Q. 7. Briefly discuss the shortcomings in the way of proper implementation of the Right to Information Act. Give some suggestions to improve its working.
Ans. Shortcomings in implementation of the RTI Act- A citizen has a right to seek such information from a public authority which is held by the public authority or which is held under its control. This right includes inspection of work, documents and records; taking notes, extracts or certified copies of documents or records; and taking certified samples of material held by the public authority or held under the control of the public authority. Though the RTI Act has played a very important role in exposing corruption in various sectors, yet the cancerous growth of corruption has not been brought under control.
The Act suffers from certain shortcomings as following-
(1) Lack of awareness-The success of any law depends on efficient implementation which in turn depends on the awareness levels of citizens. According to a study by PricewaterhouseCoopers (PWC), only 13 percent of the rural population and 33 percent of the urban population were aware of the RTI Act.
Weaker sections of society are hesitant in filing RTI applications because sometimes it involves submission of application fee in cash and the person has to be physically present before the PIO. Hence, usage of RTI is limited to middle class and social activists only.
(2) Lack of infrastructure- One of the major problems faced by the public authorities is poor infrastructure, so essentially needed for the dissemination of information. The public authorities, in many cases, do not have any resource to publish information on their departmental websites.
(3) Lack of official staff- Most of the government departments are facing the shortage of staff. The Information Officers and other staff are already overburdened with routine work. This prevents them in providing timely information to the applicants as such.
Experience has shown that where Information Commissioners are responsible for the implementation of access to information laws, they can make a positive contribution to building a new culture of openness within government. Such officials should have independence of mandate and budget.
(4) No single-window approach- Many ministries and departments of the Government of India seem to have appointed multiple Public Information Officers (PIOs). This results in citizens running from office to office, in search of PIO who would deal with his application, sometimes in vain. There should be a single window approach in each department/ministry so that harassment of applicants is avoided..
(5) Poor maintenance of records- There have been many instances wherein information could not be given by the public authorities because the relevant documents were missing. Ineffective record management systems and procedures to collect information from field offices cause delay in processing RTI applications.
A PricewaterhouseCoopers (PWC) survey (2009) indicated that the record management system plays a vital role in the timely disposal of an RTI application. Yet, 38% of the PIOs cited the record management system as a reason for delays in processing RTI requests. In addition, 79% of the PIOs cited collecting information from field offices as a cause of delay.
(6) Delay in disposal of second appeal-The efficiency of RTI Act suffers when it comes to disposal of Second Appeal. The RTI Act provides for time limit within which First Appeal is to be disposed. However, the Act does not provide any limit within which Second Appeal to CIC must be heard. This deficiency may be attributed to insufficient number of Information Commissioner at the center level.
SOME SUGGESTIONS
Successful implementation of the RTI Act depends on a variety of factors, both technical and political. Effective implementation of the RTI Act requires political commitment from the top. It requires taking of certain steps as following-
(1) Awareness campaign- A massive awareness campaign is necessary to educate the citizens about the RTI Act and encourage their involvement. The awareness program must especially target the vulnerable categories of citizens such as-
(a) women;
(b) farmers and rural families; and
(c) middle and working class, for whom most of the social benefit schemes of the government are targeted.
For this purpose, RTI awareness and education needs to be aggressively pursued using the appropriate medium of communication. Also adequate budget needs to be allocated by the appropriate governments for this initiative.
(2) Role of civil society- Civil society can survey implementation in numerous ways including through submission of questionnaires to government departments, through interviews with public officials and by conducting public opinion surveys. All of these methods can contribute to building a more accurate picture of how implementation is proceeding. It may help in formulation of recommendations, be they for amendments to the law or internal administrative reforms which will facilitate greater compliance with the duty to provide information to the public.
(3) Provision for training- An in-depth understanding of the RTI Act is a basic requirement for PIO to discharge duties effectively. PIOs should be given proper training both before and during their tenure. Thus, they can apply their minds independently and decide whether the information can be given and to what extent. They must be made to understand the purpose of the legislation and their own significance in exposing corruption and accelerating the country’s development.
(4) Maintenance and computerization of records- Proper management of records is of utmost importance for effective implementation of the provisions of the Act. A public authority should, therefore, maintain all its records properly. It should ensure that the records are duly catalogued and indexed in such a manner and form that it may facilitate the right to information. The Public Authorities should computerize all its records which are appropriate to be computerized. Records so computerized should be connected through a network on different systems so that access to such records is facilitated.
