ASSESSMENT

RIGHT TO INFORMATION AS ATOOL TO EMPOWER THE PEOPLE

2020-2021

SUBJECT: RIGHT TO INFORMATION LAW

SUBJECT CODE: PGLCA 2:04

SUBMITTED BY: SUBMITTED TO:

URVASHI MISHRA MRS.SONALI ROY CHOUDHURY

LL.M(ONE YEAR) (FACULTY MEMBER SCHOOL OF LEGAL STUDIES)

 TABLE OF CONTENTS

 INTRODUCTION
 (MOVEMENT FOR RIGHT TO INFORMATION INDIA)
 IMPORTANCE OF RIGHT TO INFORMATION TO COMBAT CORRUPTION
 THE CONSTITUTIONAL DEVELOPMENT OF RIGHT TO INFORMATION
 RTI EMPOWERING PEOPLE
 CHALLENGES FACED WHILE EMPOERMENT
 ATTEMPT TO CREATE AWARENESS/ CONCLUSION
 INTRODUCTION

THE MOVEMENT FOR RIGHT TO INFORMATION IN INDIA

In the space of less than a decade, the burgeoning movement for the right to information in India
has significantly sought to expand democratic space, and empower the ordinary citizen to
exercise far greater control over the corrupt and arbitrary exercise of state power. The right to
information is implicit in the Constitution of India, even so the dominant culture of the executive
has been one of secrecy and resolute denial of access of information to the citizen. Citizens
groups have long battled for the exercise of these rights in courts. The movement for the right to
information received a fresh impetus from a courageous and powerful grassroots struggle of the
rural poor for the right to information, to combat rampant corruption in famine relief works. This
struggle was led by a people’s organisation, the Mazdoor Kisaan Shakti Sangathan (which
literally means ‘organisation for the empowerment of workers and peasants’). The reverberations
of this struggle led to a nationwide demand for a law to guarantee the right to information to
every citizen, with widespread support from social activists, professionals, lawyers, and persons
within the bureaucracy, politics and the media, who are committed to transparent and
accountable governance and people’s empowerment. Three successive federal governments in
quick succession have committed themselves to the passage of a law to guarantee the people’s
right to information and some state governments have actually passed such laws and
administrative instructions. This paper will attempt to outline firstly the significance of the right
to information, particularly in empowering ordinary citizens to combat state corruption. It will
describe in some detail the most important grassroots struggle for the right to information, which
has succeeded in linking the entire movement in the country to the struggles for survival and
justice of the most poor. It would then delineate the constitutional history of the right, and
attempts through the courts to breach the culture of secrecy of the executive, and initiatives from
persons within the government. It will in the end describe efforts at the national level to legislate
this right.
IMPORTANCE OF THE RIGHT TO INFORMATION TO COMBAT CORRUPTION

In India today, the state has spread its tentacles to virtually every aspect of public life. The
person on the street is condemned to grapple hopelessly with corruption in almost every aspect
of daily work and living. Most government offices typically present a picture of a client public
bewildered and harassed by opaque rules and procedures and inordinate delays, constantly
vulnerable to exploitation by employees and touts. In the quest for systemic answers to this
chronic malaise, it is important to identify the sources of corruption inherent within the character
of the state machine. These include a determined denial of transparency, accessibility and
accountability, cumbersome and confusing procedures, proliferation of mindless controls, and
poor commitment at all levels to real results of public welfare.

Information is the currency that every citizen requires to participate in the life and governance of
society. The greater the access of the citizen to information, the greater would be the
responsiveness of government to community needs. Alternatively, the greater the restrictions that
are placed on access, the greater the feelings of `powerlessness’ and ‘alienation’. Without
information, people cannot adequately exercise their rights and responsibilities as citizens or
make informed choices. Government information is a national resource. Neither the particular
government of the day nor public officials create information for their own benefit. This
information is generated for purposes related to the legitimate discharge of their duties of office,
and for the service of the public for whose benefit the institutions of government exist, and who
ultimately (through one kind of import or another) fund the institutions of government and the
salaries of officials. It follows that government and officials are `trustees’ of this information for
the people. The proposed legislation would enable members of the public to obtain access under
the law to documents that may otherwise be available only at the discretion of government.
THE CONSTITUTIONAL DEVELOPMENT OF THE RIGHT TO INFORMATION

