RESEARCH,

REFERENCE

AND TRAINING

DIVISION.

RIGHT TO INFORMATON

RIS/3/2000

The Freedom of Information Bill, 2000 was introduced in the Lok Sabha on July 25 to meet the needs of effective and responsive government. It is the most significant milestone in the history of Right to Information movement in India.

 

NATIONAL DOCUMENTATION CENTRE ON MASS COMMUNICATION

RESEARCH, REFERENCE AND TRAINING DIVISION

(Ministry of Information and Broadcasting)

Website : http://www.nic.in/rrtd

E-mail : rrtd_ib@vsnl.com

 

 

RIGHT TO INFORMATION

‘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.

Information adds something new to our awareness and removes the vagueness of our ideas.

Information is Power, and as the Prime Minister Atal Behari Vajpayee stated, the Government wants to share power with the humblest; it wants to empower the weakest. It is precisely because of this reason that the Right to Information has to be ensured for all.

The Freedom of Information Bill 2000 introduced in the Lok Sabha on 25th July 2000 says that :

    1. Information means any material in any form relating to the administration, operations or decisions of a public authority;

(b) the bill defines public authority as any authority or body established or constituted, ;

      1. by or under the Constitution,
      2. by any law made by the appropriate Government,
      3. and includes any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government.

(c) Freedom of information means the right to obtain information from any public authority by means of-

      1. inspection, taking of extracts and notes,
      2. certified copies of any records of such public authority and
      3. diskettes, floppies or in any other electronic mode or through print-outs where such information is stored in a computer or in any other device.

It will be interesting to mention that Press Council of India prepared a draft Bill in 1996 to make a provision for securing right to information. This draft Bill was named Right to Information Bill, 1996. The Institute of Rural Development, Hyderabad also prepared a bill in 1997. Both the bills initiated a national debate on the issue of Effective and Responsive Administration. The Govt. of India appointed a working group on January 2, 1997. The terms of reference of the Working Group included the examination of feasibility and need to introduce a full fledged Right to Information Bill. This group recommended that a legislation in this regard is not only feasible but is also vitally necessary. The Working Group recommended that the bill should be named as Freedom of Information Bill as the Right to Information has already been judicially recogonised as a part of the fundamental right to free speech and expression.

CONSTITUTIONAL ASPECT OF THE RIGHT TO INFORMATION

Article 19(1) (a) of the Constitution guarantees the fundamental rights to free speech and expression. The prerequisite 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 avoidable 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 51A 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.

RIGHT TO INFORMATION IS NOT ABSOLUTE

As no right can be absolute, the Right to Information has to have its limitations. There will always be areas of information that should remain protected in public and national interest. Moreover, this unrestricted right can have an adverse effect of an overload of demand on administration. So the information has to be properly, clearly classified by an appropriate authority.

The usual exemption permitting Government to withhold access to information is generally in respect of the these matters: (1) International relations and national security; (2) Law enforcement and prevention of crime; (3) Internal deliberations of the government; (4) Information obtained in confidence from some source outside the Government; (5) Information which, if disclosed, would violate the privacy of an individual; (6) Information, particularly of an economic nature, when disclosed, would confer an unfair advantage on some person or subject or government; (7) Information which is covered by legal/professional privilege, like communication between a legal advisor and his client and (8) Information about scientific discoveries and inventions and improvements, essentially in the field of weapons.

These categories are broad and information of every kind in relation to these matters cannot always be treated as secret. There may be occasions when information may have to be disclosed in public interest, without compromising the national interest or public safety. For example, information about deployment and movement of armed forces and information about military operations, qualify for exemption. Information about the extent of defence expenditure and transactions for the purchase of guns and submarines and aircraft cannot be totally withheld at all stages.

NEED FOR RIGHT TO INFORMATION

The Right to Information has already received judicial recognition as a part of the fundamental right to free speech and expression. An Act is needed to provide a statutory frame work for this right. This law will lay down the procedure for translating this right into reality.

Information is indispensable for the functioning of a true democracy. People have to be kept informed about current affairs and broad issues – political, social and economic. Free exchange of ideas and free debate are essentially desirable for the Government of a free country.

In this Age of Information, its value as a critical factor in socio-cultural, economic and political development is being increasingly felt. In a fast developing country like India, availability of information needs to be assured in the fastest and simplest form possible. This is important because every developmental process depends on the availability of information.

