How to bring transparency in Administration
through the use of RTI?
MAHENDRA SUBHASH KHAIRNAR*
The State is seen as the legal creation of an individual will. People undertake to obey a Govt. which they themselves have chosen. Freedom and Equality of men are the basis of their happiness. The State and the State Laws thus remain subject to the general will which creates the State for the better protection of Freedom and Equality.
-Rousseau
The major chunk of this paper is on :
1. Why transparency is needed,
2. Who will bring transparency in Administration?
3. How transparency will come in the Administration,
-what is Right and RTI
-Constitution and RTI provisions,
4. Administrative Authority should know-,
5. Significance and Conclusion.
As it is well-known in the democracy that, the State is accountable to people because people because people surrendered their right to the institution of state. Thus the State is such an institution which comes into existence on the consent of the people .So State and its wings should act in such a way that to satisfy people and show the transparency in each transaction, in each sphere of Govt./State and made themselves accountable to people. Ultimately administration and legal system and State is for the people1.
*LL.M.1st, Dept. of Law,
1. Locke imagined an actual social contract between individuals and the state at the setting up of civil society in which citizens, in order to secure the protection of their right, handed over certain powers to the Govt in return for the guarantee of certain rights to live, liberties and estates.
-Locke, The Second Treaties Of Govt.,(1698)
Certain recent developments might suggests that a significant movement towards more open Govt. has been taking place over the last few years and is gradually gaining strength brought about acceptance of the principle of access rights in some areas including local governments.
RIGHTS-
Citizens can never be fully assured of the safety of their liberties, until they are removed out of the reach of Govt by identifying and enshrining them in a Bill of Rights2. It is thought that Govt. cannot expected to keep a satisfactory check on itself, only some source of power independent of Govt. can do so.
If it is claimed that ‘x’ has a right proper, or claim to ‘A’, this means that persons generally or specific persons, are under some specific corresponding duty to ensure that ‘X’ has access to ‘A’3.
In similar manner when any statutory right conferred on the people against the State or its machinery then such State or its machinery comes under an obligation and duty bound to satisfy such statutory right of the people.
Right to Information is one of such Constitutional and Statutory Right guaranteed by the State against itself states itself and its administrative wing4.
Men adopt the first principle that, each person is to have an equal right to the most extensive .total system of equal basic liberties compatible with a similar system of liberty for all.’
-J.Rawls –A Theory of Justice
An ideal society is one in which there is the maximum amount of preference satisfaction.
- Jeremy Bentham’s follower Smart and William
OBJECTS
Probably the most important value associated with Freedom of Information is the need for the citizen to understand as fully as possible the working of Govt. in order to render it in the public domain. The citizens’ right to know is recognized in almost all democracies including the
2.
3. Nature of a Right – American jurist Wesley Hohfeild Fundamental Legal Concepts as applied in Judicial Reasoning (1920)pp. 35-41
4. Right to Information Act, 2005
Some Constitutional provisions, e.g. Art.19 (1) (a), 22(1)
In such countries the general principle of freedom of information is subject to exceptions where information falls into specific categories5.
The term ‘freedom of information ‘ also overlaps with certain privacy interests since it may cover many situations in which a person might wish to receive information, apart from that of the individual who wishes to obtain and publicize Govt. information.
The concept of freedom of information largely derives its legitimacy from the justification for free expression6.
Right to Information in the Constitution of
The expression freedom of speech and expression` in Art.19 (1)(a) has been held to include the same. Communication and receipt of information are the two sides of the same coin without adequate information; a person cannot form an informed opinion. In State of Uttar Pradesh v Raj Narain7, the SC has held that Art.19(1)(a) not only guarantees freedom of speech and expression, it also ensures and comprehends the right of the citizens to know, the right to receive information regarding matter of public concern.
In Dinesh Trivedi ,M.P. and Others v Union of India8, the SC dealt with the right to freedom of information and observed,” in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Govt. which, having been elected by them seek to formulate sound policies of governance aimed at their welfare”.
The Delhi High Court in Association for Democratic Reform v
It will be appreciated that the judiciary has used in craftsmanship to harness the right to information to achieve an extremely laudable social objectives, viz., that of preventing criminalization of the Indian politics.
