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Published : October 02, 2011 | Author : ashishgill
Category : Miscellaneous | Total Views : 3947 | Unrated

  
ashishgill
Ashish Kumar Gill,V Semester student NUALS
 

“Government of the People, by the People, for the People”- A Myth or Reality

Information is the source of knowledge” ~ Albert Einstein
Noble laureate Isidor Isaac Rabi once wrote in his article ‘Man’s Right to knowledge and the free use thereof’, that “In our United States we are born free, but we cannot be born wise.” The quotation is appropriate for every human being in this world. In the Mahabharata it was said that even Lord Krishna who was the reincarnation of Lord Vishnu had to gain knowledge from Guru Sandeepani when he took birth as a human being. So the importance of knowledge and source of knowledge did not come with the modern law makers but it is a natural right of each and every human being recognized from time immemorial. Information being the source of knowledge is also a natural right which was first codified in Sweden in late 18th century.

The right to freedom of information, and particularly the right of access to information held by public authorities, has attracted a great deal of attention in recent years. In the past five years, a record number of countries from around the world – including Fiji, India, Japan, South Africa, Trinidad and Tobago, the United Kingdom and a number of other European States – have taken steps to enact legislation giving effect to this right , joining the league of countries who have already successfully enacted the relevant law. Intergovernmental bodies have also started to devote more attention to this issue, with significant developments at the UN and Commonwealth.

The importance of freedom of information as a fundamental right is beyond question and so in its very first session in 1946 the UN General Assembly adopted Resolution 59(I), stating,

“Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.”

Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, elaborated on this in his 1995 Report to the UN Commission on Human Rights, stating:

“Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.”

Indian Perspective:
According to United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) the word "governance" means “the process of decision-making and the process by which decisions are implemented (or not implemented)”.

Governance is the process of decision-making and implementing it. Formal and informal actors are involved in an analysis of governance focusing on the decision-making and implementing the them. In order to arrive at the decision and inplement them the formal and informal structures have been set in place.

There are many actors involved in the governance but Government being one of the main actors involved. If the example of the actors in the rural areas are considered they generally include association of peasants or farmers, NGOs , influential landlords , research institutes, leaders , political parties, cooperatives, religious leaders, finance institutions, the military etc.

While in the urban areas the situation is much more complex than the rural areas. In the following Figure1the interconnections between the various different actors involved in urban governance is demonstrated.

An important role is played by the actors in the decision making or influencing in making the decision. The actors are lobbyists, multinational corporations ,international donors, etc in addition to the above mentioned actors.

The eight major characteristics of good governance provided by United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP). The eight characteristics are
a. participatory,
b. consensus oriented,
c. accountable,
d. transparent,
e. responsive,
f. effective and efficient,
g. equitable and inclusive
h. follows the rule of law.

The above eight features were also mentioned and condensed in the Sixth Global Forum on Reinventing Government held on Seol in the year 2005 the key elements of good governance:
a. government reform and innovation,
b. local governance,
c. transparency,
d. participation, and
e. social integration and development

Participation
The key to good governance is active participation by both men and women. They could either participate directly or through any other legitimate representatives or institution. We should understand that the representative democracy do not often mean that the issues and concerns of the most delicate and vulnerable in the society are being focused upon and taken into consideration. The participation by the people should be organized and informed. Thus there would be balance between the freedom of association and expression on one hand & organized civil society on the other.

Rule of law
Fair legal frameworks that are enforced partially are an important ingredient in the good governance. Full protection of human rights is an essential requirement , particularly for those who are minority. An independent judiciary and an impartial & incorruptible police force is required for impartial enforcement of laws.

Transparency
Transparency means decisions taken and their enforcement is conducted in a manner where rules and regulations are followed. The information should be freely available and directly accessible to those who are to be affected by these decisions and their enforcement, along with this easily understandable forms and media should be provided.

Responsiveness
In good governance all the stakeholders should be served within a reasonable timeframe by the institutions and processes.

Consensus oriented
Good governance is required between all those several actors and their viewpoint with the help of different interests in the society to reach a consensus which serves the best interest of the entire community. A broad and long terms perspective is also necessary for sustainable human development and how to reach the goals of achieving such development. And it can only be achieved when understanding of the historical, social and cultural perspective is derived.

Equity and inclusiveness
In order to attain wellbeing of the society the members should not feel excluded from mainstream society and they should rather feel that they have a stake in it. Though all groups should be focused upon but the most vulnerable requires maximum attention.

