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THE PRACTICAL REGIME OF RIGHT TO INFORMATION IN INDIA: A CRITICAL STUDY SYNOPSIS

Submitted to:

Ch. Charan Singh University, Meerut


For

LL. D. Degree

Supervisor
Dr. D.N. Dwivedi Lecturer Department of Law Meerut College, Meerut

Submitted by
Pramod Kumar Dubey

Department of Law, Meerut College, Meerut

THE PRACTICAL REGIME OF RIGHT TO INFORMATION IN INDIA : A CRITICAL STUDY


Research Proposal
Democracy rests on good governance founded on transparency, openness and accountability. It is the best form of Government for a country, more especially with a large population like us, which is based on the principle of Government of the people, for the people and by the people. A democratic form of government is administered through the peoples participation and such Government is presumed to work for credence and betterment of the common man. Transparency is, therefore, a fundamental component of democracy. Democracy prohibits any form of secrecy in governance. Happenings in the Government cannot be withheld by a section of people to another section of people. No democratic Government can survive without transparency and accountability and the basic need for result oriented functioning of the democracy is that people should have information about each and every act of the Government. To make democracy meaningful and successful, access of information to the citizen is a must. It is the only source to promote openness and transparency in a democracy. The right to information gained prominence at the global level when the United Nations General Assembly in the year 1946 recognized freedom of information as a fundamental right while adopted Resolution 59(1) which reads as, Freedom of information is a fundamental human right and the touchstone to all the freedoms to which the U.N. is consecrated. U.N. Universal Declaration of Human Rights in 1948 in Article 19 provided that, 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 Rights of 1966, under Article 19, provides that, Everyone shall have the right to freedom of expression; the right shall include freedom to seek and impart information and ideas of all kinds, regardless of frontiers. The founding fathers of Indian Constitution realized the international obligations by guaranteeing the freedom of speech and expression as a fundamental right under Article 19 (1) (a) of the Constitution. The fundamental right to speech and expression, cannot be exercised until one gets information on matters of public interest. The right to information is therefore, held an inalienable component of the freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. Besides Article 19 (1) (a), several other provisions of the Constitution also give such right to information. Article 311 (2) gives a right to a Government servant to know why he is being dismissed or removed or reduced in rank and to be given an opportunity to make a representation against the proposed action. Not giving information may violate the principles of natural justice. Article 22 (1) entitles every person who is detained to know the grounds of detention. In Essar Oil Ltd. v. Halar Utkarsh Samity (AIR 2004 SC 1834), a landmark judgment relating to right to information was delivered by the Supreme Court observing that the right to information emanated from the right to life and personal liberty guaranteed by Article 21 of the Constitution. The Supreme Court of India played a vital role in order to establish the right to information to be a fundamental right by interpreting Article 19 (1) (a) in

particular and Article 21 in general. In State of U.P. v. Raj Narain, ((1974) 4 SCC 428) it was held that, A citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in Article 19 (1) (a). The Court observed that freedom of speech and expression includes right of citizens to know every public act, everything that is done in a public way, by their public functionaries. The Apex Court in Benett Coleman v. Union of India, (AIR 1973 SC 106), while striking down the Newsprint Control Order, whereby allotment of news print to a newspaper was restricted, held that such restriction had not only infringed newspapers right to freedom of speech but also the readers right to read was curtailed and the readers right to access to the reading material in a news was his/her right to information which was implicit in the right to freedom of speech. In S.P. Gupta v. Union of India. (AIR 1982 SC 149), the Supreme Court observed that, the people of this country have a right to know every public act, everything, that is done in a public way, by those functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Similarly, in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal ((1995) 2 SCC 161), the Supreme Court held that the airways were a public property and its distribution among the government, media and the private channels should be done on equitable basis as the freedom of speech included the right to impart and receive information from electronic media. These views have been repeated by the Court, time and again in various cases viz., Peoples Union for Civil Liberties v. Union of India (AIR 2003 SC 2363), Union of India v. Association for Democratic Reforms ((2002) 5 SCC 294), P. H. B. Co-operative Society Ltd. v. Karnataka Information Commission, (AIR 2007 Kar. 136),

