Consentia on Multidisciplinary Research

Right To Information: A Tool for Good Governance

Chapter-1: Introduction

India is a democratic republic state meaning thereby that the government is of the people, by the people and for the people. Right to know is considered to be a basic human right. Freedom of information as a part of freedom of speech and expression owes its origin in Article 19 of the Universal Declaration of Human Rights, 1948. Article 19(1)(a) of the Constitution of India adopted the principle at the time of its inception. Thus right to information is an inherent right under Article 19(1)(a) of the Constitution. But so far as private affairs are concerned, the right to information act has no effect. Gone are the days when public dealings were kept in strict secret, a practice which often led to corruption, misuse and abuse of statutory and administrative power. Freedom of information brings openness in the administration which helps to promote transparency in state affairs, keep government more accountable and ultimately reduce corruption. Though Right to Know is a fundamental right but it is not an absolute right and there are reasonable restrictions as imposed by the constitution, the act itself, other statutes and of course judicial interpretations on the access to information. But still, it is the most valuable piece of legislation in the hands of the people of India to know about the particulars of the government.

During the last decade the public became vocal to get information from the state. In 2000-2002 many State Governments enacted the Right to Information Act which is operative in the respective states only. Then the Union Government in the year 2002, passed the freedom of Information Act. But this central legislation contained many lacunas. Jurists criticized the Act of 2002 because it did not satisfy the aspiration of the citizens; they wanted it to be more progressive, positive, participatory and meaningful. The National Advisory Council recommended certain important changes to ensure greater access to information. The Union Government examined the suggestions made by the National Advisory council and others and decided to repeal the Act of 2002. It then enacted the Right to Information Act, 2005, which is since then considered as a landmark step in the field of Fundamental Right of Freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Thus right to information is an inherent right under Article 19(1)(a) of the Constitution.

Another noteworthy thing is language of article 19(1)(a), and rest of the other sub-clauses of article 19 i.e.[19(1)(b), 19(1)(c), 19(1)(d), 19(1)(e), 19(1)(g)], where the word ‘freedom’ antedate ‘Speech and expression’ unlike sub-clauses [19(1)(b), 19(1)(c), 19(1)(d), 19(1)(e), 19(1)(g)] where the word ‘freedom’ does not precede[1]. This in a way suggest that article 19(1)(a) is somewhat at a higher pedestal as compared to rest of the sub-clauses but with this line of argument author in no way trying to say that 19(1)(a) is to be given more primacy over other sub-clauses i.e.[19(1)(b), 19(1)(c), 19(1)(d), 19(1)(e), 19(1)(g)].

Right to know not only implicitly or tacitly flow through article 19(1)(a) of the Constitution of India but various Judgments by Hon’ble Supreme Court have made the position pretty much clear that right to information is a facet of the freedom of ‘speech and expression’.

In People’s Union for Civil Liberties v. Union of India[2], a division bench of the Supreme Court of India constituted by Justice S.B Sinha and Justice B.M. Khare held that “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. Right to information, thus, indisputably is a Fundamental Right”

Here it is also recognized that a reasonable restriction on the exercise of the right is always permissible for the security of the state.

In State of U.P v. Raj Narain[3], it has been held that “in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but 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 bearing.”

In S.P Gupta v. Union of India[4], it is observed that to ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the government. Democracy expects openness and openness is a concomitant of a free society. But in earlier two cases the Apex Court was silent on the relationship between the restriction which should be imposed on the right to know and the reasonable restrictions which are already existing on the freedom of speech and expression under article 19(1)(a).

In Secretary, Ministry of Information and Broadcasting, Govt. of India v. The Cricket Association of Bengal[5], the Supreme Court says that freedom of speech and expression includes right to acquire information and disseminate it. It enables people to contribute to debate on social and moral issues. Right to freedom of speech and expression means right to education, to inform, to entertain and right to be educated, informed and entertained. Right to telecast is, therefore, within the ambit of Article 19(1)(a).

