoc judges were to be appointed, additional infrastructure for these Courts would have to be created. Though the National Vision Statement recommended adopting a shift system to overcome the infrastructure problem,33 this proposal has been resisted by members of the Bar since it significantly increases their working hours.34 Significantly, the Central Government, the Conference of Chief Justices and Chief Ministers, and the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, have all proposed the doubling of the current judge strength.35 As per the information supplied by the Department of Justice to the Law Commission indicate that consultations are currently underway between the Central Government, the State Governments, and the High Courts, on formulating memoranda to be presented to the 14th Finance Commission regarding funds required for doubling the judge strength. The Commission recommends that since this decision to double judge strength has already been taken, the judges required for disposing of the backlog can be drawn from the new recruitment itself. Once backlog is cleared, these judges can be deployed for disposing of freshly instituted cases, which will also increase over time. Given the vast resources required to double the existing judge strength, the time that it will take to complete selection and training processes, and the funds and time required to create adequate infrastructure, the Commission is of the opinion that the Rate of Disposal Method should be used to indicate how many judges should be appointed on a priority basis for the interim period. Tables I- XII below, provide data for how many judges need to be hired to dispose of the backlog in one, two, or three years.36 The Rate of Disposal Method provides an approximation- a rough and ready calculation- based on current efficiency levels of the Subordinate Judiciary, of the adequate judge strength required to address the problem of backlog in the judicial system. The formula as proposed below has been evolved largely based on the data that the Commission could gather. With more precise data, the formula indicated below can be fine-tuned to provide a more exact estimation of the additional judges required. Keeping in view concerns expressed about other methods and other analysis as carried out here, the Commission is of the view that the method proposed here could provide a reasoned basis (as opposed to ad-hoc) for determining adequate judge strength. The method is as below: 1. The method aims at calculating the number of judges required in each cadre of Subordinate Court Judges, i.e., Higher Judicial Service, Civil Judge Senior Division and Civil Judge Junior Division. For evolving the method, a separate analysis of figures for institution, disposal and the working strength of judges in each of these three cadres from 2010 to end 2012 was carried out. 2. Disposals for one cadre of judges (e.g., Higher Judicial Service) is divided by the working strength of judges in that cadre. Working strength refers to sanctioned strength minus vacancies and deputations. This division gave the annual Rate of Disposal per judge in a cadre for each year from 2010 to 2012. The average of these annual rate of disposal figures gave the Average Rate of Disposal per judge in that cadre. 3. An average of the annual institutions before each cadre of judge for the years 2010-12 was taken.37 The average institution was divided by the Average Rate of Disposal per judge for that cadre to give the number of judges required to keep pace with the current filings, and ensure that no new backlog is created. This figure has been described as : The Break Even Number. 4. Subtracting the current number of judges from the Break Even Number gives us the Additional Number of Judges required to ensure that the number of disposals would equal the number of institutions. 5. The backlog for a particular cadre of judges (defined as all cases pending before that cadre of judges for more than a year) was then divided by the rate of disposal for that type of judge. This gave the number of judges required to clear the backlog within a year. Dividing this number by 2 gives the number of judges required to clear the backlog in 2 years, and so forth. Based on application of these formulae, the following tables were generated. These tables indicate the additional number of Subordinate Court Judges required to breakeven, and the number of Subordinate Court Judges required to clear the existing backlog for the High Courts of Andhra Pradesh, Bihar, Delhi, Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka, Kerala, Punjab & Haryana, Sikkim, and Uttarakhand. Illustration: The method can easily be illustrated with an example. Table I shows the rate of disposal analysis for the Andhra Pradesh Subordinate Courts. As this data shows, in 2010 Andhra Pradesh had 129 judges of the Higher Judicial Service who disposed of 109085 cases, at an average of 109085/129 = 845.6 cases per judge. Similarly, in 2011, 139 judges disposed of 111892 cases at an average of 111892/139 = 805 cases per judge; and in 2012, 136 judges disposed of 106997 cases at an average of 106997/136 = 786.7 cases per judge. On average, therefore, judges of the Higher Judicial Service disposed of (845.6+805+786.7)/3 = 812.4 cases per judge per year in this time period. This is the Average Rate of disposal per judge. Now the average institution per year from 2010-2012 in the Higher Judicial Service cadre is (112209+112710+113250)/3=112723. If each judge is disposing of on average 812.4 cases per year, then the number of judge required to dispose of 112723 cases is 112723/812.4 = 138.7. This is the breakeven number, which implies that if there were 138.7 Higher Judicial Service judges then in any given time period, all new institutions would be disposed of without adding to the backlog. Since currently there are 136 judges of this cadre, there the need is 138.7- 136=3 (rounding off to the higher number) additional judges to reach the breakeven number. The breakeven number deals with the current institutions. There is also a huge backlog of cases. In the case of the Higher Judicial Service, 98072 matters are pending for more than a year, as on 31.12.2012. If one judge disposes of 812.4 cases per year on average, then system would need 98072/812.4 = 121 judges to dispose of all pending matters in one year, or 121/2=61 (after rounding off), or 121/3=41 (after rounding off) for disposing of all pending cases in 2 and 3 years respectively. A closer look at the foregoing analysis of the data and evaluating various methods as discussed the Commission considers it important to emphasize the following: 1. Appointment of judges on a priority basis: As this data indicates, the situation is indeed grim, and is getting worse by the moment. In all states, there is a significant backlog of cases which requires a massive influx of judicial resources even if one takes a 3 year time frame for clearing backlog. Bihar, for example, requires an additional 1624 judges to clear backlog in three years. The problem of backlogs is compounded by the fact that in some states, Courts are unable to even keep pace with the new filings, thus adding to the already huge backlog. As the data shows, even where the Courts are breaking even, the system is severely backlogged and requires urgent intervention.38 Given the large number of judges required to clear backlog and the time it will take to complete selection and training processes, the Law Commission recommends that the recruitment of new judges should, therefore, focus, as a matter of priority, on the number of judges required to breakeven, and to dispose of the backlog in a 3 year time frame. This has to be dealt with on a priority basis, otherwise the already severe problem of backlogs will only get worse. 2. Special Traffic Courts: The figures for institution and disposal do not include traffic challans/police challans. As mentioned in Part III A above, the Law Commission recommends that these cases be dealt with by Special Courts, over and above the regular Courts. The Special Courts can function in morning and evening shifts. Much of the work of these Courts is likely to require very little judicial involvement. Therefore, recent law graduates can be appointed for short durations, e.g., 3 years, to preside over these Courts. Providing online facilities for the payment of fines, or separate counter facilities in Court precincts for this purpose, can ease the work load of these Courts considerably. In order to ensure fair process, Special Traffic Courts should deal only with cases which involve fines. Where imprisonment is a likely consequence, the matter should be heard by a regular Court. Staffing such Courts with recent law graduates will also have the added benefit of providing such graduates with a meaningful stepping stone for careers in litigation or the judicial services. It is to be noted that the Backlog figures do not exclude traffic challans. Data on what proportion of pending traffic/police challans were more than a year old were not available. However, given that these cases generally do not require much judicial involvement, most of these cases are not likely to be backlogged. 3. Periodic Needs Assessment for the Judiciary: The present work is based on analysis of institution, disposal and pendency data for the time period 2010-12. Institution and disposal trends can and will change over time. New laws, greater awareness of rights, changing social circumstances, and even the reduction of judicial delay are likely to lead to an increase in the number of cases being instituted. At the same time, better infrastructure, more support staff, access to time-saving technology and better training are likely to increase the efficiency levels (and hence, rate of disposal) of judges. Since the method of calculating Additional number of Judges depends on these figures, the Law Commission recommends that the trend of institutions and disposals should be constantly monitored by the High Courts, in order to meet the evolving needs of the judiciary. Using the formula provided above, judge strength should be increased periodically, particularly when institution rates start climbing over disposal rates. The Commission also recommends that in order to engage in this analysis, High Courts should put in place reliable and regular data collection and management systems. 4. Efficient Deployment of Judicial Resources: The Commission recognizes that apart from increasing the judge strength, there is also need for efficient deployment of the additional judicial resources. While the rate of Disposal Method indicates how many additional judges are required it does not indicate how these additional judicial resources should be allocated (e.g., which Courts, which districts, what types of cases) to best meet the goal of delay reduction. Further, the Commission also recognizes that the most efficient allocation of resources will depend upon various local factors and micro level analyses, for which pan-India recommendations may be inappropriate. Therefore, the Law Commission recommends that once appointments are made, High Courts should make appropriate allocation of judicial work, keeping in mind the following factors: a. In this report, all cases pending for less than a year have been treated as current cases. All cases pending for more than a year have been categorized as backlogged cases. The Commission recognizes that this division is ad hoc. However, as elaborated earlier in this report, we do not have any established metric for determining when a case can be considered delayed for purpose of counting only delayed cases in the backlogged category. In the absence of this information, a time frame of one year has been taken as the period for considering a case as current or backlogged. It is possible that a Court with high pendency of backlogged cases might have many recently filed pending cases whereas another Court with a relatively lower backlog may have a high proportion of very old pending cases. High Courts should, therefore, allocate more resources for Courts with more old pending matters than those with relatively new case loads. b. It is also important to note that not every case requires the same amount of judicial time or resources. A petty case may be considered delayed if it takes more than 3 months whereas a murder case may be considered disposed of well in time if it takes 6 months for disposal. However, the rate of Disposal Method does not take this complexity into account. The Commission has taken one, two and three years as the time frames within which pending cases should be disposed of. However, one year might be too much time for some cases, and too little for others. A benchmark to determine delay and the requisite age wise break up of cases by subject area, can help to determine what percentage of cases are delayed and hence require targeted intervention. On the general principle of first in, first out for each type of case, High Courts should allocate more resources for Courts with more delayed pending cases. c. Similarly, even if a Court has a relatively high rate of disposal, some cases in that Court might be very old and moving at a very slow pace, compared to the bulk of the case load, which may be simpler and moving at a much faster rate. Since the overall rate of disposal averages out the rate of disposal of specific types of cases, a high overall rate of disposal may mask the fact that some cases such are stagnating for long periods within such a Court. Therefore, even if some Courts have a very high rate of disposal, the High Court should not re-allocate judicial resources in those Courts, without first determining how current their case loads are. d. Relatedly, even though the general picture that emerges lets system know how much extra judicial time is required to clear up the backlog and prevent the system from getting backlogged in the near future, the Rate of Disposal Method does not tell anything about how judicial time and effort should be spent so as to cater to the needs of the socially and legally marginalized who are often likely to need more judicial resources in order to meet their basic legal needs. The method does not provide a way to tailor judicial resource allocation based on the different needs of different groups. It treats all cases as similar from the point of view of delay reduction regardless of the nature of the right being asserted or the person making the assertion. Therefore, High Courts should provide guidelines to Subordinate Courts to ensure that older or more complex or more priority cases (for example, those relating to sexual violence) do not stagnate in the system. e. Finally, even if judges of a particular category are disposing of cases at a high rate, this indicates nothing about the quality of decision-making of such judges. The focus of the method is on the quantitative output without compromising the current qualitative standard. However, there might be trade-offs involved between the quantity and the quality of decision-making that the model does not take into account. If some judges are actually compromising on the quality of decision-making and are thus being able to dispose of more cases, the model will recommend a lesser number of additional judges, compared to the additional judges that would be required to dispose of the same number of cases in a more qualitatively sound manner. The Commission, therefore, recommends that in allocating the additional judicial resources, High Courts should pay heed to the quality of decision making in the Courts concerned. In sum, therefore, the rate of Disposal Method described in this report should be seen as giving an approximation of required judicial strength that can then be adjusted and allocated on the basis of other considerations, which can include, but are not limited to: (1) adjustments made for inaccuracies in available data; (2) a particularly large number of cases that have been pending for an excessive period of time which may indicate a need for more judicial resources and (3) relevant feedback about pendency and judicial functioning in the State and particular districts from stakeholders. 6. Timely filling of vacancies; increase in age of retirement of the Subordinate Judiciary: As Table XIII indicates, most High Courts have a high vacancy in Subordinate Courts. Additionally, every year many vacancies are created through retirement. It takes time to select and train new judges to replace the retiring ones. In the meantime, the backlog piles up. To deal with this concern, the Commission recommends that in addition to recruiting new judges, the age of retirement of subordinate judges be raised to 62 in order to meet the need for a large number of adequately trained judicial officers. The benefit of increase in the retirement age can be made available to judicial officers in terms of the directions of the Supreme Court in All India Judges’ Association v. Union of India.40 Further, the directions of the Supreme Court in Malik Mazhar Sultan v. U.P. Public Service Commission,41 regarding the time bound filling of vacancies, needs to be strictly adhered to. 7. Need for system wide judicial reforms: From a litigant’s point of view, what matters is not just the timely disposal of his/her case at the trial Court level, but at all levels of the judiciary. Therefore, judicial reform targeted at delay reduction is required not only in the trial Court, but throughout the judicial system. In particular, a. If the number of judges in the trial Courts increases significantly the number of cases being disposed of by the trial Courts will rise sharply. The total number of cases being appealed to the High Courts will also increase. The case load of High Courts will, therefore, increase. If a corresponding increase is not made in the judge strength at the High Court level, the system as a whole is likely to remain backlogged. Data obtained from the Supreme Court publication Court News shows that High Courts are already backlogged and are not being able to keep pace with new filings. The recent annual data from Court News is for the time period 01.10.2011 to 30.9.2012. In this time period, though 1909543 fresh institutions were made in High Courts, only 1764607 matters were disposed of. The backlog, therefore, increased by 144936. On average, in this time period, High Court judges disposed of 2821.07 cases per judge. As of 30.9.2012, 4407861 matters were pending before all the High Courts. At the current rate of disposal, High Courts require an additional 56 judges to breakeven and an additional 942 judges to clear the backlog. It is relevant to note here that the sanctioned strength of the High Courts is 895. As on 31.12.2012, 31.4% of these positions were vacant. Therefore, there is already a massive shortage of judges in the High Courts. The increase of judge strength in the Lower Judiciary is likely to further exacerbate the problem. b. Without adequate infrastructure or support staff, an increase in judge strength will not be effective as a delay reduction strategy. A systemic perspective, encompassing all levels of the judicial hierarchy, is, therefore, needed for meaningful judicial reform. c. Other approaches like encouraging Alternative Dispute Resolution methods, where appropriate, can divert cases outside the Court system and lead to an overall reduction in pendency in the judicial system.42 Therefore, a piecemeal approach to delay reduction should be eschewed in favour of a systemic perspective. CONCLUSIONS AND RECOMMENDATIONS In conclusion, it would not be wrong to say that at general level and in nutshell, the present report in a way deals with the issue of arrears and delay and problem of judicial (wo)manpower planning - a problem that for quite many years remained ignored. Undermining this, the Law Commission, in its 120th Report: “Manpower Planning in Judiciary: A Blue Print” had observed, “The Commission was of the view that the question of judicial manpower planning had generally been ignored in India’s planned development. The developing science of manpower planning has not attracted the attention of policy opinion makers in the field of administration of justice in India. All reorganization proposals are basically patch work, ad-hoc, unsystematic solutions to the problem”. Importantly, the report, while confessing its limitations and inability said: “Commission itself is in no position, given the fact of its present structure, to provide this kind of technical analysis only on which sound programme of change can be envisaged. Of course, the Commission has done the next best thing and elicited extensive opinion of those knowledgeable in the field and the general public. But we must admit that, all said and done, this is a very poor substitute for sound scientific analysis.” The Commission, thus, while being expressly conscious of limitations inherent in suggesting any scientific method to deal with problem of arrears and delay relied on the judge population ratio method as a way for judicial manpower planning. In making such suggestion, the Commission was inspired by prevalence of such method in few other countries. The Commission in its report recommended that there was strong justification to increase the then existing ratio from 10.5 judges per million to at least 50 judges per million of Indian population. Thus, it is primarily because of non-availability of data and their scientific analysis, that the Commission simply adopted the simple approach of Judge-Population Ratio. In fact, the report had no occasion to analyse strengths, weaknesses and relevance of adopting Judge-Population Ratio method in Indian context especially the context that has its own peculiarities different in many respects from the systems where Judge-Population Ratio method prevail. No doubt, in recent years, the issue of arrears and delay and problem of Judicial (wo)man power planning has attracted attention of almost all major stakeholders including the judiciary, executive, media, policy makers, and public in general. However, despite this spurt of rising attention, it is largely due to the dearth of any uniform and scientific approach to data collection and its analysis that arriving at more scientific and futuristic suggestions with regard to judicial (wo)manpower planning to deal with issue of arrears and delay still remains a challenge. However, the present report, while fully realises the frustration expressed by the Commission and consequent failure in making deeper analysis of the problem when submitting 120th Report, is an attempt to deal with the problem somewhat more analytically and scientifically. As the Commission, in the process of preparing the present report and response submitted to the Hon’ble Supreme Court adopted every possible venue and opportunity that could be thought of for collecting data including through questionnaires and personal interviews and subjecting information thus collected to rigorous analysis adopting various tools of data analysis available in the domain of research methodology. Analysis of data and information thus made was then examined in light of various methods of judicial (wo)manpower planning practised in many other systems while keeping in view peculiarities of Indian judicial and profession’s culture. Adopting this approach, the Commission has finally arrived at making following suggestions and recommendations: Rate of Disposal Method That, given the existing availability of data, the Rate of Disposal Method and formulae be followed for calculating adequate judge strength for Subordinate Courts, instead of Judge-Population or Judge-Institution Ratio, Ideal Case Load Method or the Time Based Method. Number of judges to be appointed on a priority basis That, data obtained from High Courts indicates that the judicial system is severely backlogged, and is also not being able to keep pace with current filings, thus exacerbating the problem of backlogs. The system requires a massive influx of judicial resources in order to dispose of the backlog and keep pace with current filings. The data indicates the need for taking urgent measures for increasing judge strength in order to ensure timely justice and facilitate access to justice for all sections of society. That, as per the resolution of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, the resolution of the Chief Justices and Chief Ministers Conference, 2013, and public addresses of the Prime Minister and the Law Minister, the current judge strength is being doubled over the next five years. Given the large number of judges required to clear backlog and the time that it will take to complete selection and training processes and to create adequate infrastructure, the Law Commission recommends that the recruitment of new judges should focus, as a matter of priority, on the number of judges required to breakeven and to dispose of the backlog, in a 3 year time frame.43 Increasing the age of retirement of Subordinate Court Judges That, in order to meet the need for a large number of appropriately trained Subordinate Court Judges, the age of retirement of Subordinate judges be raised to 62 The benefit of increase in the retirement age be made available to judicial officers in terms of the directions of the Supreme Court in All India Judges’ Association v. Union of India.44 Creation of Special Courts for Traffic/Police Challan Cases That special morning and evening Courts be set up for dealing with Traffic/Police Challan cases which constituted 38.7% of institutions and 37.4% of all pending cases in the last three years, before the Subordinate Judicial Services. These Courts should be in addition to the regular Courts so that they can reduce the case load of the regular Courts. In addition, facilities be made available for online payment of fines as well as the payment of fines at designated counters in the Court complex. This measure will further reduce pendency before such Special Courts. Recent law graduates may be appointed for short durations, e.g., 3 years, to preside over these special traffic Courts. These special Courts should only deal with cases involving fines. Cases which may involve imprisonment should be tried before regular Courts in order to ensure fair process. That, if Special Traffic/Police Challan Courts are not created, the number of judges required in the regular cadres should be further increased to take into account traffic and police challan cases. Provision for Staff and Infrastructure That, adequate provisions be made for staff and infrastructure required for the working of additional Courts. Periodic Needs Assessment by High Courts That the present work is based on analysis of institution, disposal and pendency figures upto 2012. Needless to say, over time these figures are likely to change, affecting the requirement for additional Courts to keep pace with filings and disposals. The Law Commission does not have sufficient information to predict by how much institution is likely to vary in the coming years.46 Therefore, the High Courts may be required to carry out Periodic Judicial Needs Assessment to monitor the rate of institution and disposal and revise the judge strength periodically, based on institutions, disposals, pendency and vacancy, using the formula given above. That, in the light of revelation before the Commission about the lack of uniformity in data collection and concerns with the quality of data recorded and provided by High Courts, the Commission strongly recommends that High Courts be directed to evolve uniform data collection and data management methods in order to ensure transparency and to facilitate data based policy prescriptions for the judicial system. Need for system-wide Reform That a systemic perspective, encompassing all levels of the judicial hierarchy, is needed for meaningful judicial reform. Taking measures for the timely disposal of cases at all levels of the judicial system, including by monitoring and increasing judge strength throughout the system; encouraging Alternative Dispute Resolution Methods, where appropriate and more efficient allocation and utilization of resources is required to fulfill the goal of providing timely justice to litigants. In particular, the Commission emphasizes the urgent need to increase judge strength in High Courts to ensure that appeals/revisions from additional cases disposed of by the newly created Subordinate Courts, are dealt with in a timely manner, and that the already heavy backlog in the High Courts is adequately addressed. Therefore, a piecemeal approach to delay reduction should be eschewed in favour of a systemic perspective. That, as the Supreme Court recognized in its order in Imtiyaz Ahmad dated February 1, 2012, the creation of additional Courts is one amongst various measures required to ensure timely justice and facilitate access to justice. The Commission recognizes that apart from increasing judge strength, many other measures have to be undertaken for reducing delays, including the application of good judicial management practices such as putting into place timeliness and performance benchmarks. As discussed earlier in this report, the Commission emphasizes the need for establishing, based on rational criteria, non-mandatory time frames for the resolution of different types of cases.48 Unless judges and litigants have clear expectations of how soon their cases are likely to resolved, there will be little accountability for delays, and systemic problems are likely to increase. Therefore, the Commission seeks to highlight an urgent need to fix rational, non-mandatory time frames for different types of cases, and use such time frames as a basis for setting judge performance standards, litigant expectations, and making more robust policy recommendations for the judiciary.
  14. ashakantasharma

