Abstract
It is rightly said that ‘Government is dependent on its people and not the vice versa’, withgrowing importance of information dissemination in this new era has made right to information a necessary right. India being the largest democracy realised the importance of RTI and with passage of time several bills and acts were passed like Official Secrets Act, The Public Records Act and Freedom of Information Bill, after this the masterpiece came ‘The Right to Information Act, 2005’. The Supreme Court in Bennett Coleman &Co. v Union of India, observed that right to information should be treated as a fundamental right under Part-III of Indian Constitution likewise Right to Freedom of speech and expression. Internationally also the Group of Freedom of Information (FIO) advocates proposed 28th September each year as International RIGHT TO KNOW DAY. The basic concept and characteristic behind the making of RTI is maximum disclosure, limited scope for secrecy, easy and affordable access to information in public interest and monitoring and recording. RTI has spread openness and created a layer of transparency and accountability among the citizens and the government. It has also imposed some reasonable restrictions on taking out information for instance DRDO, BSF, NSF, Intelligence Bureau and Assam Riffles etc, are being excluded. Though this move of the government was played in order to target corruption in government department but if we look and the situation nothing has changed at the core level. If a country wants efficiency than it should improve problems at ground level and RTI has made a lot of positive changes and there if still a long way to go. RTI has been a very comprehensive tool for successfully making privacy of an individual a matter of fact, because this act is aimed for bringing a transparent and accountably layer between the public and the government.An efficient representative democracy presupposes full access to information held by public authorities by making disclosure of information in the public domain. The Supreme Court observed that right to information is an essential ingredient of a participatory democracy[1]. In view of the global developments and international communities coming together shrinking their distances, the expression ‘liberty’ appearing in Article 21 of the Indian Constitution needs to be given an extended meaning and instead of confining it to the freedom of body, it should be extended to include within it, for instance, right to know and have information.
- Right to Information as an Essential Part of Democracy
A layer of transparency is must between the government and the population. It is rightly said, “Government is always dependent on its population and not vice-versa” with this thought and idea of winging transparency and openness in the government model, RTI becomes an essential part of democratic structure of our government. The fundamental principal involved in freedom of speech and expression and of press given in the constitution of our country, strengthens people’s right to know and enable active participation of people in the governance of the country. India being the largest democracy in the world and having a democratic model suited for everyone and with diversity of people in terms of race, religion, language, cultural heritage, regional imbalances etc. The main purpose of the government which sustains our democracy is concerned with the welfare of the people and upliftment of the down trodden and marginalised and backward sections of the society. Democracy is all about accountability, transparency and the effective participation; this can only be possible with a responsive, responsible and regular government.
An efficient representative democracy presupposes full access to information held by public authorities by making disclosure of information in the public domain. The Supreme Court observed that right to information is an essential ingredient of a participatory democracy[2]. In view of the global developments and international communities coming together shrinking their distances, the expression ‘liberty’ appearing in Article 21 of the Indian Constitution needs to be given an extended meaning and instead of confining it to the freedom of body, it should be extended to include within it, for instance, right to know and have information.[3]
- Right to Information and its Historical Background in India
A draft legislation titled as freedom of information bill was finalised by a committee headed by Shri H.D. Shouri in 1997, but the matter was put off. It was because of the initiative taken by Shri Ram Jethmalani (the then Union Minister of Urban Development). He placed and circulated an administrative order in the Ministry which help the citizens take and views any copies of any file of the department, as citizens do have the right to seek information and the government has an obligation to provide them the information. Deterred by the directions issued by the Supreme Court, the government accelerated the passage of the right to information bill and finally the freedom to Information Bill was passed by both houses of the parliament in December 2002 which received president assent in January, 2003. But due to some corrections and problems to be looked upon, a fresh bill entitled Right to Information Bill 2004 was placed before the Lok Sabha on 23 December 2004 which was sent to the Parliamentary Standing Committee for some amendments and suggestion from opposition party were deliberated. It include employment, public grievances, law and judiciary for mamining it and making recommendations. The committee proposed nearly 146 amendments and it was finally passed by the Lok Sabha on 11 May, 2005 and Rajya Sabha on 12 May, 2005.
