chapter-ii right to information ...shodhganga.inflibnet.ac.in/bitstream/10603/89622/6/06...16...
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CHAPTER-II
RIGHT TO INFORMATION
CONCEPTULIZATION, PHILOSOPHY AND
GENESIS
We all are shouting for our “rights”, for our “civil rights” for “freedom” or for
“liberty.” For what ones? For what? It must be borne in mind that our Constitution,
judicial interpretations, our governments and statutes are founded upon the strong
rock of rights. The American Proclamation of Independence, French Revolution and
World Wars are the results of the conflict of rights. Is it possible to imagine a “world
without rights,” even with full benevolence and devotion to duty? Such a thing is
beyond imagination, as it would suffer an immense moral impoverishment. Right is
something, which arises from a corresponding obligation; it is something, which
imposes a constraint, whether by way of forbearance, acquiescence or active support,
of the people.1
Human history is a struggle for rights and moves zig zag varying from country to
country, culture to culture and age to age. The rights and freedoms to which all
humans are entitled to are known as human rights. Although ideas of rights and
liberty/freedoms have existed all along the much of human history yet, it is unclear as
to what degree such concepts can be described as “human rights” in the modern sense.
The concept of human rights gained momentum with civilization. In the feudal
society, there was no freedom or liberty as they exclusively belonged to certain
privileged classes such as rulers, clergy, etc. These human rights find mention in all
languages, literatures and religious scriptures of the different communities of the
world, thus, indicating the existence of human rights ever since the origin of human
race. Perhaps the Vedas, Smriti, Bible, Koran etc. and even the theories of natural
laws on the rights of the individuals2 also point out the same.
1 . Hob house, L.T, The Elements of Social Justice, Ruskin House, George Allen and Unwind Ltd.
London, 4th
edition, 1958, p. 35.
2 . N.S.Sreenivasulu, Human Rights :many sides to a coin, 17(2008).
17
“Human rights” also emerge from a society which has chosen to accept
democracy as its creedal faith. The global debate on democratization and human
rights can be sharpened by paying greater attention to specific problems of political
and institutional reform at the local, national and international levels. The term
democracy indicates both the set of ideals as well as a political system—a feature it
shares with the terms communism and socialism. “Democracy” is harder to pin down,
as compared to “socialism” or “communism”; because the latter labels have found in
Marxism an ideological matrix or at least a point of reference while democracy has
never become identified with a specific doctrinal source—it is rather a by-product of
the entire development of western civilization. No wonder, therefore, that the more
“democracy” has come to be a universally accepted honorific term, the more it has
undergone verbal stretching and has become the loosest label of its kind.
Democracy is, to begin with, a principle of legitimacy. So well conceived is this
principle that it is both the minimal and the sole common denominator of any and all
democratic doctrines. From the democratic viewpoint nobody denies that power is
legitimate only when it is derived from the authority of the people and is based upon
their consent. Nobody can contradict that democracy is the opposite of autocracy. But
this agreement is short-lived and indeed rests on fragile foundations. For democracy
as a legitimizing principle lends itself to two diverging interpretations:
(1) That the consent of the people can be a mere presumption, an untested
assumption; or
(2) That there is no democratic consent unless it is verified through ad hoc
procedures (which exclude notably, the consent by sheer acclamation).
And these opposing views are related to an even more fundamental disagreement
over the very meaning of the term people—a hazy notion indeed.“The people” can be
understood as a singular term (in fact, peuple, Volk, and Popolo are singular nouns in
French, German, and Italian) or as a plural, that is, as a single entity or as
“everybody.” And, clearly, it is only the latter notion that calls for legitimacy
ascertained by means of reliable procedures; for “the people” conceived as an entity,
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or as an organic whole, easily combines with a legitimacy assumed on the sole basis
of acclamations and plebiscitary approbations.3
Aristotle wrote in the Metaphysics, “All human beings by nature desire to know.”
A life deprived of adequate access to information and knowledge is a seriously
impoverished life. Secondly, knowledge is not only good in itself; it is pragmatically
essential that persons have access to information if they are to have the capacity to
exercise their other rights.4 In this sense, knowledge is what J. Rawls
5 called a
“Primary Good,” that is, it is a good that is useful to anyone, whatever his or her plan
of life or conception of the good is. Thirdly, in order to ensure that persons effectively
exercise and protect their own rights, they need access to information.
At a time when the overarching priority for the UN and the international
community at large is achieving the Millennium Development Goals with the
difficulties of doing so become apparent; development stakeholders are broadening
the discussion as to what elements of the developmental process need to be more
widely focused on. This is evident from the rising graph of inclusions in human rights
and governance in the development agenda, which have become more widely
incorporated in the development dialogue in recent years. In this context, the
fundamental right to freedom of expression, and its corollary of freedom of
information, are pivotal to the achievement of sustainable and human development,
poverty eradication, good governance, peace and reconciliation, environmental
sustainability, and respect for human rights. The Right to Information is one of the
main human rights that protect and develop the human life. The use of the Right to
Information will be able to contribute towards solving many social and cultural
problems of the individual at the national level. But there are many pre-conditions
which are related to economical, social, cultural and political development for
realizing the right to information in a country. Unless a country has solved the main
problems like hunger, education, health, social security and political freedom, it is not
possible to realize the Right to Information.
3 . “Democracy.” International Encyclopedia of the Social Sciences (1968). Retrieved January 8,
2011 from Encyclopedia. Com: http://www.encylopedia.com/doc/1G2-3045000294.html. 4 . Aristotle, “Metaphysics: (350BC)- translated by W.D. Ross, Book I:
http://philosophhy.eserver.org/aristotle/.metaphysics.text.
5 . Rawls, J. 1971. A Theory of Justice, Oxford; Oxford University Press p.10.
19
There is a strong relationship between the Right to Information and the
development level attained by country. As a result of this factor the individuals who
live in developed countries have more possibilities of using the Right to Information
rather than the developing countries.
Four fifths of the world’s population still lives in the underdeveloped and
developing countries. It seems that these countries which are still involved in finding
solutions to their basic problems are far away from this crucial Right to Information.
Information is power for development. For this reason, the Right to Information is an
important human right. “If you have knowledge, let others light their candles with it.”
This is the philosophical underpinning of the freedom of information movement.
Freedom of information and in particular, the right of access to information held by
public bodies, has attracted a substantial attention recently. In the past several years,
many countries have taken steps to enact legislation giving effect to this right. To
protect their other rights, they need access to information.
(A)FOUNDATIONS AND GENESIS: A BRIEF OVERVIEW
The plea for freedom of speech and expression was raised for the first time in the
history of democracy by the Athenian orator Socrates (B.C. 436-386), who committed
suicide after his country was defeated and conquered by Philip of Macedom at the
Battle of Chaeronea. His immortal speech “Logos Areopagicos” was a strong plea for
restoring democracy and freedom of expression in Athens.’ It is thought that ancient
Anthen’s democratic ideology of the speech may have emerged in the late 6th
or early
5th
century BC.6 In Islamic ethics, freedom of speech was first declared in the
Rashidun period by the Caliph Umar in the 7th
century AD.7 Concepts of freedom of
speech can be found in early religious and human rights documents and the modern
concept of freedom of speech and expression emerged gradually during the European
enlightenment, e.g. Magna Carta 1215, England’s Bill of Rights 1689 etc.
The story of how the concept of Right to Information actually evolved in China
more than 1200 years ago and how it was encapsulated in legislation from the first
6 . Kumar Virendra, Don’t dilute Right to information Act, least, the Tribune on 6 August, 2006.
7 . Boisard, Marcel A. “On the Probable influence of Islam on Western Public and International
Law.” International Journal of Middle East Studies, July 1980, 11(4): p.429-50.
20
decade of the eighteenth century in Sweden is both fascinating and highly significant.
One of the most important aspects of the Swedish legislation was that it linked notions
of freedom of information, freedom of speech and transparency of government
together with the principle of a free press. These links were forged by a truly
remarkable Finnish clergyman, Anders Chydenius-a visionary who must be regarded
as the true father of freedom of information (FOI) as we understand it today. The
story of how and why Chydenius created such an important legacy appears to have
been largely overlooked in published accounts of the history of FOI. It was unravelled
through the extensive use of investigative journalism techniques, particularly those of
computer-assisted reporting. Among the many facts which emerged was an initially
surprising revelation that one strand of the evolution of FOI was deeply rooted in
seventh century China.8
Chydenius based his campaign for freedom of press and freedom of information
in a way these freedoms were exercised in pre-nationalist and pre-communist China, a
nation he described at the time as ‘the richest kingdom in the world in population and
goods’9 and ‘the model country exercising the freedom of press.’
10 Yet for all its
wealth and freedoms China, at the time Chydenius was writing pamphlets about it,
was a nation ruled by foreigners, the Manchu. Their Ch’ing (Qing) dynasty had
gained power in 1644 and it was to persist until 1911. The earlier part of the dynasty,
including the era when Chydenius introduced his FOI legislation in the Diet, was a
time when the arts, drama and literature flourished in China during the reign of the
dynasty’s most successful king, Ch’ent-lung (Qianglong), and was a phase of great
prosperity when China also made large territorial gains and its population doubled.
Taxes were low, commerce and international trade grew. Encyclopaedias and
dictionaries were published, Christian missionaries had been allowed into the country,
8 . History of China- The Imperial Era II :< http://www-chaos.umd.edu/history/imperial2.html>
[Accessed 10 November 2001].
9 . Chydenius, Anders. (1766) Berattelse Om Chinesiska Shrif-Friheten, Ofversatt of Danskan (A
Report on the Freedom of the Press in China ) held by the Royal Library of Sweden,Stockholm.
10 . Chydenius’ Selected Works:
<http://www.chydenius.fi/anders/english/ACTUOEN.HTM> [Accessed 1 November 2001.]
21
the public service was educated and highly organised and the impact of the west was
being felt for the first time.11
In one pamphlet in particular, Berattelse Om Chinesiska Shrif-Frighten, Ofversatt
of Danskan (A Report on the Freedom of the Press in China), which was published in
Stockholm in 1766, Chydenius described how his interest in individual freedoms in
China dated back hundreds of years to the Tang Dynasty in the period from 618 to
907 and especially the reign of Emperor T’ai-tsung (Tai Zhong) from 627 to 649.
During his 22 years in power T’ai-tsung had restructured the Chinese government. In
the process he established an ‘Imperial Censorate’-an elite group of highly educated
‘scholar officials’12
who not only recorded official government decisions and
correspondence but who were also expected to criticise the government, including the
emperor. An institution founded in humanist Confucian philosophy, the Censorate’s
main role was to scrutinise the government and its officials and to expose
misgovernance, bureaucratic inefficiencies and official corruption. In the absence of
modern media, it often acted in the public interest performing a watchdog role besides
acting as an advocate of common people -a tradition that continued till the end of the
Ch’ing Dynasty in 191113
. Chydenius explained how citizens with a grievance against
the government were encouraged to literally ‘beat the drum, to be heard’ in the
emperor’s ‘castle’ during the Tang dynasty and how they were ‘given the assurance
that nothing would be taken in a wrong way’.14
He explained that emperors were
expected to ‘admit their own imperfection as a proof of their love for the truth in fear
of ignorance and darkness’.15
Fortunately, while Chydenius obviously could not draw on early Chinese society
for an exact model of his FOI legislation, there is absolutely no doubt that he was
inspired by the precedent of the Imperil Chinese Censorate and its relationship to
11
. Ch’ing Dynasty:< http://emuseum.mnsu.edu/prehistory/china/later imperial china/Ch’ing.html>
[Accessed 27 October 2001.]
