CONSTITUTIONAL BASIS OF RIGHT TO INFORMATION ACT 2005

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PROLOGUE

It is often said that in modern society information is power. By sharing that information with the people at large, we are therefore, proposing decentralisation and participatory governance. It is revolutionary enactment that has placed huge powers in the hands of the ordinary citizen of the country to demand a transparent and accountable administration.[1] “The real Swaraj[2] will come not by the acquisition of authority by a few, but by the acquisition of capacity by all to resist authority when abused”. When Mahatma Gandhi said this, he may not have imagined that one day India will have to make a law to empower people for something as basic as seeking information about the development of the country. The date of 12th October, 2005 shall be remembered as a new era of empowerment for the common man in India. It is applicable everywhere except the state of Jammu and Kashmir. This law was passed by Parliament on 15th June 2005 and came fully into force on 12th October 2005. Information disclosure in India was restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes. The effective date is often incorrectly referred to as 13th October 2005. But, since the Act came into force on the midnight between the 12th and 13th therefore the official date is 12th October 2005.An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. t has been oft repeated that secrecy ought not to be more than what is absolutely necessary.  A regime of secrecy is antithetical to a democratic society. One of the fundamental rules of good governance in a democracy is openness. The peoples’ right to know, therefore, is a prerequisite to a healthy and meaningful political intercourse between the people and the democratic State. The right to know has taken long in finding a firm footing in India. Independent India never rid itself of the colonial culture of the unreachable, unquestionable, holier-than-thou babus, something that has, for obvious reasons, proved to be a major barrier to transparency in the administrative decision-making process.

To err is human. Nevertheless, to let errors debase the society is unviable. Checks on power not only ensure its proper use but also implants a fear in the mind of a person vested with power, which in turn prevents the misuse of power due to the fear of revelation. In a democracy, Government is ‘of the people, by the people, and for the people’. It is imperative for the general public to know about the significant decisions taken, rationale and consequences of such decisions. Information and knowledge are essential for realizing all the human aspirations.

Information empowers the people and permits them to appropriately exercise their social, legal, economic and political rights. Almost every society has tried to make endeavors by placing the mechanisms for the free flow of information and ideas for people to access them whenever it is required. There are a number of reasons which emphasize the necessity of such a right in a country like India, which unfortunately carries the dubious tag of being one of the most corrupt nations. Right to information is thus a potent instrument for countering corruption and punish the guilty. The Right to information is therefore central to the achievement of the Millennium Development Goals. Information as a term has been derived from the Latin words ‗formation‘ and ‗forma‘ which means giving shape to something, and forming a pattern respectively?  It adds something new to awareness. Information is needed by human beings to realize their full social, political and economic potential. It entails a spectrum of knowledge about various issues and involves different stakeholders from market to government. It is the key which helps make decisions. It is also a public resource collected and stored by government in trust for people.

WHAT IS RTI?

The claim for a right to free access of information originated in a village of Rajasthan in 1987, where several laborers called for the government to check the ‘performance records’ of the laborers as they were denied wages, on grounds of inadequate performance. Massive protests were performed by labor unions, particularly by the ‘Mazdur Kisan Shakti Sangathan’, which resulted in the release of files regarding the working of laborers. The files showed extensive corruption on Government’s part and proved the innocence of laborers. If anything, this movement became a strong weapon to keep an eye on the government.

After that period, the demand for an essential tool in the hands of the citizens to ensure a check on the working of Government authority took pace. After the great campaigning by leaders and activists like Anna Hazare, Arvind Kejriwal, Aruna Roy and Shekhar Singh, this law was shown the rays of the glooming sun, and in 2005, Right to Information Act was passed by the government, replacing the timeworn Freedom of Information Act, 2002.

Right to Information is one act that intends to set up an arrangement for the masses where they can secure access to information under the control of public authorities. Under the provisions of the Act, any citizen may appeal information from a government authority which is mandatory to be replied expeditiously or within thirty days. One can obtain information merely by logging into RTI portal or filing an application to the related department.

The Right to Information Act, 2005 has enabled citizens everywhere, to interrogate and probe explanations from the Legislature, Executive and Judiciary. It has indeed become a ‘weapon of the weak’. 12 years have passed since the formal version of the current act was released and India has already made its prominent place in the top-5 list of countries having the most effectual access to the information held by the Government.

