ABSTRACT
A democratic government attaches great importance to the freedom of its citizens. Hence the two rights namely Right to Information and the Right to Know plays an imminent role in shaping a democratic country like India. These rights are the key to strengthening participatory democracy and it ensures more people-centred development as it ensures involvement of people through the sharing of the information. There needs to be a limit for secrecy and every information that gains public importance needs to be known to the people of India as the power of sovereignty rests with the people themselves. The Government function should be with respect to the principle that Government is of the people, by the people and for the people. Therefore, Right to Information and Right to Know are such rights which ensures transparency and accountability in a successful democratic nation. Hence through my research paper, one can understand how these rights gain prominence and their importance in democratic countries especially India.
KEYWORDS– Right, Information, Know, Privacy, Constitutional right, Fundamental Right
INTRODUCTION
Right to Know and Right to Information are like two sides of the same coin in the development of democracy. It is declared that the Indian Constitution has been given by the people to themselves, thereby affirming the republican character of the polity and the sovereignty of the people. Since, in a democracy, people are given the right to elect their representatives, it is the right that every citizen should have, that is the Right to Know or the Right to Information about the proper functioning of the authority and how they are governing or serving its citizens. The Supreme Court also made it clear through its various judicial pronouncements. Moreover, it is important to understand the significance of right to information in the changing scenario, and be well versed with the important provisions of law as well as to know the process regarding acquiring information from the public authorities as a citizen of India. Also, the importance of recognising such a right ie. Right to information for the people across the globe.
OBJECTIVE
- To create awareness about the rights available to the citizens
- To open new vistas for further legal research
- To compare and analyse Right to information and Right to Know
RESEARCH METHODOLOGY
The research method adopted was the qualitative method through data analysis. The secondary data have also been collected which included the books, journals, Articles, magazines, thesis on the subject and so on. The information was cross checked with primary sources and only authoritative secondary sources information has been taken for analysis and research.
REVIEW OF LITERATURE
INTERNATIONAL PERSPECTIVE ON RIGHT TO INFORMATION
The Right to Information has gained its prominence in various international instruments. Pursuit to the Universal Declaration of Human Rights (UDHR), “everyone has the right to freedom of opinion 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[1].The International Covenant on Civil and Political Rights (ICCPR) have also recognised Right to Information through Article 19 which clearly states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas of all kind, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”[2]. Accordingly, the European Convention on Human Rights also incorporated similar provisions through Clause 1 of Article 10.
In follow up, in the recent years, different countries have adopted and recognised the Right to Information through their own legislations. The first amendment to USA Constitution provides for the freedom of speech and expression. Also, it has adopted Freedom of Information Reforms Act in the year of 1986.Sweden has recognised the Right to know and have adopted to Sweden Constitution in 1949 which help the citizens to have access to all the documents kept by the state and its authoritative agencies. From the year 1982, Australia has adopted Freedom of Information Act and gave its citizens the access to all their federal documents. Further in the coming days there are number of countries especially commonwealth countries which have adopted these rights to their rule of the land to the people and the citizens in a country.
RIGHT TO KNOW IN INDIA
The constitutional perspective of Right to Know can be seen through Article 19(2), Article 21 as well as Right to Information Act 2005.Through the case of S P Gupta v. President of India[3] The apex court held that ‘the Right to Know’, to receive and impart information has been recognised within the right to freedom of speech and expression. It is pertinent to note that the fundamental right under Article 19 clause (2) has certain limits which state can be imposed as reasonable restrictions. It enables the legislatures to impose by law and not by any executive action certain reasonable restrictions on the freedom of speech and expression under various heads. Some of the permissible restrictions include sovereignty and integrity of India, security of the state, Public order, Decency or morality, Friendly relation with foreign states, contempt of court, Defamation as well as incitement to an offence. These reasonable restrictions under these heads can only be imposed by a duly enacted law and not by the executive action[4].
The landmark case of R P Limited v. Indian Express Newspapers[5] The Supreme Court read into Article 21 the Right to Know. Through the developing global scenario the expression of liberty has expanded meaning as it cannot be narrowed and restricted to mere absence of bodily restraint. It includes the right to hold a particular opinion for which it becomes necessary to receive information. Moreover, the Article 21 of the Indian Constitution (hereinafter referred as constitution) confers the persons a right to know which includes a right to receive information.