In Union of India v. Association for democratic Reforms[6], the Supreme Court observed that the Voters’ right to know the antecedents of the candidates is based on the broader interpretation of Article 19(1)(a).

The foundation of healthy democracy is to have well informed citizens. Free and fair election is the basic structure of the constitution and for that, information about the candidates, eg. Whether the candidate is literate, what is his asset and liability, whether he is charged with any criminal offence, these must be known to every voter.

In Bennet Coleman and co. v. Union of India[7], the Supreme Court looked at the freedom of press which is within the ambit of Article 19(1)(a) from another angle. The Constitutional Guarantees for the freedom of speech is not so much for the benefit of press as it is for the benefit of the public. The freedom of speech includes within its compass the right of all citizens to read and be informed.

Apart from these leading cases there are many cases where people’s right to know and right to information have been upheld. The purpose of discussing all these is to show that we already have right to information as guaranteed by Article 19(1)(a) of the Constitution of India. Moreover, as an extended part of the freedom of speech and expression, the right to know and to be known is our Fundamental right as ensured by Chapter III of the Constitution. As per the constitution if there is violation of fundamental right by the state, the aggrieved person may go to the Supreme Court under Article 32 or to the High Court under article 226 directly. But after passing of the right to information act, 2005, this fundamental right becomes only a statutory right.

 

Chapter-2: Right to Information in the present Era of Globalization, Liberalization and Privatization

Within a little span of five years, as this much can be conceded, the RTI Act has become a right of rights in the neo-liberal scenario of a ‘globalised’ India. For the time being, let us accept, like David held[8] that ‘globalization’, is an ill-defined and controversial word that captures a number of different trends, all with implications for state power. Like many third world economies, India too had willy-nilly chosen the path of liberalization and that led to heavy banking on the FDI, even in the core sector, which was something unimaginable even in the first half of the 1980s. We have already mentioned that many international monetary agencies, on which India had to rely on, for paying off debts and huge deficits on one hand and taking fresh loans on the other, had on their part began to impose various conditionalities, which a radical Marxist might describe as the diktat of the ‘global imperialism’[9] from another perspective this can be called the rule-setting of a newly emerging ‘Empire’[10].

In the backdrop of rolling back of the state-run enterprises and welfare projects on one hand and decline in the old rigor of political sovereignty on the other, increasing flow of money, technology, people and goods are taking place across national boundaries. This requires new rules of the game to be set not nationally but by international agencies. Of course, the old rhetoric of state sovereignty will be there but it has to adjust, to a great extent, with the global rules. The new global networks of power thus emphasize certain intertwined global rules economic (including trade practices, monetary and technological/communicational exchanges), political (which highlight universal democratic rights or human rights), environmental (which especially impose various restrictions on pollution creating industries and practices) and demographic (which seeks to build a global regime for controlling migration and displacement). So in the present era of globalization a balance must be maintained between right to information and developmental programs so that the objective laid down in the preamble to the Constitution of India are fulfilled.

While the RTI Act states that only those private organizations which have “substantial” funding from the government come under the purview of the RTI Act, in cases where these entities are in partnership with the government, it is possible to get necessary information. The Pune-Mumbai Expressway toll matter is a sterling example of this[11]. Public authority has been defined under section-2(h)[12] of the right to information act, 2005.

From the above discussion it is clear that the ambit of the Right to Information Act covers only public sector. So far as private sector is concerned like partnership business, private companies and factories, multinational companies which have their head offices outside India, NGOs not financed by the government etc. the Act remains silent. Therefore private bodies or authorities are not under obligation to furnish any sort of information if asked for. The Act is operative in the public sector only. The Act has no application in the private sector.