Effective record management could be best achieved by digitizing all the records. E-Governance initiatives are being taken which would help in effective record keeping. The need of the hour is to expedite such initiatives and provide access to citizens with facilities for retrieving records based on intelligible searches.
(5) RTI Implementation Cell- In order to ensure co-ordination between the appropriate government and the Information Commission in discharging the duties mandated under the RTI Act, it is recommended that there should be an RTI Implementation Cell under the appropriate government. This Cell should be under the charge of a senior level bureaucrat. This Cell is expected to set up implementation measures to promote compliance by the Public Authorities and oversee the status of implementation.
(6) Opening of Common Service Centres (CSCs)- In order to facilitate RTI implementation and to address the accessibility gap, CSC could be used as information centres. In such centres, the citizens may be informed of the RTI Act, and assisted in filing applications.
(7) RT1 Call Centers- The RTI call centre could be a single nodal point used by citizens for filing RTI applications/appeals/complaints over the telephone. Additionally, it could also serve as a centralized database of all the RTI applications received and the respective responses.
(8) Use of information technology- Use of information technology would be greatly useful in reshaping the structure, operations, and processes of Public Authorities. It would greatly increase the productivity and efficiency and improve the quality of service. It is imperative that the Public Authorities and the relevant government departments align their e-governance initiatives with RTI initiatives.
Q. 8. The RTI Act has become an important anti-corruption tool.” Discuss.
Ans. Rampant corruption in Indian society-Corruption has been noticeable problem in the developed as well as developing nations of the world which deters the progress and prosperity of the people and deteriorates the well-being of society.
India continues to be among the most corrupt countries in the world. Transparency International, a Berlin based NGO working against corruption, spoke to nearly 22,000 people across 16 countries in the Asia-Pacific to understand the levels of corruption in the region. While India remains the most corrupt country in this region, with 69 per cent bribery rates, Japan came out as the least corrupt nation, with a 0.2 per cent bribery rate, the report said.
Causes of Corruption- Various causes of corruption in India include excessive regulations, complicated taxes and licensing systems, numerous government departments each with opaque bureaucracy and large discretionary powers, monopoly by government controlled institutions on certain goods and services delivery, and the lack of transparent laws and processes.
The number of times bribes were demanded for accessing public education and healthcare facilities is also very high in India. Around 58 per cent bribery rates were seen in education and healthcare sectors in India. Times when people paid a bribe was also seen to be almost equally high for police, identification documents and basic amenities.
Accountability essential for flourishing of democracy- No democratic government can survive without accountability. And the basic postulate of accountability is that the people should have information about the functioning of government. It is only if people know how the government is functioning, that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy.
Openness and accessibility of people to information about the functioning of the government is a vital component of democracy. In most of the democratic countries, the right to know is now a legal right. Democracy is no longer perceived as a form of the government where people vote a government in office, at regular intervals and retire into passivity after the elections are held. Today, people want to have a say in the manner they are governed in the major issues affecting their lives. And such participation can be effective only if the people have proper information about the way the government business is transacted.
Enactment of the RTI Act- In India, following a nationwide campaign led by grassroot and civil society organizations, the government passed a landmark Right to Information Act in 2005.
The Preamble to the RTI Act clearly states that the aim and objective of the Act is to contain corruption and to hold the government and its instrumentalities accountable to the governed. Since then, social activists, civil society organizations, and ordinary citizens have effectively used the Right to Information Act to tackle corruption and bring greater transparency and accountability in the government.
ROLE OF RTI IN EXPOSING VARIOUS SCAMS
An access to information law is not only a tool to uncover corruption; it can also prevent it by highlighting poor administration regarding how public funds are spent.
Over the past decade, RTI activists and citizens have filed millions of applications to further transparency and accountability in governance, challenge the exploitation of natural resources by politicians, corporates and the mafia, as well as to improve their daily lives in a myriad ways from accessing ration cards and pensions to inspecting land records and exam answer-sheets, examining government policies and decisions, and exposing corruption and misuse of government resources.
Indian Red Cross Society Scam- Activist Hitender Jain, who runs Resurgent India, an NGO based in Ludhiana, set about investigating how public officials in the Indian Red Cross Society, a statutory body, were squandering money meant for the Kargil War relief and rehabilitation of those hit by natural disasters.
