IMG_0654
Legal Jobs and Internships
Teach at RostrumLegal

An Evaluation of the Working of the Right to Information Legislation in Contemporary Democracy

Parikshet Sirohi is Assistant Professor at Campus Law Centre, Faculty of Law, University of Delhi

The free flow of information from the State to the citizenry and vice versa, is vital for the health of a modern-day democratic system.  Despite being the largest participatory democracy in the world, the transition from a feudal society to a modern industrial society, has been rather slow in India.  It is therefore imperative that the citizen-government partnership is redefined keeping in mind the changed ground realities.  Free flow of information can help to form a truly democratic society wherein citizens are able to share the required information with their governmental representatives through discussion, thus heralding a new era in the country’s democratic framework.  The Right to Information (RTI) Act, 2005 was passed in our country after years of struggle by people yearning for a more transparent, accountable and participatory system of governance.  The passing of this law by the Parliament was a notable milestone in the evolution of our democracy.  This Act makes every public authority responsible for the dissemination of information that it holds with itself.  It also casts a statutory obligation upon the Competent Authority to maintain and update all its records in a manner that is consistent with the operational requirements of the Act.  The salient feature of the Indian legislation is that it took into account the experience of various other countries in enforcing and implementing laws aimed at ensuring freedom of information.  This Paper attempts to chronicle the progress of RTI legislations and their working across different jurisdictions.


  1. Introduction

Information is regarded as the oxygen of a vibrant democracy.  If people do not know what is happening in their society and if the actions of those who rule them were to remain hidden from them, then they would not be able to take part in the affairs of the society in a meaningful manner and the goal of ‘swaraj’ or self-determination would remain a mere chimera.  Freedom of expression, free dissemination of ideas and access to information are, therefore, vital to the functioning of a democratic system of government.  Scholars refer to the present era as the ‘information age’ where ‘knowledge is power’.  India’s RTI Act, 2005[i] is based upon the concept of ‘freedom of information’ whereby access by the general public to data held by national governments is guaranteed by law.  Sweden’s Freedom of the Press Act, 1766 is the oldest such law in the world.[ii]  Today, there are over ninety-five countries across the world, which have implemented some or the other form of freedom of information legislation.  Other countries are working towards introducing such laws and many regions of countries with national legislation also have local laws.  For instance, all states of the United States have laws governing access to public documents of state and local entities, in addition to the federal government’s Freedom of Information Act which governs records management of documents in the possession of the federal government.[iii]

A basic principle behind most freedom of information legislations is that the burden of proof falls upon the body from whom the information is asked and not upon the person asking for it.  The person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed within a specified period of time, a valid reason has to be given by the public authority for not furnishing the required information.  From the above, it is evident that legislation has created a “right-to-know” legal process by which requests may be made for government-held information, to be received freely or at nominal cost, barring standard exceptions.  Many countries provide constitutional guarantees for the right of access to information, but usually these are unused in the absence of support legislation.[iv]  What was once considered to be a governance reform – a measure to make government more accountable to the people – is now widely, if not universally, recognized as a fundamental human right.[v]  It is significant, for example, that civil society demands in countries like Tunisia and Egypt have already highlighted the need for greater transparency, and discussions are ongoing about the possible adoption of RTI laws in both these countries.[vi]

Most freedom of information laws do not enjoy jurisdiction over the private sector.  Information held by the private sector cannot be accessed as a legal right.  This limitation creates serious implications upon the right to ensure an information-enabled society because today, the private sector is often seen to be performing several functions that were hitherto, the sole domain of the public sector.  As a result, information that was previously public is now within the private sector, and the private personnel cannot be forced to disclose such information held by them.[vii]  This limitation notwithstanding, the RTI law has met with a fair degree of success in the first decade of its inception in India.

The Supreme Court of India has held that the right to information was included within the right to freedom of speech guaranteed by of the Constitution[viii] and since this right is available only to citizens, most of the state laws as well as the central law on RTI have provided for citizens alone to be entitled to seek information.  Rule of law, equal participation in government, transparency, accountability and responsibility of public authorities are the basic elements of good governance.  Thus, RTI is a powerful tool for strengthening democracy at the grassroots level and enhancing good governance.

  1. Need for RTI Legislation

The ‘right to know’ is the bulwark of any democratic Government.  This right is essential for the proper functioning of the democratic process.  The right to information is an integral part of the freedom of speech and expression, which is often regarded as the first condition of liberty.  It occupies a preferred position in the hierarchy of liberties and is seen as giving succour and protection to other liberties.  The expression “freedom of speech and expression” in Article 19(1) (a) has been held to include the right to acquire information and disseminate the same.  It includes the right to communicate it through any available media, whether print or electronic or audio-visual, such as an advertisement, movie, article or speech, etc.  This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.  Communication and receipt of information are two sides of the same coin.  The freedom to receive and disseminate information without any kind of hindrance is regarded to be an important aspect of freedom of speech and expression.

Without adequate information, a person cannot form an informed opinion.  As early as 1976, the Supreme Court has laid down that people cannot speak or express themselves unless they know.  Therefore, the right to information is embedded in Article 19.  In the same case, the Apex Court held that India was a democracy and under this form of government, the people were the masters.  Therefore, the masters had a right to know how the governments, meant to serve them, were functioning.  Further, every citizen pays taxes.  Even a beggar on the street pays tax (in the form of sales tax, excise duty etc) when he buys a piece of soap from the market.  The citizens thus, have a right to know how their money was being spent.  These three principles were laid down by the Supreme Court while saying that the ‘right to know’ was a part of our fundamental rights.[ix]

In a country like ours where the government consists of various agents of the public, each one of them has to be responsible for their own conduct and hence, there is no room for maintaining secrets.  In the last one decade, the flourishing movement of RTI in India has significantly empowered the ordinary citizen.  He can now exercise a significant check upon the arbitrary use of power by functionaries of the State and in this manner, the democratic setup of the country is forever expanding.  Freedom of information is the sine qua non of a democracy and India cannot afford to remain an exception to this practice.