2.1: Private Sector under Right to Information: Now, there have been lot many arguing to bring private sector under the ambit of Right to information[13] and they argue that India is a different country today from what it was in 1955 when the Congress vowed to establish a ‘socialistic pattern of society’ because of a mistaken faith in the efficacy of a state-controlled economy. The error was rectified three-and-a-half decades later when under the threat of a balance of payments crisis; the doors were opened to the private sector to play a larger role. Since then, the benefits of the change have been evident in a higher rate of growth, signs of economic buoyancy, an expanding and increasingly prosperous middle class and an atmosphere of hope where it is possible to believe that considerable progress can be made to eradicate the country’s poverty. Though this cannot be disputed that economic reforms in the early 1990’s (1991) proved out to be very fruitful for the economy of India and it gave any private player in the world an opportunity to invest in India (subject to very basic and standardized norms) hence as a matter of reciprocity there must be some kind of accountability which ought to be shown by these private sectors also but today in India every other product is a foreign product and our economy too much depends upon economy of the world and hence bringing private sectors under the ambit of the Right to information may adversely affect the developmental progress of our country because if so much governmental interferences and public accountability is there then private players would be reluctant to invest in our country, but with this line of argument author in no way trying to suggest that private players can do whatever they like and exploit people to any extent and always they are subjected to laws of the land, though right to information in the private arena at present may not be feasible as our economy is so much intertwined with the economy of the world but people of India can always resort to other constitutional remedies.

Chapter-3: Right to Information as a tool for good governance

As per the World Bank, the united nation commission on human rights and Asian development bank the good governance includes some attributes and some of them are discussed here:

 

  • Accountability
  • Transparency
  • Rule of Law
  • Participation

“Good governance”[14] means the efficient and effective administration in a democratic framework. It involves high level organizational efficiency and effectiveness corresponding in a responsive way in order to attain the predetermined desirable goals of society. According to the World Bank document entitled ‘Governance and Development (1992)’, the parameters of good governance are as follows:

  1. Legitimacy of the political system.  This implies limited and democratic government.
  2. Freedom of association and participation by various social, economic, religious, cultural and professional groups in the process of governance.
  3. An established legal framework based on the rule of law and independence of judiciary to protect human rights, secure social justice and guard against exploitation and abuse of power.
  4. Bureaucratic accountability including transparency in administration.
  1. Freedom of information and expression required for formulation of public policies, decision-making, monitoring and evaluation of government performance.
  1. A sound administrative system leading to efficiency and effectiveness.
  2. Co-operation between government and civil society organizations.

In light of the above, if one were to venture a list of parameters that go into determination of the quality of governance, the major factors would include limited Government, legitimacy of the Government, political and bureaucratic accountability, freedom of information and expression, transparency and cost effective administration, established legal framework based on rule of law for protecting the human life, securing social justice and checking abuse of power[15].

The basic premise behind the right to information is that, since Government is ‘for the people’; it should be open and accountable and should have nothing to conceal from the people it purports to represent.   In a responsible Government like ours where all the agents of the public must be responsible for their conduct, there could be no secrets. The right to know, though not absolute, makes citizens wary when secrecy is claimed for common routine business of administration. Such secrecy is hardly desirable. Information is an antidote to corruption, it limits abuse of discretion, protects civil liberties, it provides consumer information, it provides people’s participation and brings awareness of laws and policies and is the elixir of the media.

Currently, the words “governance” and “good governance” are being increasingly used in development literature. “Bad governance” is being increasingly regarded as one of the root causes of all evil within our societies. Major donors and international financial institutions are increasingly basing their aid and loans on condition that schemes to ensure “good governance” are undertaken. Governance means the process of decision making and the process by which decisions are either implemented or failure in implementation is acknowledged and remedied.   Governance includes national governance, international governance, corporate governance and local governance. Government is one of the actors in governance and so is the public sector. All actors other than Government, public sector and the military constitute “civil society”.