It was revealed that Indian Administrative Service (IAS) officers had siphoned off relief and rehabilitation funds worth millions of rupees to buy cars, expensive mobile phones, furniture, air conditioners, refrigerator, and pay for petrol, telephone bills, mobile phone bills, hotel and restaurant bills, crockery, furnishings, LPG cylinder refills, and nappies.
Adarsh Housing Society Scam-The Adarsh Housing Society, a 31. storey building located in Colaba, Mumbai, was originally supposed to be a six-storey structure to house war widows and heroes of the 1999 Kargil War.
Shortly after the RTI came into force, activists Simpreet Singh and Yogacharya Anandji embarked on a quest to expose how politicians, bureaucrats and military officials had flouted rules to acquire flats below market rates. This scam even resulted in the resignation of Maharashtra Chief Minister Ashok Chavan, whose own relatives were allottees in the building.
The RTI applications revealed that the land on which the building was constructed did not belong to the Government of Maharashtra, but to the Ministry of Defence under the Central Government. It also revealed that while the allottees grew from 31 to 103 from 2003 to 2008, an environmental clearance was never received to construct the high-rise building in a Coastal Regulation Zone.
Besides the flouting of rules, which the public regards as routine, the most disturbing aspect of the Adarsh Scam was how ministers, politicians, top army officials and bureaucrats were making a beeline to get flats in a building meant for war widows
2G Scam-The 2G Scam or the telecom sector scandal, which took place in the UPA regime, revolved around the government auctioning the 2G spectrum. Top ministers had allegedly colluded to undercharge certain mobile phone companies while allocating the frequencies, in exchange for a bribe. This reportedly cost the exchequer a whopping Rs 1.76 lakh crore. The massive abuse of power came to light when an RTI was filed by activist Subhash Chandra Agrawal. Several big names were involved in the scam including former Telecom Minister A Raja and DMK leader Kanimozhi.
Commonwealth Games Scam– An RTI filed by a non-profit organization revealed that the Delhi Government had diverted Rs 744 crore, from funds carmarked for the welfare of the Dalit community, to the Commonwealth Games The non-profit body – Housing and Land Rights Network – also found that most of the diverted funds were expended on amenities that existed only on paper, suggesting further corruption and money laundering.
The RTI Act was also used to expose corruption after the Commonwealth Games Scam, in which the corrupt deals by politician Suresh Kalmadı embarrassed the nation. The report said that an RTI application filed by non- profit body Housing and Land Rights Network showed that the then Delhi Government had diverted Rs 744 crore from social welfare projects for Dalits to the Commonwealth Games from 2005-06 to 2010-11.
Public Distribution System Scam– In 2007, an RTI request filed by Krishak Mukti Sangram Samiti, an NGO, revealed irregularities in the distribution of food meant for people living below the poverty line by the public distribution system in Assam, according to a report in The Wall Street Journal. In 2008, an RTI application by a Punjab-based NGO revealed that heads of the local branches of the Indian Red Cross Society had used money intended for the victims of the Kargil war and natural disasters to buy cars, air-conditioners and pay for hotel bills.
IIM’s Admission Criteria- Vaishnavi Kasturi a visually-impaired student, in 2007 was denied a seat in the Indian Institute of Management in Bangalore, one of the country’s premier management institutes despite her impressive score at the entrance examination Ms. Kasturi wanted to know why, and wondered whether it was because of her physical disability. She filed an RTI application to request the institute to disclose their selection process. Although she failed to gain admission to the institute, her RTI application meant that IIM had to make its admission criteria public. It emerged that the entrance exam, the Common Admission Test, actually mattered little compared to Class 10 and 12 results.
Q. 9. What do you understand by community participation? Also discuss the requirements for obtaining community participation in local governance.
Ans. Meaning of community participation-Community participation is a process by which citizens-
(a) act in response to public concerns;
(b) voice their opinions about decisions that affect them; and
(c) take responsibility for changes in their community.
Very often, the term ‘participation’ gives rise to the terms, such as community participation, citizens’ participation, people’s participation, public participation, and popular participation.
The Oxford English Dictionary defines participation as “to have a share in” or “to take part in,” thereby emphasizing the rights of individuals and the choices that they make in order to participate.
