R.T.I. Act : Its Applicability to Organisations Outside
the "Government" Set up

(By Raju Narayana Swamy I.A.S.)*

Abstract

Legislations granting freedom of information are receiving a lot of attention today. From the time Sweden enacted its national FOI Legislation way back in 1766, these sunshine laws have come a long way. Today more than 85 countries have enacted these legislations in one way or the other. India has joined the bandwagon through the R.T.I. Act, 2005. In a scenario where “the Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act,” the aim of the Act is to lead to an informed citizenry and transparency of information, which are vital to the functioning of a democracy. Though Governments are made duty-bound to facilitate it, many organizations outside the “Government” setup are reluctant to furnish details. Information defined in S.2 (f) includes information relating to any private body which can be accessed by a public authority under any other law for the time being in force. But attempts are often made by the information officers in public authorities to turn down the request to access and provide informations from private bodies, their supervisory roles over the private bodies notwithstanding. In a vibrant democracy, all authorities are bound to share with the people relevant information. The main objective of this article is to examine the applicability of the R.T.I. Act to stock exchanges, private, aided schools, colleges, hospitals, co-operative societies, N.G.O.'s etc. The article stresses the need for laying the road ahead in such a way that all activities are transparent, fair and open and so that every citizen who wishes to obtain any information from any authority whatsoever will be entitled to receive it without any hindrance.

Introduction

Good governance has four elements - transparency, accountability, predictability and participation. Right to information is a basic necessity of good governance. As Madison said in 1822, “popular Government without popular information with means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.” In an era where as Lord Curzon said “Round and round like the revolutions of earth goes, file goes after file in the bureaucratic daily dance, stately solemn, sure and slow." R.T.I. Act is expected to bring about a radical change.

The objectives of the Right to Information Act, 2005 have been clearly laid down in the Preamble:-

“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 paramountcy of the democratic ideal.”

The salient features of the Act which relate to these objectives are duties to publish and furnish, maximum disclosure, suo motu and web-based disclosures and the like. To quote from the Hon’ble Prime Minister’s speech in the Parliament on May 11, 2005, “I believe that the passage of this bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to all sections of our people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of all processes of governance, an era which will truly fulfill the hopes of the founding fathers of our Republic.”

The definitions of “information”, “public authority” and “right to information” in the Act need special mention and are repeated here.

Section 2(f) states that

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, 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.

Section 2(h): “public authority” means any authority or body or institution of self-Government established or constituted

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(d) by notification issued or order made by the appropriate Government; and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

Section 2(j): “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to -

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

No doubt, (A Cleansing Effect through the Right to Information: P. Mohan Rao and C.G..K. Murthy) the Act covers private schools, hospitals or other commercial institutions that receive subsidies or concessions in taxes from Government. This apart, the Act also covers private sector since the citizens can obtain all information which the Government itself can access. The objectives of the R.T.I. Act - preventing corruption and making a frontal assault on the citadels of profligacy - cannot be brought into the realm of reality if private authorities are excluded from its ambit. To quote Aruna Roy, “the real democratic political potential of the R.T.I. discourse lies in the inversion of power relationships, particularly on the margins.”

The concept that informed citizenry is the oxygen of democracy has been narrated in unequivocal terms by Tagore himself,

“Where the mind is without fear and the head held high

Where knowledge is without barriers

……………………………………………..

Into that heaven of freedom, my father

Let my country awake.”

To quote Justice Dhananjay Chandrachud of the Bombay High Court, “Disinvestment and deregulation have seen the Government handing over public sector to private hands. Now, private players are just as important as the Government. The R.T.I. Act is not a code to give information, but a constitutional right of a person to know about something. Right to information is now beyond the scope of disclosure.”

It is also heartening to note that N.G.O.'s like Mahiti Adhikar Manch and P.C.G.T. are planning to set up a panel to ensure voluntary disclosure of information.

It is in this context that we need to have a look at the applicability of the R.T.I. Act to organizations outside the “Government” setup.