At the outset, it must be stressed that the movement in India does not aim at creating a right to
information. Rather, it is aimed at generating conditions favourable to an effective exercise of the
right. While there is no specific right to information or even right to freedom of the press in the
Constitution of India, the right to information has been read into the Constitutional guarantees
which are a part of the Chapter on Fundamental Rights. The Indian Constitution has an
impressive array of basic and inalienable rights contained in Chapter Three of the Constitution.
These include the Right to Equal Protection of the Laws and the Right to Equality Before the
Law (Article 14), the Right to Freedom of Speech and Expression (Article 19(1)(a)) and the
Right to Life and Personal Liberty(Article 21). These are backed by the Right to Constitutional
Remedies in Article 32, that is, the Right to approach the Supreme Court, the highest court in the
land, in case of infringement of any of these rights. These rights have received dynamic
interpretation by the Supreme Court over the years and can truly said to be the basis for the
development of the Rule of Law in India. As pointed out by H.M. Seervai16, “Corruption,
nepotism and favouritism have led to the gross abuse of power by the Executive, which abuse
has increasingly come to light partly as a result of investigative journalism and partly as a result
of litigation.The development of the right to information as a part of the Constitutional Law of
the country started with petitions of the press to the Supreme Court for enforcement of certain
logistical implications of the right to freedom of speech and expression such as challenging
governmental orders for control of newsprint, bans on distribution of papers, etc. It was through
these cases that the concept of the public’s right to know developed. The landmark case in
freedom of the press in India was Bennett Coleman & Co. vs. Union Of India1 in which the
petitioners, a publishing house bringing out one of the leading dailies challenged the
government’s newsprint policy which put restrictions on acquisition, sale and consumption of
newsprint. in the Courts” Another development on this front was through a subsequent case19in
which it was held that if an official media or channel was made available to one party to express
its views or criticism, the same should also be made available to another contradictory view. The
facts of this case, briefly, were: One Mr. Shah who was also a Director of a voluntary consumer
rights organisation and had , incidentally, worked extensively on the right to information,
including drafting a model Bill, wrote a paper highlighting discriminatory practices by the Life
1
1973AIR106
Insurance Corporation which is a government controlled body. The Corporation published a
critique of this paper in its institutional publication, to which Mr. Shah wrote a rejoinder which
the LIC refused to publish. The Court held that a state instrumentality having monopolistic
control over any publication could not refuse to publish any views contrary to its own. In the area
of civil liberties, the courts have built up the right to have a transparent criminal justice system
free from arbitrariness. In Prabha Dutt Vs. Union of India2 the Court held that there excepting
clear evidence that the prisoners had refused to be interviewed, there could be no reason for
refusing permission to the media to interview prisoners in death row. Repeated violations of civil
rights by the police and other law enforcement agencies have compelled the courts to give, time
and again, directions to the concerned agencies for ensuring transparency in their functioning in
order to avoid violations like illegal arrests and detention, torture in custody .

RTI EMPOWERING PEOPLE

The RTI social activists too who even preferred to knock at the doors of judiciary have
welcomed the move. Now it is for the public at large in general, in particular the activists, to
make full use of this commission. Unlike many Acts which derive their strength mainly from the
government, this Act’s success depends upon the people and this requires educating the public
on its usefulness and benefits.

The study has revealed that use of the RTI Act has helped litigants win many cases. In one such
case, the Orissa government was forced to reverse a grant of land made to Vedanta's Anil
Agarwal Foundation to establish a private university, as a result of an RTI request.

These cases reveal the efficacy and value of the RTI Act -from fighting "illegal" selection in jobs
to favouritism in government contracts to getting the land meant for a public park back from the
civic bodies. It has also reversed many orders to eventually cancelling mining operations in Goa.
Neighbourhoods too, have benefited against the civic authorities for " encroaching on their
privacy". Combined, the study provides a picture of the RTI Act quite at odds with the '
frivolous' image the Prime Minister and the government -which are trying to amend the Act
2
1982 AIR 06
-have tried to put forward.

