By Pearl Kumar
Communication is at the heart of all social intercourse. The success and essence of democracy lies with the satisfaction of the governed. Information would only catalyze the process. Moreover, the clouds of darkness which usually prevail over government policies and operation only create doubt and lack of faith in the government, and derail the process of development.
Speaking on the importance of information in the democratic form of government, the father of the American Constitution and former US President, James Madison said — “Knowledge will forever govern ignorance, and, people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.”
Accessing information in today’s time has become a matter of grave concern. Over the period of time, as society has evolved, the need for information has increased. Indian society, earlier was ‘feudal’ and ‘agrarian’, where people had limited needs and concerns. Their basic aim in life was mere subsistence. But with the emergence of medicine and technology the society has transformed into a ‘Knowledge Craving society’.
The access to information is nothing but the ability of the citizen to obtain information in the possession of the state. It is a fundamental human right as reflected in international human right instruments, the most significant being the “Universal Declaration of Human Rights”, proclaimed in December 1948. This is also reaffirmed and expanded upon in International Convention on Civil and Political Rights of 1966. This provision states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of an, or through any other media of his choice.
The second paragraph of this article carries special duties and responsibilities that can be subject to certain restrictions, but these shall only be such as provided by law.
Right to Information (RTI) recognized as a Fundamental Right by the Indian Judiciary
It is imperative to note that the Supreme Court, in State of U.P. v. Raj Narain, a 1974 case, has recognized the ‘right to know’ as a right inherent in the Fundamental Right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Following this, a plethora of cases recognized the right to information as a right implicit in Article 19(1)(a) and in Article 21 (fundamental right to life and personal liberty).
In People’s Union for Civil Liberties v. Union of India the Supreme Court observed that “Right of information is a facet of the freedom of ‘speech and expression’ as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right.”
The Right to information is now recognised as a necessary component of free expression. It has been elevated and given a constitutional guarantee. The exercise of this right is through a process which is laid down in the Right to Information Act.
THE ACT AT A GLANCE
The great enthusiasm, which the Act is beginning to generate among citizens, is indicative of public acknowledging their power in making government actions accountable. Unknown and known activists and organisations are helping citizens increasingly realise that they deserve their Right to know from the leaders they elect.
The philosophy behind the Act is similar to what was propounded in the movie Nayak where the idealistic CM tries hard to fight corruption and introduces a system where people can post letters with their grievances addressing it to the CM. The RTI procedure is similar, draft a letter, address it to the PIO (Public Information Officer) and within 30 days get the reply.
On denial of the information one can file the first appeal with the Appellate Authority and second appeal with the State/Central Information Commission.
The system which looks as easy as a child’s play has a lot of loopholes in it. The first being that the information sought by the applicant can be refused under Section 8 of the Act, where the PIO is not deemed to give an answer — on grounds that it governs the matter of defense, information received in confidence from another nation, or a third party information.
The standard of record-keeping is extremely poor, providing an easy excuse for refusing access to records on the specious excuses that they have been ‘misplaced’.
The poor flow of information is compounded by three factors — low levels of literacy, the absence of effective communication tools and processes, a pervasive culture of creating a veil over public documents by the bureaucracy created by legislations like Official Secrets Act.
The Information Commission comes as a saviour, which has revived people’s faith in the judiciary. The decision of the proposed Commission will be binding; it will enjoy the powers of Civil Court while deciding a second appeal in:
(a) Summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath and to produce the documents or things.
(b) Requiring the discovery and inspection of documents.
(c) Receiving evidence on affidavit.
(d) Requisitioning any public record or copies thereof from any court or office, and
(e) Issuing summons for examination of witnesses or documents.
In its mandate, the Commission will have the powers to order the Public Authority to act in accordance with the provisions of the Act which include:
- Providing access to information in the form in which it is sought.
- Designating a Public Information Officer if not designated already.
- Publishing general information of public utility without expecting citizens to unnecessarily invoke their right to know for such routine information etc.
Regardless of these provisions, the system of governance in India has traditionally been opaque where till date an RTI Applicant has to refer to sections of the Act and elucidate the reason behind filing an RTI (which the Act prohibits). The State is finding it hard to break the shackles, created by the colonial Official Secrets Act (OSA).
There are numerous examples where the citizens have filed RTIs to solve the problems of society. But one of the most striking examples would be that of a community called the Chharas — a Denotified criminal tribe; living in the outskirts of Ahmedabad in Chharanagar, primarily known for its home brewed liquor — illegal in the dry state of Gujarat.
What is so unique about them? It is the term ‘Criminal Tribes’ which originated in the British colonial times. The British initiated the Criminal Tribes Act in 1871, referring to around 150 tribes for their so-called “criminal tendencies,” giving the Police wide powers to arrest them, control them, and monitor their movements. The law in effect was that anyone born into one of the tribes, under this Act, was a criminal.
In 1952, the Indian Government withdrew the Criminal Tribes Act of 1871. Released from the forced labour camp which had been their prison for the past forty years, the Chhara were resettled on the outskirts of Ahmedabad. Later however throughout India the Habitual Offender’s Act was enacted. This act does not depart significantly from the Criminal Tribes Act from which it is derived.
Both the Criminal Tribes Act and the Habitual Offender’s Act negate the universally proclaimed principle that “All human beings are born free and equal”. The listing of these denotified and nomadic under the Habitual Offender’s Act also negates the principle of the criminal justice system — innocent until proven guilty.
Due to their history of nomadism and sedentarization, social stigmas have developed about the Chharas that place them at considerable disadvantage in competing for jobs and education. They have become scapegoats and usual suspects for Police, who are able to use Chharas for illegal purposes, such as brewing country liquor under threat of compulsion. This places Chharas in constant uneasy relation to authority and has resulted in an extremely high rate of incarceration. Youth find it very difficult to acquire and retain employment. Yet Chharas are highly motivated to excel at education.
It was interesting to note when people from this community, who still bear the stigma of being a criminal, started filling RTIs for the benefit of their locality; some of which focused on seeking the information on how the money in the MPLAD scheme was utilized for them and making the Municipal Corporation work in the area which was not cleaned for decades put together.
Despite all the problems, RTI is a major step towards ensuring a participatory developmental process in the country. For the law to win accolades for democracy, it will need the active participation of the community at large, including Non-Government Organizations and the Press; who will need to simplify and disseminate the possibilities under the new law to citizens. The new law could be the tentative beginnings of a more inclusive development process — what Amartya Sen describes as “a momentous engagement with the possibilities of freedom”.