Historically speaking, the Executive arm of the government in India has been steeped in a culture of secrecy.  This practice, which is prevalent amongst most government functionaries even today, is often seen to be a relic of colonial rule.  It is here that the RTI law becomes important in changing long-established mindsets and ensuring that people get to know what is happening inside the labyrinth of government.  The culture of clothing all the actions of the government in utmost secrecy is not something that will die out in a day, but will require sustained efforts.  In the initial years of RTI, whenever citizens required the disclosure of information proactively, it was either completely ignored or taken very lightly.  Nonetheless, the potential of transformation by means of the RTI law has already been demonstrated various times in the last decade.  During this period, innovations have been developed in practice by the public officials and civil society organizations which may prove to be of great use to other countries which are ready and willing to adopt similar laws.

The principles of natural justice mandate that an organization or an institution should be accountable to those who will be affected by its decisions or actions.  This becomes even more important in the case of publicly funded institutions because their raison d’etre is public interest.  Since accountability cannot be enforced without a regime of transparency, a direct relationship exists between RTI, informed citizenry and good governance.  RTI provides citizens the opportunity of being informed as to what the government does for them, why it does it and how it does it.  Good governance provides a platform that enables government functionaries to operate efficiently, effectively and transparently and be accountable to the public for their actions.[x]  When people lack a voice in the public arena, or access to information on issues that affect their lives, and if their concerns are not reasonably reflected in the public domain, their capacity to participate in democratic processes is undermined.  Media, in all its varied forms, has opened up the potential for new forms of peoples’ participation in governance.  The access to information and accessibility of information has increased with growth of print and electronic media and the internet.  Today, thanks to RTI, the vulnerable and marginalized sections of the society and socially disadvantaged groups are also able to make their voices heard.


 

III. Legal Framework

RTI is an Act of the Parliament of India and aims “to provide for setting out the practical regime of right to information for citizens” and replaces the erstwhile Freedom of Information Act, 2002.[xi]  Under the provisions of the Act, any citizen may request information from a “public authority”, a body of government or “instrumentality of State” which is required to reply expeditiously or within thirty days.  The Act also requires every public authority to computerize their records for wide dissemination and to proactively disclose certain categories of information so that the citizens need minimum recourse to request for information formally.[xii]  Information disclosure in India, which was previously restricted by the Official Secrets Act, 1923 and various other special laws, was relaxed by this new law.  Prior to this, state level RTI laws existed in certain states like Tamil Nadu, Goa, Rajasthan, Delhi Maharashtra, Assam, Madhya Pradesh, Jammu and Kashmir and Haryana.  The establishment of a national-level law, however, proved to be a difficult task.  The Central Government appointed a working group under Shri H. D. Shourie[xiii] and assigned it the task of drafting legislation.  The Shourie draft was the basis for the Freedom of Information Bill, 2000 which eventually became law under the Freedom of Information Act, 2002.  This Act was severely criticized for permitting too many exemptions, not only under the standard grounds of national security and sovereignty, but also for requests that would involve “disproportionate diversion of the resources of a public authority”.  There was no upper limit on the charges that could be levied.  There were no penalties for not complying with a request for information.  This Act, consequently, never came into effective force. [xiv]

  1. Role of government vis-a-vis success of RTI

Besides the media, pro-activeness on the part of the government also becomes important in promoting and realizing the true potential of RTI law.  Different countries have progressed at different rates in terms of implementation of this legislation.  Countries like Mexico have set a new international standard for transparency legislation by handling over 200,000 RTI applications in its first five years.  In Sweden, which was the first country to embrace RTI legislation nearly two hundred and fifty years ago, the Government itself conducted an “Open Sweden Campaign” in the year 2002 to increase public sector transparency and raise the level of public knowledge.  The Swedish Government was humble enough to accept that despite the long standing existence of freedom of information in their country, there were problems with both the application of the law and public knowledge of rights enshrined under the Freedom of Information Act.[xv]

Another good practice which RTI laws promote is the automatic provision of information about services that benefit individuals.  Thus, good RTI laws include wide-ranging proactive publication obligations, including about services.  For example, the South African law requires public authorities to publish, on a proactive basis (i.e. even in the absence of a request), “a description of the services available to members of the public from the body and how to gain access to those services”.[xvi]  Similar provisions also exist in the Indian law.[xvii]  Once entrenched, these sorts of proactive disclosures help to foster e-government initiatives, thus rendering governmental services more efficient and easing access to services.  Seen from this standpoint, the information seeker is actually doing a favour to the concerned governmental agency by helping them streamline the information that is held in their possession so that it could be retrieved easily at a later date.  This act of streamlining records could be a major boon for many public authorities in India ranging from mundane government offices to universities, hospitals, panchayats and schools whose recordkeeping is often found wanting.

The idea of Open Government Data (OGD), which refers to the disclosure by public authorities of datasets in open, machine-readable formats, free of copyright or other re-use restrictions, has become increasingly popular in recent years, thanks to the advent of RTI legislation.  Computer geeks and others have put these datasets to some very imaginative uses, creating benefits for citizens and businesses alike.  It is widely perceived and believed that OGD makes a significant economic contribution, and many governments are now making freely available much information that they used to charge for.[xviii]  An increasing number of municipal governments are setting up OGD sites, along with some national governments.[xix]  The direct benefits of OGD are, for the moment at least, largely dependent upon the reach of the internet, which remains rather limited in the case of poorer countries like Zambia.  However, even in these countries, things are likely to change in the foreseeable future due to rapidly increasing internet penetration.

