Introduction To Right To Information

INTRODUCTION TO RIGHT TO INFORMATION It has taken India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can demand the right to information. The recent enactment of the Right to Information Act 2005 marks a significant shift for Indian democracy, for the greater the access of citizens to information, the greater will be the responsiveness of government to community needs. Right to Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution. If we do not have information on how our Government and Public Institutions function, we cannot express any informed opinion on it. Democracy revolves around the basic idea of Citizens being at the center of governance. And the freedom of the press is an essential element for a democracy to function. It is thus obvious that the main reason for a free press is to ensure that Citizens are informed. Thus it clearly flows from this, that the Citizens Right to Know is paramount. The Act and its rules define a format for requisitioning information, a time period within which information must be provided, a method of giving the information, some charges for applying and some exemptions of information which will not be given. The Right to Information (RTI) Act is a law enacted by the Parliament of India to provide for setting out the practical regime of right to information for citizens. It was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005. The RTI Act mandates timely response to citizen requests for government information. It applies to all States and Union Territories of India, except the State of Jammu and Kashmir, which is covered under a State-level law.

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HISTORICAL DEVELOPMENT OF RTI LAW GLOBAL DEVELOPMENT 1766 –World's first Freedom of Information Act was issued in Stockholm on December 2, 1766.This law in Sweden established press freedom and those at stake included the government, courts, and parliament. Sweden's constitution thus recognized that press freedom is contingent upon access to information. 1789– A part of the French Constitution, Declaration of Human and Civil Rights, has Article 14 stating that: “All citizens have the right to ascertain, by themselves, or through their representatives, the need for a public tax, to consent to it freely, to watch over its use, and to determine its proportion, basis, collection and duration.” 1946– The United Nations General Assembly passed a resolution in 1946, which in regard to Freedom to Information stated, "Freedom of Information is a fundamental right and is the touchstone of all the freedoms to which the United Nations is consecrated. Freedom of Information implies the right to gather, transmit and publish news anywhere and everywhere without fetters. As such it is an essential factor in any serious effort to promote the peace and progress of the world." 1948– The history of human rights has known The Universal Declaration of Human Rights (UDHR) as a milestone. Representatives with different legal and cultural backgrounds from all regions of the world drafted it, and thus it carried the spirit of oneness in all its practical differences. Proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (Resolution 217 A), it was accepted as a common standard of achievements for all peoples and all nations. For the first time, certain fundamental human rights which were to be universally protected were set out. UDHR expressly mentioned in its Article 19(2),"Everyone shall have the Right to Freedom of expression which shall include freedom to: seek, receive and impart information; regardless of frontiers - orally, in writing, or in print."

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INDIAN SCENARIO In India, the campaign on the Right to information (RTI) was triggered off at the grassroots level by an organization called, the Mazdoor Kisan Shakti Sangthan in the 1990s. The movement was initially started to bring in transparency in village accounts. It was an off shoot of the demand made for minimum wages in rural areas. Although, Mazdoor Kisan Shakti Sangthan was in struggle of the rural poor, it caught the attention and got the support of a cross-section of the country's media, lawyers and jurists, academicians and even bureaucrats and legislators, many of whom came together to form the National Campaign on the People's Right to Information (NCPRI). The Government of India constituted a working group chaired by consumer activist H.D. Shourie to draft legislation for consideration of Government. The Working Group appointed by the Government in 1997 was known as the “Shourie Committee” since it was headed by former bureaucrat and consumer rights activist H.D. Shourie. It widened the scope of exclusions to enable public authorities to withhold information the disclosure of which would not sub serve any public interest’. This single clause broke the back of the entire legislation, because in effect public authorities would then be empowered to withhold disclosure of incriminating information in the name of public interest. The powerful clause referred to earlier, which provided that only such information that can be denied to parliament or the legislature can be withheld from the citizen, was not included. The Shourie draft was revived with some changes, in July 2000, and it was introduced as the Freedom of Information Bill, 2000. The freedom of Information law was passed in 2002. Right to Information (RTI) is act of the Parliament of India to provide for setting out the practical regime of the right to information for citizens and replaces the erstwhile Freedom of information Act, 2002. This law was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005. All citizens have the Right to Information subject to the provision of this Act.1 It is the obligation of Public Authorities to provide information. The Public Information Officers are the link between the information seeker and the Public Authority.