Pro -Active Steps before the Commencement of the Act

In Madhya Pradesh in certain places like Bilaspur and Korba, local authorities started providing people access to certain information related to the public distribution system much before the R.T.I. regime. In fact, some States had enacted their specific legislations much before the national-level legislation. Tamil Nadu and Goa enacted it in 1997, Rajasthan and Karnataka in 2000, Delhi in2001, Maharashtra and Assam in 2002, Madhya Pradesh in 2003 and Jammu & Kashmir on 2004. But what was even more significant was the effort made by some grassroots organizations to lead the people in asserting their right to information. Special mention must be made here of the Mazdoor Kisan Shakti Sangathan’s efforts in Bhim Tehsil of Rajasthan. They organized public hearings (jan sunwais) and people’s anger made one State Electricity Board engineer return in public, the amount he had taken from a poor farmer. Their slogan was “Hamara paisa, Hamara Hisab” (our money, our account).

The Hon’ble Supreme Court of India recognized the Right to Freedom of Speech and Expression as also implying right to information. Thus in the Bennett Coleman v. Union of India case (AIR 1973 SC 60) the S.C.I. ruled that:

“The right to freedom of speech and expression guaranteed by Article 19(1) (a) included the right to information.”

In the State of Uttar Pradesh v. Raj Narain case ((1975) 4 SCC 428), Mr. Justice Mathew stated that:

“It is not in the interest of the public to ‘cover with a veil of secrecy the common routine business…… the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."

In the People’s Union for Civil Liberties case (P.U.C.L. v. Union of India (2004) 2 SCC 476), R.T.I. was further elevated to the status of a human right, necessary for making governance transparent and accountable.

To quote from “Accessing the Judiciary and Achieving the Justice: Madabhushi Sridhar,”

“The Indian Judiciary is in fact the backbone of Indian access law. It was vehemently supporting the principles of transparency and accountability. Eminent Judges such as P.N.Bhagwati and V.R. Krishna Iyer were vociferous in seeking freedom of information and disclosure of records under the custody of the public authorities. Raj Narayan and S.B. Gupta judgements are the real pillars over which the whole edifice of access law is standing today.”

Awareness of R.T.I. among the masses

A survey conducted by Indian Institute of Journalism and New Media at Alliance Francaise (Right to Information: An Analysis by S.A. Palekar) has found that only 45 percent of the urban population is aware of R.T.I.. However, the R.T.I. Act is no doubt changing the mindset of the masses. To quote an instance, (Role of R.T.I. in Reforming the Indian Administration: S.K. Kataria), during the telecast of DD-2 programme “Charcha Mein” (October 26, 2008) it came in national limelight how the R.T.I. is changing the mindset of a common man. A Rickshaw puller in Bihar was not fully aware about the Hindi name of R.T.I. (Soochna ka Adhikar). He used to pronounce it as “Sochane ka Adhikar” (Right to Think). He entered in a BDO office and said, “Saheb, Ab Aap Jankari Dene se Mana Nahin Kar Sakte. Hamare Paas Sochane ka Adhikar Hai. (Officer, now you cannot deny exposure of information. We have right to think). Thus the difference made by the R.T.I.

Central Information Commissioner O.P. Kejriwal quotes (O.P. Kejriwal, “Right to Information : Myth or Reality in Commemorative Volume - cum - Proceedings, Global Meet on Corporate Communication, 15-17 March 2007, PRCI, Bangalore) an interesting episode : In 1764, an English traveler by the name Edward came to India and went round many places and finally came to the Taj Mahal. Wonderstruck he wrote in his diary: “Henceforth let the people of this world be divided into two categories - those who have seen the Taj and those who have not.” Similarly, probably we can say that today the people of India can be divided into two categories - those who are living with a mindset of pre- October 2005 and those who have adapted themselves to the post October 2005 scenario.

Bihar has shown the lead by becoming the first State to launch a helpline service for R.T.I. applicants. Special mention must also be made of the ‘E-Soochna’ Centre established at District Headquarters, Kullu in Himachal Pradesh to integrate R.T.I. with e-governance. In Karnataka e-groups take up the cause of R.T.I. applicants.

Attempts are being made to use “Daskathia” (a form of dance drama which was once popular at village fairs) to explain the nitty-gritty of the Right to Information Act and ways to use it in rural Orissa (Pioneer, Bhuvaneswar, 8 Aug 2007, Villagers to be made aware of R.T.I. Act through Daskathia). Chattisgarh has introduced the R.T.I. in school curriculum (Indian Express, Raipur, 18 January 2007, Chattisgarh puts a chapter on R.T.I. Act in school books). Rajasthan State ATI (HCM RIPA) prepared comic books titled ‘Jag Bhaya Jag’ and ‘Pappu Pas Ho Gaya’ to explain the significance of R.T.I. Act.