According to a paper prepared by the Human Rights Initiative, good governance has eight major facets. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It is assessed that if corruption is minimized, the views of the minorities and vulnerable members of society are heard, that promotes governance. Good governance is an ideal which is difficult to achieve in its totality. However, to ensure sustainable human development, action must be taken to work towards this ideal. The right to information is one of the methods by which success may be achieved in good governance.

It is a common grievance of citizens that representations or statutory applications or appeals, are kept pending for long periods, sometimes months or years, without disposal.  Where the applicant is likely to benefit monetarily, such as where has to get money for services rendered under a contract or a refund of amounts payable to him by public authorities, there is a tendency to keep the matter pending for ulterior motives including corrupt motives. In some other cases, applications are simply disposed of as rejected or saying that the Government or the concerned authority “finds no reason” to accede to the request etc. The avoidance of reasons is a device usually resorted to by officials who have no good reasons for denial of the relief.

3.1: Corruption as hindrance: Corruption in India is the biggest challenge for development. The culture of corruption has become well entrenched in the society .The Prime Minister of India has felt that there is corruption both at political and administrative level. In 2007 when Hon‟ble PM addressing the IAS probationers of 2006 stated that “the barriers of administrative and political corruption should be tackled by the upcoming bureaucrats and quality of governance be improved at all levels to build an India ‘worthy of our dreams’. If there are barriers, there are barriers in our country, in our good governance, in our governance processes. It is a fact [that] there is lot of corruption, both at the political level and at the administrative level. We must take it head on.”[16]

On the inaugural of the conference of CBI in 2011, the same PM stated that there is very large scale Corruption, even in high places and many big fishes are escaping and they should be caught and severely punished. Corruption in India is deep rooted and people are concerned in corruption „at the cutting edge level of administration‟. A detailed empirical research in 2007-08, focusing on 22,728 households living below the poverty line, found that they paid about 9000 million in bribes to access basic and need based public services[17]. A similar survey was conducted in 2005 on 14,405 responds found that citizens had paid the bribe to the tune of Rs. 21,068 Crores to avail public services[18]. These studies set up corruption as one of the major obstacle in governance. A corruption in governance affects the economy of the country and indirectly affects all types of development of the citizens. Recently in times of India it was reported that out of many lakhs of crores released by the government of India for eight national schemes. It was founded by the CAG that at least a sum of Rs. 51000 allocated to these schemes has not been counted for. Imagine if in a single year so much have been big amount been siphoned off by only eight schemes, suppose how much money earmarked for the poor have been siphoned off by all government initiatives .

In 2012 India’s rank has declined in one rank but it is not the appropriate ranking for the point of good governance .Though during the above mentioned period indicates the serious corruption problem in the country. There continues to be a decline in India‟s Integrity Score to 3.1 in 2011 from 3.5 in 2007, 3.4 in 2008 & 2009, 3.3 in 2010. Accordingly, India‟s rank on Transparency International’s corruption Perception Index (CPI) has also declined further to 95 out of 183 countries surveyed this year, from 87 out of 178 countries in 2010, indicating a serious corruption problem[19].

 

 

 

 

 

 

 

 

 

 

Chapter-4: Limitations of Right to Information Act

The Act itself is self-restrictive in nature. The Act does not make the Right to Information an absolute right but imposes restriction on this right. Section 8(1)[20] of the Act deals with exemption from disclosure of information.

Though in the proviso clause and under Sub-Section (2), (3) of Section 8 again restrict

Section 8 (1) to some extent by saying those information which cannot be denied to the Parliament or a state legislature shall not be denied to any person or by giving overriding effect of the Act over the Official Secrets Act, 1923, by saying if public interest in disclosure outweighs the harm to the protected interest, in such case public authority may allow access to information. But this has to be kept in mind that proviso clause of Section 8 (1) and Sub-Sections (2) and (3) are exceptions and exemption from disclosure of certain information as stated earlier is the rule.

