RIGHT TO INFORMATION AND MEDIA LAW

In international law, freedom of information was recognized as a Fundamental

Human Right by the United Nations (UN) at the first session of its General
Assembly in 1946. The UN adopted resolution 59 (1) which declared that
"Freedom of Information is a Fundamental Human Right". In ensuring
international instruments on Human Rights, freedom of information was made a
part of the Fundamental Right of Freedom of Expression, which included the right
to seek, receive and impart information. In 1948, the UN General Assembly
adopted the Universal Declaration of Human Rights (UDHR), which reads 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.

The principle of maximum disclosure was adopted globally which meant that all
public institutions are obliged to disclose information, which would be denied in
extremely limited circumstances. Moreover, the regional Human Right treaties
like the European Convention of Human Ri8hts, 1950, the American Charter on
Human and People's Ri8hts 1981, the Inter- American Declaration of Principles
of Freedom of Expression 2000 and Declaration of the Principle of Freedom of
Expression in Africa, 2002, have reiterated Article 19 of the UDHR by adopting
Freedom of Expression and Information as a fundamental human right.

In India, the Constitution does not expressly provide any right to freedom of
information. Part III of the Constitution dealing with Fundamental Rights is
conspicuously silent on the right to freedom of information. However, the fact that
India has ratified Article 19 of Universal Declaration of Human Rights dealing with
the right to "seek, receive and impart information" may be regarded as it adopting
the right to information. In fact, the right to information in India emanates from
various Supreme Court judgments that read this valuable right as part of Article
19(1) (a) guaranteeing the "right to freedom of speech and expression" . Over the
years, the Supreme Court has consistently ruled in favour of the citizen's right to
know. The nature. of this right and the relevant restrictions thereto, has been
discussed by the Supreme Court in a number of cases.

Giving the judgment in the case of Cricket Association of Bengal vs. Union of
India (1995), the Court observed that the right to impart and receive information
from electronic media was included in the freedom of speech. The airwaves were
held to be public property and hence distribution of these waves between
government and private channels was to be done on an equitable basis.

In the case of Bennet Coleman v. Union OF India (1973) the Supreme Court
stated that the right to information was held to be included within the right to
freedom of speech and expression guaranteed by Art.19 (1) (a) of the
Constitution of India. This case, which was about the restriction of newsprint to
newspapers, led the Supreme-Court to observe that such restriction meant that
an infringement of the right of the citizen's right to read and therefore, an
infringement of the right to information. Thereby Article 19 (1) (a), which
guarantees the right to freedom and expression would be infringed if the news
print were not to be provided to the newspaper.
Right to information was also interpreted under Article 21 which protects the right
to food, education, health and personal liberty from restraints and illegalities.
When information which is related to these basic rights is not disclosed, can this
be seen as infringing the right to information? This question was answered by
Justice Mathew in the case of State of UP vs. Raj Narain (1975), who observed
that

In a government of responsibility like ours, where all the agents of the public
must be responsible for their conduct, there can be but few secrets. The people
of this country have a right to know every public act, everything that is done in a
public way, by their public functionaries. The responsibility of officials to explain
and to justify their acts is the chief safeguard against oppression and corruption
(State of UP vs. Raj Narain, 1975,4 SCC at 428).

In the case of S.P.Gupta v. Union of India (1982), the seven Judges Constitution
bench added a fresh, liberal dimension to the need for disclosure in matters
relating to public affairs. The Court held that in regard to the functioning
government, disclosure of information must be an ordinary rule, while secrecy
must be an exception, justifiable only when it is demanded by the requirement of
public interest (S.P.Gupta v. Union of India, AIR 1982 SC at 149). Moreover, in
the case of P.U.C.L.V Union of India (2004), it was held that the right to
information was further elevated to the status of a human right, necessary for
making governance transparent and accountable. It was also emphasized that
governance must be participatory (P.U.c.L. vs. Union of India, 2004, SCC at
476).

