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Published : December 03, 2014 | Author : amandeepkauradvocate
Category : Right To Information | Total Views : 2294 | Rating :

  
amandeepkauradvocate
RESEARCH SCHOLAR AT DEPT OF LAWS, GURU NANAK DEV UNIVERSITY, AMRITSAR
 

Right to Know-Constitutional Prospective

The Right to information is indisputably a fundamental right. It is a facet of “right to speech and expression” as provided in art 19(1) (a). Right to know has increased the efficiency of decision making process. It has set a transparency and determines accountability in the working of public department. Reduction in corruption in public department is due to the implementation of Right to Information Act, 2005.

The phenomena of right to information gained momentum when Art 19 of the universal declaration of human right was adopted in 1948 ensuring, “everyone has the right to freedom of opinion and expression.” This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The international covenant on civil and political right 1996 says that, “everyone shall have the right to freedom of expression, the freedom to seek and impart information and ideas of all kind, regardless of frontiers”

It is relevant to refer here that in a government of responsibility like ours, it is elementary that citizens ought to know what their government is doing. They have a right to know every public Act, everything that is done in a public way, by their public functioning of the government. It has also stated that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. The concept of an open government is said to be the direct emanation from the right to know which seems to be implicit in the right of speech and expression under article 19(1) (a). The citizens have the right to decide by whom and by what rules, they shall be governed and they are entitled to call on those who govern on their behalf , to account for their conduct so that a citizen, prepared to pay requisite fee is entitled to ask for copies of public documents, to the inspection of such documents.

To provide a freedom to every citizen to access official information the freedom of Information Act, 2002 has been passed. It has been passed to promote openness, transparency and accountability in administration and in relation to matters connected therewith and incidental thereto. This act has been amended in 2005 extending its provision to centre/ state governments, panchayats, local bodies, recipients of governments and other related matters.

It is important to not here that it provides for furnishing information by the public information officer on request from the person desirous of obtaining it, on payment of prescribed fees.

Right to know is the species of the right to speech and expression provided by the Article 19(1) (a) of the constitution of India. A citizen has a fundamental right to access towards information. It is the duty of the state to protect the fundamental right. But it is also requisite to provide the opportunities under which this right can be effectively enjoyed by all. It is relevant to state here that a true democracy can not exist unless all citizens have a right to participate in the public functioning.

Right to know a constitutional prospective
The right which provides us the conformant of right to know can be classified in this way.

A) Article 19(1) (a) - freedom to Speech and expression.
B) Article 21-
C) Right to information Act,2005

Article 19(1)(a) guarantees to all citizens “the right to freedom of speech and expression” clause 2 of 19 , at the same time provides , “nothing in sub clause (a) of clause (1) shall affect the operation of any existing law , to prevent the state from making any law , in so far as, such law imposes reasonable restriction on the exercise of the right confer by the said sub clause in the interest of sovereignty and integrity of India , the security of state , friendly relations with foreign state , public order , decency and morality or in relation to contempt of court , defamation or incitement to an offence .

Freedom to speech and expression has been held to be basic and indivisible for a democratic polity, the citizens most cherished and scared right, the prized privilege” it is said to be a cornerstone of functioning of democracy .

It is the foundation of a democratic society. It is essential to the rule of law and liberty of citizen’s.. The democratic form of Government, it self demands its citizens, active and intelligent participation in the affairs of the community. The public discussion with people participation is a basic feature and rational process of democracy, which distinguishes it from all other forms of government.

The framers of the constitution recognized the importance of safeguarding this right since the free flow of opinions and ideas was essential to sustain the collective life of the citizenry.

The right to information, like other right is subject to several exemption / exceptions. There is rational behind exempting areas like national Security, military, Deployment, international relations and like from the RTI ambit, the judiciary has no valid reason to claim such immunity from public gaze. Since Right to Information has turned out to be a grate cheque on the executives, this is said to be strong case for extending the Act, two sectors like the judiciary that remained insulated from it.

Though some of the judges were in favor of voluntary disclosure of the assessed by the Supreme Court judges, the chief justice of India had resisted the judges inclusion in the right to information. The honorable chief justice of India has expressed recently that he would resist “tooth nail” any attempt to share “confidential” information about appointments and transfer of the judges and instead that the office of chief justice of India kept out side the preview of right to information .

On 2nd September, 2009, a division bench of Delhi high court had given a land mark ruling that the information on assets declared by the Supreme Court judges in possession of chief justice of India would come within the ambit of right to information Act, 2005.