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Section-3 of The RTI Act

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RTI AS FUNDAMENTAL RIGHT OF CITIZENS The right to information is the legal right of any person. This legal right in conferred by virtue of the Right to Information Act, 2005. Fundamental right under the constitution of India, Article 19 (1) (a) of the constitution stipulates that all citizens shall have the right to freedom of speech and expression. Supreme Court, as early as in 1975 in the case State of U.P. v. Raj Narain2, on the emerging concept of “open government”, upheld the right of people of having information about the working of public functionaries. People are entitled to know every bearing of the transaction related to public works. Again Justice V.R. Krishna Iyer, in the S.P. Gupta case3observed that the right to express one's thoughts is meaningless if it is not accompanied by related right to secure all information on mailers of public concern from relevant public authorities; people had the right to know about every public act, and the details of every public transaction undertaken by public functionaries. In Bennett Coleman & Co Vs Union of India4 the Supreme Court has held that the Right to Information and the Freedom of Press are concomitant rights enshrined in Article 19(1)(a) of the Constitution of India. In People's Union for Civil Liberties Vs Union of India5, the Supreme Court has held that Democracy is a part of the basic structure of our Constitution and rule of law and free and fare election are basic features of democracy. Democracy postulates that there should be periodical elections so that people may be in a position either to re-elect the same representatives or choose new representatives. Democracy also contemplates that elections should be free and fair and the voters should be in a position to vote for the candidates of their choice. The pre-requisite of this is that the elections are not rigged and manipulated and the candidates or their agents are not able to resort to unfair means and malpractices. Right of information is a fundamental right under Article 19(1) (a) of the Constitution. The State under Clause (2) of Article 19 of the Constitution, however, is entitled to impose reasonable restrictions inter alia in the interest of the State.

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1975 SCR (3) 333 S.P. Gupta vs. President Of India And Ors, AIR 1982 SC 149 4 (1972) 2 SCC 788 5 (2004) 2 SCC 476 3

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In Hindustan Times Vs, High Court of Allahabad6 the Supreme Court held that; “The media, be it electronic or print media, is generally called the fourth pillar of democracy. The media, in all its forms, whether electronic or print, discharges a very onerous duty of keeping the people knowledgeable and informed. The impact of media is far-reaching as it reaches not only the people physically but also influences them mentally. It creates opinions, broadcasts different points of view, brings to the fore wrongs and lapses of the Government and all other governing bodies and is an important tool in restraining corruption and other ill-effects of society. The media ensures that the individual actively participates in the decision-making process. The right to information is fundamental in encouraging the individual to be a part of the governing process. The enactment of the Right to Information Act, 2005 is the most empowering step in this direction. The role of people in a democracy and that of active debate is essential for the functioning of a vibrant democracy.” The Right to Information Act, 2005 is social welfare legislation and is a special law, enacted to ensure smoother and greater access to public information by establishment of machinery and to ensure maximum disclosure of the information. The Act provides that all citizens of India shall have the right to information. The Act confers a great responsibility on the shoulders of those who seek information and also those who administer the provisions of the Act.

RTI AND THE RIGHT TO PRIVACY The right to privacy and the right to information are both essential human rights in the Modern information society. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by government bodies. Where the two rights overlap, states need to develop mechanisms for identifying core issues to limit conflicts and for balancing the rights. Privacy and RTI are often described as “two sides of the same coin”—mainly acting as complementary rights that promote individuals ’ rights to protect themselves and to promote government accountability.

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2011 (13) SCC 155

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The relationship between privacy and RTI laws is currently the subject of considerable debate around the globe as countries are increasingly adopting these types of legislation. To date, more than 50 countries have adopted both laws. The right of a person to seek information under the Right to information Act, 2005 and the right to privacy of the other citizens shall go on without violating each other. The right to a person to seek information relating to the private matters of the individuals cannot be recognized since it would lead to complex controversies in social order. This principle was elucidated in Ram Jethmalani & Ors. Vs Union of India7 & Ors, where the writ petition was filed by many social activists relating to the information relating to the black money. It was held that where the individual has done some unlawful act and such unlawful acts are not immune under the Right to privacy and such documents relating to the black money of the individual are to be furnished to those petitioners. Thus the balanced approach in appreciating the right to information vis-a-vis right to privacy was taken by the Hon`ble Supreme Court in order to endure transparency in the government functions.