12 . The Chinese Scholar Official: <http://afe.easia.columbia.edu/teachingaids/china/lit/scholar. htm>
[Accessed 11 December 2001.]
13 . History of China-The Imperial Era II:<http://www-chaos.umd.edu/history/imperial2.html>
[Accessed 10 December 2001.]
14 . Chydenius, Anders. (1766) Berattelse Om Chinesiska Skrif-Friheten, Ofversatt of Danskan (A
Report on the Freedom of the Press in China) held by the Royal Library of Sweden, Stockholm.
15 . Ibid.
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human rights, individual freedoms and transparency of government. It is also
remarkable that he perceived the links between the Censorate, FOI and notions of a
free press-or, in the latter case, of a total absence of press controls in China which he
wrote about.
In 1765 he joined the Swedish (and Finnish) parliament, the Diet, in Stockholm
as a representative of the clergy from his region. A classical liberal and a radical
reformist proponent of free trade, he continued publishing extensively. His most
widely acclaimed work, Den nationale vinsten (The National Profit), which supported
absolute free trade in the domestic Swedish economy, was published in 1765. It is a
document still regarded as so profound and of such lasting impact that Chydenius is
now recognised as being not only far ahead of his time politically as ‘a forerunner of
modern democracy,’16
but also socially and economically as ‘a Finnish predecessor to
Adam Smith.’17
In1765, for example, he reportedly caused a sensation in the Swedish parliament
when he first talked about hitherto unheard-of democratic reforms. His main
arguments were that deeply ingrained restrictions on trade and occupations should be
abolished, censorship lifted, freedom of press and freedom of information should be
‘rights’ and society should operate on the principles of personal freedom and
responsibility for one’s own life.18
Chydenius and other radicals saw the necessity of improving the political
competence of a broad cross-section of the population, consequently adopting the
notion of freedom of the press with great zeal. Chydenius’ memorandum on this
matter in 1765 was signed by an elderly representative of the clergy. Furthermore, the
radical succeeded in making Chydenius a member of a parliamentary committee
16
. Project Runeberg: Anders Chydenius:<http://www.lysator.liu.se/runeberg/authors/chyden.html>
[Accessed 2 November 2001].
17. Anders Chydenius (1729-1805): A Short Biography:<http://www.chydenius.fi/anders/english/
ACSHORTX.HTM> [Accessed 1 November 2001]
18 . Project Runeberg:Anders Chydenius: <http://www.lysator.liu.se/runeberg/authors/chyden.html>
[Accessed 2 November, 2001.]
23
dealing with the freedom of press issue, and he became its most outspoken member in
the winter session of 1765-66.19
The conservatives in spite of being a majority in the committee were extremely
lazy so far as participation in the meetings was concerned so much so that, the
freedom of press supporters could handle the planning stage almost by themselves.
Most of the work was done by Chydenius, with enormous industry and competence.
The conservatives could not find tenable arguments against him in the big deputation
revising the committee report. In its final recommendation in spring of 1766 the
freedom of press committee suggested abolishing censorship on other than religious
articles, which would be subject to cathedral chapter control. The committee also
suggested giving the public free access to all official documents as well as
parliamentary committee reports and records. The conservatives did not succeed in
voting these propositions down. In autumn of 1766 the parliamentary majority
approved the propositions. Thus, the Freedom-of-Press and the Right-of-Access to
Public Records Act came into force at the end of the year, and Sweden had acquired
the most progressive freedom-of-the-press law in the world.20
Chydenius was later reported as saying he believed that the passing of the
Freedom-of-Press and the Right-of-Access to Public Records Act 1966 was one of his
greatest achievements.21
The Act granted all citizens the right of access to all
government-held documents. It required that official documents should ‘upon request
immediately be made available to anyone making a request’ at no charge. Thus, FOI
officially find its roots in Sweden22
. In the same year it ratified the FOI statute and the
Swedish parliament also passed legislation establishing the position and defining the
role of the world’s first parliamentary ombudsman.23
19
. Anders Chydenius (1729-1805): The National Biography Finland, Finnish Historical Society:
<http://haku.kansallisbiografia.fi/[Accessed 4 November 2001.]
20 . Anders Chydenius (1729-1805): The National Biography Finland, Finnish Historical Society:
<http://haku.kansallisbiografia.fi/[Accessed 4 November 2001.]
21 . Ibid.
22 . Banisar, David. (2001) Freedom of Information and Access to Government Records Around the
World: <http://www.privacyinternational.org/issues/foia/FOI survey3.01.pdf> [Accessed 2
November 2001.]
23 . The Riksdag in Swedish Society:
<http://www.riksdagen.se/english/society/fundamental/introduction/introduction.asp>[Accessed 5
October, 2001].
24
The next nation after Sweden to adopt FOI legislation, the South American
Republic of Colombia, has had a starkly contrasting record of political instability and
a shocking record of human rights abuses in most of its history.24
Its FOI statute, the
Code of Political and Municipal Organisation of 1888 provided for access to
government records. It was adopted after a reformist liberal constitution was endorsed
in 1886. 25
That Constitution was to go on and become the oldest surviving
Constitution in Latin America and was not fully revised until 1999. 26
Access to
documents under the 1888 code was available to individual who could ‘request
documents held by government agencies and archives, unless it was specifically
forbidden by another law.’ 27
The current Colombian Constitution even today contains
a ‘right’ of access to government-held information. The wording of the relevant
current law, which was approved in 1985, bears a remarkable similarity to the 1881
legislation with the Inter American Press Association reporting that the right to FOI in
Colombia is currently regulated by an administrative code which says:
“As a general principle, there shall be free access to official documents and these
shall be considered as classified only if so provided by specific laws”.28
The third nation to introduce, or in a sense re-introduce, its own freedom of
information laws appears to have been none other than Finland. It had been split from
Sweden in 1809 as a result of the Napoleonic wars and became an autonomous Grand
Duchy of Russia. However Finland declared itself independent in 1917. It was
wrecked by civil war in 191829
. After the war was over; Finland elected its first
President and officially became a republic in 1919. In doing so it passed a
Constitution Act which was modelled to a large extent on Sweden’s system of
24
. International Freedom of Information Laws [University of Missouri]
<http://web.missouri.edu/~foiwww/intlfoi.html> [Accessed 12 October, 2001].
25 . History of Colombia: <http://www.emulateme.com/history/colomhist.html> [Accessed 9
November, 2001].
26 Columbia Index:<http://www.uni-wuerzburg.de/law/co indx.html> [Accessed 11 November
2001].
27 . Banisar, David. (2001) Freedom of Information and Access to Government Records Around the
World: <httpo://www.privacyinternational.org/issues/foia/FOI Survey 3.01.pdf> [Accessed 2
November 2001.]
28 . Press Laws Database: <http://www.sipiapa.org/projects/laws-col14.cfm> [Accessed 10 November
2001].
29 . Virtual Finland: <http://virtual.finland.fi/finfo/english/histeng.html>[Accessed 24 October
2001.].
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fundamental rights. The legislation included a Finnish version of Sweden’s Freedom
of the Press Act, which also codified freedom of access to government-held
information, and provided for the appointment of an ombudsman.30
The Finnish FOI
legislation was revised in its Publicity of Documents Act 1951, and again in 1999 in
the Act on the Openness of Government Activities which states, in part:
The objectives of the right of access and the duties of the
authorities provided in this Act are to promote openness and
good practice on information management in government,
and to provider private individuals and corporations with an
opportunity to monitor the exercise of public authority and
the use of public resources, to freely form an opinion, to
influence the exercise of public authority, and to protect
their rights and interests.31
Then came freedom of information in the United States. However, its first FOI
legislation was not as is widely reported, the Freedom of Information Act of 1966.
Neither was it FOI legislation in various states of the republic. In fact there was
important precursor legislation in the United States just as there had been in Sweden
and Finland. In the same way that the 1707 statute in Sweden and Finland had
required record to be archived, the United States Congress passed the Administrative
Procedure Act of 1946 which, for the first time, made it mandatory for all federal
agencies in that nation ‘to keep and maintain records which were to be open to
inspection by the public.’ Around the same time the idea of freedom of information
was being heavily promoted by United States newspaper interests. In May 1946, the
United States delegation to the United Nations persuaded the Commission on Human
Rights to create a sub-commission on FOI. The United Nations General Assembly
subsequently called an international conference on FOI in Geneva in 1947/48.32
However a specific 1953 draft convention on FOI which came out of the Geneva
30 . Office of the Ombudsman: <http://www.irlgov.ie./ombudsman/515/21ee.html>[Accessed 11
November, 2001].
31 . Act on the Openness of Government Activities:<http://www.om.fi/1184.html> [Accessed 10
November, 2001].
32 . FOI Draft Convention :<http://www.lib.siu.edu/cni/letter-u.html#U8> (Accessed 29
October, 2001).
26
meeting and which would have provided a benchmark and template for all nations
was later dumped. Ironically, some western journalists and editors had fought against
the proposal. They believed it would actually threaten press freedom. One of their
leaders was an Australian, Sir Lloyd Dumas. At the time he was managing director of
Advertiser Newspapers Limited, the publisher of the Adelaide Advertiser.33
A
biographical note published by the Australian National Library says Dumas was
concerned that if Australia signed the convention, too much power over the Australian
press would pass to the federal government. He argued that the convention might have
prohibited the publication of articles critical of foreign governments or it could have
ensured that foreign governments were given an equal right of reply to any article
which offended them. The note reported that:
“As a consequence, Dumas became very active in
opposition to the draft Convention. He liaised with members
of the Commonwealth Press Union, the American Society of
Editors and the International Press Institute and was
ultimately instrumental in the abandonment of the
Convention.”34
After the United States, Freedom of Information Act became law on 4th
July
1966- Independence Day- pressure intensified on governments around the world to
allow their citizens similar rights. Research indicates that the next nation after the
United States to adopt a form of specific FOI law was Denmark in 1970 followed by
Norway in 1971 and France in 1978. (On a sub-national level, the provincial
government in Nova Scotia, Canada had enacted legislation in 1977). The former
British dominions of Australia, Canada and New Zealand also enacted their own
national legislation in 1982, although statutes in Canada and New Zealand did not
actually pass into law until 1983. Then came laws in Austria and the Philippines
which came into effect in 1987; Brazil 1988; Italy 1990; the Netherlands 1991;
Hungary 1992, Portugal 1993; Belize (formerly British Honduras) 1994; Hong Kong
and Russia 1995; Iceland, Lithuania and South Korea 1996; Thailand and the Ukraine
1997; Ireland, Israel and Latvia 1998 and the Czech Republic 1999. South Africa
33 . Dumas, Lloyd: <http://www.nla.gov.au/ms/findaids/4849.html> [Accessed 28 November 2001].
34 . Dumas, Lloyd: <http://www.nla.gov.au/ms/findaids/4849.html> [Accessed 28 November 2001].
27
enacted legislation in 2000 but it did not pass into law until March 2001. In the United
Kingdom, that nation’s first ‘proper’ FOI legislation, its Freedom of Information Act
2000, received royal assent on 30th
November 2000 (but its provisions were phased in
and were not fully operational until 2005).35
In the rest of the countries of the world, there are moves to pass such legislation.