Few acts which were also related to Right to Information or storage of official data are, public records act which established a cohesive regulatory framework for public records at the public record office and other places of deposit. This act was passed by the parliament of the United Kingdom and got royal assent on 23 July, 1958. Going back when India was a colony of Britain, the official secret Act 1923 was passed by British and it is still in force. It is India’s anti-espionage (spy) act over from a century. With this act one cannot access or get files prohibited for public use which means this act has somewhat limiting nature, nor will government release any information which may disturb or affect international relation with any foreign state negatively.[4]
This is related with right to information in Section 8(a) to (j) which states types of information which cannot be provided to the public. The right to information act is a path making legislation which brings to light the secrecy of administration. It is an effective means to promote democratic ideology. The act is powerful instrument to fight against corruption. By realising this significance the Second Administrative Reform Commission had prepared a detailed blueprint for revamping the public administrative system. The second Administrative Reform Commission, government of India has published its first report in ―Right to Information: Master key to good governance.‖ Through this report the commission directly mentioned that access to information can empower the poor and weaker sections of society to demand and government information about public policies and actions, thereby led to welfare of all.[5]
4.Right to Information and Freedom of Press
Once Malcolm X, said that Media is a tool that helps in shaping the public opinion. For a developing country like India, to get developed and stand on the same level with other First World countries it very important to study and improve the ground level issues, this is because of media that the government comes to know about these problems. The online reports published by bloggers and television reports published by media house have not only helped the government to know about the progress but have also made public aware about the wrongdoings of the government, which is also relatable to RTI. In a very celebrated case of ‘Indian Express Newspaper v Union of India’, the supreme court observed that media is the fourth pillar of our democracy and have equal status and importance as that of Legislature, Executive and Judiciary.
The Indian constitution also recognises the freedom of press, it is a very much needed tool for a democracy like that of India to function. Indian media gives a positive criticism to the policies and programmes of the government and gives their possible feedback from time to time. Talking about the effectiveness of Media law, the relation between both of them has been established in a very simple manner. As RTI is all about information in any form (given under section 2 of Act of 2005) and media too helps in giving and explaining it in a simple manner. The media though has been a bone for our democratic structure for instance it has deviated the public form important issues sometimes and also have made wrong allegations which lead to defamation. It is still a debated topic whether media is the fourth pillar of Indian Democracy or not?
5.Constitutional Validity, Objects and Reasons of RTI Act
The Supreme Court in the historic decision Court inter-alia observed[6]: “The people of this country have a right to know every public act, everything that is done in a public by their public functioning ….. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”
The Supreme Court observed that freedom of speech and expression under Article 19(1)(a) impliedly includes freedom and the Right to Information.[7] Therefore, as RTI has been treated as a fundamental right by this case, makes RTI as a very important and essential constitutional provision.
The thing that makes RTI as constitution ally valid in the key about its reasonable restrictions mentioned in sub clause (2) of Article 19 and individual’s social interests.
Another important Supreme Court case which enshrined similar views is “People’s Union for Civil Liberties v. Union of India (AIR 2003 SC 2363)”.
RTI has universal scope and varied objects are covered under it, for instance pollution of river waters causing damage to public health, miserable plight of undertrials languishing in fails for years without trials[8]; illegal mining activities; industrial pollution and noise pollution; voter’s right to know about the candidates contesting elections (Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112).
Major Reasons for RTI act coming into force was to provide a framework to the people of our country. This framework or mechanism would be supported by all the three pillar of our democracy. The government being a law in force for the citizens it should be fully considered and respecting judicial ideals.
- RTI and relation between Corruption and Good Governance
As discussed earlier also, a transparent layer between the government and the people is must in a democracy and to establish good governance.
Shri Ram Jethmalani from the beginning of his career has been against corruption. His efforts have always made and think government to work in a direction that provides welfare to the people. Corruption can only be reduced if the government officials realise that they are because of the people and that they are fully accountable to the public. Therefore, openness and accountability comes from within and once this is established the graph of the development of our country would certainly go high and high.