Adarsh Housing scam is not the only one which rocked the Maharashtra government. In one such
case involving former chief information commissioner Shailesh Gandhi as the litigant, the state
was hauled up by the court for ' corruption in implementing a housing scheme under slum
rehabilitation programme'. RTI revealed that despite receiving 89 complaints of corruption in the
scheme, the government didn't act and the Court agreed that state and the anti-corruption branch
had not acted as desired.

Another case compiled in the booklet shows how the fisher folk in Thane used RTI to show that
the government didn't renew their lease for boating in a lake in the city and granted it to a private
firm for 25 years without inviting tenders at half the fee they were paying. The firm's claim of
having spent Rs 67 lakh as per its obligation to clean the lake was to no avail with the fishermen
using RTI and pointing out before the Bombay HC that the government had spent Rs 3 crore in
cleaning the lake.

National Mineral Development Corporation (NMDC) fought against the government over the
latter's decision to grant licence for mineral exploration to Tata Iron and Steel Company (TISL)
in Bastar, Chhattisgarh in 2007. RTI showed the mandatory environment clearance was not
given by the Centre. The court held that the "central government had failed to comply with its
own Act before issuing the licence to TISL".

Vedanta's trouble

In June 2006, Vedanta Resources Ltd had applied for land to build a private university.In a
visible " favouritism'', the Orissa government sanctioned 7,000 acres of land to Vedanta's Anil
Agarwal Foundation. But the owners of the land moved court against the state.

Through RTI, it was found that the " preliminary enquiry by the district administration before
any acquisition of land for a firm" was not even conducted.The court quashed the grant of land.
One application reveals the bizarre practice of ' confining juveniles with adult offenders'. One
such petition filed alleged this practice as "rampant in Tihar Jail''. The RTI application got a
reply from the prison authorities that about 114 juveniles have been shifted out of Tihar to
observation homes. But a random check ordered by the court showed that about 100 inmates in
Jail No. 6 and 7 were aged between 15 and 17 years.

To the aid of the common man

In 2006, residents of Maya Enclave in west Delhi had moved against DDA for allowing building
of a CNG megafilling station for buses on a public park. Residents cited the earlier expenditure
of about Rs 6 lakh in planting trees and argued that the land cannot be altered for any other
purpose. The litigants even cited past SC green benches' orders slamming "conversion of green
areas for commercial purposes". The court asked DDA to respect the environmental concerns
and public sentiments.

Professors, staff and students of the Indian Institute of Management, Bangalore (IIM-B) fought
against a liquor vend located just 50 metres from the IIM-B and a hospital. The CEO of IIM-B
filed two complaints and the RTI information revealed that the licence given to the liquor vendor
was for some other location and not near IIM-B.

CHALLENGES FACED WHILE EMPOWERMENT3

Background and Rationale of Research About a couple of years ago, two large scale national
surveys focused on identifying key issues in the implementation of the Right to Information Act,
2005 brought to fore many significant weak spots in the implementation and use of the RTI Act
across the country. One was the Department of Personnel and Training, Government of India’s
commissioned nationwide study executed by international management consultancy
Pricewaterhouse Coopers which submitted its final report in 2001 . The other was a “People’s
RTI Assessment” by civil society groups under the banner RTI Assessment and Analysis Group
(RAAG) and National Campaign for People’s Right to Information (NCPRI), whose goal was
3
RTI FOR INCLUSION AND EMPOWERMENT BY SHOBHA SV , SHIBANI GHOSH AND OTHERS
“to ascertain how India’s nascent right to information regime might be further strengthened” and
came out with its summary report in the same year . It is striking that, among the many issues
that emerged, the foremost finding highlighted by both studies was the low level of awareness
about the RTI Act in rural areas. While the RAAG-NCPRI study declared “there is poor
awareness about the RTI Act, especially in the rural areas” and found that “in only 20% of the
over 400 focused group discussions organized in villages was there even a single person who
knew about the RTI Act,” the PwC study revealed that only 13% of the respondents were aware
of the RTI Act in rural areas. Significantly, it went on to say, “The awareness level among
OBC/SC/ST category citizens was low when compared to awareness level among general
category citizens.” The PwC report also pulled up the government for making inadequate
attempts to create awareness, although it has been made responsible under the Act: “While the
Act has been clear in defining the responsibility of the appropriate Government, with respect to
creating awareness on the Act, there has been lack of initiative from the Government’s side. The
efforts made by appropriate Governments and Public Authorities have been restricted to
publishing of rules and FAQs on websites. These efforts have not been helpful in generating
mass awareness of the RTI Act.