The World Bank’s Learning Group on Participatory Development (1995) defines participation as “a process through which stakeholders influence and share control over development initiatives, and the decisions and resources which affect them.”
“Community participation is the process by which individuals, families, or communities assume responsibility for their own welfare and develop a capacity to contribute to their own and the community’s development.” -OAKLEY AND MARSDEN
“The notion of popular participation and that of community participation are interlinked. The popular participation is concerned with broad issues of social development and the creation of opportunities for the involvement of people in the political, economic and social life of a nation. Community participation connotes the direct involvement of ordinary people in local affairs.” -MIDGLEY
Community participation is “the creation of opportunities to enable all members of a community to actively contribute to and influence the development process and to share equitably in the fruits of development.”-THE UNITED NATIONS DOCUMENT (1981)
Participation in local governance Citizens participation in local governance involves citizens assessing their own needs and participating in local project planning and budget monitoring. It is important for improving public resource management and reducing corruption, by making public servants and political leaders accountable to the people. For citizen’s participation to work, transparency of government information is needed, as well as the inclusion of members into decision-making from groups whose concerns are being addressed. Excluding the weak and powerless from decision-making is a cause of poverty. It denies them rights and creates unequal power relationships.
Requirements of citizens’ participation-Citizens’ participation requires trust, belief and wholeness-trust in their co-participants, belief that participation can make a difference, and feeling of being socially included. To ensure strong participation of citizens in local governance, citizens need to understand and want to exercise their right to participate in local political issues They need to feel confident and know where and how to participate. Local institutions should be prepared to facilitate the citizens’ participation. Engaging citizens in local governance improves accountability and the ability of local authorities to solve problems. One way to increase awareness and to empower citizens to have a voice is through increased access to technology and in particular social media.
Education imperative for empowering citizens Education and training are crucial in empowering citizens to effectively participate in local governance. especially in communities that have experienced significant political change. Stimulating interaction between the public and civic actors at the local level allows information to reach local stakeholders, providing them with a holistic view of the actors and relations involved and helping local actors make better- informed decisions.
Promotion of citizen-government partnerships- The RTI Act provides a framework for promotion of citizen-government partnership in designing and implementation of development programmes for improving quality of life. The principle of partnership is derived from the fact that people are not only the ultimate beneficiaries of development, but also the agents of change. The stakeholders participation leads to better projects and more dynamic development.
Under the RTI regime, citizens’ participation has been promoted through-
(a) access to information and involvement of affected groups/communities in design and implementation of projects, and
(b) empowerment of local government bodies at village level through the involvement and cooperation with NGOs/self help groups
The disclosure of information has enabled the beneficiaries to assume a central role in design and execution of projects. RTI has instilled a wider sense of ownership in the development activities. Besides, access to information has enabled the people to participate in economic and political processes through a dialogue between people and the government officials. For instance. information obtained under RTI Act, in respect of utilization of funds allocated under various welfare schemes, have been used by NGOs and media to create awareness among the masses about the contributions of the political leaders, which have had desirable impact on the outcome of democratic process.
Therefore, almost all the welfare projects, particularly at the States and village levels, are being designed and developed in cooperation and support with the NGOs or affected persons, with a view to raising the satisfaction level of people.
Q. 10. How is community participation conducive for social development?
Or
Briefly discuss the advantages of community participation.
Ans. Community participation and social development The objective of community participation is-
(a) to strengthen the community’s capacity to identify problems and come up with the solutions;
(b) carry out action plans, monitor the progress and make an appropriate evaluation; and
(c) give feedback to the stakeholder, community and others who wish to learn about the program.
“Most community development work involves the participation of the communities or beneficiaries involved.” -SMITH
In social work, community participation refers to “the active voluntar engagement of individuals and groups to change problematic conditions aud to influence policies and programs that affect the quality of their lives or the lives of others.” -GAMBLE AND WEIL
Thus, community participation is an important component of community development and reflects a grassroot approach to problem solving
ADVANTAGES OF COMMUNITY PARTICIPATION
Community participation emerged as an alternative approach to traditional community development. It was founded in the belief that problems facing community need to be solved by the community itself as they know what are the real problems and solutions for their problems. Genuine and effective community engagement has benefits for both government and citizens. It also. provides the basis for productive dialogue and deliberation and, ultimately, better governance
Community participation is advantageous for the following reasons.
