When dealing with RTI, bureaucrats need to keep this legal perspective in mind
Faizi Hashmi | April 5, 2014
Bruce Colville, well-known American writer of children’s books, said, “Withholding information is the essence of tyranny, control of the flow of information is the tool of dictatorship.” It will be democratically incorrect to be associated with tyranny and dictatorship. Our government offices are abuzz with tête-à-tête about the Right to Information (RTI) Act. Conversation generally wears around alleged unending harassment faced by officials in dealing with multiple questions asked under RTI.
The refrain is that professional activists have hijacked the system and frequently misuse the law to settle scores with inconvenient officers. There may be some truth in these reactions but this definitely is not the whole truth. Truly speaking, bureaucrats are yet to reconcile to this new demand of making information available in public domain. They have been told for several decades to swear by confidentiality; now suddenly they are asked to embrace openness, and that has created a dichotomy in response. But their bewilderment and anxiety is misconceived. They need to recognise the idea that people’s welfare includes their right to know.
Interestingly, this privilege of the people had its seeds in the constitution itself – please refer to the Preamble, “We the people of India … give to ourselves this constitution”. The constitution was not god-ordained or given by a monarch. It was created by the people who, therefore, occupy centre-stage in the scheme of state polity. In fact, the democratic principles enshrined in the constitution clearly pronounce the citizen’s inalienable right to decide by whom and by what rules they would like to be governed. Yet another concomitant of democratic polity is the concept of the welfare state which lays down that the duty of the government is to protect and enhance welfare of the people. The successful result of a long struggle to establish transparency in government working should, therefore, not be grudged. Instead the willing acceptance of the changing scenario towards openness should become the guiding principle in governance.
A brief survey would therefore give us some idea how a consensual theoretical and legal framework had emerged in the country by the time the RTI Act was passed in 2005. In a letter to the PM in 1989, Justice VR Krishna Iyer said, “The right to know and the freedom of information are inalienable components of the freedom of expression…’’ Initially the struggle basically related to disclosure of information in a tentative piecemeal manner. It was only later that information would be claimed as a matter of right. Accordingly, Article 19(1)(a) of the constitution dealing with freedom of speech and expression was liberally interpreted to include the right of information as one of its essential elements.
The advocacies and court pronouncements show the direction in which mind of the leading legal luminaries was working and which would eventually guide the government into the right direction.
A brief roundup of some important supreme court cases would throw more light. In SP Gupta vs Union of India in 1982, the supreme court, through its constitutional bench headed by PN Bhagwati, discussed at length the issue of disclosure of certain documents that purported to “injure public interest and affairs of the state”. To quote, “It is observed from the constitution that we have adopted a democratic form of government. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. ... No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government…”
In the case of Secretary, Ministry of Information and Broadcasting vs Cricket Association of Bengal, the apex court in 1995 discussed the issue of monopoly in electronic media and observed that it infringed upon the right to freedom of expression as provided in Article 19(1)(a).
In Dinesh Trivedi, MP vs Union of India, the supreme court in 1997 held, “To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the government and the position thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant…” This matter related to alleged existence of crime syndicate which was running a parallel government in collusion with all wings of the state.
In Union of India vs Association of Democratic Reforms, the supreme court in 2002 observed, “Democracy cannot exist unless all citizens have the right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed about all sides of the issues, in respect of which they are called upon to express their views by casting their votes. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce…” The court agreed that the election commission could call for information from the candidates to verify their antecedents. This was reiterated in PUCL vs Union of India by the supreme court in 2003: “So the foundation of a healthy democracy is to have well informed citizen-voters. The reason to have right to information with regard to antecedents of the candidates is that the voter can judge and decide in whose favour he should cast his vote.”
In another matter between PUCL and Union of India, the supreme court in 2004 had this to say, “Right of information is a fundamental right under Article 19(1)(a) of the constitution.” The matter related to safety violations and defect in nuclear installations and plants at Trombay and Tarapur. For reasons of brevity, we cannot cite more cases but the emerging trend is clearly visible.
The right realised through such hard work of people must be respected and strengthened.
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