CONSTITUTIONAL BASIS OF RIGHT TO INFORMATION ACT 2005: PRANAV KAUSHAL

PROLOGUE

It is often said that in modern society information is power. By sharing that information with the people at large, we are therefore, proposing decentralisation and participatory governance. It is revolutionary enactment that has placed huge powers in the hands of the ordinary citizen of the country to demand a transparent and accountable administration. “The real Swaraj will come not by the acquisition of authority by a few, but by the acquisition of capacity by all to resist authority when abused”. When Mahatma Gandhi said this, he may not have imagined that one day India will have to make a law to empower people for something as basic as seeking information about the development of the country. The date of 12th October, 2005 shall be remembered as a new era of empowerment for the common man in India. It is applicable everywhere except the state of Jammu and Kashmir. This law was passed by Parliament on 15th June 2005 and came fully into force on 12th October 2005. Information disclosure in India was restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes. The effective date is often incorrectly referred to as 13th October 2005. But, since the Act came into force on the midnight between the 12th and 13th therefore the official date is 12th October 2005.An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. t has been oft repeated that secrecy ought not to be more than what is absolutely necessary. A regime of secrecy is antithetical to a democratic society. One of the fundamental rules of good governance in a democracy is openness. The peoples’ right to know, therefore, is a prerequisite to a healthy and meaningful political intercourse between the people and the democratic State. The right to know has taken long in finding a firm footing in India. Independent India never rid itself of the colonial culture of the unreachable, unquestionable, holier-than-thou babus, something that has, for obvious reasons, proved to be a major barrier to transparency in the administrative decision-making process.

Information empowers the people and permits them to appropriately exercise their social, legal, economic and political rights. Almost every society has tried to make endeavors by placing the mechanisms for the free flow of information and ideas for people to access them whenever it is required. There are a number of reasons which emphasize the necessity of such a right in a country like India, which unfortunately carries the dubious tag of being one of the most corrupt nations. Right to information is thus a potent instrument for countering corruption and punish the guilty. The Right to information is therefore central to the achievement of the Millennium Development Goals. Information as a term has been derived from the Latin words ‗formation‘ and ‗forma‘ which means giving shape to something, and forming a pattern respectively? It adds something new to awareness. Information is needed by human beings to realize their full social, political and economic potential. It entails a spectrum of knowledge about various issues and involves different stakeholders from market to government. It is the key which helps make decisions. It is also a public resource collected and stored by government in trust for people.

CONSTITUTIONAL BASIS AND PROVISIONS
The Indian constitution has an array of basic and inalienable rights termed as Fundamental rights contained in Chapter III. These include the right to equal protection of the laws and the right to equality before the law, the right to freedom of speech and expression and the right to life and personal liberty. These are backed by the right to Constitutional Remedies under Article 32. The legal position with regard to the right to information has developed through several Supreme Court decisions given in the context of fundamental rights. The legal discourse on the right to information started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right of freedom of speech and expression such as challenging governmental orders for control of newsprint.

• ARTICLE 19(1)(a)
This provision guarantees the fundamental right to free speech and expression, which includes within it the right to access information. The pre-requisite for enjoying this right is knowledge and information. Thus the right to information becomes a constitutional right as the right to free speech also guarantees right to receive and collect and information. Article 19(2) permits the State to make such laws as to impose reasonable restrictions on the exercise of the freedoms guaranteed under this provision on grounds such as security of the state, sovereignty and integrity of India and other grounds as enumerated in the provision.

• ARTICLE 21
This article talks about right to life and personal liberty, which includes the right to know about things that affect our lives. The expression ―life and personal liberty‖ is a broad term, which includes within itself variety of rights and attributes. The Supreme Court read into this article as a broad right to include right to know within its purview. The apex court held that ―right to know is a necessary ingredient of participatory democracy……… It is wide enough to expand to a full range of rights including the right to hold a particular opinion and the right to sustain and nurture that opinion. It confers on all persons a right to know which includes right to information.

• ARTICLE 32
This article guarantees a right to constitutional remedies on the situation of a violation of the fundamental right of any citizen. The constitution also imposes certain duties upon the citizens under Article 51 A. A fully informed citizen is better equipped for the performance of these duties. RTI is not specifically mentioned in the Seventh Schedule of the Constitution, and does not fall under any of three subject lists of the Constitution. As such it is a residuary matter and the power to legislate on such matters rests with the Central government.