(1) Community participation empowers community members. It opens doors for exchange and sharing of ideas. It encourages active involvement through the participation of all members of the community in the planning and decision-making. It seeks to remove the barriers that limit the participation of marginalized citizens. It supports and strengthens the autonomy of the individuals in the community.
“Effective community participation may lead to social and personal empowerment, economic development, and socio-political transformation.”. -KAUFMAN AND ALFONSO
(2) In participating communities, there is no such thing as a bad idea. All ideas are welcomed and treated with respect. It also welcomes fresh ideas that might otherwise be hidden due to fear of ridicule.
(3) In a participating community, all persons are actively welcomed into useful roles, regardless of their color, age, race, prior community involvement, level of education, occupation, personal reputation, handicap, language. appearance, religion, or any other factor. Participating communities know and recognize that, we are all made equal, that we have an equal right to share in the work and benefits of community enhancement, as well as in its costs.
Q. 11. Define legal literacy. Why is there the need to spread the knowledge of law? Also point out the advantages of legal literacy amongst the masses. Or
Throw light on the extent of legal literacy in India.
Ans. Legal literacy- Legal literacy is commonly understood as knowing the primary basics of law. When citizens know what the law has to offer them. they can recognize and challenge injustices. The first step towards that knowledge of law, which can transform people’s lives, is providing legal literacy.
In the words of YK SABHARWAL, Former Chief Justice of India, “Lessons in legal literacy are the means of making people aware of their rights – the nights that are guaranteed to them by the Constitution of their own creation. The oppressed and ignorant masses are required to be taught what their rights are, how those rights relate to them, and how they themselves should fructify them in their own life in order to become the master of their own destiny.
NEED/ADVANTAGES OF LEGAL LITERACY
Ours is a Welfare State. Every law that has been enacted and regulations framed by the Union and the State Governments are meant for the welfare of the people of India. Unless the people for whom the laws and regulations have been made are made aware of them, the very purpose of enactment goes in vain and their objects cannot be achieved. India, the largest democracy in the world, has a growing need for generating awareness of rights so that people live according to the true dictates of democracy and rule of law.
Legal literacy and human rights education are effective and practical means to strengthen the social fabric for a successful democracy, Legal literacy is the core basis of the rule of law and constitutionalism. In fact, the whole concept of administration of justice is based on the presumption that the people are legal-literate, that is, they know their rights, which are recognized and protected by the law and Constitution. Legal literacy, thus, helps in avoiding conflict situation. It facilitates access to justice system. It helps in eliminating inequality and discrimination. Lack of legal literacy, on the other hand, makes the ignorant masses vulnerable to deception, deprivation, and exploitation of all sorts.
It is essential to use legal knowledge as a tool for vulnerable groups to be able to understand and critique the law, to familiarize themselves with the scope of their rights under the law, and eventually to assert their rights as a means to take action and bring in change.
Former Chief Justice of India, Hon’ble P SATHASIVAM said “if a society wants to progress, then it should understand the importance of legal literacy which is in a way the catalyst for the social-economic progress of the society. It plays a major role in various aspects of the society like population control. health, hygiene, environmental degradation control, employment of weaker sections of the society.
JUSTICE SATHASIVAM explained how legal literacy also helps the entire judicial setup functions on the presumption that all people are aware of their rights. They are able to approach the concerned institution, which makes legal literacy the core basis for the survival of our constitutional democracy.
JUSTICE SATHASIVAM said, “for the country to progress, there should be complete awareness and knowledge of rights among people. Awareness and remedies are a two way process. Therefore, being aware of one’s rights is not only important, but understanding the remedies and the procedure required to obtain that remedy is equally important for the betterment of the society.”
Indian Scenario- Around 35 percent of India’s population has no formal education. Most of them live in rural areas, where social and economic barriers play an important role in keeping the lowest strata of society illiterate.
Literacy is an indispensable means for effective social and economic participation, contributing to human development and poverty reduction. Even those who are literate are helpless and confused when there is a violation of a right enforceable in law.
Legal literacy, therefore, is a tool for bringing about qualitative change at the grassroot level. Experience shows that better awareness of laws helps people work more effectively in diverse spheres. The non-implementation of many laws is partly attributed to the beneficiaries’ lack of awareness.
