Editorial in The Statesman on 4th May 2008:
The StatesmanKnow it right
James Madison, the distinguished American judge, wrote: "Knowledge will forever govern ignorance. And people who mean to be their own governors, must arm themselves with the power which knowledge gives. A popular government without popular information or means of acquiring it is but a prologue to a farce or a tragedy or perhaps both".
There is a discernible trend in the country towards the right to information. Indeed, the greatest achievement of the UPA government has been the enactment of a liberal and meaningful Freedom of Information Act, 2005. The latest debate between the Chief Justice of India and the Speaker of the Lok Sabha on the issue of inclusion / exclusion of constitutional offices from the purview of the right to information will go a long way in determining the future of democracy.
While the CJI is opposed to transparency in respect of constitutional authorities, the Speaker, who represents politicians, asserts that all organs of government, including Parliament, should come within the ambit of the Right To Information (RTI) Act.
What are the philosophical and constitutional justifications of such an Act? Who is afraid of the enactment? How can a piece of legislation on the freedom of information strengthen our democracy? Should the judiciary claim an exemption? These are some of the questions that urgently call for answers.
Certain core beliefs, inherent in the writings of the earliest philosophers, remain undisputed. Almost all these beliefs are basically concerned with protecting the status of the individual confronted with the demands of larger social groups. The liberal society, as it was first conceived, attempts to guarantee the right to life, the right to equality, the right to religion, the right to participate in the government and the freedom of speech and expression which covers the freedom of information.
Any government, democratic or otherwise, shall abuse its powers if it is permitted to function in secrecy. Secrecy, being an instrument of conspiracy, ought not to be a system of regular government. India has the dubious tag of being the 12th most corrupt nation in a list of 91 countries. The scams and scandals include Bofors, hawala, fodder, sugar, Tehelka and the Unit Trust of India. Such scams thrived in a system that is based on secrecy.
The RTI Act is a small step to counter this malaise though the urgent need for a systemic overhaul cannot be denied. The Act can help uncover scandals or prevent them from getting out of control. This is certainly better than hushing things up and clearing the mess afterwards.
By providing the sought after information, the freedom of information empowers citizens to make informed choices and exercise their democratic rights. It also enhances the credibility of the government. In most of the Third World countries, including India, freedom of information is a key issue, especially in situations of acute poverty and starvation deaths. The effective use of the RTI Act by several NGOs has conclusively proved its utility. The freedom of information can improve the quality of the decision-making process in the public sector and the civil services. We have no option but to rely on and trust civil servants and political leaders for the decisions that affect our everyday lives. It is crucial that these persons and institutions are open to scrutiny, and held accountable and answerable to the people they serve.
Accountability can be ensured only through accessibility of information and knowledge.
Secrecy contributes to the disempowerment of ordinary citizens. It excludes them from processes that affect their existence. It is the fundamental function of any democratic government to provide information on a wide range of issues, such as food security, drinking water, shelter, environment, big dams, displacement, employment schemes, wages and education. The philosophy of secrecy, which denies information on the specious plea that the functioning of the government is no business of the citizen, engenders fascist tendencies.
Another version of the freedom of information has been advanced by Justice Holmes of the USA. In a capitalist market place, the best test of truth is the power of thought to get itself accepted in the competition of the market. The underlying assumption is that there is a free-market mechanism for ideas. If the government can be kept away, the self-operating and self-connecting force of full and free discussion will fence the people off from what is false.
The people of India have three kinds of responsibilities. "We, the people" who govern must try to understand the issues which, incident by incident, face the nation. We must pass judgment upon the decisions that our agents make. And further, we must share in devising methods by which those decisions can be made effective or, if need be, supplanted by others that promise greater wisdom and effectiveness. It is clear that these functions can best be performed only if we the people have an effective right to information.
The basic postulate of self-government is that the citizens are capable of governing themselves. The citizens have the right to get necessary information to participate in the decision-making process for the purpose of governing themselves. The citizens are the right persons to determine the limits of their search for information. The right thus serves two broad purposes - it enables the citizen to evaluate the government; it enables the citizen to participate in the government. Freedom of information can ensure a real and meaningful level of accountability.
In the years since Independence, India has entered a new era of democracy, freedom and human rights. We began with a free government. The more the government becomes secretive, the less is it free. To restrict the people's access to information about the government is to restrict the people's participation in government. The same applies to the powerful private sector and huge multinational corporations which influence our lives in various ways.
Should it apply to high constitutional offices including Supreme Court judges? This is the moot question today. We do not elect our judges but they do sit in judgment on the decisions taken by our directly elected representatives. 'We, the people of India' have tremendous faith in our judiciary. Our judges have done remarkably well in saving and sustaining democratic values. But when judges hesitate in declaring their assets, our faith and confidence get shaken. There is merit in the argument that Supreme Court judges should not claim any exemption because disclosure of their assets is not in any way connected with the security of the nation which should be the only ground of exemption.
At the same time, one must appreciate the concern expressed by Justice K.G. Balakrishnan. We should also be aware of what the Prime Minister has rightly termed as the gross misuse of the Right To Information Act by the so-called "information brokers", a caveat entered on the first anniversary of the RTI Act in 2006. Government offices are receiving thousands of applications that are in no way concerned with public functions or improving the efficiency of the administration, but are aimed at only harassing the officials. Administration suffers in the absence of staff to deal with the time-barred RTI requests. A day's delay in responding to such applications means a liability of Rs 250 per day. Disgruntled elements in the government have already made a mockery of the right to information.
In litigation, one party will always lose. Should we take the risk of exposing our judges to a situation whereby their precious time is wasted in answering such motivated RTI applications rather than its proper use in the dispensation of justice? This is much too vital an issue to be decided by mere statements.