PARLIAMENT OF INDIA
RAJYA SABHA

 DEPARTMENT-RELATED PARLIAMENTARY
STANDING COMMITTEE ON HOME AFFAIRS

 SEVENTY-EIGHTH REPORT
ON

FREEDOM OF INFORMATION BILL, 2000

(PRESENTED TO RAJYA SABHA ON  25TH JULY, 2001)
     (LAID ON THE TABLE OF LOK SABHA ON  25TH JULY, 2001)

RAJYA SABHA SECRETARIAT
NEW DELHI
JULY, 2001/SR AVANA, 1923 (SAKA)

C O N T E N T S

 

1.         COMPOSITION OF THE COMMITTEE (1999-2000)                                                            

 

2.         COMPOSITION OF THE COMMITTEE (2001)                                                       

3.         INTRODUCTION                                                                                                                                                                                         

4.         REPORT                                                                                                                        

 

5.      RELEVANT MINUTES OF THE MEETINGS OF THE COMMITTEE                                    

 

6.          ANNEXURES                                                                                                           

 

I           The Freedom of Information Bill, 2000                                                 

II          List of Witnesses who gave Oral Evidence before the Committee          

III        Views/Suggestions of Individuals/Organizations on Freedom of Information Bill, 2000 and Response of Government thereon

COMPOSITION OF THE COMMITTEE  (1999-2000)

 

1.       Shri Pranab Mukherjee   -  Chairman

         RAJYA SABHA

2.       Shri Hiphei                                                    

§ 3.  Shri Surender Kumar  Singh 

4.      Shri Sangh Priya Gautam

5.      Dr. L. M. Singhvi                 

6.      Shri S. Ramachandran Pillai 

7.             Shri K. M. Saifullah             

8.             Shri C. M. Ibrahim

9.             Shri Raj Mohinder Singh

10.         Shri C. P. Thirunavukkarasu

11.      Shri Drupad Borgohain       

12.      Shri Kuldip Nayyar             

j  13 .     Dr.(Smt.) Joyasree Goswami Mahanta          

o  14.      Shri Hansraj Bhardwaj

% 15.      Shri Jayanta Bhattacharya

            LOK SABHA

16.    Shri Manabendra Shah        

17.    Shri Lal Bihari Tiwari           

18.         Shri Vinay Katiyar               

19.         Shri Prakash Mani Tripathi   

20.         Shri Anadi Sahu                   

* 21.                                                  Maj. Gen. (Retd.) B.C. Khanduri        

22.    Shri Ram Nagina Mishra      

23.    Shri Vaidya Vishnu Datt       

24.    Smt. Jayashree Banerjee      

25.    Shri Rajen Gohain                

26.    Shri N. Janardhana Reddy

27.    Shri Rajkumar Wangcha      

28.    Shri Iqbal Ahamed Saradgi

29.    Smt. Nisha Chaudhary         

30.    Shri Jitendra Prasada           

31.    Shri Dahyabhai V. Patel       

32.    Shri M. O. H. Farook

33.    Shri Samar Choudhury         

34.    Shri Subodh Roy                 

35.         Dr. S. Venugopalachari

36.         Shri Beni Prasad Verma       

37.        Shri Raghuraj Singh Shakya

38.        Shri Arun Kumar                  

39.    Shri Suresh Ramrao Jadhav

40.    Shri P. H. Pandian                

41.    Shri Shriniwas Patil               

42.        Dr. Raghuvansh Prasad Singh                         

43.        Dr. Jayanta Rongpi               

44.        Shri S. K. Bwiswmuthiary

* 45.    Shri Vijay Goel

 

*Nominated w.e.f. 6th April, 2000.

COMPOSITION OF THE COMMITTEE  (2001)

 

1.         Shri Pranab Mukherjee- Chairman

 

            RAJYA SABHA

2.         Shri Hansraj Bhardwaj

3.         Shri Hiphei

4.         Shri Surendra Kumar Singh

5.         Shri Sangh Priya Gautam

6.         Dr. L.M. Singhvi

7.         Shri S. Ramachandran Pillai

8.         Shri K.M, Saifullah

9.         Shri C.M. Ibrahim

f  10.      Shri Raj Mohinder Singh

11.       Shri C.P. Thirunavukkarasu

12.       Shri Drupad Borgohain

13.       Shri Kuldip Nayyar

14.       Dr.(Smt.) Joyasree Goswami Mahanta

15.       Shri Jayanta Bhattacharya

 

            LOK SABHA

16.       Shrimati Jayashree Banerjee

17.       Shri S.K. Bwiswmuthiary

ª18.        Shrimati  Nisha Chaudhary

19.       Shri Samar Chaudhary

20.       Shri M.O.H. Farook

21.       Shri Vijay Goel

22.       Shri Rajen Gohain

23.       Shri  Suresh Ramrao Jadhav

24.       Shri Vinay Katiyar

25.       Shri Arun Kumar

26.       Shri Ram Nagina Mishra

27.       Shri P.H. Pandian

28.       Shri Dayabhai Vallabhai Patel

29.       Shri Shriniwas Patil

* 30.   Shri Jitendra Prasada

31.       Shri Subodh Ray

32.       Shri N. Janardhana Reddy

33.       Dr. Jayanta Rongpi

34.       Shri Anadi  Charan Sahu

35.       Shri Iqbal Ahmed Saradgi

36.       Shri Manabendra Shah

f   Ceased  to be Member   w.e.f. 1st  March, 2001.

ª  Expired on 30th  January,2001.

*   Expired on 16th  January, 2001.

 

37.       Shri Raghuraj Singh Shakya

38.       Shri Vishnu Datta Sharma

39.       Dr. Raghuvansh Prasad Singh

40.       Shri Lal Bihari Tiwari

41.       Shri Prakash Mani Tripathi

f  42.      Dr. S. Venugopal

43.       Shri Beni Prasad Verma

44.       Shri Raj Kumar Wangcha

¨ 45.      Shri  Harin Pathak

© 46.      Shri E. Ponnuswamy

 

SECRETARIAT

 

Shri Satish Kumar, Additional Secretary

Shri Tapan Chatterjee, Director

Shri A.K. Singh, Under Secretary

Shri Narendra Kumar, Research Officer

Shri Ashok Kumar Sahoo, Committee Officer

 

f   Ceased to be Member w.e.f. 19th  March, 2001 on being nominated to Committee on  Human Resource Development.

¨  Nominated w.e.f. 20th  February, 2001.

©      Nominated w.e.f. 8th  March, 2001.

INTRODUCTION

 

            I, the Chairman of the Department-related Parliamentary Standing Committee on Home Affairs having been authorised by the Committee to submit the Report on its behalf, do hereby present this Seventy-eighth Report of the Committee on the Freedom of Information Bill, 2000*.

2.         In pursuance of the Rules relating to the Department-related Parliamentary Standing Committees, the Chairman, Rajya Sabha in consultation with the Speaker, Lok Sabha referred ** the Freedom of Information Bill, 2000 (Annexure-I), as introduced in the Lok Sabha on July 25, 2000 and pending therein, to the Committee on 14 September 2000 for examination and report.

3.         The Committee considered the Bill in five sittings held on 23 October 2000, 24 January, 8 February, 25 June and 10 July 2001.

3.1       The Committee heard oral evidence of the Secretary, Ministry of Personnel, Public Grievances and Pensions on the Bill in its sitting held on 23 October 2000.

3.2       In its sitting held on 24 January and 8 February 2001, the Committee heard prominent organizations and eminent experts connected with the issue (Annexure-II) on the various provisions of the Bill.

3.3       In its sitting held on 25 June 2001, the Committee took up clause-by-clause consideration of the Bill.

3.4       The Committee considered the draft Report in its sitting held on 10 July 2001 and adopted the same. It also decided that the evidence tendered before the Committee may be laid on the Table of both the Houses of Parliament.

4.         In the course of its deliberations, the Committee has made use of the background note on the Bill received from the Ministry of Personnel, Public Grievances and Pensions, similar legislations of various States of India and foreign countries, papers received from organizations/experts mentioned in Annexure-I, replies of the Ministry, organizations and experts to the queries raised by the Members on the Bill in the meetings, comments of the Ministry (Annexure-III) on the suggestions/observations made by organizations/experts connected with the Freedom of Information Bill, 2000.

5.         For facility of reference and convenience, observations and recommendations of the Committee have been printed in bold letters in the body of the Report.

6.         On behalf of the Committee, I would like to acknowledge with thanks the contributions made by experts/organizations who deposed before the Committee and submitted their valuable suggestions on the subject matter of the Bill.  A special word of thanks is due to Commonwealth Human Rights Initiative who rendered valuable assistance to the Committee and its Secretariat in the course of examination of the Bill.

NEW DELHI;

July 10, 2001.

PRANAB MUKHERJEE

                                                                                                                                Chairman

                                                                                                  Committee on Home Affairs

 

 

*Published in the Gazette  of  India Extraordinary Part-II, Section 2, dated 25th July 2000.

**Rajya Sabha Parliamentary Bulletin Part II, No.38341 dated 15th  September, 2000.

REPORT

 

            The Freedom of Information Bill, 2000 seeks to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto.

2.         Article 19 of the Constitution ensures to the citizens a wide range of freedoms.  The Supreme Court has held that the right to know and be informed would make the right to free speech and expression complete.  Besides, freedom to obtain access to information that has a bearing on the sustenance of life would functionalise the right to life and livelihood.

2.1       There is a world-wide trend in democratic countries to have a legislation, for assuring to the citizens the right of access to information of the public authorities, as part of the effort to promote openness, transparency and accountability in the administration and to ensure greater participation of the people in decision making.

2.2       Legislation on Freedom of Information in democratic countries like the USA has been enacted way back in 1966.  Other countries like Japan, Ireland, the Netherlands, Australia, Canada, France, the United Kingdom, New Zealand and South Africa have also enacted similar legislations to enforce a measure of accountability and transparency on the agencies of the State.

2.3       In India also, at the State level, Tamil Nadu and Goa passed their own Acts on the right to information in 1997.  In Rajasthan, the Bill is awaiting Cabinet approval.  The State of Maharashtra also brought forth its ‘Maharashtra Right to Information Act, 2000’ in August 2000.  The State of Karnataka has also promulgated the Karnataka Information Ordinance, 2000, before the Centre came up with a Bill to ensure public access to information.

3.         At the Central level, on 2 January, 1997, the Government set up a Working Group on Right to Information and Transparency under the Chairmanship of Shri H.D. Shourie to examine the feasibility and the need for either a full-fledged Right to Information Act or its introduction in a phased manner to meet the needs of open and responsive governance and also to examine the framework of rules with reference to the Civil Services (Conduct) Rules and the Manual of Office Procedure. 

3.1       The Working Group submitted its report on 21 May 1997 with a proposed Bill titled ‘The Freedom of Information Bill, 1997’.   The report of the Working Group was forwarded to all ministries of the Government of India as also to all States/Union Territories for their comments.  In the meanwhile, the statutory scheme prepared on the basis of the deliberations in the Working Group was circulated for discussion during the Chief Ministers’ Conference on “Effective and Responsive Government” held on 24 May 1997 at New Delhi.  The statutory scheme received the broad approval of the Conference which recognized the need for enactment of such a law.

3.2       The report of the Working Group along with responses of the Union Ministries and State/Union Territory Governments thereon, was placed before the Committee of Secretaries.  The Committee broadly endorsed the Freedom of Information Bill, 1997 recommended by the Working Group subject to certain modifications.  The draft Freedom of Information Bill, 1997, given by the Working Group, was accordingly revised with the help of the Legislative Department and placed before the Cabinet for approval.  The Cabinet, however, decided to refer the Bill to a Group of Ministers.  Accordingly, it was placed before the Group of Ministers constituted by three successive Governments which considered it in eight meetings held between October 28, 1997 and February 2, 2000.  The Group of Ministers approved the Bill subject to a few changes.  In the light of the changes suggested by the Group of Ministers, the draft Freedom of Information Bill, 1997 was further revised and was placed before the Cabinet for approval as the Freedom of Information Bill, 2000.  The Cabinet, in its meeting held on 13 May 2000, approved the Bill.

3.3       After its approval by the Cabinet, the Freedom of Information Bill, 2000 was introduced in the Lok Sabha on 25 July 2000.  It was referred to this Committee by the Chairman, Rajya Sabha on 14 September 2000 for examination and report.

4.         Here, it would be pertinent to mention that the Department-related Parliamentary Standing Committee on Home Affairs, in its 38th Report on the Demands for Grants (1997-1998) of the Ministry of Personnel, Public Grievances and Pensions had observed that Right to Information Act for promotion of open and transparent Government was a long overdue measure and in the view of the Committee was quite consistent with the democratic ideals. Accordingly, the Committee felt that there should be a full-fledged Right to Information Act, as it would go a long way in firmly establishing the culture of accountability.   In this backdrop, the Committee recommended    as follows:

“ The Committee emphatically recommends that the refusal of a request must be appealable to an authority whose ruling should be final and binding.  Further, as the subject ‘Right to Information’ is not specifically provided for in the Seventh Schedule to the Constitution, the Union through the residuary clause (97) of List I, has the right to legislate on the subject.  The Committee recommends that the Ministry take up this matter urgently to facilitate early enactment of the ‘Right to Information Act”. *

5.         The Statement of Objects and Reasons of the Bill states that in our present democratic frame work, free flow of information for the citizens and non-government institutions suffers from several bottlenecks including the existing legal frame work, lack of infrastructure at the grass root levels and an attitude of secrecy within the civil service as a result of the old frame work of rules.  The government proposes to deal with all these aspects in a phased manner so that the Freedom of Information Act becomes a reality consistent with the objective of having a stable, honest, transparent and efficient government.  Moreover, the proposed Bill will enable the citizens to have an access to information on a statutory basis.  With a view to further this objective, Clause 3 of the proposed Bill specifies that subject to the provisions of this Act, every citizen shall have right to freedom of information.  Obligation is cast upon every public authority   under Clause 4 to provide information and to maintain all records consistent with its operational requirements duly catalogued, indexed and published at such intervals as may be prescribed by the appropriate Government or the competent authority.

6.         The Secretary, Ministry of Personnel, Public Grievances and Pensions in his deposition before the Committee on 23 October 2000, traced the genesis of the Bill and gave a brief   outline of its salient features. He stated that the basic feature of the Bill lay in Clause 3 which guaranteed that all citizens should have freedom of information subject to the provisions of this Act.  It cast an obligation on every public authority to provide information and to make all records, consistent with its operational requirements, duly catalogued and published at such intervals as may be prescribed by the appropriate government or the competent authority.  He stated that the ambit of the Bill covered the two Houses of Parliament, the State legislatures, the Supreme Court, High Courts and Subordinate Courts including their administrative offices, constitutional authorities like the Election Commission, Comptroller and Auditor General of India and the Union Public Service Commission.

_______________________________________________________________________

* 38th Report (1997), Committee on Home Affairs , page- 9, para-26.

6.1       He further stated that Clauses 8 and 9 were the two very important clauses of the Bill.  These clauses related to the specific categories of information which had been exempted from disclosure.  Touching upon the appellate mechanism in regard to grant of information, the Secretary stated that if grant of information was refused by the Public Information Officer, the Bill provided for appeal to such authority as may be prescribed by the Government.  The second appeal lay with the Central or State Governments or the competent authority.  Referring to the bar on the jurisdiction of courts, he stated that the jurisdiction of subordinate courts to entertain any suit, application or proceedings in respect of an order made under the proposed Act had been barred.  However, the writ jurisdiction of the Supreme Court and High Courts was still there.

7.         The Committee, in its meeting held on 24 January 2001, heard the representatives of Commonwealth Human Rights Initiative (CHRI), Dr. Madhav Godbole, former Union Home Secretary, Shri A.G. Noorani, Senior Advocate and Prof. Manubhai Shah, Managing Trustee, Consumer Education and Research Society (CERS).  On 8 February 2001, it heard the representatives of the Mazdoor Kisan Shakti Sangathan and Justice P.B. Sawant, Chairman, Press Council of India.  In addition to this, the Committee received written suggestions from Shri B.G. Deshmukh, former Cabinet Secretary. 

