The Right to Know Its Many Dimensions

- By Dasu Krishnamoorty

The Vajpayee administration introduced a few weeks ago the right to information bill in Indian parliament readily raising three questions: whose right to know; know from whom and know what? Two features of the bill indirectly answer the second question. First, the excessive accent on access to information in the possession of public bodies and second, the total silence on the transparency of private sector institutions. The first aberration can be attributed to the myth that the state alone is guilty of withholding information and that there are no other agencies holding back information. Every article appearing in the English press necessarily hugs this popular notion. It also suits the media eminently to highlight state tendency to be secretive in order to divert the attention of the public from non-governmental cupboards in society.

Look at how one ‘liberal intellectual’ after another exclusively points the finger at the state. Kuldip Nayyar, doyen of Indian journalism, says, “In a democracy, where faith stirs the people’s response, the government cannot afford to have an iota of doubt raised about what it says or does. It has to be transparent.” Amal Dutta, a former member of parliament, says, “The denial of information by the executive to the legislature and to the people is not a new phenomenon. While the denial did not affect the common man seriously earlier, with the increase in the functioning of the government, such denial makes impossible for him to understand whether he is getting a fair deal.” Contrarily, the state is voluntarily surrendering its space to the private sector.

Indian judiciary too bears the cross of this ‘liberal’ tradition. It has always been reluctant to touch the press and even acted populist by singling out the government as a body that has a stake in keeping information under wraps. In a public interest litigation involving environmental pollution, the Rajasthan high court observed: “Every citizen has a right to know how the state is functioning and why it is withholding information.” In the case of S. P. Gupta vs the Union of India, Supreme Court judge P. N. Bhagavati said: “This is a new democratic culture of an open society towards which every liberal democracy is moving. And our country should be no exception. Therefore, the disclosure of information regarding the functioning of the government must be the rule, and secrecy an exception, justified only where the strictest requirement of public interest demands.” The implication of these dissertations is that the government is the sole centre of power and public activity and therefore has a natural compulsion to deny information which  may affect its power status. Indeed, the more ‘intellectual’ you are, the more you condemn the state and spare the media.

Durga Das Basu also seems to entertain exaggerated notions about the role of the press and a parallel perception that the right to know is all about monitoring the functioning of the democratic system of government and nothing else. He says, “Since the press is one of the media through which the people may collect their information and the freedom of the press is coextensive with the rights of an individual, it follows that the press should have the right to know and be informed of the administration of public affairs, so that it could pass on that information to the people, which is essential for the proper functioning of government.” Are the public interested in knowing only about the administration of public affairs? Why should the press mediate between the government and public when, given a right to know, the latter can access information from the same source from which the press gets its information?

Pointing out this partiality, Manoj Mitta (The New Indian Express, Hyderabad, 24 August 2000) writes: “It (the bill) imposes an obligation alright on a ‘public authority’ to provide information to any citizen. But the public authority is purely defined as a state-created or as state-funded body. The proposed legislation is entirely government-centric as though the state machinery were still the only repository of all the information that affects the people at large.” Apart from this, Mitta points out a fundamental flaw in the bill, which negates its basic purpose.  He says, “In a move that has the original drafters of the bill up in arms, the bill does not allow noting on government files to be made public. This decision was actually taken by a ministerial group headed by Home Minister  L. K. Advani. This group finalised the bill on the basis of a draft prepared by a committee chaired by civic rights activist  H. D. Shourie and which also included advocate-general Soli Sorabjee. In the section listing out the classes of information exempt from disclosure, the bill mentions cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers and also  minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process before the executive decision or policy formulation.”

Mitta adds: “The bill also makes it clear that the most the government is required to do under the proposed law is to ‘give reasons for its decisions, whether administrative or quasi-judicial, to those affected by such decisions.’ In other words, this gives the government enormous elbow room to get away after trotting out any reason because it is anyway not obliged to disclose the file noting that actually led to the decision. Worse, by specifying that the reasons would be given only to ‘those affected by such decisions,’ the government has also reserved for itself the right to question the locus standi of the person asking for such information.” Chairman of the Press Council of India Justice P. B. Sawant, who worked on the original draft says, “if the file noting that led to a particular decision are not to be disclosed, then we may as well not have this law at all. It is only through file noting can the ministers and officers really be made accountable to the people.”