It was felt in all corners of law world with the changing time that mere declaration of right to information as a fundamental right was not enough. It was needed to convert this right to ground reality through legislation. The right to information laws were enacted in Tamil Nadu in 1997, Goa in 1997, Rajasthan in 2000, Karnataka in 2000, Delhi in 2001 and Maharashtra in 2003. The Union Parliament passed the Freedom of Information Act. 2002 in Atal Bihari Vajpayee Government. It obtained the sanction of President of India also but it could not came into force for want of a notification by the Central Government. As the Bill was inadequate to give to the citizen right to access information under the control of public authorities, the present United Progressive Alliance Government has enacted a new legislation on Right to Information Act, 2005, which came into effect from October 12, 2005. One needs only to make a request in writing with an accompanying fee and the information would be provided within 30 days or so it promises. The Act defines Information under Section 2 (f) which means any material in any form including records, documents, memos, e-mail, opinions, advices etc, and requires all public authorities to maintain records duly catalogued and indexed. The Act says that the public authorities shall make a constant endeavour to provide as much information suo motu to the public at regular intervals. To maintain the right of the citizens, the Act calls for constitution of an Information Commission at the Center and a similar body at the State level. It seeks to ensure an independent appeal mechanism, penalties for failure to provide information. Thus the Act is a password for the citizen for unprecedented access to information including inspection of documents and extraction of data and marks a major milestone for Indian Democracy.

HYPOTHESES OF THE STUDY


The Right to Information Act, 2005 is a landmark in the history of Indian Democracy as it unequivocally confers on all citizen the right to access to information and makes the dissemination of such information an obligation for all public authorities. It is important to note that mere enactment of law is not sufficient. It is essential that it should be implemented and enforced in true sense of word on the basis of its objects and purposes. Further the beneficiary must be capable enough to extract its advantages and benefits. A large number of Indian society is illiterate and ignorant of their interests. How they are going to be benefited from this Act is a big question. Violations of human rights and corrupt practices are common phenomenon in India. It is a big question that how the aggrieved having no knowledge of the basis of this law can be remedied under this Act. Further the public authorities will have to disclose information, the category of exempted and non-exempted information and other factors bring for the certain questions which need deliberations and solutions. Theoretically the Right to Information Act, 2005 is very sound and a welcome move, but still suffers from following fallacies: 1. The most notable problem of the Act, which have been argued for long in the absence of Whistleblower protection. In a country like India, with its high levels of corruption and mismanagement and that too at the apex of the political system, which plague the administration and governance, whistleblower protection is a must.

2. The private bodies that provide public services have not been covered under the Act. This is an area which requires reconsideration. 3. Though much of the exemptions that were available under Official Secrets Act, 1923 have found place under Section 8 of the R.T.I. Act, 2005, however, the Official Secrets Act, continue to exist on statute books. This might create confusion in case of litigation on the issue. 4. The Act is almost based on computerization of all official records, classification and storage of such vast data, their availability over the Internet and e-connectivity of administration units down to the Gram Panchayet level with the headquarters for seamless administration all of which could take decades to achieve. It is, therefore, doubtful whether the Act would be implemented in a time bound manner. 5. The official mindset is one that does not want to share any information. The Act itself provides several grounds on which the Public Information Officer can turn down a request, like strategic information such as those pertaining to national security and sovereignty, information forbidden by the Courts to be published, information pertaining to individuals to whose publication could lead a lose or threaten his / her life, safety or privacy among others.

6. The Act stipulates penalties in cases where information has been denied without adequate reasons, but it is not harsh enough, making it a legislation that lacks teeth. In the light of these problems the present study will be an endeavour to study the fundamental issues relating to practical regime of the Right to Information Act, 2005 in the light of Constitutional provisions and judicial pronouncements. Some of the queries which are to be probed in this research are: 1. How far the R.T.I. Act, 2005 is oriented towards establishing a true democracy? 2. What are impediments in effective implementation of this law? 3. Whether Indian condition is capable enough to reap the fruit of this Act or certain ancillary changes in respect of peoples awareness, literacy are needed? 4. How people can use it as an effective weapon to check and control the democratic government? 5. Whether or not Indian judiciary has successed in fulfilling the role assigned to it by the framers of the Constitution under Articles 19 (1) (a) and 21 and other provisions? 6. Whether or not role played at international level are adequate? 7. What solutions are needed to translate the vision of this Act?

