( What the author comments here is not a result of any scholastic exercise, but born out of his involvement in more than 30 events of inter-facing with cross-sections of public across the State of Orissa during last one and half years, on the very issue of Right to Information. )

Comments: It should be little more explanatory, so as to clear all confusions from the mind of the people.

Like the Karnataka Right to Information Act, 2002, it should read as follows;

"An Act to provide for right of access to information to the citizens in the State of Orissa about the affairs of the State and public authorities and matters connected therewith or incidental thereto;

"Whereas, the right to Government held information is accepted by the Supreme Court as a part of right to speech and expression guaranteed to citizens in the Constitution,

"And whereas providing right of access to information to the citizens promotes openness, transparency and accountability in administration and ensures effective participation of people in governance and thus renders democracy meaningful,

"And whereas it is expedient to provide for right of access of information to the citizens in the State and in matters related therewith or incidental ~hereto and for the purpose hereinafter appearing;

Be it enacted by the Orissa Legislative Assembly in the fifty third year of the Republic of India as follows:

Sub-Clause (a ) and ( b)- No Comment

Sub-Clause (c ) : Comment

The date of commencement is left to the discretion of the Government. Once the Act is passed in the legislature, it should be notified in the Official Gazette within 30 days of such enactment, and the commencement of the Act is to be counted from the date of such Notification.

Comments:

(a) The Competent Authority: The provision made in the Draft Bill does not define it, rather it leaves the discretion to the Government to notify them from time to time for the purpose of this Act. Perhaps the author(s) of the Orissa Draft Bill had the Goa Right to Information Act 1997 in mind, while using the exr)ression 'competent authority'. But the relevant provision of the Goa Act referred to the Appendix containing a detail list of the 113 Departments and Offices deemed as competent authorities. Again perhaps the author(s) of the Orissa Draft Bill might have had Taminadu Right to Information Act 1997 in mind while maintaining the discretion. The Tamilnadu Act promised to notify the 'competent authorities' consequent upon the enactment, but till date no notification has been made and the Act remains almost a defunct, rather counterproductive legislation.

It is suggested that the sentence bearing the definition, rather lack of definition of Competent Authority should be scraped, and in its place the expression 'Public Authority' ( as used by Karnataka Act) should be used.

Public Authority: In addition to the offices/agencies as described in Sub-Clause (c ). the Definition should include the Legislature ( Orissa Legislative Assembly) .the High Court of Orissa, and the Governor of Orissa, just as the Freedom of Information Bill 2000 ( now pending in Parliament since July 2000) in its Clause 2 Sub-Clause (b) describes.

While defining the Public Authority, one should bear in mind the Definition as provided under the Evidence Act 1872, which in its Sections 74-76 holds the sovereign authority of India consisting of legislative, executive and judicial wings, responsible to provide certified copies of public documents that contain either the acts or processes 'forming the acts' of the sovereign authority.

The Definition should also include the Political Parties, as recommended by the National Commission to Review the Working of the Constitution in their Report submitted on 31 st March 2002.

The proviso mentioned in Orissa Draft Bill Vide the last bracketed sentence of the Para under Clause 2 Sub-Clause (c ) need be deleted, since the Private Companies like, say Oswal Fertilisers Limited, Paradip or Utkal Alumina Company Ltd, Rayagada who do not receive 'Public Funds' as such should be brought under an obligation to provide information to the public at large relating to the issues of environmental pollution, rehabilitation of displaced persons and the like.

(b) Government: No comment

(c) Information: The provision in the Orissa Draft Bill, in stead of defining what is 'information', has repeated the list of 'competent authorities' only. The whole statement seems to be a misplaced one.

Alternatively, it should read as follows: "It means any material or information relating to the affairs ( plan, proceeding, decision, or action) of the Public Authorities, which may include on-the-spot verification of an office or its record room, interview with the concerned personnel, complete or partial copy of a file, that of muster roll and accounts, complete or partial copy of and notes on the relevant correspondence and telephonic conversation, complete or partial copy of a video cassette, computer floppy, CD ROM, or any other medium in which information is stored or samples of material used in any production or construction activity, as desired by the information seeke in addition to the existing provision of certified copies, as mentioned in the sections 74-76 of Indian Evidence Act 1872".

(d) Right to Information: At this stage it should simply say as follows, 'Right of a person to access information as defined above under Clause 2 Sub-Clause (c).

Comments: It should read as follows,

Subject to the provisions of this Act, every person in the State shall have right to obtain information from the public authorities by way of:

1. inspecting their records and files, taking handwritten notes and extracts or photocopies thereof,
2. Obtaining complete or partial print-out, copy of a computer floppy, CD ROM, Cassette, or any electronic device storing the information,
3. Obtaining a Photo, a map or any special kind of document,
4. Visit to the concerned site and taking samples of construction or other related materials used, and interview with the concerned personnel related to the information sought, or
5. In such other manner as may be felt necessary by the Applicant seeking Information.

