Freedom of Information: A Comparative Legal Survey - Federation of ...

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The initial indications are that implementation of the Law has been positive, although there are also
persistent reports of bureaucratic resistance. A survey conducted by civil society after two years indicated
three main problems with implementation: low levels of awareness about the Law among both citizens
and offi cials; poor political and administrative will to implement the Law; and a lack of support from
government for information commissions. At the same time, there were a number of positive fi ndings,
including that the Law is being used by a range of actors – from remote villagers to urban elites – and for a
wide range of purposes – not only as an anti-corruption measure but also to solve personal problems and
to address broad social and policy issues. Of particular interest was the fact that the Law was being used
as a mechanism to address grievances. Indeed, the government has frequently responded to requests by
resolving the underlying grievance within the 30-day period for responding to requests for information, so
as to remove the motivation for pursuing the latter. 178
The Right of Access
Section 3 of the RTI Law states that, subject to its provisions, all citizens shall have the right to information.
The right to information is defi ned in section 2(j) as the right to information accessible under the Law.
Although rather a roundabout way of putting it, this is nevertheless a guarantee of the right to access
information held by public bodies.
The Law does not include a statement of its purpose, although the full title of the Law refers to it as
setting out a practical regime for realising the right to access information held by public bodies in order to
promote transparency and accountability. The preamble, furthermore, recognises that transparency and
an informed citizenry are vital to democracy, to controlling corruption and to ensuring public accountability.
It also recognises that access to information is likely to confl ict with other public interests and the need to
“harmonise these confl icting interests while preserving the paramountcy of the democratic ideal”. Taken
together, these are a strong and balanced statement of the importance of the right to information which
provides a good interpretive background to the Law.
Information is defi ned in section 2(f) of the RTI Law broadly to include any material in any form, including
information relating to any private body which can be accessed by a public body under any other law. This
last appears to be somewhat limited and would presumably not apply, for example, to information which a
public body could access under a contract, a not uncommon situation in the modern world of contracting
out services. However, it does at least cover all information held directly by public bodies.
A long list of examples of possible forms of recording information – including memos, emails, advices,
logbooks, electronically held data and even samples – is provided. A record is separately defi ned in section
2(i) as any document or manuscript, microfi lm or facsimile, reproduction or any material produced by a
computer. This is distinctly narrower than the defi nition of information – for example it would not appear to
include samples – but since the primary right of access as defi ned by the Law applies to information, this
should not limit the right of access in practice.
A public body (“public authority” is the term used in the Law) is defi ned in section 2(h) as any “authority
or body or institution of self-government” established by or under the constitution, any law passed by
either the parliament or a state legislature, or any notifi cation made by government, and includes any body
owned, controlled or substantially fi nanced by government, including a non-governmental organisation.
This is again a broad defi nition, although it does not, as some right to information laws do, include private
bodies undertaking public functions without public funding.
As noted above, the right of access is limited in scope to citizens (section 3). Section 1(2) of the Law
also includes a geographic limitation, whereby it extends to the whole of India, apart from the State of
Jammu and Kashmir. There are particular constitutional reasons for this; 179 it is, nevertheless, a signifi cant
limitation, although Jammu and Kashmir does have its own right to information law, the Jammu and
Kashmir Right to Information Act, 2004. 180