This right has also been derived from the notions of an individual in his capacity as a member of his community. The liberal society, as it was first conceived, aims to guarantee freedom of religion, freedom of speech and expression, freedom of information, freedom from illegitimate authority, etc. while in western countries disclosure of information is mandatory, till the introduction of the Right to Information Act, 2005 it was discretionary in India. The right to information can be broadly classified into two broad heads:

1) Right to information against government

2) Right to information against private persons

RIGHT TO INFORMATION AGAINST THE GOVERNMENT

An individual may seek information from the government either as a public citizen or as private person or even as a surrogate. People may seek information for different purposes. In cases where individuals seek information with an eye to help others or with public interest in mind, they become surrogates for the community at large. The category in relation to providing or receiving information from the government can be further divided into the following heads:

[1] when is an individual required to give information to the state

 [2] when can an individual withhold information from the state

  [3] when is the state bound to give such an information

 [4] when is the state not free to give an information to the individual

 

RIGHT TO INFORMATION AGAINST PRIVATE PERSON

This right to information of one person against another is an obligation as well as a privilege under the law.  A person is not obliged to give information to any other except when law has placed such obligation. If a person knowingly withholds information and thus in turn causes hurt, harm or injury to another then it may amount to a penal offence.  Not giving information may affect the validity of certain transactions. Such liability is implicit in the law of contract. Free consent entails with it an implicit provision of revealing all information necessary as well as incidental to the matter under consideration. A person also has a privilege not to give information, as it concerns itself with the right to privacy. Moreover certain professionals by virtue of their professions have the privilege to refrain from disclosing the information about their client. For example a journalist who needs to keep his source of information private to maintain an uninterrupted flow of information to himself. Another example could be the information provided by a patient to his doctor or a client to his charted accountant or lawyer. They are all instances of a privileged communication.

RIGHT TO INFORMATION IN INDIA – A LEGAL BACKGROUND

Paradoxes are galore in our system. But movements by the masses for a right to which they are entitled by the virtue of bring the part of democracy is a disturbing aspect. However it is true that, while the common public has been aware of the importance of RTI, those wielding the political clout have been reluctant in transforming the right into practical legal reality. It all began in 1990 when the Mazdoor Kisan Shakti Sangathan (MKSS), a collective of farmers and labourers, was formed in Devdungri, Rajasthan. Members of the collective were working for a state employment generation scheme, yet were being paid significantly less than the guaranteed minimum wage This enticed them to demand their legal entitlement. In response they got an answer that the official documents are not consonant with the necessary work that ought to be done by them. Such official documents were wrapped in the walls of bureaucratic 'secrecy' unavailable even to the persons, to which they were related. However, some clues by the sympathetic officer indicated towards enormous anomalies. Tackling these discrepancies required some unique medium to sensitize the people directly and easily for this purpose; MKSS adopted the means of placing the disclosed information in the public domain through village based public hearing called as jan sunwais.  With the beginning of the RTI entered with this movement, which made people realize that secrecy enabled corrupt officials to siphon off minimum wages and other entitlements of the poor. A movement demanding the RTI was thus born and its first champions were the disempowered rural workers in the remote rural area of Rajasthan. Movements for RTI cannot be seen as isolated events. They are coextensive with a movement to make democracy real and functional. RTI was demanded as the right to work, the right to obtain famine relief, or the right to receive minimum wages. Secrecy and national interest were some excuses which, were heavily used by the power wielders to wrap information insulating it from reach of the masses. Corruption, therefore, was breeding prolifically in face of lack of accountability and an open government. Importance of open government was observed by Bhagwati, J, in the following words: "Open government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.[3] Due to the pressure of the grassroots movements as well as to satisfy the international obligations, some of the State Governments such as Goa, Tamil Nadu, Rajasthan, Delhi Maharashtra, Madhya Pradesh etc, introduced the Right to Information Act. With the growing demand for a right to public information from various groups of the society and public spirited persons, led by civil society organizations in these States could no longer be ignored. The need to enact a law on right to information was recognized unanimously by the Chief Ministers Conference on "Effective and Responsive Government", held on 24th May, 1997 at New Delhi. The Government of India, Department of Personnel decided to set- up a 'Working Group' (on the 'Right to Information and Promotion of Open and Transparent Government') in January 1997 under the chairmanship of Mr. H. D. Shouri, which submitted its comprehensive and detailed report and the draft Bill on Freedom of Information in May 1997. The Press Council of India, the Press Institute of India, the 'National Campaign for People's Right to Information' and the Forum for Right to Information unanimously submitted a resolution to the Government of India to amend the proposed Bill in February, 2000. The Government of India introduced the Freedom of Information Bill, 2000 (Bill No.98 of 2000) in the Lok Sabha on 25th July, 2000. The Bill, which cast an obligation upon public authorities to furnish such information wherever asked for, was passed by the Parliament as the Freedom of Information (FOI) Act, 2002. National Advisory Council (NAC) was set up by the United Progressive Alliance (UPA) government which came at the centre in 2004. FOI Act was a very weak law and did not confer the deserving status of constitutional status to RTI. NAC recommended various changes to be incorporated in FOI Act. The central government decided to make changes which would make the Act more participatory and meaningful. But later on the government decided to repeal the FOI Act, and enacted a new legislation, the Right to Information Act, 2005, to provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India. The then Prime Minister of India, emphasizing on the importance of RTI in the governance of country, reflected the culmination of what was a sporadically vehement movement initiated by the otherwise disempowered masses. He said, “Four years ago I said to you that an important challenge we face is the challenge of providing good governance. We have taken several steps to make Government transparent, efficient and responsive. The Right to Information Act was one major step. We have initiated reform and modernization of Government”[4]

