Now myself anf my friend Mrinal shall be contributing to to-day's discussion in our own way. CHRI ( Commonwealth Human Rights Initiative) is an independent non-governmental international organization and we work on some selected human rights issues which, we feel, are fundamental for the protection and promotion of democracy and democratic way of life. These issues are police reform, prison reform, Constitutionalism and Right to Information etc.. The promotion of Right to Information is one important initiatives of CHRI, with which myself and Mrinal are associated. Our work includes interaction, awareness building and sharing of experience at grass root-level and as well intervention at policy level. What ever experience, information and lessons we gather at grass root level, we try to put them all to the exercises at the policy level and legislation level, so that the policies are formulated in accordance with the genuine needs felt at grassroots level, and laws are also made in the similar fashion.
Now coming to today's topic, we will be providing a Comparative Overview of the Orissa Draft Bill of the Government and the Citizens' Draft Bill circulated by our friend Mr.Chita Behera, both being available from his Website. In course of the Comparative Overview, we shall also provide a comparison of the Govt of Orissa's Draft Bill with that of other State Governments and also with the Freedom of Information Bill 2000, now pending before Parliament. Once the FOI Bill is passed in Parliament, it will be binding on all State Governments of the country. Now I switch over to Mr. Mrinal to continue the discussion.
In the material that is provided to you there are two charts, one depicting the State-wise Acts, and the other one giving a comparative overview of the Citizens' Bill , Government Bill, other State laws and also our recommendations. You may use these charts in course of the analysis.
Before you go over to an in-depth analysis of the Orissa Draft Bill, let me quickly give you an overview of important features of this Bill and also of how it stands upto other similar laws in the country.
Inclusion of the private bodies ( Clause 2): This is one very important aspect of the Right to Information. In the Citizens' Bill, individuals and organizations executing public works on behalf of the Government or authorized by it are included. There is a similar inclusion in the Government Bill. Let me tell you, why such inclusion of private bodies is important. Right to Information should not be limited to Government bodies only. As a matter of fact, private bodies and organisations take many steps and take many decisions, which affect public life as such. A case in point the Union Carbide case. That was a private body, due to which Bhopal Gas Tragedy took place. The citizens had no way of knowing any information, nor the Government had any information about what the organisation was doing. So, it becomes very important to include private bodies. While the Citizens Bill has included the private bodies, State Government's Bill says that the obligation to disclose the information on the part of the private bodies is limited only to the extent of utilisation of the public funds by them. Goa is the only other State which includes private bodies in its Act. In other States there is no inclusion of private bodies and leave aside an important segment i.e. private bodies from the purview of RTI. There could be many Companies like Union Carbide, which don't receive any Government funds but what they do is very much important for the public interest. The public should know what sort of material they deal with and store in their premises. The public should also know, what steps these private bodies are taking to protect the people from any kind of disaster caused by leakage of toxic substances.So our recommendation is that the bracketed proviso in Clause 2 (c ), which puts limitation on the private bodies' obligation to disclose information to the extent of utilization of public funds be deleted .
Fee Structure ( Clause 4): While the Citizens' Bill says that the fee shall be limited to the cost of photocopying of cost of production of a floppy or diskette, the Government Bill talks of two separate kinds of fee, one in the form of access fee and another the fee for cost of production. There is no upper limit prescribed in either of cases. And again, the fee for commercial purposes shall be different from the fee for personal purposes. Generally other State laws prescribe very minimal fee structure. Of course in Delhi, the normal application fee is Rs.50/- but it is Rs.500/- for commercial information. Our recommendation is that the fee structure should be such that it is affordable and does not become a hindrance for the common people to receive information. The Government Bill should therefore amend the fee structure so a to make it uniform and not exceeding the cost of production, and also provide for free supply of information to the citizens in cases where public interest is involved.
Exemptions from the Purview of Act (Clause 5- Restrictions): Now one very important aspect of the right to information is exemption. There are bound to be certain standard exemptions on the grounds like security, which are found in both Citizens' Bill and Government Bill. But in the Government Bill, there are some more exemptions like the Centre-State relations. As a matter of fact, the RTI legislations came up in different States under some pressure. That is why, these Acts gave on one hand the right to information, but put so many exemptions, as a result of which the right becomes meaningless. If you approach an authority for any ordinary information, they would promptly deny you on the ground of exemption.Now our recommendation is that most of the information should be provided to the public, keeping only minimal standard exemptions on the grounds of security, sovereignty, integrity and international relations of the State. Moreover, while refusing information on the ground of exemptions, a public authority should judge whether there is any public interest that is going to be served by such refusal.
