Right to Information and Citizens Right- A Dilemma.

Introduction:-

The Indian Constitution has established Democratic, Republic principles. The extreme requirement of Democracy is informed citizenry and transparency public affairs. The transparency of information is vital to its functioning. Since the instrumentalities are accountable to citizens at large they shall work in transparent and accountable manner. The notion of right to information and citizen’s right both are interlinked in democratic State. All citizens are entitled to access information held with public office to see transparency in the affairs of that particular office. However, there is bar on disclosure of public information on the ground of national security, defense and other matters that are deemed of national interest. Right to information is nothing but a right to access data held by the State. It is a duty of the Government rather government bound to publish to maintain openness. In various countries there are Constitutional guarantee to all citizens right to information through appropriate legislation.

Whereas, Supreme Court of India had, in several Judgments prior to enactment of the RTI Act, interpreted Indian Constitution to read Right to Information as the Fundamental Right as embodied in Right to Freedom of Speech and Expression and also in Right to Life. RTI Act laid down a procedure to guarantee this right. Under this law all Government Bodies or Government funded agencies have to designate a Public Information Officer. The PIO's responsibility is to ensure that information requested is disclosed to the petitioner within 30 days or within 48 hours in case of information concerning the life or liberty of a person.[1] The object of the present paper is to see whether right to information as a fundamental right properly utilized by the citizens at large. Particularly t see the real happenings in the area of Right to Information

A brief History:-

In India, the process of formulating a law relating to right to information gained momentum in 1990s. The Law Commission of India in its 179th Report of 2001 and several other committees emphasized upon the need of a meaningful law to ensure access to information, which eventually resulted in enacting of the Freedom of Information Act, 2002. The Freedom of Information Act, 2002, was enacted to provide for freedom to every citizen to secure access to information under the control of public authorities in order to promote openness, transparency and accountability in the working of public offices. In May 2005, the national Right to Information Act 2005 was passed by Parliament.[2]

The RTI Act 2005 received Presidential assent on 15 June and came fully into force on 12 October 2005. The RTI Act 2005 covers all Central, State and local government bodies and applies to the State of Maharashtra.

It has taken India Eighty Two years to convert from an opaque system of governance legitimized by the Official Secrets Act; to one where citizens can demands 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 derived from our fundamental right of freedom of speech and expression under Article 19(1) (a) of the Constitution.

Judicial Pronouncements:-

The Supreme Court in the number of cases thereto, has discussed the nature of this right and the relevant restrictions.

State of Uttar Pradesh Vs Raj Narain and others,[3]

Supreme Court held that, Art.19 (1) a, not only guarantees freedom of speech and expression, it also includes and ensures and comprehends the right of citizen to know, the right to receive the information the matters of public concern.

Further Supreme Court in case of S.P. Gupta Vs Union of India [4], that right to know is implicit in right of free speech and expression. Disclosure of information regarding functioning of the government must be the rule.

Secretary, Ministry of Information and Broadcasting, Govt. of India Vs Cricket Association of Bengal[5], the Supreme Court reiterated the proposition that, “the freedom of Speech and Expression guaranteed by Art. 19(1) (a), includes right to acquire information and to disseminate the same.”

In case of Attorney General Vs Time News Papers Ltd.[6], it was held that The fundamental rights involved are the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration.

The Supreme Court in another case of Peoples Union for Civil Liberties Vs Union of India[7], held that true democracy cannot exist unless the citizens have a right to participate in the affairs of the policy of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sided of issues in respect of which they are called upon to express their views.

In Dinesh Trivedi, M.P.and others Vs Union of India,[8]

The Supreme Court dealt with the right to Freedom of Observation, “in modern constitutional democracies, it is axiomatic that the citizens have right to know the affairs of the Govt. which, having been elected by hem, seek to formulate sound policies of the Governance aimed that their welfare”. The court further observed, “Democracy expects openness with concomitant of a free society and the sunlight is the best disinfectant.”

In case of Union of India Vs Association for Democratic Reform,[9]

The member of the democratic society should be sufficiently informed so that they may influence intelligently the decisions, which may affect them. Further the right to get information in democracy is recognized all throughout and it is natural right flowing from the concept of democracy.

In Bennett Coleman & Co. Vs Union of India,[10]

It is the case of great significance in the area of freedom of speech and expression. The right to information was held to be included within the right to freedom of speech and expression guaranteed under Art.19 (1) (a).

