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Pranjal Vashisht, JEMTEC School of Law.
Date: 15.12.2021
RIGHT TO INFORMATION: A CRITICAL ANALYIS OF CONSTITUTIONAL AND LEGISLATIVE PROVISIONS
Abstract
This
research paper goes into the depth of the right to information and critical
analysis of its constitutional and legislative provisions. Information is that monetary unit that
every individual needs in life to make a difference as well as in the administration
of society, since the awareness obtained on the basis of this right would
furnish him/her to make out wrong from right. Right to information is that
essential right from which other fundamental human rights will come into act.
No one in the society can claim to be wholly free unless it has both the tools
and the implementation of providing its people with an approach to information.
Whether it is known as the ‘freedom of information’ as it is in most of the
nations or the ‘right to information’ as in more current laws, it is the duty
of Governments and its associates to assure this right by applying access to
information laws in true soul of the word /or in its right atman. The
right to convey and receive information is kind of the right to freedom of
speech and expression guaranteed by article 19(1)[1] of
the constitution. There
are some important constitutional and legislative provisions regarding this
aspect which came into the action and now, this right is seen with a different
viewpoint, which is in itself a positive outcome so as to keep the government
and the people of the country with a bit transparent mind.
Introduction
The
21st century is the period of information and knowledge; we are constantly
being flooded with and are going after to get information. Information access
has become unavoidable both for the individuals as well as to the organizations.
It is a key instrument for allowing citizens to take part in the political
operations of their nations. It allows the people with knowledge to see what
the Government is doing and how it is choosing to answer to the changes in
today’s continuously evolving political environment. With considerable amount
of knowledge and information people are able to investigate official policies
and suggest substitutes that they sense could be more successful. In this way,
approach to information can be the tool in moving from an authorized to a
receptive, consultative and efficacious democracy.
An
aura is being created in approval of more information and less confidentiality.
Iron- curtains have been thrown open wide even in socialist rule. The idea of an
unsecured society with more information access, reorganizing of directorate and
free dialogues has become the command of the day. The right to information
includes the affair of both ‘Inclusion and Exclusion. On one hand, technology
has brought facts and figures at our doorsteps and on the other hand,
bureaucracy in our country is still hiding information from people’s
understanding to the extent viable, for which it is crucial for forming public
thinking and extending sincere participation.
The
abstract idea of right to information is deep – rooted in the democratic
framework itself; hence there arises no need to track down it to the
Constitution or any legislation for that matter. The basic essence, upon which
the codification for the access to information nestles, is to change the set of
notions of the Government and the people. If people are the lords, the savants
and the agents, bureaucrats and the politicians cannot hide the information
from them. To bring belief in the minds of the common man, his right to know
what conclusions are being made, to superintend the executions of these
decisions and to take lineage of what has been done by the bureaucracy and the
bureaucrats are the backbone of a transparent and open government. This opinion
covers any news relating to any item, any idea, ideology or belief relating to
any matter. It also includes remarks on facts and viewpoint, the creation or
pronouncement in cognitive and artistic field etc. In laymen’s terms, it
includes every expression or conduct of human intellect. It is from the mingling
of these concepts through which the term freedom of information has become
apparent. It means the right to seek information from any public command. It
also unfolds the right to have access to government held data, documents and
records.
Constitutional Provisions
and the Right to Information
Democratic
public survives by welcoming new schemes, investigating them, and banishing
them if found of no use. Therefore, it is important that whatever plans the
government or its other constituents hold must be openly put before the public.
The open flow of information is essential for a democratic society in specific
because it helps the mass to grow and develop. It is now identified that the
right to information is indispensable for democracy for ensuring lucidity and
accountability in governance and ruling. It therefore makes sure that
governance is more participatory being a crucial constituent of a triumphant
democracy. In our contemporary world, we just cannot visualize a true democracy
where the citizens are impoverished of information that is a tool for their
decision-making in issues relating to themselves and the common well being of their
as well as other societies.
In
Secretary, Ministry of Information and Broadcasting, Govt. of India vs Cricket
Association of Bengal[2],
the Supreme Court clearly stated that the
right to freedom of speech and expression, under Article 19(1)(a)[3] of the Constitution,
covers the right to pass on and collect information by means of electronic
media. The verdict forms a binding or convincing model within its jurisdiction.
In 1976, in the Raj Narain vs the
State of Uttar Pradesh[4]
case, the Supreme Court gave the verdict that right to information will be
served as a fundamental right under article 19. The Supreme Court had an
opinion that in Indian democracy, people are the pundit and they have the equitable
right to know about the functioning of the government.
Thus the government approved the Right
to Information Act[5]
in 2005 which provides the mechanism to make use of this fundamental right.
RTI: Not Merely a Law But Very Critical for
the Foundation of Democracy
“The real Swaraj will come not by the acquisition of
authority by a few, but by the acquisition of capacity by all to resist
authority when abused”. When Mahatma Gandhi declared this, he may not have
visualized that one day India will have to draft a law to entitle people for
something as rudimentary as seeking information about the evolution of the
country.
The date of 12th October 2005 shall be etched
in one’s memory as a new era of authorization for the common man in India.
It is appurtenant everywhere except the state of Jammu and Kashmir. This law
was passed by Parliament on 15th June 2005 and came into act on 12th October
2005. Information revelation in India was confined by the Official Secrets Act[6], 1923 and various other special laws, which
the new RTI Act now slowed down.
