RIGHT TO INFORMATION AS AN INSTRUMENT TO CURB CORRUPTION

ABSTRACT

This purpose of this article is to throw light on the rampant corruption that is being committed by the government, its functionaries and bureaucrats and as well as the unscrupulous activities of the Priv...

By: Anjali Jha | Update: 2016-11-08 11:48:58

RIGHT TO INFORMATION AS AN INSTRUMENT TO CURB CORRUPTION

ABSTRACT

This purpose of this article is to throw light on the rampant corruption that is being committed by the government, its functionaries and bureaucrats and as well as the unscrupulous activities of the Private entities. The Paper focuses on defining what corruption is, and how are the two terms: Corruption and access to information. The paper explores the background and history of the Right to Information and how was it enacted in India. This is followed up by the relationship between the Right to Information and its recognition as a fundamental Right in the Indian Constitution. The author tries to take judgments of the Central Information Commission Tribunal, various High Courts of India as well as the Supreme Court to draw an analogy and find a logical conclusion and solution to the problems highlighted in the Paper. It is pertinent to mention that the author has relied on various books and site URLs to define certain motions. This paper aims to discuss greater accountability and transparency in disclosing the Information which rightfully belongs to the citizens of the Country. Thus Right to information acts as an important instrument in curbing Corruption in the country by tackling the lack of apathy of the bureaucrats and their arbitrary use of power causing delay and unnecessary harassments to the normal citizens looking for information that may sort their day to day lives.

INTRODUCTION TO CORRUPTION

“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing": Justice K K Mathew, former Judge, Supreme Court of India, (1975)"

“Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing": Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981)

"Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)

The concept of corruption varies widely depending on societies and people and the definition of which ranges from state to state. This can be attributed to the various contradictions by way of thought and language as well as the social and cultural rules of the societies may differ from one another. Hence, what is completely legal in one country may be deemed as illegal and corrupt in another.

Werlin (1973) characterizes corruption as the use of public office for private needs and Blackburn, Bose and Haque (2004, p. 5) consider public sector corruption as the ‘‘illegal, or unauthorized, profiteering by officials who exploit their positions for personal gain’’. To emphasize governmental corruption, Shleifer and Vishny (1993, p. 2), define it as ‘‘the sale by government officials of government property for personal gain’’. Pope (2000) asserts that corruption can take place where there is a combination of opportunity and inclination. Therefore, corruption perception is not the reflection of an absolute situation; it is a social phenomenon.[1]

In the Annual Corruption Perception Index conducted by Transparency International, India has a rank of 76th out of the 168 countries and territories and a score of 38 on a scale to 100. India is among the 100 nations that score below 50 in the Survey. This Index is prepared annually and a country or territory’s score indicates the perceived level of public sector corruption on a scale of 0 (highly corrupt) to 100 (very clean). A country's rank indicates its position relative to the other countries in the index.[2] 

Transparency International Defines Corruption as, “abuse of entrusted power for private gain”. Corruption can be classified into three categories depending on the amount of money lost and the sector where it occurs.

  • Grand Corruption: It is the abuse of high-level power that benefits the few at the expense of the many, and causes serious and widespread harm to individuals and society. It often goes unpunished.
  • Petty Corruption: It is the everyday abuse of entrusted power by public officials in their interactions with ordinary citizens, who often are trying to access basic goods and services in places like hospitals, schools, police departments and other agencies.
  • Political Corruption: It is the manipulation of policies, institutions and rules of procedure in the allocation of resources and financing by Political decisions makers, who abuse their position to sustain their power, status and wealth.[3]

Peisakhin and Pinto (2010) examine this by conducting a randomized experiment to test whether freedom-of-information laws can improve access to basic public goods that are otherwise attainable only through bribery. The results suggest that requesting information under the freedom of information law is a reasonable, though imperfect, substitute for bribing an official[4]. In a follow-up study, Peisakhin (2011) estimates the effect of the freedom-of-information law in the process of voter registration and here they find that the information law is an effective, free and legal substitute to bribery for middle class applicants.[5]

India has always had a problem with tackling corruption due to the overwhelmingly arrogant and lousy attitude of the bureaucracy and the government, where even after around 11 years since the enactment of the RTI Act, there is still rampant abuse of power by the bureaucrats wherein the information kept by the system is still considered as a personal possession. Bribery, one of the most common form of Corruption has since time immemorial been one of the basic root causes behind such a secretive nature of the Public authorities, whereby people, unaware of their rights, bribe or pay ransom to such officials for such disclosure of information and to get things done, which they were rightfully entitled to. As a result of which, thousands of unnecessary complaints and cases have been filed with the judiciary or the Information commissions (quasi-judicial authority or tribunals that deal with complaints regarding RTI Applications) resulting in the wastage of large amount of money and time. Thus, Corruption harms the entire Economy of a Country as high costs are incurred to achieve goals or objectives that could have been made available legally.