It is clear that the bill confers a right on the citizen to seek information from only government agencies. The bill does not apply to the private sector which owns all print media and a majority of TV channels and nearly all Internet media. These media naturally shy away from exposing corporate misdemeanour. Economic reform, a euphemism for withdrawal of the state, undertaken under pressure from Bank-Fund twins, has triggered mergers, acquisitions and joint ventures with the multinational corporations, loosening state control and watch over consequent flight of capital and profits. No citizen enjoys the right to know what role these corporations have played and are still playing in increasing economic disparities in the country and the media, owned as they are by these companies, cannot be relied upon to let the people know. With liberalisation, divestment and deregulation, more of what the industry, and less of what the state, does and does not is crucial to the lives of the people. True, the Official Secrets Act must go and a new right to information act must come.

More important is that the right to information should empower the common man to demand information not only from public bodies but also from private sector institutions -- about themselves and their operations, details of their ownership, their interests and their international connections. This empowerment will help the public to know who own the media and why. It is naïve to think that private companies are responsible only to their shareholders. Every private sector unit which manufactures or distributes or franchises goods and services is accountable to its consumers. Of course, it is not impossible to mislead the shareholders or, in collusion with them, swindle the public. It is juvenile to believe that media, children of commerce and industry, will attack their own parents.

There is a serious flaw in the logic that regards the government as the sole enemy of transparency and not as one among many. This exclusivity is not to be found anywhere in the UN declaration of freedom information (1946) and the universal declaration of human rights (1948) both of which state that “everyone has a right to freedom of opinion and expression; this right includes the right to seek, receive and impart information and ideas through any media and regardless of frontiers.” There is no mention of state or public authority in either of the two documents. The implication is that every citizen can seek information that affects his life or interests from not only state agencies but also from whatever source that happens to store such information. Anti-statism is a basic tenet of free market theology and its natural fallout is the fiction that the state alone has a compulsion in suppressing information. The media controlled by giant companies and corporations have withheld more information than any state ever has through sheer silence - not publishing what they know, thus denying the public the right to know.

This is not to deny that the state is secretive nor to assert that its cupboards are transparent and freely accessible. The state as the dominant centre of power, has so far been the major fountain of information and has an interest in keeping it under wraps, generally for political reasons. This tendency of the state is too well-known to need reiteration. It is the other centres of power, representing private economy, which too need to be brought under the proposed information glasnost. The economy-controlled media point out at the state to deftly deflect public attention from themselves. The ongoing debate about corporate governance is in reality a debate about corporate crime. There is a plethora of laws under which companies are accountable to the state. But their accountability to the public, who constitute their market   and who are the cornerstone of their survival, is woefully meagre. The consumer courts demonstrate this truth eloquently.

Commoditisation

The case for illuminating non-governmental areas of darkness by a new right to know regime is based on the incontrovertible truth that however private they are, business and industrial houses and small enterprises are in the business of public activity and their actions and activities affect millions of people every day and everywhere. There cannot be a greater act of self-delusion than to think that private sector economy is private domain and is therefore beyond public inquiry. It is not only economy that has passed into private sector hands but also culture, sports, literature and education. Most people in India believe that Indian girls are chosen Miss Universe or Miss World in order to capture the vast market in the country for the benefit of makers of beauty products. Thousands of beauty clinics have sprung in all metros and urban centres. Sportsmen have stopped playing for their country. They now play to do Pepsi or Coca Cola or Wills or MRF proud. Prestigious institutes of technology and management, in the name of resource crunch, invite a takeover by the industry which in turn sets the direction for research. The government is too willing to disown its responsibility of providing higher education to the economically weaker sections of the people. In India today, nearly all professional colleges are permitted to auction seats to the highest bidder. Corporate hospitals, heavily subsidised by the state, in return for a promise that they will treat poor patients free of cost, barely honour it. It is these companies  which sponsor music and promote singers. They have been successful in weaning the Indian youth away from the country’s centuries-old classical music. In this scenario where all commercial, cultural and educational space has passed into the hands of the private sector, the doings and goings-on in that sector affect the lives of hundreds of millions of people, who, therefore have a right to know what is happening out there.

Two major flaws have always marked the debate about the right to know. One is the overemphasis on state activity and the other is the subtle suggestion that since the media are an information conduit between the state and the public, the latter can continue to delegate authority to the media to exercise the right to know on their behalf. The need to include the private sector also in the bill acquires urgency in the wake of increasing divestment of public activity in favour of the private sector. In fact, it is a deliberate, and unfortunately successful, attempt to abridge the public realm for the benefit of the corporate sector. Here is how this works against public interest. There is a lot of public information which is now available free of cost and which is neither copyrighted nor classified nor covered by the official secrets act. The repeal of this act, which brooks no delay, is bound to make more information available as a matter of right. Also, the automatic declassification of information after the expiry of the 20-year embargo will add to the information which  hitherto was available to the public free or at a nominal price. But private sector publishing houses, with their great resources, are bound to corner all this information and put a price on it.