Since the chief justice of India held the Information pertaining to Assets declaration by him and his brother judges, the chief justice of India was held to be a “Public Authority” under the right to information Act, 2005. The ruling deserves to be lauded because it will promote transparency and accountability. If the judges support the Right to information like voluntarily assets disclosure, it would go a long way in enhancing their moral stature ,empower the people and give a fillip to the movement of the right to know with in the meaning of Art-19 (1)(a)

The Apex court ruled in famous case voters right to know antecedents including criminal past of his candidate contesting election from M.P and MLA was fundamental and basic for survival of democracy. Democracy can not survive without free and fare elections, without free and fairly informed voters, the court said that the voters had right to get material information, with respect to a candidate contesting election for a post , which was utmost importance in the democracy was implied in the freedom of speech guaranteed by Article 19(1)(a)

The Apex court ruled that right of a voter to know the bio data of candidate was the foundation of democracy, a facet of the right to freedom of speech and expression. It would be the basis of free and fair election which was the basic structure of constitution..

The court distinguished the right of the voter to know the antecedent of a candidate from the right to vote and stand as a candidate for election.

Right to Information Act is a weapon in the hand so f a common people. the importance for the right to information in India were discussed in detail by the supreme court in 1974 in the land mark judgment of Raj Narain V. Indira Nehru Gandhi, where the court while rejecting the governments claim of privilege of the disclosure of the security instructions for the prime minister, “in a government of responsibility like ours there all the agents of the public must be responsible for their conduct there can be but few sectorates. The people of this country have a right to know every public Act, everything that is done in public way, by their public functionaries. They are entitled to know the particulars of the very public transaction in all its bearing”

We can not make the government accountable if we do not have basic information regarding the government decisions and its functioning. The right to information in the Indian jurisprudence has largely immerged from the freedom of speech and expression guaranteed by article 19(1) (a) of the Indian constitution. In the words of Justice Bhagwati, the concept of open government is the direct emanation from the right to know which seems to be implicit in the right of freedom of speech and expression. The rational of this view in the words of learned judges is that the right to information or assessed to information is basic to the democratic way of life. It redefines the relationship between the people and the government by providing critical information and evidence in the hands of common people.

The right to know is not meant for gratifying idle curiosity or mere inquisitiveness but is essential for the effective functioning of democracy. Transparency and accountably are sine qua non in a genuine democracy.

Information is a tool that empowers people to act more meaning fully a electors as well as elected representative of the people. If the people are well informed they will be more vigilant and therefore democracy is bound to become more vibrant. Abraham Linkon said at the gettysdurg address, way back in 1863,”Democracy is government of the people, by the people, for the people.” It is basic postulate of democracy that government shall be based on consent of the government and the governed. The consent of governed implies not only that consent shall be free but also that it shall be grounded on an adequate information and discussion aided by the widest possible dissemination of information from diverse and antagonistic sources, consequently citizens must have access to information, “right to know” about the functioning of the government and public functionaries.

Jeffosen Said, “Information to the people is the most certain and legitimate engine of government. When a government refuses to put its trust in the people, the people in turn will withdraw their trust from the people.

The Act in its preamble says to provide for setting up the practical regime of the right to information under the control of public authority in order to promote transparency and accountabilities in the working of every public authority.

a) It helps an individual to attain self fulfillment.
b) Assist in discovering of truth.
c) Strengthens the capacity of an individual in participating in decision making.
d) Provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

Constitutional Prospective of Right to Information

Article 39 (a) (b) (c) of the constitution make provision for adequate means of livelihood, equitable distribution of material resources of community to check concentration of wealth and means of production.

In Bombay environmental group & others V. Pune cantonment board, the honorable supreme court of India observed that “real democracy can not be worked by men sitting at the top. It has to be worked from below by the people of every village and town. The sovereignty resides in and flows from the people. So said the father of Nation in whose name we swear. Therefore, “who will watch the watchman?” is a vexed question before our democracy. For this people ‘s participation at all levels is a must”

