THE CHANGING DYNAMICS OF RIGHT TO INFORMATION

Co- Authors:

K. Sreeya Chowdary,Gitam University, Visakhapatnam

Shraddha Sharma, Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapeeth

Vihaan Kumar,Vivekananda Institute of Professional Studies

Editor: Kanhaiya Singhal,Faculty of law, PES University


Introduction

The need for accountability in a governance system of a country as well as the transparency in the system is vital for achieving the goals of good governance. In this perspective the Government of India in the past two decades has provided a number of rights to the citizens of India, like the right to education, the right to employment and the most imperative of all, the right to information which makes the people in power suitably answerable to the country and its citizens.

The Preamble of the Right to Information Act, 2005 holds that

“…democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed ….therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.”

The Right to Information Act (RTI Act), 2005 was introduced in order to attain transparency and social justice and to hold the government accountable. It is well acknowledged that only the right to information is not adequate for attaining good governance; however it is a crucial component for improving the status of the governance. In order to maneuver complete accountability in the governance, a lot more can be done, like the delegation of power, the merger of authority and accountability at all levels of work along with the safeguarding of the whistle blowers. A common citizens’ contribution is the utmost at the working class level and this particular law enables the citizens to take the incalculable opportunity of reshaping the process of governance.


The need for Right to Information

The literal meaning of right to information in the citizens’ right to get access to the information from the government and the various instruments of the government at all working levels being financed by the government, directly or indirectly, as a public authority right within a predetermined time structure devoid of any exceptions[1].

The Article 19 of the United Nations Declaration of Human Rights states that “Everyone has the right to freedom of opinions without interference and to seek, receive and impart information and ideas through any media, regardless of the frontiers.”

The United Nations General Assembly in 1946 expressed that “Freedom of Information is undoubtedly a fundamental human right and the touchstone for all freedoms for which the UN is consecrated.”

When we talk about the scenario in India, the need for this Act has been estimated since 1947 due to the existence of the British enacted Official Secrets Act (OSA) 1923 during the colonial era. The 1923 law provided for dealing with maters of sedition, espionage and other acts infringing the integrity of the country. Nevertheless, the mistrust of people in the colonial authorities created a sense of secrecy in the OSA and disclosure of information became a rare spectacle with confidentiality being the model.

With increased public demands the then Prime Minister of the country Morarji Desai of the Janata Government took the initiative of setting up a group to modify the Act of 1923. But it was to no avail as the group did not recommend any need to alter the Act. Then in 2000 the National Democratic Alliance introduced the Freedom of Information Bill in the parliament which although got passed in the Lok Sabha but could not be enforced.

A few NGOs demanded the RTI Act from the government relentlessly struggling and demanding the right to information saying that “the right to know is the right to live”.[2] Finally in the year 2005, the government of United Progressive Alliance enacted the RTI Act.

Salient features of the RTI act, 2005

This Act provides every citizen with the right to seek information from any public authority, owned, controlled or financed by the government. According to the Act “information” includes any and all materials: documents, memos, records, samples, models, opinions, advices, orders, circulars, press releases, reports and data material in any form, be it electronic or real.

Any citizen seeking this information needs to make a request in writing via electronic means in the official language of the area where the application in being written (Hindi, English or Regional). The citizen can also get assistance from the central or state public information officers in filing of the application. The public authority to which the request is made has to provide the information to the seeking citizen within 30 days of receiving the request. In case the information is relevant to or is entirely concerned with the life or liberty of a person then the information has to be provided within 48 hours.

There is an obvious exemption granted to certain types of information regarding the security and the integrity of the country, for example the coordinates of a nuclear test program.

The Redressal mechanism can be availed with appeal and complaints under the Act by the citizen seeking information when the information is not processed within the provided time period or when the citizen is distressed by the decision of the state or central Public Information Officer. A penalty of INR 250 is imposed on the public officers who fail to comply with the provisions of the Act. The maximum penalty is subject to INR 25,000 only.

The Act also provides for setting up of Central Information Commission and State Information Commission, which act as the Second Appellate Authority.

