Abstract:-
The Constitution of India has been around for 68 years now, and has since been
amended a number of times to accommodate the changing mind set of developing
India, and the interpretation of this document, especially of the Articles
related to Fundamental Rights has been diverse. One such interpretation in
pretty recent times has been the Right To Information, which hasn't been
expressly stated in any portion, but can be derived from Article
19(1)(a)andArticle 21of the Constitution of India itself. We are all aware
how "absolute power corrupts absolutely" and we can safely assume that it is not
a mere philosophical phrase. The journey from a demand of information to it
becoming a Bill to finally a lawful Right has been in phases – from resistance
to disclose any information whatsoever, to state-level Right To Information
Acts, to a roughly-made, protective of public authorities Freedom Of Information
Act in 2002 and finally, arriving at what exists as the Right To Information Act
today Having completed around 12 years in existence, it is notable is that it
hasn't been subjected to any amendments whatsoever. Here is an attempted
analysis of the same.
Information empowers and enables people; pushes them towards exercising their
legal, social, economic and political rights. Almost every society has recognised the same by way of putting in place the mechanisms for free flow of
information and ideas so that people can access them whenever it is required
without too many procedural, or otherwise, hassles.
Dr. Manmohan Singh, the Prime Minister of India, when bringing to light India's
first significant step towards anti-corruption – The Right To Information Bill,
said:
"The passage of the Bill will see the dawn of a new era in our processes of
governance, an era of performance and efficiency, benefits of growth will flow
to all sections of the society, eliminate the scourge of corruption, and will
bring the common man's concern to the heart of all processes of governance and
fulfill the hopes of the founding fathers of our Republic."
The most accurate summation of the value of the spreading awareness among
citizens and creating a culture of transparency and accountability so as to make
the system of governance of a nation closer to impeccability would probably be
the quote above. The World Bank document of 1992 on Governance and Development
in its quest for 'good governance' identifies accountability as well as
transparency and information to constitute two of the seven specific aspects of
'governance'. Apart from this, we have had minds like Jeremy Bentham, Patrick
Henry, Aruna Roy, Thomas Jefferson and the Father of our Nation, Mahatma Gandhi,
think alike on this issue, as evident from their publicly expressed views on the
same. A comprehensive outlook on the Right to Information Act, 2005(India), a
cutting edge legal issue – will most definitely result in the conclusion that
only information could have been, is and will continue to be the pathway taken,
on which prudent and responsible treading towards mutual compliance and thus,
better governance fall.
Information is a potent tool for countering corruption. The visibility of
deprived communities increases on the political map, and their interests can be realized. We indeed have taken giant leaps towards accessing information to the
very core of its existence, but tracing this growth from stages of nothingness
to the various perspectives on what we have today is important; quite similar to
the importance of precedents in law, in general. A government "of the people, by
the people and for the people" is the spirit and essence of a democracy and its
accountability towards people cannot be explained better than those words of
Abraham Lincoln.
In the mid-90s, while the weapon of secrecy was being used by the executive in
governance to defeat the rightful claims of the governed, the judiciary
destroyed this weapon in favour of an open, democratic and welfare form of
governance.[1]The Constitution of India does not explicitly provide for a
"right" to information as such, but it is one of the most effective judicial
interpretations of the Constitution by the Supreme Court. The context of its
view is the Right to Freedom and Speech and Expression [Article 19(1)]and the
Right to Life (Article 21). It has been so held that these include the right to
acquire and disseminate information.
Tracing the growth of this particular legally enforceable claim will require an
in-depth study of several issues that initially cropped up at the grass-root
levels, and of several of similar nature that got the international circle of
politics up and about so as to find means to fulfil the democratic obligations
to provide information to the citizens when they would seek it, for whatever the
reason may be, but primarily focusing on societal benefit in one way or the
other.
International Roots
Information Rights have a long history of around 246 years, if the international
front is taken account of.
1766 –World's first Freedom of Information Act was issued in Stockholm on
December 2, 1766.This law in Sweden established press freedom and those at
stake included the government, courts, and parliament. Sweden's constitution
thus recognised that press freedom is contingent upon access to information.
Anders Chydenius (1729-1803) was a Finnish enlightenment thinker and politician
who played a crucial role in creating this new law, and gave the world an
insight into the benefits of a transparent democracy. The English translation of
his initial work was published in 2006; through it, the Anders Chydenius
Foundation aimed to provide a brief introduction to the origins of FOI
principle.[2]
1789– A part of the French Constitution, Declaration of Human and Civic Rights,
has Article 14 stating that: "All citizens have the right to ascertain, by
themselves, or through their representatives, the need for a public tax, to
consent to it freely, to watch over its use, and to determine its proportion,
basis, collection and duration. "Although this cannot be taken to be an
assertion of a right to access information from those responsible to the public,
there is a hint of a "right to know" of a French citizen as to where the taxes
that he pays are being spent.