Effectiveness and efficiency
The concept of efficiency in the regards to of good governance also includes the sustainable use of natural resources and the conservation of the environment. Good governance means that processes and institutions providing results that convey the needs of the society at large while making the optimum use of resources available.

Accountability
Accountability is an essential requirement of good governance. It’s not only governmental institutions that is included but also private sector and civil society organisations are to be held accountable to the public and to the institutional stakeholders. Who is accountable to whom changes depending on whether actions or decision taken are external or internal to an institution or organisation. In general an institution or organisation is accountable to those who are to be affected by its actions or decisions. Accountability cannot be formulated without rule of law and transparency.

Essential features of a Right to Information Legislation
For a Right to Information legislation to be effective the following elements are essential

# It should apply to all organs and instrumentalities of the state
# Imposition of explicit duty to provide information
# Access to information as a general rule
# Exceptions to be narrow and limited
# Application procedure to be simple and clearly defined
# Time limit for response
# Reasonable fees
# Need for remedy mechanism
# Any law on the Right to Information is of little use unless the public is made aware of its contents.
# Any Right to Information legislation must necessarily protect whistle blowers who come out with critical information of public concern that would not have been otherwise produced on grounds purportedly falling within the exceptions of the general rule of disclosure.

India has the largest democracy in the world. So with the largest democracy and world’s largest variety of cultures, languages, food habits, customs, traditions and religion, information is required for transparency for the end goal of good governance. The country with 456 million, as per World Bank estimates, people who are under poverty line and more than that people who are illiterate and do not know their fundamental rights transparency even for them plays a pivotal role for good governance. Even a pauper pays tax while buying something as basic as salt.

The concept of good governance is much larger than mere administrative reforms in the conventional sense of the term. Good governance also includes development of the citizens. Development of citizen is carried out by public policy. Economists say that for economic development optimal utilization of resources should be done. In a country with so many people under poverty line optimal utilization of resources is required and for optimal utilization of resources accountability and transparency is required for every penny invested and acquired from the public. So right to information is required for a welfare state in letter and spirit. The preamble of the Right to Information Act states, “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, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.” Hence the RTI act was legislated for making public authorities accountable and transparent for making true the magic three words of democracy “of the people, by the people, for the people”

In the case of Bennett Coleman and Co. v. Union of India it was observed that the right of the public to hear and be informed is within the concept of the freedom of speech under Article 19(1) of the Constitution of India. Hence the H. D. Shourie Committee, which had been set up to formulate a draft of the legislation, submitted its report to the Government in 1999 as a result of mass movement by an organization called Mazdoor Kisan Shakti Sangathan (MKSS). It started working in one of the most neglected areas of Rajasthan in the early nineties. So the act for transparency of public authorities was finally passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005.

Landmark Judgments
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 judgments of Indian courts.

A Supreme Court judgment delivered by Mr. Justice Mathew is taken as a milestone. In his judgement in the state of UP vs. Raj Narain case, Justice Mathew says:- “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 - In 1982 that the right to know evolved to the status of a constitutional right in the famous case of S P Gupta vs. Union of India, popularly known as Judges case. In this case the claim for privilege was discussed before the court by the Government of India in regards to the disclosure of various documents. The Supreme Court by a generous explanation and interpretation of the guarantee of freedom of speech and expression developed the right to know and the right to information to the position of a fundamental right, on the principle where certain unarticulated rights are implicit and imminent in the listed guarantees.

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

As emphasized by The Supreme Court of India in the SP Gupta case (1982) that open Government is the latest democratic culture of any open society towards which every liberal democracy is marching and to which our country should also join hands. In a country like India being committed to socialistic pattern of society, the right to know is a necessity for the poor, illiterate and ignorant.

In 1986, the Bombay High Court upheld the SP Gupta case decision in the well known case named Bombay Environmental Group and ors vs. Pune Cantonment Board.

The Bombay High Court differentiated between the ordinary citizen seeking information and groups of social activists. This was considered a landmark order by the court concerning access to information.

Central Information Commission (Delhi)
Central Information Commission was formed under the RTI Act, 2005. The Commission has powers to inquire into the complaints of the citizens against public authorities or Public information Officers and appeals filed against the orders of the public information officers and impose penalties. The decision of the Information Commission is binding. The courts cannot entertain any suit or application against any order under the Act, except under the Writ jurisdiction of the Supreme Court and High Court.

