CHAPTER IV RIGHTS AND DUTIES OF CITIZEN UNDER RTI ACT. vis-à-vis CONSTITUTION OF INDIA

Transcription

1 112 CHAPTER IV RIGHTS AND DUTIES OF CITIZEN UNDER RTI ACT vis-à-vis CONSTITUTION OF INDIA In this Chapter the researcher describes the rights and duties of the Citizen under the Right to Information Act as co-relative aspects and points out to the flaws on the part of the drafters of the Act for their failure to cast responsibilities on the information seekers so as to prevent abuse of the right. The researcher very much deals with the fundamental duties of the citizens who seek information. Chapter IV A of the Constitution of India which was introduced by the Constitution (Forty Second Amendment) Act, 1976, with effect from The researcher feels that when the citizens are entitled to know the information as one of their fundamental right they are also obliged to discharge their constitutional duties as directed by Chapter IV-A of the Constitution of India. The researcher further analyses the impact of the repeal of certain important legislations like the Official secrets Act and discusses about the lacunas that facilitate the misuse of the Act. THE UNBRIDLED RIGHT TO INFORMATION: Sir John William Salmond said that rights and duties are co relatives. Every right or duty involves a bond of obligation. Lord Acton said Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men 1. It is nevertheless true that absolute right tends to corrupts the minds of person who possess it. In a way, the citizens are unnaturally gifted with enormous unlimited power (right) to 1 In his letter to Bishop Mandell Creighton in Lord Acton expresses this opinion about the corelation of power corruption.

2 113 get information from the Authorities. However the parliament has miserably failed to indicate the duties and responsibilities of the citizen who seek information under the RTI Act. Eight years have been passed since the enactment of the RTI Act,2005. On one way of looking at the success of the RTI Act the legislators would be happy to achieve the objects of the Act. However there is no whisper about the responsibilities of the citizen from any quarters. Every citizen has fundamental duties imposed upon them by Article 51(A) 2 of the Constitution of India. Every citizen shall have the duty to uphold the constitution and its ideals and its institutions. The citizens shall have to respect the laws of the country. Sir Thomas Erskine Holland said that A moral duty is that which is demanded 2 Inserted by the 42 nd Constitution Amendment Act, They are 51A. Fundamental Duties.- It shall be the duty of every citizens of India- (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

3 114 by the public opinion of society and a legal duty is that which is enforced by the power of the state. In AIIMS Students' Union v. AIIMS and Ors 3., a three-judge Bench of the Supreme Court of India made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State. A five judge constitutional bench of the Hon ble Supreme Court of India, held in the case of State Of Gujarat vs Mirzapur Moti Kureshi Kassab 4 It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role The very object of the RTI Act was to inform the citizens about the good governance of the administration by the elected representatives of the people. In other words the administrative authorities from Class IV employees to the Office of the 3 4 (2002) 1 SCC 428 (2005) 8 SCC 534

4 115 President must act in a transparent way. The stability of a democratic government is exposed only through the good governance which satisfies the people of the country. Section 3 of the RTI Act says that Subject to the provisions of this Act, all citizens shall have the right to information. Section 4 of the RTI Act deals about the obligations of the public authorities. But there s no duty, obligation, responsibility for the person who seek information under the Act to whom the rights are given under Section 3 of the Act. The object of the Act was to make every citizen aware of acts of the government. However, it is most prevalently seen from the reports of media that only very few groups of having interested individuals seek information as a matter of their profession by claiming themselves as RTI activists. Under the Right to information Act, 2005 the citizens enjoy (at times misused) the absolute right from authorities. Further, the overriding effect over of all other Acts by the Right to information Act, 2005 coupled with no responsibilities given to the citizens under the Act leads to an irresistible conclusion that the Right to information Act, 2005 needs to be reframed at least in respect of imposing certain responsibilities. Rather, it gives unguided protection to persons under Section 21 of the Act. It says as follows No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made there under It is, of course, needed to protect the persons who are availing the benefits given under the Act under good faith. However the same shall not be extended to any act, which seems to be in good faith under the RTI Act, may be an offence under other Acts. For example, even though the Act said to override the Provisions of the Official Secrets Acts with regard to the disclosure of information, Still the penal provisions under the

