Do you imagine, until the year 2005, an ordinary citizen had no access to information which was held by government. It means, our forefathers lived with the culture of darkness and secrecy. Power is derived from knowledge; and information is basic component of knowledge. It remains fact that without having proper information, it is next to impossible to participate in meaningful debate on political and economic issues.
With the commencement of our constitution, The article 19(1) provided every citizen a fundamental right on freedom of speech and expression, and as we already discussed the same in our earlier post, ( that right to information always comes with the right to freedom of speech and expression. Although, we had the constitutional right of right to know information, but we did not have any kind of machinery to provide the required information to the needy people.
Before we deal with the important events in the history of right to information act, 2005, it is beneficial for us to take a quick overview of challenges which come under its way of implementation.
I. The Official Secrets Act, 1923: This law was the most vital challenge in the history of RTI Act 2005 in India. This act was made by Britishers to maintain the culture of secrecy in governance. It prohibited all public servants from disclosing any information to the general public.
II. Oath by the Public Servant: Before joining duty, public servant swears that the information is a state secret and it can not be disclosed to the general public at any cost.
III. Section 123 of the Indian evidence Act 1872: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
IV. Rule 9 of The All India Services (Conduct) Rules, 1968: No member of the Service shall except in accordance with any general or special order of the Government or in the performance in good faith of duties assigned to him, communicate directly or indirectly any official document or part thereof or information to any Government servant or any other person to whom he is not authorized to communicate such document or information.
V. Archives Policy Resolution of 22 December 1972: States that all documents are classified for 30 years and thereafter only non-confidential material is available to a restricted range of people. Even unclassified material cannot be communicated to anyone outside the government without permission.
VI. Rule 11 of The Central Civil Services (Conduct) Rules, 1964: No Employee of the Secretariat shall, except in accordance with any general or special order of the Secretariat or in the performance in good faith of the duties assigned to him/her, communicate, directly or indirectly, any official document or any part thereof or information to any Employee of the Secretariat or any other person to whom he/she is not authorized to communicate such document or information.
Now, I’ll try to provide an understanding that how we, as a country overcame these challenges and made our dream true.
A timeline of events which took place in the history of Right to information in the becoming as a dream to realization:
It all started after the declaration of results of 5th Lok Sabha and with the famous case of Raj Narayan Vs. state of U.P.
Case: The State Of U.P. V. Raj Narain And Others, 1975: AIR1975SC384
Facts: In this case Raj Narayan, election contester against the former Prime Minister Indira Nehru Gandhi, accused her to misuse government machinery and state resources to win the elections of 5th Lox Sabha. He was further stated that Mrs Gandhi also used expensive funds and resources of security forces in her elections. Mrs Gandhi argued that all the process is done according the rules written in the Blue book. There is a twist in this case, the Blue book which is referenced here; it contained security guidelines regarding the Prime Minister of India’s travel. Mrs Gandhi argued that it termed as unpublished official record and cannot be disclosed publically.
Judgment: The High Court of Allahabad, found Mrs Indira Gandhi guilty for the electoral malpractices and held that government officials failed to describe how Blue book comes under section 123 of Indian evidence act, so court order to disclose it. While commenting the whole incident, Justice Sinha said, “in Indian democracy, people are the masters and they have the right to know about the working of the government.”
When this case was challenged in Supreme Court, Justice K. K. Mathew held, “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. They are entitled to know the particulars of every public transaction in all its bearing.”
After the dark era of emergency, in 1977: Janata Government headed by Morarji Desai came in to power. As per their election promise, they constituted a working group to ascertain if the Official Secrets Act, 1923 could be modified so that greater flow of information can be accessed by the general public. The working group recommended that the Act of 1923 should be retained without change.
Another important event took place in 1982:
Case: SP Gupta vs. Union of India: AIR1982SC149
Issue: In this case, while hearing is undergoing in the Supreme Court, the petitioners requested the government to produce certain correspondence between the Union law minister, the CJI, and the Chief Justice of the Delhi High Court, which would play vital role in deciding the case. Whereas, government side argued that such correspondence was protected by ‘state privilege, so it can’t be provided.
Judgment: Supreme Court while rejecting the argument stated that transparency, accountability and openness are the three essential elements of good governance. And these only be exercised, when one have right to know without any hindrances. Supreme Court ordered that the correspondence be produced.
