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Asha Kanta Sharma

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CONCEPT OF RIGHT TO INFORMATION

ashakantasharma

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CONCEPT OF RIGHT TO INFORMATION
The concept of democracy in India is enshrined in the Preamble
to the Constitution of India wherein opening words provide that "We,
the People of India ―and in the end it lays down‖give to ourselves this
Constitution". The citizens have the fundamental right to know what
the government is doing in its name. Freedom of speech is the lifeblood of democracy.

The Apex Court in the case of K. v. Secretary of
State for the Home Department Ex. P. Simms, held that the free flow
of information and ideas informs political debate. It is a safety valve;
people are more ready to accept decisions that go against them if they
can in principle seek to influence them. It acts as a brake on the
abuse of power by public officials. It facilitates the exposure of errors
in the governance and administration of justice in the country.

Ancient India had a feudal culture and hierarchical social
structure. The Maharaja‘s, the Mughals and the British Rulers
defended themselves behind ramparts of secrecy. The Britishers
passed Official Secrets Act 1923, which was mainly a defense
mechanism against the rising tide of nationalism initiated by M.K.
Gandhi in 1917. As Indians were distrusted by British Government,
so nobody had any access to official information under this Act.59 The
Indian Legal System, largely being a colonial vintage, stresses on
secrecy laws and such provisions are contained in Official Secrets Act
1923, the Indian Evidence Act 1872 and the infamous Rowlatt Act
1919 etc.

After independence India adopted democratic form of
government, which implies the government of the people, by the
people and for the people. Where a society has chosen to accept
democracy as its creedal faith, it is elementary that the citizens ought
to know what their government is doing. The citizens have a right to
decide by whom and by what rules they shall be governed and they
are entitled to call on those who can survive without accountability
and the basic postulate of accountability is that the people should
have information about the functioning of government. It is only if
people know how government is functioning that they can fulfill the
role which democracy assigns to them and make democracy a really
effective participatory democracy. "Knowledge", said James
Madison, "will forever govern ignorance and a people who meant to
be their own governors must arm themselves with the power
knowledge gives. The Supreme Court in the case of S.P. Gupta v
Union of India held that "the citizens' right to know the facts, the
true facts, about the administration of the country is, thus, one of the
pillars of a democratic State and that is why the demand for openness
in the government is increasingly growing in different parts of the
world.

With the globalization of trade and industry and well knit world today,

the disclosure of information may be of the purity, potency and
price of commodities in the market or the functioning of the
government is necessary and for this purpose various Conventions
have been held at National and International levels, which suggested
imparting of the information on the working of the government to its
citizens subject to some restrictions being imposed by the law in the
interest of security of the country etc.

The demand for openness in the government is based
principally on two reasons. It is now widely accepted that democracy
does not consist merely in people exercising their franchise once is
five years to choose their rulers and, once the vote is cast, then
retiring in passivity and not taking any interest in the government.
Today it is common ground that democracy has a more positive
content and its orchestration has to be continuous and pervasive.
This means inter alia that people should not only cast intelligent and
rational votes but should also exercise sound judgment on the
conduct of the government and the merits of public policies, so that
democracy does not remain merely a sporadic exercise in voting but
becomes a continuous process of government an attitude and habit of
mind. But this important role people can fulfill in a democracy only
if it is an open government where there is full access to information in
regard to the functioning of the government.

For a long period the working of the Government had been
shrouded in secrecy and the poor citizens had to run from pillar to
post even to get small information about his application to get copies
of record-of-rights or his representation made to the government
functionaries and instances are not lacking where he had not received
reply to his genuine request for years together. The Supreme Court
of India, while interpreting Article 19(1) of the Constitution of India
clearly laid down in a number of decisions that the fundamental right
of freedom of speech and expression includes right to acquire
information and to disseminate it which is necessary for self
expression enabling the people to contribute to debate on social and
moral issues.

In view of this, provisions were made in various Acts passed by
the legislature for imparting information to the citizens from time to
time. The Indian Evidence Act, give right to the person to know about
the contents of the public documents and in this connection section
70 of the Indian Evidence Act 1872, lays down that the public officials
shall provide copies of public documents to any person, who has the
right to inspect them. Under the Factories Act, compulsory
disclosure of information has to be provided to factory workers
regarding dangers including health hazards arising from their
exposure to dangerous materials and the measures to overcome such
hazards. Under the Water (Prevention and Control of Pollution) Act,
every State is required to maintain a register of information on water
pollution and it is further provided that so much of the register as
relates to any outlet or any effluent from any land or premises shall
be open to inspection at ail reasonable hours by any person interested
in or affected by such outlet, land or premises. Under the
Representation of the People Act, a candidate contesting elections is
required to furnish in his nomination paper the information in the
form of an affidavit concerning, accusation of any offence punishable
with two or more years of imprisonment in any case including the
framing of charges in pending cases; and conviction of an offence and
sentence of one or more than one year imprisonment.
Before the enactment of the Freedom of Information Act,
2002, legislative steps though some were taken but only a little
could be achieved in the field of right to information through the
following enactments.
 

