Commonwealth Human Rights Initiative, New Delhi
Venkatesh Nayak and Charmaine Rodrigues
Positive Amendments
Jurisdiction
While the original Bill covered only the Central Government and Union Territories, the amended version of the Bill covers the States as well. This is a welcome change as it facilitates for all citizens easier access to appellate bodies. State Information Commissions will be set up in all States as appellate bodies to review the refusal of Public Information Officers (PIOs) to give information.
2) Fee
The application fee and document copying charges will be fixed at reasonable levels. Fee for applicants belonging to below the poverty line (BPL) income group has been waived. This is a welcome change, as it will help underprivileged people to access information without undergoing further financial hardship.
Amendments with Diluting Effect
Appointment committee will be government controlled
In the original version of the Bill, the Committee for appointing the Chief Information Commissioner and the 10 Information Commissioners who will function at the Central level, was made up of the Prime Minister (chair), the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This process was designed to ensure that selection was a bipartisan process and that no single party or alliance could control selection of Information Commissioners.
However in the amended version of the Bill, the Chief Justice of India has been dropped and the Prime Minister is given the power to nominate a Cabinet Minister of his/her choice to this committee. At the state level, a similar composition of the Committee to appoint the State Information Commissioners has been provided for where the Chief Minister as Chair nominates a Cabinet Minister to the committee. If approved by Parliament, this will result in a government controlled committee and in all probability lead to the appointment of inDIViduals who are likely to toe the line of the party/alliance in power.
The appointments clause has the potential to make the Information Commission amenable to the control of the political dispensation in power.
Penalty clause
In the original version of the Bill there was no provision for penalizing PIOs for every instance of violation of this law. Only in persistent cases of violation could the Information Commission recommend filing of a complaint against the erring official with a Judicial Magistrate (First Class). Upon conviction, the erring official was liable to a fine of Rs. 25,000/- at maximum and imprisonment for up to five years or both.
In the amended version the penalty clause has been strengthened in some respects but diluted in others. Every PIO will now be liable for fine of Rs. 250 per day up to a maximum of Rs. 25,000/- for -
not accepting application; delaying information release without reasonable cause; malafidely denying information; knowingly giving incomplete, incorrect, misleading information; destroying information that has been requested and obstructing furnishing of information in any manner.
The Information Commission (IC) at the Centre and the State levels will have the power to impose this penalty. This is a welcome development.
However there are two problems with the penalties clause -
The various possible instances of violations of this law are all treated as being of the same level of seriousness. Even for serious offences like destroying requested records or knowingly giving wrong information, the PIO will be penalised from Rs. 250/- per day up to a maximum of Rs. 25,000/-. It is absurd to stipulate daily fines for such offences. The punishment for these offences should have been spelt out separately.
b) The provision for prison sentence has been dropped from the amended version. The Information Commission can only recommend disciplinary action for persistent violation of the law against a PIO. This is a further dilution of the original provision where the IC could recommend filing of a complaint. It is unreasonable to try the erring official under civil service rules for violation of the Right to Information law. The more stringent punishment envisaged in the original Bill should be restored to give the law more teeth.
Third Party Clause
In the original Bill, if the PIO received an application about information of a confidential nature that was given by a third party (definition of a third party includes another (public authority) the PIO was required to give notice to the third party and invite any objections. This clause has been severely criticised by civil society organisations and activists advocating for a strong right to information law. Another public authority or department cannot be treated as a third party as it belongs to the second party itself - namely the Government. The Standing Committee headed by Mr. EMS Natchiappan which vetted the RTI Bill, after inviting submissions from civil society, had recommended that public authorities not be included within the definition of third party.
However this suggestion has been ignored in the amended version and in fact this provision has been strengthened by allowing third parties the right of appeal at both levels (internal - to the department concerned and external - the Information Commission concerned). This will in effect allow two public authorities to collude in refusing information to the applicant and will unnecessarily delay the process further requiring the applicant to go on appeal.
4) The jurisdiction of Information Commissions
The amended version of the Bill does not clarify the relative jurisdiction of the Central and State Information Commissions. For example - can an applicant file an appeal with the State Information Commission for unreasonable refusal of a local office of the Central government department or agency to give information? This could happen in the context of the telephone department which is controlled by the Central Government but function at all levels in States. Conversely can an applicant file an appeal with the Central Information Commission against a refusal of a state government department or agency? These questions arise because of the lack of clarity in the amended version of the Bill.
The status of the State Information Commissioners
The amended version of the Bill does not spell out clearly the status of the State Chief Information Commissioner and the Information Commissioners unlike that of the Central Information Commissioners. The Chief Information Commissioner at the Centre is equal in status to Chief Election Commissioner and the Information Commissioners equal to Election Commissioners.
6) New class of agencies exempt from the purview of the law
The amended version of the Bill introduces a new class of government agencies that will be exempt from the purview of the Bill. All intelligence and security agencies established by the State governments will be exempt from the purview of this law as and when notified by the respective governments. Citizens can seek information from these agencies only in matters of corruption or violation of human rights. This multiplies the number of agencies exempt from the purview of the law manifold.
Even in these cases only the State Information Commission will have the discretionary power to decide whether such information will be given or not. At the Central level this power is wielded by the Central Information Commission.
contact the authors at venkatesh@humanrightsinitiative.org or charmaine@humanrightsinitiative.org