However, spreading awareness of R.T.I. Act is suffering from “Railway Coach Syndrome” wherein the passengers of an overcrowded railway coach are reluctant to let new passengers get in and once a new passenger gets in, he also shows the same behaviour. Similarly, a person who has undergone training and has knowledge of the R.T.I. Act is not willing to disseminate it to others [Right to Information Act and Good Governance: Rajvir S. Dhaka).

There have been success stories such as Sailesh Gandhi who invoked R.T.I. to unearth the brazen subsidy being given to the rich and the elite and Triveni, a poor woman living in the East Delhi slum colony for whom the R.T.I. Act came as a saviour to ensure that she got the right quantity of ration at the right price (A cleansing effect through the Right to Information: P. Mohan Rao and C.G.K. Murthy). Nine year old Pranav forced Delhi Police to register a F.I.R. to trace his lost bicycle by filing an application under the R.T.I. Act (The Dynamics of R.T.I. Act and its Implementation: Shiv Raj Singh and Aarushi Jain). Special mention must also be made of Ratnaji, a blind man of Rangaru village in Rajkot, whose R.T.I. application turned the one-man battle into a mass movement in the village (Vijay Singh Parmar, “Blind man opens eyes of villagers,” Times of India, September 10, 2008). Stories that have appeared in the media include that of Mazloom Nadaf, a seventy-year old rickshaw puller who got his home under Indira Awas Yojana, thanks to the R.T.I. Act and of the experience of an entire village in Bikaner district of Rajasthan who used the R.T.I. regime to expose black marketing.

Are organizations outside the “Government” set up reluctant to part with information?

The answer to this question is to be found in the article titled “The Right to Information Act 2005" by R.C. Iyer.

“The Bombay Stock Exchange (BSE) is presently a private company. Even though it discharges important public functions, it is not presently a public authority within the framework of the R.T.I. Act, 2005…. Since some information regarding names of certain companies and other details, admittedly available on this Exchange, were not being furnished by them, the litigant approached the SEBI (the Security and Exchanges Board of India), a public authority who have full powers of superintendence over this Exchange under the SEBI Act, to provide this information on the ground that they could access this information. The information officer and the appellate authority in SEBI both turned down the request to access and provide this information from a private body, its supervisory role over the BSE notwithstanding. In an important order dated June 19, 2009, the one member CIC has taken a view that since SEBI as market regulator has the power to demand and obtain from BSE this variety of information, it is open to and indeed required of SEBI to obtain this information from the private body (ie) the BSE and furnish it to the information seeker. In a matter before the Bombay High Court (BSE v. respondents CIC, SEBI and Yogesh Mehta, the applicant) SEBI have taken the following stand in the Bombay High Court the objective of the R.T.I. Act is to make the Government and its instrumentalities accountable to the citizen, and it is not concerned with the working of private bodies or information concerning them. It is also correct to say that right to information is confined to information held by or under the control of the public authority. Sub-section 2(f) only extends the reach of the control of information relating to a private body which can be accessed by a public authority under any law for the time being in force. This can only mean information which the public authority is routinely collecting from a private body, but which has not so far been received. This is information which belongs to the custody of the public authority. SEBI cannot be directed to obtain information under the SEBI Act from a private body for the purpose of providing it to an applicant under the R.T.I. Act because SEBI can exercise its powers under the SEBI Act only in pursuance of the objects of the SEBI Act.”

Does this not reveal the mindset of some organizations? Will the provisions of S. 22 of the R.T.I. Act overrule these arguments?

A landmark order on the issue as to whether the R.T.I. Act can be used to get information from private and autonomous bodies has been rendered by the Central Information Commission in Jahangir Gai v. Bureau of Secondary Education (in appeal No CIC/OK/A/ 2006). The case arose from the concern of parents who had admitted their children into an unaided school in Mumbai. The information that the management passed over to the parents at the time of admission was that the school is switching over from SSC to ICSE. But the promise of the management did not work out despite the passage of time. The parents approached the PIO (viz) Deputy Secretary, Ministry of HRD, Department of Secondary and Higher Education Bureau. The application was rejected solely on the ground that the Council for Indian School Certification Examination (CISCE) is an autonomous body. An appeal was preferred before the Joint Secretary of the department. It was also turned down narrating the very same ground. A second appeal was filed before the Central Information Commission. It was in this appeal that the CIC held that the Bureau of Secondary Education is duty bound to obtain the relevant information from the CISCE under S. 2(f) of the R.T.I. Act and supply the same to the applicant.

