Information Is Power

Right to Information ? II

Ramesh an educated (but not powerful) citizen goes to a government office to seek information on some of the development works undertaken in his area. He approaches an official and explains to him the reason for his visit. The official far from being courteous shouts at him in arrogance and refuses to entertain him in the office. He asks him to come again on the next day but says he won’t be able to see him as soon as he shows up, stating that he would be very ‘busy’. In other words he suggests to Ramesh to wait indefinitely. However, he says if he wants his work to be done he should pay him and if he wants urgent information he should pay even more. The information is stored by the official in his office. But he says it is to be hidden from citizens like Ramesh. Such secret information cannot be parted with unless he makes a payment.

What is so secret about public development works undertaken by the government? Ramesh begins to wonder and starts questioning in his mind. That was the starting point of Ramesh in search of truth. Ironically, that was also the starting point for the government official to realize the power of right to information to the citizens.

For a democracy to be meaningful and effective, it has to tread the path of sharing information with the citizens who are the ultimate ‘lords’ and not ‘slaves’. It is the people who are the masters and the political leaders and bureaucrats the servants. Unfortunately what we have in India is the reverse. The representatives elected by people forget those who elect them so quickly. In their hot pursuit of power they soon turn against the very people who give them the power to rule. They usurp the real power that must go to the people. The official tendency from the times the British ruled our country till now is more or less the same. It is a wicked machination of hiding facts from people, depriving people of vital information which is their right and reducing people to passive spectators. Such a democracy is a mockery. As someone once jokingly said: ” democracy is ‘buy’ (by) the people, ‘off’ (of) the people and ‘fool’ (for) the people”! or as a well-known lawyer put it more sarcastically that “the freedom for Indians is nothing but their transfer from the hands of ‘white’ swindlers into the hands of ‘black’ swindlers!”  The tendency of the governments has been to hide information from citizens. Disclosure was an exception and official secrecy the norm. It’s time to turn things upside down.

There has been a global struggle of the civil society to curb the corrupt system of governance and make it more responsive to people, transparent in all its dealings and accountable at all times to the citizens. The struggle of the civil society has ultimately succeeded in giving birth to the legislation on information across the globe.

The constitutional source of the right to information is the fundamental right to freedom of expression which includes the right to seek, receive and impart information and ideas. However, some constitutions provide separate, specific protection for the right to freedom of information. This includes access to information held by the state. Moreover, without freedom of information no democracy can function properly. Nor can any system for protection of human rights. Therefore right to information must rightly be considered as a foundational human right upon which other rights depend.

Brief history of the Birth of Right to Information

Freedom of information is an internationally protected human right. It includes the right to access information held by public bodies. It has long been recognized as crucial to democracy, accountability and effective participation. But above all it has been recognized as a fundamental human right, protected under international and constitutional law. There is an ample demonstration of this by the authoritative statements made and official interpretations given from time to time by a number of international bodies such as United Nations (UN), the Commonwealth, the Organisation of American States (OAS) and the Council of Europe (CoE). There have also been national developments in countries around the world.

Sweden: Perhaps the oldest legislation on the right to access information held by the state existed in Sweden more than two hundred years ago. But the widespread recognition both in national and international organisations has come only in the last quarter of a century.

The UN: The United Nations recognized freedom of information as a fundamental right. In 1946, the UN General Assembly adopted Resolution 59(1) which stated that freedom of information is a fundamental human right. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 19, guarantees freedom of opinion and expression as follows:

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.¹

In 1966, the UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR). This was a legally binding treaty.

In 1993 the UN Commission on Human Rights established the office of the UN Special Rapporteur on Freedom of Opinion and Expression.

In 1995 the Special Rapporteur noted that the right to seek or have access to information is one of the most essential elements of freedom of speech and expression.

The most welcome remarks by the Special Rapporteur have come in full support of the right to information in 1998:

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 Government in all types of storage and retrieval systems? ²

However, the Commission was fully aware of and concerned about the tendency of Governments to withhold from the people information that is rightly theirs.

Japan 
In 1969 Japan recognized that the right to know (shiru keri) is established by the freedom of expression guaranteed by the Constitution.

India
In 1982 the Supreme Court of India ruled that the access to government information was an essential part of the fundamental right to freedom of speech and expression.

South Korea
In 1989 and 1991 the Constitutional Court of South Korea held that the right to know was inherent in the guarantee of freedom of expression and that the refusal of the government to disclose information to the requesting public would amount to the violation of the law.

Sweden
Interestingly Sweden has Freedom of Press Act which includes comprehensive provisions on freedom of information with constitutional status bestowed on it.

Thailand
The country underwent a political turmoil in 1992. The military government was removed. After the turmoil the Thai people saw a new constitution with several reforms.  The democratic constitution in 1997 gave a citizen right to access information in possession of the government unless it hampered national security.

The Philippines
This island country with 7107 islands saw a bloodless revolution in 1986 overthrowing the dictatorship of Ferdinand Marcos. The country breathed freedom after repression of freedom for a little less than two decades. In 1987 a new Constitution was adopted which gave the citizens right to access information of public concern.

African countries did not lag behind in recognizing the right to information.

Malawi
The Constitution stated that a citizen should have access to information held by the state if that information was required for the exercise of his or her rights. 

Republic of South Africa
The 1996 Constitution of Republic of South Africa is unique in that it has not only stated the right of citizens to access public information but also laid down that the national government should guarantee that right by legislation within three years. The enabling legislation came into force in 2001.

Latin American Countries

Argentina
Argentina has a unique law on freedom of information. It gives the right to to any citizen not only to access, seek and receive information but also to correct, and update information regarding himself/herself. This is known as habeas data petition. If any information pertaining to an individual is misused or is false or discriminatory, he/she shall have the right to have it removed or kept confidential or updated.

Peru
Peru not only focuses on habeas data but also includes a general guarantee of the right to access information.  Citizens have the right to access information without giving any reason for it.

Eastern and Central Europe

Communism generally bars information dissemination but Constitutions of several post- communism countries have surprisingly guaranteed right to information.

The Constitutions of Bulgaria, Estonia, Hungary, Lithuania, Romania, Moldova, Poland etc. guarantee freedom of information.

The above list of nations is not exhaustive. Today we have many more countries which have enacted right to information laws.

For full details on the global trends on right to information kindly refer

(To be continued: For growth of Right to Information Act in India- Please see Part 3)

¹ Resolution 217 A (III) 1948
² UN doc, E/CN.4/1998, Report of the Special Rapporteur, Promotion and protection of the right to freedom of expression and opinion, 1948 

Author: Cyril Vas- Bangalore