Right to information in other Countries

The first RTI law was enacted by Sweden in 1766, largely motivated by the parliament’s interest in access to information held by the King. Finland was the next to adopt, in 1953, followed by the United States, which enacted its first law in 1966, and Norway, which passed its laws in 1970. The interest in ATI laws took a leap forward when the United States, reeling from the 1974 Watergate scandal, passed a tough FOI law in 1976, followed by passage by several western democracies of their own laws (France 1978, Netherlands 1978, Australia 1982, New Zealand 1982, Canada 1982, Columbia and Denmark 1985, Greece 1986, Austria 1987, Italy 1990). By 1990, the number of countries with RTI/FOI laws had climbed to 13. The new South Africa constitution specifically provides the right to information in its bill of rights. Columbia in its 1888 code of political and municipal organization allowed individuals to request documents held by government agencies. Malaysia operates an online data base system known services link, through which a person can access information regarding functioning of public administration. 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 o the country’s constitution itself. In Australia, his freedom of Information Act was enacted in December 1982. It gave citizens more access to the federal government’s document. The fall of the Berlin Wall and the rapid growth of civil society groups demanding access to information – about the environment, public health impacts of accidents and government policies, draft legislation, maladministration, and corruption – gave impetus to the next wave of enactments, which peaked in the late 1990s and early 2000s. Between 1992 and 2006, 27 countries in Central and Eastern Europe and the former Soviet Union passed RTI laws, of which Hungary and Ukraine were among the first. During that same period through to the present, at least 42 countries in other regions of the world enacted laws. By February 2010, some 82 countries had national-level right to information laws or regulations in force – including the population giants of China, India, and Russia, most countries in Europe and Central Asia, more than half of the countries in Latin America, more than a dozen in Asia and the Pacific, five countries in Africa, and two in the Middle East. As of April 2010, when Indonesia’s law entered into force, more than 4.5 billion people lived in countries that include in their domestic law an enforceable right, at least in theory, to obtain information from their governments.

As held in the various cases held by honorable supreme court including in Secretary, Ministry of Information and Broadcasting V. Cricket Association. o Bengal (1995) (2) SCC 161 supreme court while taking into account of news print control order allotment of news print to news paper was restricted held that such restriction had not only infringed news paper’s right to freedom of speech but also readers right to read was cut down. The readers right to access the news papers was his right to information which was implicit in the right to freedom of speech and expression. Similarly in S.P. Gupta case the honorable Supreme Court observed that, “people of this country have a right to know every public Act, everything that is done in a public way, by these these functionaries they are entitled to know the very particulars of every public transaction. Also in Secretary, Ministry of information and broad casting V. Cricket ass. Of Bengal, the Supreme Court held that the Air waves were a public property and distribution among the government media and the private channels should be done on equitable basis as the freedom of speech included in the right to impart and receive information from electronic media.

Along with article 19(1) (a), the other articles which secures right to information under Indian constitution are article 311(2) and 22(1). Article 311(2) provides for a government servant to make out. Why he is being dismissed or removed as being demated and representation can be made against the order. On the other hand article 22(1) a person can know the grounds for his detention. In important casethe Supreme Court held that right to information emerges from right to personal liberty guaranteed by article 21 of constitution.

In State of Uttar Pradesh V. Raj Narain (1975) 4 SCC 428 the court explicitly stated that It is not in the interest of the public to ‘cover with a veil of secrecy the common routine business, the responsibility of official to explain and the justify their acts is the chief safeguard against oppression and corruption.

Rights which are available under Right to Information Act 2005

It empowers every one to
# Seek and receive information from the government and other public authorities.
# Ask them certain questions.
# Take copies, including certified copies of documents.
# Inspect documents.
# Inspect works.
# Take sample of material.
# Right to Information Law Contains

Accountability
A Right to Information law lays down clearly the principle of accountability. That is, it states specifically as to who is responsible for providing the information (e.g.:- appointing Public Information Officers in every office and department of Government"). Penalties also provided for officials who delay without just cause the giving of information or refuse on unwarranted grounds.

Independent Forum for Appeals

The Right to Information Act 2005 contains a simple and independent procedure for appeals from refusals to give information or for willfully providing wrongful information or misleading information. The appellate forum is an independent person or institution such as an Ombudsman.

Reasonable fee Structure
The law, it provides for a levy of a fee for getting information ensures that the fee is reasonable and does not act as a deterrent for asking information and does not end up debarring information from the disadvantaged groups who cannot afford the fees. The law is provided for waiver of fees in certain circumstances.

Upgradation of systems

The law contains provisions for setting up specific systems for storing and disseminating information and upgrading the existing systems for enabling easy access. There must be specific provisions for priority-wise computerization etc. of government offices.

Allocation of funds
The law contains a specific allocation of funds for the purpose of operationalising the Right to Information. Without this, the law will be a dead letter and will have no effect.

Methods of Communication
The law contains a specific directive for simplification of official language. Information giving is in a form that can be easily understood by people. There is a focus on traditional means of giving information. Information contained in official gazettes and publications that are usually unavailable and are of no use to the lay citizens, given the low literacy levels. The law also ensures proper use of the electronic and print media as well as use of conventional methods of communication as per the target group.

