African Legislation Aeuroeaccess To Information Act Aeur example essay topic

FREEDOM OF INFORMATION ACT, 2002: A CRITIQUE by Anil Kumar Chaudhary Background The movement towards right to information being considered as a formal right gained impetus in the early 1990,'s. The efforts of Maz door Kis aan Shakti Sangha tan (MASS) are monumental in these regards. It emerged as a powerful force in checking corruption by demanding muster rolls, bills and other official documents of public expenditure. The right to information as a civil and political right has a strong legal background in our country. Article 19 of the Universal Declaration of Human Rights, to which India is a signatory states that every person has the right to ^aEURoeseek and receive information^aEUR and even International Covenant for Civil and Political Rights provides right to information to every citizen. Article 19 (1) (a) of the Indian Constitution guarantees that ^aEURoeall citizens have right to freedom of speech and expression^aEUR and the right to information flows from it; as for the enjoyment to the right to freedom of speech and expression; relevant information is a necessary ingredient.

Therefore, right to information as a constitutional right has to be seen in the light of Article 19 (1) (a). In response to such a right, there had been various state legislations giving the citizens their right to information. The forerunners in this regard were Tamil Nadu and Goa which passed the legislations which empower the people with the right to information in 1997. They were followed by Rajasthan and Karnataka in 2000, Delhi in 2001 and finally Maharashtra in 2002. There was a demand for a central Act to this regard, in response to which the Shou rie Committee was instituted in 1997 and finally the Freedom of Information Act, 2002 (herein by referred as Act) was passed by the Parliament.

THE ACT The paper tries to look into the various aspects of the Act, not only its weaknesses but also explores the various legal questions that arise after the enforcement of the Act. The first and foremost weakness in the Act is its title ^aEURoeFreedom of Information Act^aEUR; which provides the citizens of the country only a mere ^aEURoefreedom^aEUR of information and not a ^aEURoeRight^aEUR. The term ^aEURoefreedom^aEUR indicates more of a favour to the people not which can be demanded as a matter of right. A ^aEURoeright^aEUR imposes an obligation on the authorities to provide information which is not the case if only ^aEURoefreedom^aEUR is provided.

This point is particularly important considering the fact that the honourable Supreme Court has already declared the right to information as a fundamental right in the case of Bennet Coleman vs. Union of India (AIR 1973 SC 783). Therefore it is suggested that the Act should be renamed as ^aEURoeRight to Information Act^aEUR rather than ^aEURoeFreedom of Information Act^aEUR. Accordingly in the Preamble of the Act also, the term ^aEURoefreedom^aEUR should be replaced with the term ^aEURoeright^aEUR. In Sec. 3 of the Act, the term ^aEURoefreedom of^aEUR should be replaced with ^aEURoeright to^aEUR; in furtherance of recognizing the fact that obtaining information by the general public is a fundamental right.

Here it is important to note that all the state legislations which provide for right to information has titled their respective legislations as ^aEURoeRight to Information Act^aEUR, for egs Rajasthan, Delhi, etc. and also considers it as a ^aEURoeright^aEUR to the citizens not a mere ^aEURoefreedom^aEUR as provided by the Central Act. Sec. 2 of the Act while defining appropriate government includes both Central and State government. This raises the question of the relevance of State legislatures in the presence of a Central Act. In the context of the Madhya Pradesh bill regarding right to information the Central Government is reported to have arrived at a conclusion that this subject (right to information) falls within the residuary powers of the Central Government (God bole, 2000). There are certain legal questions that arise after the enforcement of the central Act, as following: - - Which law will prevail in case of a conflict in laws or rules of central and state legislature?

- Which law should the aggrieved party use for the remedy of their grievances (state legislature or the FOI Act) and can the state use the other law as a defence to the point raised by the aggrieved party? - Which list does the right to information come under? State, Concurrent or Central list. Or does it come under the residuary powers of state? - What is the use of a State law if there is already a central legislation to this regard and especially when the Central Act (the FOI Act) covers the state authorities under its ambit? These points of law are for the time being unsettled and are only to be found answers in case of judicial intervention, which is yet to take place.

