Right to Information: A Paradigm Shift From
Closeness to Openness.Ý
Right to
information activist Sheela Massod was shot down in her car in front of her
residence in broad day in Bhopal on August 16 2011 because she was instrumental
in exposing Forest Mafia and high corruption cases. Ex Union Minster Subramanya
Swami who sought documents under Right to
Information Act, 2005 and filed Public Interest Litigation in Supreme Court
on 2G scandal, led to prosecution of former telecommunication Minster Raja.[1] All
these facts empathetically strengthen the statement made by the Prime Minister
Man Mohan Singh, in his valedictory address at the National Convention on Right
to Information held in Vighyan Bhavan Delhi on October 2006 that “RTI is an
important milestone in our quest for building an enlightened and at the same
time prosperous society.”[2] Undoubtedly,
it can be said that the RTI is historical legislation in the Indian democracy
that has empowered the citizens of India a real, meaningful, effective, and participative
democracy. Ultimately in democracy openness is rule and secrecy is exception.”[3] Democracy rests on good governance which is
based upon transparency, openness and accountability. Democracy and non-transparency
of Government cannot co-exist. Bureaucracy always seeks the path of least
disclosure. Jeremy Bentham said, “Secrecy, being an instrument of conspiracy,
ought never to be the system of a regular government.”[4] To
make democracy meaningful and successful, access to information by the citizen
is must. Society has often realized that information is becoming the lifeblood
of society and it has immeasurable value. Right to information is extension
form of Fundamental Right of Freedom of Expression and Speech.
Right to Information and International
documents
There is an
exciting global trend towards recognition of the right to information by
States, inter-governmental organizations, civil society and the people. There
is a growing body of authoritative statements supporting the right of information,
made in the context of official human rights mechanisms, including at the
United Nations, Commonwealth, the Origination of American States and the
Council of Europe. Article 19 of Universal
Declaration of Human Rights (herein after referred as UDHR) speaks as follows,
Everyone has the right to freedom
of opinion and expression: this right
includes freedom to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
Article 19 of International Covenants on Civil and Political Rights 1966 is
contains similar provision to Article 19 of UDHR. Even the Article 13 of the American
Convention on Human Rights also provides right to information. Further Article
10 of European Convention on Human Rights also gives right to information.
During the last decade, there has
been increasing recognition that access to information on the environment,
including information held by public authorities, is central point of
sustainable development. The issue was first substantively addressed in the
1992 of Rio Declaration on Environment and Development. The Commonwealth Governments
in meeting held in South Africa in November 1999 [5] adopted
the following principles,
- Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the state, as well as any Government owned Corporation and any other body carrying out public information.
- The legislation should contain a presumption in favour of maximum disclosure.
- The right of access may be subject to only such exemptions, which are narrowly drawn, permitting Government to withhold information only when disclosure would harm essential interests such as national defense and security law enforcement, individual privacy or commercial confidentiality, provided that withholding the information is not against public interest.
- Decisions under the legislation should be subject to independent review capable of ensuring compliance.
Right to Information, Constitution and Democracy
An aspiration
for the Democratic Process of Government is philosophy of the 21st
century. Johan F Kennedy said, “A Nation that is afraid to let its people judge
the Truth and Falsehood in an open market is afraid of its people.”[6] It must never forget that the free flow of
information is essential to democratic society. The freedom of information
movement stands on the verge of changing the definition of democratic
government. The movement is creating new norm, a new expectation, and a new
threshold requirement for any government to be considered a democratic. James
Madison, fourth president of USA,
said, “A popular government without popular information or the means of
acquiring it is but a prologue to a face or tragedy or perhaps both.”[7]
The right to Information derives from the democratic framework and executives
should not see it as a “draconian law” for paralyzing Government but as
instrument for improving Government citizen interfacing, resulting in good
rapport between the Government and its people.
Constitution.
There is no Article in the Indian Constitution,
which explicitly mentioned the right to information. Nevertheless, various Articles
of the Constitution lead to inferences that the right to information is
implicit. Preamble of the Constitution, Article 19(1) (a) and 21 provides space
for the accommodation of right to information.
Preamble of the Constitution.
