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One year after the enforcement of the landmark Right to Information Act, problems of implementation and resource allocation persist. But the main problem in all but a handful of states appears to be the lukewarm response of a largely unaware citizenry
October 12, 2006 marks the completion of the first year of the enforcement of the Right to Information (RTI) Act in India.
India's struggle for a law on accessing information commenced in the 1990s, and resulted in the legislation of the Freedom of Information Act, 2002 (FOI Act). In 2004, the United Progressive Alliance (UPA) government in its Common Minimum Programme promised to make the "right of information progressive, participatory and meaningful," and simultaneously constituted the National Advisory Commission (NAC) to oversee the implementation of the government's Common Minimum Programme. The NAC worked closely to amend the FOI Act, and the efforts of the government and the active participation of civil society resulted in the enforcement of the Right to Information Act on October 12, 2005.
The RTI Act as enacted in India is known to be one of the most progressive RTI laws in the world. It is a landmark legislation that has given a new dimension to the relationship between the State and its citizens. For the first time citizens have been empowered with a law, which used judiciously, can be an instrument to curtail the direct fallout of opaque administration -- corruption, inefficiency and the arbitrary use of power.
The passing of the RTI Act saw the filing of thousands of applications. The movement continued to gain momentum with the 'Drive against Bribe -- with RTI' campaign pioneered in the states of Madhya Pradesh and Chhattisgarh. Unfortunately, the government reacted swiftly to this and in December 2005 proposed amendments to the RTI Act. What followed was sharp criticism along with nation-wide campaigns against the government's decision to make amendments to the RTI Act, barely six months old. In July 2006 the government clarified its intention to remove file and cabinet notings from the purview of the RTI Act. This is contrary to several rulings of the Central Information Commission (CIC) and predictably, there was a storm of protest.
But let us take a closer look at the implementation of the RTI Act in the states one year after the legislation came into force. Of the 28 states in India, 26 have officially constituted Information Commissions to implement the Act regionally. Nine states had pioneered access to information laws in their territories even before the RTI Act was passed.
In the northern part of India, including Jammu and Kashmir (J&K), Himachal Pradesh, Punjab, Haryana, Uttar Pradesh, Uttaranchal, Bihar and Jharkhand, the RTI Act is applicable everywhere except J&K. J&K passed its own RTI Act in 2003; currently civil society groups are advocating its amendment to follow the new RTI Act 2005. In Punjab, there has been tremendous constructive support from the state government for the implementation of the Act but the response from the public has been lukewarm. The RTI Act in the union territory (UT) of Chandigarh has likewise received a lukewarm response from citizens, and with the exception of a few departments, no applications have been filed.
Delhi is one of the states that had enacted right to information laws at the state-level, bringing more than 119 departments under the purview of the Act. The Delhi Right to Information Act 2001 (Delhi RTI Act) is still in force concurrently and the government is now working to repeal the Delhi RTI Act in favour of the new RTI Act 2005.
Haryana and Himachal Pradesh have implemented the RTI Act, but hardly any applications have been filed. A recent workshop proved that the level of awareness among the public on the very existence of such an Act is minimal and therefore it is not hard to guess why there has been no filing of applications. The state governments urgently need to develop and organise awareness programmes for their citizens, and disadvantaged groups in particular, on the exercise of their rights under this Act.
Uttar Pradesh and Uttaranchal both lacked a comprehensive access to information law, but had an interim measure to ensure access to information to people through the Uttar Pradesh Code of Practice on Access to Information. The Uttaranchal government took the lead in implementing the RTI Act and set up task forces on RTI implementation, constituted selection committees and prepared time-bound plans on implementation. Despite the full implementation of the Act in both the states the State Information Commissioner (SIC) recently went on record with an overview of the various challenges that the SIC faced in implementing the RTI Act.
Jharkhand recently constituted its Information Commission. In Bihar, one is yet to witness the implementation of the Act and there have hardly been any developments on RTI in the state.
The North Eastern states (NE) of Assam, Meghalaya, Mizoram, Nagaland and Tripura have been relatively swift in implementing the RTI Act, but there are a number of practical difficulties faced by applicants, for example the non- assumption of office by the SICs, and most frequently, the problem of unavailability of Public Information Officers in office. Sikkim recently enacted its Rules and formed the IC. Arunachal Pradesh has still to implement the RTI Act.
In the western and central part of India there was a tumult after the RTI Act was passed. After all, Rajasthan was where the Right to Information movement was spearheaded by civil society groups like the Mazdoor Kisan Shakti Sangathan (MKSS), resulting in the passing of the Rajasthan Right to Information Act in the year 2000.