Right to know is also closely linked with other basic rights such as freedom of speech and expression and right to education. Its independent existence as an attribute of liberty cannot be disputed. Viewed from this angle, information or knowledge becomes an important resource. An equitable access to this resource must be guaranteed.

Soli Sorabjee stressing on the need of Right to Information aim at bringing transparency in administration and public life, says, "Lack of transparency was one of the main causes for all pervading corruption and Right to Information would lead to openness, accountability and integrity".

According to Mr. P.B. Sawant, "the barrier to information is the single most cause responsible for corruption in society. It facilitates clandestine deals, arbitrary decisions, manipulations and embezzlements. Transparency in dealings, with their every detail exposed to the public view, should go a long way in curtailing corruption in public life."

RIGHT TO INFORMATION IN OTHER COUNTRIES

In recent years, many Commonwealth countries like Canada, Australia, and New Zealand have passed laws providing for the right of access to administrative information. USA, France and Scandinavian countries have also passed similar laws. US Freedom of Information Act ensures openness in administration by enabling the public to demand information about issues as varied as deteriorating civic amenities, assets of senators and utilisation of public funds.

It is not only the developed countries that have enacted freedom of information legislation, similar trends are seen in the developing countries as well. The new South Africa Constitution specifically provides the Right to Information in its Bill of Rights--thus giving it an explicit constitutional status. Malaysia operates an on-line data base system known as Civil Services Link, through which a person can access information regarding functioning of public administration. There is thus a global sweep of change towards openness and transparency.

In USA, the first amendment to the Constitution provided for the freedom of speech and expression. The country had already passed the Freedom of Information Reform Act 1986, which seeks to amend and extend the provisions of previous legislation on the same subject. But this right is not absolute. Recently, the US Supreme Court struck down two provisions of the Communications Decency Act (CDA), 1996, seeking to protect minors from harmful material on the Internet precisely because they abridge the freedom of speech protected by the first amendment. Moreover, the vagueness in the CDA’s language, the ambiguities regarding its scope and difficulties in adult-age verification, make CDA unfeasible in its application to a multifaceted and unlimited form of communications such as Internet.

Sweden has been enjoying the right to know since 1810. It was replaced in 1949 by a new Act which enjoyed the sanctity of being a part of the country’s Constitution itself. The principle is that every Swedish citizen should have access to virtually all documents kept by the State or municipal agencies.

In Australia, the Freedom of Information Act was enacted in December 1982. It gave citizens more access to the Federal Government’s documents. With this, manuals used for making decisions were also made available. But in Australia, the right is curtailed where an agency can establish that non-disclosure is necessary for protection of essential public interest and private and business affairs of a person about whom information is sought.

Even the Soviets, under Mikhail Gorbachev, have realised that "the State does not claim monopoly of truth any longer". Glasnost has cast away the cloud of secrecy and stresses the priority of human values.

Even as steps are taken to ensure openness in matters affecting the public, there has to be a greater sense of responsibility on the part of users of information in the media and elsewhere. Journalists must ensure that they seek information in public interest and not as agents of interested parties.

 

India has so far followed the British style of administration. In Great Britain, Official Secrets Act, 1911 and 1989 are intended to defend national security by rendering inaccessible to the public certain categories of official information. However, the government recognises that access to information is an essential part of its accountability. A recent legislation governing access to public information includes Local Government (Access to Information) Act, 1985; the Environment and Safety Information Act, 1988, and the Access to Health Records Act 1990 are such laws. On the other hand, Data Protection Act, 1984; the Access to Personal File Act; the Access to Medical Reports Act, 1988, and the Consumer Credit Act, 1974, all provide some protection for different aspects of personal information.

LANDMARK JUDGEMENTS

The need for Right to Information has been widely felt in all sectors of the country and this has also received judicial recognition through some landmark judgements of Indian courts.

A Supreme Court judgement delivered by Mr. Justice Mathew is considered a landmark. In his judgement in the state of UP vs. Raj Narain (1975) case, Justice Mathew rules-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. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security. But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people.

According to Attorney General Soli Sorabjee - It was in 1982 that the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India (AIR) 1982 SC (149), popularly known as Judges case. Here again the claim for privilege was laid before the court by the Government of India in respect of the disclosure of certain documents. The Supreme Court by a generous interpretation of the guarantee of freedom of speech and expression elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees.

The court declared - The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19 (1) (a).

The Supreme court of India has emphasised in the SP Gupta case (1982) that open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. In 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.