In 1985, Intervention application in the Supreme Court by environmental NGOs following the Bhopal gas tragedy, asking for access to information relating to environmental hazards filed.
In 1989, V.P. Singh, then Prime Minister’s candidate, included the principle of “maximum discloser of information for the public” in their election manifesto.
In his first broadcast on all India radio he said, "We will have to increase access to information. If the government functions in full public view, wrong doings will be minimised. To this end, Official Secrets Act will be amended and we will make the functioning more transparent. Right to information will be enshrined in our Constitution." But unfortunately, due to the political instability of that time and early fall of the government, the idea did not materialize.
In 1994, MKSS, Mazdoor Kisan Shakti Sangathan, formed in Rajasthan, This organization played a vital role in forming the grass root level public opinion for the RTI act. MKSS started to organize a program on grass root level named; Jansunvai, in which they invite all the politician, private contractors, officials, sufferers, landless labors to listen, respond and, if willing, to defend themselves. Corrupt people were try to escape that event and therefore, weakened their position and darkened their image. This 1 good step made very large difference to aware the people about the corrupt practices of government.
In 1996, a RTI draft was sent to the government, which was prepared by NCPRI and other related activist with the help of press council of India in the guidance of Justice PB Savant. Then, in 1997, this bill was sent to the Shourie committee which was setup by the government to providing recommendations regarding practicability of this bill.
Some highlights of this bill are given below:
1. Every citizen shall have the Right to Information from public body;
2. It shall be the duty of the public body to maintain all records duly catalogued and indexed;
3. The public body shall be under a duty to make available to the person requesting information, as it is under an obligation to obtain and furnish and shall not withhold any information or limit its availability to the public except the information specified in Clause 4, and
4. All individuals whether citizens or not, shall have the right to such information that affects their life and liberty;
In the meantime, in 1997, Tamilnadu became the first state in India to have passed a law on Right to Information.
Then after The states like: Goa in 1997, Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002) and Madhya Pradesh (2003) also enacted their own laws on right to information.
In 1998, when the coalition government of NDA came in to power, in order to fulfill their election commitment, they introduced the Freedom of Information Bill, 2000 in the Parliament. After having been pending for about two years the Bill was finally passed by the parliament on 4th December, 2002 and it received the assent of the President of India on 6th January, 2003.
Case: Union of India vs. Association for Democratic Reforms and others, With People's Union For Civil Liberties (PUCL) And others, Vs. Union Of India And others, 2002(005) SCC 0361SC:
Facts: in this case, the association for democratic reforms filed an application with Delhi High court by stating to make our electoral process more fair, transparent and equitable. In this petition, the organization nothing demanded but implementation of recommendations of law commission. In this report the law commission suggested to government that the Election Commission should require all candidates to disclose personal background to the public, including criminal history, educational qualifications, personal financial details and other information necessary for judging a candidate’s capacity and capability.
Judgment: in this case, the High court of Delhi ruled that each and every background information of a candidate must be disclosed, because without proper information; voters have no way to decide to whom they choose or whom not. Right to know, is the fundamental right of Indian citizens which is provided by article 19(1) (a) in our constitution.
This decision is challenged in Supreme Court by Union of India on the ground that Election commission or High court has no such powers available. But, while upholding the Delhi High court’s decision, Supreme Court stated that:
(1) When the legislature is silent on a particular subject and an entity has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted; and
(2) Citizens have a right to know about public functionaries, which is derived from the concept of freedom of speech and expression and which includes the right to know about the backgrounds of candidates for public office.
In 2004, UPA government headed by Dr. Manmohan Singh came in to power and the as per their election promise; appointed a National Advisory Council in the chairmanship of Miss Soniya Gandhi to monitor implementation of government schemes and advise government on this burning issue. The NAC recommended that the freedom of information act is modified with some reforms and also tabled a bill named RTI bill 2004. But there is a lacuna in this bill; this bill can only be applied on Union Government. As we all know, most of the information which is required to a common man rest with the local or state government. After heavy protest by common man and organizations like NCPRI, the RTI bill 2005 presented in parliament with demanded reforms; and passed with the 150 necessary amendments.
This bill became act on 15th June 2005, and became fully functional from 12th of October, 2005.