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  1. ashakantasharma

    CONCEPT OF RIGHT TO INFORMATION

    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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