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Right to Information in India

 Category:Home \ Constitutional Law
 Article:

Right to Information in India: Need for it & Perspectives

A democratic society survives by accepting new ideas, experimenting with them, and rejecting them if found unimportant. Therefore it is necessary that whatever ideas the government or its other members hold must be freely put before the public. The free flow of information is must for a democratic society in particular because it helps the society to grow and flourish. It is now recognized that the right to information is vital to democracy for ensuring transparency and accountability in governance. It therefore ensures that governance is more participatory being a vital component of successful democracy.

The right to information gained power when UDHR was adopted in 1948 providing everyone the right to seek, receive, information and ideas through any media and regardless of frontiers.[1] Also The International Covenant on Civil and Political rights 1966 says that “Everyone shall have the right to freedom of expression, the freedom to seek and impart information and ideas of all kind, regardless of frontiers”[2].

The legislature and the judiciary function as open. More openly the legislature by way of open debate by the representatives of people to which press and people both have access. In a very similar manner the judiciary decides the cases only after giving both the parties to the cases, a chance of hearing. These two wings of government never normally carry out their operation in secrecy.

On the other hand the Executive always carries out its work in secret chambers and people or press hardly have a access or control over it. Nowadays the executive, apart from discharging its normal function of executing laws, promulgates delegates legislative functions and also adjudicates on controversial manners.

As Justice Krishna Iyer in the Maneka Gandhi case[3] said “a government which functions in secrecy not only acts against democratic decency, but also buries itself with its own burial”. Therefore if look at the concept of power we can note that power corrupts and absolute power corrupts absolutely. There is a certain danger that despite several efforts for welfare purposes, the power may be used arbitrarily and for corrupt goals.

Therefore a right to know is necessary to handle the affairs related to executive and provides an platform for people to participate in governance with proper knowledge.

Has Right To Information Emerged From Our Constitution?
Rightly as one of the significant objectives of Indian Constitution as the preamble describes, is to secure liberty of thought and expressions to the citizens of India. The Article 19(1)(a) of the constitution . the fundamental right to speech and expression can never be exercised until and unless the information regarding public matters is being circulated.

The right of information is an inalienable component of freedom of speech and expression guaranteed by Article 19(1) (a) of Indian constitution. As held in the respective cases of Bennet Colman v. UOI[4] , SP Gupta v UOI[5], and Secretary, Ministry of information and broadcasting v Cricket assn. of Bengal[6].

The Supreme Court of India in Bennet Coleman case while taking into account the News print control order, allotment of newsprint to a newspaper was restricted, held that such restriction had not only infringed newspaper ‘s right to freedom of speech but also readers’ right to read was cut down. And the reader’s right to access the newspaper was his right to information which was implicit in the right to Right of freedom of speech. Similarly in SP Gupta case the SC observed that “the people of this country have a right to know every public act, everything that is done in a public way, by those functionaries. They are entitled to know the very particulars of every public transaction. Also in Secretary, ministry of information & broadcasting v. Cricket Assn. of Bengal, the SC held that the airwaves were a public property and its distribution among the government media and the private channels should be done on equitable basis as the freedom of speech included the right to impart and receive information from electronic media.

Beside Article 19(1) (a), the other articles which give right to information under Indian constitution are Articles 311(2) and 22(1). Article 311(2) provides for a govt. servant to know why he is being dismissed or removed or being demoted and representation can be made against the order. By way of Article 22(1) a person can know the grounds for his detention. In Essar Oil Ltd v. Halar Utkarsha Samiti, the SC held that right to information emerges from right to personal liberty guaranteed by article 21 of constitution[7].

Restrictions Under Indian Law On Right To Know.
There are laws which are contrary to the right to know in India and need to be amended in order to preserve the right to know. Sections 123, 124, and 162 of The Indian Evidence Act provide to hold the disclosure of documents. Section 123 provides that any head of department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information. In a similar manner section 124 states that no public officer shall be compelled to disclose communications made to him in official confidence. Section 162 provides court not to inspect a document relating to matters of state.

The atomic energy act 1912 provides that it shall be an offence to disclose information restricted by the Central Government. The Central Civil Services act provides a government servant not to communicate or part with any official documents except in accordance with a general or special order of government.

The official Secrets act as evident from its name, under section 5, provides that any government official can mark a document as confidential so as to prevent its publication.

Legislation in India for Right to Information
India might be a super power in IT sector but still 60 years have passed after independence, the government has never been serious on legislating on right to know. Merely declaring that Right to know is a constitutional right will not do. There is a utmost need to practically apply this right. In the year 2002 the Indian parliament passed the Freedom of Information Act. After obtaining the assent of president this bill could not come into force due to the want of a notification of by the Central Government.

The bill being unable to fulfill the purpose, the UPA Government, in the year 2005 enacted a new legislation on the same with the title “Right to Information act 2005”, which came into effect from Oct 12, 2005. The procedure for asking information is very simple; anybody can make a request on a plain paper in writing with a nominal fee. And the information as per the act needs to be provided in within 30 days of such request. Many states have established State Information Commissions for appealing purposes. A center information commission is also established under the act.

Fallacy in the Act
Theoretically this act is very good but it suffers from many inadequacies …..
This act empowers the people to gather information. But the problem is that when 35% of the population is illiterate, then how anyone could expect that people will demand information. So I suggest the government to make more serious efforts towards improving the Literacy level.
The act lacks necessary teeth for defaulters. In cases where information has been denied without sufficient cause, the penalty is not so harsh enough so as to have a deterrent effect on those who do not want to share information.

The official mindset is a very big obstacle in the progress of this act. No official in normal condition wants to share information. They generally prefer not to share information, and therefore people find it very difficult to secure information from them. The act itself provides for several grounds on which the public information officer turn down the application. Although one is allowed to appeal to next higher authority but this is just making the matter worse.

The act being based on computerized records of data, it may take a long time in computerization of such vast data and therefore the doubt hangs over whether the act would be implemented in a time bound manner.

Conclusion
The Right to information is a sine quo non of democratic polity. Information always empowers people and ensures transparency of administration .But people’s access to information is very limited because of the fact that mechanism is not so effective and man’s brain deliberatively holds back information. The Right to Information Act 2005 seems to be an effective legislation but what about its effective implementation. And it requires aware and educated people who can use it for their welfare. So government first needs to ensure that a majority of population becomes educated so that this act may survive for a longer period and serve the deprived and poor people of this country. Also a high order Judicial Activism is also necessary regarding the implementation. If it succeeds in its purpose it will necessarily increase public participation.
--------------------------------------------------------------------------------
[1] Article 19 Universal Declaration of Human Rights (1948)
[2] Article 19 International Covenant on Civil and Political Rights(1966)
[3] A.I.R. 1978 SC 597
[4] AIR1973 SC 106
[5] AIR1982 SC 149
[6] (1995) 2 SCC 161
[7] AIR 2004 SC 1834

Law Articles
Authors contact info - articles The  author can be reached at: manojbhati_nliu@legalserviceindia.com

 Added Date:5 Mar 2008
 Lenght:1589 words
 Views:1766
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About the Author: Manoj Kumar Bhati
Student 2nd year, B.A.LL.B.(HONS.), National Law Institute University, Bhopal, M.P-44

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