RIGHT TO KNOW AND BEING INFORMED

Introduction:

The right of giving information and being informed is two-fold criteria of a democratic country like India where the Government’s people and the people’s Government are connected through the only link ‘media’. Media, in different forms, plays the key-role of a vehicle of information. However, the mobilization of necessary information is often hindered by the self-censorship, statutory censorship, secrecy, public order, and integrity and economic market forces.

Right to information or right to know relates to any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public
authority under any other law for the time being in force. In simple terms it means that information is anything, which exists in any form with a public authority. The specific instances –records, documents, memos, emails, opinions, advices, reports, samples, and models are merely meant to illustrate the broad scope. (1)

Origination:

Freedom of having information has struggled through the times of Internal Emergency in force between 1975 and 1977. Now, since then, by virtue of scores of Supreme Court judgments right to information and knowledge has been protected and governed under the purview of Article 19 (1) (a) of the Indian Constitution as a fundamental right. Thus, though right to know does not have a separate status of a fundamental right, it emanates from the fundamental right to speech and expression provided in Article 19 (1) (a).

Right to know and right to information go hand in hand and one cannot be exercised without the other.

In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (2) it was held by the Supreme Court that the basic purpose of freedom of speech and expression is that all the members should be able to form their beliefs and communicate them freely to others where the fundamental principle involved is the people’s right to know and be informed.

In Express Newspaper Case (3) the Supreme Court emphasized on including right of information and free communication in the fundamental right of free speech.

Impediments in Information Regime in India:

While there exists in India as in any other commonwealth countries a common law right to have access to ‘public information’, the whole flow of information is severely restricted by the following three factors:

a)       Matter of Mindset:

In India, there exists a pervasive culture of secrecy and arrogance of the bureaucracy towards the common man in which the Government holds out as and is perceived by the public as lord and master. This is compounded by the fact that while there are several laws prohibiting or restricting giving of information, there is no clear enabling central legislation for the public’s right to access information held by the Government. Though there are few state legislation in this connection but it lacks the teeth and system of effective enforcement.

In Bihar, a well-known and respected activist went to jail for several months on a false charge for daring to demand the details of expenditure of a local school building. (4)

In Rajasthan , where the right to get information from the local bodies has been notified since 1997, civil society groups have had a virtual battle to get records of simple development works from the local panchayats. After a series of military exercises to avoid giving the records, including a formal resolution of the gram Sabha disapproving the requester, the Mazdoor Kisaan Shakti Sangathan, the documents were obtained at the instance of the gram sewak, a local functionary.

b)            Poor Record Keeping:

Apart from keeping stacks of dusty files, misplacing them and hiding or delaying them in producing in order to be greased by the seeker in many governmental departments, there are also large-scale computerized programs, only a few of which reach out to the IT disabled villages and small towns.

However, notable among some IT success stories is ‘Gyandoot’ experiment in Dhar Distric in Madhya Pradesh in January, 2000 networking and catering to almost 600 villages. (5)

c)            Low Literacy Levels and Poor:

The resistance to giving information of any sort is compounded by two factors-the level of illiteracy and lack of effective communication methods. In our country, there is overdependence on the written word and traditional means of communication.

The traffic slogan in writing ‘do not drive when drunk’ is mostly in vain due to illiterate people being blind to writing in English.

Some of the successful use of mass media to inform people are ‘tinka tinka sukh’ (6), the leprosy eradication program and the HIV program.

Restrictive Legislations:

The system of governance in India has been traditionally opaque, with the state donning the mantle of colonial secrecy almost right from the beginning, by retaining the Official Secrets Act as well as the administrative structure which was designed to distance the masses from governance. Consequently, information and knowledge as a culture was neither consciously developed nor reflected in major legal changes until a few years ago.

The Official Secrets Act & Its Statutory Framework:

The Official Secrets Act 1923 is India's anti-espionage act held over from British colonization; a replica of the original British Official Secrets Act with negligible amendments in 1967. It states clearly that any action which involves helping an enemy state against India. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area. According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy. The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act.

