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REINVENTING DEMOCRACY THROUGH RIGHT TO INFORMATION The Twentieth Century, particularly the second half of it, witnessed anunprecedented

spate of decolonization. Nations after nations were born in quicksuccession. Majority of newly born States chose democracy as a form ofgovernance. After more than half a century, the result of the experiment withdemocracy is a mixed one. While democracy suffered untimely death in somecountries, many are still struggling to stabilize it. Notwithstanding this, there are fewexemplary success stories as well.Undoubtedly, the finest and at times the mostamazing example is India. As Indian Democracy evolves amidst trial, tribulations and successes, it bothinfluences and get influenced by various international developments. One suchcelebrated development, occurring in so many parts of the world, is the recognitionof a basic human right i.e. The right to Information. It is now accepted thatdemocracy does not simply mean that Executive remains responsible to theLegislature and that people should sink into passivity after exercising their franchiseduring elections. Democracy now has a more positive and dynamic content.Meaningful and constant dialogue between the political executive and the governedclass is increasingly considered a sine qua non of a vibrant system of governance.Participation in governance is the catchword and this can only be ensured if there isan effective right to information. Let us remember the golden words of Justice LouisBrandies of US Supreme Court that A little sunlight is the best disinfectant. In pursuance of international trend and domestic demand, the Government ofIndia enacted the Right to Information Act, 2005 (for short, the Act). Section I of thePaper will discuss the general concept of right to information, internationalrecognition of the right, constitutional position in India, judicial pronouncements andthe background leading to the enactment of the Act. Section II will examine theprovisions of the Act, as elaborated by decisions of Central Information Commission.Section III will capture the experience of the working of the Act. Section IV will be theconclusion.

Section I STEPS TOWARDS THE FREEDOM OF INFORMATION IN INDIA Governments, like human beings, have a tendency to conceal and be secretive. An Israeli author Itzhak Galnoor in his book Government Secrecy in Democracy writes that, despite the differences, democratic societies share a common attitude. Both the peoples right to know and the governments privilege toconceal are axiomatically and often grudgingly accepted.If this is the situation ofdemocratic societies, one can imagine what happens in military rule, dictatorshipand monarchies. The Secrecy Regime Article 372 of the Constitution allows pre independence laws to remain inforce unless repealed or amended by Indian law makers. This is one reason why thecolonial culture of secrecy and maintaining distance from the people is still the ethosof the Indian administration. The Official Secrets Act, 1923, modeled on the 1911 Official Secret Act ofEngland, is very restrictive of the use and dissemination of governmentalinformation. It prohibits disclosure of information indiscriminately. What aggravatessecrecy is indiscriminate classification of information as Secret. Sections 123 and124of the Indian Evidence Act, 1872,Atomic Energy Act ,1962, The Commission of Inquiry Act, 1952, as amended in 1986 ,The PublicRecords Act, 1993 are someexamples of laws breeding, protecting and promotingsecrecy. Additionally, plethora of subordinate legislation remains inaccessible. 2 Yet The Commitment

India had the unique distinction of being original member of the UnitedNations (UN) even before becoming independent. The UN, in its first session itselfadopted a resolution proclaiming Freedom of Information as a fundamental humanright, a touchstone of all the freedoms to which the UN is consecrated.Suchunequivocal and strong commitment of UN was reflected in the UniversalDeclaration of Human Rights (UDHR), adopted by UN General Assembly in 1948.Article 19 of the UDHR embodies the concept of information as a right.Article19(2) of the International Covenant on Civil and Political Rights (ICCPR), adopted byUN General Assembly in 1966, guarantees the right to seek, receive and impartinformation. India is a State, party to the Covenant.Article 13 of AmericanConvention on Human Rights,

Article 10 of European Convention on Human Rights,Article 9 of the African Charter of Human and Peoples Right also contain provisionsguaranteeing this. Apart from above international as well as regional legalinstruments, all modern human right instruments are categorical in recognition offreedom of information. Recently for the first time International tribunal, namely, theInter American Court of Human Rights in Marcel Claude Reyes and Others v Chileheld that access to information is a basic human right. The Indian Context The right to information has traveled a long journey in India. Unlike somecountries, the Indian Constitution does not make an explicit mention of it in ChapterIII as a fundamental right but it does indirectly underpins the citizens right toinformation.The right has its root in Article 19, encompassing the freedom ofspeech and expression, which received liberal interpretation by the courts. One of the earliest cases on freedom of expression and right to informationwas Bennett Coleman & Co v. Union of India, (1973) where the court struck downnewsprint control order putting restrictions on acquisitions, sale and consumption ofnewsprint saying that it directly affected the Petitioners right to freely publish andcirculate their Papers. The Court observed, Freedom of speech and expressionincludes within its compass the right of all citizens to read and be informed. 3