Constitution
and Right to Information
As a consequence of the Indian national movement in
opposition to the British imperialist cantonal power, the progressivist
democratic political set up with a written constitution comprises rule of law,
social justice, evolution, adult franchise, regular elections, a multiparty
order has come into actuality. For the pellucid operation of the democratic
political organization, the establishing fathers of the constitution included
the clauses of the right to expression in part three of the constitution in the
fundamental rights. While there is no particular right to information or
paradoxically right to freedom of the press in the constitution of India, the
right to information has been studied into the constitutional confirms which
are a part of the chapter on fundamental rights.
The Indian constitution has a splendid
arrangement of rudimentary and absolute rights comprised in chapter three of
the constitution. These include the right to equal protection of the laws and
the right to equality before the law (Article 14[7]), the right to freedom of speech and expression (Article 19 (1)(a)) and the right to life and
personal liberty (Article 21[8]). The right to constitutional remedies in Article 32[9],
backs these that is, the right to proceed towards the Supreme Court in case of transgression
of any of these rights. These rights have received spirited elucidation by the
Supreme Court over the years and can honestly said to be the root for the
phenomenon of the rule of law in India.
Supreme
Court and Right to Information
For more than two centuries,
the Supreme Court of India has identified the right to information as a
constitutionally sheltered fundamental right, confirmed under the Article 19[10] (right
to freedom of speech and expression) and Article 21 (right
to life) of the constitution. The court has put a name to the right to access
information from government agencies is foundational to democracy.
The Indian Penal Code
1860 and Right to Information
Though the Indian
Penal Code[11],
1860 does not trade in crystal clear with a citizen’s right to information,
it however includes various clauses which have close relevance on the authority
of a public servant to issue correct facts to the public, lacking which the
public servant concerned is responsible to punishment for his acts of exclusion
and task in this regard. The section
21[12] of
IPC explains a public servant to contain such class of persons as every
commissioned officer in the military, naval or air force of India, every judge,
every officer of a court of justice, every juryman, assessor or an element of
Panchayat accommodating a court of justice or public servant, every adjudicator
or other person to whom a root or matter has been referred for conclusion or
record by a court of justice or by any other capable public command, every
person who holds any office by merit of which he is entitled to place or keep
any person in custody, every officer of the Government whose obligation it is,
as such officer, to fend off offenses and to give information of the same.
Loopholes of RTI Act
As much as the act has delegated the
citizen and given them a “weapon” to keep the public representatives inspected,
not everything about it is safe or foolproof. The act has loopholes – some of
them in its execution, and some in its clarifications. There are also some particular
problems with the application of act in certain states. Some states have
started charging high fees like Chhattisgarh in order to file an RTI
application. This is in spite of the fact that the Act set down a minimal fee.
There is a hope though. The
Whistleblowers Protection Bill[13]
is closely associated with the victory of the RTI act, taking into
consideration the increasing strikes on RTI activists who have provoked to
register grievances against corrupt politicians, and intentional exploitation
of power by them. The legislations to safeguard whistleblowers, when sanctioned,
shall provide protection to an RTI applicant.
Conclusion
This act entitles the people to collect
information. But the main issue is that when 35% of the population is
illiterate, then how anyone could anticipate that people will request
information. The act is deficient in obligatory teeth for levanters. In instances
where information has been refused without adequate cause, the punishment is
not so tough enough so as to have a damper effect on those who do not want to
allocate information.
The official mindset is a very big
obstacle in the progress of this act. No official in normal condition wants to
share information. They generally prefer not to share information, and
therefore people find it very difficult to secure information from them. The
act itself provides for several grounds on which the public information officer
turn down the application. Although one is allowed to appeal to next higher
authority but this is just making the matter worse. The act being based on
computerized records of data, it may take a long time in computerization of
such vast data and therefore the doubt hangs over whether the act would be implemented
in a time bound manner.
The RTI act has been praised by
democracy advocates all around the globe, since it is at par (or even better)
than same laws enacted in countries in the West. The RTI act is one of the
legislation that is indeed the pride and honor of Indian democracy.
The RTI act, as it perches today, is a strong key to give support to the soul of democracy. The need of the hour is that the RTI act should be enforced to make sure that the objectives of the RTI act are met. Any try to weaken the provisions of the RTI act will only curb its success. Since the primary step in cleansing any organization is to uncover its malaise, the same procedure needs to be followed in RTI as well.
[1] INDIAN
CONST. art 19, cl 1.
[2] Secretary,
Ministry of Information and Broadcasting, Govt. of India vs Cricket Association
of Bengal AIR
1995 SC 1236 (India).
[3] INDIAN CONST. art 19, cl. 1, sub cl. a.
[4] Raj Narain vs the State of Uttar Pradesh AIR 1986 All 321
(India).
[5] Right
to Information Act, Acts of Parliament, 2005
(India).
[6] Official Secrets Act,
Acts of Parliament, 1923 (India).
[7] INDIAN CONST. art. 14
[8] INDIAN CONST. art. 21
[9] INDIAN CONST. art. 32
[10] INDIAN CONST. art. 19
[11] Indian Penal Code,
1860, Acts of Parliament
[12] Indian
Penal Code, 1860, No. 21, Acts of Parliament
[13] Whistleblowers Protection (Amendment) Bill,
2015 (India).
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