In 1986, the Bombay High Court followed the SP Gupta judgement in the well-known case Bombay Environmental Group and others vs. Pune Cantonment Board.

The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists. This was considered a landmark judgement concerning access to information.

MOVEMENT FOR THE RIGHT TO INFORMATION

Simultaneously very significant development has taken place. The demand for Right to Information has taken the form of mass movement at the grassroot level. A mass based organisation called the Mazdoor Kisan Shakti Sangathan (MKSS) took an initiative to lead the people in a very backward region of Rajasthan - Bhim Tehsil- to assert their right to information by asking for copies of bills and vouchers and names of persons who have been paid wages mentioned in muster rolls on the construction of schools, dispensaries, small dams and community centres. On paper such development projects were all completed, but it was common knowledge of the villagers that there was gross misappropriation of funds with roofless school buildings, dispensaries without walls, dams left incomplete and community centres having no doors and windows.

After years of knocking at officials’ doors and despite the usual apathy of the State government, MKSS succeeded in getting photocopies of certain relevant documents. Misappropriation of funds was clearly obvious. In some cases, the muster rolls contained names of persons who either did not exist at all or died years before. This incident is more than sufficient to show the importance of the ability of information for eradicating mal-practices. With so many scandals emerging from time to time, it becomes vital for the management of public fund and survival of democracy.

MKSS organised a Jan Sunwai (People’s hearing), the first ever in the history of Rajasthan. Politicians, administrators, landless labourers, private contractors were all invited to listen, respond and, if willing, to defend themselves. Popular response was phenomenal, but village officials and politicians stayed away and remained silent, and thereby weakened their position and darkened their image.

Between December 1994 and April 1995, several other public hearings were organised. People’s anger made one engineer of the State Electricity Board to return in public an amount of Rs.15,000 he had extracted from a poor farmer. This grassroot movement is fast spreading to other areas of Rajasthan and to other States establishing firmly that information is power and people should have the right to official information.

In early 1989, the then the Prime Minister Mr. VP Singh declared the attitude of the new Government on the Right to Information and transparent government. He said, "An open system of governance is an essential prerequisite for the fullest flowering of democracy. Free flow of information from the Government to the people will not only create an enlightened and informed public opinion but also render those in authority accountable. In the recent past, we have witnessed many distortions in our information system The veil of secrecy was lowered many a time not in the interest of national security, but to shield the guilty, vested interests or gross errors of judgements. Therefore, the National Front Government has decided to make the Right to Information a Fundamental Right………. A large area of information dissemination also relates to development programmes, their progress and their impact. This will need to be done at the Panchayat and Municipal levels, not only to encourage multi-level planning but also the common man in the villages."

In 1996, Justice PB Sawant, the Chairman of the Press Council of India, drafted the bill keeping in view the dire need of the day and the observations made by eminent persons that in a democracy, it is the people who are the masters and those utilising public resources and exercising public power are their agents. The draft Bill was submitted to the Government of India on 1996. The core of the Bill is clause 3 which says:

    1. every citizen shall have the Right to Information from public body;
    2. it shall be the duty of the public body to maintain all records duly catalogued and indexed;
    3. The public body shall be under a duty to make available to the person requesting information, as it is under an obligation to obtain and furnish and shall not withhold any information or limit its availability to the public except the information specified in Clause 4, and
    4. All individuals whether citizens or not, shall have the right to such information that affects their life and liberty;

The Bill defines information as any fact relating to the affairs of a public body and records relating to its affairs. Public body includes (a) state within the meaning of Article 12 of the Constitution of India, (b) all public undertakings and non-statutory authorities and (c) a company, corporation, society, trust, firm or a co-operative society whether owned or controlled by the Government or by private individuals and institutions whose activities affect the public interest.

The Bill says that Right to Information is subject to restrictions on grounds in clause (s) to Article 19(1) (a) such as the security of the State. Clause (r) (1) of the Bill reproduces many of them and also adds ‘Investigation of an Offence.’ Sub – Clauses (2) and (3) include personal or medical information of a private nature and trade and commercial secrets protected by the law. The Bill also enumerates the procedure for the enforcement of this right. The officer in charge will be held responsible in the event of refusal of information, and information must be furnished within 30 days of application. The officer must provide solid reason for any refusal and appeal against refusal should be made to the principal civil judge of the region.

Keeping in view the burning problem, the Govt. of India, Department of Personnel decided to set-up a Working Group on January 2, 1997 under the chairmanship of Mr. HD Shouri.