Thus an analogy can be draw between Corruption and Access to Information, where we can recognize the fact that Information itself is power, and when the general public is bestowed with that power, they can participate in the governance which is the heart and soul of any democracy. When the citizens are kept abreast with the information dealt in by the government, they as the taxpayers and as citizens of the country, will be aware of their rights and the benefits that they are entitled to. The Right to Information act as a statute keeps a check on the unscrupulous activities of the government and bureaucrats and bring them under the direct reach of the general Public, ensuring transparency, accountability and accessibility, and ensuring greater commitment on part of the Public bodies. Therefore, demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Ultimately the most effective systemic check on corruption would be where the citizen herself or himself has the right to take the initiative to seek information from the state, and [6]thereby to enforce transparency and accountability.

INTRODUCTION TO HISTORY OF RIGHT TO ACCESS TO INFORMATION

The History of the freedom of access to information dates back to around as early as 627 A.D in China, where the Emperor T’ai-tsung of the Tang Dynasty (618-907) laid the foundation of the notion of freedom of access to information with the establishment of an institution known as the “Imperial Censorate” comprising of a group of Highly educated Individuals whose tasks were to make a record of the Government decisions and correspondence and scrutinize the “mis-governance, bureaucratic inefficiencies an official corruption. They had the power of even criticizing the Emperor and his government.                                                          

The course of history followed its path to 1707 when the world was introduced to the first statute reflecting bits and pieces of freedom of access to information by the Swedish Kingdom. This statute mandated the publishers of all printed materials were required to submit ‘legal deposit copies’ of anything published by them with the government approved libraries. However this statute was more focused on supervising and censorship of written material in the Kingdom.

This led to further development and the introduction of the first act of its kind in Sweden – “The Freedom of the Press Act of Sweden.” By Andres Chydenius, a Finnish Clergyman and Member of Parliament in Sweden, who was a visionary and deserves to be known as the Father of Freedom of Information.    Sweden in fact, now has in a part of its Constitution declared that “every Swedish Citizen shall have free access to official documents.”

The United Nations, in its first session asserted People’s right to have access to official information. Resolution 59(1) of the United Nations General Assembly held in stated, “Freedom of information is a fundamental human and touchstone of all the freedoms to which the UN is consecrated”[7]

Article 19 of the Universal declaration of Human Rights states that “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.” This was a given a legal status by binding provisions of ICCPR (International Covenant on Civil and Political Rights).[8]                                                                                                                                                        This provision also titled as Article 19 states that, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”[9] India ratified on 10 July, 1979 and became a party to the ICCPR and is thus internationally obliged to guarantee the right to information as per the above stated Article.

The Constitution of India does not explicitly grant or specifically mentions about the right to information. However, the Supreme Court of India has held in several cases that right to information is implicit in the constitutionally enshrined Right to Freedom of Speech and Expression [Article 19(1) (a)] and Right to Life and Liberty (Article 21) and supported by the Right to Constitutional Remedies (Article 32) i.e., the Right to approach the Supreme Court and High Court in case of infringement of any of these rights.[10]   

In the case of State of UP v Raj Narain[11], Justice K.K Mathew observed, “The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one way, when secrecy is claimed for transactions which can, at any rate, have no repercussions on public security. To cover with a veil of secrecy, the common routine business is not in the interest of the public. Such secrecy can be seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or justify their acts is the chief safeguard against oppression and corruption.”    

The tryst of India with RTI started with the protests of Mazdoor Kisan Shakti Sangathan (Led by Aruna Roy and others) who demanded the right of the farmers to inspect the documents concerning the details on expenditure incurred on development funds. The success of which led to widespread awareness among villages and cities in India.

In 1993, the Consumer Education and Research Council, Ahmedabad (CERC) proposed a draft RTI Law. The Press Council of India headed by Justice P.B Sawant presented a draft model law on the right to information to the Government of India in 1996, which was later updated at a workshop and was renamed as the PCI- NIRD Freedom of Information Bill. A working group under the chairmanship of Mr. H.D Shourie was set up by the Central Government with the mandate to prepare draft legislation on freedom of information. Thus The Shourie Committee Report formed for the basis for the first legislation in India enacted as the “Freedom of Information Act, 2002” which enabled a citizen of India to secure access to information under the control of the public authorities, died in womb as the infrastructure required to make it operational could not be fully established. The Freedom of Information Act, 2002 was repealed and replaced by the Right to Information Act, 2005.[12]

THE RIGHT TO INFORMATION ACT, 2005

According to The Preamble of the RTI Act, It is “An act to provide for setting out the practical regime of right to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and state Information Commission and for matters connected therewith or incidental thereto.”[13]

The right to information is a cherished rightInformation and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section (4) (1)(b) and (c) of the Act) , equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."[14]                                                           

Hence, we can say that Right to Access to information gives the public the opportunity to know their lawful and rightful entitlements and gives them the right to question the government about its policy on public welfare, public expenditure such as food and distribution of relief funds. When denied such right, this might create a scope for discrimination and arbitrariness. Before the right was given an identity as a statute and recognized as a fundamental right in the Constitution, the government did not owe any duty towards providing information to the people, one could not question or held the government accountable for the actions or omissions of its officials.

