This article is written by Kuwar Digvijay Singh, a student of Lovely Professional University, School Of law B.A.LLB.(Hons.) 4th Semester. The proposed research is in doctrinal form. The research is the analysis of the Right to privacy which is given under Article 19 which provides the Right to freedom of speech to every person. The Library of the Lovely Professional University, School of Law, Jalandhar has been relied upon. The research study has Conducted a proper analysis of available literature and data so that the correct position on the subject matter may be drawn. It is expected that the following research will help in the better understanding of the Right to freedom of speech and also further enhance the area of research for advanced research.
It is quite interesting and the most cherished right, The Right to Information though being poles apart, and contradictory and antagonistic and complementary in the Indian Legal System.
This right is a very essential right for the survival of a human being in the rapidly advancing, modern and technical world – where the protection of an individual’s information and security is becoming a matter of concern. Though not explicitly mentioned under the Constitution of India, it was through various judgements of the supreme court, held that the rights are a part of the fundamental rights- wherein, The Right to information holds a position under the provision, in the Indian Constitution – Article 19 ‘Right To Freedom of speech’ in which Right To Information falls.
The privacy of the individual is being increasingly challenged by new technologies and trends in society. For a biological person, the protection of the Right to information is available under Article 19 of the Constitution of India. This right can be regulated and curtailed in the larger public interest.
The right to information has been recognized as a fundamental human right, which upholds the inherent dignity of all human beings.
In this paper, an attempt has been made to underline the importance of the Right To Information, the various conflicts concerning their relationship, and possible solutions to the issues concerned, after an analysis.
The right to information
What is Information?
“Information is the resolution of uncertainty; it is that which answers the question of “what an entity is” and thus defines both its essence and nature of its characteristics. Information relates to both data and knowledge, as data represents values attributed to parameters, and knowledge signifies understanding of a concept.”
“Information is the resolution of uncertainty, it is that which answers the question of “what an entity is” and thus defines both its essence and nature of its characteristics. Information relates to both data and knowledge, as data represents values attributed to parameters, and knowledge signifies understanding of a concept.”
Why is it necessary?
First of all, what is the meaning of the word “Democracy”? Democracy basically means, “the people’s rule” – it is made by the people and for the people. And if, in a democracy, the people are such an important element, then, how can a democracy survive, if the people themselves do not know what is going on around them, and what their elected representatives are doing? In a democracy, the people have the right to ask, or question their government, or in simple terms, they have the right to seek information.
Information is essential to resolve many issues, make decisions, and increase knowledge in different areas. It has an indispensable function in the growth of societies in any nation. India is a democratic country, and as per the Preamble to the Right to Information Act, of 2005, “democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.” Informed citizens are better equipped and prepared to keep a constant vigil on the instruments of governance and hold the government more accountable to the people. Information empowers and enables people; pushes them towards exercising their legal, social, economic and political rights. Almost every society has recognised the same by way of putting in place the mechanisms for free flow of information and ideas so that people can access them whenever it is required without too many procedural, or otherwise, hassles.
Genesis of the RTI Act, 2005
Dr. Manmohan Singh, the then Prime Minister of India, when bringing to light India’s first significant step towards anti-corruption – The Right To Information Bill, said: “ The passage of the Bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, benefits of growth will flow to all sections of the society, eliminate the scourge of corruption, and will bring the common man’s concern to the heart of all processes of governance and fulfil the hopes of the founding fathers of our Republic.” The Right to Information Bill having been passed by both Houses of Parliament received the assent of the President on 15th June 2005. It came on the Statute Book as THE RIGHT TO INFORMATION ACT, 2005 (22 of 2005). The basic objective of this Act is to harmonise the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely effect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand; Institute of Chartered Accountants of India vs. Shaunak H. Satya. As per the Preamble to the Right to Information Act, 2005, “The Right to Information Act, 2005, is an Act to provide for setting out the practical regime of the right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith and incidental thereto.
The right to information derives its origin from the Constitution of India, 1950, as one of its sources. The right to information is a recognised Fundamental right under “Article 19(1)(a)” of the Constitution of India, 1950, which states that, “All citizens have the right to freedom of speech and expression”. In the case of Bennett Coleman & Co. & Ors vs Union Of India & Ors, the Hon’ble Supreme Court of India read the right to information as an integral part of the purpose of Article 19. In the case of the State of U.P. vs Raj Narain, the Hon’ble Supreme Court held that “in a Government of responsibility like ours, where the agents of the public must be responsible for the conduct there can be but a 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 bearings.” In Indira Gandhi vs Raj Narain , the Court explicitly stated that, “it is not in the interest of the public to ‘cover with a veil of secrecy the common routine business – the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” In the 1981 judgement of Manubhai D. Shah vs LIC , it was held that, “The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and express them freely to others, and this implies a person’s right to know.” Indian Express Newspapers (Bombay) Pvt. Ltd. vs Union of India is another example of a similar holding. The Apex court in the case of S.P.Gupta vs Union of India & ors. , said that, “Now, if secrecy were to be observed in the functioning of the Government and the processes of Government were to be kept hidden from the public scrutiny, it would tend to promote and encourage oppression, corruption, misuse or abuse of the authority for it would be all shrouded in the veil of secrecy without any public accountability. Unnecessary secrecy in Government leads to defective decision-making. But if there is an open Government with means of information, available in the public domain, there would be greater exposure to the functioning of the government and it would help to assure the people of a better and more efficient administration.”