The Preamble declares, “We the
people of India having solemnly resolved to constitute India into a [Sovereign, Social, Secular, Democratic, Republic] and to secure to
all its citizen …” The two words
‘Sovereign’ and ‘Democratic’ are important. The preamble is very clear that
Sovereign of the Nation resides with the people. The term ‘democratic’
indicates that the Constitution has established a form of Government, which
gets it authority from the will of the people. Abraham Lincon former President
of USA said democracy means, Government is of the people, by the people and for
the people. Republic and democratic of Government is the basic structure of Indian
Constitution. Therefore, the Government is representative of its people. The
people are entitled to know what Government is doing, what are polices it
perusing, whether it is exceeding its authority, whether the Government is
mal-functioning or non-functioning. These are the vital matters, which the
people should keep watching. Democracy does not mean that the people should
exercise franchise once in five years and remaining days they should be blind
on the performance of the Government that would amount to mockery of democracy.
Democracy is form of Government that requires people’s continual participation operation;
it is not a cataclysmic or periodic exercise. Therefore, full participation of
the people in the Government for meaning full of democracy ‘right to know’ is a
sine qua non
The overreaching purpose of access
to information legislation is to facilitate democracy. It does so in two
related ways. It helps to ensure first that citizens have the information
required to participate meaningfully in the democratic process, and that
politicians and bureaucrats remain accountable to the citizenry. Sissels Bok
great philosopher from Swedish in 1982 said the right to information is
indispensable in democracy and quotes,
“I believe that a guarantee
of public access to government information is indispensable in the long run for
any democratic society. . . If officials make public only what they want
citizen to know then publicity becomes shame and accountability meaning less.” [8]
The Supreme Court in State of UP v. Raj Narian held that “in a
Government of responsibility like ours, where all the agents of the public must
be responsible for their conduct, there can be but few secrets. The peoples of
this country have a right to know every public act, everything that is done in
public way by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. To cover with veil
of secrecy the common routine business, is not in the interest of the public.” [9] Apex
Court in S.P.Gupta and others v.
President of India and others, further strengthens this principle, and
observed, “Now, if secrecy were to be observed in the functioning of government
and the process of government were to kept hidden from public scrutiny. It
would tend to promote and encourage oppression, corruption and mis-use or abuse
of authority, for it would all be shrouded in the veil of secrecy without any
public accountability. But if there is an open government with means of
information available to the public, their would be greater exposure of the
functioning of government and it would help more efficient administration.
There can be little doubt that exposure to public gaze and scrutiny is one of
the surest means of achieving a clean and healthy administration, it has been
truly said that an open government is clean and a powerful government safeguard
against political and administrative aberration and inefficiency.” [10]
In modern
constitutional democracies, it is axiomatic that citizens have a right to know
about the affairs of the Government that is having been elected by them. In Secretary, Ministry of Information and
Broadcasting, Govt of India
v. Cricket Association of Bengal,[11]
Hon’ble Supreme Court held as under,
“The
democracy cannot exist unless all citizens have a right to participate in the
affairs of the polity of the country. The right to participate in the affairs
of the country is meaningless unless the citizens are well informed on all
sides of the issues, in respect of which they are called upon to express their
views. One sided information, disinformation, misinformation and
non-information, all equally create an uninformed citizenry, which makes
democracy a farce when medium of information is monopolized either by a
partisan central authority or by private individuals or oligarchy
organizations. This is particularly so in country like ours where about 65 percent,
of the population is illiterate and hardly 1.5/of the population has an access
to the print media which is not subject to pre-censorship.”