Sections 3 and 5 have strongly been responsible for most of the state responses in clamping down on all sorts of information, even to the extent of curtailing people’s fundamental rights. In recent Narmada Bachao Case (7) the Act was widely used to prevent activists and journalists from going there and chock the flow of information, however innocuous.

In 1954, the First Press Commission though felt the need of ensuring that secret governmental policies are divulged, no modification of the Act was recommended. In 1982, the Press Commission recommended the modification or replacement of Section 5 of the Act. (8). A.G. Noorani quoted that the Act is in breach of the fundamental right to freedom of speech and expression as well as of the right to life and liberty (9).

In June 2002, journalist Iftikhar Gilani was, arrested for violating the OSA 1923. He was charged under the OSA, with a case under the Obscenity Act added to it. The first military report suggested that the information he was accused of holding was "secret" despite being publicly available. The second military intelligence report contradicted this, stating that there was no "official secret". Even after this, the government denied the opinion of the military and was on the verge of challenging it when the contradictions were exposed in the press. The military reported that, "the information contained in the document is easily available" and "the documents carry no security classified information and the information seems to have been gathered from open sources". On January 13, 2003, the government withdrew its case against him, releasing him the same month to prevent having two of its ministries having to give contradictory opinions. (10)

The Delhi high court greatly reduced the powers of the act by ruling publication of a document merely labeled ‘secret’ shall not render the journalist liable under the law. (11)

Facilitating Legislations:

After the requirement of public hearing or mandatory disclosure under few laws was put into force, the conflict between right to information and official secrecy was a little alleviated.

Sections 76 & 75 of the Evidence Act:                                                                                                                                Section 76 provides that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.

Section 75 makes clear the meaning of public documents i.e. documents forming the acts or records of the acts of the sovereign authority, public bodies and tribunals, public officers, legislative judicial and executive, of any part of India or of commonwealth, or of a foreign country, public records kept in any state of private documents.

Section 41B of the Factories Act:                                                                                                                                              The occupier of every factory involving a hazardous process shall disclose in the manner prescribed all information regarding dangers, including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the Chief Inspector, the local authority within whose jurisdiction the factory is situate and the general public in the vicinity. Thus, under this Act, it is compulsory to suo motu disclose necessary information. However, there is no recourse provided to the aggrieved individuals on non-compliance with the provision other than filing a court case.

Section 25 (6) of the Water (Prevention and Control of Pollution) Act, 1974:                                                                             It is a mandatory provision that every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in or affected by such outlet, land or premises, as the case may be, or by any person authorized by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.

Section 3 of the Environment (Protection) Act, 1986, Rule 5(3) (a) of the Environment (Protection) Rules, 1986 and Paragraph 2(l) (a) read with Schedule IV of the Environmental Impact Assessment Regulations:                                                                                      Section 3 of EPA- It empowers the Government to take measures to protect and improve the environment.

Rule 5(3) (a) of EPR-It empowers the Government to call for objections from the public within 60 days from the date of publication of the notification against the intention of the Government to impose restrictions and prohibitions on the expansion and modernization of any activity or new projects being undertaken unless environmental clearance has been accorded.

Paragraph 2(l) (a) read with Schedule IV of EIAR- It lays down the procedure for public hearings and the requirement for the public to be given the executive summary of the proposal prepared by the person seeking to execute any such project. (12)

Although this provision is meant to be a tool for voicing citizens’ concerns, the limited nature of the access is a hindrance in making the provision effective.

Right to Information Acts:

The central Right to Information (RTI) Act was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005. Information disclosure in India was hitherto restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes.

The RTI Laws were first successfully enacted by the state governments of — Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004). The Maharashtra and Delhi State level enactments are considered to have been the most widely used. The Delhi RTI Act is still in force. Jammu & Kashmir has its own Right to Information Act of 2009, the successor to the repealed J&K Right to Information Act, 2004 and its 2008 amendment. The Government of India's purported intention in 2006 to amend the RTI Act was postponed after public disquiet, but has been revived again in 2009 by the Department of Personnel and Training.