RIGHT TO INFORMATION
History of Right to Information in India
The right to information movement has spread drastically in India especially in Rajasthan from the part of National Campaign for People’s Right to Information which was formed in Late 1990s.As a result of these campaigns not only the Rajasthan government but also various panchayats passed the law on right to information. It was very effective and operative in different parts of India. The first major step in the history in the field of right to Information is the legislation named Press Council of India in 1996 which aimed at gathering information to the citizens from the public authorities. The public authorities included all the bodies which function in the interest of the public. It was a broader definition which not only included State within the meaning of the public authority. This legislation made it clear that the information which cannot be denied to the parliament or legislatures of the states cannot be denied from its citizens. In the year of 1997 several conferences have been conducted between centre and the state and in consequence to it the centre agreed to take immediate steps for the formulation of Freedom of information legislations. Following which state of Goa and Tamil Nadu passed the legislation for freedom of information and from the part of the centre, they appointed working group to draft and rework on the freedom of information Bill 2000.Nearly seventy countries around the world have now adopted comprehensive freedom of Information Acts to facilitate access to records held by government bodies and another fifty have pending efforts. In India, our Government have successful in enacting Right to Information (hereinafter referred as RTI) Act in 2005 which came to force with effect from October 12th of 2005.
Constitutional aspects of right to information in Indian legal system
The Constitution has recognised Right to Information through various Articles as I have abovementioned. Article 19(1)(a) is one of the most important provisions which can be seen as the backbone to these developments to Right to Information. Through the landmark case of Benett Colemon and Co. v. Union of India[6], the Right to Information was held to be included within the right to freedom of speech and expression guaranteed under Article 19(1)(a). The peoples participation is must from even a village level. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression which includes the right to receive and collect information[7].This can also ensure the people to better participate in democratic set up as well as follow the Fundamental duties that are enumerated under Article 51A of the constitution of India.
Assert Right to Information under RTI Act 2005
Any citizen of India may request to gather information from a public authority which is required to reply expeditiously or within thirty days. Citizens have a right to request any information (as defined), take copies of documents, inspect the documents, works and records, take certified samples of materials of work and obtain information in various forms like printouts, tapes, or any other electronic mode.
The RTI Act relaxes the Official Secrets Act,1889 and various other special laws that restricted information disclosure in India. In other words, the Act explicitly overrides the Official Secrets Act and other laws to the extent of any inconsistency. Generally, any applicant can obtain information within thirty days from the request and in the cases if the matter relates to life or liberty of a person, the information can be obtained within forty-eight hours from the time of request.
The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that citizens need minimum recourse to request for information formally. Through the historic decision on Central Public Information officers, Supreme Court v. Subash Chandra Agarwal[8] the apex court finally held that the office of Chief Justice of India is a public authority and therefore comes under the ambit of Right to Information Act 2005 on the ground of public interest.
The Act enumerates the types of information which are exempted from the purview of disclosure. However, that exempted information can be disclosed if public interest in disclosure overweighs the harm to the protected interest. Also, the exempted information would cease to be exempted if twenty years have elapsed after occurrence of the incident to which the information relates.
The penalty for refusal to receive an application for information or for not providing the information is 250 rupees per day but the total amount of the penalty should not exceed twenty thousand rupees. If an applicant is not supplied information within the prescribed time of thirty days or forty-eight hours as the case may be, or is not satisfied of the information furnished to him, then the applicant may prefer an appeal to the first appellate authority who is an officer senior in rank to the Public Information Officer (PIO). If still not satisfied the applicant may prefer a second appeal with the central information Commission or state information commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.
Right to information is not absolute right
As no rights can be absolute rights which may bring chaos to the society. As the saying Power corrupts, absolute power corrupts absolutely. Section 8 of the Right to Information Act states the exemptions from the disclosure of certain information. Where the state does not have any obligation to give any citizens about the information which includes-
- Information which prejudicially affects the sovereignty and integrity of India
- Information which has been expressly forbidden to be published by any court of law
- Disclosure of information which cause a breach of privilege of parliament or the state legislature
- Information which may impede the process of investigation or apprehension or prosecution of offenders.
- Information received in confidence from foreign government.
- Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.
- Information available to a person in his fiduciary relationship.
- Information which relates to personal information the disclosure of which has no relationship to any public interest or which would cause unwarranted invasion of the privacy of the individual.
Through the famous case of State of Rajasthan v. Raj Narain[9] The court observed that in a Government of responsibility like ours where the agents of the public must be responsible for their conduct, there can only be few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearings. Therefore Right to Information is not a mere statutory right created by the Right to Information Act. It is essentially a Fundamental Right that is guaranteed through the Indian Constitution for allowing transparency and autonomy, and access to information in public authorities
Soli Sorabjee stressing on the need of Right to Information aim at bringing transparency in administration and public life, says, “Lack of transparency was one of the main causes for all pervading corruption and Right to Information would lead to openness, accountability and integrity”[10]. Therefore, Right to Information becomes the need of the hour for curtailing the arbitrary exercises of power, corruption and through which the government functionaries could be made efficient through the policies of transparency and accountability.