 

7.1       The suggestions/amendments put forward by the above-mentioned organizations/individuals are summarized as below:

(i)                  The Bill should be rechristened as “Right to Information Bill” instead of “Freedom of Information Bill”;

(ii)                The applicability of the Act should not be restricted only to citizens but to non-citizens as well;

(iii)               The Bill should provide for a specific date from which the Act will come into effect;

(iv)              The Bill should apply to all including organizations/associations/ parties/trusts/unions/societies private or non-Governmental in addition to Governmental bodies and agencies;

(v)                The Bill should say that all citizens have the freedom of information instead of saying “shall have” as this freedom is already there in the Constitution;

(vi)              The Bill should provide for the delegation of the authority of the Public Information Officer;

(vii)             The ultimate responsibility to ensure adherence to the provisions of the Bill should be vested with the head of each public authority;

(viii)           Since the intent of the Bill is to put in place an effective procedure for enforcing the right to information, the procedural issues must be detailed and clearly stated;

(ix)              The Bill must provide for compulsory and mandatory disclosure of information that relates to health, safety, environment and human rights;

(x)                The Bill should clearly state that where information sought is regarding the life and liberty of a person, the same should be provided within 24 to 48 hours;

(xi)              There must be a procedure laid down for collection of fees and the Bill must clearly lay down exemptions to certain groups/individuals who for genuine reasons cannot pay the stipulated fees;

(xii)             The Bill should clearly provide that all information that cannot be denied to the Members of Parliament/Legislatures should not be denied to the public;

(xiii)           Section 8(1) sub-sections (c), (d) and (e) cover the entire working of the Government.  By including these in the exemption clause, the working of the Government from the Cabinet Committee to the Secretaries Committee is not being made available to the people. These provisions bring on par the Cabinet Committee and the Secretaries Committee and must be done away with. Nothing belonging to the Cabinet must be a secret forever;

(xiv)           Section 8(2) provides for a period of 25 years for releasing information which  is unconscionably  long. It should be 15 years;

(xv)            Section 9(b) and (c) should be deleted as they are rather wide and can cause many difficulties as a wide range of information can be denied saying that they are contained in Annual Reports of Departments or in the Official Gazette;

(xvi)           Section 10 of the Bill should state that reasons for withholding parts of a document must be given to the requestor and the copy of the document provided should indicate which portions of the document have been withheld. The provisions regarding severability in the Press Council Draft of 1997 should be included;

(xvii)         The period of 50 days for inviting third party representation is too long and will be detrimental to the interest of the requestor. It should be either 15 or 30 days;

(xviii)        There should be penalty for giving incorrect, incomplete or misleading information;

(xix)           The Bill should provide for an independent appeals mechanism;

(xx)            A provision for monitoring the implementation of the Bill should be made;

(xxi)           Provisions for providing protection to ‘whistleblowers’ must be added to provide protection of persons who use information to expose wrong doings and also protection of officials who make available information in public interest;

(xxii)         Section 15 should be deleted and replaced with a provision to appeal to an appropriate judicial forum;

(xxiii)        Section 16(1) and the Schedule should be reworded to narrow down the blanket exclusion given to entire organizations. Excluding certain organizations completely from the purview of this legislation defeats the purpose of the law. There is no rationale for exempting the administrative wings of these organizations from disclosing relevant information;

(xxiv)       Local bodies at grass root level should be included and defined as competent authorities to implement the Act;

(xxv)         Provisions for publication of a guide to use the Act and to publicise it must be added so that people are aware of the process that needs to be followed in order to access information under the Act and the recourse available to them if information is wrongfully denied to them; and

(xxvi)       There must be a specific provision in the Bill which casts a duty on public authorities to prepare documents that enable people to know from which authority/office and where information will be available.

7.1.1    The views/suggestions of experts/organizations were forwarded to the Ministry of Personnel, Public Grievances and Pensions for its comments thereon. The comments of the Ministry thereon are appended as Annexure-III in a tabulated form.

7.2       The Committee is of the considered view that many of the important suggestions of the experts/organizations as enumerated in para 7.1 have not been covered in the Bill.  The Committee, therefore, recommends that the Government should consider these views/suggestions of the experts/organizations and incorporate them in the Bill to make it comprehensive.

8.0       The Committee, in its sitting held on 25 June 2001, took up clause-by-clause consideration of the Bill.

Clause 2

 

8.1       Clause 2 deals with the definitions of the terms used in the text of the Bill.

8.1.1    It was adopted without any amendments.

Clause 3

 

8.2       Clause 3 provides for freedom of information to all citizens.

8.2.1    It was adopted without any amendments.

Clause 4

 

8.3       Clause 4 casts certain obligations on public authorities.

 

8.3.1    The Committee suggested an amendment to the effect that it should be incumbent upon the public authorities to publish list of their publications so that general public could browse them for knowing about the activities and functions of public institutions. This apart, a separate chapter may be added in the annual reports of the Ministries/Departments giving details about the dispersal of information about the concerned Ministry/Department.

 

8.3.2    With regard to sub-section (e) of the clause, the Secretary (Personnel) agreed to the suggestion that the words “maintenance of democratic principles” appearing therein should be replaced by the words “natural justice and promotion of democratic principles”.

 

8.3.3        Subject to the above, the clause was adopted.

 

Clause 5

 

8.4      Clause 5 deals with the appointment of Public Information Officers.

 

8.4.1    It was adopted without any amendments.

Clause 6

8.5       Clause 6 provides for tendering the request for obtaining information from Public Information Officers.

8.5.1    It was adopted without any amendments.

Clause 7

8.6       Clause 7 relates to the disposal of requests.

8.6.1    The Committee felt that where the information sought for under the Act relates to life and liberty of a person, the same should be provided within forty-eight hours.  The Secretary (Personnel) agreed to the suggestion.

8.6.2    Subject to the above, the clause was adopted.

Clause 8

8.7       Clause 8 enumerates certain information which shall be exempted from disclosure.

8.7.1    It was adopted without any amendments.

Clause 9

8.8       Clause 9 lays grounds for refusal to access in certain cases.

8.8.1    The Secretary (Personnel) agreed to the suggestion that the word “disproportionate” as mentioned in sub-section (a) should be substituted by the word “unreasonable”.

8.8.2    Subject to this, the clause was adopted.

Clause 10

8.9       Clause 10 provides for severability of that part of the record which does not obtain any information that is exempted from disclosure.

8.9.1    While agreeing to certain amendments in the clause, the Secretary (Personnel) proposed to incorporate following provision as sub-section (ii) under Clause 10 after renaming the existing clause as sub-section (i):

“(ii) Where access is granted to a part of the record in accordance with

sub-section (i), the person making the request shall be informed:

 

(a)    that it is a part of the record after deleting the record containing information which is exempted from disclosure; and

 

(b)   the provisions of the Act under which the deleted part is exempt from disclosure”.

 

8.9.2    Subject to the above, the clause was adopted.

Clause 11

8.10     Clause 11 deals with third party information.

8.10.1  The Committee was of the view that the disposal of request for information wherein a third party was involved should be ensured within thirty days instead of fifty days as provided for in the clause.

8.10.2  Subject to the above, the clause was adopted.

Clause 12

8.11     Clause 12 deals with the appeals which a person can resort to in case he is aggrieved by the decision of a Public Information Officer.

8.11.1  It was adopted without any amendments.

Clause 13

8.12     Clause 13 provides for protection of action taken in good faith under this Act.

8.12.1  It was adopted without any amendments.

Clause 14

8.13     Clause 14 provides that this Act shall have overriding effect over the provisions of Official Secrets Act, 1923 and every other Act in force.

8.14     The Secretary (Personnel) proposed to substitute this provision with a newly drafted provision which reads as follows:

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act”.

 

8.14.1  The Committee agreed to the above substitution.

8.14.2  Subject to this, the clause was adopted.

Clause 15

8.15     Clause 15 bars the jurisdiction of courts from entertaining any suit application or other proceeding in respect of any order made under this Act.

8.15.1  The clause was adopted without any amendments.

Clause 16

8.16     Clause 16 exempts the application of this Act to certain organizations.

8.16.1  The Committee was of the opinion that anti-insurgency operations and intelligence activities of CRPF, BSF and ITBP should also be brought under the purview of this clause.

8.16.2  Subject to this, the clause was adopted.

Clause 17

8.17     Clause 17 provides for the power of the Central Government to make rules under this Act.

8.17.1  It was adopted without any amendments.

Clause 18

8.18     Clause 18 provides for the power of the State Government to make rules under this Act.

8.18.1  It was adopted without any amendments.

Clause 19

8.19     Clause 19 provides for the rule making power of the competent authority under this Act.

8.19.1  It was adopted without any amendments.

Clause 20

8.20     Clause 20 provides for laying of rules framed by the Central and State Governments under this Act before the Parliament and State Legislatures, respectively.

8.20.1  The Committee was of the view that the rules made by the Supreme Court and the High Courts should also be placed before each House of Parliament.  It accordingly, asked the Secretary (Personnel) to look into the feasibility of bringing the rules made by the Supreme Court and the High Courts under the ambit of this clause.  The Secretary (Personnel) and the representative of the Legislative Department agreed to explore the feasibility.

8.20.2  Subject to this, the clause was adopted.

Clause 21

8.21     Clause 21 seeks to empower the Central Government to remove the difficulties in giving effect to the provisions of this Act.

8.21.1    It was adopted without any amendments.

The SchedulePart A

 

8.22     Part A of the schedule enumerates the intelligence and security organizations established by the Central Government on which this Act shall not apply.

8.22.1  It was adopted subject to the observation of the Committee made in regard to the Clause 16.

Part B

8.23     Part B of the Schedule provides for the enumeration of intelligence and security organizations established by the State Government. However, the names of the organizations have not been mentioned therein.

8.23.1  The Committee suggested that likewise Central Government, the names of the intelligence and security organizations of the State Government should also be mentioned therein at the time of piloting the Bill.

8.23.2  Subject to this, the Schedule was adopted.

Clause 1, Enacting Formula and Title

 

8.24     Clause 1, Enacting Formula and the Title were adopted with some changes which were of consequential or drafting nature, namely, “2000” and “Fifty-first” to be substituted by “2001” and “Fifty-second”, respectively.

MINUTES

 

XXXVII

THIRTY-SEVENTH MEETING

 

The Committee met at 3.00 P.M. on Monday, 23 October 2000, in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

 

MEMBERS PRESENT

1.         Shri Pranab Mukherjee―Chairman

 

RAJYA SABHA

2.                  Shri Surender Kumar Singh

3.                  Shri C.P. Thirunavukkarasu

4.                  Shri Drupad Borgohain

5.                  Shri Kuldip Nayyar

6.                  Shri Hansraj Bhardwaj

7.                  Shri Jayanta Bhattacharya

LOK SABHA

8.                  Shri Manabendra Shah

9.                  Shri Lal Bihari Tiwari

10.              Shri Prakash Mani Tripathi

11.              Shri Anadi Sahu

12.              Maj.Gen.(Retd.) B.C. Khanduri

13.              Shri Ram Nagina Mishra

14.              Smt. Jayashree Banerjee

15.              Shri Jitendra Prasada

16.              Shri M.O.H. Farook

17.              Shri Raghuraj Singh Shakya

18.              Shri Suresh Ramrao Jadhav

19.              Shri P.H. Pandian

20.              Dr. Raghuvansh Prasad Singh

21.              Shri S.K. Bwiswmuthiary

SECRETARIAT

            Shri Satish Kumar, Additional Secretary

            Shri Tapan Chatterjee, Deputy Secretary

            Shri A.K. Singh, Under Secretary

            Shri Mahesh C. Tiwari, Committee Officer

 

            WITNESSES

 

Representatives of the Ministry of Personnel, Public Grievances  and Pensions

1.         Shri B.B. Tandon, Secretary

2.         Shri Harinder Singh, Joint Secretary

3.         Smt. S. Bandopadhyay, Director

 

2.         At the outset the Chairman of the Committee welcomed the Secretary of the  Ministry of Personnel, Public Grievances  and Pensions and requested to make presentation  on the  Freedom of Information Bill, 2000.

3.0       The Secretary made a detailed  presentation on the Bill outlining the history of the Bill and also the Acts in this regard as prevalent in some of the advanced  countries.  He also  submitted  that some of the States like Maharashtra, Karnataka, Goa, Rajsthan and Madhya Pradesh  had  also recently   enacted legislations  on the subject.

3.1       The Members, thereafter, sought  clarifications  on   different  provisions of the Bill.  The Chairman  asked the Secretary to furnish  detailed information  in tabular form regarding  various changes  of the Bill  and the corresponding  provisions of the Acts of the State Governments and likewise  of the Acts of some of the advanced countries.

4.0       The Secretary replied to some of the points  raised by the Members and for rest of them, he assured  the Committee for sending Ministry’s written responses.

5.         A verbatim record of the proceedings was kept.

6.         The Committee, then, adjourned at 5.15 P.M.

III

THIRD MEETING

 

The Committee met at 11.00 A.M. on Wednesday, 24 January 2001 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

 

MEMBERS PRESENT

 

1.         Shri Pranab Mukherjee―Chairman

 

RAJYA SABHA

 

2.                  Shri Hansraj Bhardwaj

3.                  Shri Sangh Priya Gautam

4.                  Dr. L.M. Singhvi

5.                  Shri S. Ramachandran Pillai

6.                  Shri C.P. Thirunavukkarasu

7.                  Shri Kuldip Nayyar

 

            LOK SABHA

8.               Smt. Jayashree Banerjee

9.                  Shri S.K. Bwiswmuthiary

10.              Shri Samar Chaudhary

11.              Shri M.O.H. Farook

12.              Shri Vijay Goel

13.              Shri Suresh Ramrao Jadhav

14.              Shri Ram Nagina Mishra

15.              Shri Anadi Sahu

16.              Shri Raghuraj Singh Shakya

17.              Shri Vishnu Datta Sharma

18.              Dr. Raghuvansh Prasad Singh

19.              Shri Prakash Mani Tripathi

20.              Shri Beni Prasad Verma

SECRETARIAT

            Shri Satish Kumar, Additional Secretary

            Shri Tapan Chatterjee, Deputy Secretary

            Shri A.K. Singh, Under Secretary

            Shri Mahesh C. Tiwari, Committee Officer

 

WITNESSES

 

1.         Representatives of the Commonwealth Human Rights Initiative(CHRI) 

Ms. Maja Daruwala, Director,

                        Ms. Abha S. Joshi, Project Co-ordinator

                        Shri Bimal Arora, Project Officer

                        Ms. Deepika  Mogilshetty, Project Officer

 

            2.         Dr. Madhav Godbole

            3.         Shri A.G. Noorani

4.         Representative of the  Consumer  Education  and Research Society,  

            Ahmedabad

                         Prof. Manubhai Shah, Managing Trustee.

2.         *                                              *                                              *

3.         The Chairman, while welcoming the representatives of CHRI gave a brief background of the Freedom of Information Bill, 2000. He stated that it had been processed in different stages by Group of Experts, Expert Committees and also Group of Ministers, and that one such Bill was introduced in 1997.

4.         A representative of CHRI stated that the Bill was not adequate as it did not provide access to information in the way it was required, keeping in view that more than 60 per cent of the population lived below poverty line and were not literate.  An apprehension was expressed that a law of such a pro-bureaucratic nature had the potential of becoming the obstacle to giving  information rather than ensuring that the Government parted with information. It was stated that the general scheme of the Bill was very casual and   stressed the need to differentiate and lay down even those provisions which were obvious.

5.         It was suggested that the Act must lay down in clear terms that the Information Officer had a duty, suo motu, to provide information and  that there should be inclusion of penalties for wrongful withholding of information.

6.         A view was expressed  that the differentiation between a citizen and a non-citizen should not be there  and   information if asked for by non-citizen should be provided subject to certain limitations.

7.         It was also stated that there was a need for a new comprehensive legislation on the likes of the South African Act with 93 clauses, covering private and public interests, monitoring of the Act and so on which was more detailed and yet extremely simple.

8.         With regard to the procedures, it was stated that the mechanism should be swift, inexpensive, effortless and reasonably workable and the Act be brought into force within a given time frame which may be specifically provided in the Act itself.

9.         A view was also expressed that that private sector must be included in the Bill and the Public Information Officer must by definition be the Head of the Department.

10.       As regards exemption clause, a view was expressed that all information that Parliament can ask for should also be mandatorily given to the citizens.

________________________________________________________________________

*** Relates to other matters.

 

11.       Thereafter, Members sought clarifications. Some of which were  replied and for the remaining the representative of CHRI  assured to submit the written submissions.

(The witnesses then withdrew.)

12.       In his presentation, Dr. Madhav Godbole was of the view that the title of the Bill should be ‘Right to Information Bill’ and not ‘Freedom of Information Bill’ as it was to operationalise the fundamental right enshrined in the Constitution.

13.       He stressed that the phrase ‘consistent with public interest’ could be interpreted differently in different situations. Thus, he suggested that the words ‘consistent with public interest’ be deleted from the Bill.