- Right to Information and protection to Whistle Blowers
Before building the relationship between the right to information act and the protection of whistle blowers, the concept of whistle blowing needs to be understood. The terms Whistleblower is derived from the practice of English Hobbies who would blow their whistle when they noticed any commission of a crime. The blowing of whistle would alert both the perpetrator of crime to desist from doing it and general public of the possible danger. Whistle Blowing is the process in which insiders ‘go public’ with their claims of malpractice by, or within, organisations, generally after failing to remedy the problems from inside. And somebody who has the clue about the malpractice going inside, carry forward the information or leaks the information or blows out the whistle for public interests. For instance a recent example of whistle bower’s act is the (in news) PNB (Punjab National Bank) Scam, where Mr. Hari Prasad S V, the whistleblower (the Nirav Modi scam), the Bengaluru-based entrepreneur wrote a letter to the Prime Minister’s Office (the then Prime Minister Dr. Manmohan Singh) giving the government about the Fraud which Nirav Modi is doing and that it might be harmful for the Banking structure in India.[9]
Though many acts unfold after, not going in much deep Whistleblowers play a very important role in providing information about corruption and map-administration. They usually analyse the activities of the Public Authorities, Public Servants, NGOs, Private Organisations, Big business houses, etc.
With the murder of Satyendra Dubey, a young engineer working for the National Highways Authorities in late November 2003 the Whistleblower protection has become a debated topic. In order to appreciate the role os whistleblower in the society and public domain, to refer to a Supreme Court case ‘Indirect Tax Practitioners Association v R.K. Jain, the four in this case observed that a whistleblower is a person who raises a concern about wrong doing occurring in an organisation or body of people. Usually, this person is from same organisation.
In the instant case, Justice U.L. Bhat who was at that time the President of Custom, Excise and Gold (Control) Appellate Jurisdiction (CEGAT) had written a letter to Chief Justine of India on 18 September, 1997, that the respondent had published objectionable editorials in the Excise-Law Times Vol. 86 (1996) containing wrong facts and cooked data. Finally, after a long discussion and deliberation between the Judges and after a long trial, the court observed that by writing the question in the editorial, the respondent had not made an attempt to scandalise the functioning of CESTAT (which was earlier CEGAT) instead he had tried to make an attempt to draw the attention of concerned authorities about the what’s going and to implement the corrective measures and remove the malfunctioning in CESTAT, which is a public interest effort.[10]
With recommendation of the Law Commission of India, in its 179th report of 2001 had recommended to eliminate corruption from the public domain. After the passage of the Government Resolution, 2004 and its replacement with the Public Interest Disclosure and Protection to persons making the Disclosure Bill, 2010. The major reason behind the implementation of the bill was to get information about the wrongdoers. [11]
With the question rising about the protection of whistleblowers and a tough law to be introduced for the same, a Parliamentary Panel recommended in June 2011 that the whistle blowers protection should come for the elimination of corruption form the public domain. Hence, the Whistleblower’s Protection Act, 2011 (No. 17 of 2014) was passed by the parliament on 27 December 2011 (it got assent form the President on 12 May 2014).
This act is unique in its self because of a lot of reasons, for instance it protects the persons making the disclosure of information, this act also encourages the accessibility to file the complaint in an online format as provided in the Central Vigilance commission.[12]
8.Right to Information in relation to Right to Privacy
The similarities in both the rights is that they both by different judicial orders but treated as a principle of Fundamental Right in the Indian Constitution. Both of them are included in part 3 of Indian Constitution in Art. 19(1) (a) and Art. 21 for Right to Information and Right to Privacy respectively. RTI follows the principle of maximum disclosure and minimum secrecy, access to importation is the basics of this act but as per the section 8 (1) which gives public authority an exemption from disclosure of information.
These provisions listed in this section and exempted from being disclosed and the Public Information Officer shall not be obliged to give such information, the ground for the same are given below:-
- Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, Strategy, scientific or economic interests of the State, relation with foreign state or lead to incitement of an offence.
- Information which has been expressly forbidden to be published by any Court of Law or Tribunal or the Disclosure of which may constitute contempt of court.
- Information, the disclosure of which would cause a breach of privilege of parliament or the state legislature.
- Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger interests warrants the disclosure of such information.
- Information available to a person in his fiduciary relationship, unless that competent authority is satisfied that the larger public interest warrants the disclosure of such information.
- Information received in confidence from foreign government.
- Information the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose.
- Information which would impede the process of investigation or apprehension or prosecution of offenders.
- Cabinet papers including records of deliberations of the council of ministers, secretaries and other officers.
- Information which relates to personal information the discloser of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual; sub-section (2) of section 8 provides that notwithstanding any of the exemptions listed above, a public authority may allow access to information.
According to section of the RTI Act, there are few organisations where RTI is not applicable and hence the Act shall not apply to intelligence and security organisation established by the Central Government as specified in the second schedule. Some of these organisations are as follows, CBI, Research and Analysis Wing of the Cabinet Secretariat, Assam Rifles, Defence Research and Development Organisation (DRDO), Border Security Force (BSF), Narcotics Control Broad (NCB) and National Security Council Secretariat.