These judicial shifts were accompanied by a changed political discourse on

secrecy and governance. For instance, the Mathew Commission (1982) in its
report recommended amendment to Section 5 of the Official Secrets Act (1923)
on the ground that it suppressed the freedom of press and voices of the poor and
marginalized section of the society. The Commission also emphasized the
citizen's right to know, hereby reflecting some of the shifts in the judicial
discourse. The clearest exposition of the right to know was expressed in 1989
when the V.P.Singh's government declared its decision to make right to
information a fundamental right. He expressed his intension in April 1991 in the
20th Conference of Ministers of Information and Cinematography as "an open
system of governance is an essential prerequisite for the fullest flowering of
democracy".

The right to information act replaced the Freedom of Information Act and
repealed the Official Secrets Act along with several other minor legislations
tracing their origin to the British Raj. The Act was passed in the Parliament on 15
June, 2005 and came into force on 12 October, 2005.

The main aim of the Act is to provide the citizens the right to information which
will enable them to have access to information that controlled by public
authorities. The Act seeks to promote transparency and accountability in the
working of every public authority, besides providing for the constitution of Central
Information Commission and State Information Commissions. The Right to
lnformation Act is constituted by a number of assumptions about information,
right to information, accountability, transparency, governance, good governance,
corruption and public authority.
Information is viewed as power. The term information has been derived from the
Latin word 'formation'; form means giving shape to something and forming a
pattern. Information adds something new to our awareness and removes
vagueness of our ideas. Nimmer (1992) also looks at information as power. He
says that "information, unlike goods, can be used without being used up and can
be sold without being given up. One can sell and deliver information to another
but still retains the information in his possession and for his own personal
use,,15. Many scholars have argued that information is power and secrecy is the
anti-thesis of democratic governance. In many ways, the government is seen as
a "repository" of information over the citizens has a right. Information then is
conceptualized as something which belongs to citizens. This is incorporated in
the governance agenda as a technique of enhancing citizen's participation in
governance.

The RTI Act could change the nature of governance if it is effectively

implemented. It could establish a process of transparent and inclusive
governance which could gradually shift the Indian democracy from a
representative one to a participatory one

that the public functioning has traditionally been conducted in secrecy; the power
to decide whether the information is secret or not, still lies solely with the
government. The Government by classifying any documents as secret can
prohibit access to it.

Given the colonial climate of mistrust of people and the primacy of public officials
in dealing with the citizens, the Act created a culture of secrecy. Confidentiality
became the norm and disclosure the exception. Additionally, the Civil Services
Conduct Rules, 1964 (which prohibit communication of an official document to
anyone without authorization) and section 123, 124 and 126 of Indian Evidence
Act, 1872 (regulating the power of the government to withhold information) also
tampered with the right to information.

the matter relating to the non- disclosure of file noting also inhibits the
implementation of RTI. File notings are the ad hoc written notes added to file by
officials and thus can give a critical insight into the government decision -making
process25. Section 2(i) (a) of the Act defines 'record' to include any document,
manuscript and file. The manual office procedure defines 'file' to cover 'notes'
and 'appendices to notes'. Further, under Public Records Rule, 1997 'file' means
'a collection of papers relating to public records on a specific subject matter
consisting of correspondence, notes, and appendices'. Thus from a legal and
technical point of view the term file as understood in section (i) (a) of the RTI Act
includes file notings and it can legally be disclosed as per the requirement of the
law .

This legislation is a double-edged sword with ample scope for misuse as well. As
the legislation does not enquire about the purpose of the information being
sought. The purpose behind acquiring the information is not always positive but
sometimes it is to malign the department or a person of very high stature in the
government organization. The legislation has been misused by several people for
settling personal scores with their opponents’ arising out of their family or
matrimonial disputes, maintenance claims, rivalry, enmity or vengeance or for
harassing public officials.
Judicial Interpretation

The Supreme Court held in Raj Narain v. State of Uttar Pradesh(1975) that right
to information is a part of constitutional and fundamental rights under article 19(1)
(a). Even though the Right to Information Act, 2005 or any such legislation did
not exist at that point of time, Indian courts had already recognized the
importance of information as early as 1975, as is evident from the above
judgement.

The Supreme Court further held in Central Board of Secondary Education v.

