Delay and red- tapism are present every where. A couple of years back the administration announced “ citizen charter”. On its record, the government implemented the charter successfully. Still, on the ground people are aware as to the real situation of implementation of the charter. On its part, the Central Board of Excise & Customs issued various guidelines to the field formation for implementation of the charter. However, it is still debatable as to what extent the charter was implemented in the Board office itself, leave alone the field formations.
This is true for every programme initiated by the government for empowerment of people. In fact, the author is of the view that, “people cannot be empowered by the government, they have to empower themselves”. “Empowerment” cannot be imposed from above. It has to be attained from below.
The recently enacted the right to information Act, 2005 has many features, which can empower people against insensitive administration. But for such result, the Act has to be implemented by the people. If the Act is implemented by the administration, the result is not expected to be different from Citizen’s Charter and other measures. In this endeavor, this article is aimed at making the readers of Excise Law Times aware about the provisions of the Act and how it can be applied in the specific situations in Customs & Central Excise.
“Right to be informed” is an integral part of freedom of speech an enshrined in the Article 19(1)(a) of the Constitution of India. The Supreme Court in Benett Colemen and Co. v. Union of India [AIR 1973 SC 60], quoted with approval the American case in case of Time Vs. Hill [385 US 374], wherein the Vs. Supreme Court held that,
“The constitutional guarantee of freedom of speech for press are not for the benefit of the press so much as for the benefit of all the people”.
In State of UP v. Raj Narain [AIR 1975 SC 865], the court held,
“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. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. See New York Times Co. Vs. United States, 29 L Ed 822: 403 US 713. To cover with veil of secrecy, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts in the chief safeguard against oppression and corruption.”
The Apex Court reaffirmed the propositions in cases of PUCL v. UOI [AIR 2004 SC 149] and in many other cases. In Regina Vs. Shagilar [(2003) 1 AC 247], the UK Courts declared “Public has a fundamental right to know what the government has been doing in name”.
However, such declarations are not sufficient for ordinary persons in the ordinary course of business. Ordinary Statutory Right s can be easily enforced in the ordinary course of law. The National Commission to review the working of the constitution said in its report,
“Major assumption behind a new style of governance is the citizen’s access to information. Much of the common man’s distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes. He remains ignorant and unaware of the processes which vitally affect his interest. Government procedures and regulations shrouded in a veil of secrecy do not allow the clients to know how their cases are being handled. They shy away from questioning officers handling their cases because of the latter’s snobbish attitude and bow-wow style. Right to information should be guaranteed and needs to be given real substance. In this regard, government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded. In fact, we should have an oath of transparency in place of an oath of secrecy. Administration should become transparent and participatory. Right to information can usher in many benefits, such as speedy disposal of cases, minimizing manipulative and dilatory tactics of the babudom, and, last but most importantly, putting a considerable check on graft and corruption.”
The issue was also examined in 179th report of the Law Commission of India. It said,
“The legal foundation for exposure of corruption, misconduct or maladministration by public servant was laid down by the Supreme Court in R. Rajagopal Vs. State of Tamil Nadu, (1994) 6 SCC 632. The case involved the publication of serious misconduct of public servants by a convict who was serial-killer. The case squarely deals with the right to know and the limits of privacy of public servants. The Supreme Court referred to the judgments of the American Court in New York Times Vs. Sullivan, already referred to and another judgment of the House of Lords in England reported in Derbyshire Vs. Times Newspaper Ltd., 1993 (2) WLR 449.]. The above declaration of law by the Supreme Court is of fundamental importance on the subject of exposure of corrupt officials. If the law permits furnishing of information regarding corruption, past, present or impending and gives protection to the informants from reprisals, unless the disclosure is proved to be malicious, such a law can play a very useful role.”
On the basis of these recommendations the act was enacted. The right to Information Act, 2005 declares that the purpose of the Act is to “ promote openness, transparency and accountability in administration and in relation to matters connected therewith”. Thus the Act is fundamental in making the administration transparent and accountable. However, the result can be achieved only if public is aware of their rights and willing to exercise those rights.
Section 4 of the Act imposes certain obligation on the public authorities. Ironically, till this point of time every law, notification and circulars have imposed obligation on the people and public authorities have “implemented” these laws. It is yet to be seen as how the public authorities fulfill obligations imposed on them by the letters of law.
Section 4 (1) (d) provides that “Every public authority shall provide reasons for its administration or quasi judicial decisions to affected persons.” Duty to give reasons was established by a catena of judicial decisions. However, a statutory right is easier to enforce and hence the clause is extremely important.
The Act has established National Information Commission, effective redressal procedure in case of grievance. Section 20 provides for penalties in case of violation of citizen’s right. Further, statutory recognition of this right is always helpful in seeking compensation in civil suits in case of negligence of malafide by the public authorities.
On the whole this is a very good development in the history of Indian administrative reforms. Now it is for the assessees to either utilize this opportunity for better and accountable administration or mar this opportunity by leaving this important piece of legislation to the whims and fancies of the babus.
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on [email protected] , Web: www.rajeshkumar.co.in