Ignorance of legal rights, human rights, civil liberties, constitutional mandates and several other laws of the land that defend the people and protect their dignity, freedom, right to equality and access to justice, etc. can easily be seen in our society. Major social reformation efforts are required to bring about a change in the rural scenario. [SOURCE: www.hurights.or.jp/archives/asia- pacific]
JUDICIAL INTERPRETATION OF RIGHT TO INFORMATION
Much of the information is hoarded by the rulers to create a ‘poverty of information because secrecy helps them to continue with their arbitrariness in decision making and to create an environment of unaccountability. Maintaining confidentiality is perhaps seen as a symbol of supremacy and seems to create a distance between the ruler and the ruled. Ruling elites do not want to share information because information is power. It is unequal distribution of this power that creates two distinct categories-the rulers and the ruled.
Information is something that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation. Information is basis for knowledge. which provokes thought, and without thinking process, there is no expression ‘Knowledge’ said JAMES MADISON, “will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it is but a prologue to farce or tragedy or perhaps both.” The citizens’ right to know the facts about the administration of the country is thus one of the pillars of a Democratic State. That is why, the demand for openness in the government is increasingly growing in different parts of the world.
The Universal Declaration of Human Rights of 1948, adopted on 10 December in Article 19 provides as under-
“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.”
The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1968. Article 19 of the Convention reads as follows-
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
Q. 1. Give a brief account of judicial interpretation of the right to information.
Or
“Right to information is an offshoot of judicial activism in India,” Discuss.
Or
Give a brief sketch of the contribution of Supreme Court in recognition of the Right to Information in India in the light of judgement pronouced
Ans. Judiciary and the right to information-Right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspective in various fields including Human Rights.
In modern democracies, it is obvious that the citizens have a right to know about the affairs of the government, which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.
JUDICIAL VIEWS ON THE RIGHT TO INFORMATION
The need for the right to information has been widely felt in all sections of society. This has also received judicial recognition through some landmark judgments of Indian courts.
Right to know flows from the right to freedom of speech and expression- In State of UP vs Raj Narain, (1975) 4 SCC 428, the Supreme Court recognized that the right to know is the right that flows from the right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution.
In People’s Union for Civil Liberties vs Union of India’, the Supreme Court observed that “the right to information is a facet of freedom of speech and expression contained in Article 19 (1) (a) of the Constitution of India.”
People are entitled to know-JUSTICE MATHEW in State of UP vs Raj Narain (1975) held that, “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 bearing.
All information available with the government or the information to which the government or the public authorities have access have to be made available to the citizens whenever they ask for under the Right to Information Act.
In SP Gupta’s care, the Supreme Court emphasized. “Te a country like India which is committed to socialistic pattern of society, right to know becomes a necessity for the poor, ignorant and illiterate masses.”
RTI essential for participatory democracy- In RP Limited vs Indian Express Newspapers, AIR 1989 SC 190, the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy.
In a democratic society, the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed. They are entitled to call on those who govern on their behalf to account for their conduct.
No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only when people know how the government is functioning that they can fulfill the role which democracy assigns to them and makes democracy an effective participatory. [SP Gupta va Union of India, (1981) Suppl. SCC 87].
In the case of Union of India vs Association for Democratic Reforms, it was held that a voter has a right to know about the antecedents and past performance of the candidate at an election. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and, if the case is decided, its result, if pending, whether charge has been framed or cognizance has been taken by the court. There is no necessity of suppressing the relevant facts from the voters.
Applicant cannot seek every information-The freedom of an individual to have access to information cannot be projected to such an extent as to invade the rights of others. The right to information cannot be interpreted to mean that an applicant can seek every information relating to anyone. Just as he cannot be compelled to divulge the purpose for which he needs the information, he must respect the rights of the other man to keep the facts relating to him, close to his chest, unless compelled by law to disclose the same. Even where an individual is placed under obligation to speak, the law can only draw adverse inference from his failure or refusal to speak. He cannot go further to invade his privacy or private life.
Right to information is not absolute right-But like all other rights, right to information is not an absolute right. Right to information is subject to State’s reasonable restrictions on exercise of such right. Interests of sovereignty, integrity, security of India, foreign relations, public order, decency or morality are some of the factors, which might impede exercise of such right of information.