Thus, the right to freedom of information has both long as well as a very recent
history. Although law goes back to the Swedish Act of 1766, the majority of the
world’s FOI laws were adopted in the past 20 years, in 1990 there were just 12 laws,
while today there are over 80 such laws.
(B) International Standards
The “first generation” or ‘first dimension’ of human rights, include the Civil and
Political rights. Civil and Political rights are the most important and lasting
achievements of revolutions in the late 18th
century and of Bourgeois revolutions in
the 18th
and 20th
centuries. Typical examples of Political rights are the rights to vote,
to equal access to public service and to take part in the government of one’s country.
Civil rights are somewhat more complex and range from the protection of the
individual’s physical, spiritual, legal and economic existence via classical freedom
rights to highly detail procedural safeguards relating to fair trial and the rule of law in
general. The category of ‘Political freedoms’is a concept out of which right to
freedom of information serves both concepts of democratic and liberal freedom and
thereby constitutes the link between civil and political rights.36
(Today) Based on John Stuart Mill’s arguments, freedom of speech and
expression is understood as a multi-faceted right that includes not only the right to
express or disseminate information and ideas but three further distinct aspects:
• The right to seek information and ideas;
• The right to receive information and ideas;
35
. Banisar, David. (2001), Freedom of Information and Access to Government Records Around the
World:
<http://www.privacyinternational.org/issues/foia/FOPISurvey3.01 pdf> [Accessed 2 November
2001.]
36 . Satya P. Kanan, Encyclopaedia of Human Rights and Social justice. Vol. 2, 2006. P.380.
28
• The right to impart information and ideas;37
Today, there is a growing recognition of freedom of information as a human right
at the international, national and regional levels.
(a) The United Nations:- The United Nations Charter, which is a multilateral
treaty and therefore creates legal obligations for all UN member states, contains a
number of provisions concerning human rights. The Preamble states the determination
of the people of the UN ‘to reaffirm faith in fundamental human rights, in the dignity
and worth of the human beings, in the equal rights of men and women and of nations
large and small,’ and Article 1(3) includes as one of the purposes of the UN
‘promoting and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion.’ Moreover, under
Chapter XI of the Charter, which is titled ‘International Economic and Social
Cooperation,’ Article 55 provides that the UN ‘shall promote universal respect for and
observance of human rights and fundamental freedoms for all without distinction as to
race, sex, language, or religion.’ This is further buttressed by Article 56 by virtue of
which all members pledge themselves to take joint and separate action for the
achievement of the purposes set forth in Article 56.38
There are bewildering number of institutions and supervisory systems
established within the framework of the UN, which recognised right to freedom
of Information as a fundamental right. In 1946, during its first session, the UN
General Assembly adopted Resolution 59(1), which stated:
“Freedom of information is a fundamental human right
and... The touchstone of all the freedoms to which the UN is
consecrated”.39
In ensuing international human rights instruments, freedom of information was
not set out separately but as part of the fundamental right of freedom of expression,
which includes the right to seek, receive and impart information.
37
. Andrew Puddephatt, Freedom of Expression, The essentials of Human Rights, Hodder
Arnold, 2005, pg.128.
38 . Satya P Kanan : Encyclopedia of Human Rights and Social Justice, Vol. 1, 2006. P.255.
39. 14 December 1946.
29
The Universal Declaration of Human Rights (UDHR), adopted by the United
Nations General Assembly in 1948, 10th
December.40
is generally considered to be
the flagship statement of international human rights. Article 19, binding on all States
as a matter of customary international law, guarantees the right to freedom of
expression and information in the following terms: Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media
and regardless of frontiers.
The International Covenant on Civil and Political Rights (ICCPR), a legally
binding treaty, was adopted by the UN General Assembly in 196641
and, as of
December 2002, had been ratified by some 149 states. The corresponding provision in
this treaty, also Article 19, guarantees the right to freedom of opinion and expression
in very similar terms as enshrined in the UDHR. In 1993, the UN Commission on
Human Rights42
established the office of the UN Special Rapporteur on Freedom of
Opinion and Expression.43
Part of the Special Rapporteur mandate is to clarify the
precise content of the right to freedom of opinion and expression and he has addressed
the issue of freedom of information in each of his annual reports since 1997. After
receiving his commentary on the subject in 1997, the Commission called on the
Special Rapporteur to "develop further his commentary on the right to seek and
receive information and to expand on his observations and recommendations arising
from communications."44
In his 1998 Annual Report, the Special Rapporteur stated clearly that the right to
freedom of expression includes the right to access information held by the State: "The
right to seek, receive and impart information, imposes a positive obligation on States
to ensure access to information, particularly with regard to information held by
40
. Resolution 217 A (III), 10 December 1948.
41 . Resolution 2200 A (XXI), 16 December, 1966, entered into force 23 March, 1976.
42. The Commission was established by the UN Economic and Social Council (ECOSOC) in 1946 to
promote human rights and is composed of 53 representatives of the UN Member States, rotating
on a three-year basis.
43 . Resolution 1993/45, 5 March 1993.
44 . 14 Resolution 1997/27, 11 April 1997, para. 12(d).
30
government in all types of storage and retrieval systems. …"45
His views were
welcomed by the Commission.46
In November 1999, the three special mandates on freedom of expression - the UN
Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative
on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression
- came together for the first time under the auspices of the human rights NGOs,
ARTICLE 19, Global Campaign for Free Expression. They adopted a Joint
Declaration which included the following statement:
“Implicit in freedom of expression is the public's right to
open access to information and to know what governments
are doing on their behalf, without which truth would
languish and people's participation in government would
remain fragmented”.47
The UN Special Rapporteur significantly expanded his commentary on freedom
of information in his 2000 Annual Report to the Commission, noting its fundamental
importance not only to democracy and freedom, but also to the right to participate and
to realization of the right to development.48
He also reiterated his "concern about the
tendency of governments, and the institutions of government, to withhold from the
people information that is rightly theirs".49
Importantly, at the same time, the Special
Rapporteur elaborated in detail on the specific content of the Right to Information.50
45
. Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion
and expression, UN Dec. E/CN4/1998/40, 28 January 1998, para. 14.
46 . Resolution 1998/42, 17 April, 1998, para 2.
47. 26 November 1999.
48 . Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion
and expression, UN Doc. E/CN4/2000/63, 18 January, 2000, para.42.
49 . Ibid, para.43.
50 . Ibid, para, 44.
31
(b) United Nations Convention against Corruption
The UN Convention on Anti-corruption was approved by the General Assembly
in October 2003 and adopted in December 2005 after it was ratified by 30 countries.51
Article 10 of the Convention on “Public reporting” encourages countries to adopt
measures to improve public access to information as a means to fight corruption:
Taking into account the need to combat corruption, each state party shall, in
accordance with the fundamental principles of its domestic law, take such measures as
may be necessary to enhance transparency in its public administration, including its
organisation, functioning and decision-making processes, where appropriate. Such
measures may include, inter alia:
(a) Adopting procedures or regulations allowing members of the general public to
obtain, where appropriate, information on the organization, functioning and
decision-making, personal data, on decisions and legal acts that concern
members of the public;
(b) Simplifying administrative procedures, where appropriate, in order to facilitate
public access to the competent decision-making authorities; and
(c) Publishing information which may include periodic reports on the risks of
corruption in its public administration.
In addition, Article 13 on “Participation of society” states:
“Each state party shall take appropriate measures, within
its means and in accordance with fundamental principles
of its domestic law, to promote the active participation of
individuals and groups outside the public sector, such as
civil society, non-governmental organisations and
community-based organisations, in the prevention of and the
fight against corruption and to raise public awareness
regarding the existence, causes and gravity of and the threat
posed by corruption.”
51
. UN Convention Against Corruption. :<http: // www. unodc. org/ unodc / en/
crime_convention_corruption.html.
32
This participation should be strengthened by such measures as:
(a) Enhancing the transparency of and promoting the contribution of the
public to decision making processes;
(b) Ensuring that the public has effective access to information;
As of the writing of this report, the Convention has been signed by 140 countries
and ratified by over 60.52
Over 20 of these countries have also adopted national
freedom of information laws.
(c)Rio Declaration (UNECE Convention) on Access to Environmental
Information
At the 1992 UN Conference on Environment and Development (the Earth
Summit), the Rio Declaration on Environment and Development called on nations to
adopt improved access to information and participation. Principle 10 states:
“Environmental issues are best handled with the
participation of all concerned citizens, at the relevant level.
At the national level, each individual shall have appropriate
access to information concerning the environment that is
held by public authorities, including information on
hazardous materials and activities in their communities, and
the opportunity to participate in decision-making processes.
States shall facilitate an encourage public awareness and
participation by making information widely available.
Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided”.53
Starting in 1991, the UN Economic Commission on Europe (UNECE) began
work on promoting access to environmental information and participation. The
UNECE Convention on Access to Information, Public Participation in Decision-
52
. <http://www.unodc.org/unodc/en/crime_signatures_corruption.html.
53 . Report of the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission resolution
1999/36 United Nations Commission on Human Rights Fifty-sixth session E/CN.4/2000/63 18
January 2000.
33
making and Access to Justice in Environmental Matters (or Arhus Convention) was
approved in June 1998 and came into force in October 2001.54
Article 4 of the Convention requires governments to adopt and implement laws
allowing citizens to demand information (including documents) about the
environment from government bodies. Environmental information includes details on
the state of elements of the environment, factors that could affect the state of the
environment, and the state of human health and safety, conditions of human life,
cultural sites and structures that are affected by the environment.
The Convention has been signed by 44 countries and ratified or acceded by 37. It
has been a driving force in many countries to adopt a FOI laws, 36 countries, thus, so
far have adopted comprehensive laws. In addition the European Union has
incorporated it as a Directive that applies to all member states.
(d)International Convention on the Elimination of all forms of Racial
Discrimination, 1966.
Under Article 7 it directs the state parties to undertake to adopt immediate and
effective measures, particularly in the fields of teaching, education, culture and
information, with a view to combating prejudices which lead to racial discrimination
and to promoting understanding, tolerance and friendship among nations and racial or
ethnical groups, as well as to propagate the purposes and principles of the charter of
the United Nations, the Universal Declaration of Human Rights, and this
convention.55
(e)Rome Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950. Under Article 10, it lays down as:
“Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
54
. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the Osco
Representative on Freedom of Expression, 6 December, 2004.
55 . Opened for signature at New York, dated 7 March, 1996.
34
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.” 56
(C) Regional Standards
The right to access public information is the right of every person to know the
information he or she needs to make free choices and to live an autonomous life. The
right to access information held by the State is regulated in several International
Human Rights Treaties establishing the right of every person to freedom of opinion
and expression, including the right to seek, receive and impart information and ideas.
Its practical application underpins two distinctive principles of a democratic
republican system of government: the publicity of acts and the transparency of public
administration. In this context, information is a tool of democratic control over State
institutions, intimately linked to the concept of participatory democracy and respect
for fundamental rights. The various regional trends include:-
(a) The Commonwealth: The commonwealth has taken important concrete steps
during the last decade to recognise human rights and democracy as fundamental
components in the system of shared values which underpin the organisation. In 1991,
it adopted the Harare Commonwealth Declaration which enshrined its fundamental
political values, including respect for human rights and the individual’s inalienable
democratic right to participate in framing his or her society.57
The importance of freedom of information, including the right to access
information held by the State, has been recognised by the Commonwealth for more
than two decades. In 1980, the Law Ministers of the Commonwealth, meeting in
Barbados, stated “Public participation in the democratic and governmental process
was at its most meaningful when citizens had adequate access to official
information.”58
56
. Held at Rome, 4th
November, 1950, came into form on 3rd
Sept, 1953.