1946– The United Nations General Assembly passed a resolution in 1946, which in
regard to Freedom to Information stated, "Freedom of Information is a
fundamental right and is the touchstone of all the freedoms to which the United
Nations is consecrated. Freedom of Information implies the right to gather,
transmit and publish news anywhere and everywhere without fetters. As such it is
an essential factor in any serious effort to promote the peace and progress of
the world."[3]As it may be concluded, this did not lay enough emphasis on the
public's right to have such information, and so to demand it from the concerned
authorities.
1948– The history of human rights has known The Universal Declaration of Human
Rights (UDHR) as a milestone. Representatives with different legal and cultural
backgrounds from all regions of the world drafted it, and thus it carried the
spirit of oneness in all its practical differences. Proclaimed by the United
Nations General Assembly in Paris on 10 December 1948 (Resolution 217 A), it was
accepted as a common standard of achievements for all peoples and all nations.
For the first time, certain fundamental human rights which were to be
universally protected were set out. UDHR expressly mentioned in its Article
19(2),"Everyone shall have the Right to Freedom of expression which shall
include freedom to: seek, receive and impart information; regardless of
frontiers - orally, in writing, or in print."[4]
1966- United States of America enacted a federal law establishing the public's
right to obtain information from federal government agencies. Called the Freedom
of Information Act, it is codified at 5 U.S.C., Section 552."Any person can
file a FOIA request, including U.S. citizens, foreign nationals, organizations,
associations, and universities."[5]AfterPresident Lyndon Johnson's initial
reluctance to sign it, the Act did finally find its place in the United States
of America.
The Watergate scandal took place in the 1970s, after which the Act was amended
to force greater agency compliance. The amendment in 1996 allowed greater access
to electronic information.
The Indian Scenario
In India, it all started with petitions of the press to the Supreme Court,
relating to issues of enforcement of certain logistical implications of the
right to freedom of speech and expression. Access to information was realised as
being a key tool to fight corruption and wrongdoing, the public has a right to scrutinise the actions of its leaders and engage them into a full and open
debate - the free flow information is a must for a society so diverse in its
mind-sets. The Right To Information Act, 2005(India), has gradually become one
of what are defined as "national movement" and has been an emphatic statement
for such other rights-based legislations. Sections 4(1), 5(1), 5(2), 12, 13, 15,
16, 24, 27 and 28 of this Act came into force on 15thJune, 2005; and he
remaining provisions found them being put forward for practical use on
12th October, 2005.
Interestingly, instead of the birth of representative democracy, it was its
subsequent failures that gave birth and impetus to the transparency regime.
There was an urge amongst the people to move towards participative democracy instead. On October 12, 2005, a person called Shahid Raza Burney submitted
India's first ever Right To Information application to a police station in
Pune[6]and thus we entered the RTI age, formally. But before Mr. Burney could
actually act and make use of his right, there had been a background of growth
and development in the Indian arena of transparency of those answerable to the
public.
Three kinds of stakeholders were a part of the struggle for a right to access
information that was inherently the public's but was kept from them, in the
1990s.
The rural poor's basic economic rights and access to government schemes were a
burning question and concern, and several movements with their all-powerful and impactful leaders strived to achieve the right to information for them. The
relevance and importance of transparency came into the spotlight on a national
platform when small, regional movements for these rights at the state levels
brought to the forefront, how landless workers in rural areas were often cheated
and not paid their full wages. The paymasters were government officials who
claimed that the workers had worked for less days then they actually had, and
the latter could not challenge the claim as access to the attendance register in
which they had affixed their thumbprints every day they worked was denied to
them, in the garb of them being "confidential government records".
The second group comprised of activists working for the benefit of the society
in conflict prone areas of India. They joined hands to fight for transparency in
the system of governance, and for the human rights of various deprived
individuals and groups. Their main argument was that their efforts to prevent
felonious detentions, human rights abuses etc. were forestalled because they
were denied access to the relevant information.
The third group of supporters were environmentalists. Concerned about the rapid
destruction and degradation of the environment, they propagated their purview of
the importance of access to the details of information regarding any
developmental measures being taken, and its environmental impact.
