The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act was introduced to set up a regime which provided information from a public authority.
Globally, it has been argued that the major impetus to transparency has been the growth of democracy.1 Credit has also been given to multilateral donor agencies for “persuading” governments, especially in countries of the South, to set up transparency regimes, often as a condition attached to the sanction of loans and aid. In Europe, concerns about the environment have catalysed efforts at transparent governance, especially with the Aarhus Convention2. The environmental movement has been one of the initiators of the transparency movement in many parts of the world, including India3. Interestingly, in India, it was not so much the birth of democracy but its subsequent failures, especially as a representative democracy, that gave birth and impetus to the transparency regime. The RTI regime emerged essentially as a manifestation of the desire to move the democratic process progressively towards participatory democracy, while deepening democracy and making it more universally inclusive. However, the democratic nature of the state did, on the one hand, allow space for the growth of the RTI regime and, on the other, respond to the voices of those people who increasingly demanded the facilitation of a right to information. Perhaps without a democracy, the transparency regime would never have blossomed, but also without the failures of this democratic system, the motivation among the people to formalize such a regime might not have been there. The impetus for operationalising the right to information, a fundamental (human) right that is enshrined as such in the Indian constitution, arose primarily out of the failure of the government to prevent corruption and to ensure effective and empathetic governance. The role, if any, of international agencies was marginal4. The Indian RTI Act of 2005 is widely recognized as being among the most powerful transparency laws in the world and promises far greater transparency than what is prescribed or required by most international organizations. Though the World Bank, for example, has recently revamped its disclosure policy and made it much stronger, it still lags behind the Indian law, at least in coverage and intent.
In India, as in most other democracies, functionaries of the government are answerable directly to institutions within the executive, including institutions designed to prevent corruption, monitor performance and redress public grievances. They are also answerable in courts of law if they violate a law or the constitution, or (in a somewhat uniquely Indian practice) if they do not meet with the expectations of the judiciary. The Government, as a collective, is answerable to the legislature, though with the party whip system prevalent in India it is arguable whether the government in power can actually be taken to task by the Parliament or the Legislative Assembly. Finally, it is indirectly answerable every five years, when it attempts to get re-elected, to the citizens of India, or at least to those among them who are eligible to vote. Inevitably, institutions of the government have proved to be ineffective watch dogs. Being within the system and manned by civil servants, they are easily co-opted by those they are supposed to monitor and regulate. The resultant institutional loyalty, and the closing of ranks especially when faced with public criticism, often leads to the ignoring or covering up of misdeeds. Even the honest within them have to struggle with the burden of not letting one’s side down, not exposing the system to attack by “unreasonable and impractical” activists and by a media looking to “sensationalize” all news. Added to this, they have to work within the context of very low standards of performance that the bureaucracy sets for itself and the rhetoric that India is a poor country and that the government is doing the best it can under the circumstances.
Many other institutions are blatantly corrupt, with civil servants competing fiercely (and outbidding each other) in order to occupy what are generally considered to be “lucrative” posts.
Those that, even in part, survive these pitfalls, are often marginalized, with successive governments ignoring them and their findings. The Auditor and Comptroller General of India, and the Central Vigilance Commission, are two among many such institutions that often speak out in vain. In post-independence India there were sporadic demands for transparency in government, especially around specific events or issues. Tragic disasters like train accidents invariably inspired demands from the public and often from people’s representatives in Parliament and in the state legislative assemblies, to make public the findings of enquiry committee’s which were inevitably set up. Similarly, when there were police actions like lathi (cane/baton) charges, or firing on members of the public, or the use of tear gas, there would be public demand for full transparency.
The 1990s saw the emergence of a right to information movement which primarily comprised three kinds of stakeholders. First, there were people’s movements working on ensuring basic economic rights and access to government schemes for the rural poor. The relevance and importance of transparency was brought home to them when they found that the landless workers in rural areas were often cheated and not paid their full wages. Yet, the workers could not challenge their paymasters, who claimed that they had worked for less days then they actually had, as these workers were denied access to the attendance register in which they had affixed their thumb prints every day they worked, because these were “government records”. The second group of activists who joined hands in the fight for transparency were those fighting for the human rights of various individuals and groups, especially in conflict prone areas of India. They found that their efforts to prevent human rights abuses and illegal detentions and disappearances were frustrated because they were denied access to the relevant information. The third group of supporters were environmentalists who were concerned about the rapid destruction and degradation of the environment. They were spurred on by the success, though limited, of an earlier petition to the Supreme Court demanding transparency about environmental matters. Along with these movements, central to the fight for transparency were various professionals, especially journalists, lawyers, academics, and some retired and serving civil servants.
