ABSTRACT

Right to Information has been established as a human right internationally with a lot of counties
(more than 100) adopting it over the past decade. A 2003 World Bank study found that, more
transparent governments govern better. The authors of this article have analyzed the Right to
Information, 2005 law in India which is said to be the third best right to information law worldwide. Certain international best practices for a strong RTI law have been enumerated. The article
notes dilution efforts made by the government and judiciary of India. It also provides solutions in
order to strengthen the implementation of this law in India. The authors strongly believe that
better RTI laws can help benefit the government and the citizens by making the government
accountable to its citizens, thus empowering its citizens and also providing an impetus to the
government in order to perform efficiently.

RIGHT TO INFORMATION IN INDIA

one sided information, disinformation and non- information all equally create an uninformed
citizenry which would finally make democracy a mobocracy and farce
- Supreme Court of India in M/S Amco Batteries Limited vs Collector of Central Excise1

Transparency of government bodies is considered as an imperative all around the world. Right to
information (herein after, RTI) has been well established as a human right in international law.2
Till the end of 20th century only 15 countries had signed laws on freedom of information but over
the past 15 years almost 102 countries have enforced RTI laws.3 This shows that an increasing

M/S Amco Batteries Limited vs Collector of Central Excise, (2003) 107 ECR 190 (SC).
Maeve McDonagh, The Right to Information in International Human Rights Law, HR L Rev 13 (2013).
3
For the purpose of this paper, the term Right to Information Law (RTI) is used synonymously with Freedom of
Information Acts, Access to Information Acts, and other open government laws that provide for a right of access to
information.
2

need was felt over the past decade or so for transparency and accountability of the government. 4

The primary source of this right is found in Article 19 of the International Covenant on Civil and
Political Rights which provides that: 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. International bodies like UN Human Rights Committee5, UN Human
Rights Commission6, and Human Rights Council7 etc. have also endorsed and recognized this
right. There are also other important international agreements which recognize the right of access
to information. Article 13 of the UN Convention against Corruption (UNCAC) requires that
States should [ensure] that the public has effective access to information. It also requires the
implementation of whistleblower protections. The UNCAC has been signed and ratified by
nearly every country in Asia. Transparency as an issue has also been included in Association of
South Eastern Asian Nations (ASEAN) discussions. The Asia-Pacific Economic Cooperation
(APEC) has also taken up programs to promote transparency as an anti-corruption effort.8 This
shows that the international law stands strongly in support of right to information laws. Major
countries like USA, U.K., China, Russia, Brazil etc. all have a right to information laws in force.

However, the Charter of Democracy by South Asian Association for Regional Cooperation
(SAARC) does not mention access to information or transparency. A mere mention has been
given to strong commitment to ensure good governance for sustainable development by
promoting accountability, transparency, the rule of law and people's participation at all levels of
governance9 RTI activists and civil society members have been relentlessly urging member
states of SAARC to include RTI as a part of the summit agenda. 10 Pakistan was the first country
in South Asia to promulgate the Freedom of Information (FOI) Ordinance in 2002.11 However
4

Muhammad Anwar, Broken promises on RTI, The Express Tribune, February 11, 2016, accessed at
http://tribune.com.pk/story/1045145/broken-promises-on-rti/ on 15/2/16.
5
In General Comment No. 34 adopted in 2011, the UN Human Rights Committee.
6
Human Rights Commission, Democracy and the Rule of Law, Resolution 2005/32.
7
Resolution 22/6 Protecting human rights defenders.
8
https://www.article19.org/data/files/medialibrary/38121/FINAL-Asia-Disclosed-full.pdf at page no. 7.
9
SAARC 2014 Kathmandu Declaration.
10
2014 Summit which was held in Nepal available at http://www.opengovpartnership.org/blog/mandakini-devashersurie/2014/11/28/strengthening-right-information-south-asia.
11
supra note 4.

it did not ensure the citizens right to access information. In 2005, India was the first country to
pass an effective RTI law in South Asia.

The need to implement an RTI law was similarly felt in the SAARC countries and in the last
decade Bangladesh, India, Maldives, Nepal, Pakistan, Afghanistan and Bhutan formally enacted
RTI laws, while most recently, the Sri Lankan Cabinet approved a Draft Right to Information
(RTI) Bill for tabling in Parliament.