    Right to Information and Good Governance

    International Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org Volume 2 Issue 2 ǁ March. 2013ǁ PP.11-22 Right to Information and Good Governance The right to information act is a path making legislation which brings to light the secrecy of administration. It is an effective means to promote democratic ideology. The act is powerful instrument to fight against corruption. By realizing this significance the Second Administrative Reform Commission had prepared a detailed blueprint for revamping the public administrative system. The second Administrative Reform Commission, government of India has published its first report in ―Right to Information: Master key to good governance.‖ Through this report the commission directly mentioned that access to information can empower the poor and weaker sections of society to demand and government information about public policies and actions, thereby led to welfare of all. Good governance and right to information are complimentary to each other. A nation whatever form of government it pursues must fulfill the aspirations of common man. Good governance is the only avenue, which can provide guaranty the life of individuals. Good governance is characterized by- political accountability, availability of freedom, bureaucratic accountability, availability of information, effectiveness, efficiency, law abiding citizen and cooperation between government and society. As such the Right to information is a natural corollary of good governance. The enactment of RTI act 2005 introduces an open and transparent government and gives every citizen right to seek and receive information to make administration more responsible and transparent which means good governance. So, World Bank once rightly remarked, ―Right to information is an integral part of good governance.‖ V.K Agnihotri and B.V.R Subrahmanyam opined that Right to Information is a part and partial of success for good governance. They said the minimum expectations of citizens from the governance are- - Timely prompt service. - Minimum Red Tape. - Minimum waiting time. - Minimum visit to multiple officers. - Minimization of Arbitrariness. - Prompt information in delays, waiting times etc, and - Prompt information on status of application. In the following paragraph, this paper tries to examine the right to information and transparency of administration as an effective tool of good governance. (1) Participation Participation of both men and women is the cornerstone of good governance. Representative democracy does not mean the rule of chosen few; it must take into interest of all sections specially the most vulnerable sections in the society. The Right to information acts gives people a chance to participate not just one in five years, but every day and question any decisions. The right to Information act gives an opportunity to the common men to participate in governance and reduce the imbalance in power relationship, provides a tool to oppose injustice and allows collective spirit to make democracy work for everyone. Right to information act also strengthen grassroots democracy and ensures peoples participation in local governance and development activities. (2) Accessibility Right to Information makes it possible to easy access of information from government departments, documents, records, services, finances and policies to all sectors of community. The Right to Information act by providing easy access of information reduces the traditional long gape between citizens and administration and thus helps in nation building process. The right to know and easy access of government information helps the people to understand the limitations of government at different levels. The availability of information also helps to foster in development process and it is a symptom of true and mature democracy. (3) Transparency Transparency is the milestone of good governance. Transparency means that decisions taken and their enforcement are done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. Transparency and accountability is possible only when the public have access to information. The enactment of Right to Information act 2005, people are now able to seek information from any government department with a definite time frame. The Right to Information act is intended to promote accountability and transparency in government by making the process of government decision making more open. Though some departments of the Union government are exempted from this act but the information can be sought if it is concerned with violation of human rights. Even the information from the private authority can be sought only through the controlling authority and controlling authority will send the notice to the institution concerned under section 11 of the act. In addition to this, the citizens are taxpayers, so they have every right to ask the government. (4) Accountability Accountability is another requirement of good governance. Not only the government, the private sector institutions should also accountable to the people. Information is power and Right to Information act brings accountability and transparency in the administration. The Right to Information act provides people with mechanism to access information, which they can use to hold the government accountable or to seek explanation as to why decisions have been taken, by whom and with what consequences or outcomes. However, accountability can not be achieved without transparency and rule of law. (5) Empowerment Before enactment of Right to Information Act, participation in political and economic processes and the ability to make informed choices has been restricted to India. As a consequence, commoners remain ignorant of various schemes and are unable to resist when their rights become causality. At the same time, people remain ignorant in terms of the ways and means through they can obtain their entitled rights from the concerned departments legally. Now with enactment of Right to Information act people can participate in decision making process and it enables the citizens to know about the government decisions. The Right to Information act empowering people by removing unnecessary secrecy surrounding in decision making process of the government. (6) Equity and inclusiveness Equity is another prominent feature of good governance. It implies everybody is a part of the governance and they do not feel excluded from the mainstream of society. The Right to Information act also does not make any discrimination between rich and poor and it covers all the citizens in India. It always comes forward to fight against inequality, injustice and inhuman activity. (7) Effectiveness and Efficiency The Seventh feature of good governance is efficiency and effectiveness. The concept of efficiency in good governance covers doing work at first speed and effectiveness means doing things effectively with result oriented. In this connection Right to Information act will bring more effective and efficient record management techniques that are needed to facilitate the provision of information in response to public interest. Under RTI provision 4 (1) it is clearly mentions, ―It is the obligatory of public authority to maintain all its records duly catalogued and indexed.‖ Under section 4(b) ―every public authority is requested to publish within 120 days from the enactment of the act as many as 17 manuals.
  15. What are the powers and functions of Information Commissions? Complaints Section-18. (1) 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 appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal 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 Information Commission or the State Information Commission, as the case may be; (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. (2) Where the Central Information Commission or State Information Commission,as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof. (3) 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 trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:— (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) Requisitioning any public record or copies thereof from any court or office; (e) Issuing summons for examination of witnesses or documents; and (f) Any other matter, which may be prescribed. (4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any ground. Appeals 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 authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (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 actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party. (5) In any appeal proceeding, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. (8) 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 subsection (1) of section 4; (b) Require the public authority to compensate the complainant for any loss or other detriment suffered; (c) Impose any of the penalties provided under this Act; (d) Reject the application. (9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.) (10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed. Penalties Section-20 - (1) 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 Information 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 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 impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer. (2) 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 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 disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. http://www.cic.gov.in/who-are-we
  16. ashakantasharma