India being a welfare-state, the government has spread its tentacles to virtually every aspect of public life – we have the government providing everything from hotels to bread, from steel to airlines and from foodgrains to cars.  The person on the street is condemned to grapple hopelessly with corruption in almost every aspect of daily life – be it getting a passport, securing a school admission, an allotment of a petrol pump or a mutation in the land revenue records.  Information is power, and the Executive at all levels, attempts to withhold information so as to increase its scope for control and patronage.  This has led to the arbitrary, excessive and unwarranted exercise of power, thus creating a perfect breeding ground for corruption.

Ultimately, the most effective systemic check on corruption would be a situation wherein the citizen himself or herself has the right to take the initiative to seek information from the State, and thereby, enforce transparency and accountability.  It is in this context that the movement towards RTI is so important.  The statutory right to information gives a legal right to have access to government-held information and helps to strengthen democracy by ensuring transparency and accountability in the actions of public bodies.  It enhances the quality of citizen participation in governance from mere vote-casting, to involvement in the decision-making that affects her or his life.

A statutory right to information has gone a long way to secure for every citizen, the enforceable right to question, examine, audit, review and assess governmental acts and decisions, so as to ensure that these are consistent with the principles of public interest, probity and justice.  Governmental information is a national resource and does not belong to the government or any of its officials.  It has been seen from the experience of various countries that the more unrestricted the flow of such information, the better is the quality of governance.  Alternatively, the greater the restrictions that are placed on access of information, the greater are the feelings of powerlessness and alienation.  Without information, people cannot adequately exercise their rights and responsibilities as citizens.

Article 39 of our Constitution makes it clear that the purpose of the State in India is not doctrinaire but practical.  The humanist path towards socialistic pattern of society is ideal for India and Articles 39 (b) and (c) illustrate this ideal.  These provisions also show that the doctrine of growth is to be accompanied by distributive justice.  These clauses, together with other provisions of the Constitution, contain an objective, i.e. the building of a welfare State and an egalitarian social order and to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution.  Through such a revolution, the Constitution seeks to fulfill the basic needs of the common man and to change the structure of the society, without which political democracy would have no meaning.  Then why cannot public information be included within the meaning of material resources of the community?  If indeed the government feels that public information is a material resource, then the State is duty-bound to distribute it so as to subserve the common good and the RTI law is the best way to fulfill this requirement.

No type of information is created by any government or public officials for their individual benefit.  This information is created so that the duties of office could be properly discharged by the public officials and for purposes related to the legitimate discharge of the service of the public for whose benefit the institutions of government comes into existence, and by whom ultimately the salaries of the officials and institutions of government are funded.  From this it follows that the government and its officials are trustees of this information on behalf of the people.  RTI has provided members of the public legal access to documents, information and files of the government; something that may not have been available to them otherwise without the discretion of government.

Under the parliamentary system, the information is transferred from the government to the Parliament and State Legislatures, and from these to the people.  It is hoped that the gap between the information rich and the information poor would be reduced through the recent technological developments in the country.  However, it is found that in practice, the situation of bureaucracy in India remains the same as was prevalent during the rule of the British.  This is because, even today, our bureaucracy is steeped into a culture of secrecy, distance and mystification.  In fact, this preponderance of bureaucratic secrecy is usually legitimized by a colonial law, the Official Secrets Act, 1923, which makes the disclosure of official information by public servants, an offence.

It is expected that the quality of decision-making by public officers will improve once they have greater access to information in all sorts of matters, once the unnecessary secrecy around the decision-making process will be removed.  The quality of participatory political democracy will consequently improve after the citizens are given a chance to participate in the political process in an informed manner.  Thanks to RTI, the citizen is today, in a position to assess the performance of the Government and has the opportunity to have a voice in the decision-making process of the Government, after having an access to pertinent information.

  1. Role of Media

The media plays the role of the fourth estate in a successful democracy and shoulders the responsibility of making the State accountable and transparent in all its actions.  The freedom of the media is often regarded as one of the essential features of the success of a democracy.  This is because democracy revolves around the basic idea of citizens being at the centre of governance, i.e. the rule of the people.  We need to define the importance of the concept of freedom of the press from this fundamental premise.  It is pertinent to note that the main reason for ensuring a free press is to ensure that citizens are well-informed.  If this is one of the main reasons for the primacy given to the freedom of the press, it clearly flows from this that the citizens’ right to know is also paramount.  As already seen above, in a democracy, the government is run on behalf of the people and they are the owners of the information.  Thus, they have a right to be informed of the affairs of the government, in a direct manner.  RTI can thus be seen as placing information in the hands of the ordinary citizen and is thus, a law which is to be exercised by the citizen against his / her government.

As things stand today, most people in the developing world, are not aware of their right to freedom of information in a direct and personal manner unless they belong to the highly educated class, and hence the media’s role regarding empowering the public about legal advantages of the RTI law as an anti-corruption weapon has become all the more crucial.   By using this legislation, the media can investigate and expose issues of wider public interest.  The media, as the guardian of freedom of speech, can open up “closed doors” to transparency and accountability by disseminating information obtained through RTI to provide people information that they need in order to make their public servants more accountable.  In a country like India, where scams involving gargantuan sums of money have been coming into the public domain over the course of the last five years and more, the question that is on most peoples’ lips is as to whether the country has suddenly seen a tremendous increase in the scale of corruption or is it merely the result of more cases coming to light courtesy the RTI law or whether both these factors have combined together to produce these astronomical figures that we see in modern-era scams.  This sometimes leads to a perception that the right is primarily, or even exclusively, a right that benefits, or is for, the media.  Exacerbating this misperception is the often high-profile role that the media and media associations play in advocacy for RTI legislation.