14.       He also stated that some finality to the date from which the Bill would come into effect be given, and   suggested   that three months from the date of passage of the Bill by Parliament be provided in the Act itself. He also urged upon the inclusion of private entities in the society in the Bill.

15.       He suggested that the Clause 4 (d) stated ‘…..to those affected by those decisions’ be  broadened  and  everybody should be entitled to access the information.

16.       He suggested that in Clause 4 (e) the words  ‘…… maintenance of democratic principles’ should be substituted by the words ‘…. natural justice and promotion of democratic principles’.

17.       As regards exemptions in Clause 8, he felt that sub-sections (c), (d) and (e) be deleted.

18.       With regard to Clause 8 (2), he suggested that the 25 years blanket may be reduced to 15 years and a proviso added to say, ‘provided that in such cases which are to be retained as secret for 15 years will be reviewed every five years by the Government to decide which of these can be made available to people’

19.       Regarding Clause 12, he suggested that the first appeal should be within the Department and the second appeal to an authority outside the Government which could be the Lokayukta or the Upa-Lokayukta.

20        Dr.Godbole also impressed upon the Committee that unless there was a provision for penalty, the Bill could not be seriously implemented and therefore provision should be made for monitoring the implementation of the Bill.

21        As regards Clause 17, it was impressed upon the Members that, the exact fee to be paid for obtaining information should be laid down in the Act itself. The word ‘stable’ in para 5 of the Statement of Objects and Reasons should be deleted as stability of the Government could in no way be provided by this legislation.

22.       Thereafter Members sought clarifications on some of the points which were replied to by the witness.    The Chairman  asked the witness to send specific drafts of the amendments to the various clauses suggested by him.

(The witness then withdrew)

(The Committee then adjourned at 1.50 P.M. to reassemble at 3.30 P.M.)

23.       Shri A.G.Noorani stated that as per his interpretation Section 75 of the Indian   Evidence   Act, 1872 already had the element of freedom of information  and also that the Fundamental Right of Freedom of Speech and Expression had been  interpreted to include the right to receive information.  Referring to Articles 32 and 226 of the Constitution, he was of the view that the  jurisdiction of the courts could not be barred realistically.

24.       The witness was of the view that the Principal Information Officer must be of a senior rank and the Act would be useless without a Tribunal to monitor it. He also stressed  on the need for an independent  review and appeals mechanism.  The witness was of the opinion that the Bill should be so framed as to apply  to all sections of people  and the  designation of the Public Information Officer should be Commissioner who will submit an Annual Report  to  the Parliament.  He was also of the opinion that the Bill should be called the Right to Information Act.  He felt that exemptions could be narrowed down. He pointed that there was no accountability in the Bill, which should be provided.

(The witness then withdrew)

25.       Prof. Manubhai Shah was of the view that the caption of the Bill should be “Right to Information” and not  “Freedom of Information” and suggested for inclusion of  cooperative societies, companies, industries  and large private bodies in the ambit of the Act.

26.       He was also of the view that the Act should not be restricted to citizens only but be also extended to foreigners as well, excluding alien enemy.

27.       Regarding exemptions, the witness pointed out that it should be confined to protecting the security of the State only and the time period permitted to give information was too long and was not practical. It should be made reasonable.

28.       The witness also suggested an introduction of the concept of Whistle Blowers to protect the people who expose wrong doing in their Department.

29.       Regarding fee for  information, it was suggested  that non-receipt of information sought, should ensure refund of  fee  alongwith  compensation  for damages incurred.

30.       As for remedial measures, the Information Officer should be equipped with administrative and quasi-judicial authority to ensure access of information by citizens.

31.       Thereafter, Members sought clarifications which were replied to by the witness.

32.       A verbatim record of the proceedings was kept.

33.       The Committee adjourned at 5.40 P.M. to meet again on 29 January 2001.

 

V

FIFTH MEETING

 

The Committee met at 10.00 A.M. on Thursday, 8  February 2001 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

 

MEMBERS PRESENT

1.         Shri Pranab Mukherjee―Chairman

 

RAJYA SABHA

2.         Shri Hansraj Bhardwaj

3.         Shri Surendra Kumar Singh

4.         Shri Sangh Priya Gautam

5.         Shri S. Ramachandran Pillai

6.         Shri K.M. Saifullah

7.         Shri C.M. Ibrahim

8.         Shri C.P. Thirunavukkarasu

9.         Shri Drupad Borgohain

10.       Shri Kuldip Nayyar

11.       Dr.(Smt.) Joyasree Goswami Mahanta

12.       Shri Jayanta Bhattacharya

            LOK SABHA

13.       Smt. Jayashree Banerjee

14.       Shri Samar Chaudhary

15.       Shri M.O.H. Farook

16.       Shri Vijay Goel

17.       Shri Suresh Ramrao Jadhav

18.       Shri Ram Nagina Mishra

19.       Shri P.H. Pandian

20.       Shri Dayabhai Vallabhai Patel

21.              Shri Subodh Ray

22.        Shri N. Janardhana Reddy

23.        Shri Anadi Sahu

24.        Shri Manabendra Shah

25.        Shri Vishnu Datta Sharma

26.        Dr. Raghuvansh Prasad Singh

27.        Shri Lal Bihari Tiwari

28.        Shri Beni Prasad Verma

 

SECRETARIAT

            Shri Satish Kumar, Additional Secretary

            Shri Tapan  Chatterjee, Deputy Secretary

            Shri A.K. Singh, Under Secretary

            Shri Mahesh C. Tiwari, Committee Officer

            Shri Narendra Kumar, Research Officer

 

            WITNESSES

 

Representatives of the Mazdoor Kisan Shakti Sangathan

 

            Smt. Kavita Srivastava

            Shri Nikhil Dey

            Shri Prabhash Joshi

            Shri Neelabh Mishra

            Smt. Jharna Jhaveri

            Shri Anuraj Singh

 

Representative of Press Council of India

 

Justice P.B. Sawant, Chairman

 

2.         At the outset, the Chairman welcomed the witnesses and requested them to make presentations on the Freedom of Information Bill, 2000.

3.0       Smt. Kavita Srivastava, first taking the floor introduced her colleagues and gave a brief outline of the Mazdoor Kisan Shakti Sangathan and inter alia stated that its main focus  was  to empower the peasants and workers in order to give them a life of dignity.

(An audio-visual presentation was then made)

3.1.      At this point, Shri Nikhil Dey took over and briefed the Committee about what the organization had done at the field level with regard to the Right to Information.

3.2       At this point, Shri Neelabh Mishra briefly highlighted on the positive response of the civil society on the Right to Information campaign and then referred to the need for information to trickle down to every member of the society. 

4.         The Chairman and Members at this point raised a number of queries pertaining to provisions in the Bill and invited clarifications/observations from the witnesses.

5.         The Chairman thanked the witnesses and conveyed his appreciation for Mazdoor Kisan Shakti Sangathan (MKSS) for creating awareness in the minds of the people.

(The witnesses then withdrew.)

6.0       *                                                          *                                                          *

7.         The Chairman then welcomed the next witness Justice P.B. Sawant and requested him to present his views/comments  on the Bill.

8.   The witness pointed out the constitutional provision with regard to the Bill, that is, Article 19(1)(a) which speaks of freedom of speech and expression includes the right to receive information from all primary and authentic sources. He stated that, all the exclusions must be relatable  to Article  19(2) and  the other Fundamental Rights including Article 21. Regarding the definition of public authority in Clause  (2), he opined  that private institutions or organizations should also be included.

*** Relates to other matters.

8.1       With regard to Clause 4, sub-clauses (c), (d) and (e) he impressed that getting information should not be after the event, but it should be before the event.  Referring to Clause 7, regarding disposal of cases, the witness urged that where a person’s life or liberty was involved, the period during which the information was to be given should not exceed 48 hours. The witness also felt that a penalty clause should be included and the legislation should provide for two appeals, one internal and the second to an independent body.

9.         The Chairman invited clarifications from the Members.

10.       A Member desired to know the difference between the two expressions-‘the right to know’ and ‘the right to obtain information’.  He also requested the witness to specifically indicate which were the sub-clauses that were too restrictive in Clause 8, and whether any legal problem would arise if ‘prescribed authority’ in clause 12 could be indicated to mean ‘court’.  The witness was also requested to elaborate upon the proposed penalty clause.  Some Members also pointed out the trend of exploiting information by the press and requested the witness to highlight this issue

11.       The Chairman also sought clarifications on the points that if restrictions should be in conformity with the restrictions imposed in the Constitution, at what stage of Government contracts should information be disclosed?

12.       The witness, in response to some of the queries raised, stated that the difference between the 1996 Bill and the 1997 Bill prepared by the Press Council was that the former Bill suggested appeal straight to the civil court while the latter suggested one more appellate authority within the system.  He also stated that the right to know and the right to obtain information meant the same thing. As for a ‘prescribed body’, the witness insisted that the provision should be for an ‘independent body’ for an appeal.  Regarding the administrative establishment of judiciary he suggested that the whole judiciary may not be exempted. Only the judicial side had to be kept out and not the administrative side.   With regard to Clause 8 of the Bill, the witness was of the opinion that exemptions should be relatable strictly to security of the State. 

13.       The Chairman then requested the witness to send his detailed comments especially regarding restrictions imposed in the various clauses of the Bill which should be in conformity with the restrictions imposed in the Constitution.

(The witness then withdrew. The Committee adjourned at 1.30 P.M. and re-assembled at    3.30 P.M. )

14.0     *                                                          *                                                          *

15.0     *                                                          *                                                          *

15.1     *                                                          *                                                          *

15.2     *                                                          *                                                          *

15.3     *                                                          *                                                          *

15.4     *                                                          *                                                          *

________________________________________________________________________

*** Relates to other matters.

15.5     *                                                          *                                                          *

16.       A verbatim record of the  proceeding was  kept.

17.       The Committee adjourned at 5.00 P.M. to meet again on 9th February 2001.

________________________________________________________________________

*** Relates to other matters.

XXI

TWENTY-FIRST    MEETING

The Committee met at 3.00 P.M. on Monday, 25 June 2001 in Committee Room ‘C’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT

1.         Shri Pranab Mukherjee―Chairman

 

RAJYA SABHA

 

2.         Shri Hansraj Bhardwaj

3.         Shri Hiphei

4.         Shri Sangh Priya Gautam

5.         Shri S. Ramachandran Pillai

6.         Shri Kuldip Nayyar

LOK SABHA

7.         Shri Samar Chaudhary

8.         Shri Vinay Katiyar

9.         Shri Ram Nagina Mishra

10.       Shri P.H. Pandian

11.       Shri Subodh Ray

12.       Shri Anadi Sahu

13.       Shri Iqbal Ahmed Saradgi

14.       Shri Manabendra Shah

15.       Shri Raghuraj Singh Shakya

16.       Shri Vishnu Datta Sharma

17.       Dr. Raghuvansh Prasad Singh

18.       Shri Lal Bihari Tiwari

19.       Shri Raj Kumar Wangcha

SECRETARIAT

Shri Satish Kumar, Additional Secretary

            Shri A.K. Singh, Under Secretary

            Shri Narendra Kumar, Research Officer

            Shri Ashok Kumar Sahoo, Committee Officer

 

            WITNESSES

            Representative of Ministry of Personnel, Public Grievances and Pensions

            Shri A.K. Agarwal, Secretary

            Representative of Legislative Department

            Dr. K.N. Chaturvedi, Additional Secretary

Representative of  Department  of Legal Affairs

Shri Ajay Sinha, Joint Secretary & Legal Adviser

 

2.         *                                                          *                                                          *

2.1              *                                                          *                                                          *

2.2       *                                                          *                                                          *

2.3       *                                                          *                                                          *

3.         Thereafter, the Chairman while welcoming the representatives of Ministry of Personnel, Public Grievances and Pensions, Legislative Department and Department of Legal Affairs, outlined the importance of the Freedom of Information Bill, 2000, and traced its genesis. He stated that the Bill was an important milestone in bringing about openness and transparency in the functioning of the Government. He, then, placed the Bill before the Committee for its clause-by-clause consideration.

Clause 2

3.1              Clause 2 deals with the definitions of the terms used in the text of the Bill.

3.1.1        It was adopted without any amendments.

 

Clause 3

 

3.2              Clause 3 provides for freedom of information to all citizens.

3.2.1        It was adopted without any amendments.

Clause 4

 

3.3              Clause 4 casts certain obligations on public authorities.

 

3.3.1    The Committee suggested an amendment to the effect that it should be incumbent upon the public authorities to publish list of their publications so that general public could browse them for knowing about the activities and functions of public institutions. This apart, a separate chapter may be added in the annual reports of the Ministries/Departments giving details about the dispersal of information about the concerned Ministry/Department.

3.3.2    With regard to sub-section (e) of the clause, the Secretary (Personnel) agreed to the suggestion that the words “maintenance of democratic principles” appearing therein should be replaced by the words “natural justice and promotion of democratic principles”.

3.3.3        Subject to the above, the clause was adopted.

 

Clause 5

 

3.4       Clause 5 deals with the appointment of Public Information Officers.

3.4.1    It was adopted without any amendments.

Clause 6

3.5       Clause 6 provides for tendering the request for obtaining information from Public Information Officers.

3.5.1        It was adopted without any amendments.

________________________________________________________________________

*** Relates to other matters.

Clause 7

3.6              Clause 7 relates to the disposal of requests.

3.6.1    The Committee felt that where the information sought for under the Act relates to life and liberty of a person, the same should be provided within 48 hours.  The Secretary (Personnel) agreed to the suggestion.

3.6.2    Subject to the above, the clause was adopted.

Clause 8

3.7       Clause 8 enumerates certain information which shall be exempted from disclosure.

3.7.1    It was adopted without any amendments.

Clause 9

3.8       Clause 9 lays grounds for refusal to access in certain cases.

3.8.1    The Secretary (Personnel) agreed to the suggestion that the word “disproportionate” as mentioned in sub-section (a) should be substituted by the word “unreasonable”.

3.8.2    Subject to this, the clause was adopted.

Clause 10

3.9       Clause 10 provides for severability of that part of the record which does not obtain any information that is exempted from disclosure.

3.9.1    While agreeing to certain amendments in the clause, the Secretary (Personnel) proposed to incorporate following provision as sub-section (ii) under Clause 10 after renaming the existing clause as sub-section (i):

“(ii) Where access is granted to a part of the record in accordance with

sub-section (i), the person making the request shall be informed:

 

(c)    that it is a part of the record after deleting the record containing information which is exempted from disclosure; and

 

(d)   the provisions of the Act under which the deleted part is exempt from disclosure”.

3.9.2    Subject to the above, the clause was adopted.

Clause 11

3.10          Clause 11 deals with third party information.

3.10.1  The Committee was of the view that the disposal of request for information wherein a third party was involved should be ensured within thirty days instead of fifty days as provided for in the clause.

3.10.2  Subject to the above, the clause was adopted.

Clause 12

3.11     Clause 12 deals with the appeals which a person can resort to in case he is aggrieved by the decision of a Public Information Officer.

3.11.1  It was adopted without any amendments.

Clause 13

3.12     Clause 13 provides for protection of action taken in good faith under this Act.

3.12.1  It was adopted without any amendments.

Clause 14

3.13     Clause 14 provides that this Act shall have overriding effect over the provisions of Official Secrets Act, 1923 and every other Act in force.

3.14     The Secretary (Personnel) proposed to substitute this provision with a newly drafted provision which reads as follows:

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act”.

 

3.14.1    The Committee agreed to the above substitution.

3.14.2    Subject to this, the Clause was adopted.

Clause 15

3.15     Clause 15 bars the jurisdiction of courts from entertaining any suit application or other proceeding in respect of any order made under this Act.

3.15.1  The clause was adopted without any amendments.

Clause 16

3.16     Clause 16 exempts the application of this Act to certain organizations.

3.16.1  The Committee was of the opinion that anti-insurgency operations and intelligence activities of CRPF, BSF and ITBP should also be brought under the purview of this clause.

3.16.2  Subject to this, the clause was adopted.

Clause 17

3.17     Clause 17 provides for the power of the Central Government to make rules under this Act.

3.17.1  It was adopted without any amendments.

Clause 18

3.18     Clause 18 provides for the power of the State Government to make rules under this Act.

3.18.1  It was adopted without any amendments.

Clause 19

3.19     Clause 19 provides for the rule making power of the competent authority under this Act.

3.19.1  It was adopted without any amendments.

Clause 20

3.20     Clause 20 provides for laying of rules framed by the Central and State Governments under this Act before the Parliament and State Legislatures, respectively.

