AMENDMENT OF RTI ACT : AN ANNALYTICAL OBSERVATION

[Information Team Bharat Uday Mission]

This article is written by Mr. Milap Choraria:

AMENDMENT OF RTI ACT : AN ANNALYTICAL OBSERVATION.

Recently, Union Minister Shri Suresh Pachauri, representing India
through a 4 Member delegation expressed before the several British
Ministers that Right to Information Act, 2005 given extreme rights
to the people of India to check the corruption at all level of the
governing system. Indian Minister, in Britain further discussed that
the Government of India is intending to push more transparency in
the working of the government to ensure good governance, while in
India his Government is acting in just the opposite direction.
Accordingly, Government is planning to withdraw such powers from the
people, through amendment in the RTI Act, as if Government is not at
all concerned with the corruption. Most shockingly it is nothing but
a regressive step from the solemn promises and assurances given by
the Indian Government, from the different platforms and that too in
foreign countries. However, Government is fully aware that its
amendment may not stand the test of the judicial scrutiny in the
light of the fundamental right to know. It is a sad augury that the
government chose to decide otherwise, obviously under the pressure
from the strong lobby of the bureaucracy, which is never happy for
it has virtually taken away their prerogative and put the same under
scanner of the citizens to assess the accountability of the Public
Servants.

On 20th July 2006, the Cabinet approved the proposal of an amendment
in the Right to Information Act, 2005 to exclude the `File Notings'
from the ambit of the Act, without considering that amendment may
not stand the test of the judicial scrutiny in the light of the
fundamental right to know, which is well settled fact that it flows
from Article 19(1)(a) of the Constitution of India. Even before the
enactment of the Right to Information Act, 2005, Supreme Court in
its various Judgments had held that Right to Know is a fundamental
right of the Citizen of Indian democracy, about the process and path
taken in arriving at a certain decision, which cannot be possible
without access to the `file notings'.

Supreme Court has already given clear rulings, in unambiguous terms
that "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." Therefore the Notings on the files
cannot be denied as it forms an integral part of the related
information pertaining to a decision making process. Withholding the
Notings means virtual denial of the very information, for which the
Act has been brought on the statute Book and thus negating the very
purpose of the Act itself. The following extracts from various
judgments will further elucidate this:

"In the Constitution of our democratic Republic, among the
fundamental freedoms, freedom of speech and expression shines
radiantly in the firmament of Part III. We must take legitimate
pride that this cherished freedom has grown from strength to
strength in the post independent era. It has been constantly
nourished and shaped to new dimensions in tune with the contemporary
needs by the constitutional Courts. Barring a few aberrations, the
Executive Government and the Political Parties too have not lagged
behind in safeguarding this valuable right which is the insignia of
democratic culture of a nation. Nurtured by this right, Press and
electronic media have emerged as powerful instruments to mould the
public opinion and to educate, entertain and enlighten the public."

"Freedom of speech and expression, just as equality clause and the
guarantee of life and liberty had been very broadly construed by
this Court right from 1950s. It has been variously described as
a 'basic human right', 'a natural right' and the like. It embraces
within its scope the freedom of propagation and inter-change of
ideas, dissemination of information which would help formation of
one's opinion and viewpoint and debates on matters of public
concern. The importance which our Constitution-makers wanted to
attach to this freedom is evident from the fact that reasonable
restrictions on that right could be placed by law only on the
limited grounds specified in Article 19(2), not to speak of inherent
limitations of the right."

"In due course of time, several species of rights enumerated in
Article 19(1)(a) have branched off from the genus of the Article
through the process of interpretation by this apex Court. One such
right is the 'right to information'. Perhaps, the first decision
which has adverted to this right is State of U.P. Vs. Raj Narain
[(1975) 4 SCC 428]. 'The right to know', it was observed by Mathew,
J. "which 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 transactions which can, at any rate, have no
repercussion on public security". It was said very aptly- "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."

"The next milestone which showed the way for concretizing this right
is the decision in S.P. Gupta Vs. Union of India [(1981) Suppl. SCC
Page 87] in which this Court dealt with the issue of High Court
Judges' transfer. Bhagwati, J. observed- "The concept of an open
government is the direct emanation from the right to know which
seems to be implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of
information in regard to the functioning of the Government must be
the rule and secrecy an exception..."

Peoples' right to know about governmental affairs was emphasized in
the following words:
"No democratic Government can survive without accountability and the
basic postulate of accountability is that the people should have
information about the functioning of the Government. It is only when
people know how Government is functioning that they can fulfill the
role which democracy assigns to them and make democracy a really
effective participatory democracy."

These two decisions have recognized that the right of the citizens
to obtain information on matters relating to public acts flows from
the fundamental right enshrined in Article 19(1)(a). The pertinent
observations made by the learned Judges in these two cases were in
the context of the question whether the privilege under Section 123
of the Evidence Act could be claimed by the State in respect of the
Blue Book in the first case i.e., Raj Narain's case (supra) and the
file throwing light on the consultation process with the Chief
Justice, in the second case. Though the scope and ambit of Article 19
(1)(a) vis--vis the right to information did not directly arise for
consideration in those two landmark decisions, the observations
quoted supra have certain amount of relevance in evaluating the
nature and character of the right.

Then, we have the decision in Dinesh Trivedi vs. Union of India
[(1997) 4 SCC 306]. This Court was confronted with the issue whether
background papers and investigatory reports which were referred to
in Vohra Committee's Report could be compelled to be made public.
The following observations of Ahmadi, C.J. are quite pertinent:--
"In modern Constitutional democracies, it is axiomatic that
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."

The proposition expressed by Mathew, J. in Raj Narain's Case (supra)
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
Page 161]. Has an organizer or producer of any event a right to get
the event telecast through an agency of his choice whether national
or foreign? That was the primary question decided in that case. It
was highlighted that the right to impart and receive information is
a part of the fundamental right under Article 19(1)(a) of the
Constitution. On this point, Sawant, J. had this to say at Paragraph
75- "The right to impart and receive information is a species of the
right of freedom of speech and expression guaranteed by Article 19(1)
(a) of the Constitution. A citizen has a fundamental right to use
the best means of imparting and receiving 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....."

Jeevan Reddy, J. spoke more or less in the same voice: "The right of
free speech and expression includes the right to receive and impart
information. For ensuring the free speech right of the citizens of
this country, it is necessary that the citizens have the benefit of
plurality of views and a range of opinions on all public issues. A
successful democracy posits an 'aware' citizenry. Diversity of
opinions, views, ideas and ideologies is essential to enable the
citizens to arrive at informed judgment on all issues touching them."


Milap Choraria
National Convenor
Movement for Accountability to Public (MAP)
B-5/52, Sector-7, Rohini,
Delhi-110085
Mobile:9313713699
011-27055356


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Information Management Team
(Bharat Uday Mission)

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