Legislations however are only a part of the process and the effectiveness of an RTI law lies in
how it is being utilized by people. Civil societies play a vital role by creating awareness among
the people about its apt usage. A powerful RTI law can effectively combat corruption by holding
the government accountable for its actions, thus empowering its citizens.

12

It can ensure

transparency, openness, accountability, rationality, participation of people in good governance,

better administration by the government of laws and an informed citizenry. It fosters integrity in
governance, helps control corruption thus fostering efficiency in the government. The common
man is empowered which is immensely conducive to democratic reform. It is therefore an
essential part of a democracy. However, people are easily discouraged to file an RTI request due
to its complicated process, lack of awareness regarding the procedural intricacies as well as an
increasing rate of violence with RTI activists. Government officials actively attempt to conceal
information and a lot of pressure is put on the person who tries to unearth corruption.
Mechanisms for the protection of such persons are very important and have to be handled
effectively by the government. Asian countries are at a critical point because the need to combat
terrorism, hide corruption and increase national security has been on a rise recently and an
increase in awareness has actively put each and every governmental act in public scrutiny
through online activism, debates and journalism.

12

N Sudarshan, Right to Information: Indian and International Perspectives, ICFAI University Press, 7 (2007).

BEST PRACTICES ON WHICH RTI LAWS SHOULD BE BASED13-

1. The legislation should accord to international best practice. The law should begin with a
clear statement establishing a strong presumption in favor of access to information.
2. The law should be as wide and inclusive as possible. All public bodies, private bodies
and non-governmental organizations with public funding or whose activities affect
peoples rights should be covered by the law.
3. The law should allow any person to access information without citing a reason for the
same. Citizenship should not be a criterion as information should be freely available to all
in order to analyze.
4. The term information should be well-defined and broad.
5. The key principle adopted by the RTI law should be of maximum and pro-active
disclosure. The government should disclose considerable amount of information without
having to ask for it from time to time. The law should stipulate what kinds of information
ought to be published pro-actively by the government.
6. Limits on disclosure should be narrow. If information disclosure is in the interest of the
public, then it needs to be disclosed. Public interest over-ride means that if [the] public
interest in disclosure outweighs the harm to the protected interests then the official will
still have to disclose it.
7. There should be minimum bureaucratic discretion. Ministerial veto should absolutely not
exist.
8. When the information asked falls within the exempted category but contains certain
information which isnt exempted then, that part of information ought to be disclosed.
This is called Partial Disclosure of Information and Doctrine of Severability.
9. The fees charged for accessing information should only be limited to cost of printing or
as in any other form demanded by the applicant. The procedure should be simple and
very easy to understand and should not discourage the public from attempting to file
RTIs.
10. Time limit to give the information asked for should be specified and penalties to officers

13

http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/maldives/Maldives-RTIBill-CHRIprelimanalysisreco-Apr2011.pdf , accessed at17-2-16.

who do not abide by it should be imposed. An Information Commission should be

established for the same and regular monitoring should be conducted.
11. In case the person in charge of disclosing information refuses to do so, the reason for
refusal needs to be clearly mentioned.
12. People should be made aware of the existence of RTI laws and should be encouraged to
file RTIs.
Right to Information in India has been derived from the fundamental right of freedom of
speech and expression under Article 19(1) (a)14. In the case of Bennett Coleman and Co vs
the Union of India15 in 1973 said that, freedom of speech and expression includes within its
compass the right of all citizens to read and be informed. The Supreme Court ruled in 1975
that access to government information was an essential part of the fundamental right to
freedom of speech and expression.16The Indian civil society and grassroots organizations like
Mazdoor Kisan Shakti Sangathan etc. started their campaign in support of right to
information in 1994 demanding information regarding to developmental projects in
Rajasthan. Tamil Nadu in 1997 became the first state in India to have passed an RTI law. In
2002, the Supreme Court also specifically ordered the Election Commission to make
candidates for election publish information about criminal records, assets, liabilities and
educational qualifications.17
Finally, the Right to Information Act, 2005 was passed by the UPA (United Progressive
Alliance) Government after almost a decade of hectic lobbying by civil society members and
received Presidential assent on the 15th of June 200518 and became effective on the day of
Vijayadashmi-October 12, 2005. Globally, rankings on the basis of effectiveness of the law
show that Indias law on freedom of information stands third. The law has been praised by
many and according to noted RTI activist Subhash Chandra Agrawal, Post-independence

14

Constitution of India, 1950.

