Right to Information- A Boon or Bane

THIS ARTICLE WAS WRITTEN BY GAZAL TALWAR  A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE WHO IS CURRENTLY PURSUING L.L.M IN CRIMINAL AND SECURITY LAWS. 

It has been quoted time and again that we are living in a society which is knowledge based. In today’s society, pace of knowledge up gradation is too quick irrespective of field, discipline or sector. This has led to the fast and frequent flow of information to the public. Today we live in knowledge era, where consumerism, awareness, rights and claims are order of the day. Every individual rich or poor, literate, illiterate or semi-literate is highly sensitive and cautious of his rights and claims in every affair either business or personal.

A democratic society survives by giving acceptance to new ideas and experimenting with them and if found of non-importance then rejects them. Therefore it is necessary that whatever are the ideas that the government or its members hold must be freely put before the public. The free flow of information is must for a democratic society in particular because of the reason that it helps in the growth of the society. It is now recognized that the right to information is vital for the democracy so as to ensure transparency and accountability in governance. It therefore ensures that governance is more particularly being a vital component of successful democracy.

Right to Information Act was passed by the Indian Parliament on 15^th June 2005 and came effective on 13^th October 2005 that provides 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. This act finally replaced the draconian and obsolete ‘Official Secrets Act of 1923’ and other related legislation which suppressed disclosure of information leaving no scope for citizens “right to know”

 The act is considered a direct extension of Article 19 (1) (a) of The Constitution of India which guarantees freedom of speech and expression. The act is applicable to all constitutional entities including executive, legislative and judicial institutions. It is also applicable to all bodies financed, established or constituted by government of India or the state governments.

The RTI Act as enacted in India is known to be one of the most progressive laws in the world. It is a landmark legislation that has given a new dimension to the relationship between the State and its citizens. For the first time citizens have been empowered with a law, which if used judiciously, can be an instrument to curtail the direct fallout of an opaque administration, corruption, inefficiency and the arbitrary use of power. The passing of the RTI Act saw the filing of thousands of applications all over India.

The name of this Act correctly fits into the purposes of the act. Right to information Act creates for the first time a new right which hitherto had been under cloud and restricted by several other enactments. The name of the Act comprehends all aspects of the right to information including the procedures for seeking information from all those specifically charged with the responsibility of giving the information.

The Right to Information campaign in India began with the Mazdoor Kisan Shakti Sangathan(MKSS) Rajasthan, movement to bring in transparency in village accounts via the demand for minimum wages in rural India. Ghost entries in muster rolls were a sign of rampant corruption in the system, which prompted MKSS to demand official information recorded in government files. The movement soon spread across India. From very modest beginning in the villages of Rajasthan, the success of MKSS has been a source of inspiration for activists in India and throughout the world. It led to the genesis of a broader discourse on the Right to Information in India. Later in 1993, a draft RTI law was proposed by the Consumer Education and Research Council, Ahmedabad (CERC). In 1996, the Press Council of India headed by Justice P.B. Sawant presented a draft model law on the Right to Information to the Government of India. The draft model law was later updated and renamed the PCI-NIRD Freedom of Information Bill, 1997. Unfortunately, none of the draft laws were seriously considered by the Government. Meanwhile, MKSS’s advocacy gave rise to the National Campaign on People’s Right to Information (NCPRI), is a private body which was formed to advocate for the Right to Information at the national level, constituted in 1996 at New Delhi. The NCPRI aims to provide active support to grassroots struggles for the Right to Information and to lobby government to enact and implement effective access to information legislation. In 1997 efforts to legislate for the Right to Information, at both the State and National level, quickened. A working group under the chairmanship of Mr. H.D. Shourie (the Shourie Committee) was set up by the Central Government and given the mandate to prepare draft legislation on freedom of information. The Shourie Committee’s Report and draft law were published in 1997. Notably, the draft law was criticized for not adopting a high enough standard of disclosure. In May 2004, a new UPA (United Progressive Alliance) Government came into power at the Centre. The national campaign for Right to Information received a major boost when the UPA Government’s Common Minimum Programme promised that: “The Right to Information Act will be made more progressive, participatory and meaningful”. The National Advisory Council (NAC) was set up to oversee implementation of the Government’s Common Minimum Program me.