To quote Sri. M.M. Ansari, Information Commissioner at the CIC, “Information on telecom companies such as Bharti Airtel could be accessed through the Telecom Regulatory Authority of India, for banks through the RBI and on brokerages and foreign investors active in stock markets from the SEBI……. The companies would not have to appoint information officers to deal with R.T.I. demands the way Government entities do…. Only applications that served public interest would be dealt with, not those that sought to erode a company’s competitive position. You can ask a cola company for details on how much water it used and where the water came from, but not the formula of its drink. If there is any difference of opinion on what constitutes public interest, the commission will intercede.”

The state of mind of a hapless student (as quoted in a case study prepared by the Centre for Good Governance) appears to be worth quoting here:

“Anitha has enrolled for the P.G. Diploma in management offered by XPDMI Institute affiliated to a University which receives funds from the University Grants Commission. The final examination for the students in the second year is conducted by the University even though the mid term exams are the responsibility of the institute - which is a privately funded entity. The institute has to submit to all relevant records about the mid-term examinations to the University. Anitha wants to know about the norms laid down for evaluating the answer sheets of one of her mid-term examination papers and submits an R.T.I. application to the principal. The Management tells her that the institute is a private entity and is not bound by R.T.I. Act, 2005. A friend suggests that she should apply to the PIO of the University and that there is a chance that she might get the relevant information. The friend also suggests that she should first find out if the information she is looking for is disclosed proactively by the University.”

The case study ends with the following question:

Can the PIO reject Anitha’s application on the grounds that even though the information is held by the University it cannot be given since it pertains to a private entity?

The answer is and must be a firm “no”.

It is now a settled matter that there is no question of fiduciary relationship in respect of evaluated answer sheets and that disclosure has to be made when the evaluation is done by computer such as OMR sheet and the process does not create unnecessary burden on the system. But during the hearing of the case by the Full Bench, O.K. Kejariwal, Central Information Commissioner observed that “while disclosing the answer sheets, disclosure of identity of the examiners might pose a danger to the life and safety of the examiner” and the Commission maintained that evaluated answer sheets may be disclosed withholding the name of the examiner. The commission has felt that there should be lot of transparency in the conduct of examination and hence they should disclose marks secured by the successful candidates and also cut-off marks, if any. It has also been decided that whenever a candidate is seeking information about his own marks, it should also be revealed to him. It has also been held that proceedings of DPC.s or its minutes are to be disclosed. Information in regard to the selection criteria and reasons recorded by the selection committee or marks awarded by them under different categories should be made available.

Transparency would go a long way in helping to expose the corrupt and allowing the honest to do their jobs without fear or favour (Roy, Jayathilak Guha: “Right to Information: A Key to Accountable and Transparent Administration” in Alka Dhameja (ed), Contemporary Debate in Public Administration, Prentice Hall of India Pvt. Ltd. 2003). Transparency embraces not only ‘openness in Government,’ but also includes concepts such as simplicity and comprehensibility. As a general matter, transparency is born out of a desire to enhance democracy (Right to Information Act 2005: Triranjan Raj and Sanjeev Kumar Sharma). A South African poet once remarked that “democracy is speaking truth to power, to make truth powerful and power truthful.”

Applicability to aided colleges

The question as to whether aided colleges in the State of Kerala are public authorities as defined in Section 2(h) (d) of the R.T.I. Act, has been answered in the affirmative by the Hon’ble High Court of Kerala. In the judgement dated 22nd January 2010 in W.A. Nos 1990, 1914, 2010, 2011, 2012, 2013, 2026, 2027, 2029, 2030, 2080, 2091 and 2108 of 2007 (2010 (1) KLT 691 - Sree Narayana College v. State of Kerala) Hon’ble Chief Justice S.R.Bannurmath and Hon’ble Justice Thottathil B. Radhakrishnan observed that,

