We have Wajahat Habibullah, Chief Information Commissioner and Arvind Kejriwal, Magasasay Award winner and Right to Information crusader talking about that and related issues.
Chief Information Commissioner
There has been talk of bringing the private sector within the purview of the Right to Information Act. Do private businesses in some way already come under this Act?
To a certain limited extent, the private sector already comes under this Act. Section 2(f) of the Act, which defines “information,” specifically lays down that any such information that a private party is required to furnish to the government, automatically comes under the Act and has to be therefore disclosed, under an existing law to that effect. Such information is however not accessible directly from the company but from the government department to whom the report has been sent. Moreover, organisations that were set up by an Act of the legislature or a government notification, and were subsequently privatised, automatically come under the purview of the Act. An example of this is the power distribution companies in Delhi that were subsequently privatised. Such organisations are treated as public authorities and come under all the provisions of the Act. These companies have opposed our stand and we are awaiting a judgment of the Delhi High Court on the same. This also holds true in the case of stock exchanges, which are created by public notification of the Securities and Exchange Board of India (SEBI). Many of them have accepted that they are public authorities and therefore answerable under the Act. The Bombay and Jaipur stock exchanges have challenged this, and judgements of the court are awaited.
Would it also suggest that such companies that deal in ‘public goods’ like say mineral resources, also come under the Act?
Any such information in relation to public goods that the company concerned would have conveyed to the government comes under the public domain. It then becomes the government’s prerogative on whether they want to disclose the said information or not, as there are certain exemptions to public disclosure under the Act. It lays down only a few areas where information cannot be given. The Delhi High Court has in fact held that information necessarily has to be given in each case and if the public authority wants to withhold the same, a proper justification has to be given to the satisfaction of the Information Commission.
Is it true that only individual Indian citizens can file a petition under the RTI Act or does it extend to organisations? Can a foreign national also seek information under this Act?
The law, as it is, simply says “citizen of India.” We have examined it and have come to a conclusion that organisations can apply through a citizen. And if an organisation does not apply under the name of any particular person then the information sought can be refused. Also, if a person who is a part of the organisation applies, we will assume that he is applying in his private capacity, as long as he is a citizen of India. We cannot go against the law, but can always interpret the same liberally. Even a foreigner can seek information if an Indian citizen applies on his behalf. A foreign citizen can only be denied information if it can be proved that in doing so, the national economic interest will be jeopardised. Information has been denied to several foreign companies in the atomic energy sector and even in the case of suppliers of generically modified seeds, citing national economic interest. On the other hand, these companies do come under the purview of the Act as they have revealed information to nodal ministries like the Department of Biotechnology.
In your opinion, should an enabling legislation be brought about to bring the private sector as a whole under the purview of the Act?
Such legislations have already been brought about in countries like South Africa and Bangladesh. Yes, such legislation could be brought about, but one will have to be very careful in drafting and then implementing the same, because the private sector is fundamentally very competitive.
Considering the fact that most corporate entities are registered and therefore come under various guidelines that make them accountable, at least in theory, what will be the chief uptake from such legislation if it does come about?
I seriously believe, had such a law been in position, the Satyam scam would not have happened because how the money was being spent, could have been brought to the public notice.
How has the corporate sector reacted to such a suggestion? Is the corporate sector weary of legislation like this?
It is interesting that while the corporate sector has always been behind the government to be more accountable, they are now on the defensive. All private organisations from whom the information was sought, have actually moved the High Court. I have pleaded with the Chief Justice of the Delhi High Court that such cases be decided very expeditiously. I do not think as an entity, the corporate sector is weary of it. There may be individual organisations who might have something to hide.
Is a legislation like this on the anvil?
The government has talked of some amendments to the Act, but I do not frankly think that bringing the corporate sector into the fold is immediately on the mind of the government. It is concerned more with building instrumentalities for easy access of information, something that will take a year or two more. So, it will be a slow, but a steady process. At the moment the limits of the present legislation have not been tested. Have we withstood the test of law? We will know only when the High Court gives its decision.
Why can there not be a public repository of all information that is disseminated under the RTI Act?
The instrumentalities of the Act have not yet come into place. All records have to be computerised and made accessible through a network. This, when it does happen, will cut down the procedural hassles and people will not have to necessarily take the RTI route for everything, barring certain information that may not be on the network.
The bureaucracy has been resistant to the Act and makes life difficult for the common man who wants to access this information. What can be done about it?
The resistance comes not from the senior bureaucracy, but from the lower levels, as they feel the Act makes them less “important.” It is the “mai-baap” or “bada-sahib” attitude that prevails. It is attitudinal and will only go with time. Moreover, they have to be made to realise that their position remains important as they are the givers of information.
What is the general profile of applicants? Can you name some well-known people and organisations that have used the Act?
I have had all manner of people, ranging from Nusli Wadia to the guy who was so poor he wanted to know how he could have a phone booth installed, as he had no means of livelihood. Political leaders like Jaswant Singh, Arun Jaitley and Abhishek Manu Singhvi have been using this Act. PSUs and NGOs like Kabir and Parivartan have also used the Act extensively. Resident Welfare Associations are major users of the Act. To that extent, this law is a great equaliser.
Has the Act improved compliance by private establishments? Can you quote some examples?
The best example is in the case of private schools especially in Delhi. The better schools all over the country are privately run. These schools however have to comply with government regulations, especially in relation to admitting people from the weaker sections of society; something they had been skirting before the RTI Act made it compulsory for them to furnish information to the government in the same regard. After the implementation of the Act, at least in the Delhi region, the problem of compliance has been solved to a large extent.
written by MAJ GEN PINAK PANI DAS, November 07, 2009
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