Till the economic reforms thrust a cost-benefit logic into government calculations, most government reports were available at low and affordable price. This writer paid Rs 400 for a copy of the report of the registrar of newspapers of India. Such reports were available for less than RS 50 before the economic reform. An abridged version of Nehru’s autobiography published by a private publishing house sells at RS 1,600 whereas an unabridged version published by a government division sells at RS 60. Has anyone computed how much information can be denied to the public through the simple ploy of  high pricing? In poor countries like India, overpricing or even pricing itself , can deprive millions of people of the essence of the right to know. Half of India’s school-going children will remain illiterate if the state agency, the national council of educational research and training, did not print every year   millions and millions of textbooks at very affordable prices. Information essential to improve the quality of life ought to be available as a matter of right. It is foolish to insist that the right to know should include only such information that is not available at present as a matter of right. The right to know is only a subsidiary of the right to education. Privatisation is an assault on the right to know because it limits the opportunities to learn by commoditising information. There is a system of remaindering in the United States whereby the price of a book is gradually reduced a few months, and sometimes even a few weeks, after it is published. In India, however old the book is the price remains the same except for excessively used books.

Two questions remain unanswered. They are: Whose right to know and what to know?  The  right of the citizens, obviously. Even article 19(1)a of the Indian constitution confers the right to free speech and expression primarily on the citizen which includes the right of access to information. The citizen needs a continuous flow of information on a daily basis and he has come to rely on the press for his information needs. But the press gathers its information mainly from governmental agencies  which are in a unique position to collect it through networking. But there are occasions when the citizens will have to have a right of access to any information to which the media have as a matter of right because sometimes both the press and the state fail the people.

The trend today is for the state to take decisions affecting the interests of the public without informing them. Legislatures which used to intervene on behalf of the public to demand information on the activities of the state seem to have lost interest in their primary duty of acting as watchdogs of public interest. The first few days of every parliament session are wasted without transaction of any business, all ironically in the name of communal harmony. State legislatures too witness sit-ins, walkouts, suspensions etc. in the first week of every session. At the end, scores of bills are guillotined and passed without discussion. This simply means a failure of democracy where legislators allow the administration to obtain the consent of the legislature without debating the bills. As a consequence, people are denied knowledge about the merits and demerits of discussions in the house that determine the outcome of voting. The media could, but does not, help the public by initiating a public debate on the guillotined bills. Instead, the society is treated to a plethora of theories about freedom of press, its right to know and how this will help the society in the end. The society has no way of knowing what information the press is sitting pretty on.

Even as some societies are characterised by information overload, most societies suffer from a famine of information. India, which has earned a place on the IT software map, is not free from this handicap. Legislatures have stopped asking the government for information vital for development and governments have stopped disclosing such information on a variety of pretexts. While treasury benches have no interest in seeking information on behalf of the people till another election, opposition benches are too preoccupied with causing political embarrassment to the government to think of the people they represent. The procedures for seeking information are so elaborate and tiring that a person seeking even harmless and ready information will give up half way.

The second Press Commission said in its report, “When the source of much of the information is government and public agencies, the only means of acquiring information without which there cannot be a well informed citizen, is through freedom of access to the materials in the possession of the government and also to proceedings of government.” This finding unintendedly sidelines the fact that an equal or greater amount of information vital for the interests of the citizenry is stored beyond accessibility by agencies other than government and its organisations. The working of the corporate sector which commands a larger area of  the economy than the public sector is a closed book. Their accountability to the shareholders is notional and their accountability to the company law administration is part of Indian mythology. Some skeletons in their cupboards tumble out as a result of public interest litigation. Imagine how many people can seek the help of the Supreme Court to know what is happening in the corporate domain. Ben Bagdikian asks “would the NBC owned by General Electric, produce a documentary on criminality and carelessness in defence contracts, with General Electric as an obvious recent example? If it were disclosed that the company paid no income taxes during the three years of multi-billion profits, and GE owned NBC at that time, would the network produce a documentary on inequities in the tax system? ”

In India, the public hardly knows that real estate is a major source of income for the country’s leading major newspapers. Several newspaper companies face prosecution for renting out all but one floor of their premises for non-newspaper enterprises in violation of the law of the land. There are instances of newspapers building more floors than the law permits. Such illegalities surface only as a sequel to newspaper rivalry. Therefore, the second press commission is mistaken if it thinks that secrecy is inherent only in bureaucracy as an administrative organisation. This is equally true of private corporate sector. The point, however, is that the ordinary citizen is helpless in accessing information that he knows is crucial to his life and is available with the public as well as private agencies. Many countries have what are called information laws which confer on the citizen the right to ask for and get information except such information that hurts national security, friendly relations with other countries, or information concerning cabinet meetings, police investigation, defence effort etc. The new bill seeks to confer that freedom on the Indian citizen.