WHO ALL ARE COVERED UNDER RTI?

The RTI Act covers various departments, as the sole spirit of the act is to promote transparency and accountability within the government. Although almost all the departments and bodies controlled or funded by the Central Government (even at the state level) are covered under the Act, however, departments funded by the State Governments are accessible only in those States which have State RTIs.

There are certain departments which do not fall under the purview of the given act. These include departments dealing with defense and national security. Some other bodies like National Security Guard, the Intelligence Bureau, and Border Security Force, etc. The state of Jammu and Kashmir is also exempt from the RTI Act.

 

CONSTITUTIONAL BASIS AND PROVISONS

The Indian constitution has an array of basic and inalienable rights termed as Fundamental rights contained in Chapter III. These include the right to equal protection of the laws and the right to equality before the law, the right to freedom of speech and expression and the right to life and personal liberty. These are backed by the right to Constitutional Remedies under Article 32. The legal position with regard to the right to information has developed through several Supreme Court decisions given in the context of fundamental rights. The legal discourse on the right to information started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right of freedom of speech and expression such as challenging governmental orders for control of newsprint.

·         ARTICLE 19(1)(a)

This provision guarantees the fundamental right to free speech and expression, which includes within it the right to access information. The pre-requisite for enjoying this right is knowledge and information. Thus the right to information becomes a constitutional right as the right to free speech also guarantees right to receive and collect and information. Article 19(2) permits the State to make such laws as to impose reasonable restrictions on the exercise of the freedoms guaranteed under this provision on grounds such as security of the state, sovereignty and integrity of India and other grounds as enumerated in the provision.

·         ARTICLE 21

This article talks about right to life and personal liberty, which includes the right to know about things that affect our lives. The expression ―life and personal liberty‖ is a broad term, which includes within itself variety of rights and attributes. The Supreme Court read into this article as a broad right to include right to know within its purview. The apex court held that ―right to know is a necessary ingredient of participatory democracy……... It is wide enough to expand to a full range of rights including the right to hold a particular opinion and the right to sustain and nurture that opinion. It confers on all persons a right to know which includes right to information.

 

·         ARTICLE 32

This article guarantees a right to constitutional remedies on the situation of a violation of the fundamental right of any citizen. The constitution also imposes certain duties upon the citizens under Article 51 A. A fully informed citizen is better equipped for the performance of these duties.   RTI is not specifically mentioned in the Seventh Schedule of the Constitution, and does not fall under any of three subject lists of the Constitution. As such it is a residuary matter and the power to legislate on such matters rests with the Central government.

 

RTI: FUNDAMENTAL AS A RIGHT: SOME IMPORTANT CASES TO LOOK INTO

·         Bennett Coleman & Co. v Union of India  The judges in this case remarked; ―it is indisputable that by freedom of  the press meant the right of all citizens to speak, publish, and express their views……Freedom of speech and expression includes within its compass the right of all citizens to read and be informed‖.  

·         Prabha Dutt v. Union of India  The court held that there could be no reason for refusing permission to the media to interview prisoners on death row. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give directions to the concerned agencies for ensuring transparency in their functioning.

·         Sakal Newspapers (Private) Ltd. v. Union of India   The Supreme Court held that the impugned Act and the Order imposed unconstitutional restriction on the freedom of the press. The court also held that restriction upon freedom of speech was to be examined with lesser presumption of constitutionality than the restrictions upon freedom of trade or business. The court brought in the preferred freedom doctrine in Indian Constitution.