For the first time in the history of independent India, there is a law which casts a direct accountability on the officer for non-performance. If concerned officer does not provide information in time, a penalty of Rs 250 per day of delay can be imposed by the Information Commissioner. If the information provided is false, a penalty of a maximum of Rs 25000 can be imposed. A penalty can also be imposed for providing incomplete or for rejecting your application for malafide reasons. This fine is deducted from the officer’s personal salary.

Gogoi, who is one of the best-known social activists of Assam, started an RTI investigation in March 2006, followed by a social audit, that led to the expose of a Rs 1.25 crore scam in Sampoornai Gram Rozgar Yojana (SGRY) and Rs 60 lakh scam in Indira Awas Yojana in Gamariguri block of Golaghat district.

Bharatsinh R. JhalaJhala conducted an RTI investigation to show that more farmers in Gujarat had been committing suicides than what the state government was prepared to admit, thus bringing to light economic distress of small farmers. (13)

However, Right to Information Act are constrained to be within the frontier for various reasons, e.g. sovereignty and integrity, invasion of privacy, commercial secret, privilege of parliament, insecurity to life, confidential sourrce for enforcement of law.

Freedom of Information Act:                                                                                                                       

Passage of a national level law, however, proved to be a difficult task. Given the experience of state governments in passing practicable legislation, the Central Government appointed a working group under H. D. Shourie and assigned it the task of drafting legislation. The Shourie draft, in an extremely diluted form, was the basis for the Freedom of Information Bill, 2000 which eventually became law under the Freedom of Information Act, 2002. This Act was severely criticized for permitting too many exemptions, not only under the standard grounds of national security and sovereignty, but also for requests that would involve "disproportionate diversion of the resources of a public authority". There was no upper limit on the charges that could be levied. There were no penalties for not complying with a request for information. The Freedom of Information Act, consequently, never came into effective force. (14)

Conclusion:

Access to records and information held by bureaucrats in the name of executive governments will provide much needed enlightenment and entitlement to the people to fight the corruption to bring in the peaceful democratic progress and to have the public money properly utilized in development and improvement of the country. Right to know and being informed are the vital components of strengthening the very root of the society and democratizing the system at the grass root level. Jan Sunwais in Rajasthan is an example of transparency which has been imposed by the people on the Government.  “The right to part with information will require a change in the mindset of legislators and bureaucrats who have been weaned on secrecy and paranoia for decades.” (15)

Reference:

(1)          Section 2 (f) of the Right to Information Act, 2005

(2)          (1985) 1 SCC 641

(3)          Express Newspapers (p) Ltd. v. Union of India (1959)S. C. R. 12

(4)          Under the Prevention of Atrocities on Schedule Casts and Schedule Tribes Act

(5)          The Project has won the Stockholm Challenge Award for Public Service and Democracy.

(6)          A hindi infotainment program broadcast by All India Radio

(7)          Where a large dam being constructed on the Narmada River is being resisted for the huge displacement it will cause.

(8)          Cited from ‘The Right to Information’ in ‘Corruption in India-an Agenda for Change’ by A.G. Noorani

(9)          Article 21 of the Constitution of India

(10)       Introduction to Iftikhar Gilani's book-‘My Days in Prison’ (By the Indian editor, Siddharth Varadarajan)

(11)       http://timesofindia.indiatimes.com/India/Court-redefines-official-secret-relief-to-scribe/articleshow/4192355.cms

(12)       Ministry of Environment and Forests Notification No. S.O.60(E), dated 27^th January, 1994

(13)       Cited from http://rti.ndtv.com

(14)       Cited from http://wikipedia.org/wiki/rti

(15)       Anuradha Raman in her Article on ‘Lifting the Veil of Secrecy” (The Pioneer, page 11, June 17, 1997)