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Right to Know
INTRODUCTION
Government openness is a sure technique to minimise administrative faults. As light is guaranteed against theft, so government openness is a guarantee against administrative fault or misconduct. Brandeis J rightly said, “A government which revels in secrecy… not only acts against democratic decency, but busies itself with itself with its own burial.” The right to know the truth is more important than anything else and it is more important than the right to property and any personal right.
Information is the core valve of democracy and good governance. John Adam said, “There was never a democracy which did not commit suicide.” The term suicide here means secrecy. Ignorance undermined the power and authority of the democracy. Lord Nolam committee identified openness, objectivity and accountability as fundamental standards in public life.
Louis Brande is once said that the live wire when removed darkness prevails. In darkness, even the shadows are not formed. In crooked lights, shadows are also crooked. Thus information is the “live wire” which light ups democracy and governance. Of this fact, one phenomena, which is common all over the world, is that no government appreciates the “the right to information” and creates barriers in free access to information because it feels comfortable under the protected umbrella.
Origin: Right To Information
The US Constitution, the oldest written Constitution of the world, does not contain specific right to information. However, the US Supreme Court has read this right to into the First Amendment of the US Constitution and granted access to information where there is a tradition of openness to information in question and where access contributes to the function of the particular process involved. The Administrative Procedure Act, 1946 was the first enacted which provided limited access to executive information. The Act was vague in language and there were many loopholes in the act like 1. Only those people were allowed to seek or access information who were properly and directly connected. 2. Agencies were permitted to withhold information without justification. 3. There was no provision for judicial review.
Taking these deficiencies into consideration, the congress of the US in 1996 passed the Freedom of Information Act, 1966, which gives every corporate or individual, regardless of nationality, a legally enforceable right to access to government unpublished document which the administrative authority may tempted to keep confidential. If any person denies this right, he can seek injection relief from the court, but there are certain exceptions to it;-
- Information related to the national defence or foreign policy.
- Information related solely related to internal personal use of the agency.
- Information specifically exempted from disclosure by statute.
- Information relating to trade, commercial or financial secrets.
- Information relating to inter-agency on intra-agency memorandums or letters.
- Information relating to personal medical files.
- Information complied for law enforcement agencies except to the extent available by law to a party other the agency.
- Information relating to agency regulation or supervision.
- Information relating to geological and geophysical maps.
Besides these nine exceptions, agencies within the intelligence communities are prohibited from making any record available to a foreign government or represented of the same pursuant to an information request.
After investigating the operation of this Act, Congress of the US in 1974 amended it. The Amendments provide for (a.) disclosure of “any reasonably segregable portion” of otherwise exempted records; (b.) mandatory time-limit of 10 to 30 days for responding to information requests and (c.) rationalised procedure for obtaining information, appeal and cost.
The Act was further amended in 1996 to provide for public access to information in an electronic form or format.
Right to Information:Constitutional Aspect
Indian Constitution does not specifically provide for the right to information as a fundamental right, though the Constitutional philosophy amply supports it. The preamble of the Constitution constitutes India into democracy and secure for its people justice—social, economic and political; liberty of thought; expression and belief. This justifies the conclusion that the Indian constitution draws upon the idea of open government. Thus, taking a cue or sign from this constitutional philosophy, the Indian Supreme Court found a habitat for freedom of information in articles 19(a) and 21 of the constitution. Certainly, poverty of information depreciates life and stultifies free speech. Thus, in India, the right to information is a basic human right which cannot be abridged, only reasonable restriction can be imposed and that too on the grounds mentioned in article 19(2)(1) of the constitution.
It is heartening to note that the highest bench in India, while recognising the efficacy of the “right to know” which is a sine qua non of a really effective participatory democracy raised the simple “right to know” to the status of a fundamental right. The “right to know” is implicit in the right of free speech and expression guaranteed under the constitution in Article 19(1)(a). The right to know is also implicit in article 19(1)(a) as a result or corollary to a free press, which is included in free speech and expression as a fundamental right. The court decided that the right to free speech and expression includes;-
- The right to propagate one’s views, ideas and their circulation.
- The right to seek, receive and impart information and ideas.
- The right to inform and be informed.
- The right to know.
- The right to reply.
- The right to commercial speech and commercial information.
Furthermore, by narrowly interpreting the privilege of the government to withhold documents under section 123 of the evidence Act, 1872, the court has widened the scope of getting information from government files. In the same manner by narrowly interpreting the exclusionary rule of article 72 (2) of the constitution, the court ruled that the material on which cabinet advice to the president is based can be examined by the court. However, this judicial creativity is no substitute for a constitutional or a statutory right to information.