Since its inception, the NAC has taken a close interest in RTI. On 10thMay, 2005, the RTI Amendment Bill, 2005 was tabled in the Lok Sabha. The Bill was passed very quickly – it was approved by the Lok Sabha on 11thMay, 2005 and by the Rajya Sabha on 12thMay. On 15thJune, 2005, President APJ Abdul Kalam gave his assent to the National Right to Information Act, 2005. With presidential assent, the Central Government and State Governments had 120 days to implement the provisions of the Bill in its entirety. The Act formally came into force on 12^th October, 2005.

Following are the landmark judgments that also led to the making of the RTI Act:

The need for Right to Information has been widely felt in all sectors of the country and this has received judicial recognition through some landmark judgments of Indian courts.

Case 1- A Supreme Court judgment delivered by Mr. Justice Mathew is considered a landmark. In his judgment in the State of U.P. v Raj Narain [1]case, Justice Mathew rules – 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 people of this country have a right to know every act, which affects public at large and everything that is done in a public way by public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary when secrecy is claimed for transactions, which can at any rate have no repercussion on public security.

Case 2-According to Attorney General Soli Sorabjee – It was in 1982 that the right to know matured to the status of a constitutional right in the celebrated case of S.P. Gupta v Union of India[2] popularly known as Judges Case. Here again the Government of India, in respect of the disclosure of certain documents laid the claim for privilege before the court. The Supreme Court, by a generous interpretation of the guarantee of freedom of speech and expression, “elevated the right to know and the Right to Information to the status of a fundamental right, on the principle that certain unarticulated rights are imminent and implicit in the enumerated guarantees”. The court declared – The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of freedom to speech and expression guaranteed under article 19(1) (a). The Supreme Court of India has emphasized in the SP Gupta case (1982) that 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. In a country like India that is committed to socialistic pattern of society, right to know becomes a necessity for the poor, ignorant and illiterate masses.

The RTI Act as enacted in India is known to be one of the most progressive laws in the world. It is a landmark legislation that has given a new dimension to the relationship between the State and its citizens. For the first time citizens have been empowered with a law, which if used judiciously, can be an instrument to curtail the direct fallout of an opaque administration, corruption, inefficiency and the arbitrary use of power. The passing of the RTI Act saw the filing of thousands of applications all over India. The movement continued to gain momentum with the ‘Drive against Bribe — with RTI’ campaign pioneered in the states.

Under Constitution of India, one of the significant objectives as the preamble describes is to secure liberty and expression to the citizens of India. The Article 19(1)(a) of the Constitution guarantees the Fundamental Right to free speech and expression. The perquisite for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumors and speculations and avoidable allegations against individuals and institutions. Therefore, right to information becomes a constitutional right, being an aspect of the right to free speech and expression which includes right to receive and collect information. This will help the citizens to perform their fundamental duties as set out in Article 51 A of the Constitution. A fully informed citizen will certainly be better equipped for the performance of such duties. Thus, access to information would assist the citizens in fulfilling these obligations. Thus RTI is an inalienable component of freedom of speech and expression as set by Article 19(1) (a) of the Constitution of India as held in the respective cases of Bennet Colman v. UOI;[3] S.P.Gupta v. President of India[4] and Secretary, Ministry of Information and Broadcasting v. Cricket Associtaion of Bengal.[5]

Besides Article 19(1) (a), other articles which give right to information under Indian Constitution are Article 311(2) that states that a government servant has a right to know as to why he is being dismissed or removed or being demoted and representation can be made against the order and Article 22(1) which states a person can know the grounds for his detention.

Article 21 of the Indian Constitution is brought into considerations with relevant cases like Kharak Singh v. State of U.P.[6] Article 21 enshrines right to life and personal liberty. The expressions “right to life and personal liberty” are compendious terms, which include within themselves variety of rights and attributes. In R.P. Limited v. Indian Express Newspapers,[7] the Supreme Court read into Article 21 the right to know- “right to know is a necessary ingredient of participatory democracy”

The right to information is one of the fundamental rights of all human beings. Article 19 of the Indian Constitution grants the right to freedom and expression. But how can this right are exercised unless and until we have roper access to relevant question that is the question. In that sense right to information appears to be embedded under the Indian Constitution as a fundamental right, although not explicitly stated therein.

