JKJ 2005 (1) J-5

Right To Information Its Constitutional Validity

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1. Introduction

For proper functioning of a democratic setup, full participation of the people in the Government is must, and to enable their participation “right to know” or “right to information” is a sine qua non. In a democratic setup, every Government of the State or the Centre is accountable to the people of the country and they have the right to know as to what the Government is doing, how it is doing and why it is doing. Normally it is believed that whatever is done by the Government is done for the betterment of the people. Government that is not open or transparent may be tempted to commit administrative misconduct. On the other hand a transparency ensures the reduction in administrative faults.

As per Justice Krishna Iyer “a Government which believes in secrecy ...... not only acts against democratic decency but busies itself with its own burial”. [Maneka Gandhi v. Union of India AIR 1978 S.C. 597]. Openness in Government bounds to act as a powerful check on the misuse of power by it. In the words of Justice Bhagwati “Open Government is new democratic culture of an open society towards which every liberal democracy is moving and our society should be no exception” [SP Gupta v. President of India AIR 1982 SC 149,235]

2. Historical background:

In historical perspective, the efforts to promote the freedom of information goes back to the year 1893 when a number of international conferences of journalists were held at different places. But nothing could be achieved and whatever could be secured was wiped out, when censorship was imposed upon the press during the world wars. In March 1948, the United Nations convened a Conference in Geneva on the subject matter of Freedom of Information that was attended by 54 Countries. It passed a series of resolutions recommending constructive action and adopted three draft Conventions for further considerations by the United Nations that ultimately, led the General Assembly of United Nations to declare freedom of information a fundamental human right, and the declaration was made on December 10, 1948.

In 1960, the Economic and Social Council of the United Nations adopted a Declaration of Freedom of Information, a derivative from Art. 19 of the Universal Declaration of Human Rights, 1948. Sweden became the first country in the world to enact a provision for access to official information for its citizens.

3. Constitutional Provisions:

Article 19(1)(a) of the Constitution of India guarantees to all citizens right to freedom of speech and expression. There is no express provision in the Constitution that guarantees freedom of Information. This aspect came into light with case of Uttar Pradesh v. Raj Narain AIR 1975 SC 665. In this case Supreme Court was faced with the problem of validity of sections 123 and 162 of Evidence Act, which conferred immunity to the State from disclosing any document. The Court thus laid down a ‘doctrine of public interest’ under which the State would not have the veil of immunity for disclosing an official document in public. It is the injury to the public interest, which is the reason for exclusion from disclosure of documents whose contents if disclosed would injure public and national interest.

The Supreme Court in SP Gupta v. U.O.I has recognized the “right to know” as a sine qua non of a really effective participatory democracy and raised it to the status of fundamental right. In this case Bhagwati Justice (as he then was) cited with approval the observations of Justice Mathew of the Apex Court in AIR 1975 SC 865 where in the learned Judge had emphasized that people of India had a “right to know everything that is done in a public way by their functionaries. They are entitled to know the particulars of every public transaction in all its bearing.” {Supra AIR 1982 SC 149, 233}. He further observed that ‘right to know’ was derived from the concept of freedom of speech, which is not absolute.

While raising the right to know to the status of constitutional right, Justice Bhagwati observed that the “Concept of an open Government is the direct emanation from right to know seems to be implicit in the right of freedom of speech and expression” guaranteed under Art.19(1)(a) of the Constitution of India. Learned Judge further held that the disclosure of the information regarding the functioning of the Government must be the rule and the secrecy an exception and that too when public interest strictly so demands. Thus the Court ordered to disclose the documents of correspondence between Chief Justice of India and the President of India concerning the non-appointment of an additional Judge.

In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236, Justice P.B. Sawant of the Apex Court declared that the right to acquire the information and the right to disseminate it is implicit in freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. It includes “right to inform” and also “right to be informed”.