Inter play between Right to Know or Right to Information with Right to Privacy
The Constitution of India does not expressly recognise the Right to Privacy. But the concept of Right to privacy has been involved from several judicial pronouncements. The first significant case among them include Kharak Singh v. State of Uttar Pradesh[11] The apex court has observed for the first time that Right to Privacy in Article 21 is implicit and held that Privacy was an integral part of Right to life envisaged under Article 21. The Right to freedom of speech and expression which is a fundamental right under Article 19 also implicitly recognises Right to Know. Therefore, we can find that two fundamental rights under Article 19 and 21 are in conflict which is one of the challenges that our constitution faces today. Even if a publication is made about the private life of a person without the concerned person’s consent it may amount to the violation of the right to privacy. There are two exceptions to this rule: firstly, that the right to privacy does not survive once the publication is a matter of public record and, secondly, when the publication relates to the discharge of the official duties of a public servant, an action is not maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth[12]Moreover we can say that with respect to all the fundamental rights, Right to privacy also can be reasonably restricted as it is not an absolute right.
SUGGESTION
The Right to Information is one of the rights which is very needed in a democratic country for ensuring active involvement thereby assures welfare of the people. Besides which there are certain loopholes in the Right to Information Act and also there cannot be seen active implementation of certain provisions in various parts of the country. The RTI Act has been criticised widely as certain information is not provided to the public by hiding and taking shelter behind the provisions of the Act itself.PM CARES fund is the recent best example which could be taken note off. They refrained from giving the information in the name of name security and declared that the PM CARES fund will not be considered as a public authority under the definition of section 2(h) of the RTI Act. Hence necessary amendments to the provisions should be made as and when required. Also, certain public authorities do not display the details of RTI in the office notice board or office website which makes the public difficult to approach the relevant authorities on time. Therefore, for easy accessibility all the public offices should display complete RTI information in notice boards or other platforms as necessary. Moreover, the provision of the prescribed fee is not stated with sufficient guidelines and hence the fee should be uniformly fixed throughout the country. The information seeker should not be burdened with huge costs for acquiring photocopies or other certified copies. Apart from the sensitive or confidential information the remaining data’s especially quantitative data and related information should be made applicable to the general public so as to ensure accountability. Larger populations are not even aware of these rights, hence frequent awareness programs should be initiated as part of RTI authorities so as to ensure adequate participation from the public. These Rights ie. Right to know and Right to information should be incorporated even in all school curriculum so as to mould the children as a responsible citizen to the future.
CONCLUSION
To sum up, the citizens has a right to receive the information from the authorities and that right is derived from the concept of freedom of speech and expression comprised in Article 19(1)(a) as well as Article 21 which are Fundamental rights enumerated in the Indian Constitution, also now a statutory right through the enactment of the Right to Information Act 2005. Therefore, the state is not only under an obligation to respect the Fundamental rights of the citizens, but it is equally under an obligation to ensure conditions under which these rights can meaningfully and effectively be enjoyed by one and all.
Author,
BREGITHA PG
NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES (NUALS), KOCHI
[1] Universal Declaration of Human Rights, Article 19, 1948
[2] International Covenant on Civil and Political Rights, Article 19, 1976
[3] S P Gupta v. President of India, AIR 1982 SC 14
[4] Express New Papers Pvt. Ltd v. Union of India, (1986) 1 SCC 133
[5] R P Limited v. Proprietors Indian Express Newspapers Bombay Private Limited, 1988 SCC (4) 592
[6] Benett Colemon and Co. v. Union of India, AIR 1973 SC 106
[7] Vikas Kumar and Shanshak Manish, Right to Know and Right to Information, LEGALSERVICE INDIA (Dec.11, 2021, 9.02 AM), https://www.legalserviceindia.com/article/l88-Right-To-Information.html
[8] Central Public Information Officer Supreme Court v. Subash Chandra Agarwal, 2019 SCC OnLine SC 1459
[9] State of Rajasthan v. Raj Narain, AIR 1975 SC 865.
[10] Vikas Kumar and Shanshak Manish, Right to Know and Right to Information, LEGALSERVICE INDIA (Dec.11, 2021, 9.02 AM), https://www.legalserviceindia.com/article/l88-Right-To-Information.html
[11] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
[12] Id. at 09.