In Tata Press Ltd. Vs Mahanagar Telephone Nigam Ltd. And Others.[11]

The Supreme Court concluded that the commercial cannot be denied the protection of protection of Art.19 (1) (a) merely because the same is issued by businessman. “Commercial speech” is a part of freedom of speech. The public at large has right to receive the commercial information. Art.19 (1) (a) protects the right of an individual to read and received the said speech. The protection of Art. 19 (1) (a) Available to the speaker as well as the recipient of the speech.”

In Reliance Petrochemical Ltd. Vs Indian Express,[12]

The Supreme Court observed, the right of people to know, the Court has pointed out that in the instant case it had to balance to interests of great public importance- freedom of speech and administration of justice ,” a balance, in our opinion has to be struck between the requirement of free press and free trial…”[13]

The all above pronouncements of Supreme Court shows the importance of basic principles of democracy. In particular right of participation in public affairs, right to know, freedom of speech and expression, informed citizenry etc. the very purpose of the Act is given in the preamble i.e. The Act provides for setting out the practical regime of right to information to citizens to secure access to information under the control of Public Authorities, in order to provide transparency and accountability in the working of every Public Authority. In the democracy an informal citizenry and transparency of information which are vital to its functioning and also to hold Government and their instrumentalities accountable to the governed.

Significance of the Act:-

In recent years there has been almost unstoppable global trend towards recognition of the right to information by countries inter Governmental organizations, civil society and the people. The right to information has been recognized as a fundamental right, which upholds the inherent dignity of all human being. The right to information forms the crucial underpinning of participatory democracy - it is essential to ensure accountability and good governance. It is true that greater the access of the citizen to information, the greater the responsiveness of Government to community needs. Without information people cannot adequately exercise their rights as citizens or make informed choices.[14]

The primary power of RTI is the fact that it empowers individual citizens to requisition information. Hence without necessarily forming pressure groups or associations, it puts power directly into the hands of the foundation of democracy-the citizen.

The then Wajahat Habibullah, Chief Information Commissioner[15] on “The Relevance of Official Secrets Act”-Said that, “Government should accept the supremacy of RTI Act.” He said, “When there is direct conflict between the Official Secrets Act and RTI Act, it is the latter that prevails, The Secretes Act prepared 1923, was an imperial tool meant to serve the interest of colonial enterprise. It served its purpose under the colonial administration. Such an Act has no place in a democracy and ought to have been repealed right to after independence. The RTI Act clearly states that it overrides the OSA and the Second Administrative Reforms Commission recently asked for scraping it. No one thinks that official secrets need not be guarded, but the provisions of RTI Act are sufficient to protect the interests of the citizens.

The crucial difference between the OSA and RTI Act is that the latter privileges, ’right of citizen to know’. This includes even personal information concerning public official, ‘if public interest in disclosure outweighs the harm   to protected interest’.
A Dilemma:-

India is a big democracy all over the globe. Informed citizenry is one of the basic features of the Democracy. An Indian democracy has many fold revolutions in its life. The Indian Constitution is detailed document unlike other States. The Constitution is suprema lex (Supreme Legislation) of the Country. The whole governance of the country is depends upon the provisions of the constitution. It provides various fundamental rights to the citizens subject to reasonable restrictions. As we have seen that the Supreme Court of India before the enactment of the Right to Information Act has at various instances discussed about right to know which include right to receive information from public offices.

However, there are many instances where the citizens of India have abused the right to information guaranteed by our Constitution. They shoot up numerous applications unnecessarily crossing the limits to demand information.

The former Supreme Court Judge and Patron of Thinkers Association, S. Natrajan said the RTI Act paved way for informed citizenry and was passed with good intentions. He however urged to utilize the Act to its potentials.[16]

Justice R.V. Raveendran and Justice A.K. Patnaik, “The (Right to Information) Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty.”[17]

The present judgment of the Supreme Court is relating to the right of students to inspect and photocopy their answer sheets after their evaluation in examinations. The Honorable judges said that, “The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information, which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption.”

So by this statement one can understand the real purpose behind Right to Information Act is to bring transparency and accountability in public offices.

The court cautioned against the indiscriminate and impractical demands and directions under the RTI. In simple words the citizens have fundamental right to demand information but there should not be a personal demand of irrelevant and sundry information which is rather useless to reveal the truth regarding transparency and accountability of public office. It is true that there will be adverse effects on the efficiency of the administration of the Government. If this is so, the Government unnecessarily overburden by no-productive works such as collecting and furnishing information to citizen. 