Information can be accessed by Public either for individuals or for group or public oriented.  For individuals seeking information through RTI by asking for copies of ration documents – Everyday we hear that the owner of ration shops are not giving rations properly. One can conduct an audit of any such shop by asking for relevant records by filing an application under RTI Act. Often public service providers, like gas cylinder agency, does not send the cylinder in time. Sometimes it happens because of lack of supply and else due to black marketing. One can find out the details by asking for relevant information. Water scarcity is very prevalent these days, this problem can be solved by contacting Jal Sansthan or Jal board. The right to information can also be used for accessing and inspecting office record.

Present status of any development can be taken from the records by requesting the concerned PIO. Non removal of garbage bin on regular basis is a very common problem in every locality. An application can be sent to the local bodies responsible for cleaning of garbage in that locality. It is often seen that residential areas or colonies are being used by people for commercial purposes, in violation of rules and laws thus causing inconvenience to the residents of the area. False evaluation can now land examiners in trouble. Students can use RTI to see evaluation of marks in copies and mark sheet.

 People can use this act to control the spread of deadly diseases like dengue, filarial etc., by making a complaint in the to the Jal board Nigam or development authority. For group or public oriented issues seeking information under RTI it would not be exaggeration to pinpoint that formulation and implementation of RTI 2005 is a boon to Indian masses whose light is yet to disseminate to eradicate the evil named corruption. MP/MLA have huge fund for development of their constituencies. This problem can also be removed by seeking the aid of RTI. Lots of funds are often sanctioned for repair and maintenance of roads, but still they remain in miserable condition. One can use the RTI to seek information for improper maintenance and concerned officers can be caught. The local body allocates funds for several activities in its wards. In many cases these funds are spent but physical progress is not there. In this case also information can be taken by the concerned authorities. A large number of people encroach upon government land with impunity and nothing happens against them because it is done in hand and gloves with officials who receive fat bribe for allowing such encroachments.

Every city and within it every housing colony is dotted with parks. These parks are usually not maintained, although funds might be allocated for the purpose and sufficient staff like gardeners attached to them. This can be rectified by invoking the provision of RTI. .The right to information can be used to make complain against the attitude of the officials in public offices who are not working properly to redress the grievances of public. Even students are caring to file applications under the RTI Act to know the status of and expenses incurred on government projects to clean up various rivers and lakes. The students can also ask for the levels of pollution being let out into the air, lakes or land by industries. In many states public has used the RTI to get street light functioning by filing a complaint to the Electricity board looking after the supply of electricity in a particular area. 

Right to information is one of the most significant developments in the process of democracy that has taken place in the recent times. The records are not for the government to sit over or turn them into files which gather dust in government record rooms. They in fact are indelible proof of the working of our governing officials. The right to information not only brings about transparency and accountability in the official proceedings but also acts as a suitable check for corruption, bringing about fairness in the system. Any citizen in a modern functioning democracy has the right and duty of being aware about the government procedures, and brings to notice inequities wherever found. As has been shown by unearthing of various corruption cases in a short span of time, the act has been effective in India. This would go a long way in acting  as an deterrent for corruption in a country like ours which has been rated by transparency international as one of the most corrupt countries in the world, even behind certain African nations.

The tax payers have a right to know about the going on behind the iron gates of the government precinct. They use the RTI Act which is a turning point as it empowers the citizens to question the actions of the people at the helm of the affairs of the country, the government and their departments. The purpose of this Act is to ensure transparency and increase the accountability standards of the government departments to the public at large. The act empowers citizens to seek information from the government, ask questions relating thereto, inspect and take copies of government documents, inspect and take samples of all government works/ papers, affecting the rights of the citizens. Information in any form, records, memos, emails, documents, press releases, and circulars etc., both in electronic and non electronic form can be sought under this Act.