In re Hari Jai Singh, AIR 1997 SC 73, the Supreme Court has reiterated that there had to be an active and intelligent participation of the people in all spheres and affairs of the community in a democratic setup so that they are capable of forming a broad opinion about the way in which they were being managed, tackled and administered by the Government and its functionaries. This again underscores the importance of right to information as a fundamental right.

The Apex Court in a landmark judgment delivered in U.O.I. v. Association for Democratic Reforms, AIR 2002 S.C. 2112, has held that a voter has a fundamental right under Article 19(1)(a) of the Constitution to know the antecedents of a candidate. For this purpose the “voters rights to know the antecedent including criminal past of the candidates contesting election for the member of Parliament or Legislative Assembly is much more fundamental and basic for the survival of democracy, the little man may think once before making his choice of electing law makers as law breakers.”

The cases cited above clearly demonstrates that right to information which is sine qua non of participator democracy is implicit in the right of freedom of speech and expression as guaranteed under Art. 19(1)(a) of the Constitution of India. To deprive a person of his right to live a full live as guaranteed under Article 21 of the Constitution.

The Official Secrets Act, 1923

The access to information is presently being governed by the Official Secrets Act, 1923, which lays down that all disclosures, and use of official information is a criminal offence unless expressly authorized. The Act broadly consists of two parts. One deals with espionage or spying activities u/s 3 and the other deals with unauthorized disclosure of official information u/s 5. The words person in “possession of official information” as mentioned in section 5 of the Act are wide enough to include (i) person in possession of information; (ii) person obtaining information in contravention of the Act; (iii) person to whom official information has been entrusted in confidence by any person holding office under the Government; and (iv) person obtaining or having access to information because of holding any office present or past or holding any Government contract or a person holding office under any of these persons.

While commenting on the Official Secrets Act, 1923, Ms. Rani Advani has said “in its application and interpretation the executive and Judiciary have allowed the interest of the State to be read as interest of the Government currently in power”.

The need to enact a law on the right to information was recognized unanimously by the Chief Ministers Conference on “Effective and Responsive Government” held at New Delhi on May 24, 1997 in order to make the Government more transparent and accountable to the public, the Government of India appointed a working Group on Right to Information and Promotion of open and Transparent Government under the Chairmanship of Sh. H.D. Sourie. The Draft Bill was introduced in the Parliament and passed by both the houses in December 2002, which got assent of President on 6-1-2003. Similarly in our State too the State Legislature passed similar Act, which got the assent of Governor n 5-1-2004.

J&K Right to Information Act, 2004

Section 4 of the Act provides that every Citizen shall have the right to obtain information from the Incharge of office, who shall be liable to supply in accordance with the provisions of the Act. Section 6 of the Act imposes certain restrictions of right to information and envisages grounds on which there cannot be disclosure of information. These exemptions includes various aspects of decision making and execution which would be open to review for simple reason that they effect the lives of the people and involves the matters relating to the security of the State.

There is no independent appeal mechanism under the Act. It only provides for departmental appeal u/s 9 of the Act. Section 14 of the Act expressly bars the jurisdiction of the Courts to “entertain any suit, prosecution or legal proceeding in respect of any order made this Act.” There is no provision for penalty under the Act, for officers withholding information except providing departmental action in accordance with the provisions as laid down in section 12 of the Act. Private Companies, NGO etc have been kept out of the purview of the Act u/s 8.

Suggestions

To sum up, India is one of the twenty countries of the world, which have enacted such law, which is a welcome step in the direction of providing transparency, accountability, and openness in Governance. In Order to make the Act more effective following suggestions are made:-

(i) In order to have an independent appeal mechanism every citizens should have the right to approach the Court, in case of refusal to provide information;

(ii) Penalty clause should be introduced for the officials in order to make them accountable for delay or non-compliance in providing information to public;

(iii) The right to information must also be made available against private companies and NGO’s etc.

(iv) The restrictions on the right to information must be same as the “reasonable restrictions” laid down under Article 19(2) of the Constitution i.e., in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.