RIGHT TO INFORMATION

 RIGHT TO INFORMATION 

“Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed.”

Citizens’ Access to Information (ATI) is an essential stepin ensuring transparency and accountability ingovernment systems and processes. When a governmentis transparent, there is less chance for corruption andmore room for accountability. The RTI generally understood as the right to access information held bypublic authorities. It is not just a necessity of the citizens; it is a precondition to good-governance. To be specific,ATI makes democracy more vibrant and meaningful andallows citizens to participate in the governance processof the county. In particular, it empowers ordinary citizens,especially those in rural areas.

When people have ATI they naturally tend to make moremeaningful decisions, raise informed opinions, influencepolicies affecting their society and even help shape amore assured future for the next generation. RTI has been recognised in Sweden for over 200 years.Importantly, however, over the last ten years it has gainedwidespread recognition in all regions of the world. Whilerelated legislations were adopted only by 13 countriesin 1990, this number has now grown to 852 and more,and similar such pieces of legislations are under activeconsideration in many other countries.

In India, Right to Information Act was enacted in 2005 and since thenthis law has proved to be a strong weapon in the handsof people, for ensuring transparency in governmentdepartments and containing corruption.

This short project reports is intended to reveal the Constitutional aspects of the Right to Information.

II. HAS RIGHT TO INFORMATION EMERGED FROM OUR CONSTITUTION?

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

The right of information is an inalienable component of freedom of speech and expression guaranteed by Article 19(1) (a) of Indian constitution. As held in the respective cases ofBennet Coleman v. UOI, SP Gupta v UOI, and Secretary, Ministry of information and broadcasting v Cricket Association of Bengal.

The Supreme Court of India in Bennet Coleman case while taking into account the News print control order, allotment of newsprint to a newspaper was restricted, held that such restriction had not only infringed newspaper‘s right to freedom of speech but also readers’ right to read was cut down. And the reader’s right to access the newspaper was his right to information which was implicit in the right to Right of freedom of speech.

Similarly, in SP Gupta case the SC observed that “the people of this country have a right to know every public act, everything that is done in a public way, by those functionaries. They are entitled to know the very particulars of every public transaction. Also in Secretary, ministry of information & broadcasting v. Cricket Assn. of Bengal, the SC held that the airwaves were a public property and its distribution among the government media and the private channels should be done on equitable basis as the freedom of speech included the right to impart and receive information from electronic media.

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

III. CONSTITUTIONAL PROVISIONS OF THE RIGHT TO INFORMATION

Since constitution is a living document it needs to be construed in a broad and liberal sense. The construction most beneficial to the widest possible amplitude of its powers may have to adopt since of all the instruments, the Constitution has the greatest claim to be construed broadly and liberally.

The Indian Constitution has an impressive 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 (Article 14), the Right to Freedom of Speech and Expression [Article 19(1) (a)] and the Right to Life "Personal Liberty (Article 21). These are backed by the Right to Constitutional Remedies in Article 32, i.e., the Right to approach the Supreme Court, the highest court in the land, or the High Court in case of infringement of any of fundamental rights. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively enjoyed by all. However, the Constitution does not specifically mention about the right to information or even right to freedom of the press.

Article 19(1)(a) of the Constitution guarantees the fundamental rights to free speech and expression, which, by implication, includes within it the right of access to information. The prerequisite for enjoying this right is knowledge and information. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression, which includes the right to receive and collect information.

The Right to Information also seems to flow from Article 21 of the Constitution on the right to life and liberty, which includes right to know about things that affect our lives. The expression "right to life and personal liberty" is a broad term, which includes within itself variety of rights and attributes. In Reliance Petrochemical Ltd. v Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and others, the Supreme Court read into Article 21 as 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. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which includes a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1) (a).Thus,the courts are required to expand its scope by way of judicial activism.

In P.U.C.L v U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixedcontents, most of them are empty vessels into which each generation must pour itscontents in the light of its experience. The attempt of the court should be to expand thereach and ambit of the Fundamental Rights by process of judicial interpretation. Therecannot be any distinction between the Fundamental Rights mentioned in Chapter-III ofthe constitution and the declaration of such rights on the basis of the judgments renderedby the Supreme Court.

In Keshvanand Bharati v State of Kerala, the Supreme Court observed, "Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to the directive principles. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation".

The burden to prove that the restrictions are within the constitutional limits lies on the Government. Further, it is well settled that while interpreting the constitutional provisions dealing with fundamental rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due regard to the international conventions and norms while construing the domestic laws, more so when there is no inconsistency or conflict between them and the domestic law.

The Supreme Court in case of Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal, narrowly expanded its view on the provision of article 19(1) (a) towards the right to information. It held that the right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an unaware citizen's diversity of opinions, views, ideas, and ideologies which is essential to enable the citizens to arrive at informed judgement on all issues touching them. This court made more clear of the provision of right to information that is inferred itself in Article 19(1) (a).

It held in case of S.P. Gupta v Union of India, that right to know is implicit in right to free speech and expression. Disclosure of information regarding functioning of the government must be the rule.

In going back to 1975 this court in case of State of Uttar Pradesh v Raj Narain, observed that freedom of speech and expression includes right of citizens to know every public act, everything that is done in a public way, by their public functionaries. In the year the court also held that freedom of speech and expression includes right of the citizens to know about the affairs of the government.

The Supreme Court in another case of Peoples Union for Civil Liberties v Union of India, held that true democracy cannot exist unless the citizens have a right to participate in the affairs of the policy of the country. This is particularly so in a country like ours where 65% of the population is illiterate.

