With most public authorities ignoring the mandatory proactive disclosures under Section 4 of the Right to Information (RTI) Act, the highest judicial authority, the Supreme Court, has now put the onus on all Central and state information commissioners to ensure that it is strictly implemented.
Chief justice of India (CJI) DY Chandrachud, in his order of 17 August 2023, has directed the Central information commissioners (CICs) and the state information commissioners "to ensure proper implementation of the mandate of Section 4 of the Act."
In no uncertain terms, CJI Chandrachud and two judges have asked the information commissioners to go beyond just monitoring. The order states, "Apart from the obligation of monitoring and reporting, the Central and State Information Commissioners are also given the power to recommend steps that the public authority ought to take in implementing the Act."
The SC, in its order, pointed out that the citizen's right to information is being nullified due to the public authorities not abiding by their duty. It observes thus: "Power and accountability go hand in hand. While declaring that all citizens shall have the 'right to information' under Section 3 of the Act, the co-relative 'duty' in the form of the obligation of public authorities is recognised in Section 4. The core of the right created under Section 3 in reality, rests on the duty to perform statutory obligations. Public accountability is a crucial feature that governs the relationship between 'duty bearers' and 'right holders'."
The order stated that the purpose of the RTI Act would be accomplished only if the principle of accountability governs the relationship between 'right holders' and 'duty bearers'. The Central and state information commissions have a prominent place, having statutory recognition under Chapters III and IV of the Act. Their powers and functions are all detailed in Section 18 of the Act.
The Supreme Court referred to the following sub-section of Section 4 of the RTI Act:
The statutory obligations of public authorities under Section 4(1) relate to:
(a) maintenance of all public records, duly catalogued and indexed for easy accessibility of the information;
(b) publishing particulars of the organisational structure, functions, and duties of officers, and procedures that are followed for decision-making, salary structure, budget allocation, and publication of facts relating to policies and announcements which includes providing reasons for quasijudicial decisions. Sub-section (2) mandates the public authority to take steps for providing information under clause (b) of sub-section (1) suo motu and further to
disseminate the said information for easy accessibility to the public. The scope and ambit of Section 4 has already been considered by this Court in a number of decisions.
The hard-hitting order delivered because of a public interest litigation (PIL) by petitioner Kishan Chand Jain further accentuates the role of the CICs as per a series of department of personnel and training (DoPT) directives since 2012. It says: "(the information commissioners) shall continuously monitor the implementation of the mandate of Section 4 of the Act as also prescribed by the Department of Personnel and Training (DoPT) in its Guidelines and Memorandums issued from time to time. The directions will also include instructions dated 07.11.2019 issued by the Department. For this purpose, the Commissioners will also be entitled to issue recommendations under sub-section (5) of Section 25 to public authorities for taking necessary steps for complying with the provisions of the Act."
The petitioner sought the following direction from the Supreme Court
(a) to ensure that public authorities comply with the mandatory suo motu disclosures under Section 4 on a proactive basis;
(b) to ensure that website disclosures of public authorities are complete, easily accessible as required by Clause No. 2.2 of the O.M. dated 07.11.2019;
(c) to ensure compliance of proactive disclosure package audited by third party under Section 4 of the Act read with Clause 4.4 of O.M. dated 07.11.2019;
(d) to appoint senior officer as nodal officer for being accountable for compliances with respect to proactive disclosure guidelines as per Clause 5.1 of the O.M. dated 07.11.2019;
(e) direct Central Information Commission/State Information Commissions to examine third party audit reports as per Clause 4.5 of the O.M. dated 07.11.2019;
(f) to ensure that details of disclosure guidelines are reflected in the Annual Report as per Clause 6.1 of the O.M. dated 07.11.2019;
(g) to send 'Action Taken Report' to the concerned Information Commission as per Clause 4.3 of O.M. dated 07.11.2019.
In other words, the prayers in the writ petition are for the implementation of Section 4 of the Act.
(Vinita Deshmukh is consulting editor of Moneylife. She is also the convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain Award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book "To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte" with Vinita Kamte and is the author of "The Mighty Fall"