Duty to Inform
The law cast a positive duty on public bodies to inform the public in case of certain projects and activities that relate to the public. This envisages giving information without being asked for it. It is made mandatory to give out certain kinds of information on a mandatory basis. This kind of information also includes rules, information on proposed projects and schemes, and other relevant information which needs to be given out and updated routinely.

Time Limit
The law also contains a provision for timely imparting of information. The concerned public officials face a penalty in case the information is not given in time. The time limit is reasonable and does not jeo-pardise a person’s rights. Time limits are set in order of urgency and accessibility. Information regarding a person’s life and liberty is made available forthwith or within the shortest possible time, say within 48 hours.

Protection of Privacy

The law takes into account the protection of an individual’s privacy. Personal information held by the government is exempted from disclosure. However, if the public interest in disclosure in the public interest greatly outweighs the preservation of individual privacy, then disclosure should be allowed.

Application to Private Bodies
Right to Information is usually seen as a right to seek government-held information. In reality it is a right to seek greater accountability from organizations and institutions working in the public domain. Therefore, the law must make it binding on private bodies to disclose certain kinds of information that could affect the public health, safety, environment etc.

Penalties
Sec.20 (1) provides power the State Information Commission to impose a penalty of Rs.250/- per day till application is received OR information is furnished, so however, the total amount of such penalty shall not exceed Rs.25000/- Provided that the State Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed. As per Sec.20 (2) the State Public Information Committee shall recommend for disciplinary action against the State Public Information Officer, as the case may be under the Service Rules applicable to him.

Miscellaneous
Sec.21. No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made there under.

Sec.23. No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.

Grounds for Denial of Information

As per Sec.24 of the Act, intelligence and Security Organizations established by the Central Government and Listed in of the Act, shall not apply:- Information pertaining to allegations of Corruption is not excluded. Information pertaining to Human Rights Violation can be given after approval of Central Information Commission time allowed, 45 days.

Appeal

If the person is dissatisfied with the information provided or he doe s not receive any reply from the government authorities then he can make the appeal within 30 days.

Procedure to Apply

Write a simple application along with the prescribed fees addressing Public Information Officer (PIO) of the related department from which you want to get any information.

Meaning of Information

According to section 2(f) of right to Information Act,2005 information means any material held in any form with a government agency i.e. files, records including tenders, contracts, orders, correspondence i.e. emails, letters opinion, advice , samples, material held in electronic formats and as audio / visual material . Right to Information Means

# The right to seek information from any public authority.
# The right to take certified copies of records held by public authorities.

Conclusion
Right to information (RTI) is harnessed as a tool for promoting participatory development, strengthening democratic governance and facilitating effective delivery of socio-economic services. In the knowledge society, in which we live today, acquisition of information and new knowledge and its application have intense and pervasive impact on processes of taking informed decisions. Right to Information Act 2005, is termed as the best tool for bringing Good governance in the society. This right has been recognized in many International instruments and is seen not just a facet of the right to freedom of speech and expression but also as a right that is necessary for the exercise of civil and political rights and socio-economic and cultural rights. Right to Information means the right to have access to information relating to a legal right of any person. This information could be in the form of records, files, registers, maps, data, drawings, reports etc. told the information regarding some matters that could affect a person’s rights. This means that a positive duty is cast on a person to give certain types of information without waiting to be asked for it. This would include information on issues concerning projects that directly affect the people or the environment, information on health, agriculture, weather conditions etc.

Some Important Questions Relating To RTI Act

Q:-1) who can apply for information?
Ans: - any one can apply for the information. Rule of locus standi is not applicable.

Under section 3 of RTI, any citizen of Indian can apply for information under the RTI act. There is no restriction on age and one or more persons can make an application. As per a recent central information commission order, applications can also be on letterheads of organizations.

Q:-2) how can we apply for information?
Ans:-Draft your application on a plain sheet of p ape and submit it by post or in person to the public information officer (PIO).

Q:-3) who will give me information?
Ans:-One or more officers in every public authority have been designated as public information officers (PIO). These PIOs act like nodal officers. You have to file your applications with them. They are responsible for collecting information sought by you from various wings of that public authority and providing that information to you. In addition, several officials have been appointed as assistant public information officers (APIOs). Their job is only to accept applications and appeals from the public and forward it to the concerned PIO.

Q:-4) where can I submit an RTI application?
Ans:- To the public information officer or assistant public information officer. 629 posts of APIOs have been appointed by under the central government department. Website: http://www.indiapost.gov.in/rti manual16a.html.

Q:-5) is there any fees?
Ans:- For central government department, the fees is rs.10/- only. For state government department, it varies from state to state.

Q:-6) can we get the photocopy of the document from the government department.
Ans:- For central government department, fee to get photocopy of the document is rs. 2/- per page. For state government department, it varies from state to state.