The Working Group on the ‘Right to Information and Promotion of Open and Transparent Government’ submitted its comprehensive and detailed report and the draft Bill on Freedom of Information on 24 May 1997.

The sailent features of the Bill were :-

    1. When enacted, it will also apply to State governments over riding State legislations to the extent they clash with the Central legislation;
    2. A fee would be paid by the citizen while seeking information from Government, and the officer or the department concerned can be held responsible and taken to a Consumer Court for not providing the information within the prescribed time limit of 30 days;
    3. Every Government department should appoint a Public Information Officer for this purpose;
    4. Section 5 of the Official Secrets Act should be suitably amended to make it easier for a citizen to obtain official information, and information can be withheld only in respect of especially ‘exempted’ items;
    5. Clauses 123 and 124 of the Indian Evidence Act which inhibit public officials from submitting information to Courts, should be suitably amended, and
    6. The basis and the procedure for classification of official documents (as ‘top Secret’, ‘Secret’ and ‘confidential’) should be suitably amended so that availability of information to the public becomes the rule rather than the exception.

Not only the Central and the State Ministries, but also public sector undertakings, municipal bodies and panchayats and other bodies substantially funded by Government, would come within the purview of the Act.

The Press Council of India, the Press Institute of India, the National Campaign for People’s Right to Information and the Forum for Right to Information unanimously submitted the resolution to Government of India to amend the proposed Bill on February 20 this year.

Main Points of Resolution :

    1. The Right to Information should also be extended in respect of companies, NGOs and international agencies whose activities are of a public nature and have a direct bearing on public interest.
    2. The law must contain strong, penal provisions against wilful and wanton withholding or delay in supplying information or deliberately supplying misleading or inaccurate information.
    3. The law should contain an appeal mechanism of an independent nature to provide reliable redress to any citizen dissatisfied with any decision of a public authority under this law. In the present draft Bill, all appeals are to other Government authorities.
    4. The categories of information, which can be restricted or withheld by the Government, are too wide in the draft Bill. In particular, the restriction on disclosing internal notings and official correspondence between public officials and offices has no justification whatsoever. In a democracy, people have the right to know how and why a particular decision has been arrived at and who made what recommendations with what justification. We do not support the view that this will deter candour in the expression of views of public servants. Honest public servants expressing their opinions honestly cannot be deterred by the knowledge that their opinions will become known to the people.
    5. Similarly the restriction on confidential communications between the State and Centre and their agencies have no justification, unless they harm public interest.
    6. The restriction on disclosure of the record of discussions of Secretaries and other public servants also needs to be removed.

ENACTMENT OF LEGISLATION IN STATES

Inspired and encouraged by the exercises taken up by the Press Council of India, Working Group and the Central Government, the State Governments also yielded under popular pressure and started preparing draft legislation on Right to Information. A number of States have already introduced the Bill on Right to Information, before the Freedom of Information Bill, 2000 introduced in the Lok Sabha on July 25 this year.

As per clause (18), the Bill, 2000 empowers the State Government to make rules to carry out the provisions of the Act. The matters in respect of which such rules may be made are specified therein. These matters relate to, inter alia, the fee payable to obtain information from any organisation, the authority to be prescribed before which appeal may be preferred against the decision of the Public Information Officer and any other matter which is required to be prescribed.

In this context, Tamil Nadu was the first State to set an example by introducing the Right to Information Act on 17 April 1996. Chief Minister, M. Karaunanidhi lost no time in introducing the legislation to ensure access to information about government administration. The Bill was modelled on a draft legislation recommended by the Press Council of India.

The enshrinement of the Right to Information in a statute as proposed in Tamil Nadu is not clear as to how the proposed act will apply to Panchayat Unions, Municipalities and Panchayat. The enacted legislation was full of exemptions and inadequacies, so it has failed to evoke much response from the public and devoted NGOs and other concerned activists. "Frontline" editor N. Ram observed that the Tamil Nadu legislation, in its prelude, made all the right noises. It was the catalogue of exceptions carried in fine print that made the act an uninspiring model for others to emulate.

Goa was the second State to enact the Right to Information legislation. Information Minister Dominic Fernandes invited the opinion of the Union of journalists as well as several NGOs. Before the bill was introduced in the House for consideration, he also took the other necessary measure to withdraw the unpopular circular. It was issued in Oct 1994 by the State government, preventing bureaucrats from divulging information to the press.