From the early 1990s, the Mazdoor Kisan Shakti Sangathan (MKSS) had started a grassroots movement in the rural areas of the state of Rajasthan, demanding access to government information on behalf of the wage workers and small farmers who were often deprived of their rightful wages or their just benefits under government schemes. The MKSS transformed the RTI movement. What was till then mainly an urban movement pushed by a few activists and academics metamorphosed into a mass movement that quickly spread not only across the state of Rajasthan but to most of the country. It was mainly as a result of this rapid spread of the demand for transparency that the need to have a national body that coordinated and oversaw the formulation of a national RTI legislation began to be felt. Such a need was the focus of discussion in a meeting held in October 1995, at the Lal Bahadur Shastri National Academy for Administration (LBSNAA), Mussoorie. This meeting, attended by activists, professionals and administrators alike, took forward the agenda of setting up an appropriate national body. In August, 1996, a meeting was convened, appropriately at the Gandhi Peace Foundation, in New Delhi where the National Campaign for People’s Right to Information (NCPRI) was born. It had, among its founding members, activists, journalists, lawyers, retired civil servants and academics. This campaign, after detailed discussions, decided that the best way to ensure that the fundamental right to information could be universally exercised was to get an appropriate law enacted, which covered the whole country. Consequently, one of the first tasks that the NCPRI addressed itself to was to draft a right to information law that could form the basis of the proposed national act. Once drafted, this draft bill was sent to the Press Council of India5, which was headed by a sympathetic chairperson, Justice S.B. Sawant, who was a retired judge of the Supreme Court of India. The press Council examined the draft bill and suggested a few additions and modifications. The revised bill was then presented at a large conference, organised in Delhi, which had among its participant’s representatives of most of the important political parties of India. The draft bill was discussed in detail and was enthusiastically endorsed by the participants, including those from political parties.
This Act imposes a responsibility on public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated. It also requires them to publish the particulars of its organization, functions and duties, the powers and duties of its officers and employees, the procedure followed in the decision making process, including channels of supervision and accountability, the norms set by it for the discharge of its functions, the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions, etc.
The term ‘public Authority’ means any authority or body or institution of self-government established or constituted by or under the Constitution or by any other law made by Parliament or State Legislature, and also includes anybody or non-governmental organization owned, directly or indirectly controlled or substantially financed by the government. It indicates that, citizens can exercise the right information only against the public authorities or other bodies provided they are established or controlled or funded by the government.6
Private schools/organizations established by the private individuals and not funded by the government are not covered under the definition provided Section 2(h). The private bodies such as unaided private educational institutions, trusts, societies, etc. are registered under the law. Their activities such as education, charity, and other services are of public importance and mostly part of welfare function of state. Though these are established by private individuals and not funded by the state, they collect money from members of public in the form of fee, donations, charity, etc. they deal with very crucial aspect of life, like education, development, medical help, child care, etc. They are sharing the powers of state while exercising such welfare function, within the permitted parameters.7 Though, the private schools are regulated, controlled and supervised by the government under the relevant laws, the control is minimal and general in nature for example, infrastructure, qualifications of staff, terms and conditions of service, etc. As the Act is not applicable to these private schools, citizens, stakeholders, interested persons and even students, employees or past employees cannot seek information from them, and are left at whims and caprices of private bodies.
The Chief Information Commission (CIC) in Ms. Sadhana Dixit v. Directorate of Education, GNCTD, Delhi8 “held that the Jindal public School, whether it is a public authority or private body, has a duty under section 4 of Delhi Education Act 1973 to abide by the regulatory conditions of service, payment of salaries as prescribed, etc. for which the school has to maintain the records, which provide an inherent and implied right to information to their employees.”