5 116 Official Secrets Act,1923 are intact and they are still in force and unless and until the penal provisions of the Official Secrets are expressly repealed by an Act of Parliament they have the force of law. Hence a citizen can very well obtain the information under the RTI Act which may be prohibited under the Official Secrets Act, But there is no statutory relevancy/admissibility of those information received from the PIO in any of the quasi-judicial or judicial forums. However there is no objects for those information received can be used by the citizens to achieve the objects. In other words the information collected are used for debate and discussion by the public and press. In Common Cause and others v. Union of India 5, the issue before the Hon ble Supreme Court for decision was as to whether the access to official information by a whistle blower amounts to violation of the Official Secrets Act; while deciding the said issue the Hon ble Supreme Court held as follows; It is true that the Supreme Court had required the Director, CBI to ensure, by its order dated , that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistleblower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event it would be permissible for the Supreme Court or an appropriate Court to take action against the whistleblower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by S, Director, CBI, to scuttle the investigation into the affairs of the accused D or others in the Coal Block Allocation Case. It is not being considered whether the disclosure by the whistleblower was malafide or not. The disclosures made 5 (2015) 6 SCC 332

6 117 by the whistleblower were intended to be in public interest. Furthermore as far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, the file notes in this case cannot be described as an official secret for the purposes of maintaining a prosecution under the Official Secrets Act, 1923 Section 3 to 7 and other provisions of the official Secrets Act, 1923 imposing penal provisions prescribe penal actions against the persons who pass on information to others. However a person shall have no bar or any restrictions to disseminate the information obtained under the RTI Act to publish or pass on the information. Thus the omission to provide responsibilities and duties to the citizens resulting in conflict of provisions. The above example under the Official Secrets Act,1923 also can be made to the provisions of the Information Technology Act, 2000, where there is immense possibility to obtain the digital signature certificates of persons under the RTU Act and the misuse of the same. Hence the literal interpretation to the provisions of the Act, in particular, the sections 22 of the Act would lead to catastrophic consequences leading to unnecessary conflict of provisions of the Act with other Central and State Acts. Hence the Mischief Rule of interpretation has to be applied while interpreting the Act in order to save the objects of the Act and to be in consonance with the other laws of the country. D.P.Mittal in his book on Interpretation of Statutes stated that literalism in interpretation may often thwart the purpose of the legislature. Purpose or object of legislation and legislative intention governing it are two different concepts. While the object of the legislation is to provide a remedy for the malady, the legislative intention relates to the meaning from the exposition of the remedy as enacted. 6 6 D.P.Mittal, Interpretation of Statutes, Taxmann, 2 nd Edition, 2005, Page No.689

7 118 The Supreme Court of India reaffirmed the rule laid down in Heydon s Case(Mischief Rule) in the case of The Commissioner Of Income-Tax,Madhya Pradesh And Bhopal Vs. Sodra Devi and held as follows it is a sound rule of construction of a statute firmly established in as far back as 1584 when Heydon's Case (5) was decided that- England "... for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st. What was the common law before the making of the Act., 2nd. What was the mischief and defect for which the common law did not provide., 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Common wealth., and 4th. The true reason of the remedy; and then the office of all judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. It is ripe time to enumerate the guidelines for the citizens to protect the misuse of the provisions of the Act and to prescribe the duties to the citizens to make them follow it in order to balance the rights and duties to secure harmony between the interests of the society as well as individuals.

8 119 The rights and duties are the two sides of the same coin. Abraham Lincoln 7 said Lets have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it. As Oscar Wilde Pointed out a man thinks that a duty is what others to do for him, the RTI casts duty only upon the Public authorities to do their duties by furnishing the information. The citizens shall have to realize that they too have the duty towards the society towards the Constitution and its institutions. There cannot be any law in our country which shall prescribe only rights to the citizens and no duties to the citizens. Whether the parliament has consciously omitted about the responsibilities/ duty of the citizen who apply for information under the RTI Act. If really the parliament consciously omitted then, it has forgotten about the consequences which cause undue hardship and delaying other administrative duties of the public authorities. The present trend of the people who claim as activists files frivolous applications after applications to stall the normal work of the public authorities must be taken into consideration by the legislatures and amend the Act accordingly, however without any way infringing the rights of the citizens. It is high time to formulate the necessary guidelines imposing responsibilities and duties to the citizens while getting information and after obtaining the information from the Public Information Officers under the Right to Information Act, Chapter III of the Constitution of India confers fundamental rights on every citizen which are subject to the reasonable restrictions imposed in that chapter. Chapter IV-A of the Constitution of India enumerates the duties however, those duties are not enforceable under law. When analyzing the provisions of the RTI Act, in particular, Section 3 and 4 the citizens shall have right to information which they sought for and 7 He was the 16th President of the United States.