    RIGHT TO INFORMATION ACT: CHALLENGES

    International Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org Volume 2 Issue 2 ǁ March. 2013ǁ PP.11-22 RIGHT TO INFORMATION ACT: CHALLENGES Since came into force on 15th June, 2005 Right to Information act has been successfully working in most of the Indian states. The act is enacted by the state government of Tamilnadu (1997), Rajasthan (2000), Delhi (2001), Maharashtra (2002), Karnataka (2002), Assam (2002), Madhya Pradesh (2003), and Jammu & Kashmir (2004). Research studies shows that in their operation area the Right to Information act has been facing many severe challenges. These are as follows:- (a) Low level of awareness among people is the major challenge before successful implementation of Right to Information act. People, particularly in remote areas are not concerned with the Right to Information act. The research studies observe that the major sources of awareness are - (1) Mass media like- television channels, newspapers, magazines, journals etc. (2) Word of mouth. The nodal agency specifically the state government has not taken any potential step to promote Right to Information act. (b) Illiteracy and poverty is another major challenge before successful implementation of Right to Information act. Right to Information act has does not have any meaning for a Persons who does not have enough money to live, who is not educated and who does not have freedom. In fact, their first requirement is the right to live (right to eat, right to work and right to shelter) and then Right to Information. (c) Most of the uneducated even educated peoples do not have the proper knowledge about public Information officers, the procedure of paying fees and to get information. (d) Non-availability of user guide is another main challenge before successful RTI act implementation. Absence of user guide creates difficulty on the part of the Information seekers to gather knowledge about the process for submitting a RTI request. (e) Lack of commitment in efficient record management both state and central government instructions posing challenge before successful implementation of RTI act. (f) Due to the lack of efficient record management system, the public Information Officers face difficulty to get accurate and easy access of information from the concerned department, so that it can be provided to information seekers. (g) The non-cooperation from the part of bureaucracy is another major hurdle before RTI act implementation in India. The ―Babu type mentality (colonial mindset) makes them to use information as their own prerogative. Sometimes for their vested interest or to show their superiority, the bureaucrats do not want to disclose the basic information to citizens. (h) Bureaucracy also hides information for fear of criticism and to give a good image of them before public. (i) Lack of effective coordination and cooperation among state information commissioners and the non cooperation of departments with PIO hinder the process of smooth implementation of RTI act. (j) Lack of monitoring and review mechanism also hampers in successful implementation of RTI act in India. (k) The limited use of technology has hindered effective implementation of RTI act. Except in a few states no effective IT system have been establish to monitor and report on the disposal of application by public authorities. (l) The implementation of RTI act is uneven. It is not equally implemented to all the states. Therefore, awareness level also differs from state to state. In states like Arunachal Pradesh, Uttarakhand and Punjab the awareness level about RTI act is high, on the other hand awareness of people in Gujrat, Madhyapradesh, Jharkhand and UP is not high. Moreover different rules for different states especially on fees and costs make the RTI filing ineffective. (m) Generally, it is observed that retired bureaucrats are being appointed for the post of highest level of RTI officials i.e. the information commission at the central and state levels. These commissions are the independent of the government. Activists are of the opinion that these officials often show sympathetic attitude towards their fellow babus. (n) Non-availability of basic infrastructure is another serious hurdle before RTI implementation. The smooth implementation of RTI act requires the Public Information Officers (PIO) to provide information to the applicant through photocopies, soft copies etc. Though these facilities are easily accessible at districts level, but it is a challenge to get information form the block/Panchayat level. PIO claims that lack of infrastructure blockade RTI implementation at block level. Recommendations/Suggestions for effective implementation of RTI act- (a) As stated above due to ignorance, most of people have not heard about RTI act. To tackle this issue government should allocate huge fund for publicity budget of RTI act. However, this fund should be spent through central Information commission. (b) Publicity is very essential for RTI implementation. NGO‘s and civil society groups can take initiative to make massive awareness campaign to educate citizen about RTI act. This awareness programme may be at national, state and block level. Before making awareness programmes, the NGO‘s and CSC groups must identify the target i.e. vulnerable categories of citizens specifically- women, farmers and families, middle and working class. In this regard media and newspaper can play an effective role. (c) Children are considered resources for the future health of a nation. Therefore, RTI act should be added in the school syllabus to arouse curiosity of children about RTI at the grass-root level. (d) As the nodal administrative authority at the district level, every deputy commissioner and district collectors must be given responsibility of monitoring and implementation of RTI act by various departmental authorities within the respective district. (e) State Administrative Training institute can organize appropriate training intervention for the stakeholders. (f) There should be efficient and scientific record keeping agency so that applicants can get accurate information. Without modernizing and digitizing management of information and record providing information would take several days often exceeding the legal deadlines. (g) Government departments should be entrusted responsibility to make the implementation of RTI easy for applicants seeking information rather than tough procedures. (h) Inculcation of political will is necessary for judicious working of RTI act. The Bureaucrats must come forward to help the aggrieved citizens. (i) It is the moral responsibility of the government to protect RTI activists and users and to take legal action against the attackers. (j) There is also need strong and robust monitoring and evaluation system. It will help periodically review implementation of the law and provide feedback to government agencies to address the shortcomings. (k) There should be proper coordination among state information commissioner and departments for the effective implementation of RTI act. (l) It is a recognized fact that for enabling and effective implementation of RTI act, the central and state information commissions need to strengthen their technical and IT capability. (m) Fast action to be taken to integrate different websites of all information commissions through a common IT gateway or national portal on RTI. This will prove to be grateful to common citizens. (n) Chief information commissioners should have frequent interaction with all information commissioners so that approach of all information commissioners may be similar in dealing with appeals/complaints before them. (o) According to the act it is mandatory to provide the information in the given time frame of 30 days. Since the information system is not integrated, therefore it becomes difficult to provide information in the given time. Moreover, many departments could not prepare themselves to respond according to the act. (p) Exemption provides under section 24 to the security and intelligence agencies are irrational and contrary to national interest. This exemption should be removed not by amendment of the act but by withdrawing the list of notified agencies in the 2nd schedule of the RTI act. (q) Training of officials of all departments and representatives of public authorities is essentially required so that they are made aware of their duties and obligations under the act. (r) Government of India should set up a National RTI council, which has members, people from various states, so that problems in implementation the RTI can be monitored regularly. (s) Last but not the least, political influence may anomalies in the functions of high level officials, so they have to maintain integrity by ignoring the vested interest. CONCLUSION Thus it can be rightly mentioned that Right to Information act is an agent of good governance. It makes administration more accountable to the people. It makes people aware of administration and gives them an opportunity to take part in decision making process. It promoted democratic ideology by promoting openness and transparency in the administration. It reduces the chances of corruption and abuse of authority by public servants. Since the act is prepared for people‘s interest, hence it success also depends on how they exercise the act. Moreover, there is need active participation from people, NGO‘s, civil society groups, coordination among RTI officials, integrity among government departments and political will from government and elected leaders.
  17. ashakantasharma

    RIGHT TO INFORMATION ACT: CHALLENGES

    International Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org Volume 2 Issue 2 ǁ March. 2013ǁ PP.11-22 RIGHT TO INFORMATION ACT: CHALLENGES Since came into force on 15th June, 2005 Right to Information act has been successfully working in most of the Indian states. The act is enacted by the state government of Tamilnadu (1997), Rajasthan (2000), Delhi (2001), Maharashtra (2002), Karnataka (2002), Assam (2002), Madhya Pradesh (2003), and Jammu & Kashmir (2004). Research studies shows that in their operation area the Right to Information act has been facing many severe challenges. These are as follows:- (a) Low level of awareness among people is the major challenge before successful implementation of Right to Information act. People, particularly in remote areas are not concerned with the Right to Information act. The research studies observe that the major sources of awareness are - (1) Mass media like- television channels, newspapers, magazines, journals etc. (2) Word of mouth. The nodal agency specifically the state government has not taken any potential step to promote Right to Information act. (b) Illiteracy and poverty is another major challenge before successful implementation of Right to Information act. Right to Information act has does not have any meaning for a Persons who does not have enough money to live, who is not educated and who does not have freedom. In fact, their first requirement is the right to live (right to eat, right to work and right to shelter) and then Right to Information. (c) Most of the uneducated even educated peoples do not have the proper knowledge about public Information officers, the procedure of paying fees and to get information. (d) Non-availability of user guide is another main challenge before successful RTI act implementation. Absence of user guide creates difficulty on the part of the Information seekers to gather knowledge about the process for submitting a RTI request. (e) Lack of commitment in efficient record management both state and central government instructions posing challenge before successful implementation of RTI act. (f) Due to the lack of efficient record management system, the public Information Officers face difficulty to get accurate and easy access of information from the concerned department, so that it can be provided to information seekers. (g) The non-cooperation from the part of bureaucracy is another major hurdle before RTI act implementation in India. The ―Babu type mentality (colonial mindset) makes them to use information as their own prerogative. Sometimes for their vested interest or to show their superiority, the bureaucrats do not want to disclose the basic information to citizens. (h) Bureaucracy also hides information for fear of criticism and to give a good image of them before public. (i) Lack of effective coordination and cooperation among state information commissioners and the non cooperation of departments with PIO hinder the process of smooth implementation of RTI act. (j) Lack of monitoring and review mechanism also hampers in successful implementation of RTI act in India. (k) The limited use of technology has hindered effective implementation of RTI act. Except in a few states no effective IT system have been establish to monitor and report on the disposal of application by public authorities. (l) The implementation of RTI act is uneven. It is not equally implemented to all the states. Therefore, awareness level also differs from state to state. In states like Arunachal Pradesh, Uttarakhand and Punjab the awareness level about RTI act is high, on the other hand awareness of people in Gujrat, Madhyapradesh, Jharkhand and UP is not high. Moreover different rules for different states especially on fees and costs make the RTI filing ineffective. (m) Generally, it is observed that retired bureaucrats are being appointed for the post of highest level of RTI officials i.e. the information commission at the central and state levels. These commissions are the independent of the government. Activists are of the opinion that these officials often show sympathetic attitude towards their fellow babus. (n) Non-availability of basic infrastructure is another serious hurdle before RTI implementation. The smooth implementation of RTI act requires the Public Information Officers (PIO) to provide information to the applicant through photocopies, soft copies etc. Though these facilities are easily accessible at districts level, but it is a challenge to get information form the block/Panchayat level. PIO claims that lack of infrastructure blockade RTI implementation at block level. Recommendations/Suggestions for effective implementation of RTI act- (a) As stated above due to ignorance, most of people have not heard about RTI act. To tackle this issue government should allocate huge fund for publicity budget of RTI act. However, this fund should be spent through central Information commission. (b) Publicity is very essential for RTI implementation. NGO‘s and civil society groups can take initiative to make massive awareness campaign to educate citizen about RTI act. This awareness programme may be at national, state and block level. Before making awareness programmes, the NGO‘s and CSC groups must identify the target i.e. vulnerable categories of citizens specifically- women, farmers and families, middle and working class. In this regard media and newspaper can play an effective role. (c) Children are considered resources for the future health of a nation. Therefore, RTI act should be added in the school syllabus to arouse curiosity of children about RTI at the grass-root level. (d) As the nodal administrative authority at the district level, every deputy commissioner and district collectors must be given responsibility of monitoring and implementation of RTI act by various departmental authorities within the respective district. (e) State Administrative Training institute can organize appropriate training intervention for the stakeholders. (f) There should be efficient and scientific record keeping agency so that applicants can get accurate information. Without modernizing and digitizing management of information and record providing information would take several days often exceeding the legal deadlines. (g) Government departments should be entrusted responsibility to make the implementation of RTI easy for applicants seeking information rather than tough procedures. (h) Inculcation of political will is necessary for judicious working of RTI act. The Bureaucrats must come forward to help the aggrieved citizens. (i) It is the moral responsibility of the government to protect RTI activists and users and to take legal action against the attackers. (j) There is also need strong and robust monitoring and evaluation system. It will help periodically review implementation of the law and provide feedback to government agencies to address the shortcomings. (k) There should be proper coordination among state information commissioner and departments for the effective implementation of RTI act. (l) It is a recognized fact that for enabling and effective implementation of RTI act, the central and state information commissions need to strengthen their technical and IT capability. (m) Fast action to be taken to integrate different websites of all information commissions through a common IT gateway or national portal on RTI. This will prove to be grateful to common citizens. (n) Chief information commissioners should have frequent interaction with all information commissioners so that approach of all information commissioners may be similar in dealing with appeals/complaints before them. (o) According to the act it is mandatory to provide the information in the given time frame of 30 days. Since the information system is not integrated, therefore it becomes difficult to provide information in the given time. Moreover, many departments could not prepare themselves to respond according to the act. (p) Exemption provides under section 24 to the security and intelligence agencies are irrational and contrary to national interest. This exemption should be removed not by amendment of the act but by withdrawing the list of notified agencies in the 2nd schedule of the RTI act. (q) Training of officials of all departments and representatives of public authorities is essentially required so that they are made aware of their duties and obligations under the act. (r) Government of India should set up a National RTI council, which has members, people from various states, so that problems in implementation the RTI can be monitored regularly. (s) Last but not the least, political influence may anomalies in the functions of high level officials, so they have to maintain integrity by ignoring the vested interest. CONCLUSION Thus it can be rightly mentioned that Right to Information act is an agent of good governance. It makes administration more accountable to the people. It makes people aware of administration and gives them an opportunity to take part in decision making process. It promoted democratic ideology by promoting openness and transparency in the administration. It reduces the chances of corruption and abuse of authority by public servants. Since the act is prepared for people‘s interest, hence it success also depends on how they exercise the act. Moreover, there is need active participation from people, NGO‘s, civil society groups, coordination among RTI officials, integrity among government departments and political will from government and elected leaders.
  18. ashakantasharma