3.20.1  The Committee was of the view that the rules made by the Supreme Court and the High Courts should also be placed before each House of Parliament.  It accordingly, asked the Secretary (Personnel) to look into the feasibility of bringing the rules made by the Supreme Court and the High Courts under the ambit of this clause.  The Secretary (Personnel)  and the representative of the Legislative Department agreed to explore the feasibility.

3.20.2  Subject to this, the clause was adopted.

Clause 21

3.21     Clause 21 seeks to empower the Central Government to remove the difficulties in giving effect to the provisions of this Act.

3.21.1  It was adopted without any amendments.

The Schedule

Part A

 

3.22     Part A of the schedule enumerates the intelligence and security organizations established by the Central Government on which this Act shall not apply.

3.22.1  It was adopted subject to the observation of the Committee made in regard to the Clause 16.

Part B

3.23     Part B of the Schedule provides for the enumeration of intelligence and security organizations established by the State Government. However, the names of the organizations have not been mentioned therein.

3.23.1  The Committee suggested that likewise Central Government, the names of the intelligence and security organizations of the State Government should also be mentioned therein at the time of piloting the Bill.

3.23.2  Subject to this, the Schedule was adopted.

Clause 1, Enacting Formula and Title

 

3.24     Clause 1, Enacting Formula was adopted with some changes which were consequential or drafting nature, namely, “2000” and “Fifty-first” to be substituted by “2001” and “Fifty-second”, respectively.

3.24.1  As regards the Title of the Bill, the Committee decided to reconsider/review it at the time of the adoption of the draft Report on the Bill.

4.         A verbatim record of the proceedings was kept.

5.         The Committee then adjourned at 5.05 P.M. to meet again at 11.00 A.M. on the next day.

 

XXV

TWENTY-FIFTH   MEETING

 

The Committee met at 11.00 A.M. on  Tuesday,  10 July, 2001 in Committee  Room ‘C’,  Ground  Floor, Parliament House Annexe, New Delhi.

 

MEMBERS PRESENT

1.         Shri Pranab Mukherjee―Chairman

 

RAJYA SABHA

2.         Shri Hansraj Bhardwaj

3.         Shri Surendra Kumar Singh

4.         Shri S. Ramachandran Pillai

5.         Shri Drupad Borgohain

6.         Shri Kuldip Nayyar

7.         Shri Jayanta Bhattacharya

LOK SABHA

8.         Shri Arun Kumar

9.         Shri Ram Nagina Mishra

10.       Shri P.H. Pandian

11.       Shri Dahyabhai Vallabhbhai  Patel

12.       Shri Subodh Ray

13.       Shri Anadi Sahu

14.       Shri Manabendra Shah

15.       Shri Vishnu Datta Sharma

16.       Dr. Raghuvansh Prasad Singh

17.       Shri Lal Bihari Tiwari

18.       Shri Harin Pathak

19.       Shri E. Ponnuswamy

SECRETARIAT

Shri Satish Kumar, Additional Secretary

Shri Tapan Chatterjee, Director

            Shri A.K. Singh, Under Secretary        

            Shri Narendra Kumar, Research Officer

            Shri Ashok Kumar Sahoo, Committee Officer

 

2.         At the outset, the Chairman welcomed the Members and made general observations.  He stated that the Report of the Committee on the Freedom of Information Bill, 2000 may be presented to the Parliament in the first week of the ensuing monsoon session so as to enable the Government to pilot the Bill in that session itself.    Thereafter, the Chairman placed the draft Report before the Committee for its consideration and invited the views of the Members thereon.

3.0       While expressing his views, one of the Members stated that views expressed by him during the clause-by-clause consideration of the Bill had not been taken care of in the draft Report.  He reiterated his views and felt that their incorporation in the Bill would go a long way in ensuring transparency in Government’s working.

3.1       Another Member stated that the Bill was just a beginning towards transparency in governance and therefore it should be allowed to have a run in its present form for a couple of years to test its efficacy.

3.2       In response to the views expressed by the Members, the Chairman stated that all suggestions of the witnesses who appeared before the Committee had been incorporated in the draft report with the recommendation that they may be considered by the Government.  In addition to that, the verbatim record of the evidence tendered before the Committee was also being Tabled in the two Houses which may be taken into consideration by the Government.

3.2.1    In this regard, a couple of Members felt that para 7.2 of the draft report pertaining to the recommendation for consideration of suggestions of witnesses, should be strongly and explicitly worded so as to carry greater weightage.

3.2.2    After approving modifications in para 7.2, the Committee adopted the draft Report.

3.3       It also adopted the title of the Bill without any changes and decided to table the evidence on the Bill in both Houses of Parliament.

4.         The meeting then adjourned at 12.54 P.M. to meet again at 11.00 A.M. on 11 July 2001.

ANNEXURE

ANNEXURE I

 

AS INTRODUCED IN LOK SABHA

 

(See page (v), para 2 of the Report)

Bill No. 98 of 2000

 

THE FREEDOM OF INFORMATION BILL, 2000

 

A

BILL

 

to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, trans- parency and accountability in administration and in relation to matters connected therewith or incidental thereto.

 

BE  it  enacted by Parliament in the Fifty-first Year of the Republic of India   as follows:-

 

CHAPTER I

 

PRELIMINARY

 

 

1. (1)  This Act may be called the Freedom of Information Act,2000

 

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    (2)  It extends to the whole of India except the State of Jammu and  Kashmir.

                                                                               

    (3)  It shall come into force on such date as the Central  Government   may, by notification in the Official Gazette, appoint.

 

Short title, extent and commencement

 

 

 

Definitions

2. In this Act, unless the context otherwise requires,

    (a) “appropriate Government” means in relation to a public authority established, constituted, owned, substantially financed by funds provided directly or indirectly or controlled-

             (i) by the Central Government, the Central Government;

     (ii) by the State Government, the State Government;

     (b) “competent authority” means-

(i)      the Speaker in the case of the House of the People or the Legislative Assembly and the Chairman in the case of the Council of States or the Legislative Council;

(ii) the Chief Justice of India in the case of the Supreme Court;

(iii) the Chief Justice of the High Court in the case of a High Court;

(iv) the President or the Governor, as the case may be, in case of other authorities created by or under the Constitution;

     (c)“freedom of information” means the right to obtain information from any public authority by means of-

(i)      inspection, taking of extracts and notes;

(ii) certified copied of any records of such public

authority;

(iii) disketts, floppies or in any other electronic mode        or through printouts, where such information   is  stored in a computer or in any other device;

    (d)“information” means any material in any form relating   to    the administration, operations or decisions of a public authority;

    (e) “prescribed” means prescribed by rules made under this Act by the appropriate Government or the competent authority, as the case may be;

    (f) “ public authority” means any authority or body established or constituted,-

(i)                  by or under the Constitution;

(ii)                by any law made by the appropriate Government,

and includes any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government;

   (g) “Public Information Officer” means the Public Information Officer appointed under sub-section (I) of section 5;

(h)    ‘record” includes-

         (i)   any document, manuscript and file;

         (ii)  any   microfilm,   microfiche   and    facsimile   copy   of  a document;

      (iii) any reproduction of image or images embodied in such           microfilm (whether enlarged or not); and

        (iv) any other material produced by a computer or by any other device;

   (i) “third party” means a person other than the person making a request for information and includes a public authority.

 

 

 

 

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CHAPTER II

 

FREEDOM OF INFORMATION AND OBLIGATIONS OF PUBLIC AUTHORITIES

Freedom of Information.

3. Subject to the provisions of this Act, all citizens shall have freedom of information.

 

 

Obligations on public authorities.

4. Every public authority shall-

   (a)  maintain all its records, in such manner and form as in consistent with its   operational requirements duly catalogued and indexed;

 

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(a) publish at such intervals as may be prescribed by the appropriate Government or competent authority,-

(i)      the particulars of its organisation, functions and duties;

(ii)    the powers and duties of its officers and employees and the procedure followed by them in the decision making process;

(iii)   the norms set by the public authority for the discharge of its functions;

(iv)  rules, regulations, instructions, manuals and other categories of records under its control used by its employees for discharging its functions;

(v)    the details of facilities available to citizens for obtaining information; and

(vi)  the name, designation and other particulars of the Public Information Officer,

(b) publish all relevant facts concerning important decisions and policies that affect the public while announcing such decisions and policies;

(c) give reasons for its decisions, whether administrative or quasi-judicial to those affected by such decisions;

(d) before initiating any project, publish or communicate to the public generally or to the persons affected or likely to be affected by the project in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of maintenance of democratic principles.

 

5. (1)  Every pubic authority shall for the purposes of this Act, appoint one or more officers as Public Information Officers.

     (2) Every Public Information Officer shall deal with requests for information and shall render reasonable assistance to any person seeking such information.

     (3)  The Public Information Officer may seek the assistance of any other officer as he considers necessary for the proper discharge of his duties.

(4)   Any officer whose assistance has been sought under sub-section       (3), shall render all assistance to the Public Information Officer seeking his assistance.

 

  6.     A person desirous of obtaining information shall make a request in writing or through electronic means, to the concerned Public Information Officer specifying the particulars of the information sought by him;

          Provided that where such request cannot be made in writing, the Public Information Officer shall render all reasonable assistance to the person making the request orally to reduce it in writing.

 

7. (1) On receipt of a request under section 6, the Public Information Officer shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information requested on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appointment of Public, Information officers.

 

 

 

 

 

 

 

Request for obtaining Information.

 

 

 

 

 

Disposal of    requests.

 

 

 

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         Provided that where it is decided to provide the information on payment of any further fee representing the cost of providing the information, he shall send an intimation to the person making the request, giving the details of the fees determined by him, requesting him to deposit the fees and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to above.

(2)Before taking any decision under section (1), the Public Information Officer shall take into consideration the representation made by a third party under section 11.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exemption from disclosure of information.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Grounds for refusal to   access

in certain

 cases.

 

 

 

 

   (3) Where a request is rejected under sub-section (2), the Public Information Officer shall communicate to the person making request,-

       (i)   the reasons for such rejection;

       (ii)  the period within which an appeal against such rejections may be preferred;

       (iii) the particulars of the appellate authority;

   (4) Information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

 

8. (1) Notwithstanding anything herein before contained, the following information not being information relating to any matter referred to in sub-section (2), shall be exempted from disclosure, namely:-

    (a)  information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security of the State, strategic scientific or economic interest of India or conduct of international relations;

     (b) information, the disclosure of which would prejudicially affect public safety and order, detection and investigation of an offence or which may lead to an incitement to commit an offence or prejudicially affect fair trial or adjudication of a pending case.

     (c) information, the disclosure of which would prejudicially affect the conduct of Centre-State relations, including information exchanged in confidence between the Central and State Governments or any of their authorities or agencies;

     (d) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

     (e) minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision making process prior to  the executive decision or policy formulation;

     (f) trade or commercial secrets protected by law or information, the disclosure of which would prejudicially affect the legitimate economic and commercial interests or the     competitive position of a public authority; or would cause unfair gain or loss to any person; and

     (g) information, the disclosure of which may result in the breach of privileges or Parliament or the legislature of a State, or contravention of a lawful order of a court.

   (2)   Any information relating to any occurrence, event or matter which has taken place occurred or happened twenty-five years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:

            Provided that where any question arises as to the date from which the said period of twenty-five years has to be computed, the decision of the Central Government shall be final.

 

9.   Without prejudice to the provisions of section 8, a Public Information Officer may reject a request for information also where such request-

     (a)  is too general in nature or is of such a nature that, having regard to the volume of information required to be retrieved or processed would involve disproportionate diversion of the resources of a public authority or would adversely interfere with the functioning of such authority:

       Provided that where such request is rejected on the ground that the request is too general, it would be the duty of the Public Information Officer to render help as far as possible to the person making request to reframe his request in such a manner as may facilitate compliance with it;

 

 

 

 

 

 

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       (b) relates to information that is required by law, rules, regulations or orders to be published at a particular time and such information is likely to be so published within thirty days of the receipt of such request; or

        (c) relates to information that is co9ntained in published material available to public;

        (d) relates to information which would cause unwarranted invasion of the privacy of any person.

10.     If a request for access to information is rejected on the ground that is is in relation to information which is exempted from disclosure, then notwithstanding anything contained in this Act, access may be given to that part of the record which does not obtain any information that is exempted from disclosure under this Act and which can reasonably be severed from any part that contains exempted information.

11. Where a public authority intends to disclose information on a request made by a party which relates to, or has been supplied by a third party and has been treated as confidential by that third party, the Public Information Officer shall by notice to such third party invite representation against the proposed disclosure, if any, within fifty days from the date of receipt of such notice:

        Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

12. (1) any person aggrieved by a decision of the Public Information Officer may, within thirty days of receipt of such decis9on, prefer an appeal to such authority as may be prescribed:

       Provided that such authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

       (2) A second appeal against the decision under sub-section (1) shall lie within thirty days of such decision, to the Central Government or the State Government or the competent authority, as the case may be:

       Provided that the Central Government or the state Government or the competent authority, as the case may be, may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time

       (3)   The appeals referred to in sub-section (1) and (2) shall be disposed of within thirty days of the receipt of such appeals or within such extended period, as the case may be, for reasons to be recorded in writing.

       (4)  If the decision of the Public Information Officer against which the appeal is preferred under sub-section (1) or (2) also relates to information of third party, the appellate authority shall give a reasonable opportunity of being heard to that third party.

 

 

 

 

 

 

 

 

 

Severability.

 

 

 

 

 

Third party information.

 

 

 

 

 

 

 

Appeals.

 

 

CHAPTER III

MISCELLANEOUS

 

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19 of 1923

 

 

 13. No. suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done or intended to be done under this Act or any rule made there under.

     

14. The Provisions of Official Secrets Act, 1923 and every other Act in force shall cease to be operative to the extent to which they are inconsistent with the provisions of this Act.

 

Protection of action taken in good faith.

 

 

Act to have overriding effect.

 

Bar  of  jurisdiction of courts.

 

 

Act not to apply to certain organisations.

 

 

 

 

 

 

 

 

 

 

 

 

Power to make by Central Government.

 

 

 

 

 

 

 

 

Power to make by

 State Government.

 

 

 

 

 

 

 

 

 

Rule making power by competent authority.

 

 

 

  15. No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by –way of an appeal under this Act.

 16. (1) Nothing contained in this Act,-

          (a)  shall apply to the intelligence and security organisations, specified in the Schedule being organisations established by the Central or a State Government or any information furnished by such organisations to the respective Governments;

          (b)  shall until Part B of the Schedule is amended under sub-section (2), apply to the intelligence and security organisations by whatever name called discharging their functions as such under the State governments.

       (2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by the Central or a State Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule.

       (3) Every notification issued under sub-section (2), shall be laid before each House of Parliament.

  17. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

        (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a)    intervals at which matters referred to in sub-clauses (i) to (vi) of clause (b) of section 4 shall be published;

(b)   the fee payable under sub-section (1) of section 7;

(c)    the authority before whom an appeal may be preferred under sub-section (1) of section 12;

(d)   any other matter which is required to be, or may be, prescribed.

 

  18. (1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

        (2)  In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a)  the fee payable under sub-section (1) of section 7;

(b)   the authority before whom an appeal may be preferred under sub-section (1) of section 12;

(c) any other matter which is required to be, or may be, prescribed:

             Provided that initially the rules shall be made by the Central Government by notification in the Official Gazette.

 

  19. (1) The Competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

        (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the fee payable under sub-section (1) of section 7;

(b)   the authority before whom an appeal may be preferred under sub-section (1) of section 12;

 

 

 

 

 

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(c)    any other matter which is required to be, or may be, prescribed.

  20. (1) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

           (2)   Every rule made under this Act by a State Government shall be laid, as soon as may be after it is notified, before the State Legislature.

 

   21. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removal of the difficulty:

          Provided that no such order shall be made after the expiry of a period of two years from the date of the commencement of this Act.

         (2)   Every order made under this section shall, as soon as may be after it is made, be laid before the House of Parliament.

 

THE SCHEDULE

(See section 16)

PART A

 

INTELLIGENCE AND SECURITY ORGANISATIONS ESTABSISHED BY THE CENTRAL GOVERNMENT

 

1.      Intelligence Bureau.

2.      Research and Analysis Wing of the Cabined Secretariat.

3.      Directorate of Revenue Intelligence.

4.      Central Economic Intelligence Bureau.

5.      Directorate of Enforcement.

6.      Narcotics Control Bureau.

 

PART B

 

INTELLIGENCE AND SECURITY ORGANISATIONS ESTABLISHED BY THE STATE GOVERNMENT

 

Name of the Organisation                                                                             Name of the State

       1.

       2.

       3.

 

 

Laying of

Rules.

 

 

 

 

 

 

 

 

 

 

Power to remove difficulties.

