Thursday, March 11, 2010

RTI: The history and the historical background

As a signatory to the International Covenant on Civil and Political Rights (ICCPR), India was under an international obligation to effectively guarantee the right to information as per Article 19 of the ICCPR.

The formal recognition of a legal right to information in India occurred more than two decades before RTI Act 2005 was finally enacted. The reason why it took so much time lies in the many inbuilt hurdles. The most important were the pre-constitutional laws: The Official Secrets Act 1923, Section 123 of the Indian evidence Act 1872 which provides that the Head of the Department can refuse to part with information, Rule 11 of CCS Conduct Rules 1964 which states that no govt. servant shall communicate any official document or information to any other person to whom he is not authorized to communicate such document or information. Add to all these colonial hangovers, the Archives Policy Resolution of 22 December 1972 which states that all documents are classified for 30 years and thereafter only non-confidential material is available to a restricted range of people. Even unclassified material cannot be communicated to any one outside the government without permission.

Not a surprise that it took even the Supreme Court many decisions, in several cases from time to time to conceptualize that the right to information is implicit in the constitutionally enshrined rights to freedom of speech and expression (Article 19 (1) (a) and right to life and liberty (Article 21).

The first Supreme Court ruling on the right to information dates back to 1975 when Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428 explicitly held the right to information to be our fundamental right. Justice Mathew ruled, “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 1982 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. The Supreme Court 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 emphasized 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 1986, the Bombay High Court followed the SP Gupta judgment 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 another landmark judgment concerning access to information.

In the Peoples Union for Civil Liberties Vs Union of India, 2000, the court opined: The right to participate in the affairs of the country is meaningless unless the citizens are well informed on issues in respect of which they are called upon to express their views. Even in 2002 in the Union of India Vs Association for Democratic Reform, the court said: The right to get information in democracy is well recognized and it is natural right flowing from the concept of democracy.

Despite all this, there was no serious attempt to enact suitable legislation to ensure simple and simple and effective access to information regime for the common man until after the launching of campaigns for freedom of information by civil society.

The first and most well-known right to information movement in India was the Mazdoor Kisan Shakti Sangathan (MKSS). In early 1990s, in the Bhim Tehsil of Rajasthan, MKSS took the initiative to lead people 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. MKSS's struggle for access to village accounts and transparency in administration is widely credited with having sparked off the right to information movement across India.

In 1996, Justice PB Sawant, the Chairman of the Press Council of India, drafted the right to information bill. 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 Govt. of India, Department of Personnel decided to set-up a Working Group on January 2, 1997 under the chairmanship of Mr. H D 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. Apart from recommendations like appointment of a Public Information Officer to the time limit of 30 days, it suggested suitable amendment in section 5 of the Official Secrets Act and clauses 123 and 124 of the Indian Evidence Act.

Finally the Central Government enacted the Indian Freedom of Information Act in 2002. The Act represents an important step towards actualizing the Right to Information, but has been criticized for not going far enough.

At the state level Tamil Nadu was the first State to enact a right to information law, in 1997, followed by Goa in the same year. Seven other States had passed legislation by 2003 - Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu and Kashmir (2003). Uttar Pradesh framed an executive code on access to information in 2000 and draft bills have been prepared by the Governments of Kerala and Orissa.

What proved to be the landmark legislative action was the Right to Information Act (RTI) 2005. Subject to a few exceptions the act gives the right to information on matters in the possession of the state and public agencies that are covered by the Act. It seeks to promote transparency, arrest corruption and to hold government and its instrumentalities accountable to the governed.

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