Leading ‘conditions’ in determining awareness - In the absence of any conscious efforts to

promote awareness, a few factors appear to play a key role in determining the contours of
awareness. “Education” was not a necessary condition but being educated beyond an elementary
level certainly increased the chances of knowing about the RTI Act. Among the educated class,
professionally speaking, being a government employee or a teacher (public or private) also
greatly increased the probability that the person knew about the law. Other than these obvious
categories, it was also clear that no matter what caste, class, educational or professional
background, a rural resident with a keen interest in ‘politics’ at any level, political association or
connection was likely to have heard of the RTI Act or tried to use it. These include the set of
people who hobnobbed with the sarpanch or his rivals, agents of political parties at the grassroots
level, those with higher political connections (i.e, close to the MLA or MP), a few socially
conscious (even if politically unaffiliated) and those who made it their business to know about
everything (‘withoutwork-busy’ type). Thus, it was people with some social, financial or
political advantage, or those associated with any hub of power, who were most likely to know
about the RTI Act. The source of this advantage or power could be either education, or
employment in a certain sector, or financial, or political, i.e., association with any political
group, NGO or sangathan. Conversely, those disadvantaged in society, i.e, those who lacked any
link to any source of power or empowerment were least likely to know about the RTI Act.
Awareness and Accessibility to Information of Vulnerable Rural... 155 In a major finding of this
study, it emerged that, without a conscious and sustained intervention, awareness about the RTI
Act tends to flow along already established hierarchies. Inevitably, and rather paradoxically,
awareness – and use – of the RTI Act is more likely to vest in those pockets of power that the
Act itself seeks to destroy. Conceptualization about RTI – And the Link between “Awareness’
and “Use” - Amongst those who claimed to know about the RTI, it is important to see what they
understood its essence to be, or how they conceived of it as being useful in their practical lives.
For those at the bottom, the question of using RTI when faced with any problem or lack of
information linked to their lives or livelihoods did not even arise, as they were simply unaware
of it. ‘Respect’ for the overt and unsaid heriarchies play a strong role in the psyche of people
living in rural areas. Every person interviewed who was not himself/herself in a position of
power said that the initial step they took when faced with a problem concerning the government
(such as water, roads, drainage, ration etc.) was to speak to the sarpanch or ward panch. In some
cases, they would go to the local head of their group or clan who in turn would use his
“approach.” The better educated would try to meet the concerned officer himself, or use “higher”
connections. The question of using RTI at the first instance almost never came into their heads
(unless they were activists or associated with the MKSS). On the other hand, it appeared that the
“benefits” of using RTI were immediately recognized when it was for eliciting information about
rival groups, or where a dispute was involved (say regarding land or BPL status). The use of RTI
to obtain records such as muster rolls, bills, vouchers, etc. about any development work in the
village was done almost exclusively by social activists or by people harbouring political rivalries.
Thus, while being educated had a direct bearing on being aware about the RTI Act, being
educated and aware alone did not necessarily translate into using the RTI Act. For this, another
crucial ingredient became a pre-requisite. To actually use the Act, people needed to perceive that
the effort of using this Act could actually bring a concrete benefit – especially where obtaining
information was not an end in itself. Conversely, even if one was not educated but was aware
and perceived this link, the chances that they have used or would use the Act was higher. At this
stage, one more pre-condition became important to translate Sowmya Sivakumar awareness into
use. For those at the bottom, who usually confronted a hostile power structure, the strongest
deterrent that came between awareness and use was Fear.How does one deal with this? We
introduce a law to make information open and importantly, equally open to all and now we have
to introduce a law to protect information seekers. Why? And if that doesn’t work will we be
introducing a third law to enforce the second? All legislation relies on a delivery mechanism that
ensures it is implemented in letter and spirit. In the RTI Act, credible ‘punishments’ were
supposed to provide the strong ‘stick’ to ensure that information will be provided. That is,
punitive provisions in the Act put a pressure on information-givers to adhere. It also emphasizes
on suo-moto disclosures although without any strong penalties for not doing so. Both these
address, so to speak, the “supply-side” of information. But nothing in the Act strengthens the
hands of the information-seekers or actually recognizes that there are obstructive factors at work
which do not let some of them even reach the stage of applying under the Act. The in-built
presumption is that, being a law under the Constitution it would equally apply to every individual
automatically and everyone will be able to use it. Nothing could be further from the truth than
this in reality. To solve the problem of use, one has to confront the larger problem of exploitation
in our society and why it continues. Ignore this, and no amount of legislation will be able to
correct this anomaly. In exceptional cases where people have displayed extraordinary strength,
the RTI Act can sometimes prove to be a magic wand which levels the powerless and powerful
but in a vast majority of cases, it is not sufficient in itself to encourage the rural poor or exploited
to confront what is seen as an insurmountable power structure. The brilliance of the RTI Act—in
that it puts power in the hands of every individual - is being offset in large part by the disturbing
fact that people, who have been conditioned to believe for years that actual power never vests