Commentators and analysts often discuss the manner in which the media has been leveraging the RTI laws, especially in high profile cases, in order to undertake investigative reporting that reveals high-level corruption or to create awareness on key public policy issues.  Zambia and a number of other African states have struggled with the adoption of an RTI Law.  This has been on the anvil for quite some time now but these efforts have not yet borne fruit.  Other African nations like Uganda and Angola have enacted laws which have yet to be implemented.  The perception that the right to information is somehow a ‘media right’ may be contributing to the reluctance of African Governments to adopt RTI laws.  This fear notwithstanding, there are an ample number of untold stories of corruption and misuse of the taxpayers’ money buried deep within Government documents and reports.  With the help of the RTI law, the media and citizenry can have access to them as well.

Some of the sterling achievements of the Indian media with regards to exposing corruption in high places, courtesy the RTI law, include the 2G spectrum allocation scandal[xx], the coal blocks allocation scam[xxi], the Adarsh society scam[xxii], the Assam Public Distribution Scheme Scam[xxiii] and the Appropriation of Relief Funds Scam[xxiv].

  1. RTI and Service Delivery

An important manner in which individuals use RTI laws is to gain access to their own personal information like that pertaining to the status of one’s application for an Aadhar Card, Voter ID card or Driving License, medical information or information about eligibility for certain benefits.  In established RTI regimes, such requests often form an important proportion of all requests. In some countries, requests for personal information are so commonplace that they are not even treated as RTI requests.[xxv]

In Canada, for instance, prior to the adoption of the RTI law in 1982, many medical officials would normally provide information pertaining to the patient’s own medication, but others would refuse it, or erect barriers to disclosure (e.g. by asking for fees or by claiming that they needed to check whether they could provide it).  The RTI law helped to clarify the rule position and established precise grounds upon which access to one’s own medical information could be refused.

In India, individuals have gone beyond using the RTI law simply to obtain information. Implementation of the RTI law is more robust than implementation of other rules (e.g. regarding the processing of applications or provision of benefits).  As a result, individuals often use RTI applications to resolve other sorts of service delivery problems like delay in provision of services, obstruction or failure to apply the rules, etc.  A 2008 report by a Non Governmental Organization called Participatory Research in Asia (PRIA) highlights a case wherein the local police refused to accept a FIR (First Information Report) from an individual who had been assaulted in a land dispute, even after the individual had produced a medical certificate certifying his injuries. When he returned a few days later, with an RTI request asking for information as to why his FIR had not been lodged, the police immediately registered the assault claim.[xxvi]  In the case at hand, the purpose of the RTI request was to obtain information, but to pressurize the police into providing the applicant with the services that were guaranteed to him by virtue of the Criminal Procedure Code[xxvii].  In this way, the RTI Act is being used to promote more efficient service delivery in all sorts of areas across the public sector.

Prestigious institutions like the Union Public Service Commission (UPSC) and the Indian Institutes of Management (IIMs) have been forced to make public, their scaling and admission criteria respectively, as a result of RTI applications.  This has not only made the entire process of selection more transparent, but in the case of UPSC, been instrumental in the scrapping of the erstwhile system of shortlisting candidates for the Mains examination, as the UPSC was not able to satisfy the aspirants and the general public about the fairness of its ‘scaling criteria’[xxviii].

In South Africa, the Open Democracy Advice Centre (ODAC) has chronicled how local groups have used the RTI law to obtain water delivery.  Villagers in Emkhandlwini[xxix] had no water, whereas neighbouring villages were receiving water deliveries courtesy municipal tankers.  With the help of ODAC, the villagers filed an RTI request for minutes of the Local Council meetings at which water programmes had been discussed and agreed upon as also the Council’s Integrated Development Plan (IDP) and for the budget of the IDP.  This information showed that there were plans to deliver water throughout the region, but somehow Emkhandlwini had been left out.[xxx]  Armed with this information, the villagers were able to reassert their claims for water.

VII. Combating Corruption and Malfeasance

Allowing people to seek and receive public documents, serves as a critical tool for fighting corruption.  This enables citizens to participate more effectively in public life and makes governments more efficient, which, in turn, helps people to exercise their fundamental human rights in a more effective manner.  The question that is sometimes asked in government circles is “Why must we then provide this right which effectively curbs our own powers?”  Many governments are confronted with the urgent need to improve their economy, reform their Constitution, strengthen their institutions, modernize their public administration, fight corruption and address civil unrest.  For these governments to succeed in their endeavour, access to information can be a vital ally and can be used to actively pursue some of all of these objectives.

Corruption is a serious problem in developing countries like India because it takes away from the entire developmental effort and exerts significant pressure on the delivery of social services not only by draining off scarce resources but also by undermining efficiency as it involves debilitating transaction costs.  There are numerous examples of the media using RTI laws to expose corruption in high places.[xxxi]

One of the most high profile such cases in recent years was the expenses scam pertaining to Members of Parliament that took place in the United Kingdom in the year 2009.  MPs fought tooth and nail to prevent the release of the details of their expenses.  Ironically, this information was leaked to the Daily Telegraph newspaper, which began to publish it in May 2009, nearly two months before it was due to be formally released by the House of Commons in July 2009.  This information provided a clue as to why MPs had fought so hard to keep it confidential.  There were numerous cases of scandalous expenditures way above the norms / entitlements, gross profligacy and many more examples of inappropriate expense claims.[xxxii]  Dozens of MPs announced that they would not seek re-election due to the exposure of their expense claims.  The then Speaker of the House, Michael Martin, was forced to step down after having steadfastly attempted to block the disclosure of this information – this was the only time that the Speaker has had to resign from his office in the 300 years that this institution has existed.[xxxiii]