Sec. 2 of the Act also excludes any private individual, NGOs, corporations, trusts, etc. from the ambit of the Act. The inclusion of private bodies has become particularly relevant especially after the phase of economic liberalization and privatization since 1992. Government agencies are withdrawing more and more from the public arena which affect the lives of the people of the country and giving it in control of private bodies. Take for example the case of Delhi Vidyut Board (DVB), before its privatization it got the largest number of application seeking information under the Delhi Act, now it has become a private body as majority of its shares are held by a private company. Therefore DVB, now, does not come under the ambit of the Act, inspite of the fact that it affects the lives of the people directly as proven by the number of applications received by it when it was not privatized.

Therefore private bodies should also be accessible to people for any information which is in line with the ^aEURoelarger public interest^aEUR and when such information is necessary for the exercise and protection of any other fundamental right. The South African legislation ^aEURoeAccess to Information Act^aEUR includes private bodies under the ambit of the Act and even the Goa Act include private bodies to the extent that the private bodies are executing work on behalf of or as authorized by the Government as mentioned in Sec. 2 (c) of the Goa Right to Information Act, 1997. Similarly Sec. 9 (d) of the Act, which exempts any information that causes an unwarranted invasion of privacy from the purview of the Act, should have a saving clause which would allow for such an invasion of privacy in the larger public interest. In Sec.

4 (c) of the Act the use of terms ^aEURoerelevant^aEUR facts and ^aEURoeimportant^aEUR decisions give wide powers and scope to the authority concerned with regards to the disclosure of suo-moto information. In the absence of justiciability of the right (as taken away by Sec. 15 of the Act), this provision helps the authorities in concealing lots of information from the general public using the defence of the provision claiming that information is either ^aEURoeirrelevant^aEUR or ^aEURoeunimportant^aEUR. Therefore to curb such a situation there should be proper rules laid down, as to where suo-moto disclosure is compulsory and where it is optional. Certain major issues concerning public interest like issuance and awarding of tenders and licenses should be added within the list of such compulsory suo-moto information.

And also there should be an added provision in the Act which would allow for any other additional information to be included in the list of suo-moto disclosures at the behest of the concerned authority. Exemptions Sec. 7 of the Act lays down that information concerning life and liberty should be provided within 48 hours. While Sec. 8 (1) (b) provides if the information prejudicially affect in detection and investigation of an offence, then such an information is an exception to the general rule of right to information.

And moreover Sec. 16 (2) gives power to the govt. to add any security or intelligence agency in the exemption list at any time. These are ironical laws, considering the fact that police is one of the forerunners in matters of human rights violation. Police can use the defence of Sec. 8 (1) (b) of the Act and consequently not provide any information relating to personal life and liberty as required by Sec. 7 of the Act.

The legislators lost an opportunity here in checking the existing evils in the police system like custodial violence. Sec. 7 alone in the absence of the provision of Sec. 8 (1) (b) would have been an effective balance against the wide powers of police. There has to be proper rules laid down as to when police can use the provision of Sec.

8 (1) (b) and consequently not provide information. These rules will protect the people from any misuse of the law. Sec. 8 (1) (c) of the Act excludes any information which prejudicially affects conduct of Centre-State relations, including any information exchanged in confidence between Centre and State governments / authorities. Now, using this provision all the centre or state government need to do for protecting any information from disclosure to the general public is to mark it as confidential.

The elected representatives can misuse this law by concealing vital information which would affect the lives of general public. For example in case of imposition of Article 356 (President,'s Rule) in a state, breakdown of constitutional machinery in the state, etc. such information can be concealed from the citizens of the country using the defence of this provision irrespective of the fact that people should be aware of such information as it affects their lives. Therefore even if disclosure of an information affect Centre-State relations that does not mean that general public is not entitled to that information. In a democracy citizens are ultimate sovereign and the right to know about the acts of their elected representatives is of primal importance. Sec. 8 (1) (d) of the Act exempts cabinet papers as a class from any kind of accessibility in the public domain.

Any paper placed before cabinet can be termed as cabinet papers. There is no legitimate reason for such a class exemption when there are already provisions of Sec. 8 (1) (a) and (b) which exempts any information relating to issues of national security and integrity from the general of the right to information. People have the right to know how their elected representatives are running the country so such class exemption should not be there in the Act. Sec. 8 (1) (e) of the Act exempts any disclosure of records of legal advice, opinions or recommendations.