Comments:

It should read as follows:

(a) A person desirous of obtaining information shall make an application before the concerned Public Authority either in person, or through Email/FaxfPost or through an authorized messenger in writing in the prescribed form along with payment of the prescribed fee, and shall obtain a receipt for the same from the Public Authority, who shall specify the nature of the information sought and the date of disposing of the same.

Provided that where a person can not, for valid reasons, make a request in writing, the Public Authority may either accept an oral request which may subsequently be reduced in writing in the presence of the applicant, or render reasonable assistance to such person in making a written application.

Provided further, that the fee to be charged shall in no case exceed the cost of photocopying of the requested information or the cost of the diskette, cassette or any other device, as the case may be.

The proviso kept under this Clause of the Orissa Draft Bill concerning the determination of the fee to be charged depending upon the nature of request for information ( personal use or commercial use) shall give rise to discrimination and corruption under the existing conditions and should therefore be scraped.

( Note: the Words 'Prescribed Form' appearing in Sub-Clause ( a) , enjoin upon the author of the Draft Bill, as in case of the Tamilnadu Act, to append a model Form in which the information seeker shall apply. The Form to be prescribed should be a simple one, asking for the name and address of the applicant along with the particulars of information sought. )

(b) Upon receipt of an application requesting for information, the Public Authority shall consider it and furnish the information required by the applicant or pass orders thereon refusing the request along with giving reasons of such refusal, as soon as practicable, and in any case, within thirty working days from the date of receipt of the application;

Provided that where such information relates to the life or liberty of an individual, the Public Authority shall either furnish information or pass order refusing the request along with reasons of refusal within 24 hours(c )

( c) No Comment.

The Public Authority may, for reasons recorded in writing, withhold -

a. It should read as follows:
"Information, the disclosure of the contents of which will prejudicially affect the sovereignty arid integrity of India, International relations, ongoing investigation of an offence or ongoing adjudication of a case in the court of law".

b. No comment.
However, the next para saying, "Papers containing advice, opinion.... authorities" need be scraped, since it is a sweeping provision, likely to be abused by the vested interests in the executive machinery. Moreover, it is in line neither with Evidence Act 1872 nor with Central FOI Bill 2000, nor with the Recommendation of National Commission to Review the Working of the Constitution.

c. The provision should clearly mention the list of concerned Statutes and Acts that aim at Trade and Commercial secrets, otherwise, it would lead to wide scale abuse by the vested interests.

d.The restrictive provision arising out of Privilege of Parliament or Legislative Assembly need be defined and specified in clear terms.

Moreover, the additional provision for referring the issue to the Legislative Secretariat would cause unnecessary delay the process. It therefore need be scraped.

e. No comment.

The next para which reads "Provided that information which can not be denied to the State Legislature shall not be denied to any person" should be deemed to be the decisive yardstick, against which all the above restrictions need be assessed.

The Clause instead of providing a single-window information-delivery mechanism, leaves the burden of searching out the competent authority to the information seeker.

Therefore, the Clause should read as follows,

"Where the Public Authority does not have the information, he shall, transfer it to the concerned Public Authority with whom such information is available and inform the Applicant accordingly within 7 working days of the receipt of application for information.

The second Public Authority shall, thereupon, furnish the said information within 30 working days from the receipt of the original request for information.

"Provided that where the request cannot be complied with for reasons falling under Clause 5 of this Act, the first Public Authority, or the next Public Authority as the case may be, shall, within 15 working days of receiving the original request, reject the application and communicate to the applicant concerned,

1. the reasons for such rejection;
2. the period within which the appeal against such rejection may be preferred; and
3. the particulars of the appellate authority ,"

Comments:

1. a.The provision for first appeal to be made to the next higher authority seems to be unnecessary and the source of further delay and inconvenience to the applicant for information, since under the existing centralized and unified nature of decision making process within the departmental hierarchy, the chance for success of the appeal to the next higher authority within the same department is highly negligible.
2. b.The provision for Second appeal to Lokpal should be scraped, since the institution of Lokpal is not functioning properly.There is no single instance of Lokpal punishing any official or legislator for the violations of law they commit. The Appeal to Lokpal would only delay the process of disposal of request for application.

   In stead this provision should read as follows:

   "Any person aggrieved by an order of the Public Authority or the next authority, as the case may be, or any person who has not received any order from the concerned Public Authority within 30 days from the date of his Application, may appeal to the State Administrative Tribunal, Orissa, against the order so passed or non-passing of any order,"

3. No comment
4. The provision sounds very much subjective and ambiguous with use of words like" endeavour shall be made ". It should be replaced by " Every appeal shall be disposed of as expeditiously as possible and in no case exceeding 30 working days from the date of appeal."