1. The Constitution of India, 1950
2. The Indian Penal Code, 1860 (45 of 1860)
3. The Indian Evidence Act, 1872.
4. The Representation of the People Act, 1951
5. The Companies Act, 1956
6. The Atomic Energy Act, 1962
7. The Code of Criminal Procedure, 1898 and 1973
8. The Bureau of Indian Standards Act, 1986
9. The Geographical Indications of Goods (Registration and
Protection) Act, 1999
10. The Trade Marks Act, 1999
11. The Designs Act, 2000
12. The Semi Conductor Integrated Circuits Layout-Design Act,
2000
13. The Information Technology Act, 2000
14. The Protection of Plant Varieties and Farmers' Right Act,
2001
15. The Competition Act, 2002
16. The Delimitation Act, 2002
17. The Medical Termination of Pregnancy Regulations, 2003
18. The Central Civil Services (Conduct) Rules, 1964
19. The All India Services (Conduct) Rules, 1968

Former judge of Supreme Court of India in his open letter
dated 26th December, 1989 took up the matter regarding right to
information to the citizens with the then Prime Minister of India96 in
which it was categorically highlighted that "the right to know and the
freedom of information are inalienable components of the freedom of
expression and participation in public affairs, which Constitution
confers on every citizen of the country. It is heartening that, in the
very first broadcast to the nation you emphasized the importance of
the freedom of information and the annihilation of secrecy as a crafty
art of Government accepting this postulate, some things require to be
done immediately so that, the credibility of the Indian community in
the changed ethos of open government may be created.

The Report of National Commission for Review of Working of the
Constitution recognized the right to information wherein it is
provided that major assumption behind a new style of governance is
the citizen's access to information. Much of the common man's
distress and helplessness could be traced to his lack of access to
information and lack of knowledge of decision-making processes. He
remains ignorant and unaware of the process that virtually affects his
interest. Government procedures and regulations shrouded in veil of
secrecy do not allow the litigants to know how their cases are being
handled. They shy away from questioning officers handling their
cases because of the latter's snobbish attitude and bow-wow style.
Right to information should be guaranteed and needs to be given real
substance. In this regard government must assume a major
responsibility and mobilize skills to ensure flow of information to
citizens. The traditional insistence on secrecy should be discarded. In
fact, we should have an oath of transparency in place of an oath of
secrecy. Administration should become transparent and participatory,
right to minimizing manipulative and dilatory tactics of the babudom,
and, last but most importantly putting a considerable check on graft
and corruption.

During the last decade, the right to information has got a
momentum as never before and on the civil societies side also some
organizations; social activists and individuals did excellent work in
this field. The Mazdoor Kisan Shakti Sangathan (MKSS) has done a
great job in the field of right to information in rural India and its
struggle for minimum wages and to get the information regarding
Muster Rolls being maintained compelled the Government of
Rajasthan to enact Right to Information Act and then various other
State Governments enacted the Right to Information Acts. viz.

1. The Tamil Nadu Right to Information Act, 1997.
2. The Goa Right to Information Act, 1997.
3. The Karnataka Right to Information Act, 2000.
4. The Rajasthan Right to Information Act, 2000.
5. The Assam Right to Information Act, 2001.
6. The Delhi Right to Information Act, 2001.
7. The Orissa Right to Information Act, 2002.
8. The Maharashtra Right to Information Act, 2003.
9. The Jammu and Kashmir Right to Information Act, 2004.

The Freedom of Information Act, 2002 (5 of 2003) was
enacted by the Government of India to provide for freedom to every
citizen to secure access to information under the control of public
authorities, consistent with public interest, in order to promote
openness, transparency and accountability in administration and in
relation to matters connected therewith or incidental thereto. The
Statement of Objects and Reasons appended to the Freedom of
Information Act, 2002 laid down that the Freedom of Information Bill
seeks to achieve the following objects:

1. The need to enact a law on right to information was recognized
unanimously at New Delhi. In its 38th Report relating to Demands
for Grants of the Ministry of Personnel, Public Grievances and
Pension, the Parliamentary Standing Committee on Home Affairs
recommended that the Government should take measures for
enactment of such legislation.

