Right to information without intimidation

Many selfless, dedicated and committed social and political activists have effectively used the Right to Information Act (RTI Act) 2005 to expose the misdeeds and the acts of corruption of public authorities at various levels. In this context I will be failing in my public duty if I do not refer to the glorious record of fearless public service done by Sri Satish Shetty in PUNE, Maharashtra. As he effectively used the Right to Information Act to expose irregularities in Government and Public offices during the last five years, he was brutally murdered near his residence at Talegaon-Dabhade on 13 January 2010, by unknown assailants. Sri Shetty was on his morning walk around 7am when he was attacked with swords and sharp weapons. He was rushed to hospital but was declared dead on arrival. His brother, Sandeep (34), told the police in his complaint that Shetty may have been murdered by some persons whom he had exposed. He said his brother had exposed many land scams in and around Talegaon. The murder shocked citizens and civic activists in Pune and Pimpri-Chinchwad. Traders and shopkeepers in Talegaon-Dabhade pulled down their shutters to protest against the killing.

The anti-social elements who were getting affected by Sri Shetty’s public disclosure have succeeded in eliminating him from the scene. Shetty’s murder is a major embarrassment for the police as he had demanded police protection after having received threats to his life. It has also been reported that Satish Shetty had used the RTI Act to expose the setting up of restaurants and marriage halls in residential zones.

Sri Satish Shetty was well-known in Talegaon for using the RTI Act to expose many an irregular activity. The various cases he exposed included the construction of an unauthorised bungalow by a former elected office-bearer of a political party. The bungalow of this unscrupulous office-bearer had been constructed on railway land, without proper permission from the Municipal Council. In another case, Sri Shetty had exposed how fake land and property deals were being registered in Lonavla.

Sri Shetty also exposed the fraudulent private selling of kerosene, meant for public distribution in ration shops, in the black market. In this case it was revealed that a large number of bogus ration card-holders had been created and using these cards, their quota of kerosene had been sold in the black market.

In 2000, he had started working with social crusader Anna Hazare. Hazare, who is recuperating after his eye operation, was not available for comment.

Condemning the murder of Sri Satish Shetty, leading Mumbai social activist Ms Sumaira Abdulali, said that this murder comes barely a week after the attack on another prominent Mumbai social activist Nayana Kathpalia, and attacks on Neera Punj of Citispace. Ms. Abdulali has said “This has become a trend and social activists are considered soft targets. The government must take immediate steps to stop such attacks,” Ms. Abdulali, Convenor of Movement against Intimidation, Threats and Revenge against Activists (MITRA), told the Press: “MITRA has sent letters to Home Minister R.R. Patil, listing the attacks suffered by social activists in the past few years.”

The Maharashtra Police under the Islamic terrorism-neutral and Afzal Guru / Ajmal Kasab embracing Sonia Congress Government are in league with these very same anti-social elements who are threatening and murdering the RTI activists. Ms. Abdulali was threatened and assaulted in May 2004, H.S. D’Lima of Citispace threatened and assaulted in March 2005, James John of AGNI was threatened and assaulted in March 2006 Edwin Britto, was threatened and attacked in 2000 and again in June 2005, Suryakant Panchal of BEAG was assaulted in June 2004, Anandini Thakoor and Aftab Siddiqui got threats in July 2005, January 2009 and were mobbed thrice, Navin Pandya of AGNI was threatened and attacked in September 2009; S. Ganesan was threatened and attacked in November 2002, and Naveen Kumar was attacked in 2002. Sonia Congress Government in Maharashtra views the promotion of lawlessness as “Secular” and “Cosmopolitan” and maintenance of law and order as highly “Communal” and “regressive”.

There are dedicated social activists like the Late Sri Satish Shetty working in different parts of India by trying to intelligently and effectively use the different provisions of the RTI Act to protect the common people against the evils of public corruption, public neglect of allotted duties, nepotism, favouritism and other dimensions of public maladministration, totally unmindful of the dangerous threats to their life, limb and property.

WHAT MAKES HARDENED CRIMINALS (I AM NOR REFERRING TO MINISTERS, MP’S AND MLA’S ALONE HERE!) SO NERVOUS AND FEARFUL ABOUT THE COLLECTION OF INFORMATION UNDER THE RTI ACT OF 2005?

James Madison (1751-1835) the Fourth President of U.S.A from 1809 to 1817 rightly said: “A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both”. KNOWLEDGE WILL FOREVER GOVERN IGNORANCE, AND A PEOPLE, WHO MEAN TO BE THEIR OWN GOVERNORS, MUST ARM THEMSELVES WITH THE POWER KNOWLEDGE GIVES.

