This paper gives the analyses of The Right to Information Act 2005 as well as the Right to Information as a Right. Why is it considered a fundamental right, what are the reasons behind its evolution, its history, etc. Also, the concept of proactive disclosure and the right to know has been discussed. Further, the drawbacks and suggestions are given by the author as a concluding note.
Right to Information is one basic right that every person must possess. For moving from a government to a good government there should be a trustworthy relationship between the government and the public which is ensured by transparency and accountability. Without the participation of citizens, democracy is ineffective and for active participation, people should have access to information. Thus, the right to information plays a major role in our country.
After a long battle, India has moved from the secrecy regime to an open government that is trying to be truly democratic in sense. But it is a herculean task to change people and make them aware of their rights by implementing one law or piece of legislation. Thus, it’s a long journey to completely change India as well as Indians and would take a lot of time.
“Democracy requires an educated and aware citizenry and transparency of data which are fundamental to its working and also to contain corruption and to hold Governments and their functionaries responsible to those governed…”
Right to Information Act 2005 has been sweeping legislation in the history of independent India. Right to information aims at promoting good and open governance as well as supporting democracy. The theme of good governance is accountability, transparency, and openness amongst which transparency has led to the emergence of the right to information in India as well as in other countries. In Dagg v. Canada it was stated that “The democracy is supported by the access to information as it influences and affects the government.”
Also, it has developed across the world depending upon the circumstances, some adopted it to eliminate corruption as well as secrecy whereas others found Right to Information as an effective tool to make their government responsive to people by adopting the system of transparency.
The concept of legal right emerged from natural law theory. Considering natural law as the higher law, the modern codified constitution has evolved. The fundamental rights and natural rights are the same and can be used interchangeably.
In a democratic country like India, the right to information forms an integral part of the fundamental right. Every citizen should have the right to know and even the option of participating actively in government activities, having information about the bureaucrats, the elected representative, and overall, about the administration, operations, and decisions about the government. Thus, the RTI enables one to get all the information from the public authorities except under section 8 of the Act which deals with the exemption of disclosure of information.
HISTORICAL PERSPECTIVE OF RIGHT TO INFORMATION
The word information has been derived from the Latin term ‘forma’ which means to form the pattern or giving shape to something. In India, the implementation of the Official Secrets Act 1923, gave way to government officials to hide information and promote secrecy. The bureaucrats could officially deny people from giving information and sometimes used physical harm as well. But, when the countries across the world started to adopt the culture of open government, India also joined the league.
During 1975 in the case of State Of U.P v. Raj Narain & Ors.the Supreme Court held that for the first time that people of India have the right to know which emanates from Article 19(1)(a) Freedom of Speech and Expression and Article 21, fundamental right to life and personal liberty given in the Constitution of India. Also, the court can order for disclosure of records even if permission is not given and not specified in Evidence Act as public interest overpowers secrecy.
Also, the reason behind the RTI movement’s fast advancement was the campaign of Mazdoor Kisan Shakti Sanghatan (MKSS) wherein the villagers wanted to know about the official information related to drought relief. The National Campaign on People’s Right to Information (NCPRI) and The Commonwealth Human Rights Initiative (CHRI) Campaign were further launched to highlight or establish a link between the right to information and other rights. By the efforts of NCPRI, a “Freedom of Information Bill” was introduced in the parliament in the year 2002, and further after amendments the “Right to Information Act 2005” came into existence on 12th October 2005.
WHY FUNDAMENTAL RIGHT?
Before the enactment of the act or declaring the right to information, a fundamental right all the decisions were taken by the judges as per their discretion and judge-made laws prevailed. The nature of problems our county faced till date varied from being very complicated like that of administration information to very simple and easy issues faced by a common man, like seeking basic information about the authority responsible for a task in a locality. The cases listed below would not have occurred if the Act would have implemented beforehand only.
In the case of Indian Express Newspapers (Bombay) Private Ltd. & Ors v. Union of India. the court interpreted Article 19(1) and said that people have the right to express, which means that they have the right to form their belief and communicate it freely to others. The fundamental principle is people’s right to know.