57 Decision of the High Representative, Decisions on the restructuring of the Public Broadcasting
System in BIH and on freedom of information an decriminalisation of libel and defamation, 30
July.
58 . The Freedom of Access to Information Act was adopted by the Bonia and Herzegovina State
government in October 2000, by the Republika Srpska Government in May 2001, and by the
Government of the Bosnia and Herzegovina Federation in June 2001.
35
More recently, the Commonwealth has taken a number of significant steps to
elaborate on the content of that right. In March 1999, the Commonwealth Secretariat
brought together a Commonwealth Expert Group to discuss the issue of freedom of
information. The Expert group adopted a document setting out a number of principles
and guidelines on the right to know and freedom of information as a human right,
including the following:
Freedom of information should be guaranteed as a legal
and enforceable right permitting every individual to obtain
records and information held by the executive, the
legislative and the judicial arms of the state, as well as any
government owned corporation and any other body carrying
out public function.59
These principles and guidelines were adopted by the Commonwealth Law
Ministers at their May 1999 meeting in Port of Spain, Trinidad and Tobago. The
Ministers formulated the following principles on freedom of information:
1. Member countries should be encouraged to regard freedom of information as a
legal and enforceable right.
2. There should be a presumption in favour of disclosure and governments should
promote a culture of openness.
3. The right of access to information may be subject to limited exemptions but
these should be narrowly drawn.
4. Governments should maintain and preserve records.
5. In principle, decisions to refuse access to records and information should be
subject to independent review.60
The Law Ministers also called on the Commonwealth Secretariat to take steps to
promote these principles, including by assisting governments through technical
assistance and sharing of experiences.
59
. Quoted in Promoting Open Government: Commonwealth Principles and Guidelines on the Right
to Know; background paper for the Commonwealth Expert Group Meeting on the Right to Know
and the Promotion of Democracy and Development (London: 30,31 March 1999).
60 . Communiqué, Meeting of Commonwealth Law Ministers (Port of Spain: 10 May 1999).
36
(a) Organization of American States
Article 13 of the American Convention on Human Rights (ACHR),61
a legally
binding treaty, guarantees freedom of expression in terms similar to, and even
stronger than, the UN instruments. In a 1985 Advisory Opinion, the Inter-American
Court of Human Rights, interpreting Article 13, recognised freedom of information as
a fundamental human right, as important to a free society as freedom of expression.
The Court explained:
Article 13......establishes that those to whom the Convention
applies not only have the right and freedom to express their
own thoughts but also the right and freedom to seek, receive
and impart information and ideas of all kinds........62
.
[Freedom of expression] requires, on the one hand, that no
one be arbitrarily limited or impeded in expressing his own
thoughts. In that sense, it is a right that belongs to each
individual. Its second aspect, on the other hand, implies a
collective right to receive any information whatsoever and
to have access to the thoughts expressed by others.63
The Court also stated:
For the average citizen it is just as important to know
the opinions of others or to have access to information
generally as is the very right to impart his own opinion,”
concluding that “a society is truly free.64
In 1994, the Inter-American Press Association, a regional NGO, organised the
Hemisphere Conference on Free Speech, which adopted the Declaration of
61
. Adopted at San Jose, Costa Rica, 22 November 1969, entered into force 18 July 1978.
62 . Compulsory Membership in an association Prescribed by Law for the Practice of Journalism,
Advisory Opinion OC-5/85, 13 November 1985, para. 30.
63 . Ibid, Paras 32, 70.
64 . Decision of the High Representative, Decisions on the restructuring of the Public Broadcasting
System in BIH and on freedom of information an decriminalisation of libel and defamation, 30
July .
37
Chapultepec, a set of principles on freedom of expression.65
The principles explicitly
recognise freedom of information as a fundamental right, which includes the right to
access information held by public bodies:
1. Every person has the right to seek and receive information, express opinions and
disseminate them freely. No one may restrict or deny these rights.
2. The authorities must be compelled by law to make available in a timely and
reasonable manner the information generated by the public sector....
Although the Declaration of Chapultepec originally had no formal legal status, as
Dr Santiago Canton noted when he was OAS Special Rapporteur for Freedom of
Expression, “yet it is receiving growing recognition among all social sectors of our
hemisphere and is becoming a major point of reference in the area of freedom of
expression.”66
Till date, the Heads of State or Governments of 22 countries in the
Americas, as well as numerous other prominent persons, have signed the
Declaration.67
The Special Rapporteur, who’s Office, was established by the Inter-American
Commission on Human Rights in 1997,68
has frequently recognised that freedom of
information is fundamental right, which includes the right to access information held
by public bodies. In his 1999 Annual Report to the Commission, he stated:
The right to access to official information is one of the
corner-stones of representative democracy. In a
representative system of government, the representatives
should respond to the people who entrusted them with their
representation and the authority to make decisions on public
65
. The Freedom of Access to Information Act was adopted by the Bosnia and Herzegovina State
government in October 2000, by the Republika Srpska Government in May 2001, and by the
Government of the Bosnia and Herzegovina Federation in June 2001.
66 . Mexico City, 11 March 1994.
67 . Annual Report of the Inter-American Commission on Human Rights 1998, Volume III, Report of
the Office of the Special Rapporteur for Freedom of Expression, 16 April 1999,
OEA/Ser.L/V/II.102, Doc. 6 rev., Chapter III.
68 . The countries are Argentina, Bolvia, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican
Republic, Ecuador, El Salvador, grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua,
Panama, Paraguay, Peru, Puerto Rico, Uruguay and the United States of America.
38
matters. It is to the individual who delegated the
administration of public affairs to his or her representatives
that the right to information belongs to and it is this
information that the State uses and produces with taxpayer
money.69
In October 2000, in an important development, the Commission approved the
Inter-American Declaration of Principles on Freedom of Expression,70
which is the
most comprehensive official document till date on freedom of expression in the Inter-
American system. The Preamble of this document reaffirms the aforementioned
statements on freedom of information:
CONVINCED that guaranteeing the right to access to
information held by the State will ensure greater
transparency and accountability of government activities
and the strengthening of democratic institutions....
The principles unequivocally recognise the freedom of information, including the
right to access information:
1. Every person has the right to access information about himself or herself or
his/her assets expeditiously and not onerously, whether it be contained in
databases or public or private registries, and if necessary to update it, correct it
and/or amend it.
2. Access to information held by the state is a fundamental right of every individual.
States have obligations to guarantee the unrestricted exercise of this right. This
principle allows only exceptional limitations that must be previously established
by law in case of a real and imminent danger that threatens national security in
democratic societies.
It is, therefore, clear that in Inter-American system, freedom of information is
protected as a human right.
69
. IACHR Press Release No. 2/98, 6 March 1998, paras 14-15.
70 . Supra Note 34, p. 24.
39
(b) Council of Europe
Primarily the European system, for protecting human rights is composed of two
major treaties: the European Convention on Human Right and Fundamental Freedoms
(ECHR) and the European Social Charter (ESC). The ECHR, which is focused upon
the protection of civil and political rights, was adopted in 1950 and came into force in
1953. It is thus the oldest specific human rights instrument in existence, its
enforcement into force pre-dating the ICCPR by more than twenty years. The ESC,
which covers the implementation of economic and social ‘rights and principles,’ was
adopted in 1961 and came into force in 1965. Both Conventions were drafted under
the auspices of the Council of Europe, an inter-governmental organization of 25
European states, the function of which is to facilitate European cooperation across a
broad range of subjects.
The Council of Europe (COE) is an intergovernmental organisation, composed of
43 member states. It is devoted to promoting human rights, education and culture.
One of its foundational documents is the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR),71
which guarantees freedom of
expression and information as a fundamental human right in Article 10. Article 10
differs slightly from guarantees found in Articles 19 of the UDHR and ICCPR, and
article 13 of the ACHR, in that it protects the right to “receive and impart,” but not the
right to “seek,” information.
The political bodies of the Council of Europe have made important moves
towards recognising the right to freedom of information as a fundamental human
right. In 1981, the Committee of Ministers, the political decision-making body of the
Council of Europe (composed of Member States’, Ministers of Foreign Affairs)
adopted Recommendation No. R (81)19 on access to information held by public
authorities, which stated:
Everyone within the jurisdiction of a member state shall
have the right to obtain, on request, information held by the
71
. 108th
regular session, 19 October 2000.
40
public authorities other than legislative bodies and judicial
authorities.....72
In 1994, the 4th
European Ministerial Conference on Mass Media Policy adopted
a Declaration recommending that the Committee of Ministers consider “preparing a
binding legal instrument or other measures embodying basic principles on the right of
access of the public to information held by public authorities.73
Instead, the
Committee of Ministers opted for a Recommendation on access to official documents,
adopted on 21 February 2002.74
The Recommendation provides for a general
guarantee of the right to access official documents, noted below, as well as specific
guidance on how this right should be guaranteed in practice:
General principle on access to official documents member
states should guarantee the right of everyone to have access,
on request, to official documents held by public authorities.
This principle should apply without discrimination on any
ground, including national origin.
(c) African Union
The African Charter, sometimes known as the Banjul Charter after the capital of
the Gambia where it was drafted, is the most recent of the regional human rights
instruments to come into force. It was adopted at the Eighteenth Assembly of Heads
of State and Governments of the Organization of African Unity (OAU) in Nairobi,
Kenya in June 1981 and came into force on 21st October 1986. As we shall see, the
Charter differs considerably from its other regional counterparts, both in the catalogue
of rights protected and in the means of implementation and protection. This is not
surprising. Since it was drafted to take account of African culture and legal
philosophy, and is specifically directed towards African needs, indeed, the Preamble
to the Charter speaks of the virtue of the [member states] historical tradition and the
values of African civilization which should inspire and characterize their reflection on
the concept of human and people’s right.
72
. 25 November 1981, p.2.
73. Declaration on Media in a Democratic Society, DH-MM (95) 4, 7-8 December 1994, Para, 16.
74 . R (2002)2.
41
Developments on freedom of information at the African Union have been more
modest. However, the African Commission on Human and People’s Rights adopted a
Declaration of Principles on Freedom of Expression in Africa at its 32nd
Session in
October 2002.75
The Declaration clearly endorses the right to access information held
by public bodies, stating:
1. Public bodies hold information not for themselves but as custodians of the
public good and everyone has a right to access the information, subject only to
clearly defined rules established by law.
2. The right to information shall be guaranteed by law in accordance with the
following principles:
– Everyone has the right to access information held by private bodies which is
necessary for the exercise or protection of any right.
– Everyone has the right to access information held by private bodies which is
necessary for the exercise or protection of any right;
– Any refusal to disclose information shall be subject to appeal to an independent
body and/or the courts;
– Public bodies shall be required, even in the absence of a request, actively to
publish important information of significant public interest;
– No one shall be subject to any sanction for releasing in good faith information
on wrongdoing, or that which would disclose a serious threat to health, safety
or the environment save where the imposition of sanctions serves a legitimate
interest and is necessary in a democratic society; and
– Secrecy laws shall be amended as necessary to comply with freedom of
information principles.