Section 9 of the Act says that a Central Public Information Officer or a State Public Information Officer may reject a request for information where such a request for providing access to information involves an infringement of copyright subsisting in a person other than the state.

Section 24 lays down that the Act has no application to certain organizations. These are the intelligence and security organizations specified in the Second Schedule of the Act, as organizations established by the Central Government.

The Act also cannot be applied for certain intelligence and security organizations established by the State Government as that Government may, by notification in the Official Gazette specify. Information pertaining to the allegations of corruption and violation of human rights shall not be excluded under this Section. Only one exception is that if the information in respect of violation of human rights is there, after obtaining the approval of Central Information Commission such information shall be provided.

The intelligence and security organizations established by the Central Government not under the purview of the Act and some of this are-

  1. Intelligence Bureau
  2. Research and Analysis wing of the Cabinet Secretariat
  3. Directorate of Revenue Intelligence
  4. Central Economic Intelligence Bureau
  5. Directorate of Enforcement
  6. Narcotics Control Bureau
  7. Aviation Research Centre
  8. Special Frontier Force
  9. Border Security Force
  10. Central Reserve Police Force
  11. Indo-Tibetan Border Police
  12. Central Industrial Security Force
  13. National Security Guards
  14. Assam Rifles
  15. Sasastra Seema Bal
  16. CID Special Branch, Andaman and Nicobar
  17. The Crime Branch – CID – CB, Dadra and Nagar Haveli
  18. Special Branch, Lakshadweep Police
  19. Special Protection Group
  20. Defense Research and Development Organization
  21. Border Road Development Board
  22. Financial Intelligence Unit, India

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter-5: Conclusion

In this scenario, the following brief observations may be worth considering.

First, it seems to be clear that, at this stage, the groups and individuals have to be willing to fight for their right to information, often taking their requests through several stages of appeal. If the political culture does not support and encourage that sort of behavior, citizen participation will give only the appearance of having expanded. Transparency is an openness with respect to knowledge and information that builds and binds trust between the institutions of governance and the citizenry at various levels of social interaction. In effect, it implies establishing the right to information as an aspect of constitutionalism (a system of check and balances), including a strong bias against public sector secrecy and covert operations.

Second, has the codification of the Right to Information in India simply been able to get more information out of the governmental closet or has it also made the babus learn new tricks to hide the information more effectively than reveal them? But the act is that much strong and effective that it empowers people hence the former is what provided by the act. Much vital information with regard to the welfare of the people is out of bounds on the pretext of official secrecy, national security and terrorist threats and this is the exception to the right to information for the greater public good.

Third, there may not always be any standardized form of disclosing information. But, it is necessary to note that, unlike many other countries, India still has not been able to develop a culture of proactive disclosure of information. Perhaps the colonial hangover acts as a major hindrance to such disclosures. Therefore, a vocal minority has so far been able to get access to huge amount of information, but the silent majority of Indians are far away from that access. After all, when the state had to recognize this right under pressure from the civil society, probably the agencies of the state did not have any idea what would really happen when the information ‘genie’ would be let out of the bottle.

Fourth, on another front, as this capitalist globalization entails more privatization, the question remains how far this law would be effective in having access to information so far as a huge sector of the non-state actors and private enterprises are concerned. This is a crucial issue in view of the large-scale asymmetries of globalization. As a general rule always a balance must be maintained right to information and private investors so that the common good and developmental programs could be attained simultaneously.

Fifth, the growing access to information has made the state more accessible in many cases. But, access to information may not necessarily lead to empowerment of the people and right to information is only a tool with the help of which people could be empowered and it solely up to an individual as to how he utilizes that information for the better facilitation of his right to information act.

Finally, it is important to note that, even for having crucial information relating to governance, a right-enabling public sphere is absolutely important. A Habermasian public sphere of free and unforced discussion is still far-fetched as right to information, though it is framed in an effective language, alone cannot eradicate all the grievances of the people as right to information and whistle blowers are two side of the same coin. Moreover, if there is any tendency of a civil society subjecting itself to the mentalities and regimen of the state to a large extent, then even the enactment of the right enabling the access to information may not take us far. In the absence of a rational debate, simple access to information is not enough.