The NDA Government enacted The Freedom of Information Act in 2002. It was adopted in January 2003 but never came into force. The Right to Information Act was approved by the Parliament and signed by the President in June 2005 and came into effect in October 2005. It replaces the Freedom of Information Act, 2002. The main objective of this Act is to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. Under the Act, all Indian citizens have a right to ask for information from Central and State public authorities. The public authority must respond in thirty days. An independent Information Commission has been created at the Central level and all the States have followed suit.

During British Raj, the Official Secrets Act was passed in 1923 mainly as a defense mechanism against the rising tide of nationalism initiated by Mahatma Gandhi from 1917. No citizen had any access to official information and every one was distrusted by the British Government. This tradition was not only maintained but enriched by the Congress party after independence.

Though we got our independence in 1947, the Congress party and the Congress government were never interested in educating the public or in making it possible for the common people to have access to information relating to the functions, policies and programmes of government departments. Jawaharlal Nehru, who wrote eloquently against suppression of civil liberties in India during British rule, in his autobiography in the middle 1930s, conveniently ignored the fundamental fact that his hero Stalin, during the same period, was killing thousands of innocent people in Russia every day under the subterfuge of protecting the Socialist Soviet State against the so-called ‘Revisionists’ and ‘Reactionaries’. Stalin’s ‘Purges’ did not emotionally affect Nehru. No wonder therefore that he had contempt for civil liberties and when he became Prime Minister of independent India on 15 August 1947, he was not interested at all in introducing any legislation for giving free information to the public on public authorities and government as a whole. This petty tyrant was more interested in his private states of affairs with Lady Mountbatten than with the Affairs of State!
After Mahatma Gandhi was assassinated by Nathuram Godse on 30 January 1948, the Congress government and the Congress party let loose a reign of terror against the RSS and brought up the charge that it was responsible for the murder of Mahatma Gandhi. The RSS was banned illegally in February 1948. Later the Court held that RSS was in no way responsible for the assassination of Mahatma Gandhi and the illegal and immoral ban on RSS was removed in June 1949. The day on which Mahatma Gandhi was assassinated in New Delhi, thousands of innocent school and college students in different cities and small towns in all parts of India were taken into custody by the police! This was a dark chapter in our nation’s history. This shameful record of Nehru Government in the area of Human Rights was later put to shame by the misdeeds of Indira Gandhi government, ably masterminded by her son Sanjay Gandhi, who functioned as the de facto Prime Minister during the Emergency period from 1975 to 1977. Secrecy and suppression became the watchwords of Indira Gandhi government. If only some sort of public law like the RTI Act of today had been in force in those days, Indira Gandhi could not have played ducks and drakes with the lives of her political opponents and the common people of India. She was able to amend the Indian Constitution in several vital and crucial aspects in a matter of 2 or 3 months giving a death blow to the dreams and ideals of the founders of our Constitution. All this she could do by keeping the common citizens of India in the area of total darkness about her wicked misdeeds. All citizens of India were denied basic public information on all issues affecting their life and destiny. It is against this background that the initiative taken by the NDA Government under the Prime Ministership of Atal Behari Vajpayee to adopt the Freedom of Information Act in January 2003 assumes a great historic significance. This was a revolutionary step, conferring on every Indian citizen the fundamental right to demand and get information from government, governmental agencies and public authorities.

In recent years, there has been an ever-growing global trend towards recognition of the right to information by countries, intergovernmental organizations, civil society and the people. The right to information has been recognized as a fundamental human right, which upholds the inherent dignity of all human beings. The right to information forms the crucial bedrock of participatory democracy and it is essential to ensure accountability, transparency and good governance.
The greater the access of the citizens to information, the greater will be the responsiveness of government to community needs. Alternatively, the greater the restrictions that are placed on access, the greater will be the feelings of ‘powerlessness’, ‘helplessness’, ‘impotence’ and ‘alienation’. Without information, people cannot adequately exercise their rights as citizens or make informed choices. The unrestricted and free flow of information to the common citizens in India was historically restricted by the following factors:
a. The regulatory statutory framework which includes several pieces of restrictive legislation, such as the Official Secrets Act, 1923.
b. The inherited colonial culture of secrecy and arrogance within the bureaucracy which was later cemented by the callous attitude of Nehru and his family and later the authoritarianism of Indira Gandhi.
c. The low levels of literacy and awareness of fundamental rights among India’s teeming millions, the original monopolistic stock-in-trade of the Congress party and later shared by all the other political parties as a perennial common wealth.