Aditya Bandopadhyay(2011) that the right to information is a cherished right.
Information and Right to Information are intended to be formidable tools in the
hands of responsible citizens to fight corruption and to bring in transparency and
accountability. The provisions of RTI Act should be enforced strictly and all
efforts should be made to bring to light the necessary information under clause
(b) of section 4(1) which relates to securing transparency and accountability in
the working of public authorities and in discouraging corruption. But in regard to
other information, equal importance and emphasis are given to other public
interests. The Apex Court further remarked, “indiscriminate and impractical
demands or directions under RTI Act for disclosure of all and sundry information
would be counter-productive as it will adversely affect the efficiency of the
administration and result in the executive getting bogged down with the non-
productive work of collecting and furnishing information ”

The Court further remarked that the exemptions specified in Section 8 should not
be considered as "a fetter on the right to information but they should be taken as
equally important provisions protecting other public interests essential for the
fulfillment as preservation of democratic ideals". The Act should not become a
"tool of oppression" and obstruct the national development and integration or to
destroy peace, tranquility and harmony among citizens. The Court observed that,
"the nation cannot afford to have the honest public officials bogged down with all
and sundry request unrelated to corruption as it will adversely affect the
efficiency of the government agencies."

In order to reduce the burden on public authorities due to multiple requests for
the same information, the Central Information Commission held in R.K. Gupta v.
Income Tax Appellate Tribunal that the provisions of the RTI Act cannot and
should not be used for starting a parallel process about information disclosure.

The case of Uma Kanti & Ramesh Chandra v. Navodaya Vidyalaya Samiti is a
glaring example of the worst possible misuse of the RTI Act. The appellants filed
several unnecessary information requests under the RTI Act due to a personal
grievance with the defendant organization. The Central Information Commission
held that this case along with some others like Shri Faqir Chand v North Western
Railway, Jabalpur “show the necessity of including a provision in the RTI Act for
taking punitive action against the appellants who seek to misuse the RTI Act in
such a blatant fashion.”

The Central Information Commission remarked in Satish Tiwari v. I.O.C.L that it

is “indeed very unfortunate that a large number of persons who themselves are
not so clean in so far as their conduct and behaviour, including economic
integrity is concerned and it is they who have been misusing the provisions of the
RTI Act for promotion of personal interest at the heavy cost of public expenditure
22
which are incurred in processing the RTI applications. ”
The scope of the RTI Act has also been expanded as well as restricted after
several judicial pronouncements. The Supreme Court held in Reserve Bank of
India v. Jayantilal Mistry(2016) that RBI ought to act with transparency and
therefore it comes under the RTI Act. The Delhi High Court ruled in Subhash
Chandra Agrawal v. Office of AG (2015) that the Office of the Attorney General of
India is a “public authority” under the Right to Information Act. This was contrary
to the order of the Central Information Commission that held that the Office of the
Attorney General of India is not a “public authority”. The Delhi High Court held in
Subhash Chandra Agarwal v. The Registrar, Supreme Court of India(2015) that
the medical expenses of judges and their families do not fall under the ambit of
the RTI Act.

The Delhi High Court held in Adesh Kumar v. Union of India (2015) that an RTI
application can be filed even if the information sought under such application is
not genuine or even if the applicant has access to such information through other
means. The Kerala High Court held in Jiju Lukose v. State of Kerala(2016) that
police authorities are duty bound to provide a copy of the First Information Report
on receiving an RTI application, unless an appropriate authority declares it to be
exempt under Section 8. The Central Information Commission directed the
Department of Justice in S.N.Shukla v. Ministry of Law & Justice to disclose the
cabinet note and details about its decision to establish National Judicial
Appointment Commission. Prior to this, the Department of Justice had refused an
RTI application seeking the same information reasoning that it was a cabinet
secret and therefore exempt under Section 8.

Misuse

After going through the relevant judgements concerning the Right to Information
Act, 2005, one can infer that is being misused by casual or habitual information-
seekers due to two primary reasons. The first one being, non-applicability of the
locus standi rule for filing RTI applications. The second being, non-requirement of
giving reasons for seeking information. Both of these loopholes “leave ample
scope for non-serious information seekers to misuse it for their personal interest”

RTI is misused not only by the private citizens but by the politicians and
bureaucrats as well for their own gains. Political parties have cleverly avoided
coming under the scope of the Right to Information Act, 2005, because if they did
then they would have to furnish details of the sources of their funding. The
legislature has not entered this controversial arena for the sole reason that the
legislature itself comprises of political parties.

