ROLE
OF JUDICIARY IN DEVELOPMENT OF RTI,2005
Abstract-
The Supreme court in particular & the judiciary in
general has contributed to the beneficial interpretation of the various rights
generated under the Constitution of India. It is rightly said that the right to
Information as now made available under the “Right to Information Act,2005”
is the result of favourable interpretation of legal regulation for the welfare
of people & good governance of the country by the Judiciary. While the
weapon of secrecy was used by the executive in governance to defeat the rightful
claims of the governed, the judiciary destroyed this weapon in favour of an
open, democratic & welfare form of governance. Article 19 of the
constitution may be said to be the mother of the Right to know & Art.19(1)(a)
is the womb. In essence, the “right to Information” is a human right as
declared by the UDHR,1948.
Introduction-
Jurisprudentially
stating, A right is a legally recognized & enforceable interest. The
correlative of a right is a duty. In the context of Right to Information, there
is a constitutional obligation to provide information to the citizens when
sought for. Until before the emergence of welfare state, there was general lack
of knowledge of rights. Written constitution & consequent promise of
welfarism have given rise to the creation of several new kinds of right,
hitherto prohibited. The right to information is a new species of general
rights of citizen, which when enforced, seeks to revolutionize the art of
governance.
Sec.2(j) of the RTI
Act, 2005 defines Right to Information as,
“Right to
Information” means the right to information as accessible under this Act which
is held by or under the control of any public authority & includes the
right to,
·
To inspect works, documents, records,
·
To take notes, extracts, or certified
copies of documents or records,
·
Taking certified samples of material,
·
To obtain information in the form of
printouts, diskettes.
Objectives of RTI-
The objectives are given following-
1.
To secure access to information under
the control of public authorities-Art.19(1)(a), removes speculation
& doubts in the minds of the public,
2.
To promote transparency,
3.
Accountability in working of public
authorities, if the officials know that they will be answerable to the public,
they will work efficiently,
4.
To fulfill democratic objective rule
of the people,
5.
Informed citizenry - right to
informed choice, to make an informed decision, Ex- fundamental duties,
6.
To prevent corruption- RTI exposes
corruption by bringing to light those not performing duties,
GOVERNANCE AND RIGHT TO INFORMATION-
A basic
form of governance existence is by the people, for the people. Government
policies are directed towards welfare of the people. Under such circumstances,
the people who elect the government & for whose benefit the laws are
enacted, have an inherent right to know, how these laws & welfare schemes
are implemented. In short, people have right to know how they are being
governed.
The
task of democratically governing India is set out in detail in the constitution
of India which was adopted by, “We the people of India” in the year 1950.
A major task in the intitial years of governing the country was to enact laws
to fulfill the promise of the constitution mentioned in the preamble i.e.
equality, justice, liberty. Succussive parliaments have since then been enacting
laws designed for the overall development of the nation & the citizen. But
soon, it was realized that despite the best & honest efforts of the
government, there was a general lack of progress as for as the individual citizen
was concerned. There was evidence to suggest the lack of information by citing
the Official Secrets Act, had resulted in water down the promise of equality,
justice, & liberty. Further, corruption at all levels of governance has
made the governing structure stink with buried right to the people.
THE CONSTITUTION & RIGHT TO INFORMATION-
It is
generally accepted that ‘Information’ is the key to the success of a democratic
society. The right to have the information is empowering tool for a vigilant
society. Pointing on the importance of right to information justice V.R
Krishna Iyer, former judge of the supreme court of India, quotes from
Rigveda by stating, “from the Rigveda downwards the Indian heritage has been an
eclectic universality & cultural hospitality for creative ideas &
educative information.” The constitution of India in Art.19(1)(a) lays
down the basic structure for securing to the citizens of India the right to
know. Liberty of thoughts is the basis of freedom of speech & expression
under Art.19(1)(a). In fact, UDHR, 1948, included freedom if expression
& free flow of information, as a Human right essential in the persuit of
peace & progress.
Though
it is Art.19(1)(a), which empowers the citizen the right to receive
information, it is Art.21, which secures to its citizen the right to
life & personal liberty. Artricle 21 within itself includes a
variety of rights. Art.21 confers on all persons a right to know which includes
a right to receive information. The ambit & scope of Art.21 is much wider
as compared to Art.19(1)(a). Thus, the courts are required to expand its
judicial activism.