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(2011) 8 SCC 1

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DUTIES AND OBLIGATIONS OF AUTHORITIES UNDER THE ACT The Act defines the public authorities under Section 2(h). Section2 (h) reads as follows public authority means any authority or body or institution of self-government established or constituted (a) By or under the constitution (b) By any other law made by parliament (c) By notification issued or order made by the appropriate government and includes any (i) Body owned, controlled or substantially financed (ii) Non-government organization substantially financed, directly or indirectly by funds provided by the appropriate government. Right to Information Act, 2005 aptly named the second chapter containing sections 3 to 11 as Right to information and obligations of public authorities. The framers of the Act on the one hand intended to give rights to citizens in unequivocal terms, on the other hand imposed as many obligations on the public information officers as possible and thereby the legislature has intended to make this Act as revolutionary in the hands of the citizens. Section 3 in categorical terms states that all citizens shall have right to information. Though a rider clause was attached to the rights that subject to provisions of this Act, a plain reading of the Act shows that the provisions of the Act nonetheless did not curtail or restrict the rights of the citizens except under section 8 and 24 where the Act provided for exemptions. It is also worth to note that even section 8 and 24 which contains exemptions also contain exceptions to exemptions and hence the rider subject to provisions of this Act‟ is all the more relating to the procedure to get information by citizens and not as restrictions on the citizens. Section 4 of the Act is the backbone of the rights of the citizens. The Section 4 mandates that every public authority shall be bound to maintain its records and the same shall be indexed in a manner and form which could be easily accessible when an information is ought under the Act. Hence the public authorities are bound to ensure that the documents and records are maintained properly and the wherever it is possible the same shall have to be computerized and the network shall disseminate the information throughout the country. Section 4(1)(a) clearly states that such

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maintenance and posting of such information to the public shall be made in order to facilitate that the information is accessible from any part of the country. Section 4(1)(b) gave 120 days to enable the public authorities to publish certain information prescribed under the sub section. This sub section was enacted to enable the citizens to get to know the information about as many information as possible in the websites of the public authorities and thereby one may not undergo the process of application to PIO etc to get information. He can simply go the public authority’s websites and access the information. Every public authority except that those are exempted under section 24 of the RTI Act has to publish the information. A bare perusal of that information required under the Act would show that the legislature intended transparency in every public department and the public ought to know the decision making process of the government department. This sub section also states that the amount of expenditure met by the public authority including the remuneration of the employees of the department has to be published. Section 4(1)(b) based on the principle of universal disclosure of information which is a onetime burden for the public authorities but would eventually save the time of public information in future. Instead of furnishing information to every single applicant this wide disclosure would enable citizens to know the information and the decision making process of the government department by simply going through the website of the public authority and thereby the time and cost for both the public authority as well as individual citizen also would be saved. Section 4(1) (c) imposes statutory obligation on the public authorities to disclose the policies of the government and all the relevant facts leading to the formulation of the policies along with the announcements of the decisions which affect the public. The term affecting public has to be construed wide meaning and any decision affecting the citizens of the country are to be taken within the meaning of affecting the public. The term need not be given negative meaning and cannot say that only those decisions of the government which adversely affect the public ought to be published. Section 4(1) (d) of the RTI Act states that the public authorities while taking decisions related to administrative decision or quasi judicial decisions are to give reasons to the aggrieved persons. It means to provide that the orders and decisions passed by the public authorities shall have to contain reasons and not to pass orders mechanically and not to pass cryptographic orders.

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The legislature`s intention of making so much of information by voluntary means by the public authorities are explicit in section 4(2). It says that the public authorities have to provide suo motu information so that the public have minimum resort to the use of the Act to get the information. The Act imposes further obligation on PIOs to furnish information considering the easy mode and the way in which less cost would be incurred. The act though not as a strict obligation but prescribes that the information as far as practicable shall be in electronic format with the central or state information commission. The explanation to section 4 indeed a necessary one in order to clarify the position about the meaning of the word disseminated. Thus the publishing not only restricted to their own website of the public authority but also to the news papers, public announcements , media broadcast and any other means which are easily accessible to public.

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CONCLUSION This Act has proven itself to be a milestone, to be etched in the legal history of India; the balance of power in India has been changing at a gradual pace – people, who are the asset and makers of a nation as a whole are finally rightfully getting a power that they deserved; and the government and other powerful entities are having to distribute and disclose the source of. To transform the nation from a representative democracy to a participatory one, where governments, and their functionaries at all levels, are directly answerable to the people for their actions and inaction, thus deepening the very roots of the strength of the largest democracy in the world. Actualizing this potential needs a much more concerted push in the next few years. There really is no time that can be wasted when the struggle is for power and control. Vested interests of those in power will push them will exploit the weakness of people if they do not stay together and keep making efforts to recapture power that is rightfully theirs. By enacting the Right to Information Act India has moved from an opaque and arbitrary system of government to the beginning of an era where there will be greater transparency and to a system where the citizen will be empowered and the true center of power. Only by empowering the ordinary citizen can any nation progress towards greatness and by enacting the Right to Information Act 2005 India has taken a small but significant step towards that goal. The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused. Thus with the enactment of this Act India has taken a small step towards achieving real Swaraj.

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