IV. CRITICISM OF SOME CONSTITUTIONAL PROVISIONS

The most formidable obstacle to the implementation of a Right to Information law inthe States and country comes from theConstitution itself. It defies human reason as to how a visibly anachronistic arid anti-people article i.e.oath of secrecy found place in the third Scheduleof the Constitution and is still being tolerated tothis day without any compunction, the like ofwhich is noticed nowhere in the democratic world.

The Article 75 (4) of the Constitution makes itbinding on every Minister before entering into hisoffice to swear by an oath of Secrecy, which readsas follows:

I, Swear in the name of God that I will not reveal to any person or persons any matter, which shall be brought under my consideration or shall be known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.

As is well known, in the typical Indiansystem of Parliamentary Democracy, a Ministeris both a member of legislature and a head of theexecutive in respect of the portfolios he holds.When a Minister, the head himself vows in thename of God to maintain secrecy of officialinformation from the people, how can the rest ofthe executive i.e. the Government servants whomhe heads and leads for all practical purposes, beexpected to disclose official information to thepeople just for the sake of a piece of legislation,called Right to Information or Freedom ofInformation Act? Over and above, there areConduct Rules, Codes and Manuals for theGovernment Servants, which bind them to the observance of strictsecrecy of official information from the public.

The National Commission to Review the Working of the Constitution (2000- 2002), whichsubmitted their 1800 and odd page Report to thePrime Minister on 3lst March 2002 have thereforeobserved inter alia.Much of the common man's distress andhelplessness could be traced to his lack of access to information and lack of knowledge of decisionmakingprocesses, which vitally affect his interest.Government procedures and regulationsshrouded in a veil of secrecy do not allow theclients to know how their cases are being handled.They shy away from questioning officers handlingtheir cases because of the latter's snobbish attitudeand bow-wow style. Right to information shouldbe guaranteed and needs to be given realsubstance. The traditional insistence on secrecyshould be, in fact, we should have an oath oftransparency in place of an oath of secrecy.Administration should become transparent andparticipatory.

The Oath of Secrecy apart, the IndianConstitution is replete with provisions, which arejust uncritically borrowed from its colonialpredecessor Government of India Act 1935, andlegitimize and reinforce by the full backing of thesupreme law of the land, an obsolete and nefariousregime of administrative secrecy that is squarelyincompatible with a democratic polity of moderntimes. Such immunitarian provisions of theConstitution as guaranteeing a special manner ofProtection to the Permanent Civil Service of thecolonial style (Article 311), Privileges of the Legislators ( Article 105 for MPs and Article 194 for MLAs), Security of tenure to the Judges(Article 124 for Supreme Court Judges andArticle 217 for High Court Judges), and aboveall Legal Protection to the President and Governors (Article 361), which together makethe citizens stare at the key functionaries of theState with awe and wonder, and which give afree hand to these functionaries to deal with themas they like without being directly accountable tothem, do also contribute indirectly but substantiallyto the maintenance of a regime built upon secrecy,red-tape, corruption and alienation from thepeople.

Unless and until the Constitution is rid ofits colonial self and remade in such a manner asto place the citizen at its center-stage, with all theorgans of power being directly accountable to himand his everyday life, no piecemeal enactment ofRight to Information can bring about the muchdesired elements of transparency, responsivenessand accountability to the governance of the day,over which the whole nation cries hoarse.

V. CONCLUSION 

RTI is a powerful tool that can deliver significant socialbenefits. It can provide a strong support to democracy and promote good governance, by empowering the citizen’s ability to participate effectively and holdgovernment officials accountable. Rather than justproviding information, RTI Act in most of the countrieshas served to be an effective watchdog ensuring all thosecoming in purview of the Act to work in accordancewith rules and regulations, without any irregularities.

Every citizen has a right to impart and receive information as part of his right toinformation. The State is not only under an obligation to respect this right of the citizen,but equally under an obligation to ensure conditions under which this right can bemeaningfully and effectively enjoyed by one and all. Right to information is basic to andindivisible from a democratic polity. This right includes right to acquire information andto disseminate it. Right to information is necessary for self-expression, which is animportant means of free conscience and self-fulfillment. It enables people to contributeon social and moral issues. It is the best way to find a truest model of anything, since it isonly through it that the widest possible range of ideas can be circulated. This right can be limited only by reasonable restrictions under a law for the purposes mentioned in Article19(2) of our constitution. Hence no restriction can be placed on the Right to informationon the grounds other than those specified under Article 19(2). The said right cannot bedenied by creating a monopoly in favour of the government or any other authority15.

Human history is witness to the fact that all evolution and all progress is because ofpower of thought and that every attempt at thought control is doomed to failure. An ideacan never be killed. Suppression can never be a successful permanent policy. It will eruptone day. The Constitution of India guarantees freedom of thought and expression and theonly limitation being a law in terms of Article 19(2) of the constitution. Thought controlis alien to our constitutional scheme. Further, people at large have a right to know inorder to be able to take part in a participatory development in the industrial life anddemocracy. Right to know is a basic right which people of a free country aspire in thebroaden horizon of the right to life in this age on our land under Article 21 of the Constitution. That right has reached new dimensions and urgency. That right puts greaterresponsibility upon those who take upon the responsibility to inform.

The Right to information is a sine-quo-non of democratic polity. Information always empowers people and ensures transparency of administration.But people’s access to information is very limited because of the fact that mechanism is not so effective and man’s brain deliberatively holds back information. The Right to Information Act 2005 seems to be an effective legislation but what about its effective implementation. And it requires aware and educated people who can use it for their welfare. So government first needs to ensure that a majority of population becomes educated so that this act may survive for a longer period and serve the deprived and poor people of this country. Also a high order Judicial Activism is also necessary regarding the implementation. If it succeeds in its purpose it will necessarily increase public participation.