In the landmark case of State of Uttar Pradesh v. Raj Narain & Ors, (1975)the Constitution Bench of the Supreme Court pertinently observed, The people ofthis country have a right to know every public act, everything that is done in a publicway by their public functionaries. The principle was further enunciated by Supreme Court in S.P.Gupta v. Union of India (1981) and in Indian Express Newspaper (Bombay) Private Limited v. Unionof India(1985).In Reliance Petrochemicals Limited vs. Proprietors of IndianExpress, (1989) the Supreme Court went to the extent of saying that the right to know is an integral part of the right to life (Article 21 of the Constitution) However, it is the judgment of the Supreme Court in Union of India v. Association for Democratic Reforms (2002), which generated lot of excitement. In

this case the Court affirmed that voters have a right to be informed about theantecedents of the candidates who will be required to declare their criminal record atthe time of the nomination. In the subsequent case, People Union for Civil Liberties v. Union of India (2003), the Court did not allow the government to dilute the judgment in theAssociation case by introducing an amendment infringing on the voters right to information. International movement for right to information Though the first access legislation, namely, Access to Public Records Act,1766 of Sweden is 240 years old, it was the collapse of the Cold war that saw aspurt in access legislations. Freedominfo.org records in its New Global Survey of Freedom of Information Laws for 2006 that now 68 countries have access frameworks, generally formal legislations. Last decade accounts for half of them.The list includes democratic giants like India, United Kingdom, Uganda andGermany. Among the strong access legislations are the American Freedom ofInformation Act, 1966, South African law and the Right to Information Act of India.However , China is at present the only major country which is by and largeuntouched by the movement though signs of change are emerging.

Section II AN OVERVIEW OF THE RIGHT TO INFORMATION ACT 2005 The Right to Information Act came completely into force on the 12th October, 2005. It applies to whole of India except the State of Jammu and Kashmir. The gap, however, is covered as the State of Jammu and Kashmir has its own access law. Thus, the entire country is under the information rgime. The Act prescribes mandatory disclosure of certain information to citizens andcreates a legal-institutional framework for setting out the practical regime of right toinformation for every citizen to secure access to information under the control ofPublic Authority. The Act lays down specific obligations on the Appropriate Governments,Competent Authorities and Public Authorities, as defined by the Act. It also providesfor designation of Public Information Officers(hereafter referred as PIO) andAssistant Public Information Officers (hereafter referred asAPIO) in all PublicAuthorities to attend to requests from citizens for information within stipulated timelimits. It provides for appeal to officers senior in rank to PIOs against the decisions ofPIOs. It also mandates the constitution of a Central Information Commission

(hereafter referred as CIC) and State Information Commissions (hereafter referred as SIC) to inquire into complaints, hear second appeals, and guide implementation of the Act. Section 22 of the Act mandatesthat the provisions of the Act , in case ofconflict, overrides the Official Secrets Act, 1923, andany legal instrument. Byinclusion of the word instrument, there is an obligation to bring all the rules,guidelines, manuals etc in conformity with the Act. 6 Ambit of applicability The Act says that the information can be obtained from Public Authority, whichis defined under Section 2 (h) of the Act. Under the Act all constitutional, statutorybodies, bodies created by government notifications and local self-government bodiesare Public Authorities. In addition, bodies owned, controlled or substantially financeddirectly or indirectly by government are Public Authorities. This takes care of PublicSector units. Finally non-Government Organisation substantially financed bygovernment are also within the definition of Public Authorities. The Act , thus covers, important institutions likethe two Houses ofParliament, the State Legislatures, the Supreme Court, High Court and subordinatecourts , constitutional authorities like the Election Commission, Comptroller andAuditor General of India and the Union Public Service Commission. The term substantially financed has not been defined but some of the CICdecisions have given the indication that wherever there is decisive governmentfunding, concessional land or tax benefit, the body can be deemed to be a PublicAuthority. In Veeresh Malik v IOA, the CIC decided that International OlympicAssociation is a Public Authority being substantially financed by government. Itdecided so as out of Rs 396 lacs corpus of IOA, Rs. 320 lacs have come fromgovernment, some of the stadium were rented to it by government on a token rent ofRs 1 and its accounts were subject to audit by CAG. Funding could be both direct and indirect. In Sarbajit Roy v Delhi Electricity Regulatory Commission, the CIC held that DISCOMs ( private power supply companies in Delhi ) are Public Authorities because as per the agreement, they are created by Government notification, Government has 49% equity

stake,Government has afforded them concessions andthe Government has final say inmany matters.