DETAILED DISCUSSION ON VARIOUS PROVISION OF THE ACT

Shailesh Gandhi, Information Commissioner, Central Information Commission, in its decision dated 1/11/2011 in the case of Jayantilal N. Mistry v CPIO & Chief General Manager, RBI, Central banks Department, - “The best check on arbitrariness, mistakes and corruption is transparency, which allows thousands of citizens to act as monitors of Public interest. There must be transparency as regards such organisations so that citizens can make an informed choice about them. In view of the same, this Bench is of the considered opinion that even if the information sought was exempted under section 8 (1) (a) or (e) of the RTI Act, - as claimed by the Respondent, - Section 8(2) of the RTI Act would mandate disclosure of the information.[15]

In the Delhi High Court decision dated 03/12/2007 Writ Petition (Civil) no. 3114/2007, act, the Bhagat Singh v Central Information, Justice S. Ravindra Bhat observed – “By one fell stroke, under the maze of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. The enactment seeks to promote transparency, arrest corruption and to hold the government and its instrumentalities accountable to the governed”.

Thus, it is established that the RTI Act recognizes that the sharing of information by government with citizens is healthy and beneficial to the functioning of the democracy. Secrecy was maintained related to disclosure of documents, files and functioning of the government, where the Officials Secret Act, 1923, a reminder of the British Rule, where such disclosure of Information was punishable in nature, before the advent of the RTI Act.

Section 3 of the Right to Information act, 2005 states that “Subject to the provisions of this Act, all citizens shall have the right to information.” Thus, it is the right of every citizen of India to gain access to information held by public bodies, as is recognized by the Act. However the Act guarantees right of access to information to all citizens. All public authorities are obliged to provide access to information available with them and no information can be withheld unless Exemption is claimed under section 8(1) of the RTI Act. It is however pertinent to mention that this ‘information’ is not owned by any department of a government or the government itself, as this information is generated by the public funds and hence no Public servant can claim any ownership on it. However, this right is not absolute, as certain information whose disclosure may harm the nation’s interest, or may pose a threat to the security of someone, or is forbidden by the Judiciary and certain other conditions, will not be disclosed. Such information is exempted from disclosure under section 8(1) and section 24 of the RTI Act. However, this is often weighed in with regards to Public Interest as mentioned in the case of Jayantilal N. Mistry v RBI.[16]

Section 2(f) defines information any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

WHAT IS A PUBLIC AUTHORITY? ARE PRIVATE ENTITIES COVERED BY THE ACT?

It is pertinent to mention that unfortunately, Private authorities do not come under the ambit of the RTI Act according to which “appropriate government “ refers to a public entity which is constituted, owned, established, substantially financed Directly or Indirectly by the-

  • Central Government
  • State Government
  • Union territory Administration[17]

[1] Natalia Melgar, Maximo Rossi & Tom W. Smith, The Perception of Corruption, International Journal of Public Opinion Research, Vol. 22, no.1 (2010)

[2] http://www.transparency.org/cpi2015

[3] http://www.transparency.org

[4] L. Peisakhin, & P.Pinto, “Is Transparency an Effective Anti-Corruption Strategy?

Evidence from a field experiment in India”, Regulation and Governance 4(3): (2010).

[5] L. Peisakhin, “Transparency and Corruption: Evidence from India.” Journal of Law and Economics, (2011).

[6] Harsh Mander & Abha Joshi, The Movement for Right to Information in India, People’s Power for the Control of Corruption, CHRI Publications.

[7]https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/10/IMG/NR003310.pdf?OpenElement

[8] http://www.un.org/en/universal-declaration-human-rights/

[9] http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[10]  Bennett Coleman & co. v Union of India, AIR 1973 SC 783, dissenting judgment of Justice KK Mathew; State of UP v Raj Narain, AIR 1975 SC 865; SP Gupta v Union of India, AIR 1982 SC 149; Indian Express Newspapers

[11] AIR 1975 SC 865

[12] Dr. R.K Verma, Right to Information Law & Practice, Taxmann Publications (P.) Ltd (2nd Ed. 2009)

[13] The Right to Information Act, 2005

[14] Central Board of Secondary Education vs. Aditya Bandopadhyay in Civil Appeal No. 6454 of 2011

[15] Decision No. CIC/SM/A/2011/001487/SG/15434

[16] Decision No. CIC/SM/A/2011/001487/SG/15434

[17] Section 2(a) of the Right to information Act, 2005.

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