Constitutional rights under article 19(1) (a) and article 21

The Right to Information Act was enacted in 2005, and in various judgments the Supreme Court has recognized the Right to Information Act as a fundamental right of citizens under Article 19 (1) (a) read with Article 21 of the Constitution of India.

Article 19(1) (a) provides the right to freedom of speech and expression. Everyone has the right to freedom of opinion and expression. Have their opinions, and to seek and receive the information and ideas through any media. This right enables one to express one’s own ideas and opinions freely by words of mouth, writing, printing, pictures or any other medium. India being a democratic country, the right of speech and expression is crucial for healthy governance, so that people can participate effectively and efficiently in the development of the country.

It also includes the right to publish views of the press such as printing and broadcasting. Although this part of Article 19 does not provide a provision for freedom of press but the fundamental right of press is implied in right to freedom and speech. In the case of Express Newspapers (Bombay) Pvt. Ltd .V. Union of India[3] , the Apex Court has identified the importance of right of press.

Article 21 states the “Protection of Life and Personal Liberty; No person shall be deprived of his life or personal liberty except according to procedure established by law’’

The two essentials in this Article are:

Ø Right to life, and

Ø Right to personal liberty

This fundamental right is essential for our existence. This right is applicable to all the citizens and foreigners alike.

In Maneka Gandhi .V. Union of India[4], the judgment was interlinked to the provisions of the Article 14, 19 and 21. It expanded the scope of personal liberty to live with dignity.

Thus, Right to Information Act working alongside the constitutional framework promotes and develops the democratic governance and promotes transparency in public affairs and ceasing corrupt activities.

JUDICIAL PRONOUNCEMENTs

Some important cases for highlighting this right are:

The Secretary, Ministry of Information & Broadcasting V. Cricket Association of Bengal & Anr[5].

This is a landmark judgment of the Supreme Court, on the matter of airwaves relating to the dispute between the Ministry of Information and Broadcasting and the Cricket association of Bengal.

It was held that the airwaves or frequencies were public property and had to be regulated and controlled by a public authority. The electronic media involved the use of the airwaves, this component created an incorporated restriction on its use. The right to access to telecasting has limitations on the use of public property involved in the right. As per Article 19(2) “The broadcasting media should be under the control of the public distinct from the Government.”

Organization of an event is a part of the fundamental right to freedom and speech and expression protected by Article 19(1) (a). The law can make certain restrictions to safeguard the sovereignty of the country. Sawant J. stated that “The right to impart and receive information is a species of right of freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution.”

Girish Ramchandra Deshpande v. Central Information Commission and ors.[6]

The Supreme Court in held that the details disclosed by any person in their income tax returns were considered as “personal information” and they were to be exempted from disclosure under S/8(1)(j) of the RTI Act. This exemption is subject to a larger public interest when the state/central Public Information Officer or the Appellate Authority is satisfied that public interest is safeguarded with such a disclosure.

ADESH KUMAR V. Union of India[7]

It was held that the mere response that the information is exempted under the S/8(1) (h) of the RTI Act does not render the public authority free from discharging its obligation, which is required to claim the exemption. It was also held that no matter the nature of the information sought being relevant or necessary, a citizen has the right to information.

Central board of secondary education and anr. v. aditya bandopadhyay and ors.[8]

It was observed that in order to endure that the right to information does not create a conflict with other public interests including efficient government operations and preservation of sensitive/confidential information; it can be difficult to enumerate all the different kinds of information which are required to be exempted from a disclosure in public interest. Impractical demands under the Act to disclose such information could be counterproductive and can also adversely affect the working efficiency of the administration.

Union public service commission v. angesh kumar and ors.[9]

The SC was of the observation that seeking information for the marks in Civil Services Exams cannot be directed to be mechanically furnished as the furnishing of raw marks can cause problems which could hinder public interest. However, if such actions are required by any rule or practice, then such rule or practice can be enforced.

Nn dhumane v. pio, department of posts[10]

In this recent case it was held that the payment of pension cannot be denied for the want of an Aadhar Card. A remarkable observation made was, that, the matter of pension payment is covered as a matter of life and liberty under the RTI Act and the applications for such matters should strictly be disposed within 48 hours by the Public Information Officer.

