Right to Information Essay Example Pdf

“When freedom of expression is put to use by the mass media, it acquires an additional dimension and becomes freedom of information.”

[1] In the post modern world of technology information plays an important role. From the classified document leak by Julian Assange to the alleged snoop by the US government, information has started to become an powerful tool. So much powerful that it can single handedly topple most powerful democracies. Hence it is necessary to regulate such disposition of information. In India, in this regard, The Right to Information Act was enacted on 12th October, 2005. At the rudimentary stage of this legislature, high hopes were attached to it and it was often referred to as anti-corruption tool.

Unlike the other common law and non common law legal systems it took lesser time to incorporate and fully implement this right to information. But efficiency does not always bring in comprehensiveness, hence certain loop holes lingered through the Act. What is Right to Information? In modern democracies it is essential for the citizen to be informed about the affairs of the government and its socialist policies. For a healthy democratic system it is essential that the citizenry remains well informed and impregnated with the idea of government being “for the people, by the people and of the people”[2]. As said by Jeremy Bentham “Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government”[3]. Hence this right is recognised by various governments of the world. In India, this right is considered to be an offshoot of the “Freedom of Speech and Expression” imbibed in Article 19(1) (a) of the Indian Constitution. As Bhagwati, J. observed that “the concept of an open Government is the direct emanation from right to know which seems to be implicit in the right of freedom of speech and expression”[4]. Also the Supreme Court in multiple cases has recognised that freedom of Speech and Expression also includes right to receive and impart information

[5] though it needs to be construed with respect to public security[6]. It also applied this doctrine for the public good, making him more than an insignificant spare part, one such example being decriminalise the democratic system of election[7]. The primary reason of recognition of this right was the importance of transparency during governmental transactions and building a sort of fiduciary relationship between the three organs of the state and the people it governs. In the case of Reliance Petrochemical Ltd V. Indian Express Newspapers Bombay (P) Ltd.

[8] it was equated to Right to Life mentioned in Article 21 of the Constitution. Hence the stance of Supreme Court reflected the innate character of the Right to Information. It is necessary for the people to acquire information for proper functioning of the State as no democratic government can survive without an empowered citizenry[9]. Right to Information: Evolution In 1948, the United Nations enacted the Universal Declaration of Human Rights consisting of the basic rights needed for subsistence[10]. Further it was given a more specific form in the International Covenant for Civil and Political Rights, 1966 as it states “freedom of opinion and expression includes freedom to hold opinion without interference and to seek, and receive and impart information and ideas through any media regardless of frontiers”[11]. In India though the preamble, inter alia, secures its citizen the freedom of opinion and expression but this was mentioned explicitly nowhere which was often reprimanded by various jurists. Keeping in view of this, the demand for formulating the right to information gained momentum in 1990s. The Law Commission of India[12] along with other authorities further divulged the need for legislation dealing with access to information.

This resulted in the formulation of at the State level The Maharashtra Right to Information Act, 2002 and at the national level The Freedom of Information Act, 2002. The former was only applicable to Maharashtra and the latter legislation was toothless and lacked the vigour to weaponize information to counter corruption. Hence in this regard the National Advisory Council suggested certain changes relating to establishment of an appellate authority, penalising the failure to provide information and ensuring least restrictions on disclosure of information.

Therefore to implement these recommendations the Indian Parliament formulated the Right to Information Act, 2005(hereinafter ‘Act’).The aim of this act is to secure information under the control of public authorities and to promote accountability and transparency and control corruption[13] by constituting separate investigative body specific to this issue, unlike previous agencies i.e. CBI and CVC. Provisions of the Act The term ‘information’ is defined in 2(f) of the Act which includes documents, emails, opinion, circulars, models, samples etc stored both in electronic and non electronic form which can be accessed by any public authority. There have been conflicting instances between the right of citizen to have access to information and adverse consequences that may follow with divulgence of such information. In these situations often the latter prevailed over the former[14]. Unlike US[15], this act is only applicable to citizen and conveniently excludes the non-citizens[16]. This limits it scope and goes against the cosmopolitan nature of trade. Though freedom of speech and expression is limited to citizen but Right to information being a means to end but not an end itself is quite distinctive of it. The constitution provides certain rights to non-citizen and in meaningful protection of these; a limited Right to Information is required. Also various alien organisations have in past acquired information indirectly, contradicting the scope of 3. Further the procedure from obtaining the information is mentioned in 6 of the Act. This provision states that information can be procured through electronic or offline mode. It also suggests that it can be procured by writing in Hindi or English or any other official language to Public information Officer (PIO). A nominal fee is required to be paid (in case of above poverty line[17]) and personal information to the extent of contacting such person is to be given[18]. From the bare verbatim, it can be inferred that, it tries to include a large number of stakeholders.