Though constitutions do not specifically refer to the right of an individual to seek and impart information, across the frontiers, access is implied in the right to freedom of expression. A person needs freedom to transmit ideas and information to benefit the society and to enable it to help itself in several areas of life. Here we find undue stress on information leading to correct political decisions based on an assessment of the performance of the government. This emphasis has unfortunately led to the conclusion that a citizen needs information mainly to arrive at correct electoral decisions. The media have successfully popularised a myth that the sole function of the media is to play an adversary role and to save the citizen from a government which he has elected, based on information provided by the media. Comical, indeed!

Flawed Discourse

Throughout the world media access to sources of information has been acknowledged as fundamental to the survival of a democratic society. But questions are raised by non-media experts, specially communication researchers, social scientists etc., not to challenge the right of the media for access but to examine the performance of the media in the area of access. Do media forfeit this right if they do not exercise it for the benefit of the public or is the right to access linked to public interest That is, is the access absolute? Above all, are the media the only source of information for the public? As we answer these questions, we are confronted with aspects of distortion and insufficiency in the access debate.

There is an attempt by the media to show to the world that people mostly depend on them for crucial information and hence the importance of access. This claim has neither been adequately investigated nor refuted. Lazarsfeld studies and the experience in India have clearly shown that the people do not depend basically on media-provided information even for taking electoral decisions. We must remember that media only mediate between the source and the receiver and that they do not originate information. Major scandals in India have been unearthed by public-spirited members of parliament like Madhu Limaye, George Fernandes and Feroze  Gandhi. Even today, the major sources of information are legislators at local, state and national levels and disgruntled bureaucrats and politicians. There is no doubt that media provide voice to these sources. But even otherwise, information spreads itself through interpersonal communication, sometimes faster than through mass media.

Nothing that has been said so far is aimed at arguing against media’s right of access. The purpose is to show that media are a part of the society and not above it and all rights they claim are justified only by the good they do to a community and not to themselves. The Antulay scandal was a piece of vendetta journalism. The owner of one of India’s leading newspapers is accused of publishing a report with a view   to hurt the reputation of a person who refused to collaborate with him in a deal. Can the owner of a newspaper use the right of access to settle personal scores? The press council has admonished on several occasions the mainstream press for stoking fires of communalism, for publishing information without verification and denying access of their columns to aggrieved persons. The media have a right to access but it is not an absolute right uninformed by any social purpose.

The other dimension of the access debate is the right of the ordinary citizen to access to media space/time. Newsmen claim the right to access because their audiences need information to form judgements and formulate actions in relation to government. Information raises the awareness of citizens and that enables them to constantly monitor governmental performance. Newsmen cannot gather information unless they have access to official sources of information. This is how the right to express and inform would also include the right to gather information, that is, reasonably easy access to information. Such facilities to gather information exist in every country, though the kind of information newsmen can gather as a matter of right differs from one country to another. But there are few countries where the citizen can demand information as a matter of right from the same sources which are open to newsmen. The citizen does not have access to even private media, except of course the very limited area of letters to the editor. Here also, the edit page editor rejects a majority of letters without assigning reasons. The citizen, who is a reader, has nowhere to go if the media deny him access. This leads to discontent and further to violence as was eloquently shown in the Kerner report.

Even if we assume that all news that is published concerns the citizens, what and how much of it should be reported and published depends not so much on the merits of information as on the organisational convenience of the media, their time and space schedules, and a not-so-transparent gate keeping role assigned to newsmen. News, in the end, becomes secondary to these non-news factors. Some occurrences, determined as news by the media using their own judgements, attract media spotlight because they have the merit of beginning and completing before the newspaper’s deadline. Some information gets access because it is well written and makes for good prose. Some,  because it is delivered at the door of the newspaper. All this process of gathering and publishing news is almost a one-way activity, newsmen alone recognising and accepting an event as news. The reader or the citizen cannot insist, as a matter of right, that his views or activities are news and therefore should be published. He has to have a legitimated representative status to deserve media space or time. Media space/time is available only to some political movements, speaking for acceptable philosophies, certain ‘eminent’ (eminence conferred by the media as a part of its status conferral function) persons and interest groups and not others. Men in authority generally get space as also practitioners of social mores recognised by the media. The unconventional, the nonconformist and the radical (it’s a term of political reproach  in the US, I am told) knock at media doors without much success.

