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Saturday, 29 October 2016



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,
  1. 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.
  2. The legislation should contain a presumption in favour of maximum disclosure.
  3. 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.
  4. 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,
  1. 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.
  2. 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.
  3. 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.
  4. Limited Scope of Exceptions-----openness is rule and secrecy is exception in rare cases. Secrecy must be interpreted in narrow sense.
  5. Chief Costs----- the cost of obtaining information must be at the lowest otherwise it would be denial of information or mockery of providing information.
  6. Process to Facilitate Access---- the processes of obtaining information must be quick and free from cumbersome procedures.
  7. 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.
  8. 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.
[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.