    RTI AND INTERNATIONAL LEGAL INSTRUMENTS

    RTI AND INTERNATIONAL LEGAL INSTRUMENTS Various international instruments such as treaties, charters etc have recognized RTI as right that ought to be available to the people. All the citizens have a right to decide, either personally or by their representatives, as to necessity of the public contribution, to grant this freely, to know to what use fix the proportion, the mode of assessment and of collection and the duration of taxes. i) United Nations The United Nations (UN) is an international organisation whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace. The UN was founded in 1945 after World War II to replace the League of Nations, to stop wars between countries, and to provide a platform for dialogue. It contains multiple subsidiary organizations to carry out its missions. There are currently 192 member states, including every internationally recognised sovereign state in the world but the Vatican City. From its offices around the world, the UN and its specialized agencies decide on substantive and administrative issues in regular meetings held throughout the year. The organization has six principal organs: the General Assembly (the main deliberative assembly); the Security Council (for deciding certain resolutions for peace and security); the Economic and Social Council (for assisting in promoting international economic and social cooperation and development); the Secretariat (for providing studies, information, and facilities needed by the UN). United Nations accepted Right to Information right from its beginning in 1946. The General Assembly resolved that: ―freedom of information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated.‖ ii) Universal Declaration of Human Rights, 1948 The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly (10 December 1948, Paris). The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law. Article 19 of the Universal declaration of Human Rights of 1948, states that, ―Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.‖ iii) International Covenant on Civil and Political Rights, 1968 The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of December 2010, the Covenant had 72 signatories and 167 parties. The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee meets in Geneva or New York and normally holds three sessions per year. Article 19 of the Covenant states as following:- (1) Everyone shall have the right to hold opinions without interference; (2) Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice. iv) The Commonwealth The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states. All but two (Mozambique and Rwanda) of these countries were formerly part of the British Empire, out of which it developed. The member states cooperate within a framework of common values and goals as outlined in the Singapore Declaration. These include the promotion of democracy, human rights, good governance, the rule of law, individual liberty, egalitarianism, free trade, multilateralism, and world peace. The Commonwealth is not a political union, but an intergovernmental organisation through which countries with diverse social, political, and economic backgrounds are regarded as equal in status. Its activities are carried out through the permanent Commonwealth Secretariat, headed by the Secretary-General, and biennial meetings between Commonwealth Heads of Government. The symbol of their free association is the Head of the Commonwealth, which is a ceremonial position currently held by Queen Elizabeth II. Elizabeth II is also monarch, separately and independently, of sixteen Commonwealth members, which are known as the "Commonwealth realms". The Commonwealth is a forum for a number of nongovernmental organisations, collectively known as the Commonwealth Family, which are fostered through the intergovernmental Commonwealth Foundation. The Commonwealth Games, the Commonwealth's most visible activity, are a product of one of these organisations. These organisations strengthen the shared culture of the Commonwealth, which extends through common sports, literary heritage, and political and legal practices. Due to this, Commonwealth countries are not considered to be "foreign" to one another. Reflecting this, diplomatic missions between Commonwealth countries are designated as High Commissions rather than embassies. The Commonwealth- association of 54 countries- affirmed the existence of RTI by emphasizing the participation of people in the government processes. The law ministers of the Commonwealth at their meeting held in Barbados in year 1980 stated that ‗public participation in the democratic and government process would be most meaningful when citizens had adequate access to official information‘ v) The Rio Declaration on Environment and Development, 1992 and Access to Information Principle 10 of the Rio Declaration on Environment and Development, 1992 first recognized the fact that access to information on the environment, including information held by public authorities, is the key to sustainable development and effective public participation in environmental governance. Agenda 21, the ‗Blueprint for Sustainable Development‘, the companion implementation document to the Rio Declaration, states: ―Individuals, groups and organizations should have access to information relevant to environment and development held by national authorities, including information on products and activities that have or are likely to have a significant impact on the environment, and information protection measures.‖ At the national level, several countries have laws which codify, at least inpart, Article 10 of the Rio Declaration. In Columbia, for example, Law 99 of 1993 on Public Participation in Environmental Matters includes provisions on the right to request information. Likewise, in the Czech Republic, there is a constitutional right to obtain information about the state of the environment, which has been implemented in the number of environmental protection laws. In 1998, as a follow up to the Rio Declaration and Agenda 21, member statesof the United Nations Economic Commission for Europe (UNECE) and the European Union signed the legally binding Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (the Aarhus Convention). The Aarhus Convention(named after the Danish city where it was adopted) recognizes access to information as a part of the right to live in a healthy environment rather than as a freestanding right. However, it does impose a number of obligations on States which are consistent with the international standards, for example, it requires States to adopt broad definitions of ‗Environmental Information‘ and ‗Public Authority‘, exceptions must be subject to a public interest test, and an independent body with a power to review a refusal of request for information must be established. Forty European and Central Asian countries that ratified this convention have put in place legislative and administrative mechanisms to provide environmental-related information to public. Further, The United Nations Secretary-General Kofi Annan (1997-2006) had said that although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration, which stresses the need for citizens' participation in environmental issues and for access to information on the environment held by public authorities. As such, it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations. The influence of the Aarhus Convention also extends beyond the environmental field. At the Second Internet Governance Forum, held in Rio de Janeiro on 12-15 May 2007, the Convention was presented as a model of public participation and transparency in the operation of international forums. vi) The African Union and Right to Information The African Union (AU) consists of 53 states. The only African nations with a law implementing the right to information are Angola, South Africa, Uganda and Zimbabwe. In Zimbabwe, the Access to Information and Protection of Privacy Act, 2002, in effect restricts the flow of information instead of facilitating transparency in government bodies. However, Article 9(1) of the African (Banjul) Charter on Human and Peoples‘ Rights, explicitly recognizes the right of people to seek and receive information and says that ―Every individual shall have the right to receive information. In 2002, the African Commission on Human and Peoples‘ Rights reinforced the view that: ―public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information‖. The African Union‘s Declaration of Principles on Freedom of Expression in Africa, 2002 also recognizes that everyone has a right to access information held not only by public bodies, but also by private bodies when this information is necessary for the exercise or protection of a human right. Though not binding, the aforesaid Declaration has considerable persuasive force as it represents the will of a sizeable section of the African population. The Declaration lays down the following principles: Everyone has the right to access information held by public bodies. Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right. Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts. Public bodies shall be required, even in the absence of a request, to actively publish important information of significant public interest. No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or information which would disclose a serious threat to health, safety or the environment. Secrecy laws shall be amended as necessary to comply with freedom of information principles. The African Union‘s Convention on Preventing and Combating Corruption, 2003 further recognizes the role that access to information can play in facilitating social, political and cultural stability.37 For this reason, Article 9 requires that every State adopt: ―legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offences‖. vii) Organization of American States The Organization of American States (OAS), or, as it is known in the three other official languages, is a regional international organization headquartered in Washington, D.C., United States. Its members are the thirty-five independent states of the American Continent. American Convention on Human Rights was adopted by the Organization of American States (OAS) in 1969. This international treaty is legally binding in nature. Article 13 of the convention reads as follows;- (1) Everyone has the right to freedom of thought and expression. This right shall include freedom to work, receive and impart information and ideas, of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one‘s choice. Clause 2 states that exercise of such right may sometimes be subject to liabilities or restrictions if it compromises the national security or contravenes the right available to others. viii) European Convention on Human Rights The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe, drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity. The Convention established the European Court of Human Rights. Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.The Convention has several protocols. For example, Protocol 13 prohibits the death penalty. The protocols accepted vary from State Party to State Party, though it is understood that state parties should be party to as many protocols as possible. The Council of Europe (COE) is an intergovernmental organisation, composed of 43 Member States. It is devoted to promoting human rights, education and culture. One of its foundational documents is the European Convention on Human Rights (ECHR), which guarantees freedom of expression and information as a fundamental human right. Clause 1 of Article 10 of the Convention states that, ‗Everyone has the right to freedom of expression. This right shall include freedom to hold opinions, and to receive and impart information and ideas without interference by public authority and irrespective of frontiers‘. However, clause 2 provides that such right is subjected to such formalities, conditions, restrictions or such penalties as are prescribed by law, and are necessary in a democratic society, and if it harms the national interest or territorial integrity. However European Court of Human Rights interpreted Article 10 strictly That is to say it was held that freedom to information prohibited the Government from restricting a person from receiving information. But, at the same time it does not provide any positive right to a person for obtaining the information. This interpretation was based on the difference between ‗freedom‘ and ‗right‘ Most of the above discussed international instruments do not deal with RTI directly. Their role however is not diminished at all by this fact. Like a first step they showed the world community a direction to be explored in order to materialize the democratic value of RTI, thereby making the systems transparent and world more amicable for the people. ix) The Asia-Pacific and the Right to Information The Asia-Pacific nations with a specific and functional law implementing the right to information are Australia, Azerbaijan, Georgia, India, Israel, Japan, New Zealand, Pakistan, South Korea, Tajikistan, Thailand and Uzbekistan. Neither Asia nor the Pacific has an over-arching regional body that sets or monitors human rights standards in the regions. However, this does not mean that there is no recognition of the people‘s right to information – it just comes from different fora. Rather than being recognized in human rights related treaties, the Asian and Pacific countries have generally recognized the importance of the right to information in other agreements. One human rights charter in the region that includes the right to information is the revised Arab Charter on Human Rights which was adopted at the Summit Meeting of Heads of State of the members of the League of Arab States at their meeting in Tunisia in May, 2004. The Charter includes a specific right to information provision in Article 32(1) which states: ―The present charter guarantees the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through and medium, regardless of geographical boundaries.‖ Although the Charter has been signed by a number of countries, it has not received the required number of ratifications to come into force. The Association of South East Asian Nations‘ (ASEAN) 1967 Bangkok Declaration states in its aims and purposes that it adheres to the principles of the United Nations Charter, including Article 19 of the Universal Declaration of Human Rights which includes the right to information. The Asia Development Bank - Organisation for Economic Cooperation and Development (ADB-OECD) Anti-Corruption Initiative Action Plan, sets out members states‘ commitment to freedom of information in order to: ―ensure that the general public and the media have freedom to receive and impart public information and in particular information on corruption matters in accordance with domestic law and in a manner that would not compromise the operational effectiveness of the administration or, in any other way, be detrimental to the interest of governmental agencies and individuals. The Pacific Plan, endorsed by leaders of 16 Pacific Island nations, has a good governance pillar which includes the requirement that states develop freedom of information mechanism. Recognizing the importance of sharing information, the Pacific Islands Forum Secretariat is in the process of developing its own internal disclosure policy which will provide people access to the information it holds. CONCLUSION The access to information is lifeline of a progressive society. Our Constitution provides for freedom of expression and this freedom is directly connected with access to information. Even after more than 66 years of Independence, the people of India are largely living in the darker side of the governance of the Country and are often uninformed about the public affairs affecting their life and survival. Though, India a late starter in introducing transparency, yet this bold initiative needs appreciation. Right to Information Act symbolizes a revolution, not so much in the way of working, but in the way of thinking. If implemented successfully, democracy as an idea will attain a new height and will go in a long way for achieving the Constitution goals.
  19. ashakantasharma

    Right to Information - International Positions

    Right to Information - International Positions Right to Information (hereinafter read as RTI) which is the cynosure of this discourse is not something new. In fact there is a long history at international level towards the attainment of this right and mobilization of the masses for achieving it. With development of human ideals and establishment of democratic governments in most of the civilized countries, this topic came to the fore. The United States and Sweden constitute the two main models for Freedom of Information. While the Swedish law is a precedent to the American one by 200 years, both are considered important legal precedents that helped shape other Freedom of Information (hereinafter read as FOI) laws around the world. i) Sweden Sweden is a constitutional monarchy, with a king or queen as the head of state (the King or Queen who occupies the throne of Sweden in accordance with the Act of Succession shall be the Head of State). But like in most liberal democracies, the royal head of state has no real political power. The Swedish system is unique because of a high degree of institutional autonomy underlying power dispersal to various levels of government. The Swedish system is known for ―its ideology of local government, which basically means that local governments enjoy a great deal of autonomy, limited only by the legislative powers of its national counterpart. The father of the Swedish Freedom of Information Act (hereinafter read as FOIA), Chydenius, was a member of the Captions party who introduced freedom of information as a means of ―promoting social reforms and opposing the supremacy of the nobility.‖ Chynedius was inspired by John Locke among other political philosophers during that era (which is known in Sweden as ―the age of Liberty).‖ John Locke saw ―the supreme power of the State residing in a legislature and behind the legislature in the people. The people would govern, but ―they were not the government.‖ Chydenius considered the introduction of the right to access for citizens as his greatest lifetime achievement. The Swedish parliament passed the legislation in 1766, and established the world‘s first parliamentary Ombudsman (the word itself is Swedish for delegate and has been imported directly into the English language). Birkinshaw observes that ―a very large degree of Swedish public administration is depoliticized in so far as many, sometimes important, decisions are not taken by political overlords.‖ The principle of openness ―Offentlighetsgrundsatsen‖ (in Swedish public sector) has been long enshrined in Swedish politics. The major underlying incentive for adopting the FOIA in Sweden, was ―an information-starved political opposition that was given a rare chance to pass legislation that would grant them and all citizens access to government-held documents and information‖. The introduction to the Swedish Constitution describes a time of great change: ―the death of Carl XII in 1718 brought to an end not only Sweden‘s great power status but autocratic rule as well. The pendulum now swung back in the other direction. A new form of government took shape, which became significantly known as the Age of Liberty government‖ Swedish FOI system is found in the Swedish Constitution (in the basic principles of the form of government): ―All public power in Sweden proceeds from the people. Swedish democracy is founded on the free formation of opinion and on universal and equal suffrage. It shall be realized through a representative and parliamentary polity and through local self government. Public power shall be exercised under the law.‖ This premise resulted in four fundamental laws found in the Swedish Constitution. One of these laws is the ―Instrument of Government and the Freedom of the Press Act,‖ which specifically provides for freedom of information and the right of citizen‘s access. Chapter 2, Article 1 of ‗the Instrument of Government‘ guarantees that all citizens have the right of: ―freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others.‖ Specific rules on access are contained in the Freedom of the Press Act, which was first adopted in 1766. The current version was adopted in 1949 and amended in 1976. Sweden was the first to enforce the policy of openness in administration. There all governmental information is public unless certain matters are specifically listed as exemptions from the general rule. They have provided for a system of appeal against the wrongful withholding of information by public officials, as long ago as 1766. It provided constitutional safeguards under Freedom of Press Act, 1766, the oldest and probably still the most liberal of its kind in the world. It has been revised and modernized a number of times, most recently in 1978. Sweden has proved that legitimate national interests can as well be safeguarded under conditions of administrative openness. Sweden has established cultures that access to government department and documents as a right and non-access an exception. The principle gives any one, actually even aliens, the right to turn to a State or municipal agencies and ask to be shown any document kept in their files, regardless of whether the document concerns him personally or not. Officials are legally required to comply and even to supply copies of the document requested if this is feasible. In Sweden and other Scandinavian countries documents dealing with national security, foreign policy and foreign affairs can be withheld from public scrutiny but the government is bound to give a written statement quoting legal authority for withholding the document ii) United States of America The US constitutional fathers created the three arms of government legislative (Congress), executive (President) and judiciary (the Courts); the separation of powers accounts for a system of checks and balances. At the heart of the US political system is the concept of the ‗balance of power.‘ According to some sources, the US is indeed an important role model for FOI worldwide. Lidberg (2006) notes that, ―the US FOI model grew out of a global move towards more open government following World War II.‖ America and democracy are generally synonymous. America apparently proclaims it to the torchbearer of the plethora of democratic rights that ought to be the part of a true democratic framework. The same applies on the dispensation of information too. Antipathy towards the inherent secrecy is therefore not a surprising attribute exhibited by the Americans. Schwartz observes, ―Americans firmly believe in the healthy effects of publicity and have a strong antipathy to the inherent secretiveness of government agencies.‖ The Freedom of Information Act, 1966 and The Administrative Procedure Act, 1946 are two main statutes which confer RTI. The Constitution of America does not deal specifically with RTI. However, such right is considered to be corollary of the First Amendment freedoms. A provision of a statute was held to be a restriction on the unfettered exercise of First Amendment Rights and hence was declared invalid by the Supreme Court. Similarly in Stanley v. Georgia it was observed that freedom of speech necessarily protects the right to receive information. In America there are three Acts which upheld the freedom of press and information. (A) Freedom of Information Act was made in 1966, which was amended in 1974 to make it more effective, (B) The Privacy Act, 1974 protected individual privacy against the misuse of federal records while granting access to records concerning them which are maintained by federal agencies and (C) The Government in the Sunshine Act, 1976 provided that meetings of government agencies shall be open to the public. The US Supreme Court has recognized the right to know more than fifty years ago. The right to freedom of speech and press has broad scope. This freedom embraces the right to distribute literature and necessarily protects the right to receive it." First Amendment contains no specific guarantee of access to publications. The basis of right to know is the freedom of speech, which is protected under Bill of Rights. The policy behind the Freedom of Information Act is to make disclosure a general rule and not the exception, to provide equal rights of access to all individuals, to place burden on the government to justify the withholding of a document, not on the person who requests it, to provide right to seek injunctive relief in the court if individuals are denied access improperly. Right to know is the cornerstone of citizen participation. Under the Information Act any person, nor merely an affected individual or group, is eligible to ask for information because what is aimed at is not merely redressal of grievances but encouragement of an informed citizenry. The 1966 Freedom of Information Act requires executive branch agencies and independent commissions to make available to citizens, upon request, all documents and record except those, which fall into the following exempt categories: 1. Secret national security or foreign policy information. 2. Internal personnel practices. 3. Information exempted by law. 4. Trade secrets or other confidential commercial or financial information. 5. Inter agency or intra-agency memos. 6. Personal information, personnel or medical files. 7. Law enforcement investigatory information. 8. Information related to reports on financial institutions. 9. Geological and geophysical information. But there are major problems. They are: Bureaucratic delay and cost of bringing suit to force disclosure, and excessive charges levied by the agencies for finding and providing the requested information. To meet these problems, Act was amended in 1974. Main provision of amendment is allowing federal judge to review a decision of the government to classify certain material. Another provision set deadlines for the agency to respond to a request for information under the law. Another amendment permitted judges to order payment of attorney's fees and court costs for plaintiffs who won suits brought for information under the act. Other Countries like Mexico, Peru, Thailand, Australia, Canada, Uganda, the United Kingdom,261 New Zealand and South Africa have also enacted similar legislations to enforce a measure of accountability and transparency on the agencies of the State. To say in the spirit of a democratic world order, it is necessary that each one of us everywhere on this earth under the Sun has a right to know and a duty to shape the course of things, on a national also as on international level. The philosophy of freedom of information and open government has been well described by the U.S. House Committee on Government Operations, which approved the Feedom of Information Act, in 1966, "A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a truism needs repeating....". The root truth is that freedom without information is meaningless and liberty without light will perish because "all governments are obscure and invisible." There is a burden on the government to justify secrecy. Failure on this front is bound to spell dangerous consequences. In a democracy, citizens' right to know is assumed rather than guaranteed. This right is derived from the accountability and answerability of the government to the people. In the period of analysis immediately after the war, he US and several other members of the newly formed United Nations concluded that too much secrecy in too many countries had provided fertile soil for conflict. The case of the US displays is a struggle of maintaining the principle and practice access to public records. One expert on US FOIA explains why this is a struggle, the legacy acquired from the British Empire is for bureaucracies to be secretive; since those times knowledge and information meant power; and trading information was ―power trading‖ among bureaucratic agencies. Today, standards should allow for power sharing. Everyone, everywhere has the right to know. In the 1970s in the US, the Department of Defense showed high compliance to FOIA because the military were used to obeying legal orders. Whereas, the Department of Agriculture struggled with the newly adopted practice of power sharing and exercised high levels of secrecy; the bureaucrats were simply not used to openness.‖ In addition, Court records and legislative materials have been open to the public for a long time. In 1946, Congress enacted the Administrative Procedures Act. It required ―that government bodies publish information about their structures, powers and procedures and make available all final opinions or orders in the adjudication of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules.‖ During the 1950‘s both Congress and media groups started to advocate for a more wideranging and assertive law. The first effective attempt for a FOIA came in 1958 in the form of an amendment to the 1946 Administrative Procedure Act, which made it mandatory for government agencies to ―keep and maintain records.‖ FOIA forced agency compliance and required that proof of justification be given when denying access to records. Following a long period of hearings based on the 1958 amendment the Freedom of Information Act (FOIA) was enacted in 1966 and went into effect in 1967. The US FOIA is inspired from and based on the First Amendment of the Constitution. Before 1966, statutes had existed but only allowing the public ―access to government documents if a need to know was established,‖ this also allowed agencies the prerogative to hold withhold information for a good cause. A comprehensive ―Citizens Guide to FOIA‖ published in 1966 points out the paradigm and practice shift that the enactment of this legislation caused; ―the need to know has been replaced by the right to know.‖ Thomas Susman served as Chief Counsel and General Counsel to the Antitrust and Administrative Practice Subcommittees and to the Senate Judiciary Committee. Susman was the principal Senate staff lawyer responsible for development of the 1974 Freedom of Information Act Amendments. He explains that ―prior to 1974 FOIA was ineffective and in fact the real road to change in US government transparency began with the 1974 amendments. In the 1966 version the ability to obtain court reviews was difficult for example.‖ Susman noted that ―the 1974 amendments responded to the failures in the 1966 FOIA but placing fee restrictions for instance.‖ The original 1966 Act only allowed occasional disclosure while after 1974 Americans enjoyed broader maximum disclosure. All information available today was made available because of the successful lawsuits that employed the 1974 Act. FOIA became a long term strategy for advocates, industries, businesses, lawyers, journalists, NGOs and citizens to participate in government processes. The Act was amended most recently in 1996 by the Electronic Freedom of Information Act (which allows any person or organization, regardless of citizenship or country of origin, to ask for records held by federal government agencies). The Act‘s objective is ―to provide public access to an agency‘s records.‖ The applicant does not have to demonstrate a specific interest in a matter to view relevant documents – an idle curiosity suffices. Agencies covered within the Act include ―executive and military departments, government corporations and other entities which perform government functions except for Congress, the courts or the President‘s immediate staff at the White House, including the National Security Council.‖Each agency or public body that is included within the FOIA has to publish in the ‗Federal Register‘ the details of its organization as well as the rules and policies of its procedures. There are nine categories of discretionary exemptions: ―national security, internal agency rules, information protected by other statutes, business information, inter and intra-agency memos, personal privacy, law enforcement records, financial institutions and oil wells data.‖ The US FOIA is similar to the Swedish FOIA in that it emphasizes that ―the request for documents should have priorities; that real avenues for citizen appeals should exist, and that legally binding rulings would ensure repercussions for the public servants that refuse to comply.‖ It differs from the Swedish FOIA because freedom of information in the United States is not a constitutional concept. Moreover, the cost of processing a request and photocopying documents is much higher in the US. Appeals of denials or complaints about extensive delays can be made internally to the agency concerned. The federal courts review appeals and can overturn agency decisions. The courts have heard thousands of cases in the 40 years of the Act. Alongside, FOIA the Sunshine Act (also known as an ‗open meeting‘ law) allows―access to the meeting of those agencies within its scope. Its aim is to open up to the public portions of the ‗deliberative processes‘ of certain agencies.‖ A week‘s notice is required of the time, date, topic and location of the meeting. In addition, ―a named official with a publicized telephone number must be appointed to answer queries.‖ The US FOIA mode of management is characterized by decentralization; The US Justice Department (DOJ) provides some guidance and training for agencies and represents the agencies in most court cases. The 1996 E-FOIA amendments require agencies to create electronic reading rooms and make available electronically the information that must be published along with common documents requested. In 2000, the U.S. federal government received more than two million FOIA requests from citizens, corporations, and foreigners.According to Banisar‘s 2006 survey, the American FOIA ―has been hampered further delay. Many international organizations and regional groups recognized this right to be part of their systems. Swedish Freedom of Information Law (a literal translation of the native term indicates the Freedom of Printing Act) passed in the year 1766 is considered to be the oldest and earliest legislative recognition of RTI. This law was passed by Sweden. A large number of countries have followed the same line and have enacted access laws after it. For example, Finland in 1950, Denmark in 1950, Norway in 1970, and United States of America in 1966 enacted such laws in order to facilitate information access. Before discussing the various international instruments, let us first analyse the status of RTI in the two most developed democracies of the world U.S.A and England. iii) Position in England Democracy has been the basic tenet of England since ages but ‗secrecy‘ is emphasised rather than openness. This is due to the innate tendency of legislature and executive to enshroud policies instead of making it transparent. England has enacted Freedom of Information Act, 2005. But basically, the present law is contained in the Official Secrets Acts of 1911, 1920, 1939. Judiciary in England has approved of openness in Government. The same is reflected in the decision of House of Lords where it established its jurisdiction to order the disclosure of any document. However, it was also emphasized that balance between conflicting interests of secrecy and publicity should be maintained. Importance of freedom of expression in English law can be ascertained by the observation of Lord Steyn in a case which goes as following: ―Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country….‖ In Britain, the campaign for reduction of secrecy was going on. They have rule for non-disclosure of sensitive information for about thirty years. When 1957 documents were released, they showed that Prime Minister Harold Macmillan had ordered suppression of information on the Wind scale nuclear accident. It was a startling revelation because it was the worst known nuclear disaster before Chernobyl. But the nation came to know only after thirty years. Under their Official Secret Act some documents could even be blocked for a hundred years. Even in America the tendency is to increase the items under the list of exemptions to freedom of information. When some documents were released under the Act revealed that FBI and CIA illegally harassed Dr Martin Luther King Jr. and several other things like illegal surveillance of dozens of writers and political groups for over a period of 30 years. In 2000, the Freedom of Information Act came into existence. Australians are amongst the world's most avid media consumers and there is legislation protecting their rights of access to Federal Government documents of interest to them. In December 1982, Australia enacted Freedom of Information legislation, which gives its citizens and persons entitled to permanent resident status in Australia a free access to various Federal Government Records. Main features of this Act are the creation of public right of access to documents, the right to amend or update incorrect government records, the right of appeal against administrative decisions barring access and the waiving of any need to establish interest before being granted access to documents. iv) Public Charter of Official Documents in Finland Finland has a law on the Public Charter of Official Documents in 1951. Norway and Denmark have also statutorised public access to official information sources. Canada and Australia also made useful legislation on this subject. A French Commission on Access to Administrative Documents has been formulated. French Constitution recognizes the free communication of thoughts and opinions as among the most precious rights of man. v) Open Democracy Bill in South Africa The South African Law on this right is a unique example of principle of open governance. The South African Open Democracy Bill provides for public access as "swiftly inexpensively and effortlessly and reasonably possible to information held by governmental and bodies without jeopardising good governance, personal privacy and commercial confidentiality. It also empowers the public to effectively scrutinise and participate in governmental decision making that affects them. It also provided a mechanism to correct the inaccurate information possessed by the government about them and protects individuals against abuse of information about themselves held by the government or private bodies. Canada made Access to Information Act, 1980, and New Zealand enacted the Official Information Act, 1982
  20. ashakantasharma