 

 

 

 

 

 

 
STATEMENT OF OBJECTS AND REASONS

           

            The need to enact a law on right to information was recognized unanimously by the Chief Ministers Conference on “Effective and Responsive government” held on 24th May, 1997 at New Delhi. In its 38th Report relating to Demands for Grants of the Ministry of Personnel, Public Grievances and Pension, the Parliamentary Standing Committee on Home Affairs recommended that the Government should take measures  for enactment of such a legislation.

           

2. In order to make the Government more transparent and accountable to the public, the Government of India appointed a Working Group on Right to Information and Promotion of Open and Transparent Government under the Chairmanship of Shri H.D. Shourie. The Working Group was asked to examine the feasibility and need for either full-fledged Right to Information Act or its introduction in a phased manner to meet the needs of open and responsive governance and also to examine the frame work of rules with reference to the Civil Service (Conduct) Rules and manual of Office Procedure.  The said working Group submitted its report in May, 1997 along with a draft Freedom of Information Bill to the Government.  The Working Group also recommended suitable amendments to the Civil Service (Conduct) Rules and the Manual of Departmental Security instructions with a view to bring them in harmony with the proposed Bill.

           

3. The draft Bill submitted by the Working Group was subsequently deliberated by the Group of Ministers constituted by the Central Government to ensure that free flow of information was available to the public, while, inter alia, protecting the national interest, sovereignty and integrity of India, and friendly relations with foreign states.

           

4. The proposed Bill is in accord with both article 19 of the Constitution as well as article 19 of the Universal Declaration of Human Rights.

           

5. In our present democratic frame work, free flow of information for the citizens and non-Government institutions suffers from several bottlenecks including the existing legal framework, lack of infrastructure at the grass root levels and an attitude of secrecy within the Civil Service as a result of the old framework of rules.  The Government proposes to deal with all these aspects in a phased manner so that the Freedom of Information Act became a reality consistent with the objective of having a stable, honest, transparent and efficient Government.

 

6.  The proposed Bill will enable the citizens to have an access to information on a statutory basis. With a view to further this objective, clause 3 of the proposed Bill specifies that subject to the provisions of this Act, every citizen shall have right to freedom of information.  Obligation is cast upon every public authority under clause 4 to provide information and to maintain all records consistent with its operational requirements duly catalogued, indexed and published at such intervals as may be prescribed by the appropriate Government or the competent authority.

 

7.      The Bill seeks to achieve the above objects.

 

 

New Delhi;                                                                                                                                   VASUNDHARA RAJE

The 15th May 2000.

 

PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE

CONSTITITUTION OF INDIA

 

            (Copy of letter No. 34011/1(s)/97-Estt.(B) dated 15th May, 2000 from Mrs. Vasundhara  Raje, Minister of State for Personnel, Public Grievances and Pension to the Secretary-General, Lok Sabha)

           

The President, having been informed, of the subject matter of “ The freedom of Information Bill, 2000”, recommends the introduction and consideration of the said Bill in the Lok Sabha under Article 117(1) and (3) of the Constitution.

 

FINANCIAL MEMORANDUM

 

1. Sub-clause 1 of clause 5 of the Bill provides for appointment of one or more officers as Public Information Officers to deal with requests for information.  It is expected that the various agencies would be appointing some of their existing officers as the Public Information Officers for the purpose of this Act or redesignating the publicity or information officers as Public Information Officers.  Only in a few cases, it might be necessary to create additional posts for this purpose.  Thus, the manpower requirement in this regard arising from the legislation is expected to be met from within the existing sanctioned strength of the various agencies at the Central and State level, all within the existing budget.

2. At this stage, it is not possible to give precise details of the expenditure to be incurred on material resources in terms of computers and other office equipment required for supply of information.  However, the requirement of these items is likely to be met by the ongoing programmes for computerization of operations in various agencies and any additional expenditure might be offset by recovery of fees for supply of information.

3. After the proposed Bill becomes an Act, a nodal Cell for finalization of rules and instructions, guiding the States and reporting progress to Government shall have to be set up in the Ministry of Personnel, Public Grievances and Pensions under the Central Government.  This Cell shall consist of one Joint Secretary , two Deputy Secretaries, two Senior Analysts and two conventional sections.  In addition, the personal staff of the above officers will also be appointed.  An estimated recurring expenditure of Rs. 28 lakhs is likely to be incurred on the salaries of the officers and staff in the Cell.

4. The Bill does not involve any other recurring or non-recurring expenditure.

 

MEMORANDUM REGARDING DELEGATED LEGISLATION

 

            Clause 16(2) of the Bill empowers the Central Government, by notification in the Official Gazette, to amend the schedule for including any other intelligence or security organisation established by the central or State government or omit there from any organisation already specified therein.

            Clause 17 of the Bill empowers the central Government to make rules to carry out the provisions of the Act.  Sub-clause (2) of that clause enumerates the matters with respect to which rules may be made under this clause.

            These matters relate to, inter alia, the intervals at which particulars of organisation, functions and duties of its officers, details of facilities available to citizens for obtaining information in such organisation; fee payable to obtain an information from an organisation; the authority to be prescribed before whom an appeal may be preferred from the decision of Public Information Officer and any other matter which is required to be prescribed.

            Clause 18 of the Bill empowers the State Government to make rules to carry out the provisions of the Act.  The matters in respect of which such rules may be made are specified therein.  These matters relate to, inter alia, the fee payable to obtain information from any organisation; the authority to be prescribed before whom an appeal may be preferred against the decision of the Public Information Officer and any other matter  which is required to be prescribed.

            Clause 19 of the Bill empowers the competent authority to make rules to carry out the provisions of the Act.  These matters relate to, inter alia, the fee payable for obtaining the information from the Public Information Officer of an organisation; the authority to be prescribed before whom an appeal may be preferred against the decision of the Public Information Officer and any other matter which is required to be prescribed.

            Clause 21 of the Bill empowers the Central Government by order to remove certain difficulties which may appear to it to be necessary or expendient.  Further, such order shall not be made under this clause after the expiry of a period of two years from the commencement of this Act.  Every such order shall be laid before both Houses of Parliament.

            The matters in respect of which rules may be made are matters of administrative details and procedure and, it is not practicable to provide for them in the Bill itself.  The delegation of legislative power is, therefore, of a normal character.

 

LOK SABHA

__________

A

BILL

 

to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto.

 

(Smt. Vasundhara Raje, Minister of State in the Ministry of Personnel, Public Grievances and Pensions)

 

ANNEXURE II

 

(See page (v) para 3.2 of the Report)

 

LIST OF WITNESSES WHO GAVE ORAL EVIDENCE BEFORE THE COMMITTEE

 

1.         Ms. Maja Daruwala, Director, Commonweath Human Rights Initiative,

             New Delhi                                          

2.         Dr. Madhav Godbole, former Home Secretary, Government of India                

3.         Shri A.G. Noorani, Senior Advocate                                        

4.         Prof. Manubhai Shah, Managing Trustee, Consumer Education and Research           

             Centre, Ahmedabad   

5.                  Representatives of Mazdoor Kisan Shakti Sangathan, Rajasthan

6.                  Justice P.B. Sawant, Chairman, Press Council of India, New Delhi       

 

ANNEXURE-III

 

(See page 7,  para 7.1.1 of the Report)

 

VIEWS/SUGGESTIONS OF INDIVIDUALS/ORGANISATIONS ON FREEDOM OF INFORMATION BILL,2000  AND RESPONSE OF GOVERNMENT THEREON

 

PART 1: COMMENTS AND SUGGESTIONS ON THE BILL

Title of the Bill

Name of Organisation/ individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

The Bill should be titled "Right to Information Bill". The object of the Bill should be to operationalise the Constitutional Right to Freedom of Information implicit in the Fundamental Right to Freedom of Speech and Expression and Right to Life and Liberty and Right to Equality enshrined in the Constitution. The Preamble and the Title as they are currently worded seem to indicate that the freedom of information is being provided by this Bill, while in reality this is a fundamental right recognised under the Constitution.

The ‘right to know’ has been judicially recognised as a facet of the fundamental right to free speech and expression enshrined in Article 19(1) of the Constitution.  The purpose in enacting the ‘Freedom of Information Act’ is primarily to provide a statutory framework for that right and it is felt that the expression ‘Freedom of Information’ more fully reflects the spirit and intent in the proposed legislation (para 3.10 – Shourie Working Group Report).   In consideration of the above, it is felt that captioning the Bill as ‘Right to Information Bill’ may not appear to be consistent in keeping with the judicial pronouncements. Incidentally, similar legislation enacted by various countries, have been given more or less the same title some of which are given as under:-

(1)   Australia -  ‘Freedom of Information Act,  1982’.

(2)   Ireland -  ‘Freedom of Information Act, 1997’.

(3)   USA – ‘Freedom of Information Act, 1966’.

(4)   UK – ‘Freedom of Information Act, 2000’.

(5)   Canada – ‘Access to Information Act, 1985’.

(6)   New Zealand – ‘Official Information Act, 1982’.

(7)   The Netherlands – ‘Government Information (Public Access) Act, 1991’.

Shri Madhav Godbole

The Bill should be titled "Right to Information Bill".

Shri A.G. Noorani

The Right to Information is a part of the Right to Freedom of Speech and Expression, the Right to Freedom of Speech and Expression includes the right to information. The Act should be called Right to Information Act.

Consumer Education and Research Centre

The Bill should be titled "Right to Information Bill".

Mazdoor Kisan Shakti Sanghathan

The Bill should be titled "Right to Information Bill".

 

PREAMBLE OF THE BILL

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

The Preamble should be reworded to clarify that the law is casting a duty upon the state and laying down systems to give information to the people in order to give effect to the fundamental right to information. The right to information under the Bill should be available not just to Citizens but to all persons.

 

Many of the countries, like USA, The Netherlands and UK, have considered it fit to confer the Right to Information not only to their citizens but to persons residing in that country permanently or temporarily as also to those persons who are in that country on a short stay, visit etc.  The Canadian Act initially allowed only Canadian citizens and permanent residents to have access to Government information. By an order of 1989, the Right to Access has been extended to include all individuals who are present in Canada but who are not Canadian citizens or permanent residents, and all corporations that are present in Canada.  There may not, therefore, be any objection to the access to information being given to all citizens as also all persons who are present in India.

 

There are various judicial pronouncements on what constitutes ‘public interest’.   As such, the phrase ‘consistent with public interest’ is not likely to present any operational difficulties.

Shri Madhav Godbole

The words "consistent with public interest" appearing in the Preamble of the Bill should be deleted as it leaves scope for debate on what is public interest and whose public interest is it.

 

Consumer Education and Research Centre

The Preamble to the Bill must clearly state that this Right to Information is a recognition of the Fundamental Rights under Article 21 as it is an integral part of the Right to Life, Right to Equality and Right to Freedom of Speech and Expression. The Right to Information under the Bill should be available to all persons and should not be limited only to citizens.

 

CLAUSE 1: DATE OF BILL BECOMING EFFECTIVE

 

Commonwealth Human Rights Initiative

Section 1(3) should be reworded to lay down a time period within which the law will come into force. The clause may be reworded as follows. “It shall come into force on such date as the Central Government may notify, which date shall not be later than six months from the date of the passage of the law. Provided that the Act shall automatically come into force at the expiry of the said six months."

 

   For an Act to become fully operational, it is necessary that the rules, institutions/machinery for operationalisation, redressal of grievances, etc. is in position.  Depending upon the scope of Act, some countries have given effect to some provisions of their Act immediately on its notification with the other provisions to follow at varying intervals and a definite date being fixed for all the provisions

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri Madhav Godbole

The Bill should provide for a specific date, a period of three months from the date of passage of the Bill, from which the act will come into effect. This will provide some kind of finality to the date from which the Bill will come into effect.

to take effect.  For instance, the UK Act prescribes a 5 year time period on the expiry of which all the provisions in the Act would become effective in case these have not been brought into force already.  Since the proposed FOI Act is not only to cover the Central Government establishm- ents but the State Governments and other bodies as well, it would be more appropriate to provide flexibility in regard to the date of effect so that sufficient time is available to set up the infra-structure for the Act to become operational.  Considering that the rules for operationalisation have yet to be drafted, the various authorities under the Act are to be notified as also training and positioning of the manpower, it is quite reasonable to provide that the law will come into force on such date as the Central Government may notify.

 

  CLAUSE 2: DEFINITIONS

 

Clause 2(a),(b) and (f)

Commonwealth Human Rights Initiative

Sections 2(a) and (b) - Definition of "Appropriate Government" and "Competent Authority" do not take into account any aspect of local bodies. The definitions must include Municipal and local bodies.

 

Sections (c), (d) and (f) - The definitions are restricted to public bodies, this should be amended to include semi-governmental bodies, private bodies and all organisations that are engaged in the carrying on activities that affect the public or large sections of the public.

 

Clauses 2(a) and (b) -  The Municipal and local bodies, set up directly or indirectly by the Central /State Government, are already covered by the definition of ‘appropriate Government’ and ‘competent authority’ as given in these sections. Further, in Clause 2(f) of the Bill, ‘public authority’ has inter-alia been defined to include any other body, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government.  The Act covers the administrative offices of the High Courts and Supreme Court of India.

  

Clause 2(a),(b) and (f)

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

  Mazdoor Kisan Shakti Sanghathan

Section 2(a) and (f) defines ‘Public authority’ this definition must be expanded to include in addition to what has already been stated (ii) the Administrative Offices of the Courts; (iii) a company, corporation, trust, firm, society, cooperative society, or associations whether owned or controlled by the Government or by private individuals and institutions and (iv) any other person information from whom is required for the exercise or protection of any right’.

 

As for the extension of the proposed legislation to private sector, it needs to be recognised that the basic purposes of the Freedom of Information legislation are to promote openness, transparency and accountability in Government and to facilitate a fuller and more meaningful  participation of the people in the governance.   This cannot be said to apply wholly to private businesses which are not

required to  primarily sub-serve public interest as it is commonly understood.  Any attempt to bring the private sector under the proposed legislation is apt to be regarded as an excessive intrusion into the freedom and management of private sector not to mention that  there would be implementation difficulties too in expanding the scope of FOI Bill to private bodies.  There is also the danger that it may become a tool for competitive strategy with deleterious consequences for the industry which are too obvious to require elaboration.  The information relating to operations of private firms which impinges public interest such as

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In the alternative, the definition of "Public Authority" could be amended to include a body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government. This would bring into the purview of the Bill all bodies that receive, directly or indirectly, any public funds, so as to make them accountable to public scrutiny going in further.


 

Clause 2 (c ), (d) and (h)

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Sections (c), (d) - The definitions are restricted to obtaining information from public bodies, this should be amended to include semi-governmental bodies, private bodies and all organisations that are engaged in the carrying on activities that affect the public or large sections of the public.

 

 

 

 

 

health, safety, environment standards, etc., would in any case be accessible under the provisions of the laws framed by the concerned regulatory authority and there need not be any apprehensions of the public interest being allowed to suffer.  It is noteworthy that none of the advanced democracies such as USA, Australia and Canada, has thought it fit to widen its laws to this extent to cover the private sector.

 

The ‘samples of materials and goods offered for sale’ do not constitute ‘information’ or record’ and therefore cannot be brought within the ambit of Clauses 2(c) and 2(h).

 

 

 

 

 

Clause 2(d) defines ‘information’ to mean ‘any material in any form’ and unquestionably includes a ‘record’ also.  Information pertaining to the ‘conduct of public servants’, not covered by the exemptions contained in clauses 8 and 9, would be open to access under the proposed Act and it was not considered necessary to make a specific provision therefore.

Mazdoor Kisan Shakti Sanghathan

Section 2(c) the definition of ‘freedom of information’ should be amended to include taking samples of materials and goods offered for sale.

 

Section 2(h) the definition of ‘record’ should be amended to include materials and samples of goods.

 

 

 

Shri A.G. Noorani

Section 2(d) defines "information" and 2(h) "record", the word "information " should be amended to include a record.

Shri  B.G. Deshmukh

Section 2(d)  information should include conduct of public servants specifically, apart from administration, and should also include documents relating to information.

 

  CLAUSE 3: FREEDOM OF INFORMATION

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 3 should be amended, since Right to Information is a fundamental right guaranteed under the Constitution and is not a right provided by the Freedom of Information Bill. The Bill seeks to operationalise the Right to Information available to all persons under the Constitution the Section should be amended and should read:

“Every Public Authority shall be under a duty to provide access to information in accordance with this Act.”