However domestic and foreign private bodies working within the country havebeen excluded from the purview of the Act. It is of concern as with the opening ofeconomy and consequent liberalization, the government is withdrawing and theprivate sector is increasingly assuming important public functions like electricitysupply, communication and public transport. The South African Promotion of Accessto Information Act provides for information from private bodies when it is necessaryto enforce peoples rights. Eventually, similar provisions will have to be introduced inIndia.

AA cannot entertain any fresh request for information in the appealproceedings. For any additional information, not contained in the original request,the requestor should be advised to file a separate application before the PIO. Second appeal against the decision of the AA shall lie with the IC, within 90days from the date on which the decision should have been made or was actuallyreceived. However, the IC may admit the appeal after the expiry of the period of 90Days, ifthe appellant was prevented by sufficient cause from filing the appeal intime. No time limit for disposal has been prescribed for IC. The IC has the power to require the Public Authorityto take any such steps as may be necessary to secure compliance with the provisions of the Act, including i) by providing access to information, if so requested, in a particular form. ii) by appointing a PIO, if not appointed. iii) by publishing certain information or categories of information iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records v) by enhancing the provision of training on the right to information for its officials vi) by providing it with an annual report The most effectivepower of the IC is its competenceto impose penaltiesagainst PIO, recommend disciplinary action against erring public servants andcompensate the requestor.

The decisions of the IC are binding.Section 23 of the Act bars the jurisdictionof the lower courts. Only the writ jurisdiction of High Court and Supreme Court canbe invoked by parties aggrieved by the decision of the IC. The appeal procedure before CIC is governed by Central InformationCommission(Appeal Procedure) Rules, 2005. States have framed their own Rules.Generally an appeal should be accompanied by attested copies of the Ordersappealed against and copies of documents relied upon. 25 Penalty Penalty can be imposed against the erring PIO in cases where the PIO has, without any reasonable cause refused to receive an application , or has not furnished information within the stipulated time, or malafidely denied the request for information, or knowingly given incorrect, incomplete or misleading information ,or destroyed information which was the subject of the request, or obstructed in any manner in furnishing the information. Thus it is to be seen whether the PIO acted in bonafide discharge of hisresponsibilities or did it acted mischievously ? A wrong interpretation of theprovisions of the Act will not result in penalties against the PIO if the same was doneunder the bonafide exercise of decision. As a general rule, action taken in good faithare protected under Section 21 of the Act. The PIO is personally liable to pay penalty. The IC however, is legally boundto give the PIO a reasonable opportunity of being heard. The scale of the penalty tobe imposed is Rs.250 each day till application is received or information is furnishedsubject to the total amount of such penalty not exceeding Rs.25,000/-. The AA has no power of imposing penalty. It is the exclusive power of IC,which they have now started using more frequently. Recently CIC imposed a totalpenalty of Rs1,25,000/- ( maximum amount of Rs 25,000 in five applications each)on the PIO of Daulat Ram College of Delhi University.

The Commissions has also started giving compensation to the complainant orthe appellant generally in the form of traveling expenses to the Headquarter of theCommission and even daily allowance.At times token damage amount has alsobeen paid. 26 While Penalty can be imposed only against PIO, compensation and damagecan be ordered against AA also. Penalty goes into the account of Commission butcompensation and damages are Payable to the complainant or the appellant. Information Commissions Information Commission is the guardian of the Act. Section 12 and Section 15of the Act provide for the constitution of the Central Information Commission and theState Information Commission respectively to exercise powers conferred on it byChapter V (Sections 18-20) of the Act. (1) (18) (19) (20) (21) The IC consists of the Chief Commissioner and such numbers ofCommissioners, not exceeding ten, as may be considered necessary. TheCommissioners have to be eminent persons in the field of law, science andtechnology, social service, management, journalism, mass media, administrationand governance. They should not to be associated with politics and business. Theyhave been given a very high status in protocol in terms of the superior status of theCommission. In order to ensure that they are independent of the government, following safeguards are provided Selection of the Commissioners by a collegium including Leader of Opposition The general superintendence, direction and management of the affairs ofthe Commission vest in the Chief Information Commissioner / State ChiefInformation Commissioner who shall be assisted by the respectiveInformation Commissioners. Commission exercises its powers without beingsubjected to directions by any other authority. 27 Removal of the Commissioners is possible only on grounds ofmisbehavior and incapacity after inquiry by aSupreme Court Judge on areference by the President/ Governor, as the case may be.