Back home, the Act has produced a better impact on the quality of the life of the poor and the marginalized.  During the last ten years, the Act has brought about positive changes in the levels of corruption and accountability.  There are quite a number of cases, where the Commission has ordered for providing the details of the decision-making processes including file notings, cabinet papers, records of recruitment, selection and promotion of staff, documents pertaining to tender processes and procurement procedure, lists of beneficiaries of Government subsidized schemes, such as food grains supplied through ration shops, water and electricity, domestic gas, educational and health facilities, shelter for poor, muster rolls under employment guarantee schemes, etc.  The disclosure of such vital information has resulted in an effective check on corrupt practices in delivery of services and ensuring that entitlements actually reach the intended beneficiaries.  Concrete steps needs to be taken to make the filing of RTI applications more convenient.

There are many examples of citizens and civil society groups using RTI to expose corruption, often at the local level.  A grassroots level organization called Mazdoor Kisaan Shakti Sangathan (MKSS) grew out of a local struggle for minimum wages in Rajasthan where historically, local people had had difficulty in obtaining the minimum wages that were due to them.  Promises for payment of minimum wages were often made at election time, only to remain unfulfilled on each occasion.  Over a period of time, campaigners realized that real change depended on ensuring that relevant documentation, in particular the muster rolls, was made public.[xxxiv]  It was then that the MKSS developed a new empowerment strategy based on the idea of a ‘jan sunwai’ or ‘public hearing’.  This involved bringing people together for a local public meeting, chaired by a prestigious outsider, usually a lawyer, activist, academic or journalist.  There was often peals of laughter when the records were read out in public because they contained false information, such as bills for transport of materials over a distance of five kilometres when the actual distance was only one kilometre, or instances of people being listed on the muster rolls when they were actually living in other cities or were long dead! This demonstrated, in front of the entire village, that corrupt local officials and small time politicians were siphoning away money and that minimum wages were being paid only on paper.  People who would have been intimidated on their own now had a platform where they could speak out.  Over time, this process generated widespread support for the right to information at both the grassroots level and among the middle classes who had not previously supported the poor but now spoke out against corruption, which they realized also hurt them.[xxxv]

Other examples of the power of openness in the hands of citizens being used to combat corruption can be seen in countries like Mexico where the RTI law is widely credited with the near complete disappearance of the ‘aviadores’, who were Government employees who would get paid but would never actually report for work.  This was driven by numerous requests for information by people who suspected wrongdoing, but could not, in the absence of the RTI law, prove it.[xxxvi]  Similar is the case of the ‘ghost employees’ of the Municipal Corporation of Delhi who were being paid salaries despite the fact that they existed only in official records.[xxxvii]

In early 1998, shortly after the Thai RTI law was first adopted, a parent, Sumalee Limpa-Owart, used it to fight against corruption in the education system.  Her daughter had been refused entry to the prestigious Kasetsart Demonstration School (KDS), a highly-regarded, State-funded institution.  Admission was supposed to be based upon a competitive entrance examination.  Surprisingly, however, the student body comprised largely of children from elite families, leading to a widely held perception that “tea money” or some other form of bribery was involved.  Sumalee sent a letter to the school requesting that the marks and answer sheets of her daughter and those of the 120 students who were admitted, be shown to her.  When she received no reply, she filed a petition under the Official Information Act and eventually went in appeal to the Official Information Commission, which ordered the disclosure of the requisite information. Parents of children who had been admitted appealed to the courts, which rejected their plea and Sumalee was eventually granted access to the answer sheets and marks in March 1999.  By that time, the school had already admitted to corrupt practices in the processing of the admission of as many as 38 students.[xxxviii]

In many countries, RTI laws have also been used by citizens to protect their rights. In 2006, for example, an RTI request to the BBC revealed that the flagship public service broadcaster was paying female news correspondents working for its flagship news broadcasts some £6,500 less than their male counterparts.[xxxix]  Although the BBC claimed that this was not discriminatory but merely reflected age differences among the respective staff,[xl] it did prompt it to undertake a comprehensive pay review in the case of news readers.

 

VIII. Citizens’ Participation in Self-Governance

RTI is a path breaking legislation which brings to light the secrecy of administration.  It is an effective means to promote democratic ideology in the country. The legislation serves as a powerful instrument to fight against governmental corruption as demonstrated above.  The Second Administrative Reforms Commission recognized the significance of this legislation and consequently, prepared a detailed blueprint for revamping the public administrative system.  In its very first report titled “Right to Information: Master Key to Good Governance”, the Commission has acknowledged that access to information can empower the poor and weaker sections of society to demand information from the Government about public policies and actions, thereby leading to welfare of all.  Good governance and right to information are complimentary to each other.  Good governance is characterized by political accountability, availability of freedom, bureaucratic accountability, availability of information, effectiveness and efficiency in administration, law abiding citizens and cooperation between Government and society.  As such, the right to information is a natural corollary of good governance.  The enactment of RTI Act introduces an open and transparent government and gives to every citizen, the right to seek and receive information which in turn, helps to make the administration more responsible and transparent, which ultimately leads to good governance.  Thus, the World Bank has rightly remarked that “Right to information is an integral part of good governance”.

Participation of both men and women is the cornerstone of good governance.  Representative democracy does not mean the rule of a chosen few – rather it must take into account, the interests of all sections of society, especially the most vulnerable sections.  The law gives the people a chance to participate in democracy not just one in five years, but on an everyday basis.  It gives an opportunity to the common man to participate in governance and reduces the imbalance in the power relationship, provides a tool to oppose injustice and allows collective spirit to make democracy work for everyone.  The Act has also strengthened grassroots democracy in India and ensured peoples’ participation in local governance and development activities.