Right to Freedom of
Speech and Expression under Article 19(1) (a)
Freedom of speech and expression is
indispensable in a democracy. In Romesh
Thapper v. State of Madras,[12] Pantajali
Sastri, J, rightly observed that “Freedom of Speech and of the Press lay at the
foundation of all democratic organizations.” Article 19(1) (a) states that all citizens
shall have the right to freedom of speech and expression. The freedom of speech
and expression includes liberty to propagate not one’s view only. It also
includes the right to propagate or publish the views of other people.[13] Great utilitarian John Stuart Mill argued that
the fullest liberty expression is required to push argument to their logical
limits. When freedom of expression is put to use by mass media, it acquires an
additional dimension and becomes freedom of information.[14]
The expression freedom of the press has not been used in article 19 but it is
comprehended within Article 19(1) (a). This expression means freedom from interference
from authority, which would have the effect of interference with the content
and circulation of Newspaper.[15]
The freedom of the press is not confined to newspaper and periodicals. It
includes also pamphlets, circulars, and every sort of publication that affords
a vehicle of information and opinion.[16] Right
to freedom of speech is nothing but right to information that is basic amenity
of civilized society, which has four broad special purposes to serve.[17] One,
it helps an individual to attain self-fulfillment. Second, it assists in the
discovery of truth. Third, it strengthens the capacity of an individual in
participating in decision-making. Fourth, it provides a mechanism by which it
would be possible to establish a reasonable balance between stability and
social change. Any restrictions on the freedom of the press are ultimately
bound to affect the citizen’s right to obtain information.[18] The
Supreme Court impliedly admitted that if circulation of newspaper was
restricted, not only the press suffered but also the reader in effect was
denied the information. The purpose of the press is to advance the public
interest by publishing facts and opinions without which a democratic electorate
cannot make possible judgment. The march of law towards securing freedom of
information explicitly under Article 19(1) (a) began with case of S.P. Gupta and others v. President of India
and others.[19] Justice
Bhagawati observed that
“The concept of an open
Government is the direct emanation from right to know which seems to be
implicit in the right of free speech and expression guaranteed under article
19[1]1a]. Therefore, disclosure of information in regard to the functioning of
Government must be the rule and secrecy an exception justified only where the
strictest requirement of public interest so demands. The approach of the court must be to
attenuate the area of secrecy as much as possible consistently with the
requirement of public interest fearing in mind all the time that disclosure
also serves an important aspect of public interest.” [20]
Free
and fair elections are the very foundation of democratic institution.[21] Constitution
and People’s Representation Act, 1951
provides free and fair elections. However, there has been a steady deterioration
in the standard, practices and pronouncement of the political class.[22]
Law Commission of India suggested certain reformation in the People’s Representation Act, 1951, to Parliament,
which recommended that contesting candidate for election must declare the value
of assets held by him and his spouse. Further, he must inform any conviction of
crime by court and any FIR, trial and investigation pending before the court.[23]
The Election Commission of India on the direction of Delhi Court issued notification and made
obligatory on the candidates of election to declare their assets and criminal
records. Thereafter, Parliament amended the People’s
Representation Act and negated the Court’s judgment and Election Commission’s
notification. In historical case, Union
of India v. Association for
Democratic Reforms[24]
held that the amended Electoral Reforms Law passed by Parliament is
unconstitutional as being violative of a citizen’s right to know about
antecedents of candidate contesting election. Court said democracy cannot
survive without free and fair election, without free and fair information
voter’s exercise of their franchise is meaningless. “One—sided—information
disinformation, misinformation, and non-information all equally create an un-informed
citizenry which makes democracy a farce.”[25]
Therefore, Freedom of speech and expression includes right to impart and
receive information.
In State v. Charita, the Supreme Court held that the right to freedom
of expression which includes the freedom of the press does not have an
unfettered right to information by interviewing an under-trial prisoner in
jail.[26]
The existence of right to information of press did not put any legal obligation
on the citizen to supply information to the press.[27] The
Charita and Prabha Dutt [28] cases
demonstrated that right to information is not always co-extensive with the
right to freedom of speech and expression.[29] Professor
Sathe has rightly submitted that “[A] citizen’s right to information must
emanate from his citizenship: it must stem from his right to participation in
the democratic process by virtue of his right to vote. It ought not to be
dependent on some one else’s freedom of speech and expression.”[30]
Citizen’s right to know should exist independently of the right to freedom of
speech. Another defect of recognizing the right to information as part of
freedom of speech makes right with limited application because the fundamental
right can be enforced against State only. In democratic set up Government, the
citizen needs to claim information form other private institutions that does
not fall in the definition of State under Article 12 of the Constitution.
Article 21 of life and Personal liberty
In Menaka Gandhi v. Union of India, case the Supreme Court gave new dimension to
Article 21. It held that the right to live is not merely confined to physical
existence but it includes within its ambit the right to live with human
dignity.[31] Right
to life and liberty in democracy includes all those rights, which are essential
to make him as civilized person in the society. The Supreme Court asserted that
the every person has right to education as part of right to life.[32]
Words like those‘live with human dignity and education’ amply makes clear that
right to information embodied in the right to life. In Reliance Petrochemicals Ltd v. Proprietors
of Indian Express Newspaper Bombay Pvt Ltd and others, [33]the
question before Supreme Court was whether the court could grant injunction on
pre-stoppage of article on matter of public importance. The court was in sticky
situation to balance between the free press and fair trial. The Court observed,
“The people at large have a right to know in order to be able to take part in
participatory development in the industrial life and democracy. Right to know
is a basic right which citizen of free country aspire in the broaden horizon of
the right to live in this age on our land under Article 21 of the Constitution.