The citizens of the country should have a right to know about who advised what to the government and on the basis of what grounds / arguments that a particular decision was taken. This provision is no way in furtherance of the objective of the Act ^aEUR" ^aEURoeto promote openness, transparency and accountability in the administration^aEUR. It is argued by the bureaucracy that if their official statements in the process of decision-making are made public, they will not be able to give advice with a free and open mind. This argument was refuted by the honourable Supreme Court in the S P Gupta case where it was held that the fear of disclosure will not deter any honest officer from giving any advice but will only act against the dishonest officers. Therefore this provision should be totally excluded from the Act, as there is no reason why people should not be taken into confidence about the grounds on which a particular decision was taken by the government. Appeal Sec.

12 of the Act enshrines in itself people,'s right to appeal if they are aggrieved by any decision of the Public Information Officer (the officer in charge of the authority who deals with request for information sought under Sec. 5 of the Act). According to this provision an appeal can only be made to the authority concerned at the first instance and the second and final appeal lies to the government under which the authority lies be it Centre or State. This is one of the greatest weakness of the Act which takes away the provision of any appeal to an independent authority and thereby giving absolute powers to the bureaucrats in the government in matters relating to information dissemination to the general public. This provision will not help public at large as it is the bureaucrats themselves who have vested interests in concealing information from general public. The State legislations in this regard have done a better job.

The Goa Act provides for an appeal the Administrative Tribunal; the Karnataka Act also has its Appellate Tribunal for the purpose of appeal and also the Delhi Act has a provision which ensures appeal to an independent authority named Public Grievances Commission. The central act should also have a similar provision. Again, Sec. 15 of the Act debars judiciary from playing any role with regard to the decisions of the Public Information Officer. This provision restricts jurisdiction of any civil court against any order passed under the Act. This provision practically takes away the justiciability of the right and thereby hampering the efficacy of the Act in a major way.

The only possible remedy against orders of the government is to file a writ petition which is a highly impractical solution to the majority the population of our country. Penalty One of the major criticism of the Act is that there is no provision for any kind of penalty against erring officers- both in case of for suo-moto disclosures and information sought through application. In the absence of any provision of penalty in the Act there will be no incentive for dishonest officers to show the records that will prove their wrongful deeds. Thereby, one of the main goals of the Act- to deter corruption- will fail in the absence of any provision of penalty. Almost all state legislations have provision of penalty against the erring authority / person. Goa, Rajasthan, Karnataka and Delhi all provide for disciplinary actions under Service Rules against any mala-fide handling of any information sought and also for any inordinate delay.

Similar provisions of penalty should be incorporated in the Act. Salutary provisions All the above weaknesses in the Act as discussed leaves a vacuum, which leads to an ineffective and weak legislation unable to achieve the objectives for which it was created. However, there are certain salutary provisions in the Act like the provision which forces suo-moto disclosures by the public authorities in matters relating to public interest and also the provision which places an obligation towards public authorities to give reasons for their decisions (Sec. 4 (d) ). The clause which deals with severability of an application is highly appreciable. And also the protection of any person for anything which is done in good faith under Sec.

13 is a very well thought of provision. This provision will protect the whistleblowers from any penalties under service rules if they bring out any information is indicates corruption in the department concerned. Parallel steps to be taken It is important to note that after the passing of the Act the relevance and importance of the right has been finally recognized by the government. But it is futile to expect that the new law would have any major impact immediately after it comes to effect. The government has to create a congenial environment so that people can actually take advantage of the right provided to them and not remain just another statute in the papers. There is no point of framing a legislation and giving a right to the people without creating the environment and infrastructure which is necessary for the actual realization of the right.

The most challenging work in this regard is to change the mindset of the bureaucrats, a shift from a culture of secrecy to a culture of transparency. For this purpose there has to be compulsory training and orientation programmes for the government servants. There should be creation of a regulatory body for overseeing the implementation of the law, same as Delhi and Goa have in their state legislations. And also there should be a mandatory provision which forces the government to publicize the Act and its benefits to the general public so that the citizens know about the benefits attached to the Act and can actually take advantage of the Act (as in most cases the masses do not know about the rights).

There is still a long road to be travelled with regards to the realization of the right to information as a general norm and to be actively used by people at large from all section of the society. However a step has been taken in the right direction as there are several states which have legislations guaranteeing citizens their right to information and finally a central Act in the form of Freedom of Information Act, 2002 to serve the same purpose. Certain pro-active steps by the government coupled with public participation will lead to a more open, transparent and accountable system of administration.