RTI makes it possible for the public to have easy access to information from government departments.  By providing easily accessible information, it reduces the traditional long gaps between citizens and administration and thus helps in the nation building process.  The ‘right to know’ and easy access to government-held information helps the people to understand the limitations that the government faces at different levels.  The availability of information also helps to foster the development process and is a symbol of a true and mature democracy.

Transparency is the milestone of good governance.  Transparency means that decisions are taken and their enforcement is done in a manner that follows rules and regulations.  It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement.  Transparency and accountability are possible only when the public have proper access to information.  The enactment of RTI Act has enabled people to seek information from any government department within a definite timeframe.  The law has helped to usher in a greater degree of accountability and transparency in governmental functioning by making the process of decision-making, a more open one.  Some departments of the government have been exempted from the purview of this Act; but even in respect of these organizations, information can be sought if it is concerned with the violation of human rights or concerns corruption within that organization.

Information is power and RTI brings about accountability and transparency in the administration.  The Act provides people with the mechanism to access information, which they can use to hold the government accountable or to seek explanation as to why decisions have been taken in a particular manner, by whom they have been taken and with what consequences or outcomes.

Before the enactment of RTI, participation in political and economic processes and the ability to make informed choices were something that remained restricted to a certain section of the population.  As a consequence, commoners continued to remain ignorant of various schemes and were unable to resist when their rights became causality.  At the same time, people remained ignorant of the ways and means through which they could enforce their rights vis-à-vis the concerned departments.  With the enactment of the RTI Act, people can effectively participate in the decision-making process and this has enabled citizens to know about various government decisions.

Equity is another prominent feature of good governance.  It implies that everybody is a part of the governance system and no section of the populace should feel excluded from the mainstream of society.  RTI also does not make any discrimination between the rich and the poor, and it covers all the citizens of India.  It has thus proved useful in the fight against inequality and injustice.

RTI has brought about more effective and efficient record management techniques that are needed to facilitate the provision of information in response to public queries.  Under Section 4 (1) of the Act, it is clearly mentioned that it is the obligatory on the part of every public authority to maintain all its records duly catalogued and indexed.  Under Section 4 (1) (b), every public authority is requested to publish within 120 days from the enactment of the Act as many as seventeen manuals, providing for various forms of information.  Thus, information is now made available to citizens in a proactive manner without them having to even ask for that information.

RTI has therefore enabled countless ordinary citizens to effectively and proactively participate in the decision-making processes.  Without information, citizens may not even know that a decision-making process is underway or they may not know as to how they might be able to provide inputs therein.  Even if they do have this knowledge, effective participation often depends upon having access to the relevant background and underlying information relating to the process. Individuals and civil society groups in countries across the world have used RTI laws to bolster their ability to participate.  For example, Slovak law mandates companies that engage in the harvesting of trees in forests to prepare a forest management plan, which must be approved by the Ministry of Agriculture.  Historically, these plans were classified documents.  A local Non Governmental Organization (NGO), by the name of the Vlk (Wolf) Forest Protection Movement eventually managed to gain access to these plans, under the nascent RTI law, after the Supreme Court ruled that they could no longer remain classified, by virtue of the new law.  Using information in the plans, Vlk managed to campaign successfully for larger areas of forest to be protected as nature reserves.[xli]

In New Zealand, campaigners have used the RTI law to campaign for greater openness around Genetically Modified foods.  As part of a wider campaign against GM foods, the Green Party of Aotearoa, New Zealand used the RTI law in 2006 to access a Cabinet document which revealed that the New Zealand government planned to veto “country-of-origin” labeling rules without holding a public consultation or parliamentary debate.  The Green Party introduced a bill on food labeling which would have significantly enhanced labeling requirements.  Although the bill was easily defeated, the campaign generated massive publicity and so the government was forced to introduce country-of-origin labeling rules for imported foods.[xlii]

Another shining example of citizens’ participation comes in local governance from Uganda where citizens have used RTI to end corruption that was plaguing their education system.  In the 1990s, lots of funds used to be transferred to schools via local authorities.  However, a survey in the mid-1990s revealed that almost 80% of these funds never reached the schools concerned, due to inherent leakages within the system.[xliii]  In response, the Central Government, at the specific request of the local communities, began to publish figures regarding monthly transfers made to schools / local governments in local newspapers of the region.  This meant that both officials at the schools and parents of students could easily access information about the (intended) size of each of these monthly transfers.  A few years after this initiative was started, the incidence of funds not reaching schools had dropped from 80% to 20%.

In neighboring Pakistan, citizens have used the Freedom of Information (FOI) law to ensure supply of safe drinking water in Islamabad.  The Capital Development Authority (CDA) had installed water filtration plants at various locations in Islamabad to provide citizens with safe drinking water.  However, following numerous complaints from residents of the area regarding the quality of the potable water supplied to them, an NGO submitted a FOI (another term for RTI) request to the authorities seeking details about water testing measures undertaken by the CDA, frequency of changing water filters at filtration plants and the display of information for the benefit of the general public.  When the CDA did not respond to the FOI request, the NGO complained to the Federal Ombudsman (equivalent to the Central Information Commission in India) following which, not only was the desired information provided to the NGO in question, but it also led to the CDA taking more care to ensure safe drinking water, and even inviting the NGO’s representatives to accompany CDA officials when they changed filters in their filtration plants.[xliv]