 

The right to information has already received judicial recognition as a part of the fundamental Right to Free Speech and Expression and the purpose in enacting the Freedom of Information Act is namely to provide a statutory framework for this right.  Accordingly,  there may not be any objection to the deletion of the word ‘shall’ from clause 3 of the Bill, as reproduced below, which would imply the pre-existence of the right to information:-

 

   “Subject to the provisions of this Act, all citizens ‘Shall’ have freedom of information.”

Shri Madhav Godbole

The Constitution recognises the Right to Information as a fundamental right and this has been upheld by various Supreme Court decisions. The Statement of reasons and objects of the Bill states that the Bill is in accordance with Article 19 of the Constitution as well as Article 19 of the Universal Declaration of Human Rights. These documents talk about the Right to Information and not freedom of information. Section 3 of the Bill needs to be amended to reflect that the Bill recognises the "Right to Information" inherent in the Constitution.

 

Shri A.G. Noorani

The Bill should say that all citizens have the freedom of information. Freedom of information is not being granted by the Bill, its is already there in the Constitution.

 

Mazdoor Kisan Shakti Sanghathan

The Bill should seek to operationalise the constitutional Right to Information and must recognise that information is an entitlement and not a favour.

 

CLAUSE 4: OBLIGATIONS ON PUBLIC AUTHORITIES

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 4 of the Bill is grossly inadequate in dealing with the obligations of public authorities. While enacting a legislation on Right to Information, one must recognise there are certain kinds of information which must be mandatorily available to the people and there are certain other kind which can be made available on request.

 

Section 4 should be modified and the following shouldbe added to the list of information set out in Section 4(b) that is to be mandatorily disclosed to the public:

-The description of the subjects on which the public authority holds records and   the categories of records held on the subject.

-Details of notifications, orders directions passed by that public authority or are applicable to that public authority.

-The description of the services available to the members of the public from the public authority and how to gain access to such services.

 

In Section 4, the definition of the word “Publish” needs to be added, mere publication in the Official Gazette will not be enough since this document is not easily available to the common person, thereby defeating the very purpose of the provision. The term “Publish” should be defined such that the material is easily accessible to the common person and should mean publication through mass communication channels such as radio, television, newspapers and other such means.

 

 

 

 

 

 

 

 

 

 

Clause 4(b) of the Bill already contains provisions for mandatory disclosure of such information.

 

 

 

 

 

 

 

 

 

 

 

 

 

The ‘Official Gazette’ is a public document and easily available to the common man.  The number of public authority for all the organisations proposed to be covered under the Act would be very large and it would not be feasible to publicise all the recored of such authorities through radio, television, newspapers, etc. Nevertheless, the mass communication channels themselves give due publicity to important decisions and policies framed by the public authorities that affect the public and there does not seem to be any need for making a statutory provision.

Shri  B.G. Deshmukh

Section 4(b) - it should be specifically stated that the mandatory and voluntary disclosures in this section should be published annually.

The Bill already contains a provision for publishing the organisational information at such intervals as may be prescribed by the appropriate Government or competent authority.

 

Since all the projects may not be of interest to the general public, it would not be desirable to make a provision for the information to be communicated to the public at large.  However,  there may be no objection to the words “maintenance of democratic principles” being substituted by the words “natural justice and promotion of democratic principles”.

 

 

 

 

 

 

 

 

Provision for upgrading of information have already been made in clause 4(b) of the Bill.

 

Provision for  making pro-active disclosure of information are already contained in section 4 (e) of the Bill.  This includes information relating to life, safety, health and environment.

 

 

 

The existing provision for suo moto disclosures are considered adequate for the purpose of attaining the objectives of the Act.

 

 

 

Shri Madhav Godbole

Section 4(d) states that every public authority shall, "give reasons for its decisions whether administrative or quasi - judicial to those affected by those decisions". This section needs to be amended by adding the words "and others, as widely as possible" after the words "to those affected by those decisions".

 

Section 4(e) should be amended to include the words "and" after the words "public generally" and once again after the words "persons affected". Further, the words "maintenance of democratic principles" should be substituted by the words "natural justice and promotion of democratic principles".

 

Consumer Education and Research Centre

The Bill must provide for mandatory upgrading of information by the authorities required to provide this information to the public. This upgrading should be done within a specified time limit and systems must be computerised.

The Bill should provide for pro-active disclosure of information by public authorities especially information regarding life, safety, health and environment.

 

Shri A.G. Noorani

The current provision for suo motto disclosures are not sufficient. There should be an obligation on the Government to publicise certain kinds of information such as sanction of projects, awarding of tenders, giving major licenses.

Mazdoor Kisan Shakti Sanghathan

Section 4 of the Bill explicitly places duties on public authorities to maintain records and to give reasons for their decisions. However, it is recommended that the positive duty of public authorities to inform the public, even if information is not sought, should be expanded under this Section, to include all information required by citizens to protect their rights and to enforce transparent and accountable governance. The list of suo moto disclosures should be illustrative and not exhaustive in nature.

 

The Bill is silent on the matter of publication of information. Publication should be understandable and communicable. The Bill should provide that publication should be "by electronic or Print Media or by beating of drums or any other suitable method" and should be in vernacular languages. Where information is concerning the life and liberty of a person, Section 4 should incorporate the guidelines set down by the Supreme Court in D.K Basu v State of West Bengal. 

 

Clause 4(e) of the Bill already casts a positive duty on the public authorities  to provide pro-active disclosure of information available with them with a view to enable the citizens to protect their rights.  The list of suo-moto disclosures has been made comprehensive so that there may not be any variations in its interpretation and application.

 

 

 

 

It is implied that any publication of information under the proposed Act would be capable of being understood and communicable.  The media, as also the language, to be used for publishing the information, would vary in individual situations and this has been left to the discretion of the concerned public authority.

 

The guidelines laid down by the Supreme Court in D.K. Basu’s case shall be duly taken into consideration while drafting the rules under the proposed Act.

 

   CLAUSE 5: APPOINTMENT OF PUBLIC INFORMATION OFFICERS

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 5 should mention the level in the administrative ladder at which the Public Information Officer would be appointed. Further, the law must clearly state that the responsibility of providing information under the Bill should be with each and every officer of the Public Authority. The Bill should also provide for the delegation of the authority of the Public Information Officer. The following clause could be added to Section 5 and be numbered as Section 5(5).

 

Section 5(5)

 

a)      For the purpose of this Act each public authority must designate such number of personnel of the public authority as Deputy Information Officers as are necessary to render the public authority as accessible as possible to the people.

 

b)      The Public Information Officer of each public authority shall have direction and control over Deputy Information Officer of that public authority.

 

c)      The Public Information Officer of a public authority may delegate a power or duty conferred or imposed on that Public Information Officer to any Deputy Information Officer of that public authority. Any power or duty delegated herein must be

 

 

Keeping in view the functions, the officer assigned to deal with requests for information has appropriately been designated as ‘Public Information Officer’ and no change is therefore called for.  After the Bill is enacted, it is proposed to issue instructions to the various public authorities to ensure that the officer to be designated as ‘Public Information Officer’ for the purpose should not be below the rank of Deputy Secretary/Director to the Government of India.  Since the designation of officers of this level shall be different for individual organizations depending on their size, it is not possible to define this level precisely in the Act.

 

 

 

 

Clause 5(1) of the Bill already provides that every public authority shall appoint one or more officers as Public Information Officers.  It would, however, not be desirable to vest the responsibility of providing information with each and every officer of the public authority as multiple authorities would create difficulties for the requester in   identifying the authority to be approached for obtaining information.  Further, section 5 (3) of the Bill already provides that the Public Information Officer may seek the assistance of any other officer as he considers necessary for the proper discharge of his duties.  In this context, there is no need for appointing Deputy Information Officer not to mention that such a

 

 

exercised or performed subject to such conditions as the person who made the delegation considers it necessary.

 

d)      Any delegation made herein

    i) Must be in writing

   ii) does not prohibit the person who made the delegation from exercising the power concerned or from doing the duty concerned himself; and

   iii) may at any time be withdrawn or amended in writing by that person.

 

f) Any right or privilege acquired or any liability or obligation incurred as a result of a decision in terms of a delegation as set out herein is not affected by a subsequent withdrawal or amendment of that decision.

hierachy could lead to dilution of authority and responsibility.  Incidentally, it may be stated that the foreign legislations too generally do not contain any provision for the authority designated to deal with requests for information, to delegate his authority to any other officer in the organisation.

 

 

 

 

 

 

 

 

Shri A.G. Noorani

The designation of "Public Information Officer" is wrong since there are already 'Press Information Officers' and  'Information Officers' in the Government.  The officer appointed must be called "Commissioner for Information". This Commissioner for Information must present an annual report to the Parliament and to the respective State Assemblies on the working of the Law.

 

 

 

 

 

 

 

 

 

 

 

Though the head of the public authority is enjoined to ensure adherence to the provisions of the proposed legislation,  it would not be appropriate to hold him responsible for any acts and omissions on the part of his subordinates.

 

 

Mazdoor Kisan Shakti Sanghathan

In Section 5, which provides for the appointment of Public Information Officers in every public authority, it needs to be added that the ultimate responsibility to ensure adherence to the provisions of the Bill vests with the head of each public authority, and they are vicariously liable in the event of any violation by their subordinates.

 

 

 

   CLAUSE 6: REQUEST FOR OBTAINING INFORMATION

 

Name of Organisati-on/ Individual

Comments/ Suggestions

Response of Government

Commonwe-alth Human Rights Initiative

Section 6 should be reworded to make the procedure simpler and clearer. Since the intent of the Bill is to put in place an effective procedure for enforcing the Right to Information, the procedural issues must de detailed and clearly stated. The Bill should provide for acknowledgement of a request for information made to a Public Information Officer.

The procedural issues, including the acknowledgement for a request for disclosure of information, would be dealt with in the rules to be framed under the proposed Act.

 

 

 

 

 

Mazdoor Kisan Shakti Sanghathan

The Bill should provide for a set format for applying for disclosure of information. All possible assistance must be provided to people who apply for information. There should be a provision for recording all applications made for information. An acknowledgement must be given for a request for information. The right of inspection of information must be provided.

 

A request for access to information can be made by a person through a simple application and no format has been prescribed for the purpose in order to avoid any inconvenience to the public.

 

The proviso to clause 6 of the Bill already lays down that the Public Information Officer shall render all reasonable assistance to the person making the request.

 

The right of inspection of information has already been provided in clause 2 (c) (i) of the Bill.

 

CLAUSE 7: DISPOSAL OF REQUESTS

 

Commonwe-alth Human Rights Initiative

In Section 7, a provision for requests for urgent information and for waiver of fees in certain cases must be included and the section reworded to accommodate these requests.

 

The law must clearly state the fee that can be charged (which should not be excessive and unreasonable) and must also contain provision for waiver of fees in cases where demand for information is made from people who are unable to pay the same or in cases where information is sought in public interest or for protection of life and liberty.

 

It would be difficult for the Public Information Officer to determine whether the group/individual cannot, for genuine reasons, pay the prescribed fees or for that matter the information is being sought in public interest etc.  Moreover, it would also be difficult to follow a consistent and uniform approach in handling requests for waiver of fees.  Hence, no provision has been made in the Bill for exemption from payment of fees.  However, there may not be any objection to make a provision in the bill that the fees charged shall not be unreasonable.

 

The Section must contain a provision for deemed refusal in cases where there is no response to the request within the stipulated time limit.

The law must clearly state that where information sought is regarding the life and liberty of a person, the same must be provided within 24 hours. People request information because they need to fulfil a specific need; they must not be made to wait for 30 days in such instances.

The provision for ‘deemed refusal’ has not been included in the Bill on the consideration that it might prove to be counter productive.

There may not be any objection to a provision being made in the Bill that where the information suought for under the Act relates to life and/or liberty of a person, the same shall be provided within 48 hours as an exception to the general rule.

Consumer Education and Research Centre

The time specified for response to requests is very long, 30 days is too long to wait for information. People request information because it is needed and is relevant to a person at a given point in time. Certain type of information which affects life and liberty of persons should be provided within 24 or 48 hours.

The response times to FOI access requests have been prescribed as 30 days by Canada, 20 working days by New Zealand, 30 days by Australia, 20 working days by USA, 28 days by Ireland and 20 working days by UK.  In this context, the response time of 30 days provided in the Indian FOI Bill is not considered to be long.

 

 

Shri  A.G. Noorani

There must be a provision which states that if information is not provided within 30days it is deemed to have been refused.

Mazdoor Kisan Shakti Sanghathan

The proviso clause to Section 7 (I) must be deleted, because it leaves loopholes to enable public authorities to delay supply of information.  There is no reason why the cost of providing information cannot be realistically assessed at the time the application seeking information is initially made.

 

 

On receipt of an application, the Public Information Officer is first to ascertain whether the document sought for exists at all or not.  This search would naturally take some time and at this stage  it is not possible to work out the labour required for retrieval

 

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

 

This is This is also related to the fees chargeable for supplying information, which has been left under Section 18(2)(a) to the Rules.  The Bill itself should lay down that the fee that can be charged cannot be higher than the actual cost of reproducing the document containing the information, and should not include the costs of actually creating the document.  After all, the creation of the document containing the information was any way the duty of the public authority, independent of the application for the copy of the information.

 

Information that is necessary, urgent and is required for the protection of the life and liberty of persons should be provided within a much shorter period of time - e.g.: the Goa Act says within 48 hours.  

 

If information is not provided within a stipulated time period, it must be deemed to be a refusal and appeal must be allowed even though there has been no express rejection of the request.

 

and copying of the documents.  it would not, therefore, be possible to make a therefore, be possible to make a realistic assessment of the cost of providing information at the time the request therefore is made.  In fact, all similar legislations contain a provision placing a certain time at the disposal of the authority to enable him to determine and communicate the cost involved to the requester.

 

The proposed Act does not envisage the creation of  new records for the purpose of providing the information sought for.  The information shall  be provided on the basis of the existing records and the labour/cost involved in creating these records would not be taken into consideration while computing the fees for providing the access. 

 

 

It is implied that access to information shall be given in the particular official language in which the record already exists under the control of the Government institution.

 

 

Shri  B.G. Deshmukh

Section 7(1) it must be stated that the information asked for shall be provided either in English, Hindi or in language of the state,

 

CLAUSE 8: EXEMPTION FROM DISCLOSURE OF INFORMATION

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

 

Sections 8 and 9 of the Bill set out the exemptions from disclosure and the grounds for refusal of access to information. While some of these are necessary and reasonable, wide ranging exemptions can defeat the very purpose of the legislation. Since the object of the legislation is to give effect to the fundamental Right to Information under the Constitution of India, the restrictions in this right should be limited to the restriction set out in the Constitution of India. The exemptions to access to information laid down in the Bill go far beyond the limits prescribed by the Constitution of India and take in factors which are extraneous to the reasonable restrictions envisaged by the Constitution of India.

 

The right to information should be restricted only by “imposing reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement of an offence”, as set out in the Constitution of India.

 

Under Article 19 (2), the State is competent to impose reasonable restrictions on the exercise of the right under Article 19 in the interest of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.  In the present day context, security of the State is viewed not only from the point of defence security but from the point of economic security as well. Care has, therefore, to be taken to protect commercial and trade secrets because in an era of globalisation and competition, the Government has to protect the legitimate economic and commercial interests and the competitive position of the public authority. Clause 8 of the

Bill, which provides exceptions to grant of information, has been drafted in such a manner that the exemption are concise, well defined, have a clarity of expression and are consistent with Article 19 of the Constitution.  Most of these exemptions have already been provided in the similar Acts legislated by some of the advanced democracies and in fact, the exemptions in some of these legislations far outnumber the  exemptions in the Indian FOI Bill.

 

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Consumer Education and Research Centre

Section 8 and 9 contain omnibus clauses under which information can be refused to the public, these clauses need to be amended to make the exemptions more narrow and well defined. The Bill must clearly provide that all information that cannot be denied to the members of the parliament/legislature should not be denied to the public.

 

 

 Clause 8(1)(a)

 

JUSTICE P.B. Sawant

 

 

 

 

 

 

 

 

 

 

 

 

Section 8(1)(a) "…. Strategic scientific or economic interest of India or conduct of International Relations".

 

Unless the above mentioned words are relatable to the security of the State or friendly relations with foreign states, respectively, as mentioned in Article 19(2) of the Constitution of India will be violative of 19(1)(a).

The general principle adopted in drafting the Bill has been that whatever information could be made available to the Parliament/State Legislatures should be available freely to the general public.  The Bill, therefore, does not make any distinction between the general public and the members of Parliament/State Legislatures and, subject to the exemptions in the clause 8, all information that cannot be denied to MPs/MLAs shall be made accessible to the public also.

