The Government of India had appointed a Working Group on Right to Information and Promotion of Open and Transparent Government under the Chairmanship of Shri H.D. Shourie which was asked to examine the feasibility and need for either full-fledged Right to Information Act or its introduction in a phased manner to meet the needs of an open and responsive Government. This group was also required to examine the framework of rules with reference to the Civil Services (Conduct) Rules and Manual of Office Procedure. This Working Group submitted its report in May 1997.
In the Chief Ministers Conference on ‘Effective and Responsive Government’ held on 24th May 1997, the need to enact a law on the Right to Information was recognized unanimously. This conference was primarily to discuss the measures to be taken to ensure a more effective and responsive government.
The Constitution of India confers exclusive powers to its citizens through Fundamental Rights and enlists provisions for the protection thereof, of these rights. A very important right is the Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. It never assumed so much importance until the Law Commission of India highlighted the Right to Speech and Expression in their 179th Report in the year 2001. In 2002, the Freedom of Information Act was formed. After the Act of 2002 came into force, there was a definite attempt to exercise such freedom but it did not operate fully and satisfactorily. The Civil Services (Conduct) Rules and the Manual of the Office Procedure as well as the Official Secrets Act, 1923 and also the mindset of the authorities were implied impediments to the full, complete and purposeful achievement of the object of enacting the Act of 2002. Since, with the passage of time, it was felt that the Act of 2002 was neither sufficient in fulfilling the aspirations of the citizens of India nor in making the right to freedom of information more progressive, participatory and meaningful, significant changes to the existing law were proposed. The National Advisory Council suggested certain important changes be incorporated in the said Act of 2002 to ensure smoother and greater
access to information. After examining the suggestions of the Council and the public, the Government decided that the Act of 2002 should be replaced and, in fact, an attempt was made to enact another law for providing an effective framework for effectuating the right to information recognized under the Article 19 of the Constitution. The Right to Information Bill
was introduced in terms of its statements of objects and reasons to ensure greater and more effective access to information. The Act of 2002 needed to be made even more progressive, participatory and meaningful. The important changes proposed to be incorporated therein included establishment of appellate machinery with investigative powers to review the decision of the Public Information Officer, providing penal provisions in the event of failure to provide information as per law, etc. This Bill was passed by both the Houses of the Parliament and upon receiving the assent of the President on 15 June 2005, it came on the statute book as the Right to Information Act, 2005.
The Act requires every Public Authority to maintain its records and data in a well catalogued and indexed manner so that they are easily accessible by the public. Further, to facilitate the transmittal of data to be given to the appellant, the Act also provides for departments to ensure that all records are kept in a computerized form. Every Department is required to appoint a Central Public Intelligence Officer or the State Public Intelligence Officer, as the case may be, to look into the requirements of the appellants. While the stipulated period for the provision of data is fixed at a maximum time limit of 1 month, in case there is a danger to life or saving of life is involved, the period shrinks to 48 hours. There is a minimum fee required for application of an RTI, which is Rs. 10, as per the RTI Rules 2012. However, the fee increases as per the requirements of the appellant. There is no fee payable in case the appellant is below the poverty line case.
In case the request is rejected, then it’s the duty of the Central Public Intelligence Officer to state the reasons for such rejection. He must also specify the particulars of authority to approach in case of an appeal, and the period in which such an appeal can be made. However, in matters where the information sought for adversely prejudices the integrity, sovereignty, and security of India, or strategically or scientifically detrimental to the interests of India, relations of India with foreign states, or can lead to incitement of an offence, it is not required to give the reasons for rejection of the request for information. Also in cases where the information is such that its disclosure may constitute contempt of court or is expressly forbidden to be published by a court of law, the information may not be provided to the appellant. Other examples where such refusal may take place is the disclosure of Intellectual Property, Trade Secrets, Commercial Confidence or the like. Similarly, information such as which can cause an endangerment to the life of a third person, or impede the process of investigation of offenders may also not be provided to the appellant. The Right to Information, like any other right, is not unlimited or unrestricted. It is subject to statutory and constitutional limitations. Section 3 of the Act of 2005 spells out that the right to information is subject to the provisions of the Act. Other provisions require that information must be held by or under the control of public authority besides providing for specific exemptions and the fields to which the provisions of the Act do not apply. The doctrine of severability finds a place in the statute in the shape of Section 10 of the Act of 2005.
Justice V.R. Krishna, in his book “Freedom of Information”, expressed in his view, “The right to information is a right incidental to the constitutionally guaranteed right to freedom of speech and expression. The international movement to include it in the legal system gained prominence in 1946 with the General Assembly of the United Nations declaring the freedom of information to be a fundamental human right and a touchstone for all other liberties. It culminated in the United Nations Conference on Freedom of Information held in Geneva in 1948.”