It may be noted that at several occasions, the RTI applications, are not to satisfy
one's doubt but also to derive various vicarious pleasures. “Public interest” which
the Act intends to secure is missing in many RTI applications. There have been
instances where applicants seek policy related information and many a times the
applicants have vested interests. At times the Act is used by people to harass
their colleagues. There are numerous instances of applicants demanding
irrelevant or frivolous information. Such a selfish and unintelligent use of the Act
will defeat the very objective of the Act. It has also been observed that the Act is
frequently being used by government servants, mostly disgruntled, under
disciplinary proceedings to settle their service matters. It is also being misused
.
by people interested in gathering evidence in their litigation cases

There is also a likelihood that the applicant may not turn up to pay the additional
fees once the information is ready. It is also unfortunate that the language being
.
used by requestors is at times, intemperate and impolite, to say the least The RTI
Act is being used by business competitors of public authorities. In certain cases,
some NGOs are indulging in getting projects sanctioned from international
agencies which they complete by simply filing.

Media and Development

The media can make a real difference to the lives of poor and disadvantaged
people by:
• making people more aware of their rights and entitlements;
• enabling people to have access to government programmes, schemes and
benefits;
• making people more aware of political issues and options and helping to
stimulate debate;

• educating the public on social, economic and environmental issues;

• drawing attention to institutional failings – corruption, fraud, waste, inefficiency,

cronyism, nepotism, abuse of power and the like;
• fostering exchange of best practices, knowledge resources, access to better
technology, and to better choices;

• creating pressure for improved government performance, accountability and

quality, for example in service delivery; and
• providing a discursive space for citizens to dialogue with other actors in the
governance process.

The three main areas through which the media can make a significant impact on
development and poverty reduction are:

1) Empowerment

Media has a definite role to play in the empowerment of citizens. It gives voice to
the needs and aspirations of the people and provides them access to relevant
information. When people lack a voice in the public arena, or access to
information on issues that affect their lives, and if their concerns are not
reasonably reflected in the public domain, their capacity to participate in
democratic processes is undermined.

Media, in all its varied forms, has opened up the potential for new forms of
participation. The access to information and accessibility of information has
increased with growth of print and electronic media and the Internet. Thus, the
vulnerable and marginalized sections of the society such as the poor, women,
weaker sections and socially disadvantaged are also using the media to make
their voices heard.

2) Social Awareness & Action

The potential of mass media to be effectively employed to enhance social

awareness is unquestionable. The media can be effective in not only preserving
freedom but also extending it. The news media plays a decisive role in
establishing a discursive space for public deliberations over social issues. The
formative influence of the media on public attitudes, thoughts and perceptions is
fundamental to the process of citizen engagement in public dialogue.

Giving a voice to the poor also entails giving the poor people adequate
opportunities to take initiatives for overcoming their problems. The media,
through its role in shaping public awareness and action, can be a critical factor in
facilitating sustainable development and poverty reduction.

3) Good Governance

Good governance is recognized as central to poverty eradication, and a free

media is a necessary condition for good governance. As an information conduit
between corporations, government, and the populace, the media acts as a
watchdog against government malfeasance, while at the same time fostering
greater transparency and accountability.

The media monitors public service delivery and reports on key issues to the
public at large, and in this process exerts pressure on public service providers.
By highlighting institutional failings to guard against and institutional successes
for replication, the media creates the right framework of incentives for good
governance.

A free press is integral to good governance. It lets people voice diverse opinions
on governance and reform, expose corruption and malpractices and help build
public consensus to bring about change. It monitors basic public service delivery
and promotes human development.

Last but not the least, it educates the public and builds public awareness on key
socio-economic issues.