3. Everyone has the right to access and update or otherwise correct their
personal information, whether it is held by public or by private bodies.
75
. 32nd
Ordinary Session of the African Commission on Human and people’s Rights, 17-23 October
2002, Banjul, The Gambia.
42
(d) Chapultepec Declaration
The Chapultepec Declaration was adopted by the Hemisphere Conference on
Free Speech in Mexico City in March 1994.76
It calls for the expression as essential
for democracy and a free society.
The authorities must be compelled by law to make available in a timely and
reasonable manner the information generated by the public sector.
The Declaration has been signed by the leaders of 29 nations and 3 territories. A
dozen of these countries have adopted FOI laws.
(e) Arab charter on Human Rights
The Arab Charter on Human Rights was adopted at the Summit Meeting of
Heads of State of the Members of the League of Arab States at their meeting in
Tunisia in May 2004.77
It replaces the 1994 Charter which did not come into force
because it was not ratified by any of the member countries.
The new Charter has been hailed by observers including the UN Human Rights
Commission as a significant improvement over the 1994 version. It significantly
amends the traditional free speech rights found in the UN Declaration on Human
Rights to include a somewhat more specific Right of Information. Article 32 states:
(a) The present Charter guarantees the right to information and to freedom of
opinion and expression, as well as the right to seek, receive and impart
information and ideas through media, regardless of frontiers.
(b) Such rights and freedoms shall be exercised in conformity with the
fundamental values of society and shall be subject only to such limitations as
are required to ensure respect for the rights or reputation of others or the
protection of national security, public order and public health or morals.
76
. Chapultepec Declaration, 1994.
http://www.declarationdechapultepec.org/english/declaration_chapultepec.htm.
77 . Final text available at 12 Intl Human Rights Reps 893, 2005. See Mervat Rishmawi, The Revised
Arab Charter on Human Rights: A Step forward? 5 Human Rights Law Review 361-376, 2005.
43
The Charter has been signed by several countries but has not yet received the
required seven ratifications to come into force.
(f) Commonwealth of Independent States (CIS)
The Commonwealth of Independent States is an association of 12 countries that were
previously Soviet Republics.78
The CIS Parliamentary Assembly has developed model
bills on freedom of information, information protection, state secrets and access to
environmental information.79
(g) ADB-OECD Anti-Corruption Initiative for Asia-Pacific
The Asian Development Bank and the Organisation for Economic Cooperation
and Development (OECD) have created an Anti-Corruption Initiative for Asia-Pacific
which has been agreed to by many of the countries in the region. The initiative has
adopted an ‘Action Plan for Asia Pacific’ which has been agreed to by 25 countries
but is not binding.80
The principles include a number of specific recommendations to improve
transparency including “Implementation of measures providing for a meaningful
public right to promote good governance and fight corruption. At least 80 countries
have adopted constitutional provisions that provide for a right of access to
information. Nearly 70 countries around the world have adopted national laws on
freedom of information and efforts are pending in about another fifty countries.
Thus, the importance of the right to freedom of information held by public
bodies, sometimes referred to as the “right to know”, has been recognised in Sweden
for over 200 years. However, over the last twenty years it has gained widespread
recognition in all regions of the world. This is reflected in authoritative statements
signalling the importance of this right by a number of international bodies, including
various UN actors and all three regional human rights systems, in specific guarantees
for this right in many of the new Constitutions adopted in countries undergoing
78
. Communique issued by the Meeting of Commonwealth Law Ministers at the Port of
Spain,Trinidad and Tobagop, May 1999.
79 . Commonwealth Secretariat, Freedom of Information Model Bill, May 2003.
http://www.cpahq.org/Commonwealth FOI Act_pdf_media_public.aspx.
80 . Homepage:http://www.cis.minsk.by/main.aspx?uid=74
44
democratic transitions and in the passage of laws and policies giving practical effect
to this right by a rapidly growing number of countries and international organisations.
(D)INDIAN PERSPECTIVE
Initially, the right to freedom of information held by the state evolved from
administrative law, which attempts to redress the imbalance of power between the
individual and the state. James Michael explains these developments in the following
terms:-
Most “Freedom of Information” statutes evolved from
administrative law. There was first established a basic rule
that government is subject to law, and the citizens have
rights to take action against the state for breaches of the
law. A consequence of such a right is that citizens have
legally enforceable rights of access to records in the
possession of government that are relevant to their claims.
Once such a right of access is established, the next major
step is to remove the requirement that the records be
relevant to a legal claim, making the right to access a right
of citizenship or often simply a right of humanity. Therefore,
open government laws have usually developed as a step
beyond a right of access to relevant records necessary for
citizens to pursue separate legal claims against the state.
Such laws establish rights of access as a right of citizenship
attempting to redress the balance of “Information Power”
between the individual and the state.81
India, being a welfare state, it is the duty of the government to protect and
enhance the welfare of the people. It is obvious from the Constitution of India that we
81
. J. Michael, “Freedom of official information,” vol. 5:1, OSCE Office for Democratic Institutions
and Human Rights Bulletin (Winter 1996/1997), 15.
45
have adopted a democratic form of government. Where a society has chosen to accept
democracy as its creedal faith, it is elementary that the citizens ought to know what
their government is doing. The citizens have a right to decide by whom and by what
rules they shall be governed and they are entitled to call on those who can survive
without accountability and the basic postulate of accountability is that the people
should have information about the functioning of the government. It is only if people
know how government is functioning that they can fulfil the role which democracy
assigns to them and make democracy a really effective participatory democracy.
“Knowledge,” said James Madison, “will forever govern ignorance and people who
are meant to be their own governors must arm themselves with the power that
knowledge gives. A popular government without popular information or the means
for obtaining, it is but a prologue to force or tragedy or perhaps both.” The citizen’s
right to know the facts, the true facts, about the administration of the country, is thus,
one of the pillars of a democratic state. And that is why the demand for openness in
the government is increasingly growing in different parts of the world.82
To intensify the process of paradigm shift from state centric to citizen centric
model of development the Right to Information movement in India came into
existence in 1990s by resolving a major contradiction between the Colonial Acts,
which prevented access to information and the post-independent Indian Constitution,
which recognizes the seeking of information as a fundamental right to promote
transparent, accountable, responsible, participatory and decentralized democracy.
The battle for appropriate legislation for the Right to Information has been fought
on two main planks. The first is a demand for amendment of the draconian colonial
Official Secrets Act, 1923 and the second, campaign for an effective law on the Right
to Information. The Official Secrets Act, 1923, is a replica of the erstwhile British
Official Secrets Act and deals with espionage which has the damaging “catch all”
Section 5 which makes it an offence to part with any information received in the
course of official duty, to non-officials.83
82
. S.P. Gupta V. Union of India, AIR 1982 SC 149.
83 . Mander Harsh & Joshi Abha, People’s Power for the Control of Corruption. www.chri.org.
46
During the last decade, the focus of citizen’s groups has shifted from demanding
merely an amendment to the Official Secrets Act, to the demand for its outright
repeal, and its replacement by a comprehensive legislation, which would make
disclosure the duty and secrecy the offence and its replacement by a comprehensive
offence.
As a result of grassroots movement for the Right to Information to combat the
corruption, have well informed citizens and to promote the good governance, the state
has responded in the form of Right to information Act - 2005.
(i) HISTORICAL DEVELOPMENT
Historically, the Right to Information is a multi dimensional concept. It not only
relates to civil and political freedoms, but also means autonomy (Swaraj), good
governance, people’s participation, effective management and harmony in all spheres
of life-political, economic, social, cultural, spiritual and moral.
In India ever since the beginning of society its affairs were regulated not by the
laws of state but customary rules or dharma. Dharma is what holds together, or a
bunch of duties for the harmonious functioning of the various divisions of the society.
The inculcation of the spirit of Dharma shall provide high standards of ethics, clear
cut codes of behaviour and a widespread acceptance of non-material values or of
higher importance than possessions, have come to be the expression in ordinary
society of the true Indian culture. U.N. Ghoshal an eminent historian, points, out a
number of civil rights, enjoyed by the individuals in ancient India. He says that they
occupy an important place in the literature of the Srutis. These rights were enjoyed by
ancient Indians either expressly knowing them or as comprehended in Dharma or
inferred from the concept of duties84
.
Our scriptures have laid emphasis on implementing policy as ordained in
Dharma.
84
.Dr Gokulesh Sharma, Human Rights And Social Justice,9-11(2004).
47
To quote Rigveda:
“Let noble thoughts come to us from every side.”
(Rigveda, Chapter I, 891).
To quote Yajurveda
“O virtuous and prosperous king, be knowledgeable about your conduct as
protector of the learned, and impeller towards our progress and prosperity. Be in
control of your passions, and conduct yourself in a righteous manner. Be a friend
to us. Know the conduct as laid down by all”.
(Yajurveda, Chapter VIII, verse 50).
To quote Shanti Parva
“The foundation of good governance is Dharma (righteousness). The King,
his ministers and state employees who have taken the path of their offices to
uphold Dharma and to act in accordance with the common good, must not act
unjustly or methically so as to secure their private good through selfishness. If
they don’t behave appropriately, they all will surely go to hell along with
destroying the moral basis of governance”.
(Shanti Parva, Chapter LXXXV, verses 16-17).
Good Governance as conceptualized in the par as ideal state of “Ram Rajya”
has been a romantic ideal of Political thinkers round the ages, but the end of good
governance has changed from the strength of the state or king and his cohorts and
men on the horse back to protect its citizens and to provide sincerity to them and
thereby justify ruler- ship to a limited, controller and constitutional state serving
by being subservient to the public or publics or the masses in general.85
85
. L.N. Sharma and Sushmita Sharma,Kautilaya’s Good Governance ,Presented in a Symposium on
“Stability and Good Governance” organized by A.N.Sinha Institute of
management,Patna,Aug,18,1998.
48
B.A. Selectors86
points out that for the first time for the formulation of what
may be termed rights even in modern sense can be found from the times of
Kautilya. He classified them as civil rights, economic rights and legal rights. In
the fourth Century B.C., we find in Kautilya’s Arthashastra a specific list of duties
of the king towards public which are far ahead of today’s public administration.
The same idealism was incorporated by Kautilya in his Arthasastra while
summing up the objects and purpose of the exercise of sovereign power by the
King.
In the happiness of his subject lies his happiness, in their welfare his welfare,
whatever pleases him (personally) he shall not consider as good, but whatever
makes his subjects happy, he shall consider good.
[Arthasastra, Book I, Chapter XX, 39).
The essence of basis of good governance, as per ancient Indian thinking
depends on the triangle of those actions for governance which are undertaken for
universal welfare (Sarv Loke Kalyankari Karma), maintaining and protecting each
and everyone in the creation (Sarva Loksangrahamerapi), and securing universal
care for all and everyone (Sarva Hitey Rahtah). But, that triangle has a central
point, which is the most common good is denoted by the term “happiness for all”
(Sarve Bawantu Sukhinah). The concept of informing citizens about the affairs of
the state dates back to the regime of Ashoka. He reached out to the people directly
through various inscriptions being installed at various places. However, these
prerequisites as enunciated in ancient times in India are sadly missing among the
stewards and practitioners of governance. There is a need to operationalise this
ancient wisdom through the re-arrangement of socio-economic and political
institutions. However, first a country like India would have to formulate a set of
realistic indicators for achieving such a common good. It goes to the credit of
India’s freedom fighters who left a solid foundation for good governance and
liberal democratic tradition which though weakened, can yet be made resurgent.87
To Indians the sense of enjoying rights has its roots in the ancient and modern
86
. Ancient Indian political Thought& Institution, 248(1963).