·         Romesh Thappar  v. State of Madras   One of the earliest cases where the Supreme Court laid emphasis on the people‘s right to know.  There the petitioner had challenged an order issued by the then Government of Madras under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposing a ban on the circulation of the petitioner‘s journal Cross Roads was struck down as voilative of the right to freedom of speech and expression under Article 19(1)(a).

·         S. P. Gupta v. Union of India  This case is popularly known as Judges Transfer case, Bhagwati, J. had advised in the landmark case that it is essential for the people to have as much information about governmental operations as possible. Participation in government by the people is regarded, as an important aspect of democracy and people cannot participate unless they have information as to what is going on in the country.

·         In Dinesh Trivedi v. Union of India   Which concerned the questions of the disclosure of the Vohra Committee Report, the Supreme Court once again acknowledged the importance of open Government in a participative democracy. The Court observed that: ―In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.‖ It went on to observe that ―democracy expects openness and openness is concomitant of a free society and the sunlight is a disinfectant.

·         Association for Democratic Reforms v Union of India   The Delhi High Court has emphasized that the right to information acquires great significance in the context of elections. It is now common knowledge that there is criminalization of politics in India. It is a matter of great concern that anti-social and criminals are seeking to enter the political arena through the mechanisms of elections to State Legislatures and even to Parliament. Parliament has not yet been able to enact a law to uproot this evil. In this scenario, the Delhi High Court has sought to cleanse the electoral process through the mechanism of the right to know of the people and laid down certain conditions which the apex court also agreed on appeal. The apex court went on to say that one-sided information, disinformation, mis-information and non-information will equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.

·         M. Nagaraj v. Union of India  It was held that right to know and right to access information is implicit in the right of free speech and expression guaranteed under Article 19(1) (a). The right to information has both intrinsic and instrumental value. Its intrinsic value comes from the fact that citizens have a right to know. It is a crucial step towards a deeper, more meaningful democracy. More tangibly, in a country like India it can promote action for development and therefore has considerable instrumental value. Information enables people to make enlightened choices, and keep tabs on elected representatives and officials who claim to act on their collective behalf. Thus, accountability and transparency are both enhanced radically.

·         PUCL v. Union of India   ‗Section 14 of POTA  the obligation to furnish information was held to be intra-vires Articles 14, 19, 20(3) and 21.Neither a lawyer can claim professional communication beyond what is permitted under section 126 of Indian Evidence Act, nor is there any law permitting a newspaper or a journalist to withhold relevant information from courts, nor can withholding of such information be traced to the right to privacy, which itself is not an absolute right.

CONCLUSION

In Maneka Gandhi vs. Union of India, Justice V. Krishna Iyar opined that “A government which functions secretly not only act against the democratic decency, but buried itself with its own burial.” In a democratic setup there must be direct participation of the people in the democracy. This participation is meaningless unless the citizens are well informed on all sides of issues in respect of which they are called upon to express their views. One sided information, disinformation, misinformation and non-information all equally create uninformed citizenry which makes democracy a farce, When medium of information is monopolized either by a partisan central authority or by private individuals or oligarchic organizations. Therefore to avoid this monopoly the duty of the government is to give information to the people of the country because the government is the trust of the people. In this reference, Henery Clay rightly observed that “government is a trust and the officers of the government are trustees and both the trust and the trustees are created for the benefit of the people.” Every democracy requires an informed citizenry and transparency of information which are vital for its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. For setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities and to promote transparency and accountability in the working of every public authorities RTI is intrinsic right. No democracy can be meaningful where their citizens cannot audit the performance of the government business, bureaucrats and the other functionaries who act on behalf of the state. In order to audit the performance of the government, the people have to be well informed of its policy, actions and failures. An informed citizenry is a pre requisite for guanine and participatory democracy.

 


[1] Garima Malhotra & Saba Grover, “ Judiciary’s Rights Beyond Information,” p.01 In http://www.legalserviceindia.com/article/l278-Judiciary’s-Rights-Beyond-Information.html, access on 26th November 2018

[2] Right to Information - Path to Swaraj, Shailesh Gandhi, The Hindu; Oct. 07, 2005. 

[3] S. P. Gupta v. Union of India, AIR (1982) SC 149, p. 234

[4]  The then Prime Minister, Dr. Manmohan Singh, addressing the Nation from the ramparts of the Red Fort on the 62nd Independence Day