That right has reached new dimension and urgency, that right puts greater
responsibility to inform.”[34]
Recognition of right to information under article 19 and 21 is plausible trend.
Nevertheless, acknowledgment of right to information under Article 21 would
serve border purpose than right to information under Article 19(1) (a). Article 19 (1) (a) can be used to get
information, means right to information is exercised to get information that
amounts to an end in itself. Whereas under Article 21 right to information
becomes means, tools, and instrument to enforce other rights because it embodies
variety of divergent rights.
Right to information and Indian
Evidence Act
Section 123 was added to the Indian Evidence Act with sole object of
protecting the interest of British Government, which is retained even after
adopting democracy and fundamental rights in the Constitution. Section 123 states
that ‘any unpublished document related to State of affairs would not be
produced before the court unless the concerned Head of Department consented.’
Courts have held that the Head of the Department does not have unfettered power
to withhold the production of unpublished document unless the public interest
desires. The principle behind Section is the overriding and paramount character
of public interest and injury to public interest is the sole foundation of the
Section.[35] Section
162 of the Evidence Act prescribes that
‘any objection raised by the Head of the Department would be decided by the
court.’ Section 123 read with Section 162 makes the things little lighter. In State of U.P. v. Raj Narian, the Court observed,
“Public interest which demands that evidence be withheld is to be weighed
against the public interest in the administration of justice that courts should
have the fullest possible access to all relevant materials. When public
interest outweighs the latter, the evidence cannot be admitted.”[36] Interpreting
the court’s power to access the document and decide the validity of objection
of the executive in the form of norm is highly appreciable because it is going
to curb the arbitrary power of the executive.
In S.P. Gupta and others v. President
of India and others,[37]
Supreme Court analyzed that the concept of an open Government is the direct
emanation from the right to know. Therefore, disclosure of information concerning
the functioning of Government must be the rule and secrecy an exception is justified
only where the strictest requirement of public interest so demands. No doubt,
there may be such affairs of the State involving security of the nation and
foreign affairs where public interest requires that the disclosure may not be
justifiable. However, the fair administration of justice is matter of public
importance is also well-established doctrine, which cannot be ignored lightly.
Therefore, if the two public interest conflict, the courts have to decide
whether the public interest which formed the foundation for claiming privilege
would be jeopardized if disclosure is ordered and on the other hand whether
fair administration of justice would
suffer by non disclosure and decide which way the balance tilts. The
legislation that provides information must embody the following principles,
- Maximum Disclosure---- the presumption that all information held by the public authority is subjected to disclosure. Onus is on the government to prove that disclosure is not in the interest of public.
- Obligation to publish------the public authority must be under obligation to publish certain mates at regular time so inconvenience or people coming to office for information would be reduced if not eliminated.
- Promotion of Open Government-----in legislation there must provision to educate the people of their right at the cost of government and dissemination of information of the right to access to information.
- Limited Scope of Exceptions-----openness is rule and secrecy is exception in rare cases. Secrecy must be interpreted in narrow sense.
- Chief Costs----- the cost of obtaining information must be at the lowest otherwise it would be denial of information or mockery of providing information.
- Process to Facilitate Access---- the processes of obtaining information must be quick and free from cumbersome procedures.
- Precedence of disclosure------in case the right to information legislation conflict with other legislation which discourages the disclosures of information, then it must be resolved in favour of right to information.
- Protection to Whistleblowers----the person who uses the right to information for the cause of public, his name, identity and address should not be public.
Conclusion.
The right to information
is right linked with inherent dignity of all human beings. The right to
information is also a crucial for participatory democracy, which describes information
as “the oxygen of democracy.” Richard Nixon former President of USA said “When
information popularly belongs to public systematic withhold by those in power,
the people soon become ignorant of their own affairs, distrustful of those who
manage them, and eventually-incapable of determining their own destinies.” Harsh Mandrs, an RTI activist described the
nature and value of information as follows,
“…Government
information is national resources. This information is generated for the
purpose related to the legitimate discharge of their duties of office and for
the service of the public for whose benefit the institutions of government
exist, and who ultimately fund the institutions of government and the salaries
of officials. It follows government and officials are trustee of the information
for the people.”[38]
Author has
rightly said the development and welfare of the people is rested on the access
to the information, which ought to be considered as ‘national resources.’ The
right to information is also essential to accountability and good governance.