Madhya Pradesh (MP) was one of the states that actively engaged in securing the right to information for the public. Even without an Act in place the state proactively sought solutions by issuing a number of Executive Orders which allowed access to information from close to 50 departments. The MP government tried to pursue the legislation on the right to information in order to set up a more comprehensive access to information regime. Ultimately in January 2003, the Madhya Pradesh Jankari ki Swatantrata Adhiniyam received the assent of the Governor. Landmark decisions have come from the SIC T N Shrivastava who imposed a fine of Rs 25,000 on a tehsildar for not providing information to an applicant. The SIC also recommended disciplinary action against the first Appellate Authority and Sub-Divisional Officer for conduct unbecoming to the dignity of his office.
Chhattisgarh has not passed comprehensive laws on access to information. Chhattisgarh was previously a part of the state of Madhya Pradesh, and the Executive Orders to provide access to information which were passed by the Madhya Pradesh government while Chhattisgarh was still a part of that state became applicable to the new state of Chhattisgarh.
Initially, Orissa also did not have any comprehensive law on access to information but there are a number of legal instruments which provide access to information in the state. A number of Executive Orders were also passed to make information available to people on all developmental projects undertaken by the government departments as well as information pertaining to poverty alleviation programmes. In West Bengal, there have been fewer reports of citizens using the RTI Act.
In Maharashtra, a sustained campaign by social activist Anna Hazare forced the Maharashtra government to pass the Maharashtra Right to Information Act 2000. It was soon realised that the Act was weak. Therefore it was repealed in the year 2002 and replaced with the right to information ordinance. Even after that public pressure to enact an Act in the state continued and in 2003 the Maharashtra Right to Information Act received assent.
Goa was the second state in India, after Tamil Nadu, to have a right to information law enacted. It is notable that the development of this law was the result of a government initiative and not a civil society campaign. It is not clear whether the state needs to repeal the Goa Right to Information Act 2002, but the government has started implementation of the new RTI Act.
In the south, Tamil Nadu pioneered the formulation of a law on Right to Information in 1997. Though it was the first, Tamil Nadu's RTI law was weak and has been widely criticised by civil society. Karnataka, Andhra Pradesh and Kerala followed suit and passed RTI laws. Significantly, in Kerala there has been a movement to establish the culture of transparency by using avenues available for the access of information under the existing Panchayati Raj system (decentralisation process). Provisions facilitating access to information were incorporated in the Kerala Panchayati Raj Act in response to the recommendations of the 1997 Report of the Sen Committee on Decentralisation of Powers. The Kerala Panchayati Raj Act provides for access to information from the 1,214 local self-government bodies that exist in Kerala. It provides the detailed procedure for applying for information and also punishment for withdrawal of information.
Problems in implementation
One year after the RTI Act, there are states like Arunachal Pradesh and Bihar that have not yet constituted the Information Commissions (IC). A major challenge that the RTI Act has faced in implementation is lack of resources for the basic functioning of the office of the IC. For example, when the State Information Commissioner in Goa was appointed this February, he was operating from home! Non-allotment of funds resulted in no allocations for salary, inadequate staff and non-availability of basic office equipment. Uncertainty and unavailability of resources is the Achilles heel of the RTI Act, hampering its working in more ways than one.
States such as Sikkim and Jharkhand have recently constituted their Information Commissioners but there has been hardly any progress in developing, organising and preparing programmes to improve the functioning of the Right to Information law. Meanwhile, the State Information Commissioner (SIC) of Uttar Pradesh went on record to point out that one of the major reasons for the non-implementation of the RTI Act is non-cooperation of the bureaucracy and he admitted that he himself was having problems in enforcing the Act. This clearly spells out the gravity of the problem of implementation.
In states like West Bengal, Uttar Pradesh, Madhya Pradesh, Chhattisgarh etc the contact details of officers appointed to process information requests are not easily available in the public domain.
At the same time, some states have tried to take proactive steps to facilitate better implementation of the RTI Act. Recently the states of Punjab and Madhya Pradesh reduced/removed the fees for filing of applications and made provisions for alternative mode of payment of the fees. Sikkim's law on RTI is commendable because it is one of the most progressive laws in the country making reference to special situations concerning 'life and liberty' and also imposing a duty on mandatory submissions of reports at the end of the month to the SIC, which is an excellent way to monitor implementation of the RTI Act.
Over 2,000 petitions have been received by the Central Information Commission (CIC) and 400-odd appeals are supposed to have been decided by now. The CIC has consistently given decisions in favour of applicants wherein officers have been directed to furnish information from public authorities. In certain cases the CIC has also slapped fines on officers who have failed to furnish information under the Act. For example the CIC imposed a penalty of Rs 13,750 on the registrar of Jamia Hamdard University, Akhtar Majeed, for denying information to one Asgar Khan and the Chhattisgarh CIC proposed a Rs 40,000 penalty against a Sub Divisional Officer (Revenue).
(Source: Commonwealth Human Rights Initiative)
InfoChange News & Features, October 2006
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