Right to Information Act, 2005
With judicial support, the right to information become a cause of public action and there was a strong demand for a formal law on freedom of information. The State of Goa, Tamil Nadu and Rajasthan have, since1997, enacted law ensuring public access to information, although with various restraints and exemptions. There was a pressure on the Central Government also to enact law granting the right to information. Various drafts were submitted for consideration by the authorized authorities like the press council of India and by independent citizen’s groups. Ultimately the Freedom of Information Act, 2002 was passed and enacted on 6 January, 2003. However, on the suggestion of the National Advisory Council and others, for significant changes in the law, the government decided to repeal the Freedom to Information Act, 2002 and on its place enacted “Right to Information Act, 2005”, this Right to Information Act, 2005 recognised under Article 19 of the Constitution. The purpose of bringing this Act into existence is to promote transparency and accountability in the working of every public authority. Present law converts the “Freedom to information” into a “Right to Information”.
The right to information covers inspection of work, documents, records and its certified copy and information covers inspection of floppies, video cassettes in electronic form, tapes or stored information in computers, etc. Information can be provided on a written request or request by electronic means with payment of a nominal fee. It is binding for the authority to supply required information within 30 days from the date of the request and if the information is related to life or liberty of a person then it can be obtained within 48 hours, the penalty for refusal of the application or for not providing information within a given time period is rupees 250 per day, but the total amount shall not exceed rupees 25000.
The Act prohibits information in specified categories and put restrictions on third party information’s. Section 8 of the act provides restrictions on the information, disclosure of which would prejudicially affect (a.) The sovereignty and integrity of the India, the security, strategic, scientific economic interest of the state relation with foreign State; (b) Banned information’s, disclosure of which would cause a breach of privilege of Parliament or State legislature; (c.) Information‘s relating to commercial confidence, trade secretes or intellectual properties, disclosure of which would harm competitive position of third party; (d.) Information on fiduciary relationship; (e) Confidential information of foreign land; (f) Information relating of the physical safety of person; (g) Cabinet papers; (h) Information relating to personal information; (i) Information prohibited under Official Secrets Act, 1923.
The act further restricts information relating to certain governmental organisation listed in second schedule. Such organisations include intelligence Bureau, Research & Analysis Wing of the Cabinet Secretariat, Director of Revenue Intelligence, Central Economic Intelligence bureau, Directorate of Enforcement, Narcotic Security Force, National Security Guards, Indo-Tibetan Boarder police etc.
For the administration of the Act, provision is made for the appointment of Public Information Officers (PIOs),
Right to Privacy v. Right to Know
The conflict between right to know and the privacy by imaging relationship and situation pertinent to both concluded that the right to know and right to privacy are two of the most ambiguous legal areas today facing government the court, the public and individuals. The welfare of the society is the primary duty of every civilized state. In Mr X v Hospital Z the supreme court held that it was open to hospital authorities or the doctor concerned to reveal such information to the person related girl whom he intended to marry and she had right to know about the HIV status of the appellant. A three judge bench of the supreme court held that the disclosure of HIV positive status justified as a girl has right to know, there was no need for this court to go further and declare in general as to what right and obligation arise in such context as to right to privacy.
An encroachment upon one's privacy is only shielded if the offender is the state and not a private entity. If the offender is a private individual then there is no effective remedy except in tort where one can claim damages for intruding on his privacy and no more. The Supreme Court held that the right to privacy is a right to be let alone. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.
Conclusion
Every citizen has a right to impart and receive information as part or his right to know. The state is not only under the obligation to respect this right of the citizen, but equally under an obligation to ensure the condition under which this right can be meaningful and effectively enjoyed by one and all. Right to know is the basic indivisible from a democratic polity. This right include right to acquire information and it disseminates it. Right to information is necessary for self expression, which is an important means of free conscience and self -fulfillment. It enables people to contribute on social and moral issues. It is the best way to find a truest model of anything, since it is an only through it that the widest possible of ideas can be circulated. The right can be only limited by reasonable restrictions under a law for the purpose mentioned in article 19(2)of our constitution. Despite all these shortcomings, legislation guaranteeing the right to information is a major step towards ensuring a participatory developmental process in the country. For the law to be truly effective, it will need the active participation of the community at large, including non-government organizations and the press, who will need to simplify and disseminate the possibilities under the new law to citizens.