Significant others in the fight for transparency were various professionals,
especially journalists, lawyers, academics, and some retired and serving civil
servants.
1975 | Supreme Court of India rules that the people of India have a right to know. |
1982 | Supreme Court rules that the right to information is a fundamental right. |
1985 | Intervention application in the Supreme Court by environmental NGOs following the Bhopal gas tragedy, asking for access to information relating to environmental hazards. |
1989 | Election promise by the new coalition government to bring in a transparency law. |
1990 | Government falls before the transparency law can be introduced. |
1996 | 1) Formation of the National Campaign for
People’s Right to Information(NCPRI). 2) Draft RTI bill prepared and sent to the government by NCPRI and other groups and movements, with the support of the Press Council of India. |
1997 | 1) Government refers the draft bill to a
committee set up under the Chairmanship of H.D. Shourie. 2) The Shourie Committee submits its report to the government. |
1999 | A cabinet minister allows access to information in his ministry. Order reversed by PM. |
2000 | 1) Case filed in the Supreme Court demanding
the institutionalization of the RTI. 2) Shourie Committee report referred to a Parliamentary Committee. |
2001 | Parliamentary Committee gives its recommendations. |
2002 | 1) Supreme Court gives ultimatum to the
government regarding the right to information. 2) Freedom of Information Act passed in both houses of Parliament. |
2003 | Freedom of Information Act gets Presidential assent, but is never notified. |
2004 | National elections announced, and the “strengthening†of the RTI Act included in the manifesto of the Congress Party. |
June 2004 | Government sets up a National Advisory Council (NAC) under Mrs. Sonia Gandhi. |
August 2004 | NCPRI sends a draft bill to the NAC, formulated in consultation with many groups and movements. NAC discusses and forwards a slightly modified version, with its recommendations, to the government. |
December 2004 | RTI Bill introduced in Parliament and immediately referred to a Parliamentary Committee. However, Bill only applicable to the central government. |
Jan-April 2005 | Bill considered by the Parliamentary Committee and the Council of Ministers and a revised Bill, covering the central and the state governments introduced in Parliament. |
May 2005 | The RTI Bill passed by both houses of Parliament. |
June 2005 | RTI Bill gets the assent of the President of India. |
October 2005 | The RTI Act comes into force. |
2006 | First abortive attempt by the government to amend the RTI Act. |
2009 | Second abortive attempt by the government to amend the RTI Act. |
Lessons:-
The lessons learnt from this entire struggle to give more meaning to the
Fundamental Rights - Right to Freedom of Speech and Expression[Article
19(1)(a)]and the Right to Life(Article 21)[9]may be summed up as follows:
·Grassroots mobilisation and building alliances
·Exploiting opportunities
·Flexibility and consensus
·Political mandates and transparency
Constitutional Perspective:-
Interpreting Article 19 (1)(a)of the Constitution of India:-
The right to free speech and expression is guaranteed under Article 19 (1)(a) of
the Constitution of India, and the Right to Information may be linked to it
pretty directly. Justice V.R. Krishna Iyer, in the S.P. Gupta case[10]observed
that the right to express one's thoughts is meaningless if it is not accompanied
by related right to secure all information on mailers of public concern from
relevant public authorities; people had the right to know about every public
act, and the details of every public transaction undertaken by public
functionaries.
The court, in Bennett Coleman and Company v. Union of India[11], observed that
freedom of press indisputably meant the right of all citizens to speak, publish
and express their views. The freedom of speech in turn included within its
purview, the right of all citizens to read and be informed.
Again, in Express Newspaper v. Union of India, 1958, the court observed that the
basic purpose of freedom of speech and expression is that members should be able
to form their beliefs and communicate them freely to others. The fundamental
principle involved in this is peoples' right to know. Thus, the right to acquire
information includes the right to access the sources of information.
In Ozair Husain v. Union of India[12], the Delhi High Court held that it is the
customers' fundamental right to know the composition of food products, cosmetics
and drugs; otherwise their fundamental rights under Articles 19(1)(a), 21 and 25
of the Constitution will be violated.
Interpreting Article 21of the Constitution of India:-
The Supreme Court, in R.P. Limited v. Indian Express Newspaper[13], observed
that people have a right to "know" in order to be able to take part in
developmental schemes for a democracy.
In People's Union for Civil Liberties v. Union of India[14], participatory
governance was emphasised upon. The right to information was further elevated to
the status of a human right which is necessary for making governance transparent
and accountable.