The judgment also said: “The nation does not want a scenario where 75 percent of the staff of public authorities spends 75 percent of their time in collecting and furnishing information to applicants instead of discharging their regular duties.”

“The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritizing information furnishing at the cost of their normal and regular duties.”

The above information is catching attention towards utilization of sufficient time to discharge regular duties of the government officials.

Recently Law Minister Salman Khurshid said that, “RTI was being misused and officials and even judges feel the transparency law was transgressing into governments functioning. Further Minister of State for Personnel V Narayanasamy said Government has received 06 lakhs applications and 90 percent were disposed. Karnataka Lokayukt Justice N Santosh Hegde said that, “The Right to Information Act was being misused and such behavior must stop. Such misuse of the Act would lead to society losing faith in it.”[18] We can easily understand that why these people worrying about misuse of the RTIA-2005, it is harmful to society at large.

RTI disclosure shakes up Lokayukta:-

The Right to Information (RTI) disclosure made the Lokayukta office lacking teeth and not taking up complaints, has brought about a marginal improvement in the performance of this watchdog body. RTI activist Shailesh Gandhi, who had put up both the RTI applications said, people were cynical as to whether citizens using the RTI could really achieve improvement of governance and performance Act 2005.

Conclision:

In conclusion it can be said that the Supreme Court has at several occasions recognized a right to information is fundamental right before the birth of RTIA-2005. Empowerment of ordinary citizens and awareness of citizens’ right are goals of democratic Government. The Right to Information Act, 2005 is a small but significant step to fulfill its goals that India has taken. It is reality persons are making applications not with an intention to really maintain the transparency in Government affairs but only out of curiosity to see how the Public Information Officers reacts. This is one of the big apprehensions that to file an application for domestic or private purpose which is not relevant to know the accountability of public offices. There should be imposition of fine for application filed merely annoyance and causing impediment for Administrative efficiency. This misbehavior hampers the administrative efficiency. The Supreme Court has upheld Right to Information as a fundamental right in several judgments however recently Supreme Court itself worried about misuse of the said right. In the sum, its true to say that apart from exemptions and reasonable restrictions there should be sanction behind irrelevant applications.

[1]  http://www.wikipedia.com
[2]  The Right to Information Act, 2005—Use & misuse, By Dr. Ajay Kumar Jain, Cite as: (2011) PL February S-35
[3]  AIR 1975 SC 865
[4]  1981.Supp SCC 87
[5]  (1994) 3 SCC 637
[6]  1973 3 ALL ER 54
[7]  AIR 2003 SC 2363
[8]  (1997) 4 SCC 306
[9]  AIR 2002 SC 2112
[10] AIR 1973 SC 106
[11] AIR 1995 SC 2438
[12] AIR 1989 SC 189
[13] http://persmin.nic.in/RTI/WebActRTI.htm
[14] ibid
[15] Times Of India, 18th –September 2007.
[16] http://rti.aidindia.org , dated 17/08/2006
[17] http://www.daijiworld.com/news/news_disp.asp?n_id=111777, Dated 11 August, 2011
[18] http://www.dnaindia.com/bangalore/report_lokayukta-warns-against-misuse-of-rti-act_1544179

Other References:

1. M P J AIN- Indian Constitutional Law, (WADHAWA Publishers, Nagpur, 2007), Vth Ed.
2. P M BAKSHI- The Constitution Of India, (Universal Law Publishing Co., Delhi 33, 2006), VIIth Ed.
3. Dr. J N PANDEY- Constitutional Law Of India, (Central Law Agency, Allahabad 2, 2002), 38th Ed.
4. H M SEERVAI- Constitutional Law of India, (Tripathi, Bombay 2, 1993), IVth Ed., Vol.II.
5. B. SHIVA RAO-The Framing of India’s Constitution, Select documents, (Universal Law Publishing Co. Pvt. Ltd., Delhi 33,2004), Vol.II
6. KAGZI- KAGZI’s The Constitution of India, (India law House, New Delhi, 2004), VIth Ed. Vol.I.

Prepared By-
Sandip Balasaheb Satbhai,
Assistant Professor,
Gokhale Education Society’s
N. B. Thakur Law College, Nashik, India, Maharashtra.
E-mail: sandip.satbhai@gmail.com