Since June 2005, when Right to Information Act, was passed, it has
been hailed as the hallmark of democracy for the reasons that it
purports to make, as regards government information, disclosure
the norm and secrecy as the exception. Experts feel that as the
Act aims at making the government transparent and more
accountable, the effective use of it would, in a long run, curb
But is this really the truth? With administrators and legislators,
who are always in an attempt to narrow the scope and applicability
of the Act, in the past one year the Act has seen more
controversies than success stories. From parliamentary debate
relating to exclusion of file notings to army’s refusal to grant
information, it is evident that the ‘right to information’, as a
statutory right, has served as a puppet in the hands of our
rulers. There is, therefore, a need felt for a superior and more
In this article, I
analyze the reasons as to why right to
information need to have been included in Part III of the
Constitution, to be granted as a fundamental right rather than a
statutory right. This would have kept the constant attacks the
right suffers at the hands of the politicians at bay.
Ideal Status Of Right To Information:
The ideal status the right to information deserves is that of a
fundamental right under our Constitution .With the Constitutional
guarantee to conform to, the Act could have been used as an
instrument constituting the requisite authorities, apart from
laying down the quintessential exceptions to granting information,
such as national security and parliamentary privilege.
Right To Information Recognized As A Fundamental Right By The
At this juncture, it is imperative to note that the Supreme Court,
in State of U.P v. Raj Narain
- a 1974 case, recognized the
as a right inherent in Fundamental Right to freedom of speech and
expression guaranteed under article 19(1)(a) of the Constitution.
Following this, a plethora of cases the right to information was
recognized as a right implicit in the article 19(1)(a) and in
article 21 (fundamental right to life and personal liberty).
Peoples Union for Civil Liberties v. Union of India
Supreme Court observed that in
information is a facet of the freedom of ‘speech and expression’
as contained in Article 19(1)(a) of the Constitution of India.
Right of information, thus, indisputably is a fundamental right.
However, every time the Constitution is amended, the ‘basic
structure’ test laid down in
Keshavanada Bharti Case
has to be
satisfied. The test provides that a constitutional amendment
should not be in derogation of the basic features of the
Constitution like judicial review, democracy or Rule of Law. While
including the right to information is as a fundamental right, if
at all there is any effect on any of the basic structure it would
be in the nature of strengthening the democracy and making it
progressive, as envisaged by the makers of our Constitution.
Need For The Fundamental Right Status:
The nature of problems the Act has faced till date ranges from
administrative interpretation against the grant of requested
information, to ordinary and easy amendment to reduce the scope of
the Act. I feel, the above problems would not have arisen had the
right been a fundamental right. Let us now analyse the problems
case-wise to understand my reasoning.
1. Exclusion of ‘File Notings’ From the Purview of the RTI Act:
In December 2005, the Central Government, for the first time,
floated the idea to excluding
‘file notings’ from the scope of the
Act by bringing about an amendment to the Act. File notings is an
important public document containing details of the decision
making process in any public matter - such as who said what and
who rejected whose view and on what grounds before a decision was
reached in government. It also includes the official
correspondence between officers in pursuance of a government
scheme or project.
The news created uproar, with activists opining that the
accountability of the government would remain only in paper with
such exclusion. The matter was then put to rest with the Prime
Minister, Mr. Manmohan Singh’s statement against the exclusion.
However, today the matter is back in news. As on date, the Union
Cabinet has approved the Amendment Bill to the Act, that when
passed will exempt file notings as
that can be demanded as a matter of right.
2. Indian Army’s Recent Refusal to Grant Information:
Again in December 2005, the Indian Army refused to provide
information to an applicant on the ground that issues of national
security were involved in the requested information. This was in
spite of the Army not being one of the eighteen agencies that are
exempted under the Act, by virtue of section.24. But when the PM
intervened and insisted that Army cannot refuse until a government
notification to that effect, the army retracted its stand.
Could It Have Been Avoided?
The above mentioned controversies has brought out into the open,
the hard facts. The spineless politicians are going to amend the
Act as and when they like it, suiting their needs of the day; the
officers are going be complacent and hesitant in giving the
information. Had right to information been a Constitutional
provision, the fear of PILs would have kept a check on the
notoriety of the parliamentarians and authorities.
Thus, it is evident the issues such as those illustrated above
could have been avoided had right to information been a
fundamental right under the Constitution. Ideally, the legislature
should have brought about a constitutional amendment to include
the right to information as a fundamental right and the Act should
have merely constituted the Information Commissions and appointed
the Public Information Officers. With the separate government
agency to tackle the problems relating to the fundamental right to
information, the evils of bureaucratic pressures and whimsical
administrative interpretations could have been kept at bay and
Inclusion of right to information as a fundamental right would
have also been in conformity with the decisions of the apex court.
Therefore, though India has finally woken up to realize that right
to information is a key component in the attainment of economic,
social and political rights of an individual as well as the
community at large, in my opinion, the step she has taken towards
it could have been more effective had she guaranteed a fundamental
right to information to its citizenry.
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