RIGHT TO INFORMATION- A FUNDAMENTAL RIGHT
• Bennett Coleman & Co. v Union of India The judges in this case remarked; ―it is indisputable that by freedom of the press meant the right of all citizens to speak, publish, and express their views……Freedom of speech and expression includes within its compass the right of all citizens to read and be informed.

• Prabha Dutt v. Union of India The court held that there could be no reason for refusing permission to the media to interview prisoners on death row. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give directions to the concerned agencies for ensuring transparency in their functioning.

• Sakal Newspapers (Private) Ltd. v. Union of India The Supreme Court held that the impugned Act and the Order imposed unconstitutional restriction on the freedom of the press. The court also held that restriction upon freedom of speech was to be examined with lesser presumption of constitutionality than the restrictions upon freedom of trade or business. The court brought in the preferred freedom doctrine in Indian Constitution.

• Romesh Thappar v. State of Madras One of the earliest cases where the Supreme Court laid emphasis on the people‘s right to know. There the petitioner had challenged an order issued by the then Government of Madras under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposing a ban on the circulation of the petitioner‘s journal Cross Roads was struck down as voilative of the right to freedom of speech and expression under Article 19(1)(a).

• S. P. Gupta v. Union of India This case is popularly known as Judges Transfer case, Bhagwati, J. had advised in the landmark case that it is essential for the people to have as much information about governmental operations as possible. Participation in government by the people is regarded, as an important aspect of democracy and people cannot participate unless they have information as to what is going on in the country.

• In Dinesh Trivedi v. Union of India Which concerned the questions of the disclosure of the Vohra Committee Report, the Supreme Court once again acknowledged the importance of open Government in a participative democracy. The Court observed that: ―In modern constitutional democracies, it is axiomatic that 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.‖ It went on to observe that ―democracy expects openness and openness is concomitant of a free society and the sunlight is a disinfectant.

• Association for Democratic Reforms v Union of India The Delhi High Court has emphasized that the right to information acquires great significance in the context of elections. It is now common knowledge that there is criminalization of politics in India. It is a matter of great concern that anti-social and criminals are seeking to enter the political arena through the mechanisms of elections to State Legislatures and even to Parliament. Parliament has not yet been able to enact a law to uproot this evil. In this scenario, the Delhi High Court has sought to cleanse the electoral process through the mechanism of the right to know of the people and laid down certain conditions which the apex court also agreed on appeal. The apex court went on to say that one-sided information, disinformation, mis-information and non-information will equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.

• M. Nagaraj v. Union of India It was held that right to know and right to access information is implicit in the right of free speech and expression guaranteed under Article 19(1) (a). The right to information has both intrinsic and instrumental value. Its intrinsic value comes from the fact that citizens have a right to know. It is a crucial step towards a deeper, more meaningful democracy. More tangibly, in a country like India it can promote action for development and therefore has considerable instrumental value. Information enables people to make enlightened choices, and keep tabs on elected representatives and officials who claim to act on their collective behalf. Thus, accountability and transparency are both enhanced radically.

• PUCL v. Union of India Section 14 of POTA the obligation to furnish information was held to be intra-vires Articles 14, 19, 20(3) and 21.Neither a lawyer can claim professional communication beyond what is permitted under section 126 of Indian Evidence Act, nor is there any law permitting a newspaper or a journalist to withhold relevant information from courts, nor can withholding of such information be traced to the right to privacy, which itself is not an absolute right.

CONCLUSION
In Maneka Gandhi vs. Union of India, Justice V. Krishna Iyar opined that “A government which functions secretly not only act against the democratic decency, but buried itself with its own burial.” In a democratic setup there must be direct participation of the people in the democracy. This participation is meaningless unless the citizens are well informed on all sides of issues in respect of which they are called upon to express their views. One sided information, disinformation, misinformation and non-information all equally create uninformed citizenry which makes democracy a farce, When medium of information is monopolized either by a partisan central authority or by private individuals or oligarchic organizations. Therefore to avoid this monopoly the duty of the government is to give information to the people of the country because the government is the trust of the people. In this reference, Henery Clay rightly observed that “government is a trust and the officers of the government are trustees and both the trust and the trustees are created for the benefit of the people.” Every democracy requires an informed citizenry and transparency of information which are vital for its functioning and also to contain corruption and to hold Governments and their instrumentality accountable to the governed. For setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities and to promote transparency and accountability in the working of every public authorities RTI is intrinsic right. No democracy can be meaningful where their citizens cannot audit the performance of the government business, bureaucrats and the other functionaries who act on behalf of the state. In order to audit the performance of the government, the people have to be well informed of its policy, actions and failures. An informed citizenry is a pre requisite for guanine and participatory.

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