The same view has been reiterated by the Mumbai High Court in Kausa Education and Charitable Trust, Mumbai v. Maharashtra State Information Commission.9 The definition of information under the Act provides for information from any private bodies to which the public authority is entitled to access and though the CIC and Mumbai High Court have decided in favour of the power of Information Officer to direct the private schools to share the information which they are bound to provide under the law, “it is very limited information which can be sought under the 1aw and can be asked only through the public authority which has power to seek such information from that body, as a third party information.” Furthermore, these bodies are not bound to publish the information which is required under section 4 of the Act. Hence, these bodies are left uncontrolled allowing them to deny the information which is very crucial and of public importance and interest.10
The RTI Act is not the repository of the information and power to seek information emanates from the constitutional guarantee under Article 19 of the Constitution. The RTI Act merely provides a statutory procedure for exercise of this right. ”The implementation of the fundamental right under Article 19(1)(a) of the Constitution is not possible at the fullest extent unless these private schools/bodies, although not controlled or funded by the government, are brought under the purview of RTI Act. The financial aid or administrative control should not be the criteria for bringing that body within the purview of RTI Act, rather the nature of its function and public importance should be the relevant factor. In the recent trend of privatization, numerous functions of State which are considered as welfare functions of State would be free from governmental control and enjoy all powers which the government would have entitled if not privatized. The private universities are on anvil and may enjoy similar freedom from RTI which may be against the purpose and spirit of Article 19(1)(a) of the Constitution. Therefore, in this regard, it is very important to amend the RTI Act in order to bring such private bodies within its ambit. Hence, Section 2(h) of the Right to Information Act, 2005 may be amended to the effect that, the non-governmental bodies exercising functions of public importance/interest are brought within the definition of Public Authority.11
The Parliament of India enacted the Right to Information Act, 2005, to provide for effective access to information under the control of Public Authorities in order to bring transparency in the governance and ensure corruption free, efficient, responsible and accountable government. This Act secures the citizen’s right to access information from Government, Public Authorities, and its agencies. The term ‘Information’ includes any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.’12 Right to information under this Act not only covers access to the above documents but also includes the inspection of work, document, record and its certified copy. The public authority is bound to provide such information within 30 days from the date of request. This Act imposes a responsibility on public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated.13 It also requires them to publish the particulars of its organization, functions and duties, the powers and duties of its officers and employees, the procedure followed in the decision making process, including channels of supervision and accountability, the norms set by it for the discharge of its functions, the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions, etc. The term ‘public Authority’ means any authority or body or institution of self-government established or constituted by or under the Constitution or by any other law made by Parliament or State Legislature, and also includes anybody or non-governmental organization owned, directly or indirectly controlled or substantially financed by the government. It indicates that, citizens can exercise the right information only against the public authorities or other bodies provided they are established or controlled or funded by the government.14
The Indian Legislature did not include private bodies under the RTI directly. But in the landmark judicial pronouncement Sarabjit Roy v Delhi Electricity Regulatory Commission15, it was reaffirmed by the Central Information Commission that privatised utility companies are also included under the umbrella of the RTI Act, regardless of their privatisation. Private entities are not covered under Section 2 (a) of the Act according to which “appropriate government” refers to a public entity which is constituted, owned, established, substantially financed (directly or indirectly) or controlled by either Central Government, State Government or Union Territory Administration. But private entities are covered under Section 2 (f) of the RTI Act which states that information means any material in any form including any document, form, memo, email, logbook, circular, sample, contracts, models, papers or any data help in electronic form and any information related to a private body which can be accessed by a public authority under any law in force for the time being. Reading it with Section 8 (1) (j) of the Act which states that information which can’t be denied to the State Legislature and the Parliament can’t be denied to any person, it can be interpreted that private bodies also falls under the RTI Act, albeit indirectly.16
Therefore, reading between the lines, it is evident that private entities also fall under the range of the RTI Act through any public authority with which they are registered. The Commission opined that every citizen has the right to seek information from private bodies, as long as they reported to a government body. But it was also made clear by the Commission that only such information which served the public interest could be asked or, and not that information which disintegrated the competitive position of the company in the market. As far as ‘public activity