Consumers have right to know– In Ozir Husain vs UOI, a division bench of Delhi High Court observed that it is the fundamental right of the consumers to know whether the food products, cosmetics and drugs are of non-vegetarian or vegetarian origin, as otherwise it will violate their fundamental right under Articles 19 (1) (a), 21 and 25 of the Constitution. The packages of non-vegetarian products should bear a symbol giving their non-vegetarian origin, and a package of a vegetarian product should likewise bear a symbol To enable a person to practice the beliefs and opinions, which he holds, in a meaningful manner, it is essential for him to receive the relevant information Otherwise, he may be prevented from acting in consonance with his beliefs and opinions. In case a vegetarian consumer does not know the ingredients of the drugs or food products which he wishes to buy, it will be difficult for him to practice vegetarianism.
Q. 2. Discuss that right to information is a constitutional right, being an aspect of the right to freedom of speech and expression.
Or
“Right to information is implicit in the constitutionally enshrined right to freedom of speech and expression.” Discuss.
or
Explain that “right to information is at the root of democracy.”
Ans. Constitutional aspects of right to information- Article 19(1)(a) of the Constitution guarantees the fundamental rights to free speech and expression. The essential requirement for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumours and speculations and allegations against individuals and institutions. 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. This will also help the citizens perform their fundamental duties as set out in Article 51-A of the Constitution. A fully informed citizen will certainly be better equipped for the performance of these duties. Thus, access to information would assist citizens in fulfilling these obligations.
Freedom of information facilitates public participation in public affairs by providing access to relevant information to the people. They are thus empowered to make informed choices and exercise their democratic rights better. It enhances the accountability of government, improves decision-making. provides better information to elected representatives, enhances government credibility with its citizens and provides powerful aid in the fight against corruption.
Right to information and freedom of speech and expression-The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information. The right to information is a facet of the freedom of speech and expression as contained in Article 19 (1) (a) of the Constitution of India. The community has a right to be supplied with information and the government has a duty to educate the people within the limits of its resources.
The Right to Information Act begins with citizen’s right to obtain information and ends with the information being made available to him or his request being justly rejected on the grounds recognized by the Act.
RIGHT TO INFORMATION IS AT THE ROOT OF DEMOCRACY
Access to information is at the root of democracy and the right to know is at the base of the democratic process. The freedom of discussion has been held to be included in Article 19 (1) (a) of the Constitution. The freedom of press is an aspect of the freedom of discussion so that members of a democratic society should be sufficiently informed to be able to form their own beliefs and communicate them freely. [Romesh Thapar vs State of Madras; 1950 SCR 594: AIR 1950 SC 124]
The freedom of speech and expression is a right given to every citizen of this country. This right is basic to and indivisible from a democratic polity and encompasses freedom of press. This right includes right to receive and impart information. In order to ensuring the freedom of speech and expression, it is necessary that the citizens of this country have the benefits of plurality of views and a range of opinions on all public issues. A successful democracy requires an ‘aware citizenry’. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them. [Secretary, Ministry of Information and Broadcasting. Government of India vs Cricket Association of Bengal, AIR 1995 SC 1236; (1995) 2 SCC 161; 1995 AIR SCW 1856]
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. It will make democracy a mockery when medium of information is monopolized either by a partisan central authority or by private individuals. [Secretary, Ministry of Information and Broadcasting, Government of India vs Cricket Association of Bengal, AIR 1995 SC 1236.(1995) 2 SCC 161: 1995 AIR SCW 1856)
Q. 3. “Voters have a right to receive information about the antecedents of the candidates contesting election.” In the light of this statement, discuss voter’s right to know.
Ans. Voter’s right to know– Right to vote is a constitutional right though not a fundamental right. Voter’s right to know the antecedents of a candidate is independent of statutory rights under the election law.
Voters should be well informed– Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate.
People’s will expressed through elections- Democracy is for the people, of the people and by the people. In a democratic republic, will of the people is paramount. The will is expressed through periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate.
The citizens of the country take part in the government through their chosen representatives. In a parliamentary democracy like ours, the government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the government. The peoples’ representatives fill the role of lawmakers and custodians of government. People look to them for redressal of their grievances. They are the focal point of the will and authority of the people at large. The moment they put in papers for contesting the election, they are subjected to public gaze and public scrutiny. The character, strength and weakness of the candidate is widely debated. Nothing is, therefore, more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote.
