IMC India - RIGHT TO INFORMATION

RIGHT TO INFORMATION
By PRAVEEN DALAL 13/05/2005 At 03:04

A WORK ANALYSING THE RIGHT TO HAVE INFORMATION.

PRAVEEN DALAL, CONSULTANT AND ADVOCATE, DELHI HIGH COURT, INDIA

The right to have information can be claimed in the following two forms:
(1) As Fundamental Rights, and
(2) As Statutory rights.

(1) As Fundamental Rights

The right to have information under the Constitution of India can be found either as freedom of information under Article 19(1) (a) or under Article 21 of the Constitution.

(i)Freedom of information U/A 19(1) (a): The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. The world has moved towards universalisation of right to freedom of expression. In this context reference may be made to Article 10 of the European Convention on Human Rights. Article 10 of the Convention provides that everyone has a right to freedom of expression and this right shall include freedom to hold opinions and to receive information and ideas without interference by the public authorities and regardless of the frontiers. Again, Article 19(1) and 19(2) of the International Covenant on Civil and Political Rights declares that everyone shall have the right to hold opinions without interference, and everyone shall have the right to freedom of expression, and this right shall include freedom to seek, receive and impart information of ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice . Similarly, Article 19 of Universal Declaration of Human Rights, 1948 provides that everyone has the right to freedom of opinion and expression and this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. In the Indian context, Article 19(1) (a) of the constitution guarantees to all citizens’ freedom of speech and expression. At the same time, Article 19(2) permits the State to make any law in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by Article 19(1) (a) of the constitution in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement of offence. Thus, 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) . It must, however, be noted that freedoms under Article 19, including Article 19(1) (a), are available only to citizens of India. An alien or foreigner has no rights under this Article because he is not a citizen of India. Thus to confer protection upon non-citizens one has to depend upon and apply Article 21 which is available to all persons, whether citizen or non-citizen.

(ii) Right to know under Article 21: Article 21 enshrines right to life and personal liberty. The expressions “right to life and personal liberty” are compendious terms, which include within themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time . In R.P.Limited v Indian Express Newspapers the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and 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 and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which include a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1) (a). Thus, the courts are required to expand its scope by way of judicial activism. In P.U.C.L v U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. There cannot be any distinction between the Fundamental Rights mentioned in Chapter-III of the constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court. Further, it is well settled that while interpreting the constitutional provisions dealing with Fundamental Rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due regard to the international conventions and norms while construing the domestic laws, more so when there is no inconsistency or conflict between them and the domestic law .

(2) As Statutory right

The statutory right to information can be claimed as a right to know about the information under the control of a public authority. In our present democratic framework, free flow of the information for the citizens suffers from several bottlenecks including the existing legal framework, lack of infrastructure at the grass root levels and an attitude and tendency of maintaining secrecy in the day to day governmental functioning. To remove these unreasonable restrictions the Right to Information Bill, 2004 has been passed by the Lok Sabha recently. The Bill provides for freedom to every citizen to secure access to information under the control of public authorities consistent with public interest, in order to promote openness, transparency and accountability in administration and in relations to matters connected therewith or incidental thereto. The Bill is in accord with both Article 19 of the constitution as well as Article 19 of the Universal Declaration of Human Rights; 1948.The Bill will enable the citizens to have an access to information on a statutory basis.

Thus, the right to have information has both the Constitutional and statutory backing and the need of the hour is its enforcement in true letter and spirit.

Email:: pd37@rediffmail.com, perry4law@yaho.com
URL:: http://praveen-dalal.blogspot.com/