ROLE OF JUDICIARY IN CREATION OF RTI-
There is no doubt that the judiciary in India, especially the supreme
court of India, over the last several decades since the enactment of the constitution,
has contributed to the interpretation, creation, and enforcement of several
rights for the welfare of the citizens of India. Many landmark judgements have corrected
the lapses of the legislature & the executive in India. The entire human
rights jurisprudence in India is the contribution of the supreme court.
The creation of the right by the supreme court may be traced back to its
judgement in State of U.P vs Raj narain [1975 4 SCC 428]. In its
judgement, the court stated, “ the right to know, 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 transaction which can, at any rate, have no
repercussion on public security.” Further it stated, “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.”
Thus, it was made clear by the court 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 Art.19(1)(a).
The right to know was concretized by the supreme court
in its decision in S.P Gupta vs UOI [1981 SCC P987], while dealing with
the issue of High Court judges transfer, the court observed, “the concept of an
open government is the direct emanation. From the right to know, which seems to
be implicit in the right to free speech & expression guaranteed under
Art.19(1)(a). Therefore, disclosure of information in regard to the functioning
of the government must be the rule and secrecy & exception.”
The emphasis on right to know was stated in following words, “No democratic
government can survive without accountability & the basic postulate of
accountability is that the people should have the information about the
functioning of the government. It is only when people know how the government
is functioning that they can fulfill the role which democracy assigns to them
& make democracy a really effective participatory.
From the above para, it can be emphasized about the link b/w the citizen`s
right to know & government accountability.
In
R.P Limited vs Indian Express Newspapers, the supreme court read into
Art.21, the right to know. The supreme court held that right to know is a
necessary ingredient of participatory democracy. In view of translational
developments when distances are shrinking, international communities are coming
together for co-operation in various spheres & they are moving towards
global perspective in various fields including human rights, the expression
‘liberty’ must receive an expanded meaning. The expression cannot be limited to
mere absence of bodily restraint. It is wide enough to expand to full range of
rights including right to hold a particular opinion & right to know which
include a right to receive information. The scope of Art.21 is much wider as
compared to Art.19(1)(a).
Supreme court in Dinesh Trivedi vs UoI, held that, “In modern
constitutional democracies, it is axiomatic that the citizens have a right to
know about the affairs of the government, which, having been elected by them
seeks to formulate sound policies of governance aimed at their welfare.However,
like all other rights, even this right has recognized limitations, it is, by no
means, absolute.” In this the proposition expressed in Raj Narain`s case
was quoted with approval.
The next decision which deserves reference is the case
of Secretary, ministry of I.B vs Cricket association of Bengal [1995 2 SCC
Pg 161].While dealing with issue of right to get an event telecast through
an agency of his choice whether national or foreign, the court has said that,
“the right to impart & receive information is a species of the right of
freedom of speech & expression guaranteed by Art.19(1)(a) of the
constitution. A citizen has fundamental rights to use the best means of
imparting & receive information and as such to have an access to
telecasting for the purpose. However, this right to have an access to
telecasting has limitations on account of the use of the public property.
In another judgement, Association of democratic
reforms vs UoI, recognized that a voter has a right to know about the
antecedents & past performance of the candidate at an election. Such
information would include assets held by the candidate, his qualification
including educational qualification & antecedents of his life including
whether he was involved in a criminal case & if the case is decided, its
result, if pending, whether charge has been framed or cognizance has been taken
by the court. There is no necessity for suppressing, the relevant facts from
the voters.
It is relevant to mention here that the right to information evolved by
the court in the above discussed case is qualitatively different from the right
to get information about public affairs. The right to information about a
candidate in election, cannot materialize without the government`s
intervention.
Significance of RTI, 20005-
India`s new right to information Act is the outcome of
the consistent inroads made by the judiciary in India into the secrecy clause
covering the layers of administration. The preamble of the law on right to
information states that it sets 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 & accountability in
the working of every public authority. It has emerged as a powerful tool for
India`s civil society to promote transparency & hold these in power
accountable. Ordinary citizens have taken up their battle against government
officials.
Various cases of corruption, nepotism, biased decision
making have been exposed. As a result of the law, the government has come with
various schemes & policies to keep the citizens informed about the various
activities empowering citizen`s participation in governance.
CONCLUSION-
From the above
discussion of the various cases decided by the supreme court of India, it may
be concluded that the judiciary has played a proactive role in the creation of
right to information, which ultimately led the enactment of law titled Right to
Information Act, 2005. In less than 10 years of its existence, the law has
benefitted the citizens in expressing cases of mala- administration in
governance.