 

Clause 8(1)(a)

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri  Madhav Godbole         

Section 8(1) seeks to deny large amounts of crucial and important information to the people. It is necessary in this context to note that under the Rules of Transaction of Business formulated by the Government of India certain matter have to be necessarily put up to the Cabinet for a decision. To deny access to all such matters after decision is taken cannot be justified. Deliberations of Cabinet Secretaries should not be put on par with deliberations of Cabinet and Cabinet Committees. The notings on the file made by Government officials should be made known to the public after decisions are taken on concerned files. Pros and cons of decisions or cases are viewed in the Cabinet note and people outside ought to know the basis on which the Cabinet made certain decisions.

 

In Sections 8(1)(a) the words “or conduct of international relations”, must be deleted, the term "international relations" is very wide and ambiguous.

It would be pertinent to mention that information which would prejudicially affect the conduct of international relations has been exempted from disclosure in the legislations enacted by Australia, New Zealand, Ireland,  The Netherlands, USA, France and Canada.  The provision in the Indian FOI Bill making a similar exemptions, is therefore not an exception.

 

The deliberations of the Committee of Secretaries have been included in the list of exemptions since these often from an inextricable part of the Cabinet decision making process.


Clause 8 contd….

 

Clause 8(1) ( c), (d), (e) and (g)

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri  Madhav Godbole         

Section 8(1) sub-sections (c), (d) and (e) cover the entire working of the Government. By including these in the exemption clause, the working of the Government from the Cabinet Committee to the Secretaries Committee is not being made available to the people. These provisions bring on par the Cabinet Committee and the Secretaries Committee and must be done away with, nothing belonging to the Cabinet must be a secret forever.

 

According to the UK Government white paper presented to Parliament in 1997 in connection with the legislation of the FOI Act, the internal discussions and advice is exempted from disclosure in Australia, New Zealand, Ireland, Netherlands, the USA, France and Canada.  All these countries, while recognising that the public has a Right to Know the decisions of the Government, have considered it fit to exclude the deliberative processes from disclosure.  In India also, the Government is keen to encourage free and frank expression of views on the part of various officers.  A conscious view has therefore been taken that the deliberative process in coming to a decision should not be made available to the public. Accordingly, the FOI Bill, 2000 exempts minutes or records of advice including legal advice, opinions or recommendations made by an officer of a public authority during decision making process prior to executive decision or policy formulation.

 

The list of exemptions set out in clause 8 (1) of the Bill has been kept to the barest minimum and the Ministry of Law, Justice & C.A has been consulted from time to time so as to ensure that these exemptions do not violate the Constitutional provisions or the judicial pronouncements.

JUSTICE P.B. Sawant

Section 8(1)(c) will be violative of Article 19(1)(a) since it does not appear to be covered by Article 19(2) or any other provision of the Constitution.

 

Section 8(1) (e) - if the provisionmeans that the minutes or records of advise etc mentioned therein will not be covered by any of the exceptions mentioned in Article 19(2) or any other Constitutional Provision. It will also be contrary to the substance of the law laid down in S.P Gupta's case.

 

Mazdoor Kisan Shakti Sanghathan

The Supreme Court has interpreted that the Right to Information flows from Article 19 of the Constitution of India. Therefore any restrictions on this right has to be justifiable only on the exceptions set out in Article 19(2) of the Constitution. The Bill envisages several exemptions to providing information, which go beyond the reasonable restrictions envisaged in the Constitution, hence these exceptions are unconstitutional. Therefore the list of exceptions in the proposed Bill must be cut short.


Clause 8 contd.

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

 

It is recommended that information that is available to the members of Parliament and/ or members of the State Legislative Assembly/Council should not be denied to any person.

 

Section 8(1)(d) while advise to Cabinet and deliberations of the Cabinet prior to arriving at the decision may be exempt, Cabinet records should not be exempt.

 

Section 8(1)(e) should be deleted because in order to hold public authorities accountable, it is not enough to know what decision was ultimately taken but also to know the content of the advise and recommendations made by various authorities in reaching the decision.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The existing provisions of clause 8 (1)(g) are considered appropriate as per the standards of drafting and require no change.

Shri A.G. Noorani

The Bill states that information that prejudicially affects Centre-State relationships need not be given. The language is too wide, and anything can be termed prejudicial.

           

Section 8(1)(g) the word "information the disclosure of which may result in breach of privilege" should be substituted with the words  " information the disclosure of which will violate the law of Parliamentary Privilege".

 

 

 


Clause 8(2) and Proviso to Section 8(2):

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri A.G. Noorani

Proviso to Section 8(2) - the proviso gives finality to the order of the Central Government regarding disclosing archived records, this clause is highly restrictive in nature. Further the clause is only applicable to "any occurrence, event or matter which has taken place, occurred or happened 25 years before the date on which the request is made". The proviso excludes "Records" and "Information" as defined in the Bill itself, making access to archived records impossible.

 

 

 

Clause 8 (2) provides that any ‘information’ relating to any occurrence, event of matter which has taken place 25 years earlier, shall be provided to any person making a request.  The expression ‘information’ has been defined in clause 2(d) to mean any material in any form relating to the administration, operations or decisions of a public authority.  ‘Records’ are the manifestation of a material in a particular form and would therefore be covered within the existing definition and there need not be any apprehensions that it would not be possible to access archived records.

 

     None of the legislations enacted by the advanced democracies contain a provision for providing access at any time to information which is exmpted from disclosure under the provisions of the respective Acts.  The provision in the Indian FOI Bill for providing access to the exempted information 25 years after the record was created or the date of occurrence of the event, is a step ahead of the other legislations.  A period of 25 years is considered necessary in the interest of the security of the country, individuals, etc. and lowering this to 15 years may not be appropriate keeping in view the risks involved.

 

Shri  Madhav Godbole

Section 8(2) the period of 25 years proposed for releasing information under this Section is unconscionably long. It is suggested that 25 years be substituted with 15 years. The Government should set up a Records Commission  which will consist of eminent public figures and Government representatives and will continuously monitor and review the release of records for public information. It is further suggested that the following proviso be added to Section 8(2):

            “Provided that all such papers and records will be reviewed by the competent authorities every five years with a view to release all such information which can reasonably be made available to people.”

 

 

Clause 8(2) and Proviso to Section 8(2):

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri  Madhav Godbole

Proviso to Section 8(2) – the words “twenty five years” may be substituted by “fifteen years”. It may also be added that the decision of the Records Commission will be final unless the Minister in-charge over rules the decision of the Commission for reasons which shall be recorded in writing.

   The setting up of a ‘Records Commission’, to monitor and review the release of the records for public information, is not the scope of the proposed Act and no provisions need therefore be made in the Bill.

 

 CLAUSE 9: GROUNDS FOR REFUSAL OF ACCESS IN CERTAIN CASES

 

Clause 9(a)

Shri A.G. Noorani

Section 9(a), the words "is too general in nature" are too vague and give scope to officers of the Government to evade giving information. Further, the words "would involve disproportionate diversion of the resources of a public authority" are used, the word "disproportionate" is rather subjective, a better word to use would be "unreasonable".

Clause 9(a) is neither vague nor gives any scope to the officers to evade requests. In fact, similar provisions exist in almost all the foreign legislations for dealing with vexatious requests.  However, there is no objection to the word ‘disproportionate’ being replaced by ‘unreasonable’.

 

 

The intent of the proposed Act is to allow access to information which already exists and the Bill, therefore, does not envisage the creation of ‘records’ for the purpose.  Clause 9(a) of the Bill is, however, not related to this aspect and consequently no modifications are required to be made to this clause.

Mazdoor Kisan Shakti Sanghathan

Section 9(a) should be deleted because it gives public authorities wide unfettered powers to reject applications for information. The spirit of the section would be served if it is clearly stated that an application cannot be made under the Bill for the creation (or aggregation) of new information that is not already required to be created (or generated) under existing laws and rules.

 

 

Clause 9(b) and (c)

 

Commonwealth Human Rights Initiative

Section 9 (b) and (c) should be deleted as they are rather wide and can cause many difficulties as a wide range of information can be denied saying that they are contained in annual reports of departments or in the official gazette. Publication in

The Government publications, including Official Gazettes, manuals, annual reports etc. are available to the common man through various retail outlets and these can be procured by any person desirous of referring to the record.  As such, the public

 

   Clause 9(b) and (c)

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

 

Government parlance means publication in the Official Gazette. It is not reasonable to expect a person with minimal or no literacy skills to search for documents in the Official Gazette or reports which are unavailable to the common person. Therefore, refusing to grant access on the ground that the information is already published or will be shortly published is not a valid or justified reason, unless the material is published in a manner that is easily accessible to the common person.

 

Under Section 9, if some kinds of information can be routinely put in a publication, the law should clearly put the onus on the public authorities to publish and make available the information in sufficient quantities within a specified period of time and if necessary to price them reasonably so that they may be within the reach of the common person.

 

 

 

 

 

 

authorities would be justified in denying information to the requester where such information is already available in published material.

 

 

 

 

 

 

 

 

 

 

 

 

Some Government organizations are already bringing out publications containing information about their activities, statistics available with them, etc.  which are of interest to the common man.  In case any person or group of persons or any institution has suggestions to make for bringing out any new publications, or for modifying the contents of the existing publications, they are free to approach the concerned organization.  A statutory provision in the FOI Bill, for bringing out such publications, is obviously not desirable.

 

Some of the advanced democracies have already enacted legislations to protect the privacy of individuals.  In India, there is no ‘Privacy Act’ to afford such protection and the possibility of ‘harm’ being caused to an individual by release of personal information cannot be ruled out.  A conscious approach has, therefore, been adopted by not allowing such disclosures under any circumstances.

Shri Madhav Godbole

Section 9(d) relates to information which would cause unwarranted invasion of the privacy of any person, this Section needs to be qualified with the same kind of proviso as in Section 11, namely, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of privacy of any person.

 

 

  CLAUSE 10: SEVERABILITY

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

The provision on severability is an excellent one, however, the Bill must provide for appeals against a decision to severe some parts of the document.

The Australian Act provides that in cases where the ‘exempt’ information is being severed from the ‘non-exempt’ information and access is being given only to the latter, the applicant must be informed of the fact of deletion, the grounds for deletion and also the provisions of the Act under which the matter deleted is exempt.  Therefore, there may not be any objection to incorporating the following provision as sub-clause (ii) under clause 10 after renaming the existing clause as sub-clause (i):

 

   “(ii) Where access is granted to a part of the record in accordance with sub-section (i), the person making the request shall be informed.

(a) That it is a part of the record after deleting the record containing information which is exempted from disclosure.”

(b)  the provision of the Act under which the deleted part is exempt from disclosure”.

 

A decision to severe a part of the record would be deemed to be a ‘part’ refusal of the request for which an appeal can be made under Clause 12(1).  The existing provisions of this clause are considered ‘adequate’ for the purpose of filing such an appeal.

 

Mazdoor Kisan Shakti Sanghathan

Section 10 of the Bill should state that reasons for withholding parts of a document must be given to the requestor, and the copy of the document provided should indicate which portions of the document has been withheld. The provisions regarding severability in the Press Council Draft of 1997 should be included.

 

CLAUSE 11: THIRD PARTY INFORMATION

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 11 is a standard provision that is universally accepted, however a period of 50 days for inviting third party representation is too long and will be detrimental to the interest of the requestor. The Section should provide for maximum 15 days to issue notice and 15 days to reply.

 

The Third Party intervention is universally accepted and almost all the foreign Acts contain such a provision.

 

The Canadian Act specifies a total time-period of 60 days in which to take decisions on requests that relate to Third Party Information.  In this context, the period of 50 days stipulated in the Bill for giving notice to the Third Party and obtaining representation thereon, is not considered as too long.

Shri Madhav Godbole

Section 11, the words “fifty days” should be replaced by the words “thirty days” as a period of  “thirty days” should be quite adequate for a third party to respond.

 

Mazdoor Kisan Shakti Sanghathan

Section 11 “third party” clause is redundant and is likely to create a major loophole to enable delays. Once the Bill is operational, the third party may be presumed to know that the information is legally subject to disclosure, so it cannot legally have the information treated as confidential. The corresponding Section 12(4) should also be deleted.

 

 

CLAUSE 12: APPEALS

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 12 containing the provision for internal appeals are the weakest part of the Bill. The Bill does not provide for an independent forum for appeal, which is the hallmark of FOI legislations world over and ensures its effectiveness. An appeal process within  the Government cannot ensure fairness in decisions. It is recommended that either a commission for freedom of information or an independent tribunal having powers of the civil court be set up to hear appeals from decisions of the public authorities.

 

The question of providing an independent appeal mechanism was examined carefully in the context of the recommendation made in the Shourie Working Group Report that such powers may be vested with the forums set up under the Consumer Protection Act, 1986.  However, it was noted that the deficiencies in the working of Consumer Forums as well as the Courts in the form of massive arrears and chronic shortages of man power, etc. would appear to undermine the effectiveness of either of these forums as appellate forums under the proposed Act even from the point of view of cost, speed of disposal and convenience to the public.  On the other hand, departmental appeals would be far more economical and cost effective for the appellants, especially for most of the information at the district level, as they would not entail expenses such as lawyer’s fees, court fees, etc.  For a person dissatisfied with the outcome of his appeal, the writ jurisdiction of the High Court would still be available.  In view of this, and also considering that the proposed legislation was a new kind of legislation requiring a break with the present administrative culture, the Bill provides for a two-tier appellate remedy of a purely departmental character at different levels to be determined by the appropriate Government or the competent authority, as the case may be.

Shri Madhav Godbole

It may be advisable to lay down general principles for appointment of appellate authorities. It is recommended that the first appeal be to the next higher officer in the department itself, the second appeal should be to the Lok Ayukta (in states that have established Lok Ayuktas) or to the Board of Revenue or Divisional Commissioners. In the case of Government of India, while the first appeal may be within the department itself and the second appeal may be to such authority as may be prescribed by each department under the rules.

 

Consumer Education and Research Centre

The appeal mechanism should be independent through a formal non-governmental institution like a commissioner or an ombudsman. The present mechanism is, unsuitable, unworkable and hence not acceptable. There should be a District Information Commissioner who is independent of the Public Authority, if a person is unable to get information he should approach the District Information Officer and appeals form decisions of this officer can lie with the State Information Officer.


Clause 12 contd….

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri A.G. Noorani

The Bill must provide for an independent tribunal to adjudicate matter concerning freedom of information. A retired Judge of a High Court should be appointed to head this body, the appointment for the Centre should be made in consultation with the Chief Justice of India and for the State should be made in consultation with the Chief Justice of the respective State High Court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Since the Third Party intervention is universally accepted and almost all the foreign Acts contain such a provision, deletion of clause 12(4) would not be appropriate

Mazdoor Kisan Shakti Sanghathan

Section 12 does not provide for appeal to an independent body outside the Government. There is no objection to one appeal within the Government, but in the event there is no redress, there must be a provision for appeal to an independent person or institution outside the Government like an ombudsman.

           

The legislation should provide for one internal appeal and a second external appeal but this appeal should be to an independent body like the Lok Pal to be constituted under the proposed Lok Pal Bill.

 

In light of the argument presented with respect to Section 11, Section 12(4) should also be deleted.

 

Shri B.G. Deshmukh

In Section 12(2) the second appeal should lie to the an independent statutory authority like the Vigilence Commission, Lok Pal or the Lok Ayukta and not to the Central       or State Government as provided under the Act.

 

In Section 12(3) the outer limit for the "extended period" should be provided - the authority must not be allowed to indefinitely postpone dealing with appeals and giving decisions.

 

CLAUSE 13: PROTECTION OF ACTION DONE IN GOOD FAITH.

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 13 is a very dangerous provision and gives protection to public servants for not having complied with the provisions of the Act, the provision reflects a very protective attitude towards public servants and defeats the very purpose of the legislation especially in the absence of provisions for accountability and penalties for public authorities. This provision would be meaningful only if it covers disclosures made by public authorities in public interest even if the information is barred from disclosure in terms of the Act. It is recommended that this provision be substituted by a provision for protection to whistleblowers.

 

“No person is criminally or civilly liable for anything done in good faith in the exercise or performance or purported exercise or performance of any power or duty in terms of this Act.”

 

The protection of action taken by a person in good faith under the FOI Act is universally accepted.  Various FOI legislations, notably those enacted by Canada, Australia, New Zealand, Ireland, etc., contain specific provisions for giving such protection. There is, therefore, no need to substitute the provision.  It would also not be appropriate to put burden on the public servant to show good reason for grant of protection, especially when none of the foreign legislations mentioned above contain such a provision, as any such provision is bound to be counter productive.