5. In countries which have Freedom of Information, the usefulness or relevance of the information is determined by the person who seeks it rather than by Govt. miisters or civil servants. Usefulness is not an objective quality but depends upon the purposes of the seeker which only he or she can appreciate and therefore it may be argued that this is an unwarranet limitations on the principle of ‘openness’.
Civil Liberties- Helen Fenwick, Lawman (
Art.10 of the European Convention which speaks in terms of the freedom to receive and impart information.
6. Constitution of
7. AIR 1975 SC 865, p. 884
see also, Reliance Petrochemicals Ltd. V Indian Express, AIR 1989 SC 190, Secretary, Ministry of Information and Broadcasting, Govt. of India v Cricket Association of Bengal, AIR 1995 SC 1236,
8. (1997)4 SCC 306
9. AIR 2000
Right of Information Act, 2005-.3
Prior to passing of the RTI Act of 2005, there was freedom of Information Act of 2002 which was subsequently repeal by virtue of this Act of 2005, which provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities. In order to promote transparency and accountability in the working of every public authority.
One could understand the object of this Act from the above paragraph which sets out nothing but frame work of the Act through which every responsible authority has to pass.
Preamble of the Act, shows significance and necessity of the Act, which reads, ‘democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Govt. and their instrumentalities accountable to the governed i.e. the people. To understand the Act two things are most important to know i.e. what is mean by ‘information’ and who are the public authorities to whom information is to be sought or who will provide such information10. These public authorities shall perform duties as laid down under Sec.4 of the Act11.
When these public authorities perform their duties in accordance with sec.4, in general, and according to the Act, in particular, then the object of the Act will be achieved.
Administrative authority should know-
The sphere o administrative authority expanded more than, had been anticipated during the post-1950 period and become more obvious and more openly acknowledged. Several laws were enacted to promote a ‘welfare state’. These invested powers in the administration to decide variety of issues.
10. Sec. 2(f)-“information” means any material in any form, including- records, documents, memos, e-mails, opinion, 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.
Sec. 2 (h) - “public authority “means any authority or body or institution of self-Govt., established or constituted –
A by or under the Constitution,
b) by any other law made by Parliament
c) by any other law made by State Legislature
d) by notification issued or order made by appropriate Govt. and includes any-
i ) body owned, controlled or substantially financed,
ii) Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Govt.
11. See Sec.4 of the Act
The growth of the administrative responsibility is a recent aspect of the general phenomenon of the growth of administrative power. The modern state first progressed from the period of the so-called ‘lasseize faire’ and then made transit to the present age of the ‘welfare state’. This there has been an increase and expansion in administrative power.
The administration of so many services and controls under the vast bureaucratic machinery of the Govt. inevitably causes many grievances and the complaints. When a Govt. Depts. Has misled the complainant or delayed his case excessively or treated him badly. In such cases the vital necessity is the impartial investigation of complaints. What every form of Govt. needs is some regular and smooth running mechanism for feeding back the reactions of its disgruntled customers, after impartial assessment and for correcting whatever may have gone wrong. It is a fundamental need in every system.
Administrative authority fear to disclose information, because-
- to prevent public scrutiny of certain official decisions,
- disclosure of information would affect national security,
- disclosure of information would adversely affect ministerial accountability.
Conclusion:
This object of this paper is to show, the administrative authorities, who are always impression that, this Act has laid an unwarranted burden on their sholder, that how much state accountability is necessary, how Right to Information paved the ways towards modern democracy and how administration is accountable to the people for transparent working of every public authorities. This paper is most useful for those who are in either ways associated with the administration.
BIBLIOGRAPHY
1. Administrative Justice in
SAGE publications,
2. The Right of Privacy – A Symposia, NewYork,1971
3. Human laws and Human Justice- Julius Stone
Universal Laws Publishing Co. Pvt. Ltd , 2004
4. Civil Liberties- Helen Fenwick
Lawman (
5. Constitution of India- M.P.Jain, Wadhawa,
J.N Pandey , Central Law Agency
6. Freedom of Information – P.Birkinshaw, 1988
Right to Information Act, 2005
General Clauses Act,1897
Constitution of
Freedom of Information Act, 2005
http://righttoinformation.gov.in/
http://persmin.nic.in/RTI/webfaqRTI.htm
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