In one remote village in Orissa, the bridge spanning the stream next to the village had been broken for more than six years.  Local people had been petitioning the government every year to have the bridge repaired, but local officials told them that the government had not yet allocated the required funds, while the district and State administration promised to ‘look into the matter’ each time the villagers approached them.  The lack of a bridge meant that the villagers had to travel an extra ten kilometres each day in order to go to the neighboring town or even to catch a bus from the main road.  The villagers submitted an RTI application asking the government for reasons why the bridge had not been repaired so far.  The results were astounding – within a period of fifteen (15) days, the village got a reply from the office of the Deputy Commissioner informing them that as per official records, the funds for the repair of their bridge had been sanctioned five years ago and that the bridge had already been repaired.  In fact, last year additional funds had been sanctioned to repaint the repaired bridge!  However, as their RTI application suggested that the bridge had not actually been repaired, an inspection team was being sent to enquire into the matter.  The inspection team found that the local officials and unscrupulous elements within the district administration had pocketed the sanctioned money and had certified on paper that the bridge had indeed been repaired.  Following the report by the inspection team, action was initiated against the guilty officials and the bridge was finally repaired in reality.[xlv]

Another excellent example of how the RTI legislations could be used to good effect came from an 80-year old widow in Gujarat, who had applied for a passport, so as to enable her to visit her children who lived abroad.  Months went by but she did not receive her passport.  Whenever she approached the passport office to try and ascertain the reason behind the holdup, she was accosted by touts who offered to get her the passport only if she was willing to pay a hefty bribe and grease the palms of the concerned officials.  Muktaben then prepared an RTI request asking why she had not yet received her passport, who was the officer responsible for the delay and what action the Government intended to take against the erring officer.  When she arrived at the passport office and gave her RTI application to the concerned official, the official read her application, asked her to wait for a minute, went inside and came back with her passport, all within a couple of minutes!  He handed over the passport to her and pleaded that now that she had got the elusive travel document, she should not file the RTI application.[xlvi]  Such is the power that this legislation confers in the hands of ordinary citizens all over the world and enables them to participate in decisions that affect their day-to-day lives.

  1. Conclusion

Information is indispensable for the functioning of a true democracy. People have to be kept informed about current affairs and broad issues on the political, social and economic fronts.  Free exchange of ideas and free debate are essential for a democracy like India.  In this age of information technology, RTI is a critical factor in ensuring the country’s socio-cultural, economic and political development.  In a fast developing country like ours, availability of information needs to be assured in the fastest and simplest manner possible.  Therefore, the first step towards making RTI realistic would be to have a comprehensive legislative and institutional framework at both the Union and the State level.  Laws by themselves are not adequate.  What is needed is that such progressive laws must be backed by peoples’ movements.  A law for right to information or Freedom of Information can be made effective only through active involvement of the citizens.  Simply making the legislation will not do justice to the information seekers unless it is implemented with strong conviction.

There is always a great deal of resistance to change and the Indian bureaucracy is no exception to this phenomenon.  It has, for generations, been brought up on a culture of secrecy.  It is therefore unlikely that present-day bureaucrats will change their attitudes towards RTI all of a sudden and embrace the RTI law immediately.  That being said, efforts to thwart the working of RTI must be dealt with sternly so as to send across the right message to Government functionaries at all levels.

There is a view that there are many preconditions related to the level of economic, social, cultural, educational and political attainment which are essential in order to realize the true and complete potential of laws like RTI.  This is especially true in the case of a developing country like ours.  Unless a country has solved problems like hunger, illiteracy, poor standards of healthcare and lack of social security and political freedom, it may not be possible for its people to realize the right to information.  However, the step towards enacting a progressive legislation like RTI is no doubt a courageous and progressive one. This legislation inter alia ensures that legal pressure is maintained upon government officials to provide information in respect of the functioning of the government, even if this information is, for the time being, mainly being asked for by comparatively better-off sections of society.

In countries where robust RTI mechanisms are not yet in place, it is not always clear to citizens as to why they have attracted so much attention in recent years. In poorer countries, like Zambia, in particular, the adoption of an RTI law may seem somewhat of an unnecessary luxury, given the many very pressing development needs.  Often, the perception of these laws is that they are mainly for the benefit of the media, which already seems to be a privileged player in society.  In fact, the longstanding experience of many countries in regions across the world clearly demonstrates the importance of RTI laws not only vis-a-vis the media, but also directly to citizens.  The uses to which citizens put these laws, ranges from the relatively mundane, such as accessing one’s personal information, to far more important ones like improving service delivery systems (either at an individual level or community level), exposing corruption in high places, fostering participation in decision-making and enhancing social advocacy.

References:

[i] Act No. 22 of 2005.

[ii] William R. Staples, Encyclopedia of privacy, 16 (2006).

[iii] Jeremy Malcolm, Access to Knowledge: A Guide for Everyone (2nd ed., 2011).

[iv]https://www.accessinfo.org/documents/Access_Docs/Thinking/Get_Connected/worlds_first_foia.pdf  Last visited on 12 December 2016 at 1000 hours.

[v] See, for example, Claude Reyes and Others v. Chile, 19 September 2006, Series C No. 151, para. 77 (Inter-American Court of Human Rights) and Társaság A Szabadságjogokért v. Hungary, 14 April 2009, Application No. 37374/05 (European Court of Human Rights).

[vi] See, for example, the press release of 21 February 2011 by the Forum of Independent Human Rights NGOs in Egypt. Available at: https://www.cihrs.org/English/NewsSystem/Articles/2762.aspx.  Last visited on 28 November 2016 at 1145 hours.

[vii] Mazhar Siraj, Exclusion of Private Sector from Freedom of Information Laws: Implications from a Human Rights Perspective, Journal of Alternative Perspectives on Social Sciences 2 (1): 211–226.

[viii] Art 19 (1)(a) , Constitution of India, 1949.