Q:-7) can we inspect the document under RTI act?
Ans:- There is a fees for inspection of documents. For the centre department, there is no fees for first hour of inspection and thereafter, you have to pay rs.5/- for any subsequent hour. (for further information relating to relates see annexure 1 of central government rules.

Q:-8) how can I deposit my application fees?
Ans:- It varies from state to state generally it can be paid by cash. (Remember to get the receipt) Under the central government you can make the payment through demand draft, banker cheques or postal order. In some states there is a provision of payment by challan.

Q:-9) who is exempted from payment of fees?
Ans: - All the persons below-poverty-line (BPL) are exempted from paying any fees. (For copy of central government rules see annexure 2)

Q:-10) how to find PIO of your location?
Ans:- 1. Consult to the head of the department in which you want to get the information.

2. Simply go to website : http://rti.gov.in

Q:-11) if anybody is unable to locate PIO?
Ans:- Then address the RTI application to PIO, c/o. Head of department send it to public authority with requisite fees. The H.O.D will have to forward your application to concerned PIO.

Q:-12) is there any time limit to get information from government authority?
Ans:- Within 30 days, but they can delay the answer for further 5 days means strictly within 35 days.

Note: - in case matter relating to information which affects the life and liberty of an individual then the information has to be made within 48 hours.

Q:-13) can PIO refuse to accept RTI application?
Ans: - Only in following cases PIO can refuse:

a) If applicant addresses other PIO.

b) Application without prescribed fees.

c) Persons seeking the exemption of BPL without proof of BPL.

d) PIO has to accept the application.

Q:-14) what can you do if the application/application fee is refused by a public authority
Ans: - Send the application to the PIO by registered post. If this is also refused, then a complaint under section 18 (1) should be made to the information commission, then the concerned PIO is penalized u/s. 20(1).

 

******************
# Research Scholar, Department of Laws, Guru Nanak Dev University, Amritsar, Punjab
# Article 19 of universal declaration of Human Rights
# Narinder Kumar, Constitutional law of India, Allahabad law Agency, 2012
# Union of India V. Association for Democratic Reforms AIR 2002 SC2112
# K. Ravi Kumar V. Bangalore University
# Reliance Industries Ltd V.Gujrat State information Commission AIR 2007 Guj 203.
# Union of India V. naveen Jindal AIR 2004 SC 1559
# D.C. Saxena AIR 1996 SC 2481
# S. Rangarajan V. P. Jagjivan ram (1989) 2 SCC 574
# S. khushboo V. Kanniammal AIR 2010 SC 3196
# Secretary general, Supree cOurt od India V. Subhash Chandra Aggarwal AIR 2010 DEL 159
# Narinder Kumar, Constitutional law of India, Allahabad law Agency, 2012 p 236
# Union of India V. Association for democratic reforms
# AIR 2002 SC 2112
# Union of India V. Association for democratic reforms AIR 2002 SC 2112
# T.B.U. L V. Union of India AIR 2003 SC 2363
# AIR 1975 SC 865
# DR. Mohd. Kalee Mullah, “Right to information Act,2005-objectives ,landmarks and emerging dimensions, civil and military law journal, vol 45(3) p 131(1993)
# Avinash Sharma ,”Right to information /a constitutional prospective, civil and military law journal, volume 3 & 4 , 2000 p 76
# Avinash Sharma ,”Right to information /a constitutional prospective, civil and military law journal, volume 3 & 4 , 2000 p 76
# Lalit Dadwal. “Right to information”MDU Law journal , Vol X part-1 (2005)
# AIR 1982 SC 149
# http://right2info.org/access-to-information-laws. Retrieved on February 6, 2013
# http://en.wikipedia.org/wiki/List_of_countries_by_population. Retrieved on February 6, 2013
# Bennet Colman V. Union of India AIR 1973 SC 106
# S.P. Gupta V. Union of India AIR 1982 SC 149
# AIR 1982 SC 149
# Essar oil Ltd V. Halar utkarsha Samiti
# AIR 2004 SC 1834
# Madav Sirinivas, “Right to Information act, A Vaccine to Control Corruption,” Asia Law House, Hyderabad 2006 P 104
# Barowalia (Dr).J.N, “Commentary On RTI Act”, Universal Law Publication, New Delhi 2006, P. 19
# Right to Information Act,2005 –Primer by Suchi Pandey , Shakher Singh , National Book Trust- Basant Kunj, Delhi, 2009, India. P 8 - 21

Home To Appeal before CIC - Central Information Commission
For Hearing contact: Choudhury's law Office
Ph no: 9873628941



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