1. No comment.
2. No comment.
3. It should be added: "Every Public Authority should publish a Citizens' Charter and the particulars of Charter Ombudsman, in all possible media including websites, news paper advertisements, and brochures specially meant for the purpose",
4. The following Sub-Clause need be added:
   "Every Public Authority, wherever applicable, suo moto shall publish information relating to the life, liberty and human rights, in particular of persons in custodial institutions, on day-to-day basis at such intervals and frequency as may be prescribed,"
5. To be added as follows:
   "Every Public Authority shall publicise well in advance the date/dates of the periodical and annual meetings of its managing body on the Notice Boards of the office, so as to enable a person whosover is interested to attend it. It shall however be the discretion of the Public Authority to allow or not to allow the attending member of the public to participate in the deliberations of the meeting so convened."

1. No comment.
2. It should read as follows:
   "Where a Public Authority responsible to supply information fails to furnish the information asked for under this Act within the time specified, or willfully furnishes any information which is false in material particulars, he shall be liable, after such inquiry as may be necessary to be conducted by the State Vigilance Commission, for imposition of such penalties as may be determined by the State Administrative Tribunal/Central Administrative Tribunal. In addition, the disciplinary authority shall order him to pay a fine of Rs.200/- for every day's delay following the deadline within which the information was required to be supplied,"
3. The following to be added,
   "The Public Authority which willfully tampers with , destroys or steals the Public Documents in which the information sought is supposedly contained, is liable to punishment under the Orissa Public Servants Conduct Rules 1959 and related provisions of Evidence Act 1872 or Indian Penal Code."
4. The following provision is to be added,
   In the event of non-compliance of the obligatory provisions, as mentioned under Clause 8 above, the Department of General administration in the Government of Orissa, which maintains the CCR of the Government employees shall weigh the case of their transfer, promotion, deputation and pension etc. against the instances of such non-compliance, and issue necessary censures and strictures to them as and when such non-compliance is noticed.

This new Clause shall be added and read as follows:

1. Where a Public Authority willfully fails to respond to an Application for information within the stipulated deadline, the Applicant concerned is eligible for receiving as Compensation to the tune of Rs.200/- against every day's delay from the Department or Office of the Public Authority concerned. The said money shall be realized from the concerned officer of the Public Authority who was supposed to provide the information sought, within the stipulated deadline.
2. Where a Public Authority willfully refuses the disclosure of information or serves wrongful information in response to the application for information, the concerned Applicant is eligible for receiving from the concerned public authority or his higher authority as the case may be, an amount of Compensation to be determined by the appellate authority on adjudication. )

Comments:

i. The provision leaves the discretion to the Government to notify the date of establishment of the Council:

Rather to be more specific, it should read,

" The Government shall notify the date falling within 3 months of the enactment of the act, on which the State Council shall be established",

The following para shall be added to the first para,

"The Council shall remain free from administrative control by any Department of the Government except the financial provision necessary for setting up and maintaining the said Council to be borne by the Government of Orissa in the Department of General Administration. The Council shall directly report once half-yearly to the Governor of Orissa and Orissa Legislative Assembly and remain accountable to them about its activities,"

ii.It should read as follows:

The State Council for Right to Information may consist of the following members-

• A Retired Judge of Orissa High Court shall be its Chairman;
• The Secretary to Government in the Department of General Administration shall be its ex-officio Secretary
• Official Members not exceeding four (3 RDCs and Secretary to Government in the Information and Public Relations Department;
• Two MLAs to be nominated by the Speaker;
• Non-Official Members not exceeding four representing Press, Electronic Media, Industry and Non-Government Organisations.

Provided that at least one from among the above list of members should be a woman.

iii. No comment.

iv. Regarding the specific functions of the Council, it should read as follows:

• The Council shall advise the Government for abolishing or amending, as the case may be, the very pre- existing Acts or Rules, the provisions of which are inconsistent with the Orissa Right to Information Act ( such as Official Secrets Act 1923, Evidence Act 1872 -Sections 123 and 124, Central Service Conduct Rules 1964- Section 11, and State Service Conduct Rules 1959 -Section 11 ).
• The Council shall frame the Rules for the State as a whole and amend them as and when necessary for proper enforcement of the Orissa Right to Information Act.
• The Council shall ensure the compliance by the various Departments and agencies of the Government in the matter of framing their respective Rules for enforcement of the Act.
• The Council shall review the over all administrative infrastructure and procedures operating for the purpose of the Act and advise the Government for effecting necessary reforms therein from the viewpoint of gradual expanding of the scope of public access to official information
• The Council on periodical review of the functioning of the Act may suggest to the Cabinet of Ministers and Orissa Legislative Assembly suitable amendment to the Act as and when necessary.
• The Council shall advise the Government for undertaking suitable phase-wise programmes for training, skill development and orientation of the Competent Authorities and Other employees of the Government in The Council on periodical review of the functioning of the Act may suggest to the Cabinet of Ministers and Orissa Legislative Assembly suitable amendment to the Act as and when necessary.
• respect of management and dissemination of official information, which is essential for ushering in a culture of openness and transparency in public life.

Chitta Ranjan Behera , 4A, Jubilee Tower, Choudhury Bazar,Cuttack-753009,
Orissa Telephone: 0671-623518, Mobile:9861086937,Tele-Fax: 0671-623518
Email: chittabehera@rediffmail.com

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