The real tragedy is that our even though Constitution makers included ‘the right to information’ as part of the Constitutional guarantees relating to freedom of speech and expression and though this right was later upheld by the Supreme Court in one of its landmark orders relating to governmental control over newsprint and illegal bans on the distribution of newspapers, the successive Congress governments showed indivisible contempt towards the Supreme Court on the one hand and the common people of India on the other.

The Supreme Court of India and all the High Courts in several decisions have upheld clearly the public’s right to freedom of information, or the public’s right to know, as embedded in the provisions guaranteeing fundamental rights in the Constitution. Various Indian laws provide for the right to access information in specific contexts. Section 76 of the Indian Evidence Act, 1872, contains what has been termed a ‘Freedom of Information Act in embryonic form’. This provision requires public officials to provide copies of public documents to anyone who has a right to inspect them.

The National Advisory Council (NAC) had specifically included ‘File Notings’ in the definition of information. But ‘File Notings’ is conspicuous by its omission in the definition of information in the new ‘Right to Information Act, 2005’. The word ‘File’ finds its place in the definition of ‘Record’ in the Act and it was expected that since the Act states that ‘Record’ includes ‘Document, Manuscript and File’, access to ‘File Notings’ will be possible under the Act. But, the Government of India, which seems to have developed a cold feet, now wants to water down the definition of ‘File Notings’ through a new Amendment as is clear from the answer given to a Parliamentary Question tabled in the Rajya Sabha on 8 December, 2005. The answer says that ‘substantive file notings on certain aspects relating to social and development issues may be disclosed’. This clearly shows the intention of UPA Government to again conceal, hide, sidetrack, camouflage and do everything possible to prevent free flow of information to the common man. MY FEAR GETS CONFIRMED BY THE FACT THAT THE UNION CABINET HAS APPROVED THE AMENDMENT BILL TO THE ACT, THAT WHEN PASSED WILL EXEMPT ‘FILE NOTINGS’ AS INFORMATION THAT CAN BE DEMANDED AS A MATTER OF RIGHT. It is sad to reflect that the Prime Minister Dr Manmohan Singh who was originally against the exclusion of ‘File Notings’, has now gone back on his earlier stand.

I suspect, not without basis, that several corrupt bureaucrats who are having intimate conjugal relations with corrupt UPA politicians are tremendously worried about the possibility of their partisan views expressed in ‘File Notings’ reaching the public and becoming matters of public dispute, public controversy and finally judicial review.
I have myself been a civil servant in the Indian Administrative Service (IAS) for 29 years. I can testify from my experience that an honest civil servant will never be deterred from expressing his views frankly on the file because of fear of disclosure of such information. Nor will he be worried about disclosures. Unscrupulous and dishonest bureaucrats in absolute majority in the minority UPA government may be apprehensive about such disclosures. But all the citizens in India should feel tremendously happy that The Right To Information Act (RTI) has already started having its positive and beneficial impact.

ETERNAL VIGILANCE IS THE PRICE OF INDIVIDUAL LIBERTY. What then is the spirit of liberty? I cannot define it. I can only give you an article of my faith. The spirit of liberty is the spirit which is not too sure that it is right. The spirit of liberty is the spirit which seeks to understand the minds of other men and women. The spirit of liberty is the spirit which weighs their interest alongside its own without bias. The spirit of liberty remembers that not even a sparrow falls to earth unheeded or unheard. Let me use the famous words of Lord Acton: “Liberty is not a means to a higher political end. It is itself the highest political end … Liberty ought not to get checked or thwarted by brutal power. Power corrupts and absolute power corrupts absolutely”. Citizens Right to Information will serve as an effective check on governmental or commercial power.

Let me now turn to another area. Recently, the Supreme Court of India was unnecessarily involved in an unseemly controversy CONCERNING the RTI Act. A citizen petitioned the Central Public Information Officer (CPIO) attached to the Supreme Court of India for information on any declaration of assets filed by the Hon’ble judges of the Supreme Court and further on whether the High Court judges were submitting declarations about their assets to the respective Chief Justices in the concerned Hign Courts.

The CPIO of the Supreme Court in November 2007 advised the applicant citizen that the information sought for was not under the control of the registry of the court. When the applicant took the matter on appeal to the Chief Information Commission, the Chief Information Commissioner (CIC) directed the CPIO to take recourse to S.6(3) of the RTI Act which expects the CPIO in such a situation to transfer the request to the other “public authority” to furnish the information. The other “public authority” in the Supreme Court could only be the Chief Justice of India. When the CPIO discovered this fact, he became nervous and chose to remain silent.