The World Association of Newspapers (WAN), the global organisation of the

world’s press has long argued that a free and unfettered press is a positive force
for accelerated and equitable socio-economic development. It held that the
predominance of free and independent press accompanies economic growth and
human development. In countries with free press, human development indicators
such as school enrollment, teacher-pupil ratio, pupil performance, infant
mortality, maternal mortality, nutritional status of women and children etc. tend to
fare better than countries with restrictions on press and freedom of information.
The work of the Nobel Laureate, Amartya Sen has even established a link
between active media and the avoidance of disasters like famines. The role of
media as a watchdog of the government and the corporate sector, a transmitter
of new ideas and information, a voice of the poor, a safeguard against the abuse
of power and neglect of the socially vulnerable, and a builder of public consensus
to bring about change is pervasive.

As experience has shown, the independence of the media can be fragile and
easily compromised. It is clear that to support development the media needs the
right environment - in terms of freedoms, capacities, and checks and balances.
The Right to Information regime does give the media that critical support.

Right to Information and Role of Media

Article 19 of the Universal Declaration of Human Rights adopted by the United
Nations states: “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.”

The short section on media in the Plan of Action (C.9) states that “The media
have an essential role in the development of the Information Society and are
recognised as an important contributor to freedom of expression and plurality of
information.”

In fact, mass media is the most important vehicle for information, knowledge and
communication in a democratic polity:

a) They are pervasive and play a significant role in shaping societies; they
provide the public sphere of information and debate that enables social and
cultural discourse, participation and accountability.

b) They are the most accessible, cost-effective and widespread source of

information and platform for expression.

Information is power. The media can play a crucial role in building an inclusive
Information Society based on knowledge power and its distribution. For media to
fulfill its potential, actions are required in three key areas:

1. To protect and extend media freedom and independence, and rights of access
to information;

2. To actively develop the potential of media to provide information, a forum for

debate on topics of public interest, cultural expression and opportunity to
communicate, especially to the poor and marginalised;

3. To strengthen the capacity of media to promote and help build an Information

Society – raising awareness, channelling civil society concerns, debating policies
and holding government, private sector and civil society accountable.

Traditional systems of information access in India have made journalists

dependent on sources they must cultivate. Whether bureaucrats or politicians,
much depends on the privilege and patronage of the individual source. Such
relationships of patronage not only make journalists depend on very feudal
relationships, it often makes them use the information regardless of its veracity.

An RTI regime can enable credible, evidence-based and factual reporting on key
issues of public interest. It can enable the media to expose mal-administration,
corruption and inefficiency and to propagate stories and instances relating to
accountability, transparency, effective administration and good governance. By
using the RTI Act, the media can play an important role in highlighting issues
related to public service delivery and the efficacy and accountability of public
officials.

The media can play a constructive role in the governance process by:-

• Catalyzing Effective Implementation of the Act: As the ‘fourth pillar of

democracy’, the media not only has an important stake in what the RTI Act
purports to provide and achieve, but also in catalyzing and entrenching the
implementation and enforcement of this significant piece of legislation.
• Providing Information to the Citizens and Building Awareness on the Act:
Despite the provisions that have been made to access information, citizens resort
to media like newspapers, radio, television etc. for day to day information about
public authorities and their activities. The media provides a link between the
citizens and their government. The media’s right to information or right to tell is
not a special privilege but rather, an aspect of the public’s right to know. The
media should fulfill this obligation.

• Giving Voice to the Citizens: As part of the civil society, the media has an
obligation to articulate the needs and aspirations of the people. Using the Act, the
media can highlight key issues faced by the citizens, particularly those faced by
the poor and voiceless.

• Acting as a Watchdog on behalf of the Citizens: The best service that the
media can provide to the public, whether in a mature or emerging democracy, is
that of a community watchdog. Journalists should see and perform their role
keeping in mind public interest. Using RTI, the media can expose corruption and
inefficiency. However, in performing a watchdog role and digging out the truth,
journalists should be careful in interpreting facts and evidence.

It is important that the media plays the role of an honest broker of information for
its readers without deliberate bias or favouritism. The media must consider its
independence to be its most valuable commercial, editorial and moral asset.
Maintaining its independence through professional behaviour and a code of
conduct that is subscribed to by all journalists, the media can be a powerful user
of the RTI Act and an agent for the empowerment of people through an
Information Society. The objective of the Act to usher in a practical regime of
right to information cannot be attained without a proactive role played by the
media.