“The obligation of the State to secure the constitutional goals, including those envisaged in the Directive Principles of State Policy is canopied by all the constitutional beacons embodied in the preamble to the Constitution. In actual practice, this is worked out into reality even through private bodies which act as the conduit of carrying the State’s funds and other funds in the control of the Government to the needy in the form of food, shelter, clothing, education, medicinal support, infrastructure facilities and what not. The law that existed before enacting the R.T.I. Act… did not provide for any operational mechanism for the citizens to obtain information and therefore the assurance, that there is optimum use of the national wealth and other inputs for the public good…. This mischief and defect in the law that prevailed was remedied by the Parliament… The remedy provided by the Parliament is that wherever there is substantial financial support, directly or indirectly, by funds provided by the appropriate Government, the People, the ultimate repository of the sovereign power, have the right to know and therefore they have right to information and hence the opportunity to secure access to information.

Information Commissioner for Nagpur and Amravati has passed an order making it compulsory for private engineering and medical colleges to reveal information under R.T.I. to every applicant. In a similar order, the Andhra Pradesh State Information Commission (N. Subba Rao v. Principal, Bapatla Engineering College) has ordered that the said Engineering College will come under the purview of the provisions of the R.T.I. Act.

R.T.I. Act and Indirect Funding

The word “substantially financed” has not been specifically defined in the Act. This has been often led to wrong interpretations. A classic example is the case of Uttarakhand where no decision has been made on the issue of notifying N.G.O.'s as public authorities as required by the Act (Maithani B.P, Some Grey Areas of R.T.I. Act).

However, it is now an established law that (“Implementing Right to Information Act, 2005 : Raj Kumar Siwach] the indirect funding extends to cash, grants, tax exemption, reimbursement of expenses, auditing of accounts by the Comptroller and Auditor General of India, affiliation with Government bodies and land at concessional rates. The Indian Olympic Association, Delhi Electricity Distribution Company and Sanskriti Public School, New Delhi fall under the domain of public authorities. The Group Housing Societies registered under Societies Registration Act, 1860 and controlled by the Registrar, Cooperative Societies are bound to furnish information to the R.T.I. applicants.

The position as regards co-operative societies has been made unequivocally clear by the Hon’ble High Court of Kerala in the judgement in W.A.No.1417/09 etc. (dated 28th August 2009) (2009 (3) KLT 1001 - Thalapalam Service Co-operative Bank v. Union of India - Hon'ble Justice K.Balakrishnan Nair and Hon'ble Justice C.T. Ravikumar).

“The Registrar of Co-operative Societies and the officers exercising the powers of the Registrar have deep, pervasive and effective control over the Co-operative Societies. The Registrar or any other officer exercising the powers of the Registrar, can access any information from any Co-operative Society.” Therefore the court agreed with the findings of the learned Single Judge that even if a Co-operative Society is a private body, information can be accessed by the Information Officer concerned and furnish the same to any person.

Central Information Commissioner has opined in an appeal under R.T.I. Act (Role of R.T.I. in Reforming the Indian Administration: S.K. Kataria) that all the institutions including Shiromani Gurudwara Prabandhak Committee receiving financial help from Government should come under the R.T.I.. In its Full Bench decision, the Central Information Commission directed the Government of India to release the grant-in-aid to N.G.O.'s only after ensuring that the NGO adheres to the system of R.T.I..

Recommendations of the second ARC

To quote Sri. S.L. Goel (Right to Information & Administrative Reforms, The Indian Journal of Public Administration, Vol L III, No 3, July-Sept 2007) “R.T.I. would provide open surgery to administration. R.T.I. & administrative reforms are two sides of the same coin.” According to Transparency International, if India were to reduce corruption to the level that exists in Scandinavian countries, investment could be enhanced by 12 percent and GDP growth rate by 1.5 percent per annum. This by itself is a good reason as to why we should promote access to information.

Notable studies on the R.T.I. regime include the Second Administrative Reforms Commission (2006), Tracking Right to Information in Eight States (2007) (conducted by Society of Participatory Research in India (PRIA)) and Action Research Villages: A Right to Information Campaign (2008) (published under the Poorest Area Civil Society Programme (PACS)). In this connection, the recommendations of the second Administrative Reforms Commission need special mention:

“Organisations which perform functions of a public nature that are ordinarily performed by Government or its agencies and those which enjoy natural monopoly may be brought within the purview of the Act.