with them but in someone more powerful, are not even able to comprehend that they have this
power, and what they can do with it. A less strong but nevertheless real deterrent proves to be the
‘cost’ of applying under the RTI Act. This includes both the financial and perceived costs such
as the physical effort of going to the block or district level office, the hesitation to speak to
anyone in a seat of power, the reluctance to be meted out with undignified treatment or
Awareness and Accessibility to Information of Vulnerable Rural the apprehension that one
would go all the way with no guarantee that the application would get accepted, coming on top
of a loss of the day’s wage or work .
A third “obstacle” in the use of RTI Act lies in the minds of people themselves. When explage
attitudinal change in the people but also relates to the systemic failure which conditions them to
think in a certain way. Finally, a word on “harassing” applications here. Across-the-board in
government offices visited at any level, the common sentiment echoed by many dealing officers
and clerks was “we get bombarded by applications. At this rate, we have to stop doing all other
work and deal only with RTI applications.” Or “this is an Act for troublemakers. People with an
agenda to harass us are making maximum use of the Act.” The figures collected from various
offices did not bear out the first set of sentiments. For example, the highest number of
applications in a year (for which data is available) from the District Collectorate, Jhunjhunu
(ADM’s office) was 233 in year 2010, which is not even an average of one application a day;
while it was much lower at 82 in Rajsamand (an average of one application every four days) in
the same year. The highest number of applications per annum at the SP’s office (Rajsamand) was
170. Applications at the block level offices were far less, averaging 4-5 applications a year, at the
maximum. Other than Vijaypura panchayat, the average applications per year at the panchayat
office was Zero, and in Vijaypura, it was an average of 6 applications a year. On the second
charge, further probing revealed that applicants seeking voluminous information were few and
far between, moreover, the rural poor or exploited were definitely not amongst Sowmya
Sivakumar them. As admitted by the dealing clerks themselves, the ‘harassers’ most likely
belonged to the government sector itself (employees or ex-employees) or were educated and out
to settle political or personal scores. Secondly, the lack of training for dealing officers and poor
record management systems in government offices also led to a sense of frustration when faced
with applications demanding voluminous information. Channels of awareness - What were the
most common channels through which knowledge about RTI reached rural residents? Other than
the political representatives, those who knew about the RTI Act had mainly read about it in the
newspapers. Few mentioned television or had come to know of it through word of mouth. Some
of the more politically aware recalled examples of how someone they knew had used the RTI
Act but none except elected representatives and field level officers consciously recalled any
dissemination by the government as a source of information about the RTI. Why is Awareness
So Unequal? Simply because we are trying to introduce an equal law (in the eyes of the
Constitution) on an inherently unequal society. We delude ourselves into believing that in a
“representative” democracy everyone has a voice, whereas in reality this system itself legitimizes
inequalities and creates hierarchies. Any instrument of justice introduced into such a given
system is bound to play into the hands of the powerful; those at the top of the pyramid and
completely bypass those at the bottom. ‘Grassroots’ democracy of the type implemented in India
(in the name of panchayati raj) further determines the contours of awareness at the village level,
actually reinforcing the hierarchical structure already in place. Additionally, the nature of
information is such that it is not in the interest of those in a position of power to allow those
below to acquire any sort of awareness that will endanger their position. In all logic, the “trickle-
down approach” simply does not and cannot work when one is talking of a power-threatening
legislation as the right to information. This is why the government machinery cannot be relied
upon to deliver awareness about the RTI Act to its citizens. It is not the same as creating
awareness about eating eggs, or breastfeeding, or the ills of smoking. It is also not in the interest
of anyone above someone in a hierarchy to aid that person to become empowered enough to
disturb the heirarchy. This is also why any one who commands any power Awareness and
Accessibility to Information of Vulnerable Rural over others at the micro-level (in a village
setting) cannot be relied upon to create awareness about the RTI Act. The farmer who has taken
away the land of his tiller or pays him an exploitative wage, is not going to educate labourers
about how to obtain land records, or information about minimum wages. The corrupt sarpanch or
sachiv is not going to help villagers unearth corruption in works executed by him, although his
rivals might, if only to come into that same position of power themselves. The answers as to both
why there is such low awareness and why the existing awareness is only in a few people’s hands
can be crystallized from this basic “preservation instinct” that a hierarchical system such as ours
actually sanctions and endorses. What we have here is a structural problem, which is hastily
dismissed by all as beyond the realm of feasible change. A serious broadbased debate on an
alternative structure of governance, or what can break this hierarchical, exploitative
superstructure has not even taken seed. Unfortunately, these are tough questions that one may not
find answers to in a lifetime, and hence are seen as better swept under the carpet. But it is also in
these that the lasting solutions are likely to lie. If one proceeds on the premise that the inherent
inequalities in our system will remain unaddressed, (as it is now) what we are left with is
tinkering around the present system that can only, at best, offer patchwork solutions which may
mitigate, but never actually strike at the roots of the problem of lack of awareness
ATTEMPTS TO CREATE AWARENESS / CONCLUSION