Information which is very important for the security for the country is usually kept as a secret. Information which relates to personal information, the disclosure of which has no relationship to any public act or public interest, or which would cause unwarranted invasion of the privacy of the individual is certainly not allowed. An exception to it is the Central Public information Officer or the State Public information Officer or the Appellate Authority, as the case may be, is satisfied that the anger public interest justifies the disclosure of such information (Section 8 (1) (j) of the Act).
RTI has been a very comprehensive tool for successfully making privacy of an individual a matter of fact, because this act is aimed for bringing a transparent and accountably layer between the public and the government. So there was need to impose few reasonable restrictions as imposed in every fundamental right and these are in the form of section 8.
It is till now clear that RTI is an Adjective law because it gives both procedure and establishes rules in the form of definitions.
9.RTI and the Judicial System in India
The biggest development or reform which was ever done to the judicial system in India was the introduction of the Public Interests Litigation (PIL), in reference to the case ‘Hussainara Khatoon v Home Secretary, State of Bihar[13]. PIL has helped public spirited citizens or organisation for the enforcement of the constitutional and the legal provisions, it has helped a lot of ignored communities all over the country to get to the doors of our courts. Therefore, PIL are regarded as the tool for upliftment.
In the case of S.P. Gupta v President of India[14], also know as Judges Transfer case, the court held that PIL rule has been firmly established in the Indian judicial system and any member of the public having sufficient public interest can approach the Supreme Court and any High Court for enforcing constitutional or legal rights of other persons or redressal of a public grievance. Justice P.N. Bhagwati observed
“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32. Where the weaker sections of the community are concerned such as under trial prisoners languishing in jail without a trial, inmates of the protective home in Agra or Harijan Workers engaged in road construction in the district of Ajmer, who are living in poverty and desolation and are helpless victims of an exploitative society and who do not have easy access to justice, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individuals espousing their cause and seeking relief for them. The Supreme Court will readily respond to a letter addressed by such individuals acting pro bono 10ublic.”
In the case of ‘M.H. Haskot v State of Maharastra’[15], the fourth observed that the PIL concept has widened the scope of Right to Information and satisfied the need and want of speedy trial. Also it has proved to be a very efficient tool in the areas like the problem of bonded labour, rights of the arrested persons, rights of the voters and the candidates.
RTI has also widened the scope of Judiciary in India; taking about its applicability RTI is not applicable to Judicial Proceedings. In ‘Indira Jaising v Registrar General, Supreme Court of India’[16], it was held that information concerning judiciary or judicial proceedings may be refused to the public or the citizens regarding the conduct of judges or judicial officers. In the case, the petitioner filled a suit against the committee of two judges (Chief) and on sitting judge of Karnataka High Court, the Supreme Court rejected the plea of removal of judges on the ground that the committee which gave inquiry report was an in-house probe and there could be no removal of judge of High Court or the Supreme Court except by impeachment procedure as established under the Constitution of India in Art. 124 & 127.
Similarly, the Madras High Court in ‘Kasim Maraikkayar v Haji Kathija Beevi Trust Rep’[17], observed that the Right to Information has no application in matters related to judicial proceedings and the courts are not bound to give information to public authorities. Therefore, the matters related to Judicial Proceedings are kept out of the preview of Right to Information. This has made the pillar independent from the influence of the legislative and the executive body.
Other important component which is affected is Public Hearing, this has always been an effective tool for the enhancement in the transparency and promptness in the decision making process. In the case, ‘Nand lal v State of Punjab’[18], the court observed that the person detained by the public authorities should always get the right to defend himself/herself and to be given the opportunity to be heard.
10.Right to Information and Political Parties
As we are here talking about the most important component of Indian democracy I.e. political parties, we must mention both the dimensions of it.
Voter’s Right to Information– What if you want to know the educational qualifications of a candidate from your region or want to know about how much a Member of Parliament or Legislative Assembly earns as his/her salary or allowances? These are few things which every active participant in a democratic government has curiosity about, therefore RTI in this perspective plays a very important role and hence is a key to enhance the concept of participatory democracy. Public Union for Civil Liberties stated that the people have right to know every public act, everything that one has done in a public way by the public functionaries, i.e., MPs and MLAs who were liable to periodically to disclose their assets. Holding that right to be informed is a fundamental right under Article 19(1)(a), a supreme court bench said that a voter’s speech and expression in case of elections would include casting of votes. For this purpose information about the candidate to be selected is a must. Voter’s right to know antecedents including criminal past of a candidate of a MP or MLA is much basic or fundamental for the survival of the democracy.