    Important State Initiatives

    Important State Initiatives Inspired and encouraged by the exercises taken up by the central government, many state governments yielded under popular pressure and prepared draft legislations on the right to information. A number of states introduced their own transparency legislations before the Freedom of Information Bill was finally introduced in the Lok Sabha on July 25, 2000. i) Goa: One of the earliest and most progressive legislations, it had the fewest categories of exceptions, provision for urgent processing of requests pertaining to life and liberty, and a penalty clause. It also applied to private bodies executing government works. One weakness was that it had no provision for pro-active disclosure by government. ii) Tamil Nadu: The legislation stipulated that authorities must part with information within 30 days of it being sought. Following this legislation, all public distribution system (PDS) shops in the state were asked to display details of stocks available. All government departments also brought out citizens charters listing information on what the public was entitled to know and get. iii) Karnataka: The right to information legislation contained standard exception clauses covering 12 categories of information. It had limited provisions for pro-active disclosure, contained a penalty clause, and provided for an appeal to an independent tribunal. iv) Delhi: This law was along the lines of the Goa Act, containing standard exceptions and providing for an appeal to an independent body, as well as the establishment of an advisory body, the State Council for Right to Information. Residents of the capital can seek any type of information -- with some exceptions -- from the civic body, after paying a nominal fee. It was also clearly stated that if the information was found to be false, or had been deliberately tampered with, the official could face a penalty of Rs 1,000 per application. v) Rajasthan: After five years of dithering, the Right to Information Act was passed in 2000. The movement was initiated at the grassroots level. Village-based public hearings, jan sunwais, organised by the Mazdoor Kisan Shakti Sangathan (MKSS), gave space and opportunity to the rural poor to articulate their priorities and suggest changes. The four formal demands that emerged from these jan sunwais were: i) Transparency of panchayat functioning; ii) accountability of officials; iii) social audit; and iv) redressal of grievances. The Bill when it was eventually passed, however, placed at least 19 restrictions on the right of access to information. Besides having weak penalty provisions, it gave too much discretionary power to bureaucrats. Despite this, the right to information movement thrived at the grassroots level in Rajasthan, following systematic campaigns waged by concerned groups and growing awareness about the people‘s role in participatory governance. It was the jan sunwais that exposed the corruption in several panchayats and also campaigned extensively for the right to food after the revelation of hunger and starvation-related deaths in drought-ravaged districts. vi) Maharashtra: The Maharashtra assembly passed the Maharashtra Right to Information (RTI) Bill in 2002, following sustained pressure from social activist and anti-corruption crusader Anna Hazare. The Maharashtra legislation was the most progressive of its kind. The Act brought not only government and semi-government bodies within its purview but also state public sector units, cooperatives, registered societies (including educational institutions) and public trusts. Public information officers who failed to perform their duties could be fined up to Rs 250 for each day‘s delay in furnishing information. Where an information officer had wilfully provided incorrect and misleading information, or information that was incomplete, the appellate authority hearing the matter could impose a fine of up to Rs 2,000. The information officer concerned could also be subject to internal disciplinary action. The Act even provided for the setting up of a council to monitor the workings of the Act. The council comprised senior members of government, members of the press, and representatives of NGOs. They were expected to review the functioning of the Act at least once every six months. ..It needs to be noted that not only is the Right to Information Act, 2005 a landmark legislation in the Indian context, it also places India among a group of some of the more evolved democracies of the world, to have enacted such a law in an effort towards deepening democracy. It also needs to be noted that the RTI Act is in keeping with the provisions of some of the path-breaking international covenants. However, progress on the part of public authorities towards effective implementation of the Act in right earnest, and the Act‘s large scale acceptance and use by the people, as an instrument for pressing transparency and accountability of public bodies or officials – will be the true indicator of the success of the Act. In order for the Act to achieve its objectives, all the stakeholders concerned with implementation of the Act – both from supply and demand sides – will have to work in partnership and in a mission mode.
  21. ashakantasharma