[ix] State of UP v. Raj Narain, AIR 1975 SC 865.

[x] Centre for Good Governance (CGG), Hyderabad, The Right to Information Act, 2005 – A Guide for Media.

[xi] Act No. 5 of 2003.

[xii] Supra Note 2, S. 4 (1) (a).

[xiii] A former member of the Indian Civil Services, he served as Director General of the Indian Institute of Foreign Trade and edited the magazine on consumer rights titled “Common Cause” which he started at a time when Indian people were not even aware of the concept of consumer rights.  He fought a number of Public Interest Litigations, many of which resulted in landmark verdicts by the Supreme Court of India.  In recognition of his work, he was awarded the Padma Vibhushan and Padma Bhushan, which are the second and third highest civilian awards in India.

[xiv]https://humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84  Last visited on 22 November 2016 at 2000 hours.

[xv] Hans Sundström, THE OPEN SWEDEN CAMPAIGN, 87.

[xvi] S. 14 (1) (f), South African Promotion of Access to Information Act, 2000.

[xvii] Supra Note 2, S. 4 (1) (b).

[xviii] For example, the UK Ordinance Survey Maps, which used to be sold, are now available electronically for free. See https://www.ordnancesurvey.co.uk/oswebsite/getamap/. Last visited on 01 December 2016 at 1930 hours.

[xix] One prominent example is https://data.gov.uk/, run by the UK Government, which boasts that it hosts over 5,600 datasets, along with numerous applications running on them.

[xx]https://economictimes.indiatimes.com/news/politics-and-nation/2g-statement-of-additional-witnesses-to-be-recorded-on-janaury-27/articleshow/45577323.cms  Last visited on 30 November 2016 at 1500 hours.

[xxi]https://www.thehindu.com/news/national/supreme-court-quashes-allocation-of-all-but-four-of-218-coal-blocks/article6441855.ece  Last visited on 30 November 2016 at 1510 hours.

[xxii]https://blogs.wsj.com/indiarealtime/2011/01/17/dont-send-in-the-bulldozers-yet-adarsh-owners-say/  Last visited on 26 November 2016 at 1300 hours.

[xxiii]https://archive.indianexpress.com/news/assam-pds-anomalies-may-be-a-multicrore-sca/290649/  Last visited on 11 November 2016 at 1100 hours.

[xxiv] https://ibnlive.in.com/news/ias-officers-loot-funds-for-kargil-war-heroes/53499-3.html  Last visited on 17 November 2016 at 1315 hours.

[xxv] Toby Mendel, Executive Director, Centre for Law and Democracy, Background Paper for a Conference on Freedom of Information in Zambia, March 2011.

[xxvi] Participatory Research in Asia (PRIA), Tracking Right to Information in Eight States: 2007, 19-20 (2008).

[xxvii] Act No. 2 of 1974.

[xxviii] https://www.upsc.gov.in/exams/misc/csp2011-syll.pdf  Last visited on 03 December 2016 at 1100 hours.

[xxix] A remote village located in Ntambanana Rural in KwaZulu-Natal province of South Africa.

[xxx] Digging out the truth, dogged ODAC holds on: ODAC 5 Year Review, 9.

[xxxi] Supra Note 26.

[xxxii] A full list of the claims investigated by the Daily Telegraph is available at: https://www.telegraph.co.uk/news/newstopics/mps-expenses/5297606/MPs-expenses-Full-list-of-MPs-investigated-by-the-Telegraph.html.  Last visited on 09 December 2016 at 1600 hours.

[xxxiii] https://news.bbc.co.uk/2/hi/uk_news/politics/8057203.stm.  Last visited on 03 December 2016 at 1900 hours.

[xxxiv]https://www.mkssindia.org/writings/mkssandrti/the-right-to-information-discourse-in-india-%E2%80%93-neelabh-misra/  Last visited on 23 November 2016 at 2100 hours.

[xxxv] Ibid.

[xxxvi] David Sobel, Bethany Noll, Benjamin Bogado, p. 41 ( TCC Group and Monroe Price, 2006), The Federal Institute for Access to Information in Mexico and a Culture of Transparency (Annenberg School for Communications, University of Pennsylvania).

[xxxvii] https://www.thehindu.com/news/cities/Delhi/fir-filed-in-mcd-ghost-employees-case/article852814.ece  Last visited on 01 November 2016 at 1430 hours.

[xxxviii] Supra Note 27.

[xxxix] The Independent, “Female reporters paid £6,500 less than men by BBC “, 8 December 2006.

[xl] The female correspondents concerned had an average age of 41 years, compared to 46 years for the males.

[xli] Supra Note 26.

[xlii] See Commonwealth Human Rights Initiative, Our Rights, Our Information: Empowering people to demand rights through knowledge, pp. 57-58. Available at: https://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf.  Last visited on 08 December 2016 at 1110 hours.

[xliii] Putting the Power of Transparency in Context: Information’s Role in Reducing Corruption in Uganda’s Education Sector – Working Paper 136.  Available at https://www.cgdev.org/publication/putting-power-transparency-context-informations-role-reducing-corruption-ugandas  Last visited on 23 December 2016 at 1745 hours.

[xliv] Mukhtar Ahmad Ali, Freedom of Information in South Asia: Comparative Perspectives on Civil Society Initiative, 6 (2013).

[xlv] https://www.cic.gov.in/bestpractices.htm  Last visited on 21 December 2016 at 1100 hours.

[xlvi] https://www.rtiindia.org/forum/archive/index.php/f-10.html  Last visited on 22 December 2016 at 1245 hours.

0 responses on "An Evaluation of the Working of the Right to Information Legislation in Contemporary Democracy"

Leave a Message

© 2012 - 2017 | RostrumLegal