Article 19 of the Universal Declaration of Human Rights says: “Everyone has the right to freedom of information and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
India was a member of the Commission on Human Rights appointed by the Economic and Social Council of the United Nations which drafted the 1948 Declaration. As such it is eminently fit and proper if the right to information was included in the rights enumerated under Article 19 of our Constitution. Article 55 of the U.N. Charter stipulates that the United Nations ‘shall promote respect for, and observance of, human rights and fundamental freedoms and according to Article 56 “all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”.
The Hon’ble Supreme Court of India observed in the case of Secretary, Ministry of Information and Broadcasting, Government of India and Ors. v. Cricket Association of Bengal and Anr. (1995) 2 SCC 161, “The democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce when the medium of information is monopolized either by a partisan central authority or by private individuals or oligarchy organizations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 1/2 per cent of the population has an access to the print media which is not subject to pre-censorship.”
The Court further went on to say that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In support of this view, the Court referred to two decisions of the U.S. Supreme Court viz., (i) Ex parte Jackson [96 US 727] and (ii) Lovell v. City of Griffin [303 US 444] and quoted with approval the following passage therefrom:” Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation, the publication would be of little value”. Section 9 (1-A) of the impugned Act authorized the Provincial Government, “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate entry into or the circulation, sale or distribution in the Province of Madras or any part thereof or any document or class of documents”. The question that the Court had to answer was whether the impugned Act insofar as it contained the aforesaid provision was a law relating to a matter which undermined the security of or tended to overthrow the State. The Court held that “public order” is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. Regarding publishing of advertisements, the Court was very precise in saying that the advertisements which showcased the efficacy, value and importance of particular drugs in the treatment of certain diseases don’t fall under the purview of this Act. Similarly, the advertisements which mislead people about certain products cannot be allowed to propagate under this Act. This Act is primarily meant for making information easily accessible to general masses.
In Sakal Papers (P) Ltd. and Ors. v. The Union of India ([1962]3SCR842) what fell for consideration was the Newspaper (Price and Page) Act, 1956 which empowered the Central Government to regulate the prices of newspapers in relation to their pages and size and also to regulate the allocation of space for advertising matters and the Central Government order made under the said Act, viz, the Daily Newspaper (Price and Page) Order, 1960 which fixed the maximum number of pages that might be published by the newspaper according to the price charged and prescribing the nature of supplements that could be issued. The Court held that the Act and the Order were void being violative of Article 19(1)(a) of the Constitution. They were also not saved by Article 19(2). The Court asserted that the freedom of speech and expression guaranteed by Article 19(1)(a) included the freedom of the press. For propagating his ideas a citizen had the right to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the volume of circulation. Although the impugned Act and the Order placed restraints on the volume of circulation, their very object was directed against circulation. Thus both interfered with the freedom of speech and expression. The freedom of expression has four broad social purposes to serve; (i) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who
believe in the participation of people in the administration.
The delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the Courts. In deciding the reasonableness of restrictions imposed on any fundamental right the Court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the disproportion of the imposition and the prevailing conditions including the social values whose needs are sought to be satisfied by means of the restrictions. The Hon’ble Supreme Court has a very precise interpretation of the Right to Information. In the case of Namit Sharma V Union of India, [(2013)1SCC745], the court said that “In light of the law guaranteeing the right to information, the citizens have the fundamental right to know what the Government is doing in its name. Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political growth. It is a safety valve. People are more ready to accept the decisions that go against them if they can in principle seem to influence them. In a way, it checks abuse of power by the public officials. In modern times, where there has been the globalization of trade and industry, the scientific growth in the communication system and faster commuting has turned the world into a very well-knit community. The view projected, with some emphasis, is that the imparting of information qua the working of the government on the one band and its decision affecting the domestic and international trade and other activities on the other, impose an obligation upon the authorities to disclose information.” The Right to Information was harnessed as a tool for promoting development; strengthening the democratic governance and effective delivery of socio-economic services. Acquisition of information and knowledge and its application have an intense and pervasive impact on the process of making an informed decision, resulting in overall productivity gains. It is also said that information and knowledge are critical for realising all human aspirations such as improvement in the quality of life. Sharing of information, for instance, about the new techniques of farming, health care facilities, hazards of environmental degradation, opportunities for learning and earning, legal remedies for combating gender bias etc., have over time, made significant contributions to the well being of poor people. It is also felt that this right and the laws relating thereto empower every citizen to take charge of his life and make proper choices on the basis of freely available information for effective participation in economic and political activities. Dr J.N. Barowalia in ‘Commentary on the Right to Information Act’ (2006) has noted that the
Report of the National Commission for Review of Working of Constitution under the Chairmanship of Justice M.N. Venkatachaliah, as he then was, recognized the right to information wherein it is provided that major assumption behind a new style of governance is the citizen’s access to information. Much of the common man’s distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes. He remains ignorant and unaware of the process which virtually affects his interest. Government procedures and Regulations shrouded in the veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning the officers handling their cases because of the latter’s snobbish attitude. Right to Information should be guaranteed and needs to be given real substance. In this regard, the Government must assume a major responsibility and mobilize skills to ensure the flow of information to citizens. The traditional insistence on secrecy should be discarded.