The Government Hand So far, efforts at creating awareness by the government have been
entirely top-down. Not only this, they have been entirely unimaginative. Here, two levels of
awareness have to be kept in mind. At the very basic level, people first have to be made aware
that such an Act exists, and what its essence is. Side by side, a higher level of awareness needs to
be kicked in - by informing people about the nitty-gritties of how to apply under the Act and the
procedures involved. The only dissemination done regarding basic awareness creation at the
village level is text-heavy wall paintings on RTI which are 160 Sowmya Sivakumar often
entirely lost in similar publicity for a gamut of government schemes and government/non-
governmental campaigns. A completely uninformative poster which blandly reads nothing else
but ‘adhik jankari keliye lok suchna adikari se sampark karen” (for more information, contact
your PIO) has been recently printed for dissemination by the government of Rajasthan. No
doubt, such posters are likely to fox those in the dark even further or maybe, it was designed to
end up raising curiosity levels of citizens! At the second level, three distinct types of attempts
could be delineated:

1. Display boards – Mandatory under Section 4 of the RTI Act are boards providing
information regarding the name of the public office, PIO, application fees, inspection and
photocopying fees. Also important are a physical display of information regarding the
services, rules, procedures, responsible officers, etc. concerning that particular office or
department. Thus, while government offices have been criticized by activists for tardy
implementation of Section 4, especially putting up of boards, I would say it needs to go a
step further back and begin at the basics, i.e, look at and give a thrust to innovative 162
Sowmya Sivakumar ways of creating awareness about the essence of the Right to
Information. The most commonsensical way would be to introduce RTI to each and every
development scheme in all its publicity campaigns.
2. .Dissemination at the time of Camps – A recent campaign by the state government called
“Prashasan Gaon ke Sang” saw field level functionaries share some information about
 RTI with rural residents along with hearing out their problems. Other than this, any new
information on RTI is exchanged amongst the lower rungs of bureaucracy in monthly or
fortnightly meetings at the panchayat or block.
3. 3. Trainings of Government Officers and Elected Representatives
4. 4. Setting up Dedicated RTI Cells – There has been talk of forming dedicated RTI cells in
certain public office through official circulars of the state government.