The voluntary disclosure clause[19] obligating any Public Authority on suo motto bases to disclose certain vital information tends to produce and support in building a good rapport between the stakeholders. The term ‘public authority’ is mentioned in 2 (h) of the Act. It includes all the State authorities as well as its intermediaries, scope of which is still expanded by courts[20]. In case of dispute resolution, various National and State Information Commissions are established, the power of which are mentioned in Chapter V of the Act. This includes the power to enable a citizen seeking information rejected by the authorities or declare any condition put forth by such authorities as invalid, also the power to act as a civil court etc. Hence it can be said that these commissions enjoy wide powers when dealing with information procurement. But such commissions are not free from Government control since these are constituted by it and headed by the Chief Executive and other personnel of quasi- executive character[21]. For selection of the Chief Information Commissioner a committee of Prime Minister, Cabinet Minister and Opposition Party is to be formed[22]. Over representation of the ruling party may lead to arbitrary decision making as has been the recent appointment fiasco of CVC[23]. Hence it is indispensible to have separate appointment council free from encumbrance of conflict of interest. Practical aspect of the Act This Act has changed the working of public authority. It is a revolutionary legislature and various bona-fide information seekers have found solitude against the otherwise non-active or lackadaisical public authorities.

Now these authorities are more vigilant, active and cautious in wake of the penal provisions in the Act. In one case an RTI was filled against the passport authorities asking the reason for delay of the passport for more than one year, despite the fact all the documents and formalities were fulfilled[24]. Not satisfied by the reply, an appeal was filed and the appellant authority decreed in the favour of the appellant along with compensation, asking the authorities to dispose off the application and forming a commission to look into the process of application. Further it has led to uncovering of various skeletons in the closet[25], like the 2G scandal[26] or the Adarsh building scandal[27]. It has gained popularity among the masses[28] and is used as a tool against oppression. This path to pursue information has also resulted in murder of various RTI activists[29], reflecting the inability of the State authorities to protect them. But these powers have also been misused by people seeking unnecessary or irrelevant information, using the veil of RTI activists for furthering their personal vendetta and vengeance[30]. Since 4(2) states that a person requesting information need not furnish reasons for sorting such information, resulting in asking of absurd or uncalled for questions under the Act. In order to get relevance, these people have asked very embarrassing question serving no purpose[31], unhindered by the fact that answering such questions may lead to wasting of time[32], which can otherwise be channelized in replying legitimate queries.

The term ‘information’ is not exhaustive, since, ‘any material’ used in 2(f) is capable of being interpreted as being too vague. It contains more provisions relating to the form in which material is found and not the actual contents derived from such form. Hence is lightens the line between private and a public information. Further it deals with the public authorities only who find reference in the Act and therefore, if a private body has in possession vital information, such cannot be obtained without the interference of a public authority or a government instrumentality[33]. The Act defines what amounts to ‘right to information’ as to the information held by or under the control of any public authority and such information must be accessible to such authority. Hence it invariably depends on ability of the authority to have access to such information. Conclusion/Recommendations It can be said that a system of checks and balances is to be evolved to serve the true purpose of the Act. This should not merely be a tool in the hands of overenthusiastic RTI activists putting up irrelevant questions.

Further people should be encouraged and enlightened relating to the process of the filing a RTI application. The Central and the State Information Commission should not err in punishing the infringing authorities and protect the applicant from harassment by the authorities[34]. A system of initial screening should be put in place so that only the relevant applications are dealt with and Frivolous ones are rejected.

Though this system is prevalent at the National level, it must also be replicated at the State level. Also since the volume of applications is higher at the State Information Commission, it is imperative that its infrastructure is upgraded[35]. The time limit imposed for disposition of application is only applicable to PIO and not at the appellate stage leading to lacuna[36], defeating the very purpose of law. In case of appointment, unanimous rather than majority decision should be made mandatory or an expert can be made part of such a decision making process[37]. Though the Supreme Court has made it necessary for Commissions to have one judicial member[38], this has transformed them into tribunals and hence distanced information out of the purview of common man. At the applicability stage, both the SIC and CIC are independent of each other, hence it violates the doctrine of stare decisis[39]. Provisions should be made for realisation of penalty and enforcement of decisions of Commissions[40].Further there should be uniformity in the fee structure[41]. The voluntary disclosures is not complied with by the authorities resulting in pilling up applications in PIO offices[42].A separate act protecting Whistle blowers need to be enacted[43] like US[44] and UK[45]. The Act seems to focus on the procedural aspects[46], resulting in effective implementation rather than relying on a stagnant existence of various bodies which are expected to control the implementation of the Act. Its scope has been expanded to include multiple authorities like political parties[47], office of Chief Justice of India etc. It has evolved into an anti-thesis of corruption and colonial governance. Page 1 of 7

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[1] Indian Express Newspapers (Bombay) Pvt. Ltd. V. Union of India, (1985) 1 SCC 641.

[2] Abraham Lincoln in his Gettysburg Address, www.en.wikipedia.org./wili/Gettsburg.Adress. Accessed on 01 April, 2015.

[3] www.fipa.bc.ca/libray/public_Education/quotes,htm. Accessed on 01 April, 2015.

[4] State of U.P V. Raj Narian (1975) 4 SCC 428.

[5] Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

[6] Mathew J. in Supra Nt. 2.

[7] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 and also in People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399.

