Weak links abound in empowering legislation

Activists involved in the right to information campaign declare in a lighter vein that the list of government departments which are open to the Act is much shorter than the list of out of bound departments. The list, apart from the fact that the Right to Information Act is not judicially enforceable is the weakest link in an otherwise empowering legislation.

Section 8 of the Act lists not just departments but, also areas of government and judicial work which are exempt from the RTI. Any information prejudicial to sovereignity and security of the country, all confidential information, decisions of the Cabinet, judicial proceeding meant to be kept confidential are all out of bounds.

These prohibitions correspond to the departments of police, paramilitary, Intelligence Bureau, the Research and Analysis Wing and any confidential information imparted by a foreign government and more significantly, file notations by government servants on government documents.

Only if the applicant can make a case that the benefit accruing from the information far outweighs violation of priviledge will the information be given out. Prime Minister Manmohan Singh defended the decision to keep file notations out of the purview of the RTI by saying that it would "preserve the independence of an officer while taking decisions."

Other bureaucrats however say that notations on files can prove to be clinching evidence in corruption cases or cases where undue favour has been shown in awarding contracts.

"It is a way of tracking the levels of connivance or whether somebody down the line did raise objections etc," said, a senior bureaucrat.Perhaps the ambiguous part of the Act is section 11, which deals with third party information. This deals with access to information which a third party has submitted to the government and has been treated as confidential.

This includes information related to taxation and property, government officers' annual confidential reports, hospital records with the government telephone records etc.

Any person can ask for information about a third party and the public information officer will have to send a notice to the third party informing him or her that such information is being sought.

If the PIO is satisfied that there is a case being made for disclosure outweighing the right to privacy of the third party, such information may be given.

While the third party is entitled to defend his/her right to privacy, the PIO has the discretion to decide whether the information can be given and hence the matter is therefore open to interpretation.

And what does one do if one feels that rights are being violated by the Act, or that an unyielding bureaucracy has been successful in blocking information to from all avenues. The one big lacunae in this act is that it is not juticiable through a court of law.

That is unlike other rights enshrined in the Constitution, a citizen cannot get redress from the courts. "This proves that the citizen will have to depend on the the system of appeals, where the biggest penalty is the imposition of a fine," says Partha J Shah of the National Commission on People Right to Information (NCPRI).

The next turf battle in the quest for transparency is to bring the Act under the purview of courts and to bring institutions like the police within its ambit.