Norms should be laid down that any institution or body that has received 50% of its annual operating costs, or a sum equal to or greater than Rs. 1 crore during any of the preceding 3 years should be understood to have obtained ‘substantial funding’ from the Government for the period and purpose of such funding.

Any information which, if it were held by the Government, would be subject to disclosure under the law, must remain subject to such disclosure even when it is transferred to a non-Government body or institution.

This could be achieved by way of removal of difficulties under Section 30 of the Act.”

It is heartening to note that the Government has accepted the recommendations in principle.

Equally relevant are the observations of Sankhari, Debashish (Right to Information as a Human Right and Developments in India, Commonwealth Human Rights Initiative, http:/www.humanrightsinitiative.org/programs/ai/rti/india/articles/R.T.I.%20as%20a %20Human%20 Right%20 and %20 Developments%20in %20India.pdf).

“Right to Information is usually seen as a right to seek Government - held information. In reality it is a right to seek greater accountability from organizations and institutions working in the public domain. Therefore the law must make it binding on private bodies to disclose certain kinds of information that could affect the public health, safety, environment etc.”

The success of R.T.I. in India is a challenge to our commitment to the public cause. Right to information has to mature and translate into duty to inform. Though it is a landmark legislation, we should not forget that it is just a stepping stone towards bringing about lucidity in the working of democracy. Rejecting an R.T.I. application that sought information on an MOU signed with Dow Chemicals International Pvt Ltd for starting a facility to manufacture some chemicals at Chakan near Pune does not augur well for a regime that believes in people’s participation. This is especially true in the light of the fact that Dow is a multinational firm responsible for producing Agent Orange and Napalm - used in the Vietnam war and produces ozone - depleting C.F.C.'s and the widely used insecticide, Dursban. In an increasingly knowledge based society where information and access to information hold the key to resources, benefits and distribution of power, seeking refuge in the loopholes of law will result in unwarranted narrowing of the rights which cannot be encouraged. It injures the people it seeks to serve, breeds distrust, dampens the ferrous of its citizens and mocks their loyalty.

R.T.I. Act and Banks

The impact of R.T.I. Act on banks can be summarized in the words of P. Lakshminarayanan (The Right to Information - Present Status and Issues): “… the Right to Information Act unveils the secrecy and will bring far-reaching consequences and reforms in the democratic system when the law will develop gradually and settle down and banks will not be immune from the clutches of the Act. Banker’s obligation of fidelity and secrecy of customer’s account may be protected to some extent but other areas of banking function which have direct impact on public at large and shareholders may not get such protection. This law is poised to open flood gate for outflow of information….. Bankers, being trustees of public money and stake holders/share holders have to be transparent and follow the policies laid down by R.B.I. and bank’s board in the matters of write off of bad debts, NPA position and staff accountability on compromise settlement of defaulters accounts, concentration of credit to industrial groups, hiring of branch premises, recovery position, waiver of legal action in individual accounts, curtailing wasteful expenditure, bank frauds and involvement of employees in frauds etc. Information on these corruption-prone areas cannot be ruled out in times to come with gradual development of law of Right to Information…. However, presently such matters are not open for disclosure to public except disclosures required to be made in the balance sheet but if some complaints relating to such matters are made to the Central Commission there is possibility that Commission may direct the banks to be open for disclosure.”

The banker’s obligation to keep secrecy of the account of the customer was initially not ingrained into any legal set up. But after the English court judgement in 1924, (Tourneir case (1924) 1 K.B. 46) “this obligation became implied in terms of the contract between banker and customer which imposes obligation on the banker not to disclose the condition of his customer’s account except on reasonable and proper occasion and the obligation to observe secrecy does not end, even with the closing of the customer’s account of termination of banker-customer relationship or on death of the customer.”

After banks were nationalized, Section 13 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and 1980 imposed upon banks a legal obligation as to fidelity of customer’s account. But the said obligation is conditional. Disclosure under court order and under compulsion of laws such as Cr.PC, RBI Act, FEMA, SARFAESI Act etc. are justified.

The banker’s duty to maintain secrecy as regards account of the customer finds its place in the exemption clauses (viz) Section 8(1) (d) (e) (j) of the R.T.I. Act.

8(1) (d): Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

8(1) (e): Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

8(1) (j): Information which relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual.