The present study is an attempt to discuss and analyse the commitment of the legislature to provide good governance by specifically providing a right to information to all its citizens and see as to what remains to be done for making this right really fruitful for the common man in India.

RESEARCH METHODOLOGY
The doctrinal method will be adopted in the proposed research. In this connection Constitutional provisions, Statutory laws, related judicial pronouncements, books, journals, reports, treaties etc. will be consulted, analyzed and examined as an instrument so that the object of the Right to Information Act, 2005 may be achieved in true sense.

TENTATIVE CHAPTERIZATION
The present study is divided tentatively into six chapters which are as under: CHAPTER I: Introduction CHAPTER II: Emergence of Right to Information at International Level CHAPTER III: Right to Information: Constitutional Mandate CHAPTER IV: Right to Information: Legislative Efforts CHAPTER V: Implementation of R.T.I. Act, 2005: Problems and Challenges

CHAPTER VI: Observations and Submissions Note: Necessary changes may be incorporated as and when required.

BIBLIOGRAPHY
BOOKS
1. Mishra Om Prakash: The Right to Information Act, 2005: Sagar Law House, 2006. 2. Nigam Shalu (Dr.): Right to Information, Law and Practice: J.B.A. Publishers, 2006. 3. Das P.K.: The Right to Information Act, 2005: Universal Law Publishing House, 2006. 4. Barowalia J.N.(Dr.): Commentary on the Right to Information Act: Universal Law Publishing House, 2006. 5. Jain M.P.: Indian Constitutional Law: Wadhwa and Compay.

ARTICLES
1. Singh Devinder (Dr.): Implementation of Right to Information Act 2005, AIR 2006 Journal 99. 2. Kanwal D. P. Singh: Right to Information Act 2005 A Result of Community Movement. Nyaya Deep 2007, p.111.

3. Hegde N. Santosh J.: An Overview of Right to Information Act with reference to Official Secrets Act. Nyaya Deep 2007, p. 15 . 4. Panigrahi Bhagirathi (Dr.): Right to Information: Challenges and Perspectives Kare Law Journal November 2005, p. 44. 5. Saikia A.H.(J.): The Right to Information Act, 2005 An Instrument To strengthen Democracy AIR 2007 Journal 115. 6. Vahini Versha, Right to Information Act: A Critical Overview, M.D.U. Law Journal, Vol.- XI, Part I , 2006, p. 181. 7. Sing A.P. (Dr.) Right to Information Under Right to Information Act and Beyond, Vidyasthali Law Journal, Vol.-IV, 2006, p. 161. 8. Saini, B.R.(Dr.), Appraisal of Right to Information in India, M.D.U. Law Journal, Vol.- XI, Part- I, 2006, p. 142. 9. Choudhary Ram Naresh, Right to Information, A Fundamental Right of Consumers, AIR 2005 Journal 138. 10.Pathak R.K. (Professor), Right to Information: A Constitutional Perspective, A Paper presented in U.G.C. Sponsored National Seminar on Right to Information Act: Implications, Impediments and Solution, on October 13-14th 2007 at M.B.S. P.G. College Varanasi.

List of Cases
1. Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 1442. 2. Dinesh Trivedi, M.P. v. Union of India (1997) 4 SCC 306. 3. Bennett Coleman and Co. v. Union of India AIR 1973 SC 60. 4. State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865. 5. S.P. Gupta v. Union of India AIR 1982 SC 149. 6. Peoples Union for Civil Liberties (PUCL) v. Union of India, AIR 2003 SC 2363. 7. Secretary, Ministry of Information and Broadcasting,

Government of India v. Cricket Asociation of Bengal, AIR 1995 SC 1236. 8. Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112. 9. L.I.C. v. Manubhai D. Shah, (1992) 2 SCC 637. 10. P.H.B. Co-operative Society Ltd. v. Karnataka Information Commission, AIR 2007 Kar. 136.