87 . O.P. Dwivedi, Common Good and Good Governance in IJPA, July September, 1990, pp. 263-64.
49
history, as there was a long gap between them due to the foreign invasion and
assertion of political power.
In the words of Granville Austin88
the fundamental rights and freedoms had
their roots deep in the struggle for independence. According to K.S. Hegde,89
the
inclusion of fundamental rights in India’s Constitution had its beginning in the
forces that operated the national struggle during the British rule. They have their
roots in the history of last several centuries. They are mainly the product of the
history. They are the outcome of clash of ideas and ideals and social power. The
object of the fundamental rights is to create an egalitarian society. In India, many
administrative changes took place after the revolt of 1857. During the intervening
period the British established new legal and political orders in certain respects
largely based on their own interests and in others greatly modified to suit Indian
conditions. It was primarily the English officialdom that ruled the country to the
entire exclusion of Indians from the position of influence and authority. As British
started showing hostility towards the Indian masses, the Indians were analysing
the imperialistic character of the British rule and putting forward the demand of
Indian participation.
It was, therefore, necessary to agitate for a change in the government for the
Introduction of representative system, for the transfer of political power from
British to the Indian hands. Hence, the solution for these socio-economic
problems which the country was facing depends upon the attainment of self rule
by India. The Indian desire for civil rights was implicit in its formation. Indians
wanted the same rights and privileges that British masters enjoyed in India and
which they had in England too. In the early years of its formation, it asked for
increasing Indian participation in political affairs of the country. Perhaps the
earliest demand for recognition of fundamental rights and freedom commenced
with the slogan of Lokmanya Bal Gangadhar Tilak that ‘Swaraj is my birth right
and I shall have it,” in the form of Constitution of India Bill 1895 under the
inspiration of Tilak and described as the Home Rule Bill by Annie-Besant. A
88
. Granville Austin, Indian Constitution-cornerstone of a nation.28(1967).
89 . K.S. Hegde-Directive Principles of state Policy in Constitution of India (1971 S.C.J pp. 50-72).
50
glimpse of the rights may be found in the bill itself. Article 15 of the Bill, inter
alia, contained the rights of free speech and expression90
.
A series of Congress resolutions was passed between 1917 and 1919 which
repeated the demand for civil rights and asked for dominion status. The
philosophy which inspires the Indian People’s hunger for freedom of information
is best expressed in verse XXXV of Gitanjali by Rabindra Nath Tagore:
“Where the mind is without fear and the head is held high;
where knowledge is free; where the word has not been
broken up into the fragments by narrow Domestic walls;
where world comes out from the Depth of truth; Where
Tireless striving stretches its Arms towards perfection;
where the clear stream of Reason has not lost his way into
the Dreary Desert sand of Dead Habit; where the mind is
lead forward by thee into ever- widening thought into
action-into that Heaven of freedom my father, let my country
Awake.”
On the same lines Surendra Nath Banerjee a leader in Bengal claimed that
Indians, as born British subjects, were entitled to the some rights or privileges as
were guaranteed to the English by their own Constitution. The demand for
equality, for self-government exemplifies not only the well known desire for
negative freedom, but also that aspect of positive freedom quite perceptively. It
was the passing of the Rowlatt Act in 1919, which gave extensive powers to the
British government and police, and allowed for indefinite period arrest and
detention of individuals, warrantless searches and seizures, restrictions on public
gatherings and intensive censorship of media and publications. The public
opposition to this Act eventually led to mass campaigns of non-violent civil
disobedience throughout the country demanding guaranteed civil freedoms, and
limitations on government power91
.
90
. Supra note 85 at15.
91 . Ibid
51
Consequently, next major development was the drafting of Mrs. Annie
Besant’s Commonwealth of India Bill 1925, which was adopted at the National
Convention and presented to the House of Commons by Mr. Lansbury and it
sought to achieve for India self governing dominion status except for foreign and
defence affairs. This Bill for the first time contained an Article relating to the
grant of fundamental rights.
On 17th
May, 1927, at the Bombay Session of the Congress, Motilal Nehru
moved a resolution for India in consultation with the elected members of the
Central and Provincial legislatures and leaders of political parties, based on a
declaration of rights, a Swaraj Constitution to give impetus to the fight for Swaraj,
that is self government92
.
(ii) Advocacy and Various Efforts on Right to Information
(a) Efforts of the Mazdoor Kisan Shakthi Sanghatana (MKSS)
The Mazdoor Kisan Shakthi Sanghatana (hereafter MKSS) is active for the
last 20 years in mobilizing the grassroot level people including peasants and
workers for the issue-oriented campaigns in rural areas of Rajasthan. The MKSS
is a peasant-farmers collective organisation that questions governance and policy
making processes as they exist and attempts to influence them by mobilizing
public opinion among its main constituents-peasants and rural workers.93
MKSS started its activities in 1987, but from 1990 onwards only one can see
somewhat structured initiatives at the grass root level. Among the important issues
taken up and achieving success to some extent are minimum wages, right to work,
right to food, right to information etc.94
Public Hearing or Jan Sunwai is the origin point of the Right to Information
Movement in India. The instrument of public hearing was initiated by the MKSS
in some parts of rural areas of Rajasthan. In order to check corruption with the
92
. Supra note 85 at 16.
93 . Study report on Establishing Transparent, Accountable and Responsive Governance Through the
Participation of Non-Party Political Organizations in Electoral Politics, Centre for Panchayati
Raj, National Institute of Rural Development, Hyderabad, 2005.
94 . Ibid.
52
involvement of people, the concept and era of public hearing commenced. The
public hearing is nothing but an open and democratic debate about the public
issues. In such type of public hearings Elected Representatives, Government
Officials, People, Local Intelligentsia such as lawyers, media persons Non-
Governmental Organisations, Community Based Organisations, External
Observers, etc. participate. In public hearings generally, after identifying issues
for example, corruption in developmental activities further deliberations take
place. The Mazdoor Kisan Shakti Sanghatana identified corruption, misuse, and
nepotism in the drought relief works, which were sanctioned for the rural poor.
Therefore, MKSS initiated a series of public hearings over the rural
developmental activities with the substantial evidence of data and documents by
involving cross sections of the society. The public hearings are being conducted in
Panchayati Raj Institutions, Government Offices and Non-Governmental
Organisations, which are receiving substantial financial support from the public
authorities. In these public hearings public is made aware about the fact that a
great deal of corruption and misuse of powers is taking place. It happened due to
secrecy in the maintenance of records and registers and lack of accessibility to the
public information for the citizens. Therefore, to combat corruption in the
developmental activities initiated either by the State Government or Central
Government there is a need to have the Act support to access the public
information which is a national wealth generated by the citizens.
Along with the public hearings, the MKSS also launched the direct actions
like Dharnas95
for the Right to Information in various parts of Rajasthan such as
Beawar in 1995. The demand was to press for the issue of administrative orders to
enforce the Right to Information of ordinary citizens regarding local development
expenditures.
Dharna witnessed an unprecedented upsurge of homespun idealism in the
small town of Beawar and the surrounding countryside. Donations in cash and
kind poured in daily from ordinary local people including vegetables and milk
from small vendors, sacks of wheat from farmers in surrounding villages, tents,
95
. Interview with Roy Aruna, De Nikhil and Singh Shankar at Devdunghri Village of Bhim Block in
Rajasmand district Rajasthan in May 2005,www.parivartan.com
53
and voluntary services of cooking, serving cold water, photography and so on,
besides cash donations from even the poorest.96
Even more significant was the daily assembly of over 500 people in the sultry
hot conditions inside the tent, listening to speeches and joining in sloganeering,
songs and relics. Active support cut across all classes and political barriers
including rich shopkeepers, professionals, daily wage labourers, and the entire
political spectrum from the right wing fringe to communist trade unions extended
vocal and enthusiastic support in this direction.
However, no assurance from government was forthcoming, and therefore
after completion of polling on 2nd
May 1996, while the Dharna continued in
Beawar, it spread also to the state capital Jaipur. In Jaipur, in an unprecedented
gesture, over 70 people’s organisations and several respected citizens came
forward to extend support the MKSS demand. The mainstream press was also
openly sympathetic.97
(b) The National Campaign on People’s Right to Information (NCPRI)
The NCPRI was formed as a support group of the MKSS and also to carry out
advocacy on the Right to Information at the national level. The presence of senior
and respected media persons, serving and retired bureaucrats, and members of the
bar and judiciary in NCPRI make it an important nodal body. Members like
Prabha Joshi, one of India’s most senior journalists, have been publicising the
issue through their writings and travelling around the country.
The National Campaign also brought out a journal “Transparency”, which
was very useful for campaigning and networking purposes, but which has been
discontinued for the time being for want of funds. Members of the NCPRI have
also made submissions regarding the Freedom of Information Bill, 2000 to the
Standing Committee98
.
96
. Mander Harsh and Johsi Abhas, People’s Power for the Control of Corruption, www.chri.org.
97 . Ibid.
98. Global Trends on the Right To Information: A Survey Of South Asia,
http://humanrightsinitiative.org.
54
(c)The Commonwealth Human Rights Initiative (CHRI) Campaign
CHRI views the Right to Information as providing a basic link between
various human rights and promotes that perspective in its advocacy work. In mid-
1997, when important developments were taking place both at the grassroot level
and on the legislative front CHRI sought to engender a country-wide debate over
the issue through dissemination of information. CHRI produced a series of
publications targeted at different levels to help simplify the issues.
CHRI has also conducted a number of workshops and other smaller meetings,
mostly at the regional level but also nationally and internationally. The
participants have been a mix of NGOs representatives, academicians, lawyers and
jurists, youth groups and students, media workers, bureaucrats, and people from
other walks of life. The workshops are designed to elicit feedback on the
information needs of people, problems of access to information and people’s
expectations from the law. Certain practical issues, such as the methodology for a
people’s audit using the MKSS model, are also discussed.
CHRI has also been involved in governmental initiatives on the Right to
Information in the States of Madhya Pradesh, Delhi, Karnataka and Rajasthan, as
well as with the central government. The CHRI campaign has brought together
people doing advocacy work at all levels and has forged links between actors
working at different levels, both within civil society as well as with government99
.
(d) Advocacy within the Government
Important advocacy work has also been undertaken by ‘activist’ bureaucrats.
A key example is the initiative of the then Commissioner of Bilaspur Division,,
Harsh Mander, who introduced a record maintenance and disclosure system,
including through on-the-spot photocopying, in key departments such as the
Public Distribution System, the Employment Exchange, Pollution Control and the
State Transport System. The impact of these simple steps soon became apparent
99
. Global Trends on the Right To Information: A Survey Of South Asia,
http://humanrightsinitiative.org.
55
when the ration shops, whose normal response had been no stocks available,
started showing excesses because it was now difficult to siphon off stocks,
Pollution levels, which were required to be published daily, came down drastically
in an area that is one of the most polluted in the country due to the functioning of
multiple polluting industries. Unfortunately, this initiative resulted in Mander
being transferred in order to appease the local political heavyweights whose
activities were being challenged. Despite this, the experiment caught the
imagination of several other bureaucrats and was replicated in their own areas of
operation.