Information about candidate essential for choosing right candidate- Many a voter will be handicapped in formulating the opinion and making a proper choice of the candidate unless the essential information regarding the candidate is available. The voter/citizen should have at least the basic information about the contesting candidate, such as his involvement in serious criminal offences. To scuttle the flow of information, relevant and essential. would affect the electorate’s ability to evaluate the candidate. Not only that. the information relating to the candidates will pave the way for public debate on the merits and demerits of the candidates.
Submission of affidavit by the contestants-The electoral contestants are now required to submit affidavits along with their nomination papers. The affidavit should include the following information-
(1) Whether the candidate has any criminal record or not, if so whether he has been punished with imprisonment or fine.
(2) Whether the candidate is involved in any pending legal case, for an offence, which is punishable with an imprisonment for 2 years or more, prior to six months of filing nomination. If yes, then the candidate must provide the details thereof.
(3) The details about assets owned by the candidate and his/her spouse or other dependents. The assets include movable and immovable property and bank balances.
(4) The details about liabilities, particularly in case of debts with public financial institutes and government dues.
(5) The educational qualification of the candidate.
Q. 4. Whether the judiciary is out of the purview of the Right to Information Act, 2005?
Ans. Judiciary and RTI- Authorities discharging judicial functions are not covered under section 4 of the Right to Information Act. Therefore, they are not obliged to provide any information within the meaning of the Right to Information Act in relation to the decisions taken by them. The reason for excluding the authorities pronouncing judicial decisions is quite obvious as they are supposed to support their judicial decisions by giving reasons for which they come to a particular conclusion. Judicial authorities are supposed to pass reasoned orders so that the concerned party can know the reason for which he failed or succeeded and the appellate authority can know the reasons for which a particular conclusion was arrived at.
No application to know what prompted judge to take a particular decision- Under the provisions of the Right to Information Act, a citizen can seek only that information which is available on record with the public authority in material form, but he cannot seek clarification by raising queries as to what was in the mind of the judge when he decided the case. The citizen, for the said purpose, will have to read the judgment and look at the reasons recorded by the learned judge. And if he is aggrieved by the judgment for any reason, he will have to file an appeal. A public authority, within the meaning of the Right to Information Act, is having an obligation to provide such information which is recorded and stored, but not the thinking process which transpired in the mind of the authority which had passed an order on judicial side.
Report of inquiry may be withheld-However, there may be other statutes where information may be withheld from a citizen. For instance, the report of an inquiry made against justice of the High Court under the provisions of the Judges Enquiry Act, 1968 may be withheld from the public by the Chief Justice of India.
In the case of Indira Jaising vs Registrar General. Supreme Court of India, an inquiry report was made by the Committee to the CJI, in respect of alleged involvement of sitting Judges of the High Court of Karnataka in certain incidents. The petitioner sought the publication of the inquiry report The Supreme Court held that, it is not appropriate for the petitioner to approach this court for relief or direction for release of the report, for what the CJI has done is only to get information of those who are accused and the report made to the CJI is wholly confidential. It is purely preliminary in nature, adhoc and not final.
The court further held that in a democratic framework, free flow of information to the citizens is necessary for proper functioning, particularly in matter, which form part of public record. The right to information is however, not absolute. There are several areas where such information need not be furnished. Even the Freedom of Information Act, 2002 (Now Right to Information Act 2005) does not say in absolute terms that information gathered at any level, in any manner and for any purpose shall be disclosed to the public. The inquiry ordered and the report made to the CJI being confidential is only for the purpose of his information and not for the purpose of disclosure to any other person.
The court thus rejected the contention to release the said report. The court, however, made it clear that if the petitioner can substantiate that any criminal offence has been committed by any of the judges mentioned in the course of the petition, appropriate complaint can be lodged before a competent authority for taking action by complying with requirements of law.
No disclosure of internal deliberations-Very recently, in an order of far-reaching import, the Madras High Court has ruled that internal deliberations of judges relating to administration of judiciary cannot be disclosed to any information seeker under the Right to Information (RTI) Act. The Court also said that providing of such information under the purview of the RTI would definitely interfere with the proper discharge of the High Court’s role as an independent authority under the Constitution of India. Disposing of an appeal against the Tamil Nadu State Information Commission (TNSIC) order, the Division Bench comprising Justices Elipe Dharma Rao and M. Venugopal also stated :
“Notes, jottings, administrative letters, internal deliberation and discussions on the administrative side of the High Court cannot be brought under the Right to Information Act 2005.”