    Movement of Right to Information in India

    Movement of Right to Information in India The right to information movement in India can be broadly classified into three phases. In the first phase, from 1975 to 1996, there were sporadic demands for information from various sections of the society, culminating in a more focused demand for access to information from environmental movements in the mid 1980s, and from grassroots movements in rural Rajasthan in the early 1990s. This phase ended with the formation of the National Campaign for People's Right to Information (NCPRI), in 1996. This phase also saw various judicial orders in support of transparency, and the judicial pronouncement that the right to information was a fundamental right. The second phase starts in 1996, with the formulation of a draft RTI bill, spearheaded by the NCPRI, and its subsequent processing by the government and the Parliament. Various state RTI laws are passed during this period, including in Tamil Nadu, Delhi, Maharashtra, Karnataka, Assam, Madhya Pradesh, and Goa, as is the national Freedom of Information Act in 2002. This phase also marks the rapid growth in size and influence of the RTI movement in India, and culminates in the passing of the national RTI Act in 2005.This is also the period that sees a large number of countries across the World enact transparency laws. The third phase, from the end of 2005 to the present, has been mainly focused on the consolidation of the act and on pushing for proper implementation. Part of the effort has also been to safeguard the RTI Act from at least two efforts to weaken it, and to push the boundaries of the RTI regime and make it deeper and wider in coverage, participation, and impact. Objections to the Official Secrets Act have been raised since 1948, when the Press Laws Enquiry Committee recommended certain amendments. In 1977, the government formed a working group to look into the possibilities of amending the Official Secrets Act. Unfortunately, the working group did not recommend changes, as it felt the Act related to the protection of national safety and did not prevent the release of information in the public interest, despite overwhelming evidence to the contrary. In 1989, a committee was set up which recommended limiting the areas where government information could be hidden, and opening up all other spheres of information. However, no legislation followed from these recommendations. In the last decade or so, citizens groups have started demanding the outright repeal of the Official Secrets Act and its replacement by legislation making the duty to disclose the norm, and secrecy the exception. It‘s taken India 77 years to transition from the repressive climate of the OSA to one where citizens can demand the right to information. The enactment of the Freedom of Information Act 2002 marks a significant shift for Indian democracy, for the greater the access to information by citizens, the greater the responsiveness of government to community needs. Interestingly, in India, the movement for the right to information has been as vibrant in the hearts of marginalised people as it is in the pages of academic journals and in the media. This is not surprising since food security, shelter, the environment, employment and other survival needs are inextricably linked to the right to information. In the early-1990s, in the course of the struggle of the rural poor in Rajasthan, the Mazdoor Kisan Shakti Sangathan (MKSS) hit upon a novel way to demonstrate the importance of information in an individual‘s life through public hearings, or jan sunwais. The MKSS‘s campaign demanded transparency of official records, a social audit of government spending, and a redressal machinery for people who had not been given their due. The campaign caught the imagination of a large cross-section of people, including activists, civil servants and lawyers. The National Campaign for People‘s Right to Information (NCPRI), formed in the late-1990s, became a broad-based platform for action. As the campaign gathered momentum, it became clear that the right to information had to be legally enforceable. As a result of this struggle, not only did Rajasthan pass a law on the right to information, but, in a number of panchayats, graft was exposed and officials punished. The Press Council of India drew up the first major draft legislation on the right to information, in 1996. The draft affirmed the right of every citizen to information from any public body. Significantly, the term ‗public body‘ included not only the State but also all privately-owned undertakings, non-statutory authorities, companies, and other bodies whose activities affect the public interest. Information that cannot be denied to Parliament or State Legislatures cannot be denied to a citizen either. The draft also provided for penalty clauses for defaulting authorities. Next came the Consumer Education Research Council (CERC) draft which was, by far the most detailed proposed freedom of information legislation in India. In line with international standards, it gave the right to information to anyone, except ―alien enemies‖, whether or not they were citizens. It required public agencies at the federal and state levels to maintain their records in good order, to provide a directory of all records under their control, to promote the computerisation of records in interconnected networks, to publish all laws, regulations, guidelines, circulars related to or issued by government departments, and any information concerning welfare schemes. The draft provided for the outright repeal of the Official Secrets Act, 1923. This draft didn‘t make it through Parliament either. Finally, in 1997, a conference of chief ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997. Central and state governments also agreed to a number of other measures to promote openness, including establishing accessible computerised information centres to provide information to the public on essential services, and speeding up ongoing efforts to computerise government operations. In response, the Government of India set up a committee, known as the Shourie Committee, after its chair, Mr. H.D. Shourie. The Shourie committee was given the responsibility of examining the draft right to information bill and making recommendations that would help the government to institutionalise transparency. The committee worked fast and presented its report to the government within a few months of being set up, though it did succeed in significantly diluting the draft RTI bill drafted by civil society groups. Once again, the government was confronted with the prospect of introducing a right to information bill in Parliament. Clearly the dominant mood in the government was against any such move, but it was never politically expedient to openly oppose transparency. That would make the government seem unwilling to be accountable, almost as if it had something to hide. Therefore, inevitably, the draft bill, based on the recommendations of the Shourie committee, was referred to another committee: this time a Parliamentary committee. These Government committees which serve many purposes such as they examine proposals in detail, sometime consult other stakeholders, consider diverse opinions, examine facts and statistics, and then to come to reasoned findings or recommendations. However, these committees could also be a means of delaying decisions or action, and for taking unpopular, or even indefensible, decisions. The tyranny of a committee is far worse than the tyranny of an individual. Whereas an individual can be challenged and discredited, it is much more difficult to pinpoint responsibility in a committee, especially if it has many honourable members, and it becomes difficult to figure out who said what and who supported what. Inevitably, around this time various sections of the government started becoming alarmed at the growing demand for transparency. This also marked the beginnings of organized opposition to the proposed bill and to the right to information. Interestingly, the armed forces, which in many other countries are reportedly at the centre of opposition to transparency, were not a significant part of the opposition at this stage. This might perhaps have been because they assumed, wrongly as it turned out, that any transparency law would not be applicable to them. More likely, it was the outcome of the tradition in India, wisely nurtured by the national political leadership, which discourages the armed forces from meddling in legislative or policy issues apart from those relating to defence and security. Characteristically, the Indian State was a divided and somewhat confused house. There were many bureaucrats and politicians who were enthused about the possibility of a right to information law and did all that they could to facilitate its passage. However, many others were alarmed at the prospect of there being a citizen's right to information that was enforceable. Undoubtedly, some of these individuals were corrupt and saw the right to information act as a threat to their rent-seeking activities. Yet, many others opposed transparency as they felt that this would be detrimental to good governance. Some of them felt that opening up the government would result in officers becoming increasingly cautious. Already, there was a tendency in the government to play safe and not take decisions that might be controversial. It was felt that opening up files and papers to public scrutiny would just aggravate this tendency and reinforce in the minds of civil servants the adage that they can only be punished for sins of commission, never for sins of omission. Another group of bureaucrats and politicians feared that the opening up of government processes to public scrutiny would result in the death of discretion. The government would become too rigid and rule-bound as no officer would like to exercise discretion which could later be questioned. In the same spirit it was also thought that the public would not appreciate the fact that many administrative decisions have to be taken in the heat of the moment, without full information, and under various pressures including those of time. There were apprehensions that many such decisions would be criticized with hindsight and the competence, sincerity and even integrity of the officers involved would be questioned. There were also those who felt that too much transparency in the process of governance would result in officials playing to the gallery and becoming disinclined to take unpopular decisions. Some elements in the government feared that transparency laws would be misused by vested interests to harass and even blackmail civil servants. Others felt outraged that the general public, especially the riffraff among them, would be given the right to question their integrity and credentials. There were also those who felt that the Indian public was not yet ready to be given this right, reminiscent of the British on the eve of Indian independence who seemed convinced that Indians were not capable of governing themselves. There were even those who objected on principle, arguing that secrecy was the bedrock of governance! As was inevitable, these internal contradictions within and among different levels of the government had to, sooner or later, come to a head. They did, in 1999, with a cabinet minister unilaterally ordering that all the files in his ministry henceforth be open to public scrutiny.This, of course, rang alarm bells among the bureaucracy and among many of his cabinet colleagues. Though the minister's order was quickly reversed by the Prime Minister, it gave an opening for activists and lawyers to file a petition in the Supreme Court of India questioning the right of the Prime Minister to reverse a minister‘s order, especially when the order was in keeping with various Supreme Court judgments declaring the right to information to be a fundamental right. By now it seemed clear that a large segment of the bureaucracy and political leaders were not eager to allow the passage of a right to information act. On the other hand, the judiciary had more than once held that the right to information was a fundamental right and at least hinted that the government should ensure that the public could effectively exercise this right. The third wing of the government, the Legislature, had not yet joined the fray as no bill had yet been presented to Parliament. However, in certain states of India, notably Tamil Nadu, Goa, Madhya Pradesh, Maharashtra, Karnataka, Rajasthan, Assam, Jammu and Kashmir, and even Delhi, the legislature proved to be sympathetic by passing state RTI acts (albeit, mostly weak ones) much before the national act was finally passed by Parliament. Perhaps the happenings in India around that time very starkly illustrate the contradictions present within governments in relationship to the question of transparency. As was done in India, even elsewhere such contradictions can be used to weaken and divide the opposition to transparency laws and regimes, and to drive a wedge in what might initially appear to be bureaucratic unity in opposition to transparency Passing of the Freedom of Information Act, 2002 Meanwhile, a case had been filed in the Supreme Court questioning the unwillingness of the government to facilitate the exercise of the fundamental right to information. This case continued from 2000 to 2002 with the government using all its resources to postpone any decision. However, finally, the court lost patience and gave an ultimatum to the government. Consequently, the government enacted the Freedom of Information Act, 2002, perhaps in order to avoid specific directions about the exercise of the right to information from the Supreme Court. It seemed that the will of the people, supported by the might of the Supreme Court of India, had finally prevailed and the representatives of the people had enacted the required law, even if it was a very watered-down version of the original bill drafted by the people. Unfortunately, this was not really so. The Freedom of Information Act, as passed by Parliament in 2002, had the provision that it would come into effect from the date notified. Interestingly, despite being passed by both houses of Parliament and having received presidential assent, this act was never notified and therefore never became effective. The bureaucracy had, in fact, had the last laugh! In May, 2004, the United Progressive Alliance (UPA), led by the Congress Party, came to power at the national level; displacing the BJP led National Democratic Alliance government. The UPA government brought out a Common Minimum Programme (CMP) which promised, among other things, ―to provide a government that is corruption-free, transparent and accountable at all times…‖ and to make the Right to Information Act ―more progressive, participatory and meaningful‖. The UPA government also set up a National Advisory Council (NAC), to monitor the implementation of the CMP. This council had leaders of various people‘s movements, including the right to information movement, as members. This was recognised by the NCPRI and its partners as a rare opportunity and it was decided to quickly finalise and submit for the NAC‘s consideration, a revamped and strengthened draft bill that recognized people‘s access to information as a right. As a matter of strategy, it was decided to submit this revised bill as a series of amendments to the existing (but non operative) Freedom of Information Act, rather than an altogether new act. Accordingly, in August 2004, the National Campaign for People‘s Right to Information (NCPRI), formulated a set of suggested amendments to the 2002 Freedom of Information Act, These amendments, designed to strengthen and make more effective the 2002 Act, were based on extensive discussions with civil society groups working on transparency and other related issues. These suggested amendments were forwarded to the NAC, which endorsed most of them and forwarded them to the Prime Minister of India for further action. Passing of Right to Information Act, 2005 Reportedly, the receipt of the NAC letter and recommended amendments was treated with dismay within certain sections of the government bureaucracy. A system, that was not willing to operationalise a much weaker Freedom of Information Act, was suddenly confronted with the prospect of having to stand by and watch a much stronger transparency bill become law. Therefore, damage control measures were set into motion and, soon after, a notice appeared in some of the national newspapers announcing the government‘s intention to finally (after two and a half years) notify the Freedom of Information Act, 2002. It sought from members of the public suggestions on the rules related to the FoIA. This, of course, alerted the activists that all was not well, and sympathizers within the system confirmed that the government had decided that the best way of neutralizing the NAC recommendations was to resuscitate the old FoIA and suggest that amendments can be thought of, if necessary, in this act, after a few years experience! The next three or four months saw a flurry of activity from RTI activists, with the Prime Minister and other political leaders being met and appealed to, the media being regularly briefed and support being gathered from all and sundry, especially retired senior civil servants (who better to reassure the government that the RTI Act did not signify the end of governance, as we knew it), and other prominent citizens. This intense lobbying paid off and after a tense and pivotal meeting with the Prime Minister (arranged by a former Prime Minister, who was also present and supportive), in the middle of December 2004, the Government agreed to introduce in Parliament a fresh RTI Bill along the lines recommended by the NAC. Consequently, the Government of India introduced a revised Right to Information Bill in Parliament on 22 December 2004, just a day or two before its winter recess. Unfortunately, though this RTI Bill was a vast improvement over the 2002 Act, some of the critical clauses recommended by the NCPRI and endorsed by the NAC had been deleted or amended. Most significantly, the 2004 Bill was applicable only to the central (federal) government, and not to the states. This omission was particularly significant as most of the information that was of relevance to the common person, especially the rural and urban poor, was with state governments and not with the Government of India. Consequently, there was a sharp reaction from civil society groups, while the government set up a group of ministers to review the bill, and the Speaker of the Lok Sabha (the lower house of Parliament) referred the RTI Bill to the concerned standing committee of Parliament. Soon after, the NAC met and expressed, in a letter to the Prime Minister, their unanimous support for their original recommendations. Representatives of the NCPRI and various other civil society groups sent in written submissions to the Parliamentary Committee and many were invited to give verbal evidence. The group of Ministers, chaired by the senior minister, ShriPranab Mukherjee, was also lobbied. Fortunately, these efforts were mostly successful and the Parliamentary Committee and Group of Ministers recommended the restitution of most of the provisions that had been deleted, including applicability to states. The Right to Information Bill, as amended, was passed by both houses of the Indian Parliament in May 2005, got Presidential assent on 15 June 2005, and became fully operational from 13 October 2005. Even while according assent ―in due deference to our Parliament‖, the then President had some reservations which he expressed in a letter dated 15 June 2005 addressed to the Prime Minister. Essentially, the President wanted communication between the President and the Prime Minister exempt from disclosure. He also wanted file notings to be exempt. The Prime Minister, in his reply dated 26 July 2005, disagreed with the first point but reassured the President (wrongly, as it turned out), that file notings were exempt under the RTI Act. In any case, those who thought that the main struggle to ensure a strong legislation was over and that the focus could now shift to implementation issues were in for a rude shock. In 2006 the government made a concerted effort to amend the Act and to weaken it. Though this move was finally defeated, the danger has not yet abated, as will be described later. The Government of India introduced the Freedom of Information Bill, 2000 (No.98 of 2000) in the Lok Sabha on 25th July, 2000. The Bill, which cast an obligation upon public authorities to furnish such information wherever asked for, was passed by the Parliament as the Freedom of Information (FOI) Act, 2002. However, the Act could not be brought into force because the date from which the Act could come into force, was not notified in the Official Gazette. The United Progressive Alliance (UPA) Government at the Centre, which came into power in 2004, set up a National Advisory Council (NAC). The Council suggested important changes to be incorporated in the FOI Act. These suggestions were examined by the UPA Government, which decided to make the FOI Act more progressive, participatory an meaningful. Later, however, the UPA Government decided to repeal the FOI Act, and enacted a new legislation, the Right to Information Act, 2005, to provide an effective framework for effectuating the right of information India recognised under Article 19 of the Constitution of India.