Secrecy is a breeding ground for corruption, abuse of power and mismanagement.
No government can now deny that the public has a right to information. Access
to public records improves communication within governmental to make the public
administration more efficient and more effective in delivering the service and
justice to its subjects. Right to information should be considered as right of
survival; Food security, Shelter, Environmental matter, Employment, land
acquisitions, establishment of SEZ, and
poverty are all tied with the right to information. In the light of decentralized
power and democracy in the form of Gram Panchayat, Taluk Panchayat and Zilla
Panchayat, right to information has significantly changed the attitude and
behavior of the officials and become more responsive towards mass and
uneducated people. Access to information has become tool to protect other civil
rights. Most of the fake encounters, illegal
arrest, torture and death could be bought to the notice of court; as it has
happened in high profile cases of Gujarat. Survival and success of democracy
much depends upon the healthy wealthy organization of Media and Press that acts as watchdog of
democracy. Media provides link between the people and their government and acts
as a vehicle of mobilization. Media could discharge its responsibility at
optimum level, if they are assured free access to information for which in the
past they used to run from pillar to pillar and used unethical means to get it.
William Pollard has rightly said, “[I]nformation is a source of learning. But
unless it is organized, processed, and available to the right people in a
format for decision making it is burden, not a benefit.”[39]
Ý
Dr. S.G. Goudappanavar, Associate Prof, gouri1000@gmail.com
S.C. Nandimath Law College, Bagalkot, Karnataka.
[1] www.janataparty.org. Accessed on
September 4 2011.
[2]
Dr, Barowalia, J.N. The Right to
Information Act. 2nd edn., (New Delhi: Universal law Publishing
Co.Pvt.Ltd, 2010).p.25.
[3] S.P.Gupta v. Union of India, AIR 1982 SC 149.
[4] www.fipa.bc.ca/libray/public_Education/quotes,htm.
Accessed on September 5 2011.
[5]
The Durban Communiqué, (Durban: Commonwealth Head of Government Meeting held on
November 15 1999), para. 57.
[6] Supra note 7.
[7]
Subhash Gupta, “Freedom of Information in India: A Critique”, AIR, Journal, (2004).p.2004.
[8] Ibid.
[9]
AIR 1975 SC 865 at p.884.
[10] Supra
note 3 at 223.
[11]
(1995) 2 SCC 161. AIR 1995 SC 1236.
[12]
AIR 1950 SC 124.
[13] Srinivas v State of Madras, AIR 1931 Mad 70.
[14]
Sathe, S.P. “The Right to Know: Proposed Constitutional and Legislative
Strategies”, vol, 24(1&2), IBR, (1997).p.75.
[15] Indian Express Newspaper [Bombay] private Ltd v. Union of India, (1985) 1 SCC 641.
[16] Sakal Papers Ltd v. Union of India,
AIR 1962 SC305.
[17] Supra note 15.
[18]
Sathe, S.P. op. cit., p.76.
[19] Supra
note 3.
[20] Ibid at158.
[21] Indra Nehru Gandhi v. Raj Narian, AIR 1975 SC 2299. Mohinder Singh Gill v. The Chief election Commissioner, AIR
1978 SC 851.
[22] Law Commission of
Inida’s one hundred seventies Report on ‘Reformation of Election Laws’, p. 3.
[23] Ibid at 143-146.
[24]
AIR 2002 SC 2112.
[25] Ibid.
[26]
AIR 1999 SC 1379.
[27] Prabha Dutt v. Union of India,
AIR 1982 SC 6.
[28]
AIR 1982 SC 6.
[29]
Sathe, S.P op. cit., p.82.
[30] Ibid at p.83.
[31]
AIR 1978 SC 597.
[32] Mohin Jain v. State of Karnataka,
AIR 1992 SC 1858.
[33]
AIR 1989 SC 203.
[34]
AIR 1989 SC 203.
[35] State of Punjab v. Sukhdev Singh, AIR 1961 SC 493.
[36]
AIR 1975 SC 865.
[37] Supra note 3.
[38]
Mander and Joshi, “The Right to information movements in India—People’s Power for the Control of
Corruption”, CHRI, New Delhi, 1998.
[39] www.thinkexist,com Accessed on September 16
2011.