The Right to Information is now a regular part of the training given to new
civil servants at the Lal Bahadur Shastri National Academy of Administration,
Mussoorie. At the academic level, the Right to Information has been supported by
several civil servants; whose advocacy has lent credence to the issues raised by
civil society groups and has helped to counter some of the standard challenges
posed by bureaucrats. Regular and thorough analysis of draft laws by Dr. Madhav
Godbole, for instance, has helped refine and define the issues for civil society
advocates as well as the public at large100
.
(iii) Legislative Developments towards Right to Information
(a) Bill Prepared by the Press Council
The first major draft legislation on Right to Information in the country that
was widely debated, and generally welcomed, was circulated by the Press Council
of India in 1996101
(All draft laws mentioned in this section can be accessed from
the Right to Information section of CHRI’s website). This in turn derived
significantly from a draft prepared in October, 1995, in a meeting of social
activists, civil servants and lawyers at the Lal Bahadur Shastri National Academy
of Administration Mussoorie. This is the institute for training all recruits to the
elite higher civil services, and it is interesting that some serving officials of this
100
. Global Trends on the Right to Information: A Survey of South Asia,
http://humanrightsinitiative.org.
101 . The Press Council Draft 1996, The press trust of India, www.ptinews.com.
56
institute took the initiative to convene this meeting which became a kind of a
watershed in the national movement for the Right to Information.
One important feature of the Press Council draft legislation was that it
affirmed in its preamble the constitutional position that the Right to Information
already exists under the Constitution, as the natural corollary to the fundamental
right to free speech and expression under Article 19(1) of the Constitution. It
stated that the legislation merely seeks to make explicit provisions for securing to
the citizen this Right to Information. Incidentally, as we have seen earlier, this
position that the Right to Information flows from the fundamental right to freedom
of speech and expression had even earlier been affirmed in a number of rulings of
the Supreme Court.
The draft legislation affirmed the right to every citizen to information from
any public body. Information was defined as any fact relating to the affairs of the
public body and included any of the records relating to its affairs. The Right to
Information included inspection, taking notes and extracts and receiving certified
copies of the documents. Significantly, the term ‘public body’ included not only
the state as defined in Article 12 of the Constitution of India for the purposes of
enforcing fundamental rights. It also incorporated all undertakings and non-
statutory authorities, and most significantly a company, corporation, society, trust,
firm or a co-operative society, owned or controlled by private individuals and
institutions whose activities affect the public interest. In effect, both the corporate
sector and NGOs were sought to be brought under the purview of this proposed
legislation.
The few restrictions that were placed on the Right to Information were similar
to those under other fundamental rights. The draft legislation allowed withholding
of information the disclosure or contents of which ‘prejudicially affect the
sovereignty and integrity of India, the security of the State and friendly relations
with foreign states; public order; investigation of an offence or which leads to
incitement to an offence.’ This is substantially on the lines of Article 19(2) of the
Constitution. Other exemptions were on bona fide grounds of individual privacy
and trade and commercial interests.
57
However, the most significant saving provision was that information which
cannot be denied to parliament or the state legislature shall not be denied to a
citizen. This would have been the most powerful defence against wanton
withholding of information by public bodies, because the agency withholding
information would have to commit itself to the position that it would withhold the
same from parliament or state assemblies as well.
The draft legislation laid down penalties for default in providing information,
in the form of fines as personal liability on the person responsible for supplying
the information. It also provided for appeals to the local civil judiciary against
failure or refusal to supply the desired information.
(b) THE “CERC” Draft
So far the most detailed proposed freedom of information legislation in India
was drafted by the Consumer Education Research Council (CERC)102
. This draft,
in line with international standards, gives the Right to Information to anyone,
except “alien enemies,” irrespective of the fact whether or not they are citizens. It
requires public agencies at the federal and state levels to maintain their records in
good order, to provide a directory of all records under their control, to promote the
computerisation of records in interconnected networks, and to publish all laws,
regulations, guidelines, circulars related to or issued by government departments
and any information concerning welfare schemes.
Information seekers are liable only to pay for the cost of supplying copies of
records, with fees being waived for journalists, newspaper organisations and
public interest groups. The CERC draft contains a class exception for cabinet
documents but documents relating to security, defence, international relations, and
economic and commercial affairs are subject to a “grave and significant damage”
test. There are also exceptions for personal information in the interests of privacy
and the research activities of voluntary organisations if disclosure would
undermine their functioning or result in “grave and significant damage” to another
person. Records relating to the internal deliberative processes of government – the
102
.The CERC Draft, www.righttoinformation.gov.in.
58
one exception being the cabinet documents – and centre-state relations are not
accepted under the CERC draft.
The draft also provides for the outright repeal of the OSA, but does not
provide specific protection to whistleblowers. Finally, the CERC draft provides
for an appeal against refusal to disclose information, first to a network of
independent information commissioners at the district, state and national levels,
and then to an Information Tribunal. The draft was introduced as a private
member’s bill in parliament, but was never taken up for discussion.
(c) The Draft by the Shourie Committee
The working group appointed by the government in 1997103
was known as the
“Shourie Committee” since it was headed by former bureaucrat and consumer
rights activist Late H.D. Shourie. It had a mandate to make recommendations
regarding secrecy legislation, and to prepare draft legislation on freedom of
information. Unfortunately, the legitimacy and effectiveness of the work of this
committee was undermined by lack of public consultation and the fact that the
recommendations were never sufficiently publicised (Government of India’s
Working Group on Right to Information and Promotion of Open and Transparent
Government, which gave its report in 1997). The Shourie Committee itself
consisted of ten persons, all male, eight of whom were senior bureaucrats from the
central government.
The Shourie Committee’s draft freedom of information law was significantly
diluted in comparison to the civil society drafts. The scope of exceptions was very
wide and included a remarkable clause, seriously undermining the whole project,
whereby public authorities could withhold “information the disclosure of which
would not sub serve any public interest.” The draft also failed to provide penalties
for groundless refusals to disclose. Appeals were allowed to consumer courts,
providing a simple remedy to consumers. However, these courts are already
overburdened and have serious backlogs. The draft excluded the private sector and
non-governmental organisations not “substantially funded or controlled” by
103
. The “Shourie Committee” Draft, 1997, www.righttoinformation.gov.in.
59
government from its ambit. The draft did, however, include the judiciary and
legislatures within its purview.
(d) The Freedom of Information Bill, 2000.
As two governments fell in quick succession, the Shourie draft was never
introduced into parliament. However, it was revived with some changes, in July
2000. When it was introduced as the Freedom of Information Bill, 2000104
, prior
to the bill being introduced in parliament, there was a debate on the expected law
in certain media, academic, non-governmental organisations and other interested
circles, but it was based primarily or conjectures as to the Bill’s contents.
On the basis of a review of the objections voiced by academics and activists,
as well as several interactions with varied groups around the country, CHRI
produced two publications encapsulating the chief objections to Freedom of
Information Bill for civil society and legislators respectively. Overall, the CHRI
felt that the Bill fails to conform to international standards and best comparative
practice on access to information. It also failed to it reflect a serious attempt to
address information issues in the Indian context, as the laws of South Africa and
Japan do for their countries. Overall, the weakness of the Bill reflects the lack of
political will to implement a good information disclosure system. Indeed, the Bill
is so weak that civil society has debated whether this Bill should be resisted
outright, at the risk of losing the opportunity to have legislation on the right to
know, until at least the non-negotiable standards are included.
Most of the votaries of the freedom of information in the country now concur
in their main criticisms of the Freedom of Information Bill, 2000. Despite the
strength of these objections, legislators do not seem to have taken them into
account in revising the Bill.
Perhaps the most serious problem with the Bill is that it fails to provide for an
independent review of refusals to disclose information, either by an independent
administrative body or by the courts. This means that decisions on whether or not
104
. The Freedom of Information Bill, 2000, www.humanrightsinitiative.org.
60
to release information rest entirely with government. A blanket exclusion of key
intelligence and security organisations and an excessively broad regime of
exemptions significantly undermine the potential for the Bill to promote the
public’s right to know. The lack of a public interest being brushed away for these
exclusions and exemptions further undermines the Bill. The Bill was not altered
before it was passed as it was, in the last quarter of 2002.
(e) Freedom of Speech, Right to know and Right to privacy As Per
Recommendation by 179th Report of Law Commission of India.
According to179th Report of Law Commission of India105
, the freedom of
speech and expression is guaranteed by sub-clause (a) of Article 19(1) of the
Constitution of India. This right is, however, subject to Article 19(2) which
permits law to be made for the purpose of imposing reasonable restrictions in the
interests of the sovereignty and integrity of India, the security of state, friendly
relations with foreign states, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.
In this context, we may point out that Art. 19(a) of the Universal Declaration
of Human Rights and Art. 19(2) of the Covenant on Civil and Political Rights and
Art. 10 of the European Convention on Human Rights and Fundamental Freedoms
expressly refer to the:
“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 art, or through any other media of
choice.”
And this right is, however, subject to restrictions that may be imposed by law,
(a) for respecting the rights or reputations of others or (b) for the protection of
national security or of public order or of public health and morals.
The first amendment to the American Constitution also refers to the right of
free speech. The American Supreme Court has held in one of the most celebrated
105
. 179th
Report of Law Commission of India,2001.
61
judgments in New York Times v. Sullivan106
, that the ‘central meaning’ of the
First Amendment was the:
“Profound national commitment to the principle that debate
on public issues should be uninhibited, robust and wide
open and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on government and
public servants.”
The above case involved the right of the public official to seek damages for
libel and the court held:
“The constitutional guarantees require... a federal rule that
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless
he proves that the statement was made with actual malice’-
that is, with knowledge that it was false or with reckless
regard or whether it was false or not.”
The word ‘Public official’ would include an elected representative, an
appointed official and all governmental employees, even those located near the
bottom of any organization, provided they are government officials ‘who have or
appear to have substantial responsibility or control over the conduct of
governmental affairs.’ Rosenblatt v. Baer107
. In principle, not every person in
government is a ‘public official.’ His position must be one which could invite the
public scrutiny and discussion occasioned by the particular charges in
controversy. Again, in relation to what is ‘official conduct’ of the public servant,
the law has been laid down expansively. In Garrison v. Louisiana108
, the
Supreme Court held that allegations of ‘laziness, inefficiency and obstruction
directed against local criminal court judges were relevant to official conduct of
such judges.’ Allegations could be anything which might touch on an official’s
fitness for office and they would be relevant.
106
. (1964) 376 US 254.
107 . (1966) 383 US 75.
108 . (1964) 379 US 64.
62
Our Supreme Court had occasion to deal with the exposure of the conduct of
government through the media or otherwise. In one of the earliest cases in S.
Rangarajan v. P. Jagjivan Ram109
, the Supreme Court held that criticism of
government policies was not prohibited though there should be a proper balance
between freedom of expression and social interests. But courts cannot simply
balance the two interests as if they are of equal weight. The court’s commitment
to freedom of expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community
interest will be endangered. The anticipated damage should not be remote, or
conjectural or farfetched. It should have proximity and a direct nexus with the
expression.
In Life Insurance Corporation v. Manubhai D. Shah110
, the Supreme
Court held that there is nothing wrong in requesting the publication of the
respondent’s rejoinder in the Life Insurance Corporation’s (LIC) in house journal
though the rejoinder referred to the discriminatory practices of the corporation
which were adversely affecting the interests of large number of policy holders.