The media assume certain responsibilities avowedly to inform the public and help them form judgements. On this ground, they claim certain freedoms. The reader does not figure in any of the media operations except as a passive receiver. When he cannot get two inches of space in the letters column as a matter of right, there is no question of his challenging the validity of media assumptions regarding his preferences and needs. For example, have the readers any say in deciding how the space in a newspaper should be used? Should not they have such a right, through an institutional mechanism, given the fact that there is no newspaper without readers? Two leading newspapers of India devoted four pages of space to report the death of their owners, making a mockery of news values. The extravagant reporting of Filmfare awards in the Times of India and Screen awards in the Indian Express is not informed by any justifiable news criteria except that the awards are sponsored by  magazines owned by the Times and Express groups.

There is no law which requires the media to yield space or time to the citizens. They can deny space/time to citizens arbitrarily, falling back upon a  news logic of their own. In short, they appropriate to themselves the exclusive privilege of determining what is news and what is not. Ultimately, a citizen seeking expression for his views has to have his own newspaper. Even if such a thing was possible a few decades ago, starting a newspaper today would call for investment of millions of rupees, meaning that the very rich alone can stay in the media arena. It boils down to saying that freedom of the press belongs to those who can own it. Thus it is apparent that media access is monopolised by the very rich, the elite, persons who prescribe and direct dominant social values and to those who accept status quo without protest. There are unwritten media conventions, which media men do not publicly admit and which keep ‘deviant’ groups out of focus. Theses groups are either ridiculed or ignored. Men like Ram Manohar Lohia were never taken seriously by the media because he was unconventional and frequently needled Jawaharlal Nehru, who overawed the Indian media like few did anywhere.

People seek media hospitality only when other doors are slammed against them. If they are denied access here too, the consequences can be costly. They include an implication that the media have joined the state in choking the voices of the hoi polloi. Five decades ago, the Hutchins Commission observed that democracy depended on informed judgements and that the press should help such a process. This can happen only when the press provides voice to all sections of the society. UNESCO insists on free access to both the media and the general public and on media’s ready response to the concerns of the people and individuals, thus ensuring the participation of the public in the elaboration of information. The Sean McBride commission too said, “It must be recognised that communication is a personal right belonging to all individuals, not only journalists and governments, not only those who exercise political and economic power.”

In the last tenure of power of the Congress party, V. N. Gadgil, a former minister for information and broadcasting, tried to move a private bill in parliament giving the reader the right to reply. Explaining the bill, Gadgil said, “The Indian press, by and large, is a responsible press. However, there is a section of the press which indulges in misreporting and misrepresentation. A person’s reputation or business can be ruined by a simple false newspaper report. Taking legal action against persons responsible for such reports is an expensive and time-consuming process. It is, therefore necessary to give a statutory right of reply to ensure that individuals can set the record straight.” The reaction of the Indian press to this bill was on expected lines. It was an unthinking attack on the bill showing utter intolerance of any suggestion from outside to persuade the press to be accountable. Even as the criticism of the penal provisions of the bill was justified, the obstinacy of the press to even review the bill was conspicuous.  As a matter of fact, the supreme court upheld the right of a Prof. Shah (August 1992) to get a rejoinder published. Prof. Shah had earlier circulated a study paper which was very critical of the working of the Life Insurance Corporation of India. A Mr Krishnan wrote an article in the Hindu challenging Prof. Shah’s conclusions. LIC’s house magazine, Yogakshema , in turn, reproduced Krishnan’s article. Whereas the Hindu published Prof. Shah’s rejoinder to Krishnan’s article, Yogakshema refused to publish it. The supreme court held that LIC’s refusal was unfair because fairness demanded that both viewpoints were placed before the readers, however limited be their number, to enable them to draw their own conclusions and observed that such refusal was unreasonable because there was no justification for refusing publication. 

Therefore, the beneficiaries of the right to know  include not only press persons but also the public, who have a right  to know not only from public institutions but also private agencies including the media. Today, economic forces and the media are inseparable. In this alliance, the former use the latter as cover for their misdeeds. The public have a right to know who is shielding whom and from what which again implies they have a right of access to such stores of information as concern the working of the market and the media. The public should also enjoy the right to reply and any resistance from the media should be considered antidemocratic.