The total number of appeals and complaints received are 4923, 10274, 14565, 21509 and 27453 respectively in 2006, 2007, 2008, 2009 and 2010. Every year number of disposal are 2905, 6979, 10285, 19633 and 23575 respectively. Hence the number of appeals and complaints that are pending are 2018, 5313, 9593, 11469 and 15347 respectively in the years 2006, 2007, 2008, 2009 and 2010.

Year Total Number of appeals and complaints received Percentage increase per year No of Appeals and complaints disposed off No of Appeals and complaints pending
2006

4923

-

2905

2018

2007

10274

109%

6979

5313

2008

14565

42%

10285

9593

2009

21509

48%

19633

11469

2010

27453

28%

23575

15347

The table above shows the number of complaints and appeals that came before the CIC till 2010 and also the number which is disposed of and pending. The graphical representation of the above information is given below:

If we take 15% - 20% increase on number of complaints and appeals received then total number becomes 32944, 37885, 43568, 50103 and 57619 respectively in 2011, 2012, 2012, 2013, 2014 and 2014. Then if we take that each commissioner disposing 3200 cases per year then 11 commissioners will be able to dispose of 35200. Then the total pending cases will be 13091, 15776, 24144, 39047 and 61465 respectively in 2011, 2012, 2012, 2013, 2014 and 2014.

Year Total Number of appeals and complaints received Percentage increase per year No of Appeals and complaints disposed off No of Appeals and complaints pending
2011

32944

20%

35200

13091

2012

37885

15%

35200

15776

2013

43568

15%

35200

24144

2014

50103

15%

35200

39047

2015

57619

15%

35200

61465

The above table is graphically shown in the chart below:

Conclusion and Recommendation:
World Band defined governance as “Governance is the process of policy making through active and cohesive discussion among policy makers who are interconnected through a broad range of networks”

Not just governance but good governance was a central focus of the Sixth Global Forum on Reinventing Government held on Seol in the year 2005. Korean prime minister Lee Haechan and other leaders emphasized that good governance is a core concept in the governance paradigm. In is message to the forum, Kofi Annan, secretary-general of the United Nations, observed that good governance is vital for the protection of the rights of citizens and the advancement of economic and social development. The Tunisian minister of civil service and administrative evelopment, Zouheir

M'Dhaffar, affirmed, "Good governance, efficient and effective public administration, are necessary conditions to achieve sustainable development."

In a plethora of judgments of the Supreme Court of India the importance of good governance of the democracy and nation is mention to be in the hands of Right to Information Act, 2005.

The power of the simple but very powerful right is well exclaimed Information Commissioner Mr. Shailesh Gandhi by an example given by him. He wrote:

“I have heard is of a slum dweller who had learnt the use of the Right To Information. When he applied for a new ration card, he was told that he would have to give a bribe of Rs. 2000 to the officials to obtain it. Our friend, -a RTI-empowered Citizen, - smiled, and applied for the ration card without offering any bribes or groveling in front of the officials for pity. Our common Citizen had decided to personally become the enforcer of good governance. He found out that the bribe-givers got their ration cards in about four weeks. He waited for an extra four weeks, and then applied for information under RTI. Using the simple format with an application fee of Rs. 10, he delivered it to the Public Information Officer of the Food and Supply office. He had asked upto which date applications for ration cards had been cleared, and the daily progress report of his application. This shook up the corrupt officials, since the answer would reveal that they had given ration cards to others who had applied after him, which would be conclusive evidence that they had no justification for delaying his card. Happy ending: The Ration card was given to him immediately. Our RTI-empowered Citizen had been able to enforce the majesty of the Citizen by using RTI. This story has been repeated many thousand times in getting a road repaired, getting an electricity connection, admissions in educational institutions and so on.”

For the betterment of the governance the implementation of RTI should be there in letter and spirit. Section 4 of the RTI Act which speaks of voluntary declaration by the Public authorities should be implemented by the authorities. The compilation of the order the Public Information Officers in the given time should be strictly construed.
************************************
# http://www.unescap.org/pdd/prs/ProjectActivities/Ongoing/gg/governance.asp
# http://www.goodgovernance.in/RTI_report2.php
# http://www.worldbank.org.in/WBSITE/EXTERNAL/COUNTRIES/SOUTHASIAEXT/INDIAEXTN/0,,contentMDK:21880725~pagePK:141137~piPK:141127~theSitePK:295584,00.html
# AIR 1972 SC 106
# AIR 1982 SC 149
# Kooiman 2003; World Bank 1994

Authors contact info - articles The  author can be reached at: ashishgill@legalserviceindia.com




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