9 120 there is a corresponding obligation on the part of the public authorities. Every information sought for should be furnished without delay except that those are falling under Section 8 of the Act, in other words an unfettered right given to the citizens to seek for information invoking the RTI Act without any corresponding duty or responsibilities on the citizens. From the above discussion coupled with the Heydon s rule of interpretation, the judgements of the Supreme Court of India, the past experience would lead to an irresistible conclusion that the information sought for must be based on a bonafide act of a responsible citizen. It is also on record in the various information commissions and courts that only the persons claiming to be Activists files petitions after petitions and also pose threat to the authorities which was not the object of the Act. As rightly pointed by His Excellency Dr.A.P.J.Abdul Kalam 8, every right has to have a checks built in to prevent its unbridled sway which is sure to lead to the certain failure of the very system 9, the RTI Act does not contain any checks on the citizens right to approach the Public authorities. Unless the Parliament wakes up to the present challenge of streamlining the bonafide of RTI applicants, the very object of RTI Act to achieve the Good governance would fail. Eventually the RTI would be used as a tool of weapon to harass the private individuals and authorities and to stall the public machinery from delivering effective administration. The citizens application for information has to first pass the test of bonafide. If found, Prima facie, that the application is made to harass any private individual or to obtain any personal information of any third party, the application ought to be rejected in limine and the parliament shall have to amend the present provisions to cut the nip in 8 Dr.A.P.J.Abdul Kalam was a Nuclear Scientist and is the most popular president of India. 9 Extracted from the book titled Implementation of the Right to information and Good Governance by S.L.Goel, Page No.76

10 121 bud and stop the menace of frivolous applications to target a government office or officer holding the post of PIO. Even though section 21of the Act gives protection to the PIOs also, it does not do so in express terms and it used the word any person and not any authority. And this anomaly in section 21 of the Act posed serious threat to the PIOs who are acting bonafide in processing the RTI applications. The penal provisions provided against the PIOs under the RTI Act coupled with the protection to the RTI applicants acts as double side sword for the PIOs. The proviso to Section 21 of the RTI Act arbitrarily casts burden to prove the due diligence on the Public Information officer, whereas there is not even single provision in the Act that necessitates the bonafide of the person seeking the information. This burned to prove the innocence and due diligence for a government servant to the satisfaction of the State Information Commission or the Central Information Commission is unwarranted for a government servant who acts bonafidely and diligently. Even the Indian Penal Code presuppose the act of government servant as an official act and most of the laws in the country treats that an act done by the statutory authority in good faith is deemed to be diligently done. However the RTI Act, the revolutionary Act, changes the dimensions of the evidence and criminal jurisprudence. When Section 20 imposes condition to the PIOs to prove their diligent, the parliament has not at all taken into consideration to put a condition to the RTI Applicants about the intended use of the information or the Duty of the RTI Applicants in obtaining the information. Moreover the penal provision has been provided under Section 21 and casting the burden to prove the due diligence on the PIOs followed with the penalty that could

11 122 extend to twenty five thousand rupees and disciplinary action against the PIOs, the Act must also have to have a safeguard to the PIOs who have acted in good faith. Otherwise no government servant would be in a safer position while acting as a PIOs. Though the act of furnishing the information sought for by the citizen appears to be an act of PIO in his administrative capacity it involves legal complications and interpretation of the provisions of law. Unless the PIOs are qualified law graduates or having legal knowledge the penal provision of the RTI Act punishes an ignorant officer. An illustration can be given to highlight the above situation. One A is appointed as a Stenographer in a Commercial Tax Department who by his experience and seniority promoted to the level of Assistant Commercial Tax Officer. Later, he was promoted as Deputy Commercial Tax officer. Under the RTI Act he was designated as Public Information officer to deal with the applications filed seeking information under the RTI Act. As he has no legal knowledge but thorough knowledge and understanding of the Sales Tax Act which he is dealing, invoking a provision(section 85 of the T.N.Value Added tax Act, 2006) under the Sales tax law, declined the request for information. He had no knowledge or understanding of the law made by the parliament and law made by the legislature and unable to understand the overriding effect of the section 22 of the RTI Act. Here the officer acted bonafidely invoking the provision under the State law. In this case he was punished with the fat fine of Rs.25,000/- and departmental proceedings, definitely it will amount to punishment to a person who acted bonfaidely referring to a statutory provision. Therefore the act of bonafide on the part of the PIO has not at all taken into consideration while imposing penalty.

12 123 In the above illustration one can see that a person who files an application seeking information need not have any bonafide intention nor has to state the reasons but the officer who acted bonafidely is being punished. Therefore the provision is not used equally to the applicant and also to the PIO. Hence to that extent equal protection to all being is violated.