Right To Information: Its Scope And Need

Information : What it means and to whom

The phrase freedom of information has itself become a subject of debate in India. Many local activists and legal experts prefer to use the term right to information as they see freedom as signifying mere prohibition of Government interference, whereas applying the term right imposes a positive duty on the Government to disseminate information to the people. In the Indian Constitution, most of the freedoms enumerated in Article 19, which guarantees freedom of expression, require the State to refrain from interfering. A right, on the other hand, is understood in India as placing a positive duty on the State to take steps to ensure its fulfilment. Madhav Godbole, the erstwhile Union Home Secretary and Right to Information Activist, says in his critique on the Freedom of Information Bill, 2000, “Since the Bill makes it a point to talk only about freedom of information as opposed to right to information, it has lent itself to some clumsy construction ... all citizens have a right to information.”

Two aspects of the right to information are particularly important to the current debate:

(1)   information to which access must be given upon request; and

(2)   information which must be published and disseminated suo motu (proactively) by public authorities, including information which would affect fundamental rights such as food, environment and civil liberties. Particular emphasis is being paid to suo motu publication, given the background of illiteracy and poverty that prevails in most parts of the country.

Although information in the current debate refers primarily to information held by public authorities, strong arguments can be made to extend the scope of the term to certain kinds of information held by private parties. The right to information would then become a right to seek and receive information from public authorities, as well as a right to access certain kinds of information from private actors.

The right to information derives from the democratic framework established by the Constitution and rests on the basic premise that since the Government is for the people, it should be open and accountable and should have nothing to conceal from the people it purports to represent. In this context, the following observation seems to sum up the philosophical basis of the right to information:

In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but a few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one way, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the safeguard against oppression and corruption.

The need for the right to information

Information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of the Government to community needs. Alternatively, the greater the restrictions that are placed on access, the greater the feelings of powerlessness and alienation. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. Government information is a national resource. Neither the particular Government of the day nor public officials create information for their own benefit. This information is generated for purpose related to the legitimate discharge of their duties of office, and for the service of the public for whose benefit the institutions of the Government exist, and who ultimately (through one kind of import or another) fund the institutions of the Government and the salaries of officials. It follows that the Government and officials are trustees of this information for the people.

The net result of secrecy has been disempowerment of common people and their exclusion from processes which vitally affect their existence. Information on matters such as employment schemes, obtaining certificates for various purposes, recommendations for different types of loans, access to different poverty alleviation programmes, irrigation, drinking water, sanitation and education is a must for ordinary people, whether provided proactively or on request.

In recent years, the historic lack of information on these and other matters has been mitigated by factors such as the growth of democratic values, the information revolution and the decentralisation of governance through the Gram Panchayats (village elected bodies), which are responsible for all of the issues noted in the preceding paragraph. However, although political power has been decentralised, the problem of gaining access to information remains at the level of local officials, who are often reluctant to be open because they represent vested interests or are party to corruption and misappropriation of funds.

An antidote to corruption

India has the dubious tag of being the twentieth most corrupt nation in a recently compiled list of 91 countries around the world. This is consistent with most people’s everyday experiences; corruption in India is rampant, from the common clerk to the highest offices of the country. Big scams, for example, regarding defence deals, fodder procurement and sugar prices have frequently made the headlines. People even have to pay bribes to access basic information, such as their own electricity bills. The right to information is thus a potent tool for countering corruption and for exposing corrupt officials.

Limiting abuse of discretion

Officials can abuse their discretion to suit various political or other vested interests, as well as to misappropriate funds. For instance, the power given to Collectors to allocate tribal land to non-tribal people or to convert agricultural land to non-agricultural land has been seriously misused all over the country. Since these are administrative matters, they tend to be hidden from disclosure, fostering abuse of power. While in theory it is possible to obtain a State High Court order to compel disclosure of this information, in practice this is not possible for poor indigenous people or villagers, given the cost, distance and delays involved. The right to information is therefore important to check abuse of administrative discretion and to ensure fair process.