Right to information laws around the world: (sourced from Wikipedia)
Australia: The Freedom of Information Act, 1982 confers the members of the public, certain rights of access to Govt. information. These include the right to access documents about the operation of government departments and documents that are in the possession of government Ministers or agencies (Freedom of Information Act 1982). Certain documents are exempt from this, including (but not limited to) documents detailing Cabinet deliberations or decisions; documents disclosing trade secrets; or documents that could damage national security, defence, or international relations, or any document that could damage Commonwealth-State relations. Bosnia and Herzegovina: Bosnia and Herzegovina were one of the first countries in the Balkans to adopt the Freedom of Access to Information Act, at the State level in 2000, and then in 2001 in both of its entities, namely the Federation of Bosnia and Herzegovina and the Republika Srpska. However, according to some experts, the law requires changes to address a series of shortcomings that have been identified over the years.
Denmark: Access to Public Administration Files Act of 1985 is a Danish act passed by the Folketing concerning public access to governmental records. The Act came into force in 1987 and repealed the Public Records Act of 1970. The new version of the Act came into force on 1 January 2014. Denmark is considered to be a historic pioneer in the field of FOI along with Sweden, Finland and Norway. There is no constitutional basis in the Constitution of Denmark for the right of the public to information. Denmark scores 64 points in Global Right to Information Rating.
Europe: The recognition of the right to access to public information under Article 10 (including “freedom to receive information”) of the European Convention on Human Rights was one of the subjects in Guerra v. Italy case before the European Court of Human Rights in 1998. The majority considered Article 10 was not applicable to the complaint. However, the court found that in the specific case, which included living near a high-risk factory, not providing information was in violation of Article 8 (respect to private and family life). Besides, two judges expressed a dissent on the applicability of Article 10, and further six judges reserved a possibility, that in other circumstances, the right to access to information could be protected by Article 10.
France: In France, the accountability of public servants is a constitutional right, according to the Declaration of the Rights of Man and of the Citizen.The implementing legislation is the Loi n°78-753 du 17 juillet 1978 portant diverses mesures d’amélioration des relations entre l’administration et le public et diverses dispositions d’ordre administratif, social et fiscal (Act No. 78-753 of 17 July 1978). On various measures for improved relations between the Civil Service and the public and on various arrangements of administrative, social and fiscal nature). It sets as a general rule that citizens can demand a copy of any administrative document (in the paper, digitised or other forms), and establishes the Commission d’Accès aux Documents Administratifs, an independent administrative authority, to oversee the process.
Germany: In Germany, the federal government passed a freedom of information law on September 5, 2005; it was last updated on August 7, 2013. The law grants each person an unconditional right to access official federal information. No legal, commercial or any other kind of justification is necessary. Thirteen of the sixteen Bundesländer—Baden Württemberg, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Mecklenburg-Vorpommern, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland, Sachsen Anhalt, Schleswig- Holstein and Thüringen—have approved individual Freedom of Information laws.
Hong Kong: In Hong Kong, there are no laws specifically enacted to guarantee freedom of information. Since March 1995, the Government of Hong Kong has promulgated a “Code on Access to Information” to serve a similar purpose. This code, like other internal regulations of the Government, was not legislated by the Legislative Council and has a minimal legal status. It requires government agencies listed in its appendix to appoint Access to Information Officers to answer citizens’ requests for governmental records. A fee may be charged prior to the release of information. The code does not require the government to archive information.
Japan: In Japan, the “Law Concerning Access to Information Held by Administrative Organs” was promulgated in 1999. The law was enforced in 2001. Small town governments, rather than the federal government, were the first to take measures to enact freedom of information as the national government was “not…as eager as local governments to deal with freedom of information legislation”.
Norway: The current freedom of information legislation was enacted on May 19. 2006, and superseded the previous law of 1970 by January 1, 2009. Article 100 of the Constitution gives access to public documents. The basic principle of the law is everyone has the right to access to State and municipal documents and to be present at sittings of courts and elected assemblies.
South Africa: Section 32 of the Constitution of South Africa guarantees “the right of access to any information held by the state, and any information that is held by another person and that is required for the exercise or protection of any rights.” This right is implemented through the Promotion of Access to Information Act, which was enacted on 2 February 2000. The right of access to privately held information is an interesting feature, as most freedom of information laws only cover governmental bodies.
CONCLUSION:
The right to information has emerged from being a non-actionable right to an actionable right. Different countries in different parts of the world have, over a period of time, enacted laws protecting citizens right to access Government Information. It is an essential part of today’s Governance, that, the tax paying public is allowed to access information when needed.