  22. Historical Perspective of Right to Information in India India was a colony for long. Before that it had a feudal culture and hierarchical social structure. The Maharajas and the Mughals, the Viceroys and the British Empire defended themselves behind ramparts of secrecy. The entire freedom struggle was a battle against colonialism and for independence or self-government. Thus people became the focus and popular information was used by them as a weapon to achieve responsible and responsive government. In this perspective, the conflict between freedom of information and official secrecy, democratic culture and imperial heritage was formally resolved in favour of the latter. After the birth of Republic and enactment of the Constitution, freedom of expression became a guaranteed fundamental right. That was the watershed of jurisprudence of human rights. However, decade after decade we find free India still suffocated by official secrecy laws. There have been protests and dissents and resistance by the mass media. The human history is a struggle for rights and moves zigzag varying from country to country, culture to culture and age to age. Although the Indian legal system is largely a colonial vintage, yet our swaraj vintage is also pro-secrecy. Reference may be made to the Constitution of India, the Commission of Enquiry Act, 1952 and the Atomic Energy Act, 1962. A project on freedom of information as a locomotive of human progress has to be seriously considered as a high priority on the agenda of India. The fact that the right to information is included in the Constitutional guarantees of freedom of speech and expression has been recognised by Supreme Court decisions challenging governmental control over newsprint and bans on the distribution of newspapers. Liberty of thought is the basis of freedom speech and expression under Article 19(1)(a), which is an essential component of a democratic governance. As the information will be at the genesis of thought and expression, the right to information has to be an invisible integral part of the right of free speech. As the information is of vital not only for life of society but also for the life of individual, the Article 21 guaranteeing Right to live includes the basic right to be informed. In the Constitution of our democratic Republic, among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of Part III. We must take legitimate pride that this cherished freedom has grown from strength to strength in the post independent era. It has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional Courts. Barring a few aberrations, the Executive Government and the Political Parties too have not lagged behind in safeguarding this valuable right, which is the insignia of democratic culture of a nation. Nurtured by this right, Press and electronic media have emerged as powerful instruments to mould the public opinion and to educate, entertain and enlighten the public. Freedom of speech and expression, just as equality clause and the guarantee of life and liberty has been very broadly construed by this Court right from 1950s. It has been variously described as a 'basic human right', 'a natural right' and the like. It embraces within its scope the freedom of propagation and inter-change of ideas, dissemination of information, which would help formation of one's opinion and viewpoint and debates on matters of public concern. The importance which our Constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on the limited grounds specified in Article 19(2), not to speak of inherent limitations of the right. In due course of time, several species of rights enumerated in Article 19(1)(a) have branched off from the genus of the Article through the process of Interpretation by this apex Court, one such right is the 'right to information' Perhaps, the first decision which has adverted to this right is State of U.P. v. Raj Narain. 'The right to know,' it was observed is derived from the concept of freedom of speech, though not absolute is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security". It was said very aptly— "In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries." The next milestone which showed the way for concretizing this right is the decision in S.P. Gupta v. Union of India in which this Court dealt with the issue of High Court Judges' transfer. In this case it was held that "The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of the Government must be the rule and secrecy an exception..." Peoples' right to know about governmental affairs was emphasized in the following words: "No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only when people known how Government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy." These two decisions have recognized that the right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a)166. The pertinent observations made by the learned Judges in these two cases were in the context of the question whether the privilege under Section 123 of the Evidence Act could be claimed by the State in respect of the Blue Book in the first case i.e., Raj Narain's case and the file throwing light on the consultation process with the Chief Justice, in the second case. Though the scope and ambit of Article 19(1)(a) vis-a-vis the right to information did not directly arise for consideration in those two landmark decisions, the observations quoted supra have certain amount of relevance in evaluating the nature and character of the right. Then, we have the decision in Dinesh Trivedi v. Union of India. This Court was confronted with the issue whether background papers and investigatory reports which were referred to in Vohra Committee's Report could be compelled to be made public. The following observations of AHMADI, C.J. are quite pertinent:— "In modern Constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognized limitations; it is, by no means, absolute." The next decision which deserves reference is the case of Secretary, Ministry of I & B v. Cricket Association of Bengal. Has an organizer or producer of any event a right to get the event telecast through an agency of his choice whether national or foreign? That was the primary question decided in that case. It was highlighted that the right to impart and receive information is a part of the fundamental right under Article 19(1)(a) of the Constitution. "The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property..... Jeevan Reddy, J. spoke more or less in the same voice: "The right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them." A conspectus of these cases would reveal that the right to receive and impart information was considered in the context of privilege pleaded by the State in relation to confidential documents relating to public affairs and the freedom of electronic media in broadcasting/telecasting certain events. Right to information in the context of the voter's right to know the details of contesting candidates and the right of the media and others to enlighten the voter. For the first time in Union of India v. Association for Democratic Reforms' case, which is the forerunner to the present controversy (petition challenging the constitutional validity of Amendments to R.P. Act invalidating the Supreme Court's May 2, 2002 judgment, the right to know about the candidate standing for election has been brought within the sweep of Article 19(l)(a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in Article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Court had not traversed a beaten track but took a fresh path. It must be noted that the right to information evolved by this Court in the said case is qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though to a certain extent, there may be overlapping. In Association for Democratic Reforms v. Union of India and another, In this case it was held that the right to information of the voter/citizen is sought to be enforced against an individual who intends to become a public figure and the information relates to his personal matters. Secondly, that right cannot materialize without State's intervention. The State or its instrumentality has to compel a subject to make the information available to public, by means of legislation or orders having the force of law. The information is currency that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation. Information is not private property. If at all it is the property, it is the national property. Especially the property the Government has the hold over is the information generated for purposes related to the legitimate discharge their duties of office and for the service of people and hence the people as ultimate beneficiaries or sovereign, are entitled to know and benefit from it. Thus the government and public officers who are supposed to serve the people on the payment from public purs, are none else than the trustees of this national resource-information. Besides moral and legal obligation it is their constitutional obligation also based on the philosophical foundation of freedom of speech and expression under Article 19(1)(a) of the Constitution. As the transparency is the culture required for good governance, secrecy directly means disempowerment. Whenever, the executive interfered with the freedom of speech and expression through its executive orders or legislative measures, the press knocked the doors of justice in apex court and the resultant judgments paved way for the jurisprudence of information rights (le development of the right to information as a part of the Constitutional Law of the country started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right to freedom of speech and expression such as challenging governmental orders for control of newsprint, bans on distribution of papers, etc. It was through the following cases that the concept of the public's right to know developed. The landmark case in freedom of the press in India was Bennett Coleman and Co. v. Union of India in which the petitioners, a publishing house bringing out one of the leading dailies challenged the government's newsprint policy which put restrictions on acquisition, sale and consumption of newsprint. This was challenged as restricting the Petitioner's rights to freedom of speech and expression. The court struck down the newsprint control order saying that it directly affected the Petitioners right to freely publish and circulate their paper. In that, it violated their right to freedom of speech and expression. The judges also remarked, "It is indisputable that by freedom of the press meant the right of all citizens to speak, publish and express their views" and "Freedom of speech and expression includes within its compass the right of all citizens to read and be informed." The dissenting judgment of Justice K.K.Mathew also noted, The freedom of speech protects two kinds of interests. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. Now in the method of political government the point of ultimate interest is not in the words of the speakers but in the hearts of the hearers. This principle was even more clearly enunciated in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, in which the court remarked, "The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Another development on this front was through Manubhai D. Shah v. Life Insurance Corporation, case in which it was held that if an official media or channel was made available to one party to express its views or criticism, the same should also be made available to another contradictory view. The facts of this case, briefly, were: One Mr. Shah who was also a Director of a voluntary consumer rights organization and had, incidentally, worked extensively on the right to information, including drafting a model Bill, wrote a paper highlighting discriminatory practices by the Life Insurance Corporation which is a government controlled body. The Corporation published a critique of this paper in its institutional publication, to which Mr. Shah wrote a rejoinder which the LIC refused to publish. The Court held that a state instrumentality having monopolistic control over any publication could not refuse to publish any views contrary to its own. In the area of civil liberties, the courts have built up the right to have a transparent criminal justice system free from arbitrariness. In Prabha Dutt v. Union of India the Court held that there excepting clear evidence that the prisoners had refused to be interviewed, there could be no reason for refusing permission to the media to interview prisoners in death row. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give, time and again, directions to the concerned agencies for ensuring transparency in their functioning in order to avoid violations like illegal arrests and detention, torture in custody and the like. In cases concerning the right to life and liberty under Article 21 of the Constitution the Courts have stressed the need for free legal aid to the poor and needy who are not either aware of the procedures or not in a position to afford lawyers, and therefore unable to avail of the constitutional guarantees of legal help and bail. The Courts have said, that it is the legal obligation of the judge or the magistrate before whom the accused is produced to inform him of the that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to free legal aid. 'Right to know' has been given status of fundamental right by the highest Court of the land in S.P. Gupta v. Union of India (Judges' Transfer Case). The Apex Court held that the right to know is implicit in the right of free speech and expression guaranteed under our Constitution in Article 19(1)(a). Right to know is also implicit in Article 19(1)(a) as natural concomitant to free press which right is deducible from fundamental right of freedom of speech and expression. In S.P. Gupta's case the Apex Court also recommended change in century-old provisions of Section 123 of the Indian Evidence Act, 1872 so as to be conducive to the republican form of government and the open society which, we the people of India, have established. Section 123 relates to immunity from production of documents and was enacted to suit the needs of the empire builders. The Supreme Court has reaffirmed this legal position in its subsequent decisions in Reliance Petro Ltd. v. Indian Express and Secretary, Ministry of Information and Broadcasting v. Cricket Association, Benga. In Reliance Petro's case, the Supreme Court has observed that the right to know has reached new dimensions and urgency and is basic right which citizens of a free country aspire in the broaden horizons of the right to live in this age on our land under Article 21 of the Constitution. The people at large have a right to know in order to be able to take part in a participatory development in the industrial life. In Secretary, MIB's case, the Apex Court has given a very broad definition to the right to receive and disseminate information through any media including air waves and electronic media. Right to information is inherent in right to live as enshrined in Art.21 and freedom of speech and expression as guaranteed under Article 19(1)(a) of our Constitution. Right to information thus emanates from the fundamental right to life and fundamental freedom of speech and expression. These freedoms guaranteed by the Constitution have to be enjoyed subject to some reasonable restrictions. But these restrictions can never outweigh and dominate the freedoms. After all what is fundamental is the freedom and not the restriction. Under the mantle of Welfare State, the Government today is engaged in variety of activities which cannot be termed as sovereign functions of the Government. These activities do not constitute 'Affairs of the State' in strict sense. The Government, especially of a welfare state, is responsible for socio-economic development and uplift of the people, besides maintaining routine law and order. One of the Directive Principles of the State Policy says: "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social economic and political, shall inform all institutions of the national life. The State shall in particular strive to minimize the inequalities in Income and endeavour to eliminate inequalities in facilities and opportunities not only amongst individuals but also amongst groups of people residing in different areas or engaged in difference vocations." In an independent, democratic and welfare state, the citizens occupy quite an important position. They are the ones who are not only being governed but also govern by way of exercising their right of franchise and electing their representatives, who in turn formulate policies in accordance with which the administrators are supposed to govern for the benefit of the society. The benefits are to be accorded to or conferred on the citizens by the administration in a manner whereby most optimum position is attained and no one is favoured or deprived of at the cost of or for favouring the other one. In such a system, it is expected of the administration to provide to all the members of the society a reasonable dignified standard of life in which there is no risks of insecurity or stagnation on the economic front. No individual should have any fear of suspicion and mistrust towards the system in his mind. This is possible only by disseminating proper information, of course, without leaking out the vital secrets. More than fifty per cent of the citizen's problems could be sorted out promptly through a proper communication between different channels in the administration. Administrative India puts the greatest weight on keeping happenings within its corridors secret, thereby denying the citizens access to information about them. Such orientations produce deep contradictions in the larger socio-political system of the land which itself is in a state requiring nourishment and care. As the latter is still relatively new and in its infancy, its growth processes inevitably get retarded for want of information about the government, which means from the Government. Over- concealment of governmental information creates a communication gap between the governors and the governed, and its persistence beyond a point is apt to create an alienated citizenry. This makes democracy itself weak and insecure. Besides, secrecy renders administrative accountability unenforceable in an effective way and thus induces administrative behaviour, which is apt to degenerate into arbitrariness and absolutism. This is not all, "The Government, today, is-called upon-to make policies on an ever increasing range of subjects, and many of these policies must necessarily impinge on the lives of the citizens. It may sometimes happen that the data made available to the policy makers is of a selective nature and even the policy-makers and their advisors may deliberately suppress certain viewpoints and favour others. Such bureaucratic habits get encouragement in an environment of secrecy; and openness in governmental work is possibly the only effective corrective to it, also raising, in the process, the quality of decision making. Besides, openness has an educational role in as much as citizens are enabled to acquire a fuller view of the pros and cons of matters of major importance, which naturally helps in building informed public opinion, no less than goodwill for the Government." Justice Krishna lyer while commenting on the public functionaries remarked, "Be you ever so high, the law is above you". The public power must not hide its heart in a welfare State and open system. The normal rule in the Government of India is secrecy and openness the exception. There is the Official Secrets Act, 1923 which makes unauthorized communication of information including documents, an offence punishable with imprisonment which may extend upto three years. This Act covers all documents and information and makes no distinction of kind or of degree. A blanket is thrown over everything. Nothing escapes. By secrecy system the government safeguards its reputation, buries its mistakes, manipulates its citizens, maximizes its powers and corrupts itself. In the backdrop of judgement of the Supreme Court in the Judges' Transfer case, the provisions of the Official Secrets Act, 1923 and of Section 123 of the Evidence Act 1872 suffer from the stigma of unconstitutionality. These colonial provisions need to be pensioned off. "Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open discussion based on full information and debate on public issues are vital to our health". Woodrow Wilson has rightly said, "A democratic Government ought to be all outside and not inside". Unbridled freedom is not possible in our world of perils and evils designs. Truth may have to be withheld in moments when a nation's survival is in imminent danger. In Churchill's words: "In time war, the truth is so precious that it must be escorted by a bodyguard of lies". No State should adopt the mendacious methodology of Goebbels and mislead its subjects, whatever the crisis. However, quite often the right to information is denied and a seemingly authentic diet of official lies is served with a view to condition the minds of men and they are expected to consume government's version. Free speech is sabotaged from within by fouling the fountains of information. The bureaucracy itself is banned from telling the truth by forced statutory secrecy. Administrative secrecy relating to classified documents concerning national security and foreign policy is justified. But routine claim to secrecy or privilege by the government and public bodies may jeopardize the very survival of democracy in India because this immunity is anti-democratic. Therefore, no government should think that people must be told only that much which it thinks to be good for the people and safe for itself. Dangers of burying truth have been very powerfully put by Emile Zola: "When truth is buried underground it grows, it chokes, it gathers such an explosive force that on the day it bursts out, it blows up everything with it". Equally forceful are the views of Kurt Eisner, who says that the truthful information must not be withheld because:-"Truth is the greatest of all national possessions. A state, a people, a system which suppresses the truth or fears to publish it, deserves to collapse. The overall impact of these decisions has been to clearly establish that the right to freedom of information, or the public‘s right to know, is embedded in the provisions guaranteeing fundamental rights under the Constitution. Various Indian laws provide for the right to access information in specific contexts. The system of governance in India has traditionally been opaque, with the State retaining the colonial Official Secrets Act (OSA) and continuing to operate in secrecy at the administrative level. The OSA, enacted in 1923, still retains its original form, apart from some minor amendments made in 1967. The poor flow of information is compounded by two factors -- low levels of literacy and the absence of effective communication tools and processes. In many regions, the standard of record-keeping is extremely low. Most government offices have stacks of dusty files everywhere, providing a ready excuse for refusing access to records, on the specious excuse that they have been ‗misplaced‘. The rapid growth of information technology, on the other hand, has meant that most states in the country are now trying to promote technology, primarily to attract investment. This is indirectly contributing to an improved flow of information.
  23. Which was the first country in the world to adopt a law giving individuals the right to access information held by public bodies?
  24. ashakantasharma