In People’s Union for Civil Liberties vs Union Of India, the court held that “exposure to public scrutiny is one of the known means for getting clean and less polluted persons to govern the country.” In Kuldip Nayar v. UOI, Y.K. Sabharwal, C.J., held that, “Secrecy becomes a source of corruption – Sunlight and transparency have the capacity to remove it.” In Secretary General, Supreme Court of India, vs Subhash Chandra Agarwal, the Hon’ble High Court at Delhi, held that “The CJI is a public authority under the RTI Act and information so given by CJI of the assets in public information. Declaration of assets by the SC Judges, is “information” under Section 2(f) of the Act and the contents of asset declaration are to be treated as personal information, and may be accessed in accordance with the procedure prescribed under section 8(1)(j). Lastly, the CJI, if he deems appropriate, may in consultation with the Supreme Court Judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declaration to be made.” From the above cases mentioned, it can be very well understood that every person or every citizen has “the right to know ”. And this right has been implicitly guaranteed by the constitution of India. Also, as per Section 3 of the Right to Information Act, 2005, “All citizens shall have the right to Information.” The Right to Information is the bedrock of democracy and paves the way for transparency and accountability in the governance of the affairs of the state and ensures effective participation of the people in a democratic society.
Why is the RTI Act, of 2005, successful?
For the first time in the history of independent India, there is a law which casts direct accountability on the officials for non-performance. If the concerned officer does not provide information within the stipulated period of time, a penalty of Rs 250 per day of delay, can be imposed by the Information Commissioner on that particularly concerned official. If the information provided is false or subject to negligence, a penalty of a maximum of Rs 25,000/- can be imposed. A penalty can also be imposed for providing incomplete or for rejecting your application for malafide reasons. This fine is deducted from the officer’s personal salary. And, it can be said that this Act, justifies a person’s right to information, and makes sure, of the convenience in the enforcement of the same. Also, every citizen of this country is a beneficiary of this Act.
However, the Right to Information is not an absolute right
Nothing can be absolute – everything is bound to certain limitations or restrictions – as, in a phase of complete absoluteness, things often go haywire. It can be very well said that, with absolute power in hand, comes also the power to misuse or abuse the same. Therefore, there must always be a balance between a “right” and a “no right”. Not all the Information related to the Government can be disclosed, just because a person seeks such information under the RTI Act, as it might put the larger public interest at stake, and may endanger the life or physical safety of any person or the nation as a whole. There will always be areas of information that should remain protected in public and national interest. For example: When we talk about war, there should be some secrecy or confidentiality to be maintained of a particular nation, so that the counter nation or opposition does not make any ambiguous plan to destroy the nation. Similarly, It can be said that the Citizens of the country are at the trigger side of a gun, and are the sole beneficiary of this Act, while the gun is the Right to Information, and the Public authorities are at the other end of the gun, and hence, the public authorities cannot avoid this bullet called an RTI Application, and they, however, have to provide the information sought by the citizens. But, however, the right to information of a citizen of a country, cannot be forced on any Public Authority, if they are not in a position to provide such information, as sought. Few exemptions are provided to these public authorities under Section 8 of the RTI act, 2005, under which they can deny the disclosure of the information sought by the Appellants.
As per Section 11 of the Right to Information Act, 2005, Third party information, is basically the information related to an individual, which a public authority holds in its hands, but cannot disclose it to a person other than the person, for whom the permission has been granted for the disclosure of such information, by the third party itself. When a person seeks information which relates to a person other than himself, it is basically known as third-party information. And in such a case, the concerned public authority official, who has got such request of disclosure of information, provided it holds such information with itself, must on the receipt of such request, ask the third party, to whom the information relates, whether such information relating to him can be disclosed or not. This provision under the RTI Act helps provide protection to the data of a person, and hence, protects the person’s Right to Privacy as well.
The Right to Information Act is a strong weapon in the hands of the media and the press. The restrictions imposed on such right under the Constitution, the Act itself, any other law and by judicial interpretation seem to be reasonable and strike a good balance between people’s right to know and secrecy maintained by the State. But the question arises regarding how far the Right to Information Act, 2005, has succeeded in achieving its above-mentioned objective. Efforts made to generate mass awareness of the RTI Act are lacking.
Misuse of the Act
The experience of the past years has shown that there are cases wherein frivolous applications are being filed in the name of transparency. Some of the instances, when provisions of the RTI Act are being misused, are:
- To know the secrets of competitors (third party).
- To harass the Public authority or bring disrepute to a public servant with the intention of settling a score.
- For the promotion of self-interest like a survey or research; tender or other business interest; blackmailing; derailing investigating; service matters- appointment, transfer, promotion, vigilance enquiry, etc.
- It has the potential for being misused for spying activities.
- The Act does not have strict penal provisions. The fee charged for information and the manner of payment is not uniform, there is also confusion about the head of accounts to which the application and other fees are to be credited.