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RIGHT TO INFORMATION: A FACET OF AN IMPLIED FUNDAMENTAL RIGH

Hema Thakkar Advocate Delhi High Court. 13/05/2005 09:27

thakkarlegal@rediffmail.com, thakkarlegal@yahoo.co.in

The judicial activism emerging through a catena of judicial decisions as of Maneka gandhi, Sunil batra, Hoskot and hussainara khaatoon has converted most of the fundamental rights into positive human rights and thus a whole lot of human rights jurisprudence has sprung up. By an affirmative action the courts are trying to force the government to create favourable conditions for effective realisation of the new individual,collective rights. The Supreme Court has held that to be a fundamental right its not necessary that a right must be specifically mentioned in a particular article. It may be a fundamental right if it is an integral part of a named fundamental right or partakes the same basic nature and character as that fundamental right.The discoveries of egalitarian goals in the fundamental rights have resulted in the explosion of rights.
The right to information has been given the place of a fundamental right under article 21 of the constitution of India, though an implied fundamental right.The court has recognised the right to know to be imlicit in the right to free speech and expression i.e. article 19(1)(a) in S.P.Gupta V. UOI. Also in Reliance petrochemical ltd. V. Proprietors of Indian Express Newspapers Bombay pvt ltd., the Supreme court recognised the right to know as emanating from right to life i.e. article 21 of the constition. People at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. The right puts a greater responsibility upon those who take upon the responsibility to perform. There was no specific enactment in India imposing a duty on the government to supply information to an individual seeking it. Due to this lack of transparency persisted. Taking into account the factor that public access to govt. information enables citizens to exercise their political choice meaningfully,strengthens participatory democracy and checks abuse of executive power and if citizens are informed about govt. programmes they may influence decision making through representations, lobbying and public debate; the govt. is out with a new amended right to information bill which was passed by the Lok Sabha on 13.5.2005. This is surely a welcome step but the bill has some lacunaes in it which will interfere with the free enjoyment of the right so granted. Certain loopholes in the new amended Right to Information Bill having been passed by the Lok Sabha raises a question, on the purpose and object it sought to achieve.

To ensure that the process of election remains a bipartisan process and no single party or alliance could control the selection of Information Commissioner, the Appointment Committee consisted of PM(Prime Minister), leader Of Opposition in the Lok Sabha and the Chief Justice Of India. But in the amended Bill the Appointment committee is no more represented by the Chief Justice Of India.

Not only this,in the Amended Bill Prime Minister has been given the power to nominate a Cabinet Minister of his own choice to the committee wherein bias and favouritism get a chance to creep in. Similarly, Chief Minister can do so at the state level.

As per the Amended Bill the public authorities have been included in the definition of third party and this would lead two different public authorities to collude in refusing information to the applicant and will unnecessarily delay the process further. Whereas in the original Bill, if the PIO(public information officer) recieved an application about information of a confidential nature that was given by a third party, wherein the definition of third party included another public authority, the PIO was required to give notice to the third party and invite any objections.

Besides the New Bill also lacks to throw light as to where an applicant can file an appeal with State Information Commission if there is unreasonable refusal by the local office of a Central Govt. Department or agency to give information. So, again the confusion and lack of transparency persists. The Amended Bill which is meant to bring solace to the applicants or information seekers proves to be a hard nut to crack.

Globalisation and the critique of pure sameness

Shokat 13/05/2005 11:37

It is perfectly possible to acknowledge the short-comings of foundationalism and coherentism, human enquirers`pervasive epistemic dependence on one another, the social character of scientific inquiry, the complexity and fallibility of all human cognitive activity, the corruption of some claims to truth, without being obliged to grant either that epistemic standarts are community - or culture-relative, ot that inquiry is invariably political...
If things aren`t going too well in contemporary thought, it`s because there`s a return...to abstractions, back to the problem of origins, all that sort of thing...Any analysis in terms of movements, vectors is blocked. We`re in a very weak phase, a period of reaction. Yet juridical/philosophical hterogeinity thought that it had done with the problem of origins. It was no longer a question of starting or finishing. The question was rather, what happens"in between"?

TRANSPARENCY THROUGH ELECTRONIC GOVERNANCE

PRAVEEN DALAL 14/05/2005 06:22

pd37@rediffmail.com

http://perry4law.blogspot.com/

The recent passing of the Right to Information Bill, 2004 by the Lok Sabha is a good step in the right direction. Its efficacy is not the issue presently but the main issues is its utilisation in the most
effective manner. The right to information cannot see the light of the day unless the same is embedded in the information technology. It is beyond any doubt that information technology is not per se corrupt
though it can be made corrupt by using corrupt means. Thus, given a choice the right to information should be advanced by the use of information technology.