    Evolution of Right to Information in India.

    Evolution of Right to Information in India. In Ancient India, traditionally man is inquisitive and from the time immemorial he has been busy in his mission of knowing and discovering the truth in whatever field his aptitude and imagination ventured. In this context there is ample evidence in this context in our great Vedic erudition where it is written- ― Life is a perennial search for the truth. The restless swan (soul) is on journey infinite to find the truth. The Indian history starts right from the post glacial epoch i.e. from about 8000 BC, ―The Rig Veda is considered to be the first recorded utterance of mankind.‖ Indians from the time immemorial, worshipped knowledge in the form of Saraswati‘, the Goddess of knowledge, Let noble thoughts come to us from every side‘ is the eternal message of the Rig Veda given several millennia ago signifying the freedom to inform and be informed. The Upanishads also expound a fearless quest of free and frank exchange of views. The Rig Veda states: 'ekam sat viprah bahudaa vadanti' meaning truth or god is one but learnt men describe it in many ways. Hinduism is based primarily on the Vedas. 'Veda' literally means knowledge or wisdom. It is also called 'Shruti' which means 'what is heard or revealed'. All other scriptures go under the omnibus term of 'Smriti' ('what is remembered'). Shruti being divinely revealed to the great Rishis of yore in the depths of their mystical experience, its authority is supreme. Smritis are the secondary scriptures which derive their authority from the Shruti. Their business is to explain, elaborate and illustrate the fundamental teachings of the Shruti. Hindu scriptures state, ―Sathya meva Jayathe‖ meaning ―Truth alone triumps never falsehood.‖ So Hindu scriptures allow free flow of thoughts and actions. Hindu authors knew that by allowing absolute freedom of expression of thoughts and actions, everyone will finally end up attaining truth. They preached, "Ignorance is the root cause of all evils and knowledge eradicates ignorance. Since the beginning of human civilisation, the need to communicate with each other has brought the homosapines into cohesive groups. Communication is not only an exchange of news and information, it lies in sharing facts, ideas, thoughts and message and other social activities. The desire to communicate has resulted in the birth of language the basic mode of communication. During the middle ages in Europe the concept of the divine right of kings developed. This right held that because kings were answerable only to God, they were exempt from criticism from the public. Freedom of information generally means access to information about any governmental entity involved in the operation of government. This includes access to reports, budgets, correspondence, and other documents related to the operational aspects of a governmental body, whether it is legislative or executive. In the early twenty-first century the concepts of freedom of information and access to information are closely aligned with democracy. Throughout history democracy and freedom of information have been limited. Public discourse and exchange of information and ideas about government were common in the development of Greek democracies beginning in the fifth century (BC). Greek citizens were welcome to attend open forums, debate issues, make proposals, and hear about matters of public debate. Around the same time the Roman Senate was a public body. Originally it was composed of the 100 leading citizens of Rome who advised the executive authority. Neither the Greeks nor the Romans practiced democracy in the modern sense, and neither society recognized equality among its citizens. Nonetheless, each saw the need for public participation in government and, in order for that government to prove effective, for citizens to be aware of the issues of the day and understand the workings of government, with kings enjoying such an exalted position and insulation, public participation in government was limited. Because kings did not answer to the public, there was little necessity for them to communicate information to the public or respond to public requests. Laws prohibiting criticism of the government or government officials, known as insult laws, still exist in many countries around the world. Although these laws are not always enforced, their existence, which limits speech and information, is considered a major hindrance to freedom of expression and freedom of information. Ideas related to freedom of information are freedom of the press and freedom of expression. Shortly after Johannes Gutenberg invented printing in the mid-fifteenth century, the Catholic Church imposed censorship on any books not approved by the Church. In England, beginning with 1530, censorship and the repression of ideas and information were common. English poet John Milton in his famous essay argued passionately for freedom of ideas and information and against the licensing and printing monopoly common in England at that time. In some of the most famous lines in Western literature Milton wrote: "And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew truth put to the worse, in a free and open encounter. The concept of the marketplace of ideas was thus born, one in which people would have access to all information and individuals would be free to publish their own ideas and opinions without fear of retribution. The fundamental belief behind the marketplace of ideas is that the people, not government, the church, or any other group, should decide what is the truth. The founders of the U.S. Constitution were inspired by the marketplace of ideas in the eighteenth century and sought to include it in the formation of a representative democracy and guarantee the free flow of information. James Madison (1751–1836) was the primary author of the Bill of Rights, in an frequently quoted letter to W. T. Barry (1785–1835) written in 1822, Madison said: "A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives" Although general openness and access to information were traditions early on in the United States, laws in the twentieth century made the process more formal and outlined specific procedures for securing information. The Federal Freedom of Information Act was passed in 1966 and signed by President Lyndon B. Johnson (1908– 1973). During that time period many individual states enacted open records and open meetings acts, part of a so-called sunshine law movement. "Government in the sunshine" became an expression of openness and accessibility to government just as the United States was making major reforms in civil rights and improving opportunities for women. The access to information law in Sweden is the oldest in the world, dating from 1766. Freedom of the press and freedom of information received a major push from various international organizations during the mid-twentieth century. Article 19 of the United Nations Universal Declaration on Human Rights, adopted in 1948, states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers." As of 2004 more than fifty countries around the world had laws specifying access to information.That number continues to increase, as there is an active movement to enact such laws. Among those countries enacting access laws in the early twenty-first century is India, the world's second most populous country. Access to information laws are common in Europe, and about half the countries in Latin America have some type of law regarding citizens' right to information. Mexican President Vicente Fox (b. 1942) signed such a bill into law in 2002. In the first year of its existence the law in Mexico was used by thousands of citizens and journalists seeking specific types of information from the government. Sweden was the first country to grant to its people the right of access to government information. In Sweden, all governmental information is public unless certain matters are specifically listed as exemptions from the general rule. This right is made formal by a provision for a system of appeal against the wrongful withholding of information by public officials. What is more, this law dates back to the year 1766. Sweden has thus been practising openness in its public administration for an uninterrupted period of 215 years, apparently without any harm occurring to it or loss suffered by it. This only proves that legitimate national interests can as well be safeguarded under conditions of administrative openness. Swedish legal culture treats access to government departments and documents as a right and non-access as an exception. In this context, Donald C. Rowat writes as under:- "To my amazement, all incoming and outgoing documents and mail were laid out in a special press room in each department for an hour every morning for reporters to examine. If any reporter wanted further information on a case, he simply walked down the hall to look at the departmental files. No special permission was needed. Such a system of open access is so alien to the tradition of secrecy elsewhere as to be almost unbelievable. Sweden's long experience with the principle of openness indicates that it changes the whole spirit in which public business is conducted. It causes a decline in public suspicion and in distrust of the officials, and this in turn gives them a great feeling of confidence. More important, it provides a much more solid foundation for public debate, and gives citizens in a democracy a much firmer control over their government.
  25. ashakantasharma

    CONCEPT OF RIGHT TO INFORMATION

    CONCEPT OF RIGHT TO INFORMATION The concept of democracy in India is enshrined in the Preamble to the Constitution of India wherein opening words provide that "We, the People of India ―and in the end it lays down‖give to ourselves this Constitution". The citizens have the fundamental right to know what the government is doing in its name. Freedom of speech is the lifeblood of democracy. The Apex Court in the case of K. v. Secretary of State for the Home Department Ex. P. Simms, held that the free flow of information and ideas informs political debate. It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice in the country. Ancient India had a feudal culture and hierarchical social structure. The Maharaja‘s, the Mughals and the British Rulers defended themselves behind ramparts of secrecy. The Britishers passed Official Secrets Act 1923, which was mainly a defense mechanism against the rising tide of nationalism initiated by M.K. Gandhi in 1917. As Indians were distrusted by British Government, so nobody had any access to official information under this Act.59 The Indian Legal System, largely being a colonial vintage, stresses on secrecy laws and such provisions are contained in Official Secrets Act 1923, the Indian Evidence Act 1872 and the infamous Rowlatt Act 1919 etc. After independence India adopted democratic form of government, which implies the government of the people, by the people and for the people. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy. "Knowledge", said James Madison, "will forever govern ignorance and a people who meant to be their own governors must arm themselves with the power knowledge gives. The Supreme Court in the case of S.P. Gupta v Union of India held that "the citizens' right to know the facts, the true facts, about the administration of the country is, thus, one of the pillars of a democratic State and that is why the demand for openness in the government is increasingly growing in different parts of the world. With the globalization of trade and industry and well knit world today, the disclosure of information may be of the purity, potency and price of commodities in the market or the functioning of the government is necessary and for this purpose various Conventions have been held at National and International levels, which suggested imparting of the information on the working of the government to its citizens subject to some restrictions being imposed by the law in the interest of security of the country etc. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once is five years to choose their rulers and, once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of government an attitude and habit of mind. But this important role people can fulfill in a democracy only if it is an open government where there is full access to information in regard to the functioning of the government. For a long period the working of the Government had been shrouded in secrecy and the poor citizens had to run from pillar to post even to get small information about his application to get copies of record-of-rights or his representation made to the government functionaries and instances are not lacking where he had not received reply to his genuine request for years together. The Supreme Court of India, while interpreting Article 19(1) of the Constitution of India clearly laid down in a number of decisions that the fundamental right of freedom of speech and expression includes right to acquire information and to disseminate it which is necessary for self expression enabling the people to contribute to debate on social and moral issues. In view of this, provisions were made in various Acts passed by the legislature for imparting information to the citizens from time to time. The Indian Evidence Act, give right to the person to know about the contents of the public documents and in this connection section 70 of the Indian Evidence Act 1872, lays down that the public officials shall provide copies of public documents to any person, who has the right to inspect them. Under the Factories Act, compulsory disclosure of information has to be provided to factory workers regarding dangers including health hazards arising from their exposure to dangerous materials and the measures to overcome such hazards. Under the Water (Prevention and Control of Pollution) Act, every State is required to maintain a register of information on water pollution and it is further provided that so much of the register as relates to any outlet or any effluent from any land or premises shall be open to inspection at ail reasonable hours by any person interested in or affected by such outlet, land or premises. Under the Representation of the People Act, a candidate contesting elections is required to furnish in his nomination paper the information in the form of an affidavit concerning, accusation of any offence punishable with two or more years of imprisonment in any case including the framing of charges in pending cases; and conviction of an offence and sentence of one or more than one year imprisonment. Before the enactment of the Freedom of Information Act, 2002, legislative steps though some were taken but only a little could be achieved in the field of right to information through the following enactments. 1. The Constitution of India, 1950 2. The Indian Penal Code, 1860 (45 of 1860) 3. The Indian Evidence Act, 1872. 4. The Representation of the People Act, 1951 5. The Companies Act, 1956 6. The Atomic Energy Act, 1962 7. The Code of Criminal Procedure, 1898 and 1973 8. The Bureau of Indian Standards Act, 1986 9. The Geographical Indications of Goods (Registration and Protection) Act, 1999 10. The Trade Marks Act, 1999 11. The Designs Act, 2000 12. The Semi Conductor Integrated Circuits Layout-Design Act, 2000 13. The Information Technology Act, 2000 14. The Protection of Plant Varieties and Farmers' Right Act, 2001 15. The Competition Act, 2002 16. The Delimitation Act, 2002 17. The Medical Termination of Pregnancy Regulations, 2003 18. The Central Civil Services (Conduct) Rules, 1964 19. The All India Services (Conduct) Rules, 1968 Former judge of Supreme Court of India in his open letter dated 26th December, 1989 took up the matter regarding right to information to the citizens with the then Prime Minister of India96 in which it was categorically highlighted that "the right to know and the freedom of information are inalienable components of the freedom of expression and participation in public affairs, which Constitution confers on every citizen of the country. It is heartening that, in the very first broadcast to the nation you emphasized the importance of the freedom of information and the annihilation of secrecy as a crafty art of Government accepting this postulate, some things require to be done immediately so that, the credibility of the Indian community in the changed ethos of open government may be created. The Report of National Commission for Review of Working of the Constitution recognized the right to information wherein it is provided that major assumption behind a new style of governance is the citizen's access to information. Much of the common man's distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes. He remains ignorant and unaware of the process that virtually affects his interest. Government procedures and regulations shrouded in veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning officers handling their cases because of the latter's snobbish attitude and bow-wow style. Right to information should be guaranteed and needs to be given real substance. In this regard government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded. In fact, we should have an oath of transparency in place of an oath of secrecy. Administration should become transparent and participatory, right to minimizing manipulative and dilatory tactics of the babudom, and, last but most importantly putting a considerable check on graft and corruption. During the last decade, the right to information has got a momentum as never before and on the civil societies side also some organizations; social activists and individuals did excellent work in this field. The Mazdoor Kisan Shakti Sangathan (MKSS) has done a great job in the field of right to information in rural India and its struggle for minimum wages and to get the information regarding Muster Rolls being maintained compelled the Government of Rajasthan to enact Right to Information Act and then various other State Governments enacted the Right to Information Acts. viz. 1. The Tamil Nadu Right to Information Act, 1997. 2. The Goa Right to Information Act, 1997. 3. The Karnataka Right to Information Act, 2000. 4. The Rajasthan Right to Information Act, 2000. 5. The Assam Right to Information Act, 2001. 6. The Delhi Right to Information Act, 2001. 7. The Orissa Right to Information Act, 2002. 8. The Maharashtra Right to Information Act, 2003. 9. The Jammu and Kashmir Right to Information Act, 2004. The Freedom of Information Act, 2002 (5 of 2003) was enacted by the Government of India to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. The Statement of Objects and Reasons appended to the Freedom of Information Act, 2002 laid down that the Freedom of Information Bill seeks to achieve the following objects: 1. The need to enact a law on right to information was recognized unanimously at New Delhi. In its 38th Report relating to Demands for Grants of the Ministry of Personnel, Public Grievances and Pension, the Parliamentary Standing Committee on Home Affairs recommended that the Government should take measures for enactment of such legislation. 2. In order to make the Government more transparent, and accountable to the public, the Government of India appointed a Working Group on Right to information and Promotion of Open and Transparent Government. The working group was asked to examine the feasibility and need for either full-fledged Right to Information Act or its introduction in a phased manner to meet the needs of open and responsive governance and also to examine the frame work of rules with reference to the Civil Services (Conduct) Rules and Manual of Office Procedure. The said Working Group submitted its report in May 1997 along with a draft Freedom of Information Bill to the Government. The working Group also recommended suitable amendments to the Civil Services (Conduct) Rules and the Manual of Departmental Security instructions with a view to bring them in harmony with the proposed Bill. 3. The draft Bill submitted by the Working Group was subsequently deliberated by the Group of Ministers constituted by the Central Government to ensure that free flow of information was available to the public, while inter alia, protecting the national interest, sovereignty and integrity of India, and friendly relations with foreign States. 4. The proposed Bill is in accord with both Article 19 of the Constitution as well as Article 19 of the Universal Declaration of Human Rights, 1948. 5. In our present democratic frame work, free flow of information for the citizens and non-Government institutions suffers from several bottlenecks including the existing legal frame-work, lack of infrastructure at the grass root levels and an attitude of secrecy within the Civil Service as a result of the old frame work of rules. The Government proposes to deal with all these aspects in a phased manner so that the Freedom of Information Act becomes a reality consistent with the objective of having a stable, honest, transparent and efficient Government. 6. The proposed Bill will enable the citizens to have an access to information on a statutory basis. With a view to further this objective, clause 3 of the proposed Bill specifies that subject to the provisions of this Act, every citizen shall have right to freedom of information. Obligation is cast upon every public authority under clause 4 to provide information and to maintain all records consistent with its operational requirements duly catalogued, indexed and published at such intervals as may be prescribed by the appropriate Government or the competent authority. With the passage of time, it was felt that even this Act failed to fulfil the aspiration of the citizens of India in the field of right to know and to get information since this Act was never enforced. In order to ensure greater and more effective access to information, it was thought that the Freedom of Information Act, 2002 must be made more progressive, participatory and meaningful. On this issue National Advisory Council suggested certain important changes to be incorporated into the said Act to ensure smoother and greater access to information. After examiner the suggestions of the National Advisory Council and others, the government decided to make a number of changes in the law. In view of the signifies changes proposed by the National Advisory Council and others, it was decide to repeal the Freedom of Information Act, 2002 and enact another law for providing an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India.To achieve this object, The Right to Information Bill was introduced in the Parliament in December 2004. The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Officers; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemptions consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc. In view of the significant changes proposed in the existing Act, the government decided to repeal the Freedom of Information Act and in the proposed legislation to provide an effective framework for effectuating the right to information. Indian Parliament passed the Right to Information Act, 2005, which came into force on 15.06.2005. This enactment set out its objectives in the Preamble, which aims to promote transparency and accountability in the working of every public authority. This Act was brought into Statute book on the premise that informed citizenry and transparencies of information are vital to the vibrant democracy. Thus, the Right to Information Act, 2005, which came into force in India in totality is regarded as a milestone in the history of social legislation to impart information to citizens of India regarding working of the government and its corporations, etc. to make them more transparent as a result of which corruption, if not eliminated at all, would be checked to a greater extent. The Right to Information Act thus provides an effective framework for effectuating the right of information, a fundamental right, recognized under Article 19 of the Constitution of India. The Preamble to the Right to Information Act, 2005 lays down that whereas the Constitution of India has established democratic Republic; and whereas 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; and whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and whereas it is necessary to harmonise these conflicting interests while preserving the paramount of the democratic ideal and, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it. It is not out of place to mention here that most of the problems today are the result of non-observance of moral values by the younger generations after the independence that have prompted them to make money by fair or foul means. The absence of availability of information on the working of the government generally generate corruption and nepotism and, therefore, the enactment of this Act is an important milestone in furtherance of the democratic process whereby it shall be possible for the citizens to get information on all important issues and decisions affecting them and thereafter to adjudge the performance of the government, which they elected, for themselves
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