[8] (1988) 4 SCC 592.

[9] S.P Gupta V. Union of India, 1981 Supp. SCC 87. [10] Also in Article 13 of American Convention on Human Rights and Article 10 of European Convention on Human Rights. [11] Article 19 of this Covenant [12] In its 179th Report. [13] As stated in the Preamble on the Act. [14] As 2(f) is subject to 8 of the Act, stating the grounds of refusal to disclose information.

Also in S.R. Goyal vs. PIO, Services Department, Delhi (Appeal No.CIC/WB/A/20060523, dated 26/3/2007), [15] Freedom of Information Act. [16] 3 of the Act [17] Shama Parveen vs. National Human Rights Commission (Appeal No.CIC/OK/2006/00717, dated 18/4/2007) [18] Madhu Bhaduri vs. Director, DDA (Complaint No. CIC/C/1/2006, dated 16/1/06) [19] 4 of the Act [20] Indian Olympic Association v. Veeresh Malik, W.P. (C)No. 6129/2007 (May 14,2010). [21] Alarm bells rings for RTI”, The Hindu, Hubli [ED.], 18 Oct 2012.p.9. [22] 12 of the Act [23] “Supreme Court strikes down Thomas appointment as CVC; The Hindu, 3rd March,2011. [24] Ajay Kumar Jain v. Regl. Passport office, No, CIC/OK/ A/2008/00001, dated 31-7-2008. [25] www.ibnlive.in.com/news/who-killed-rti-activist…masood/176421-3html. Accessed on 01 April, 2015. [26] RTI of Subramanium Swami led to arrest of A.Raja, at www.janataparty.org. Accessed on 01 April, 2015. [27] RTI of Santosh Dundikar led to uncovering of this scam, at www.ritinda.org. Accessed on 01 April, 2015. [28] From 249 appeals and complaints pending before the CIC in the month of April 2006, now the number has gone up to 2700 in the month of August 2010, available at www.cic.gov.in.com.

Accessed on 01 April, 2015. [29]Last year more than 10 RTI activists were murdered, available at Vidya Subrahmaniam, “RTI information sought by whistle-blowers, since killed, to be made Public”, The Hindu, Hubli [Ed.], 5 October 2011.p.14. [30] No misuse of the provisions of the Act to settle personal scores in Sabu Kuriakose v. N.C.E.R.T. (Decision No.CIC/OK/A/2006/00485, dated 21/2/2007) [31] Dr. Ajay Kumar Jain , The Right to Information Act, 2005- Use & Misuse, SCC Online, (2011) PL Feb. S-35, Pg. S-36. [32] R.K Chauhan v. North Delhi Municipal Corp., Delhi, CIC/DS/A/2013/001038-YA. [33] K. Sangeetha; A Critique on the Law of Information, SCC Online, (2006) LW (JS) 46. [34] Though circulars issued in this regard needs to be implemented, No. 4/9/2008- IR, Government of India, Ministry of Personnel, Public Grievances and Pensions, New Delhi, dated 24-6-2008, at www.rti-gov.in. [35] PRIA Report titled “Tracking Rights to Information in Eight States” showed the meagre amount spent by state, available on www.pria.org/project/governance.projects.com Accessed on 30th March, 2015, also in Paramveer Singh v. Panjab University (CIC/OK/A/2006/00016,dated 15/6/06), [36] From Opening Balance at 486 on April, 2006 to Closing Balance at 20232 on August, 2011, can be accessed on www.cic.gov.in.com . Also at “RTI: Division Benches Proposed”, The Hindu, Hubli[Ed.], 20 July 2011.p.3. [37] Alarm bells rings for RTI”, The Hindu, Hubli [ED.], 18 Oct 2012.p.9. [38] A Recent Supreme Court Ruling Could Kill RTI, Forbes India, 3rd Oct, 2012. [39] Important for single hierarchy of judiciary. [40] Just about 20 percent of total penalties imposed by the Commission are recovered, Subhash Agarawal, “Achivements of RTI Act”, www.cic.gov,in ,accessed on 30th March, 2015. [41] Dr. Jeet Singh Mann; Strengthening the mission of Right to Information in India, (2011) 5 SCC (J), at J-28. [42] PRIA Report titled “Tracking Rights to Information in Eight States”, on www.pria.org/project/governance.projects.com Accessed on 30th March, 2015. [43] RTI activist Arun Roy has strongly stressed that comprehensive whistle blower’s protection law is needed, at “Comprehensive Whistle blowers protection law needed: Roy” The Hindu, Hubli [Ed.], 16 Oct 2011.p.3. [44] Whistle Blowers Protection Act, 1989 [45] UK Public Interest Disclosure Act, 1998 [46] Supra Nt. [47] Subhash Chandra Aggarwal v. Indian National Congress, CIC/SM/C/2011/000838, File No. CIC/SM/C/2011/001386 and File No.CIC/SM/C/2011/000838 (June 3, 2013), subsequently government intends to amend the Act to exclude political parties, from its purview, Bill No. 112 of 2013 (Lok Sabha).

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