Bennett Coleman and Co vs the Union of India, (1972) SCC (2) 788.
16
State of Uttar Pradesh v. Raj Narain and Others, (1975) 4 SCC 428; S.P. Gupta vs. Union of India (AIR 1982 SC
149); See Government of India, Report of the Working Group on Right to Information and Promotion of Open and
Transparent Government, May 1997.
17
Union of India v. Association For Democratic Reforms, (2002) AIR 2112 (SC).
18
Mandakini Devasher, RTI law: The long road ahead, http://indiatogether.org/rticonf05-rti accessed on February 2,
2016.
15

history of India can be bifurcated in two different eras, one pre-RTI Act and the other one,
post RTI-Act.19
There have been several attempts at watering down the Act by introducing amendments
which have always been protested heavily by public. In 2006, the Cabinet approved the
amendment to reduce access to file notings but was later withdrawn due to the pressure
created by public protests.20 Again in 2009, an attempt to introduce an amendment to exempt
the so called vexatious and frivolous requests and nondisclosure of documents pertaining
to decision making processes was made which was again met with a huge public outcry in
the form of mass protests.21 In 2013, a proposal to exempt political parties from the scope of
the Act was introduced and supported by the Parliamentary Standing Committee on
Personnel, Public Grievances and Pensions but not adopted.22 The opinion of RTI activists
like former Central Vigilance Commissioner is in accordance with the fact that right to
information is being slowly but certainly suffocated due to such attempts.23 The most recent
attempt made by the Modi government where the post of the Central Information
Commissioner was left vacant for eight months shows how little importance is given to the
way the law is being implemented in this country.
The RTI law in India is one of the strongest in the world. The law was put to test in the past
decade and it has helped a lot of citizens unravel corruption attempts which are rampant in
the country. India ranks 76 among 168 countries in the Corruption Index 2015 released by
Transparency International.24 This shows that there is a great need for methods and laws to
combat corruption. And RTI is one such law which if used effectively by the people will
check the governments arbitrary and corrupt practices. The highlight is the provision for
fines on the public information officer which can go up to Rs. 25,000 if he/she fails to
provide information without reasonable cause.

19

Supra note 11.

The Right to Information (Amendment) Bill, 2006.
21
Letter in The Hindu from 200 eminent citizens, Amendment to RTI Act 'an obviously retrograde step'; Letter to the
Prime Minister by RTI activists, 25th October, 2009.
22
Right to Information (Amendment) Act, 2013.
23
Shailesh Gandhi, Right to Information is Slowly but Surely Being Suffocate accessed at
http://thewire.in/2015/08/07/right-to-information-is-slowly-but-surely-being-suffocated-7970 on February 17, 2016.
24
http://www.transparency.org/cpi2015 accessed at 17-2-16.
20

The law however can only be utilized by the citizens of India.25 This becomes a deterrent in
the free flow of information as the basis of an RTI law is that information should be freely
available to all. Section 2(h) explains what comes.under the purview of the term public
authority but it does not give a comprehensive idea.and creates ambiguities which.pose
problems for the Information Commission. to decide the nature of an authority.26 Moreover,
the phrase substantially financed also does not give a clear picture that.what constitutes the
word substantial which causes sheer confusion. For instance, the municipal corporations,
state and central governments are.increasingly opting for Public Private Partnerships
(PPP).owing to which it seems.that transparency could be hindered, as private
organizations.are excluded from under the Right to Information (RTI) Act and in such
partnerships one can.get access to public documents.by putting a query to the public partner
only. But at the same time if private organizations are substantially.funded then they come
under the purview of public domain but who is to decide what is substantial funding?27
This makes the decision completely subjective and we have to completely rely on the
Information Commissions discretion.
Another discrepancy in this Act is under Section 11 that whether the third partys denial is
the final verdict because when it comes to disclosure of information pertaining to the third
party, its consent is required to be taken and in most of the cases they refuse to disclose the
information stating the reason of it being an encroachment on their privacy and the Public
Information Officer (PIO) abide by it blindly without weighing the ramifications on the
general public.28
Even the reasonably well-crafted legislation fails to deliver when it comes to application of
this law. The political parties have taken upon themselves to clearly defy the orders of the
Information Commissions and they havent appointed Public Information Officers (PIO). In a
lot of cases, the PIOs are not even well verse with the RTI law of the country and easily
mislead the public. To add to the misery, it is been seen that most Information Commissions