In K. Ravi Kumar v. Bangalore University[15], the apex court held that
the public authorities cannot deny completely any document on the ground of
"confidentiality"
Thus, the Right To Information may be taken to be a basic right, to which
citizens of a free country aspire, in the broad ambit of the right to life under
Article 21 of the Constitution of India.
CONCLUSION
-The State of
Implementation
Two nation-wide assessments of the impact of implementation of the RTI Act were
done in 2008-09 by Department of Personnel and Training, Government of India
with the help of an international accounting company; both the reports coming up
in 2009. The following conclusions were drawn-
i. Awareness about the RTI Act was still very low, especially
among rural population and among women.
ii. Public Information Officers who are supposed to receive
their applications and provide them with information often harassed applicants,
especially in the rural areas. In many cases the applicants had to visit the
office more than once which mostly used to be a complete waste of time, in order
to get their applications merely accepted. Instances of applicants being
discouraged from filing RTI applications, threatened, and even physically
attacked were pretty common.
iii. Government functionaries needed training as to how to respond
to RTI applications, and on the need to significantly improve record management.
iv. One of the weak areas was the functioning of the information
commissions. The back-log was huge, and growing. Appellants had to wait for
months in order to get their matter heard and decided upon. Moreover, despite
the fact that the RTI Act mandated that a penalty every time information is not
provided within 30 days (without reasonable cause), very few penalties were
actually being imposed. Some commissions imposed no penalties at all.
v. In between October 2005 to March 2008, there were an
estimated two million RTI applications filed across the country, of which an
estimated 400,000 RTI applications were filed from the rural areas, belying the
impression that only the educated urban people used the RTI Act. Nearly 50% of
the rural and 40% of the urban applicants were not even graduates, and the
representation among applicants of the disadvantaged groups was in proportion to
their population in India.[16]
The overall scenario is this - the RTI Act has been doing well in terms of the
enthusiasm with which the public had taken to it, or the fact that between 50
and 60% of the applicants actually got the information asked for, and that for
many of these it resulted in the ultimate objective being met, there was much to
be done to improve the functioning of the government and the commissions.[17]
This Act has proven itself to be a milestone, to be etched in the legal history
of India; the balance of power in India has been changing at a gradual pace –
people, who are the asset and makers of a nation as a whole are finally
rightfully getting a power that they deserved; and the government and other
powerful entities are having to distribute and disclose the source of. To
transform the nation from a representative democracy to a participatory one,
where governments, and their functionaries at all levels, are directly
answerable to the people for their actions and inaction, thus deepening the very
roots of the strength of the largest democracy in the world. Actualizing this
potential needs a much more concerted push in the next few years. There really
is no time that can be wasted when the struggle is for power and control. Vested
interests of those in power will push them will exploit the weakness of people
if they do not stay together and keep making efforts to recapture power that is
rightfully theirs.
End-Notes
[1]Sudesh Vasudeva, The Role of Judiciary in the Creation of a "Right To
Information" in India,International Conference on Trends in Economics,
Humanities and Management(2014) 1.
[2]Peter Hogg and Ors.,The World´s First Freedom of Information Act – Anders
Chydenius´ Legacy Today(2nd edn,Anders Chydenius Foundation) 6.
[3](13/07/2017, 14:25),https://www.access-info.org/uncategorized/10819
[4](14/07/2017, 10:13),
http://www.un.org/en/universal-declaration-human-rights/
[5](14/07/2017,
10:13),https://www.justice.gov/oip/blog/foia-update-freedom-information-act-5-usc-sect-552-amended-public-law-no-104-231-110-stat
[6](13/07/2017,
14:25),http://www.sify.com/news/10-things-about-rti-act-that-completes-10-years-news-columns-pkflhegibifjb.html
[7]The Central Freedom to Information Act did not apply to the State of Jammu
and Kashmir under Article 370 of the Constitution of India.
[8]Shekhar Singh, The Genesis and Evolution of the Right to Information Regime
in India" in India,51.
[9](17/07/2017, 12:00),
http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm
[10]S.P. Gupta vs. President Of India And Ors,AIR 1982 SC 149
[11]1973 AIR 106, 1973 SCR (2) 757
[12]AIR 2003 Delhi 103, 101 (2002) DLT 229
[13]AIR 1989 SC 190
[14]AIR 2004 SC 1442: (2004) 2 SCC 476
[15]AIR 2005 Kant 21
[16](00:53, 18/07/2017),
http://www.livelaw.in/8-years-of-right-to-information-act-in-india-an-appraisal/
[17]Shekhar Singh, The Genesis and Evolution of the Right to Information Regime
in India" in India,74.
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