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OPEN GOVERNMENT AND RIGHT TO INFORMATION

Vivek P. Kapadia

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Beginning Of Movement

Mazdoor Kisan Shakti Sangathan in rural central Rajasthan in 1994-95

Embezzlement of development funds through stratagems like ghost entries and over billing

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Beginning Of Movement Sweden had made beginning in 1776

In December 2002 the Freedom of Information Bill was passed – Freedom of Information Act, 2003 – India joined a miniscule group of 20 Nations that have a right to information so far

A paradigm shift from the dark ages of secrecy and opaqueness to the sunshine of openness and transparency

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Evaluating The Effectiveness of The FOI

Four criteria(1) Nature of the organizations or institutions to

which it applies(2) The range and kind of information that it can

be used to access(3) The independence of the institutions which

would adjudicate disputes(4) The sanctions in the law against willful or

malafide refusal to disclose information

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Legal Background

Right to Information flows from Article – 19(1)(9) of the Constitution – any restriction on this right has to be justifiable only on the ground of exceptions allowed in Article – 19(2) – “reasonable restrictions” and on the expressly laid down grounds of “sovereignty and integrity of India, the security of the State,

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Legal Background

friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence” – the burden to prove the restrictions lies on the Government

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Legal Background

Official secrecy legislation enacted in Britain in 1889, duplicated in India

The Official Secrets Act, 1923 totally overridden by the FOI Act, 2003 – however, several provisions for “exemptions” and “exceptions” and powers of sweeping nature given to the government to add to them or interpret them – such provisions carry forward some of the tenets of the OSA, 1923

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Limitations

The states have been given option of adding their own security and police organizations to this list – ACB, Vigilance Commission, revenue enforcement agencies excluded

The Tamilnadu Act, 23 exemptions – many not justifiable on the grounds of Article – 19(2)

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Limitations

Allowing the “competent authority” to withhold any information on the ground that it interferes with the work of a government office or involves a disproportionate expenditure in collecting it

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Limitations

Exclusion of private bodies like companies, NGOs, etc. – the state is withdrawing more and more from the public arenas – the Bhopal gas tragedy

“Third party” – to protect the interests of private bodies

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Limitations In USA because of tight control of private

companies over the government and the media, the RTI has become invalid

Facts regarding Kennedy’s death though known to the government is kept shrouded – the limit for disclosure extended for ten years further

Information regarding oil fields, diamond mines, banks, etc. never made transparent

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Limitations

Even common people don’t have much enlightenment as they have to struggle for maintenance of their life style

Indian Administration made open – advantages to private companies and vested interests – an another dimension

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Some Precedents

S.P. Gupta v. Union of India – Justice Bhagwati had advised, “Open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.”

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Some Precedents

The landmark English case of Attorney General v. Jonathan Cape Ltd. – injunction to restrain the publication of the political diaries of a certain Cabinet Minister in the Labour Government of the late 1960s – injunction was

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Some Precedents

refused since the materials were about ten years old and no longer required protected under public interest – the Court emphasized “only in the clearest of cases where the continuing confidentiality of the material can be demonstrated”

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Institutional Mechanism Every Department announces its Chief Information Officer

Application with prescribed fees

Within one month information is provided

Delay in providing or not providing information attracts penalty

Noting side of file – a disputed issue, resolved now

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Institutional Mechanism

Appellate authority Commissioner

Every State Government and Central Government follows this practice – on official website all such details to be displayed

Universities, Academic Institutions encompassed

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THANKS