In addition to appeal, IC can also entertain complaints directly from any person: a)who could not submit a request to a PIObecause no PIO has been appointed, or because the APIO has refused to accept application or appealfor forwarding to the appropriate authority b)who was refused access to any information c)who did not receiveresponse to a request for information or access to information within the stipulated time limit d)who has been required to pay an amount of fee which he or she considers unreasonable e)who believes that he or she has been given incomplete, misleading or false information under the Act, and f)in respect of any other matter relating to requesting or obtaining access to records under the Act. Section 18 of the Act further stipulates that while inquiring into a complaint,the Commission shall have the same powers as are vested in a civil court whiletrying a suit under the Code of Civil Procedure, 1908. These powers are withrespect of summoning and enforcing the attendance of persons, compelling them togive evidence on oath, producing the documents or things, receiving evidence onaffidavit, requisitioning public record etc. No public record can be withheld from it onany grounds. 28 In fact a very interesting feature of the Act is to produce statistics with specificresponsibility on Public Authorities, Government and the IC to do so. The annualreport of the Commission has to be laid before the appropriate legislature. The Commission also has the power to issue directions to Public Authority. Inthe famous case of Dhananjay Tripathi v BHU (the first case where the CIC imposedthe maximum penalty of Rs.25,000/-), it also issued direction regarding moderationand admission policy of the University. It also directed the University to admit theapplicant, condone his absence and ensure that applicant is not victimized onaccount of using the Act. In the case of R S Chaudhry v UPSC, CIC ruled that silence of the Act on thepower of review to the Commission does not debar IC to exercise it to preventmiscarriage of justice in procedural matters. The CIC has called itself unique as it isnot just the last court of appeal but has all the powers to see that the right toinformation is real. This is because these Commissions are not merely finaladjudicators but are also responsible for the monitoring of all the provisions of the Act.

Responsibility for Government Under the Act, the Government is obliged to develop educationalprogrammes for the public, especially the disadvantaged. It also has theresponsibility of training all the stakeholders. The Act calls on the Governments toprepare User Guide by December 2006. The Act thus entails huge responsibilitieson the competent authorities, appropriate governments, Public Authorities and theirfunctionaries. Section III THE REPORT CARD OF THE ACT Access legislations, all over the world, have brought discomfiture to thepowers that be. The Act has empowered the weak and the vulnerable. Act has beenan important tool in opening doors and discovering information that would otherwisehave remained outside the public domain. It has helped to uphold the spirit ofopenness, transparency and accountability in public life. Success stories are far too many. It was found out thatTony Blair, PrimeMinister of UK, had series of breakfast meetings with a Party donor before a vaccinecontract was awarded without bidding. US was compelled to disclose that 558 menfrom 41 countries are in detention at Guantanamo Bay. The Indian experience is no different. It has given a billion people the rightenjoyed so far by few thousand legislators. The scandals of misuse of PDS rationhave corrected the systems in the exposed places. Ordinary citizens have been ableto secure long delayed pensions, house allotment letters and passports. It has to beappreciated that the Act is not a redress law but information culled out hastremendous correcting influence. People asking for copies of tender documents, estimates, MeasurementBooks and even samples have put fear of God in at least some notoriously corruptengineering departments in urban areas. Public Sector Organisations are now underincreasing degree of accountability. Have a look at some of the questions they weremade to answer a) Did the wife of MD accompany him to Triputi for Board meeting and expenses thereof? b)No of ACs at MD residence and the monthly electricity bill? 30

c)Items (like furniture, ACs, TVs, carpets, curtains etc) for offices/residencesof the past Ministers/officials given by the PSU and were they taken backafter these ministers and officers left the ministry? So strong is the Act that even legislators are using it.They know that they donot have to wait for a Session to ask a question and the same has to receive a replyin a specified time limit. The Act is also the first legislation which obliges government to introduceInformation Technology in its working. Another remarkable development is that in thefirst year of working itself, the High and the Mighty like President Secretariat, PMO,Supreme Court, CIC, Election Commission, UPSC and other constitutional andpowerful government offices are being made to divulge huge information which wasearlier outside the reach of ordinary citizen. On the negative side, though too early to say, yet the emerging trend of usageof the law is not exactly very happy. The Act is frequently being used by governmentservants, mostly disgruntled, under disciplinary proceedings and even dismissed tosettle their service matters and by people interested in gathering evidence in theirlitigation cases or in finding out whether the property they intend to purchase is freefrom encumbrances. The CIC is at pains, in decision after decision, to explain thatthe Act is not a mechanism to redress grievances. The public interest, which the Act,intended to secure, is missing in good number of applications. There are very fewinstances where applicants seek policy related information. Such a selfish andunintelligent use of the Act will defeated the high objectives of the Act. 31 More than legislative and executive intervention, it is the change in mindsetthat should sink in. The work culture has to be so re-oriented that disclosurebecomes the rule and exemption an exception. The citizens also have to realize theirresponsibilities. Gergana Jouleva had very nicely said that Democracy is not aneasy task, neither for the authorities nor for the citizens. Indian citizens richly deserve and desperately need a better-governedcountry. Right to Information can contribute tremendously in achieving it. The needof the hour is that all of us should rise above our selfish interest and work sincerelyto secure the best possible implementation of the Act.