Despite tall claims made by the State government regarding transparency and openness to strengthen democracy, Goa Act also ironically contains several peculiar provisions, which allow the State to withhold information without sustaining reasons for it. The Act needs further clarification on the vague exemptions mentioned in it. It was also not clear as to who would be the competent authority to furnish the information.

Before the bill was introduced in the Madhya Pradesh Assembly, however, in certain places like Bilaspur and Korba, the local authorities acquired the access to information. The Divisional Commissioner, Bilaspur initiated in the matter of the Public Distribution System that the citizens were allowed the access to details of food-grains and commodities allotted to their areas and their distribution. The scheme was not only restricted to Public Distribution System, it was also extended to development programmes and pollution awareness. It was observed that the Right to Information has considerably reduced black-marketing and corruption in public distribution system. Moreover, in polluted areas like Korba, the sharing of information on pollution level has raised public consciousness. As a result, officials have become careful about monitoring and controlling pollution level.

Chief Minister Digvijay Singh introduced the Right to Information Bill, 1998. The Bill aimed at providing transparency in the administration. It was passed by the Madhya Pradsh Assembly on April 30 the same year.

The grassroot movement led by MKSS compelled the Rajasthan Government to act in the direction to prepare the Right to Information bill. The chief Minister assured in the state assembly in 1995 that the Government was willing to grant the Right to Information as a basic right to the citizens and any person could obtain photocopies (on payment of prescribed fee) of any document relating to development works undertaken in the previous five years. The assurance was not made good for almost a year. Meanwhile, the other sister organisations also joined hands with MKSS to start an agitation on a large scale and declared an indefinite strike. It was called off when a high level committee was appointed to work out the modalities of how photocopies could be provided in relation to the order issued on April 6, 1996.

In Karnataka, access to information was existing through the Karnataka Freedom of Press Bill 1983. The essential features of the legislation were (i) immunity to a journalist from disclosure of the source of information (ii) right to access to public documents and (iii) penalty for causing hurt to a journalist on duty.

The storm wind of the Right to Information legislation reached Karnataka also. The State government’s irrigation department took a revolutionary step of making the minute details such as tender awarding of a contract, money allocated and expenditure, available to the public.

The two-day seminar jointly organised by the State government Publicity Information Department and CHRI provide the platform to social activists, politicians and press people to think jointly over the Right to Information. By this exercise, the government agreed to introduce the demanded Bill. The state of Karnataka attempted to initiate the weak law.

The Maharashtra government also passed the Right to Information Bill. The legislation will empower the citizens with the Right to Information about various government schemes, their stages of implementation and other details.

Meanwhile the other States Delhi, Gujarat and Kerala have also decided to introduce the Right to Information Bill in their respective assemblies.

15

FREEDOM OF INFORAMTION BILL 2000

The most significant milestone in the history of legislation of our country is the introduction of the Freedom of Information Bill 2000 in the Lok Sabha on July 25 this year. The defined objective is : it will enable the citizens to have an access to information on a statutory basis. With a view to further this objective, clause (3) of the proposed Bill specifies that subject to the provisions of this Act, every citizen shall have the right to freedom of information. Obligation is cast upon every public authority under clause (4) to provide information and to maintain all records consistent with its operational requirements duly catalogued, indexed by the appropriate Government or the competent authority.

As in our present democratic framework, free flow of information for the citizens and non-Government institutions suffers from several existing legal inadequacies, lack of infrastructure at the grassroot levels and an attitude of secrecy within the Civil Service as a result of the old framework of rules.

In the global context, it is important that the access to government-controlled information should also help to bridge the knowledge gap between the rulers and the ruled, the managers and the beneficiaries and between the producers, distributors and the consumers. The inequality in knowledge is also responsible for social superiority and inferiority complexes reinforcing and perpetuating social and economic divides. These in turn create a political clout and leverage in favour of the possessors of the exclusive information, quite disproportionate to the value of the information. A distinct class of secret operators of power, with a halo of unwarranted mystique and awe around them, emerges and behaves and operates as a superior race.

Above all, strong will power is required. Only making the legislation will not do justice to the information seekers until it is implemented with strong conviction. The laws only can not create a climate for democratic way of life. Laws by themselves are not adequate. What is needed is that such progressive laws must be backed by people’s movement. A law for right to information or Freedom of Information can be made effective only through people’s active involvement.

 

GDB/RPSV/DPD/VD/SK