Theoretically this act is very good but it suffers from any inadequacies. This act empowers the people to gather information. But this problem is that when 35 % of the population is illiterate, then how anyone could expect that people will demand information. The government should make serious efforts towards improving the literacy level. The act lacks necessary teeth for defaulters. In cases where information has been denied without sufficient cause, the penalty is not harsh enough so as to have a deterrent effect on those who do not want to share information. The official mind set is a very big obstacle in the progress of this Act. No official in normal condition wants to share information. They generally prefer not to share information and therefore people find it difficult to secure information from them.

The act itself provides for several grounds on which the PIO can turn down an application. Although one is allowed to appeal to the next higher authority but this is just making the matter worse. The act being based on computerized records of data, it may take a long time in computerization of such vast data and therefore the doubt hangs over whether the act would be implemented in a time bound manner or not.

However certain information which could potentially affect the sovereignty and integrity of the state, intelligence, court orders that prohibit disclosure of certain information, information that would contravene the privacy laws, and issues which would breach privileges of the parliament or the state legislature cannot be sought.

From a layman;s eye the major challenges from a common man’s perspective are as follows:

1. Lack of knowledge;
2. Avoidance due to mindset towards government bodies;
3. Insentivity towards public by public authorirtes;
4. Harsh behavior and attitude of government employees;
5. Delay in correspondence;
6. Ignorance and reluctance;
7. Lack of literate people;
8. Mentally harassment and cruelty by public employees.

The right to information is a sine qua 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 deliberately 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 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 its ill necessarily increase public participation.

In a country with egocentric and corrupt politicians it may be tough for an individual to stand up for his rights and invoke the provisions of the RTI Act. Social activists and NGO’s have been instrumental in helping individual whether breakthrough achievements. They have been able to expose irregularities in the government departments. It is by no means an easy task to succeed with sensitive issues implicating the government officials, but they have been able to do so with the good success rate. To name a few:

1. An Assam based social activist exposed a scam in a rural development program launched by the government.
2. Irregularities in the selection process of candidates for the state civil services examinations by the Chhattisgarh Public Services Commission; was neatly exercised by an RTI activist.
3. The Home Ministry was questioned about the tons of grains that were stocked in the warehouse of Food Corporation of India and reportedly damaged. Rightfully so when most of us are aware that the subsidies intended by the government for the poor people, through the ration system, never reaches them fully, thanks to corruption once again where the middlemen intervenes and intercept the system.
4. The trauma faced by the small farmers in Gujarat which led them to commit suicide was further investigated under RTI and the actual deaths were even more alarming than what the government had declared.

Corruption that is still confronted by the common citizen is at public services level. A survey made last year by Transparency International reveled that in India, police top in the corruption followed by lower judiciary and land administration.  The state of Kerala was the least corrupt; it is Bihar and Jammu and Kashmir was most corrupt. Corruption at the public services level is hard to crack when official enjoy discretionary powers but has been reduced to some extent due to the introduction of e-governance and of the RTI Act. A lot more improvement can be made with greater transparency in operations and accessibility of the relevant information through the internet. Such measures would have made it possible to detect the recent Malhotra slum scam much earlier or prevented it altogether. Corruption at a political level could not be eradicated even in the most industrialized countries.  Possibly state funding of political parties can reduces the incidence of corruption but cannot eliminate it altogether.

The success stories range from high lighting scams worth crores to ensuring attendance of the sweepers in cities to identifying lost post orders etc. the areas of corruption or inefficiencies were known earlier in the government, but citizens could not take recourse. However with the advent of the RTI act, citizens have found a tool to bring in transparency and accountability at all levels of governance. In particular, the RTI act has a much higher impact on the quality of life of the poor and marginalized section of the society. However, the power of the act is still to be fully realized. The citizens, government, media and civil society organizations need to do a lot to attain the intended objective of the act and to address various issues and constraints in accessing the information under the act.

[1]1975 AIR 865, 1975 SCR (3) 333)

[2] AIR 1982 SC 149

[3] AIR 1973 SC 106

[4] AIR 1982 SC 149

[5] (1995) 2 SCC 161

[6]  AIR 1963 SC 1295

[7] AIR 1989 SC 190