Shri B.G. Deshmukh

In order to avoid abuse of this provision by public servants there must be a burden on the public servant to show good reason for grant of protection.

 

CLAUSE 14: ACT TO HAVE AN OVER RIDING EFFECT

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 14 of the Bill should be reworded to make the import clearer. The Bill overrides any Act in force and specifically the Official Secrets Act, to the extent that they are inconsistent with the provisions of the Bill. No doubt that while in some cases this would expand the area of information made available, but the language of the provision has the potential to curb or restrict any pre-existing right and procedure for providing access to information in an expeditious and progressive manner in relation to the Bill. For example, the Goa Act provides that information has to be provided within 48 hours in cases of urgent requests related to information affecting life and liberty. This important and useful provision may be read to be “inconsistent” with the provisions of the Bill in its present form and consequently may be overridden.

Clause 14 of the Freedom of Information (FOI) Bill, 2000 gives over riding effect to the proposed Act as it lays down that the Official Secrets Act (OSA), 1923, and every other Act in force, shall cease to be operative to the extent to which they are inconsistent with the provisions of this Act.”  The Shourie Working Group had also recommended in Para 3.20 of its report that the proposed Act might be frustrated by other legislation unless there is a non-obstante clause.  After the receipt of the report of the Working Group, the Ministry of Home Affairs examined the Official Secrets Act, 1923 and concluded that there is no inherent contradiction between this Act and the proposed FOI Act casts an obligation on the part of the public authority to provide information which is not exempted under clause 8 and 9, the OSA, 1923 basically deals with prosecution of any person communicating official secrets to another person.  Thus the ambit and scope of OSA Act, 1923 is different from the FOI Act but to the extent that there is any contradiction, the FOI Act, will prevail.  After the Bill becomes an Act, the concerned Ministries will have to review the existing Acts, rules, manuals and instructions which come in conflict with the proposed Act.  The Departmental Security Instructions will also be suitably amended, wherever necessary.

 

 

Shri Madhav Godbole

In the first line of this Section after the words "every other Act" the words "rules and manuals" may be added. So that all rules and manuals which are inconsistent with the Act may cease to be operative.

Consumer Education and Research Centre

 

There must be a clear repeal of the Official Secrets Act of 1923.

 

 

 

 

Shri A.G. Noorani

The Official Secrets Act should be amended, as it is an obsolete legislation which is based on the UK Act of 1909, this Act is unconstitutional dues to the strides we have made since then. There should be no doubt that the Official Secrets Act will be overridden by the Freedom of Information Law, necessary amendments need to be made to the Official Secrets Act.

 

CLAUSE 15: BAR OF JURISDICTION OF COURTS

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 15 should be deleted and replaced with a provision to appeal to an appropriate judicial forum. In the absence of an alternative remedy this section is untenable and ultra vires the Constitution.

 

The Working Group under Shri H.D. Shourie had considered the appellate remedy in case the departmental appeal does not succeed.  The Group examined the feasibility of providing for appeal to the Courts having jurisdiction over the concerned public authority but felt that this might not prove to be an effective appellate remedy considering the state of arrears in the Courts and the  pendency of litigation.  Therefore, the Working Group recommended that an appeal in such cases may be preferred to Consumer Protection Courts under the Consumer Protection Act, 1986.  When this recommendation was examined, it was felt that the state of arrears under consumer Courts was also a discouraging factor in accepting the recommendation made by the Working Group.  It was, therefore, felt that the jurisdiction of lower courts may not result in quick disposal of appeals and the jurisdiction of Supreme Court and the High Courts under Article 32 and 226 would be sufficient to decide such cases.

Shri Madhav Godbole

The justification for this provision is not clear, further it is likely to be struck down by the Courts. There is no reason why a common citizen should be forced to take recourse to writ remedy, which is expensive. It is recommended that this Section be deleted.

 

Consumer Education and Research Centre

 

 

 

This Section excludes the jurisdiction of the Courts and is a violation of the fundamental rights of the citizens, unless an effective separate, efficacious and independent remedy is provided.

Shri A.G. Noorani

Omission to provide an independent appellate body is a major flaw in the Bill. Section 15 bars the jurisdiction of the Courts, no restriction will be judged "reasonable" by the Courts unless an alternative remedy is provided by way of an independent quasi-judicial appellate authority to decide contested cases.

 

 

   CLAUSE 16: ACT NOT TO APPLY TO CERTAIN ORGANISATIONS

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Commonwealth Human Rights Initiative

Section 16 (1) and the Schedule should be reworded to narrow down the blanket exclusion given to entire organisations, excluding certain organisations completely from the purview of this legislation defeats the purpose of the law. There is no rationale for exempting the administrative wings of these organisation from disclosing relevant information. Further, the provision gives wide powers to the Central Government to add to the list of these exempt organisation. The power given to the Government is completely arbitrary without any guidelines whatsoever for exercise of the same.

 

Section 16 (2) should be deleted.

With the advent of information age and its connected technologies, it is becoming increasingly easier to link up individual items of information and obscure references into  a pattern which would give a clue to an integrated intelligence picture.  Access to certain types and categories of administrative information pertaining to security and intelligence organizations, though seemingly insignificant, could at times cause grave damage to national security or embarrassment to the Government in its functioning or prejudice the national, interests.  The purpose for which the various intelligence and security organizations have been established, therefore, casts an obligation on the Government to provide greatest information security not only to their operational wings but to the organizations as a whole.  With this in view, provision has been made in the Bill for keeping the intelligence and security organisations established by the Central or a State Government from outside the purview of the proposed Act. The provision for making additions or deletions  of such organisations given in the Schedule to the Bill is necessary in the context of such organisations being established or closed down in future.

 

   It would not be out of context to mention that in the Australian Act, besides the Australian Secret Intelligence Service and Australian Security Intelligence Organisation, 11 other organizations, such as the Auditor General, Australian National Railways Commission, Housing Loans Insurance Corporation etc. have been totally exempted from the operation of the Act.

Mazdoor Kisan Shakti Sanghathan

Section 16,should be deleted as it provides blanket exemptions to intelligence and security organisations to hide behind a veil of secrecy. Public scrutiny of purchases and personnel policies of such organisations, for instance, would only advance the causes of probity and justice, without in any conceivable way undermining the security and integrity of the state.


   CLAUSE 19: RULE MAKING POWER BY COMPETENT AUTHORITY

 

Name of Organisation/ Individual

Comments/ Suggestions

Response of Government

Shri Madhav Godbole

This Section lays down that certain matter such as fees to be charged for getting copies of documents are to be prescribed by the Rules. This is unacceptable, but it must be laid down in the Act itself that the fees payable shall not exceed the actual cost incurred in preparation of photocopy, etc.

 

It is necessary to provide in the Act itself that fees payable shall not exceed the actual cost incurred in retrieval of the record, preparation of photocopies, etc.  This suggestions shall, however, be taken into consideration while drafting rules under the proposed Act.

  

PART 2: OTHER IMPORTANT ISSUES THAT ARE NOT COVERED BY THE BILL

 

1.       

APPLICABILITY OF THE ACT: The applicability of the Act should not be restricted to only citizens, information should be available to all PERSONS under the Act. The Supreme Court has recognized that Right to Know is an integral part of Right to Life and Liberty and Right to Equality. Since the Right to Life and Liberty and Right to Equality are available to all persons and not restricted to only citizens, the Right to Information should be available to all persons.

 

 

 

Some of the advanced democracies such as Australia, New Zealand, the U.K. etc. have already considered it fit to make available the information not only to their citizens but to other persons as well, such as persons residing in that country, bodies doing business in that country etc.  The Canadian Act, under which information was initially available only to its citizens and permanent residents, was amended in 1989 to include all persons who are living in Canada.  Therefore, there may not be any objection to grant access to information not only to Indian citizens but to all individuals who are present in India but are not Indian citizens.

 

 


PART 2: OTHER IMPORTANT ISSUES THAT ARE NOT COVERED BY THE BILL

 

2.       

AMBIT OF THE BILL: The Bill should apply to the private sector, co-operatives, political parties, non-government organisations, trusts, trade unions, societies and all other organisations and associations. Private companies and individuals that do work or have business that affects public interest should come within the purview of the law. People have the right to know about information that affects their interest, in terms of their health, safety, environment and life in general.

 

It needs to be recognized that the basic purposes of the Freedom of Information legislation are to promote openness, transparency and accountability in Government and to facilitate a fuller and more meaningful participation of the people in the governance.  This cannot be said to apply wholly to private businesses which are not required to primarily subserve public interest as it is commonly understood.  Any attempt to bring the private sector under the proposed legislation is apt to be regarded as an excessive intrusion into the freedom and management of private sector.  There is also the danger that it may become a tool for competitive strategy with deleterious consequences for the industry which are too obvious to require elaboration.  The information relating to operations of private firms which impinges public interest such as health, safety, environment standards, etc. would in any case be accessible under the provisions of the Act from the concerned regulatory authority and there need not be undue apprehensions of the public interest being allowed to suffer.  It is noteworthy that none of the advanced democracies such as USA, Australia and Canada has thought it fit to widen its laws to this extent.

 

3.

COMPULSORY DISCLOSURE OF INFORMATION IN PUBLIC INTEREST: the Bill must provide for compulsory and mandatory disclosure of information by public and private bodies of information that relates

 

The information relating to operations of public bodies and private firms, which impinges public interest such as health, safety, environment standards, etc., would be accessible under the laws framed by the concerned regulatory authority.  Hence, no provisions therefore have been made in the FOI Bill.

 

4.

EXEMPTION FROM PAYMENT OF FEES: The Bill must clearly lay down exemptions to certain groups/ individuals who for genuine reasons cannot pay the fees stipulated. There must be a procedure laid down for collection of fees and when fees will be collected - at the application stage or when the information is actually provided.

 

 

 

It would be difficult for the Public Information Officer to determine whether the group/individual cannot, for genuine reasons, pay the prescribed fees.  Moreover, it would be difficult to follow a consistent and uniform approach in handling requests for waiver of fees.  Hence, no provision has been made in the Bill for exemption from payment of fees.

 

The procedure for recovery of fees is proposed to be laid down in the rules to be framed under the FOI Act.

 

5.

PENALTY CLAUSES: The absence of penalty clauses is fatal  which renders all its provisions toothless. There has to be penalty for giving incorrect, incomplete, or misleading information and a higher penalty of giving wrong information and for repeatedly giving wrong information.  Penalties must include the right to award exemplary or punitive damages. Further there has to be a right to initiate disciplinary action against the authority that has refused information. The following Section may be incorporated in the Bill:

(1) A person who wrongfully denies access to information, or with intent to deny a right of access to information in terms of this Act

a)destroys , damages or alters a record;

b)conceals a record;

 

After the “Freedom of Information Bill” introduced by the Central Government becomes an Act, the CCS (Conduct) Rules, in all India Services, State Services, Local Bodies etc. are proposed to be amended requiring a Government servant to give information which is asked for by an institution or an individual under the Acts.  Any officer who deliberately withholds information or deliberately gives false information, shall be liable to action under the relevant disciplinary rules and it is considered that a departmental penalty would be sufficient in such cases.  Penalties which can be imposed on Government servants under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are (1) censure, (2) withholding of promotion, (3) recovery from pay of any pecuniary loss caused to the Government, (4) reduction to a lower state in the time scale of pay, (5) withholding of increments of pay, (6) reduction in rank, pay, grade or service, and (7) compulsory retirement/removal/dismissal from service.  The actual punishment will depend on the gravity of the offence committed by the official.

 

c)falsifies a record or makes a false record commits an offence and is liable on conviction to a fine of Rs 50,000 or to imprisonment for a period not exceeding two years.

        

   Any Public Authority that does not comply with the provisions of this Act, (including but not limited to the obligations set out in Section 4 of the Act), the Public Information Officer of such Public Authority shall be subject to disciplinary action, unless there are valid reasons on record that show that valid circumstances exist which prohibited the Public Authority from complying with the provisions of this Act.

 

6.

INDEPENDENT APPEAL MECHANISM: the Bill does not provide for an independent appeals mechanism which is the hallmark of Freedom of Information Legislation the world over.

 

 

 

 

 

The question of providing an independent appeal mechanism was examined carefully in the context of the recommendation made in the Shourie Working Group Report that such powers may be vested with the forms set up under the Consumer Protection Act, 1986.  However, it was noted that the deficiencies in the working of Consumer forums as well as the Courts in the form of massive areas and chronic shortages of man power, etc. would appear to undermine the effectiveness of either of these forums as appellate forums under the proposed Act even from the point of view of cost, speed of disposal and convenience to the public.  On the other hand, departmental appeals would be far more economical and cost effective for the appellants, especially for most of the information at the district level, as they would not entail. 

Name of Organisat-ion/ Individual

Comments/ Suggestions

Response of Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Expenses such as lawyer’s fees, court fees, etc.  For a person dissatisfied with the outcome of his appeal, the writ jurisdiction of the High Court would still be available.  In view of this, and also considering that the proposed legislation was a new kind of legislation requiring a break with the present administrative culture, the Bill provides for a two-tier appellate remedy of a purely departmental character at different levels to be determined by the appropriate Government or the competent authority, as the case may be.

 

   Incidentally, the Acts legislated by Ireland, the USA, Japan and Australia too contain a provision for departmental appeals.

7.

INDEPENDENT MONITORING AUTHORITY: There has to be some kind of a provision for monitoring the implementation of the Bill. There should be councils set up for monitoring the implementation of the Bill at district, state and central level, or an annual report should be presented to Parliament or State Legislature setting out inter alia details on how many requests for information were received, how many were responded to, how many were rejected and time taken for response.

 

 

The suggestion to set up National Council/State Council to review the operation of the FOI Act and report its findings to the Parliament/State Legislature was carefully examined in the context of the provisions made in the draft Bill proposed by the Shourie Working Group.  It was felt that the objectives envisaged in relation to National Council and State Councils can best be performed by the instrumentalities of the respective Governments and there is no need to make a provision in the Act itself for setting up such Councils since there is no bar to the Central Government or the State Governments to constitute these Councils at a later stage, under executive instructions, if considered necessary in the light of experience gained with passage of time.

Name of Organisat-ion/ Individual

Comments/ Suggestions

Response of Government

8.

INCLUSION OF LOCAL BODIES IN IMPLEMENTATION OF ACT: Local bodies at grass root level should be included and defined as competent authorities to implement the Act.

The proposed Act would be applicable to all local bodies covered by the definition of ‘public authority’ as given in clause 2 (f) of the Bill.

 

9.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROTECTION TO WHISTLE-BLOWERS:Provisions for providing protection to “Whistleblowers” must be added. The Bill should contain provisions for protection of persons who use information to expose wrong doing and also protection of officers of Government who make available information in public interest. No law on the Right to Information would be complete without protection to "Whistleblowers".

The scope of the present Bill is limited to providing information subject to the specified exemptions and exclusion.  The manner in which the requester uses the information, and consequences arising therefore, is the personal liability of the user and he can claim protection as per the law of the land.  Protection to ‘whistleblowers’ is not the scope of the Bill and hence no provisions need be made therefore.  As for immunity to Government servants who make available information in public interest, suffice to say that the Japanese law provides that a person who violates the Access to Information Law and discloses secrets shall be sentenced to a maximum of 1 year of imprisonment with hard labour, or a maximum fine of 300,000 yen.


 

Name of Organisat-ion/ Individual

Comments/ Suggestions

Response of Government

10.

GUIDE TO USE THE LEGISLATION: Provisions for publication of a guide to use the Act and to publicise it must be added. Unlike other legislations, merely notifying this legislation in the Official Gazette would not serve the purpose of the legislation. The law itself must cast a duty on the public authorities to publicise the law using mass communication channels. Further the law must cast an obligation on the appropriate Governments to publish a guide to use the Act, so that people are aware of the process that needs to be followed in order to access information under the Act and the recourse available to them if information is wrongfully denied to them.

 

The suggestion to publish a guide on how to use the Act, has been noted.  However, this is an ancillary matter and need not form a part of the Bill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Necessary provisions already exist in clause 4(b) of the Bill.

11.

CODE OF INSTRUCTIONS: Code of instructions for providing information should be made available. There must be a specific provision in the Bill, which casts a duty on public authorities to prepare documents, which enable people to know from which authority, office and where information will be available.




§ Nominated w.e.f. 15th March,  2000 vice  Shri Akhilesh  Das.

j Nominated w.e.f. 28th February, 2000.

o Re-nominated  w.e.f. 5th May,2000.

% Nominated w.e.f. 29th May, 2000.

*Ceased to be Member  w.e.f.  7th  November, 2000 on being appointed as a Minister.