2. In order to make the Government more transparent, and
accountable to the public, the Government of India appointed a
Working Group on Right to information and Promotion of Open and
Transparent Government. The working group was asked to examine
the feasibility and need for either full-fledged Right to Information Act
or its introduction in a phased manner to meet the needs of open and
responsive governance and also to examine the frame work of rules
with reference to the Civil Services (Conduct) Rules and Manual of
Office Procedure. The said Working Group submitted its report in
May 1997 along with a draft Freedom of Information Bill to the
Government. The working Group also recommended suitable
amendments to the Civil Services (Conduct) Rules and the Manual of
Departmental Security instructions with a view to bring them in
harmony with the proposed Bill.

3. The draft Bill submitted by the Working Group was
subsequently deliberated by the Group of Ministers constituted by the
Central Government to ensure that free flow of information was
available to the public, while inter alia, protecting the national
interest, sovereignty and integrity of India, and friendly relations with
foreign States.

4. The proposed Bill is in accord with both Article 19 of the
Constitution as well as Article 19 of the Universal Declaration of
Human Rights, 1948.

5. In our present democratic frame work, free flow of information
for the citizens and non-Government institutions suffers from several
bottlenecks including the existing legal frame-work, lack of
infrastructure at the grass root levels and an attitude of secrecy
within the Civil Service as a result of the old frame work of rules.
The Government proposes to deal with all these aspects in a phased
manner so that the Freedom of Information Act becomes a reality
consistent with the objective of having a stable, honest, transparent
and efficient Government.

6. The proposed Bill will enable the citizens to have an access to
information on a statutory basis. With a view to further this objective,
clause 3 of the proposed Bill specifies that subject to the provisions of
this Act, every citizen shall have right to freedom of information.
Obligation is cast upon every public authority under clause 4 to
provide information and to maintain all records consistent with its
operational requirements duly catalogued, indexed and published at
such intervals as may be prescribed by the appropriate Government
or the competent authority.

With the passage of time, it was felt that even this Act failed to
fulfil the aspiration of the citizens of India in the field of right to know
and to get information since this Act was never enforced. In order to
ensure greater and more effective access to information, it was
thought that the Freedom of Information Act, 2002 must be made
more progressive, participatory and meaningful.

On this issue National Advisory Council suggested certain
important changes to be incorporated into the said Act to ensure
smoother and greater access to information. After examiner the
suggestions of the National Advisory Council and others, the
government decided to make a number of changes in the law. In
view of the signifies changes proposed by the National Advisory
Council and others, it was decide to repeal the Freedom of
Information Act, 2002 and enact another law for providing an effective
framework for effectuating the right of information recognized under
Article 19 of the Constitution of India.To achieve this object, The
Right to Information Bill was introduced in the Parliament in
December 2004. The important changes proposed to be incorporated,
inter alia, include establishment of an appellate machinery with
investigating powers to review decisions of the Public Information
Officers; penal provisions for failure to provide information as per
law; provisions to ensure maximum disclosure and minimum
exemptions consistent with the constitutional provisions, and effective
mechanism for access to information and disclosure by authorities,
etc.

In view of the significant changes proposed in the existing Act,
the government decided to repeal the Freedom of Information Act and
in the proposed legislation to provide an effective framework for
effectuating the right to information. Indian Parliament passed the
Right to Information Act, 2005, which came into force on 15.06.2005.
This enactment set out its objectives in the Preamble, which aims to
promote transparency and accountability in the working of every
public authority. This Act was brought into Statute book on the
premise that informed citizenry and transparencies of information are
vital to the vibrant democracy.

Thus, the Right to Information Act, 2005, which came into force
in India in totality is regarded as a milestone in the history of social
legislation to impart information to citizens of India regarding working
of the government and its corporations, etc. to make them more
transparent as a result of which corruption, if not eliminated at all,
would be checked to a greater extent. The Right to Information Act
thus provides an effective framework for effectuating the right of
information, a fundamental right, recognized under Article 19 of the
Constitution of India.

The Preamble to the Right to Information Act, 2005 lays down
that whereas the Constitution of India has established democratic
Republic; and whereas 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; and whereas revelation
of information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum
use of limited fiscal resources and the preservation of confidentiality
of sensitive information and whereas it is necessary to harmonise
these conflicting interests while preserving the paramount of the
democratic ideal and, therefore, it is expedient to provide for
furnishing certain information to citizens who desire to have it. It is
not out of place to mention here that most of the problems today are
the result of non-observance of moral values by the younger
generations after the independence that have prompted them to make
money by fair or foul means. The absence of availability of
information on the working of the government generally generate
corruption and nepotism and, therefore, the enactment of this Act is
an important milestone in furtherance of the democratic process
whereby it shall be possible for the citizens to get information on all
important issues and decisions affecting them and thereafter to
adjudge the performance of the government, which they elected, for
themselves



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