Indian Banks Association has issued guidelines calling attention to Section 8(1)(j) informing that banks can deny information about their customers. This has also the stamp of approval of the Hon’ble Supreme Court in the judgement in District Registrar & Collector v. Canara Bank (2005) 1 SCC 496. In the said judgement the Hon’ble Court has held that banker’s obligation of secrecy as a part of customer’s right to privacy is to be recognized as a fundamental right. The Central Information Commission has also held that PAN number of a person should not be disclosed. But banks are duty bound to adhere to the requirements contained in Sections 4 and 5 of the R.T.I. Act. They also cannot escape from the obligation to forward information to the concerned Ministry so that the Ministry can meet the requirements laid down in Section 25(2) of the R.T.I. Act which stipulates that

“Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission and State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section.”

The obligations of the banks as public authorities to maintain a directory of its employees, monthly remunerations received by each of its employees and publish the same on the website have been emphasized by the Central Information Commission in a complaint against PNB. Accordingly, the Commission directed the PNB to comply with the relevant sections of the Act and disclose the information sought within 15 days (The Statesman dated 14.6.2006).

Conclusion

“The real Swaraj will come not by the acquisition of authority by a few but the acquisition of capacity by all to resist authority when abused,” thus spoke Mahatma Gandhi. This is the paradigm shift envisaged in the R.T.I. Act. India is the 48th country to implement R.T.I. Change of mindset from secret maintenance of information to maximum voluntary disclosure is at the heart of the R.T.I. regime. Through the Act, we have moved from an opaque system to a transparent one, where the citizen will be the true centre of power. Disclosure of information is now not a transgression, but an obligation. Our R.T.I. empowered and enlightened citizens have been able to enforce the majesty of the citizenry - by getting roads repaired, receiving old age and widow pensions in time, getting admissions in educational institutions and so on. Thus the implementation of the Act has seen “the indescribable lusture of truth, a million times more intense than that of the sun we daily see with our own eyes.” It has led to openness, integrity and accountability.

But we have miles to go. We have to shift from “personalized despotism to authority coupled with accountability.” Often organizations within and outside the Government set up, whittingly or unwhittingly, resort to actions that go against the spirit of the Act. Curtailing this tendency needs a deeper appreciation of democratic processes and a gradual transformation of our individual and collective relationships with the State and social structures. A rights-based enactment like the Act should receive a liberal interpretation. The democratic space will continue to expand only if we continue to push. The maze of barriers and procedures that impede information flow have to be swept aside. If the State is elected through a democratic process, then its characteristic must be reflected in all its activities, with people’s participation at the core. R.T.I. must therefore find its place beyond the legal and formal systems of fundamental legislation. The strength and sustenance for an R.T.I. movement must come from those who believe in values behind the law. The bare acts represent the legal core and the picture is incomplete without an understanding of the schisms that emerge when law is applied.

Plato himself has preached that maladministration is more related to one’s mental make up and cannot be eradicated by enacting more laws rather by developing a frame of mind to execute laws in hand. In an era where globalization and liberalization are the order of the day, the private sector has also to be brought into the system. It should not be forgotten that when information is denied, what gets occluded is not just access to documents, but a whole paradigm of democratic participation.

Suggestions

If necessary, the law should be amended keeping in mind the spirit and intention of its founding fathers. One such amendment should be to eliminate the existing shades of grey as regards organizations outside the Government set up and the private sector in particular. All of them should be brought under the ambit of the Act in no unclear terms. Awareness should be created among the people about the R.T.I. and a support structure should be developed to enable people to claim their entitlements - both within and outside the Government set up. As suggested by the second Administrative Reforms Commission, the Official Secrets Act, 1923 must be repealed and oath of transparency instead of secrecy must become the order of the day. Let us not forget the words of Professor Harold Laski, “every State is known by the rights it maintains.”