In a case like S.P. Gupta v. Union of India the court said that it is the right of the people of India to know about every act of public functionaries and every transaction of government done in a public manner. Also, it is the responsibility of government officials to justify their actions and clear the confusions of public
Another is the case of Peoples Union for Civil Liberties v. Union of India the court observed that the right of information is related to or is a facet of freedom of speech and expression given under Article 19(1) of the constitution and the voters have the fundamental right to know about the relevant qualifications of the candidates. Right to Information, thus, indisputably is Fundamental Right.
By enlisting these few landmark cases what is proved is that there was no written or codified law about the right to information being a fundamental right. One can go to the office and ask for information regarding administration or any government information but with what authority? The bureaucrats can throw people out of their office giving the reason that it is not your fundamental right.
So over a while with various issues and cases coming up there was a need of declaring the right to information as a fundamental right and through the Act now one can question the PIO and ask for the information needed. So, the Act gave the statutory framework to the right which was judicially recognized and laid down the steps and procedure of how to access information, where to file the RTI, how many days will one have to wait, what all information can be accessed, etc.
“It just takes 10 Rs to right a wrong. The biggest achievement of RTI is that it tells the most powerful people that they are not beyond the reach of a common man.”
Thus, the implementation of the RTI Act not only strengthened the position of the right to information but also helped the government move a step closer to good governance.
As the word suggests proactive means voluntarily creating a situation rather than reacting to it after the event has occurred or happened. Disclosure means revealing or exposing something. Thus, proactive disclosure is revealing information before it is requested and it is also called stealing thunder. There is reactive disclosure also which means the information is released after the request has been made which is the case when any person files RTI.
The Right to Information Act also promotes active disclosure of information and imposes a duty on the government bodies to publish information to the general public even before one has asked for it. There have been major driving factors of proactive disclosure throughout history which are:
- The need to inform the public about the laws and decisions, and their right to know about the duties and obligations,
- Holding government accountable for its actions,
- The demand for information for active participation in decision making.
This proactive disclosure would help in gaining the trust and confidence of the public as the officials are voluntarily displaying the information and the transparency, commitment, and openness would increase. Also, it would save a lot of time for the government as the number of requests will decrease and the administrative procedure need not be followed. The time, money, and effort of the general public will also be reduced.
The Right to Information Act comprehensively focuses on the implementation of the proactive disclosure clause under section 4. It has specified clearly about what information needs to be disclosed and within which time frame. The information should be “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, or any other means, including inspection of offices of any public authority. This is an important provision because it establishes that it is not enough to merely collect information and store it in a cupboard at the head office!
According to me, instead of expanding the scope of the Act and deciding which sectors should come under this legislation the government should focus on the proper implementation of every section of the Act and some amendments should be made. The focus on proactive disclosure stated in section 4 of the act gives the people the right to suo moto demand government documents. There is no need for any other provision to be added if the section is properly implemented. The main constraint in the Act and its implementation is the gap between the awareness and the lack of training of the officials in poor record management.
Also, above the “Right to Information” now, “Right to know” should come into existence. Both are used interchangeably but the thin line of difference lies in that Right to Know would encourage, motivate, and embolden people to ask questions and use their right to Information, act, and then react to it. It would give them the basic right to know what is going on.
For example, if one has undertaken a tribal welfare project and as per the guidelines of the Act has updated the information voluntarily on some official website it would be of no use as the people have no access to it. Thus, the basic details of the name of the contractor, the period, and the work are undertaken should be well informed to the people ad it is their right to know.
Even after so many years of independence if a person from a village area or even a common man enters government office, he is clueless and would struggle hard to contact the person he wants to talk to. Unless the right to information is implemented properly and the right to know is acknowledged the democracy is not going the right way.
A democratic country is known for its debate, arguments, and discussion. Freedom of speech and expression, the fundamental right to life and liberty, and other such rights are the essence of our country. Free flow of information from the government officials to the general public would only help the people to take decisions wisely and make an informed choice.
If the people are not aware of what is going on in the country and how the government is functioning, they will not be able to make the government accountable for any of its acts and thus with no participation, there will be no point of democracy. A good government does not only mean the proper functioning of the executive branch but also the judiciary. The elements of openness, transparency should be there so that the confidence of people is maintained.