In the appeal case in issue before the CIC, the CPIO of the Supreme Court took several subterfuge defences, including the ploy that the information sought related to a subject matter which was “an in-house exercise” and pertained to material held by the Chief Justice of India (CJI) in his personal capacity. It was also submitted that the declarations made by the judges of the Supreme Court had been made over by them to the CJI on a voluntary basis in terms of the 1997 resolution in a “fiduciary relationship”.

The Chief Information Commissioner (CIC) Mr Wajahat Habibullah by his order dated 6-1-2009 rejected the contentions and held that the Supreme Court was a “public authority”. THE CIC DIRECTED THE SUPREME COURT TO PROVIDE THE INFORMATION ASKED FOR — WHETHER THE DECLARATION OF ASSETS HAS BEEN FILED BY THE JUDGES OF THE SUPREME COURT OR NOT. In my view this is a landmark order passed by the CIC to protect and safeguard the Fundamental Rights of citizens to obtain information in the larger public interest under the RTI. This Order has made it clear that the Chief Justice of Supreme Court and the Supreme Court itself derive their authority from the Indian Constitution and not vice versa. They cannot claim the Divine Right to do as they please on par with the British Kings or European Kings of a bygone era.

The Orders passed by the Chief Information Commissioner Wajahat Habibullah making the Supreme Court of India accountable to the Law of the Constitution have to be not only legally but also emotionally appreciated against this stark background! The common man in India – the man in the street to be precise — will be eternally grateful to this outstanding public servant Mr Wajahat Habibullah for having spoken out on his behalf vis-à-vis the Supreme Court of India.

Of late, the nature of public overtures of the Chief Justice of India on controversial matters of this kind has been that of an Oriental Potentate towards his hapless and servile subjects!! Justice Hidayatullah, former Chief Justice of the Supreme Court of India (1968-1970) and later Vice President of India (1979-1984), referring to Prime Minister Indira Gandhi (when she was very much in office!) had rightly stated: “The Prime Minister of India is not a Great Moghul”. I had the privilege of talking to him in the State Guest House in Chennai in the very early 1970s’. Unlike the arrogant and ignorant judges today (asserting their independent judicial right to be both arrogant and ignorant at the same time!) he was a man of great learning, humility, culture and refinement. He told me in emphatic terms that the Chief Justice of Supreme Court of India should consider himself to be a humble servant of the common people of India and not the other way around. If he had been alive today, Justice Hidayatullah would have been delighted to see the bold and fearless Orders of the CIC declaring the Supreme Court of India as a ‘Public Authority’ under the RTI Act of 2005. I have no doubt that Justice Hidayatullah would also have said: “The Chief Justice of Supreme Court of India is not a Great Moghul”. Now that the contempt law has been amended, I am reasonably sure that Justice Hidayatullah cannot be hauled up posthumously by the Supreme Court of India for contempt of court!!

For the first time in the history of independent India’s judiciary, the law of contempt has been changed to make TRUTH a “valid defence.” Moving the motion to pass the landmark Contempt of Courts (Amendment) Bill, 2004, in the Lok Sabha today, Law Minister H R Bhardwaj said the amendments would “introduce fairness in procedure and meet the requirements of Article 21 (right to life and liberty) of the Constitution.”

The Bill amends the 1971 Act to include Section 13 (B): “The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”
Until now, truth could not be pleaded as a defence to a charge of contempt of court despite several commissions, legal experts and even judges arguing for it.

Welcoming the new amendment, former Chief Justice of India Justice V N Khare has stated: “Yes, truth is a valid defence. If a judge’s misconduct is proved, then truth should not only be allowed as defence but also should be taken up for initiating action against the errant judge.”

In the amended Bill, it has been left to the concerned judge to permit “truth as defence” and also to decide whether it’s “in public interest”. Justice Khare has statd that it is wrong to have said that “truth should be in public interest. For, a party can establish the truth against the misconduct of a judge even in his own interest. There will be a debate on what public interest is. Truth as defence should not be left to the judge…once a litigant leads evidence to a truth, then it should be verified and if it is found to be correct, then necessary action should logically follow.”

Some of our Supreme Court Judges and High Court Judges have started behaving like Balbans, Allauddin Khaljis, Mohammad Bin Tughlaqs of Medieval India! In my view FAIR CRITICISM OF ANY JUDICIAL ACT WILL NOT AMOUNT TO CONTEMPT. NO ACTION IS CALLED FOR IF CRITICISM IS REASONABLE AND IS OFFERED IN GOOD FAITH WITH A GOOD CONSCIENCE FOR THE LARGER PUBLIC GOOD. Supreme Court Judges and High Court Judges cannot arrogate to themselves the supreme monopoly of supreme control over the public estate of public virtue and public morality.