References

1. Action Research Villages: a Right to Information Campaign: a report. New Delhi: Development Alternatives, 2007

2. Benn, Tony: The right to know: the case for freedom of information to safeguard our basic liberties. Nottingham: Institute for Workers’ Control, 1978

3. Chaturvedi, T.N. ed. Secrecy in Government, New Delhi: Indian Institute of Public Administration, 1980

4. Devasher, Mandakini: Your guide to using the Right to Information Act, 2005. New Delhi: Commonwealth Human Rights Initiative, 2006

5. Dhaka, Rajvir, S.: Right to Information Act and Good Governance. New Delhi, The Indian Journal of Public Administration, July-September 2009

6. Goel, S.L: Right to Information and Good Governance. New Delhi: Deep & Deep, 2007

7. Goel, S.L: Right to Information & Administrative Reforms, New Delhi, The Indian Journal of Public Administration, July-September 2007

8. Guha Roy, Jayatilak: Right to Information: initiatives and impact. New Delhi: Indian Institute of Public Administration, 2006

9. India, Administrative Reforms Commission (Second), Report on Right to Information: Master key to Good Governance, New Delhi: Administrative Reforms Commission (Second), 2006, Chairman: M.Veerappa Moily

10. Iyer, R.C: The Right to Information Act, 2005 - A Few Legal Issues that need consideration, New Delhi, The Indian Journal of Public Administration, July-September 2009

11. Jain, Rajeev Kumar: Impact of the Right to Information Act on the Indian Bureaucracy. New Delhi: Indian Institute of Public Administration, 2009

12. Kataria, S.K: Role of R.T.I. in Reforming the Indian Administration. New Delhi. The Indian Journal of Public Administration, July-September 2009

13. Kejeriwal, O.P.: Right to Information: Mythor Reality, Bangalore, PRCI (Commemorative Volume-cum-proceedings, Global Meet on Corporate Communication) 15-17 March 2007

14. P. Lakshminarayanan: The Right to Information: Present Status and Issues: A Banker’s perspective. New Delhi, The Indian Journal of Public Administration, July-September 2009

15. Madan Mohan: Right to Information Act 2005: Roles and Responsibilities of the Public Information Officers and the Public Authorities, New Delhi: Indian Institute of Public Administration 2007

16. Maheshwari, Anil and Mustafa, Faizan. Right to Information: a no-win situation. Delhi: Ajanta Publications, 1998

17. Maheshwari, Shri Ram. Open Government in India, New Delhi: Macmillan, 1981

18. Mander, Harsh. The movement for the right to information in India: people’s power for the control of corruption. Pune: National Centre for Advocacy Studies, 2000

19. Mendel, Joby. Freedom of Information: a comparative legal survey. New Delhi: UNESCO, 2004

20. Mentschel, Stefan: Right to Information: an appropriate tool against corruption? New Delhi: Mosaic Books, 2005

21. Mukhopadhay, Asok Kumar ed. Right to Information, Kolkata: Administrative Training Institute, 2007

22. Palekar, S.A. : Right to Information: An Analysis, New Delhi, The Indian Journal of Public Administration, July-September 2009

23. Rao, Mohan. P and Murthy, C.G.K: A Cleansing Effect through the Right to Information. New Delhi: The Indian Journal of Public Administration July-September 2009

24. Roy, Jayathilak Guha: Right to Information: A Key to Accountable and Transparent Administration, Prentice Hall of India Pvt. Ltd. (Contemporary Debate in Public Administration), 2003

25. Sankhari, Debashish: Right to Information as a Human Right and Developments in India, Commonwealth Human Rights Initiative, http://www.humanrights initiative.org

26. Shiv Raj Singh and Aarushi Jain: The Dynamics of RTI Act and its Implementation in Himachal Pradesh New Delhi, The Indian Journal of Public Administration, July- September 2009

27. Siwach, Raj Kumar: Implementing Right to Information Act 2005, New Delhi, The Indian Journal of Public Administration, July-September 2009

28. Sridhar, Madabhushi: Accessing the Judiciary and Achieving the Justice - New Delhi. The Indian Journal of Public Administration July-September 2009

29. The Indian Express, Raipur, 18th January 2008

30. The Pioneer, Bhuvaneshwar, 8th August 2007

31. The Statesman, 14th June 2006

32. The Times of India, 10th September 2008

33. Triranjan Raj and Sanjeev Kumar Sharma: Right to Information Act 2005: A Critique in the Governance and Administrative Reforms Perspective, New Delhi, The Indian Journal of Public Administration, July-September 2009.

* Secretary to Government of Kerala, Parliamentary Affairs Department.

Implementation of Section 30 of Advocates Act – Letter Addressed to Hon’ble Law Minister, Union Government

Unsettled Notice Jurisdiction

R.T.I. Act : Its Applicability to Organisations Outside the "Government" Set up

Random Thoughts......... Impleading Information Commission before the High Court

Forgive Jurisdiction