25

http://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/rti.htm accesssed at February 15, 2016.

Price Waterhouse Coopers, Understanding the Key Issues and Constraints in Implementing the RTI Act, 2009.
27
Shakha Jha, RTI ACT, 2005: A CRITICAL ANALYSIS, http://alexis.org.in/rti-act-2005-a-critical-analysis accessed
at February 17, 2016.
28
http://www.scribd.com/doc/19453145/Critical-Analysis-of-Working-of-RTI-in-India#scribd accessed at 17-2-16.
26

impose fines in the rarest of rare cases. It appears that they will be largely responsible for
frustrating RTI. 29
There have been several attacks on RTI activists in India who have tried exposing scams. The
decade has seen the death of 45RTI activists and assaults on 295 of them. 30 This shows how
transparency threatens vested interests. In the wake of such a strong threat to the public for
wanting to expose scams, a strong mechanism to protect such activists is a must. Such
officials should readily have a grievance redressal forum where such incidents can be taken
into cognizance and appropriate police protection can be provided to such activists.
A further understanding of the real issue suggests that the officers in charge (PIO, APIO) are
not fully made aware of the duties that they are supposed to perform. This is because the
existing officers are only given an additional post of PIO, etc. Ideally, a rigorous workshop
should be conducted where the officers are imparted with proper education about the RTI act.
Each and every aspect of the Act should be explained to them. In these workshops, an
understanding of the basic principles of RTI laws should be given to them. The officers
should be made to understand that every citizen has a right to ask the government about its
operation mechanisms. The officers need to be made aware of using the exceptions provided
in the Act sparingly and only in cases when it is really required. Proper response to the RTI
requests should be their priority. In order for this to be achieved, since most officers cannot
juggle between these additional duties conferred upon them, a separate post for RTI officers
needs to be created. These officers will solely be responsible for handling RTI requests and
establishing a transparent government.
India has a very strong RTI Act. The catch however lies when it comes to the implementation
process. A sense of accountability towards the public needs to be created amongst the RTI
officers coupled with a wide scale awareness program which enables the public to learn the
nuances of right to information law. The procedure by which an RTI application can be filed
seems complex to a lot people. To encourage people in order to file RTI applications, the
government should create advertisements and start campaigns, seminars in schools and rural

29

supra note 23.

Chetan Chauhan, http://www.hindustantimes.com/india/10-years-of-rti-act-39-activists-dead-275-assaulted-saysreport/story-mwEjPtaUDXthPQZ6293BYL.html, accessed at 17-2-16.
30

places. Panchyat Samiti meetings can be a good place to impart people with knowledge about
the RTI laws. RTI can be effectively used by the poor and illiterate of this country in order to
curb the injustices against them. In order for this to happen, the application process should be
easy and cost effective.
After a decade of implementation of RTI Act in India, we can safely say that the law is
changing India. It has deepened the Indian democracy and has initiated a process of trust
building between the government and its citizens which was seen to be lacking due to the
many instances of wide spread corruption coming into light over the past few years.
Transparency is a huge threat to vested interests and hence it should be readily used as a tool
to ensure governments effectiveness by the public. This helps in checking arbitrary power.
The RTI Act in India was a result of peoples activism and can be truly called an Act by the
people and for the people. In spite of the many discrepancies in the implementation of this
Act, it is worth noting that the Act is a major achievement to establish transparency and this
era of RTI activism will only help the country move forward.