Critical analysis

The Right to Information Act (Act No. 22 of 2005) is an empowering statute which sets out rules and procedures regarding the citizen’s right to information. It enables any citizen to ask or request information from a public authority which is required to reply within 30 days to the said application. The Act was enacted on 15 June, 2005 and commenced on 12 October, 2005.

The struggle for the implementation of a new Act which would replace the former Freedom of Information Act, 2002 was not a smooth one; it had many obstacles in its path. According to report by a leading daily, over 1.75 crores applications have been filed in the first decade of the implementation of the Act and over 4800 applications under the Act are filed each day[11].

The Right to Information is an implied fundamental right as the Act of 2005 was enacted in order to assimilate this right in the Indian Constitution under Article 19(1) (a) which states about the fundamental right to freedom and speech. But the provisions in this Act are overridden by the provisions of Whistle Blowers Protection Act, 2014 which aims to protect the identity of those persons who provide substantial information of those who indulge in corruption activities or willful misuse of power entrusted upon them due to their holding of a public office or other activities which are illegal and contrary to the laws in force and thus enabling the authority to not name these persons even if an application under the Right to Information Act is proceeded to know their names.

However even by passing this legislature, our authorities have not been able to give protection to the RTI Activists who seek to request information from time to time to promote transparency and accountability in the working of all the public authorities, there have been cases where they have been harassed and even murdered at several instances. The Right to Information Act, 2005 provides inadequate protection to whistleblowers as well as these activists who are termed as Human Rights Defenders in our country but they situation is such sever that they are very vulnerable to attacks and on their life in the present scenario.

The Central Information Commission as well as the State Information Commissions is not enforced to deal with their protection which creates a severe void in their protection and sustainability. Also, the penalty provisions which lie between Rupees 250 to a maximum of Rupees 25,000 is a very small amount of fine which is being charged in the current scenario on the grounds like refusing to receive an application of information or not furnishing information within the specified time limit or denying the request for information in bad faith and various others.

These acts and omissions by any Public Information Officer should be dealt seriously and the amount of fine imposed should be made more substantial in order to ensure strictness over the implementation of this Act.


The Right to Information (Amendment) Bill, 2019

The Right to Information (Amendment) Bill, 2019 which was introduced in the Parliament seeks to amend Sections 13, 16 and 27 of the Act but it should also contain provisions of enhancing the penal liability as well as providing protection of the RTI Activists along with certain other mechanism that provides more transparency in the work of Public Information Officers as well as the Central Information Commissioner or the Information Commissioners.

The RTI (Amendment) Bill, 2019 amends the provisions under Section 13 of the Act removes the provision of the Right to Information Act, 2005 and states that the central government will notify the term of the office for the Chief Information Commissioner (CIC) as well as the Information Commissioner (IC).

Also, the Amendment Bill aims to remove the provision under Section 27 of the Act which talks about deductions on salary of these officers. The Amendment Bill amends the provision under Section 16 of the Act by stating that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.

Conclusion

To conclude, it can be understood that the law relating to the Right to Information is a very important legislation in India’s path to a corruption-free, developed country but it surely has some grey areas as well as loopholes which can’t be eradicated by the amendments that the current Amendment Bill aims to provide. There is a need to include the law as well police authorities to make those who infringe these rights be punishable by courts of law and be prosecuted if they cause harm or hurt by any means to those seeking their right. Only then can we acknowledge this Act as a fully enforced one where people are independent to exercise their right freely in the world’s largest democracy being our country, India.

[1]Kumar P, Rai KB (2006) Right to know—hands on guide to the Right to Information Act. Vikas Publishing House Pvt Ltd, New Delhi p. 175, 176. [2]Basu R (2011) A rights based approach to good governance in India: linking theory with practice. [3] (1956) S. C. R 267 [4] 1978 AIR 597, 1978 SCR (2) 621 [5]1995 AIR 1236, 1995 SCC (2) 161 [6](2013) 1 SCC 212 [7]2014 Delhi High Court [8](2011) 8 SCC 497 [9]2018 Supreme Court [10]2018 CIC [11]SHARMA NIDHI (6 October 2016). "1.75 crores RTI applications filed since 2005: Study": The Economic Times

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