Protection of civil liberties

The right to information is also necessary for protecting civil liberties, for example, by making it easier for civil society groups to monitor wrongdoing such as encounter killings or the abuse of preventive detention legislation. The fact that the authorities regularly refuse to release information to civil society on such issues is indicative of the need for right to information legislation.

Knowledge of various schemes

Food, shelter, livelihood and education, the most important aspects of a person’s life, are provided in most rural areas through numerous schemes run by the Central or the State Government.

In most cases, people do not know about the existence of these schemes, or at least salient details, such as their entitlements under the scheme, paving the way for them to be tricked into accepting less than their allocation through forgery. Furthermore, records are often tampered with, a relatively simple practice because no one outside the tight-knit governmental circle has access to them.

Land and lack of information about land entitlements and records is a major problem, especially since nearly two-third of the population is dependent on agriculture. A regular complaint with rural people is the inability to access their own land records. To get a copy of their patta is difficult. Not only are there delays and repeated time-consuming visits to various offices, but they also routinely have to pay bribes to the Patwari, the Tahsildar or the Block Development Officer (BDO). Lack of access to land records and knowledge about land laws have led to frequent instances of land-grabbing by powerful people.

Health schemes are rarely advertised sufficiently to enable people to benefit from them. The anti-polio campaign is a case in point.

Environmental issues like contamination of groundwater have a direct effect on people’s lives and yet very little information on these problems is available. The case of Union Carbide Corporation is long-familiar in this aspect.

Consumer information is another area where it is important to have proactive dissemination of information, and consumer groups are fighting for stricter labelling laws on domestic as well as foreign products, especially food and medicines. Mandatory labelling of non-vegetarian products has recently been approved by the Government under the Prevention of Food Adulteration Act.

Participation

Participation in political and economic processes and the ability to make informed choices is restricted to small elite in India. Consultation on important policy matters, even when they directly concern the people, is rare. Even where consultation is mandatory, for example under the Environment Protection Act, information sharing is limited, undermining the whole consultative process. Furthermore, reports pertaining to those consultations are difficult to access.

The need for more openness as an aspect of democratic and effective governance has been accepted not only by international organisation like World Bank (which is presently conducting a widespread consultation on how best to strengthen its disclosure policy), but also by private enterprise. A recent industry report on infrastructure development made a strong case for greater transparency.

Knowledge of laws and policies

India has some very progressive legislations, backed up by progressive court judgments, but these laws are often largely confined to the books and fail to be fully implemented because they have not been effectively disseminated. For example, for years after the forest laws were put into place, few people understood the conditions they created on cutting down trees, leading to harassment and threats by local forest officials against villagers for cutting on their own land. In Madhya Pradesh, it was reported that any pink-coloured paper could be used to exploit indigenous people as they identify it as a penalty slip for violating forest laws.

Elixir for the media

The need for the media to be able to access information is of crucial importance in India, as it is elsewhere in the world. The media provides a link between the people and their Government and acts as a vehicle of mobilisation. This role is particularly important in India, where the media played a major role in the freedom struggle as well as during the period of internal emergency, when civil and political rights were suspended. The media’s right to information is not a special privilege but rather an aspect of the public’s right to know, which the media play a key role in ensuring. This view finds support in statements of the Supreme Court of India in cases involving claims of press freedom.

As rightly pointed out by Ralph Nader, “Information is the currency of democracy.” We call this an age of information, which makes right to information inevitable. India presents a mixed picture with much secrecy legislation still in place restricting the free flow of information, but at the same time some significant developments at State level in terms of promoting freedom of information laws, as well as draft national legislation. Unfortunately, the draft law presently being considered by the Central Government is woefully inadequate. It is essential that decision-makers fundamentally rework this draft, to ensure that legislation is passed which protects the public’s right to know and promotes the free flow of information in India.