This was because; the statute required the corporation to function in the best
interests of the community. The court observed that the ‘community is, therefore,
entitled to know whether or not this requirement of the statute is being satisfied in
the functioning of the LIC. The LIC was bound to publish the rejoinder of the
organization be it, in its in house journal, so that the readers who read the
magazine obtained a complete picture of the corporation and not a one sided one.
The LIC’s refusal to publish the rejoinder was therefore violative of the right of
the community to know the internal functioning of the corporation.’
The legal foundation for exposure of corruption, misconduct or
maladministration by public servant was laid down by the Supreme Court in Life
Insurance Corporation v. Manubhai D. Shah111
, the case that involved the
publication of serious misconduct of public servants by a convict who was serial
killer. The case squarely deals with the right to know and the limits of privacy of
109
. 1989 (2) SCC 574.
110 . (1992) 3 SCC 637.
111 . (1992) 3 SCC 637.
63
public servants. The Supreme Court referred to the judgements of the American
Court in New York Times v. Sullivan112
, already referred to and another
judgment of the House of Lords in England reported in Derbyshire v. Times
newspaper Ltd.113
. The Supreme Court held that while decency and defamation
were two of the grounds referred to in Clause (2) of Art. 19, still any publication
against any person will not be objectionable if such publication was based on
‘public record.’ In addition, in the case of ‘public official,’ the right to privacy or
for that matter, the remedy of action for damages is simply not available with
respect to their acts and conduct relevant to the discharge of their official duties.
This is so even where the publication is based upon facts and statements which are
not true, unless the public official establishes that the publication was made with
reckless disregard for truth. In such a case, it would, however, be enough for the
person who published the news to prove that he reacted after a reasonable
verification of the facts. It is not necessary for him to prove that what he has
published is true. Of course, where the publication is proved to be false and
actuated by malice or personal animosity, damages can be awarded. No doubt, in
matters not relevant to his official duties, the public official enjoys the same
protection in respect of his privacy as any other citizen. (The judiciary, parliament
and state legislatures are not subject to these principles and enjoy greater
immunity). The above principle does not, however, mean that the press is not
bound by the Official Secrets Act, 1923 or any similar enactment.
The above declaration of law by the Supreme Court is of fundamental
importance on the subject of exposure of corrupt officials. If the law permits
furnishing of information regarding corruption, past, present or impending and
gives protection to the informants from reprisals, unless the disclosure is proved to
be malicious, such a law can play a very useful role.
Recently, the Supreme Court has traced the origins of the community’s right
to know’ from his right to freedom of speech and expression. The Court observed
in Dinesh Trivedi v. Union of India114
, that in modern constitutional
112
. Supra note 107 at 86.
113 . 1993 (2) WLR 449.
114 . 1997 (4) SCC 306.
64
democracies, it is axiomatic that citizens have a right to know about the affairs of
the government which, having been elected by them, seeks to formulate sound
policies of governance aimed at their welfare. To ensure that the continued
participation of the people in the democratic process, they must be kept informed
of the vital decisions taken by the government and the basis thereof. The court
was dealing with the Vohra Committee Report and stated that though it was not
advisable to make public the basis on which certain conclusions were arrived at in
that report, the conclusion reached in that Report should be examined by a new
body or institution or a special committee to be appointed by the President of
India on the advice of the Prime Minister and after consideration with the Speaker
of the Lok Sabha.
It is therefore clear that the Supreme Court has accepted that the “right to
know” is part of the fundamental right of freedom of speech and expression
guaranteed under Art 19(1) (a). Of course, it will be subject to the reasonable
restrictions, as may be imposed by law under article 19(2).
It is now recognized that while a public servant may be subject to a duty of
confidentiality, this duty does not extend to remaining silent regarding corruption
of other public servants. Society is entitled to know and public interest is more
better served if corruption or maladministration is exposed. The Whistleblower
laws are based upon this principle.
In the light of the above judgements of the American and English courts and
our Supreme Court, on the question as to the scope of ‘free speech,’ the
Commission is of the view that a statute enabling complaints to be made by public
servants, or persons or NGOs against other public servants and the grant of
protection to such complainants is perfectly valid and will not offend the right to
privacy emanating from sub-clause (a) of clause (1) of Art. 19. The right to
privacy has to be adequately balanced against the right to know. Both these rights
emanate from the same sub-clause in Art. 19.
65
(f) Report of National Commission to Review the Working of the
Constitution of India: Background and Approach
The National Commission to review the working of the constitution of India,
2002 115
(NCRWC) among other things with its new dimension towards
fundamental rights in the present constitution of India amplified that:
“During the last three decades, a vast number of human
rights have found place in new constitutions and bills of
rights of more than eighty countries and of supra-national
entities. Countries which enacted these new constitutions
have had the benefit of all the developments in the human
rights jurisprudence which have taken place since 1950.
Also, our Supreme Court has by judicial interpretation
expanded the scope of the fundamental rights, particularly
in relation to article 21, and this has included more civil and
political rights which were not explicit in part III.”
A new development is that of the principle of ‘basic structure’ of the
Constitution enunciated by the Supreme Court in 1973 in Kesavananda Bharti v.
State of Kerala116
. As to what are these basic features, the debate still continues.
The Supreme Court has also held that the scope of certain fundamental rights
could be adjudged by reading into them or reading them not only in the light of
the Directive Principles of State Policy but also international covenants or
conventions which were in harmony with the fundamental rights.
The Commission feels that after fifty years, time is ripe to review and enlarge
suitably the contents of some of the fundamental Rights, particularly those
fundamental rights which have been judicially deduced.
(g) The Freedom of Information Act, 2002.
115
. Vide Report of NCRWC under the Chairmanship of Justice M.N.Venkatachaliah, dated 31st
march,2002.
116 . AIR 1973 SC 1461.
66
The national Freedom of Information Bill, 2000 was introduced in 2002.It
was passed in December 2002 and received Presidential assent on January 2003,
as the Freedom of Information Act, 2002117
. Unfortunately, a date for the Bill
coming into force was never notified, so much so that it never actually came into
operation. The object of the Freedom of Information Act before parliament was
to promote transparency in government activity. The public has a right to know
what decisions are being taken and why. Dissemination of information about
policies and actions in the public realm leads to a more accountable government.
This deserves full support. The Commission recommends that the Union
Government should take steps to move the parliament for early enactment of the
freedom of information legislation. It will be a major step forward in
strengthening the values of a free and democratic society.
Major assumption behind the new style of governance is the citizen’s access
to information. Much of the common man’s distress and helplessness could be
traced to his lack of access to information and lack of knowledge of decision-
making processes. He remains ignorant and unaware of the processes which
vitally affect his interest. Government procedures and regulations shrouded in a
veil of secrecy do not allow the clients to know how their cases are being handled.
They shy away from questioning officers handling their cases because of the
latter’s snubbish attitude and how-wow style. Right to information should be
guaranteed and needs to be given real substance. In this regard, government must
assume a major responsibility and mobilize skills to ensure flow of information to
citizens. The traditional insistence on secrecy should be discarded. In fact, we
should have an oath of transparency in place of an oath of secrecy. Administration
should become transparent and participatory. Right to information can usher in
many benefits, such as speedy disposal of cases, minimizing manipulative and
dilatory tactics of the babudom, and, last but not the least, putting considerable
checks on graft and corruption.
117
. Freedom of Information Act, 2002, www.rti.gov.in.
67
(h) Working Group on Promotion of Open and Transparent Government
The Government of India appointed a working group on Right to Information
of Open and Transparent Government,(Government of India Ministry of
Personnel; Public Grievances and Pensions, New Delhi, May 1997, page 3)118
. In
its report the working group explained the significance of the transparency as
follows:
“Democracy is no longer perceived as a form of government
where the participation of the people is restricted merely on
periodic exercise of the right to franchise, with the citizens
retiring into passivity between content. It has now a more
positive and dynamic content with people having a say in
how and by what rules they would be governed. Meaningful
participation of people in major issues affecting their lives is
now a vital component of the democratic governance and
such participation can hardly be effective unless people
have information about the way government business is
transacted. Democracy means choice and sound and
informed choice is possible only on the basis of knowledge.’
The working group has submitted a draft of such legislation. There are two
reservations on that draft. The Draft Bill provides for a non-obstante clause in
order to let the Right to Information Legislation prevail over other existing laws.
If the courts array that provision harmoniously with the existing provisions in
section 123 of the Evidence Act, or, section 5 of the Official Secrets Act, the
Right to Information will be substantially restricted. If the courts interpret the non-
obstante ciauses literally, those sections will stand repealed by implication.
However, normally repeal by implication is against the principles of statutory
interpretation. Therefore, there is a need that the new legislation on Right to
Information should comprehend all those restrictions, which are legitimate and
repeal all other Acts, which are contrary to it.
118
. www.persmin.gov.in.
68
(iv) A New Access Law: The Right to Information Act, 2005.
After years of struggle for the central legislation on Right to Information, the
civil society groups emerged in the form of a National Campaign for People’s
Right to Information (NCPRI) in 1996. Justice P.B. Sawant, then chairman of
Press Council of India and other prominent persons drafted a bill for NCPRI,
Democratic Alliance Government passed The Freedom of Information Act, 2002
which was not effective and never notified. The United Progressive Alliance
Government’s Common Minimum Programme made a solemn pledge to provide a
government that is corruption free, transparent and accountable at all times and to
make the Right to Information Act more progressive, participatory and
meaningful. UPA has set up a National Advisory Council to see that the CMP is
implemented. National Advisory Council member Aruna Roy said that first two
meetings of NAC discussed Karnataka and Maharashtra Acts and tried to
incorporate many amendments on the principles of maximum disclosures and
minimum exemptions consistent with constitutional provisions, independent
appeal mechanism, penalties for failure to provide information as per the law,
effective mechanisms for access to information, and disclosure by authorities.
Bureaucracy was resisting the law, and knowing this, activists increased
pressure on the government to make comprehensive access law thus leading to
passing of Right to Information Act, 2005 with significant improvements.
However, this Bill, as introduced in parliament had many weakpoints. The
consequent outrage from civil society groups forced the government to review the
changes. The Bill was referred to a Standing Committee of the Parliament and to a
Group of Ministers. In the next session of Parliament, the Bill was passed after
over a hundred amendments introduced by the Government to accommodate the
recommendations of the Parliamentary committee and the Group of Ministers.
Finally, it was enacted by Parliament and received the assent of the President on
June 15, and the Act was notified in the Gazette of India on June 21, 2005. As per
section 1(3) of the Act the provisions of sub-section (1) of section 4, sub-sections
(1) and (2) of section 5, sections 12, 13, 15, 16, 24, 27 and 28 shall come into
force at once, and the remaining provisions of this Act shall come into force on
the one hundred and twentieth day of its enactment which means that these
69
provisions have come into force w.e.f. 12th
October, 2005 and promulgated
throughout the country on 13 October 2005119
.
This can be called the defining moment of Indian democracy whose
Parliament caused the executive to launch a formal effort to make democratic
governance participative in the real sense. The fact, that the law was passed is
itself little short of a miracle. One indeed wonders how our members of
Parliament, who have so much to hide, noticing the large number of criminal and
other cases against many of them, should have voted for it to turn it into a reality.
119
. The Right to Information Act, 2005, www.rti.gov.in.