Suo Moto Disclosure ( Clause 8) : Under most of the Acts there is a kind of information, that the Government discloses without the people going and asking for it, which is called suo moto disclosure. It is very, very important. In the Citizens' Bill it has been provided for the Government to make suo moto disclosure of information relating to national disasters, which is very much significant in case of Orissa, which is intermittently affected by natural calamities. While this provision is absent from the Government Bill, the latter is also weak otherwise, in the sense that its suo moto disclosure is limited to notification of Government schemes and projects.Our recommendation is that the Government Bill should provide for suo moto disclosure of all information relating to the particulars of Government bodies like their composition, bye-laws, infrastructural and other facilities, procedures to avail their services by the public and more over, the very mechanism of disseminating to the public these very essential informations ( Clause 8).
Time Limit ( Clause 4 ): Most of the State Acts don't discriminate between the normal and urgent nature of requests for information and club all sorts of requests under one category, and provide for 30 days to dispose any kind of request.. In our view, the Orissa Citizens' Bill has a wonderful clause saying that the urgent requests for information, relating to the life or liberty of an individual be complied with in 24 hours, while the Government Bill provide for 48 hours.
As regards the supply of normal information, the Government Bill provides for a Time Limit of 30 days, while the Citizens' Bill for 15 days. The 15 days' time limit is no doubt ideal, but the Government have to provide the necessary infrastructural facilities and procedure for realizing the same.
Appeals ( Clause 7) : The Government Bill provides for a two-stage appeal, one to the next, higher internal authority of the information officer, and the second to Lokpal which is an independent authority. It seems to be desirable.
Some State Acts and also the Central FOI Bill 2000 put a bar on the jurisdiction of Courts over the Right to Information disputes, which is wrong.
Penalties ( Clause 9): The Citizens' Bill provides for the penalty to be imposed on the Competent Authority, while the Government Bill seeks to penalize any officer, responsible for providing the information in case of his failure. The provision of the Government Bill seems to be a sound one. But the Penalty, as mentioned either in the Citzens' Bill or in Government Bill is applicable only in case of delaying the information. In our view, there should be the provision for penalizing the officer concerned on account of not only delaying the information, but also for providing wrongful or misleading information (Clause 9).
Monitoring Body ( Clause 10- State Council for Right to Information) : This is an important provision made in both Citizens' Bill and Government Bill for overseeing the actual operationalisation of the RTI Act. But our experience is that in Delhi the Chief Minister being at the head of such a body has made a lot of difference to its working. In case of Orissa, where the Chief Minister himself is interested to bring about the RTI legislation, you may consider the provision of putting the Chief Minister at the helm of the proposed monitoring body. Were it to be so, both the public authorities and people would take this body more seriously.
Language of Communication ( Clause 6 c ): Both Citizens' Bill and Government Bill provide for Oriya to be the first language of communication, followed by Hindi and English. But in the context of natural calamities, the Citizens' Bill emphasizes the use of all means of communication ( Clause 8 ), which is very, very important, but missing from the Government Bill. It should be included in the Government Bill.
Publicity of the Act ( A new Clause to be Added): Regretfully all State Acts and Bills and also the Central Bill have omitted one very important provision, that is, the publicity of this very Act itself so as to reach all people. As a matter of fact, when the Freedom of Information Act came in USA in 1968, its Guide became one of the best sellers among the public. In South Africa and other countries, the Government is under an obligation to publicise the RTI Act. The provision for publicity of this Act at mass level employing all means of communication should be there in the Act itself.
Orientation of Public Authorities: Though both Orissa Citizens' Bill and Government Bill provide for the State Council for Right to Information to oversee the aspect of training and orientation of the public authorities in the light of their newer functions arising from the enforcement of RTI in the State, the State Bill should however include a provision for periodical training and orientation of all public authorities as to how to document and disseminate information to the public. Unless that is done the new legislation won't achieve its true objectives.
I want to add only a couple of points to what my friend Mr.Mrinal told by way of an overview of the Citizens' Bill and Government Bill on Orissa Right to Information. Firstly, the fee structure of the Government Draft Bill which seeks to impose fee at two levels, namely Application Fee and Process Fee seems to be prohibitive for the common citizens. There is only one other State in the country, Delhi which has provided for such double level of fees for the applicants seeking information. Other States have a fee structure, which aims at covering the cost of reproduction only. The Orissa Draft Bill of the Government should therefore go for one, uniform fee structure , that covers the cost of the reproduction of information ( Clause 4 a ).
The second point I want to emphasise is about the salutary provision for suo moto disclosure of information relating to the natural calamities, which is there in the Citizens' Bill, and which need be incorporated into the Orissa Government Bill ( Clause 8 ).
With these observations made by way of an overview, we would like all of you to go for an in-depth analysis of the provisions of the Government-proposed Orissa Draft Bill on Right to Information 2002. Our overriding concern is that the Act should be formulated in such a way that there is no confusion in any body's mind about the meaning and implications of its provisions and also it helps the common citizen access his much needed information with an ease and facility, hitherto denied to him.