RTI and Political Parties- The Election Commission (EC) is recognised as one of the most powerful and important organisation which keeps a check on the party while election approach. Political parties, political groups, pressure groups, peer groups and organisations funding them are all to be regulated because every-time elections come they are suspected of violating the rules of the Code of Conduct for the guidance of Political Parties and Candidates(issued by the Election Commission of India). There have been a lot of case and RTI applications too filed by different NGOs or Individual or Group of Individuals regarding the investment done in the time of campaign by the political parties, there is a limit set by the EC i.e. 25 lakh rupees for a national parties and usually the parties exceeds this amount with a very big margin. This has even led to ms allocation of funds provided by the EC, even their big companies and MNCs which are attached to the parties and provide the with financial help and in turn the parties faster their interests.
- Misuse of RTI
Every coin has two sides and this act begin a very helpful act to bridge the gap between the public and the government, but with this it has also been misused a lot of times. In the case of ‘Central Board of Education &another v Aditya Bandopadhyay &Ors[19], the court observed that,
“The RTI is not to be used for oppression of Public Authorities. The nation cannot afford to have the honest public officials; bogged down with all and sundry requests, unrelated to corruption. It will adversely affect the efficiency of the administration. It cannot become tool to obstruct the national development and destroy peace, tranquility and harmony among its citizens”
People and organisations have used and filed the right to information for their own benefits which clearly degrades the aim wit which RTI came into force. Sometimes RTI have been filed to defame others in front of the nations and sometimes to take personal revenge which because of this have created a doubt among the people and the public authorities about the authenticities of RTI applications.
- Critical Analysis of RTI and Conclusion
As the present government has given promises to tackle corruption which looks very ague but Acts like RTI have helped in making a fruitful changes within the society and the Public Authorities. The view and the idea behind the framing of RTI has been to a large extent successfully achieved and because of a successful journey the future road have come up with more obstacles than ever. Political Parties, Pressure groups and even sometimes government officials have been caught misusing their power and therefore RTI is a tool to be looked upon. Though somewhere or the other RTI is criticised because of its inefficient implementation on higher level of the government machinery, but its simplicity have made it one the most celebrated Acts in the history of our country.
Right to Information is a tool which will certainly provide a big platforms for NGOs to work in the field of corruption and bringing transparency between the citizens and public domain. This is also a very helpful tool for a writer as they can speak about unjust in the public sector. Though public should also not be over-burdened with filling of RTI and therefore these are issues which are very much connected to the upliftment and making Right to Information a great tool to succeed in future. With this to only government but also the citizens will a power in their hand and will certainly reduce clashes between them, the future of Right to Information holds a great many challenges and these are to be conquered by everybody.
[1] Reliance Petrochemicals Ltd., v. Proprietors, Indian Express Newspaper, (P) Ltd., Bombay, AIR 1989 SC 190 (India).
[2] Reliance Petrochemicals Ltd., v. Proprietors, Indian Express Newspaper, (P) Ltd., Bombay, AIR 1989 SC 190 (India).
[3] N V Paranjape, Right to Information in India 3 (2014).
[4] N V Paranjape, Right to Information in India 33 (2014).
[5] Sri Keshabananda Borah, Right to Information: a key to good governance, 2 IJHSI 11, 17 (2013).
[6] State of Uttar Pradesh v. Raj Narayan , AIR 1975 SC 865 (India).
[7] Benett Coleman & Co. v. Union of India , AIR 1973 SC 106 (India).
[8] Hussamara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369 (India).
[9] N V Paranjape, Right to Information in India 234 (2014).
[10] N V Paranjape, Right to Information in India 242 (2014).
[11] Ibid.
[12] N V Paranjape, Right to Information in India 243 (2014).
[13] AIR1979 SC 1369 (India).
[14] AIR 1982 SC 149 (India).
[15] AIR 1978 SC 1548 (India).
[16] AIR 2003 5 SCC 494 (India).
[17] AIR 2008 Mad. 91 (India).
[18] AIR 1981 SC 2041 (India).
[19]AIR (2011) 8 SCC 497 (India).