[1] Article-19(1) All citizens shall have the right-

  • to freedom of speech and expression;
  • to assemble peaceably and without arms;
  • to form associations or unions;
  • to move freely throughout the territory of India;
  • to reside and settle in any part of the territory of India;
  • [Repealed]
  • To practice any profession, or to carry on any occupation, trade or business.

[2] AIR 2004 SC 1442:(2004) 2 SCC 476;

[3] (1975) 4 SCC 428;

[4] (1981) Supp SCC 87;

[5] (1995) 2 SCC 161;

[6] (2002) 5 SCC 294;

[7] AIR 1973 SC 60;

[8] David Held, et al. (1999): Global Transformations: Politics, Economics and Culture. Stanford: Stanford University Press;

[9] Robert McChesney, ‘Global media, neo-liberalism & imperialism’ in International Socialist Review, Aug/Sep 2001, Chicago.

[10] Michael Hardt & Antonio Negri (2000): Empire, Cambridge, Ma.: Harvard University Press;

[11] http://www.moneylife.in/article/do-private-organisations-come-under-the-purview-of-rti/15338.html; Money life, Janurary 19, 2014; (for the details of the case);

[12] 2(h) “public authority” means any authority or body or institution of self-government was established or constituted-

  • By or under the constitution;
  • By any other law made by Parliament;
  • By any other law made by State Legislature;
  • By notification issued or order made by the appropriate Government, and includes any-
  • Body owned, controlled or substaintially financed;
  • Non-government organization substaintially financed, directly or indirectly by funds provided by the appropriate Government;

[13] http://www.newindianexpress.com/editorials/article520371.ece, Indian Express, Sunday, January 19, 2014;

[14] http://webcache.googleusercontent.com/search?q=cache:Uu8mxq2T K8J:supremecourtofindia.nic.in/speeches/speeches_2005/rti.doc+&cd=2&hl=en&ct=clnk&gl=in

Y.K Sabharwal (Former Chief Justice of India) on Good Governance

[15] See Importance of Human Right to Information – A Key to Good Governance by Ms. Prabha, S.D. College, Muzaffarnagar, UP, contained in chapter 27 of the book, Good Governance in India, edited by C.P. Barthwal.

[16] HAGDE N. Santosh, Effect of Corruption on Good Governance, First CIPS Foundation Day Lecture, accessed at http://www.cips.org.in/public-sector-systems-government-innovations/documents/NS Hegde_CIPSFDL_ed20May11.pdf;

[17] Centre for Media Study Transparency International India, “Tii-Cms India Corruption Study 2007 with Focus on Bpl Households: National Report,” (CMS India Transparency International India, 2008)

[18] Transparency International India, “India Corruption Study 2005 to Improve Governance,” (New Delhi: Centre for Media Studies, 2005).

[19] http://www.transparencyindia.org/resource/press_release/Corruption%20Perception%20Index%202011.pdf # 2012 scoring and ranking are based on TI report and CPI index 2012.

[20] Right to Information Act, Sec-8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, –

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law

or tribunal or the disclosure of which may constitute contempt of court ;

(c) information disclosure of which would cause a breach of privilege of Parliament or

the State Legislature ;

(d) information including commercial confidence, trade secrets or intellectual property,

the disclosure of which would harm the competitive position of a third party, unless the

competent authority is satisfied that larger public interest warrants the disclosure of such information ;

(e) information available to a person is his fiduciary relationship, unless the competent

authority is satisfied that the larger public interest warrants the disclosure of such information ;

(f) information received in confidence from foreign Government ;

(g) information, disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law

enforcement or security purposes ;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders ;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers ;

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over ;

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

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