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Historical Perspective of Right to Information in India

ashakantasharma

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Historical Perspective of Right to Information in India

India was a colony for long. Before that it had a feudal culture
and hierarchical social structure. The Maharajas and the Mughals,
the Viceroys and the British Empire defended themselves behind
ramparts of secrecy. The entire freedom struggle was a battle against
colonialism and for independence or self-government. Thus people
became the focus and popular information was used by them as a
weapon to achieve responsible and responsive government. In this
perspective, the conflict between freedom of information and official
secrecy, democratic culture and imperial heritage was formally
resolved in favour of the latter. After the birth of Republic and
enactment of the Constitution, freedom of expression became a
guaranteed fundamental right. That was the watershed of
jurisprudence of human rights. However, decade after decade we find
free India still suffocated by official secrecy laws. There have been
protests and dissents and resistance by the mass media.
The human history is a struggle for rights and moves zigzag
varying from country to country, culture to culture and age to age.
Although the Indian legal system is largely a colonial vintage, yet our
swaraj vintage is also pro-secrecy. Reference may be made to the
Constitution of India, the Commission of Enquiry Act, 1952 and the
Atomic Energy Act, 1962. A project on freedom of information as a
locomotive of human progress has to be seriously considered as a
high priority on the agenda of India.

The fact that the right to information is included in the
Constitutional guarantees of freedom of speech and expression has
been recognised by Supreme Court decisions challenging
governmental control over newsprint and bans on the distribution of
newspapers. Liberty of thought is the basis of freedom speech and
expression under Article 19(1)(a), which is an essential component of
a democratic governance. As the information will be at the genesis of
thought and expression, the right to information has to be an invisible
integral part of the right of free speech. As the information is of vital
not only for life of society but also for the life of individual, the Article
21 guaranteeing Right to live includes the basic right to be informed.
In the Constitution of our democratic Republic, among the
fundamental freedoms, freedom of speech and expression shines
radiantly in the firmament of Part III. We must take legitimate pride
that this cherished freedom has grown from strength to strength in
the post independent era. It has been constantly nourished and
shaped to new dimensions in tune with the contemporary needs by
the constitutional Courts. Barring a few aberrations, the Executive
Government and the Political Parties too have not lagged behind in
safeguarding this valuable right, which is the insignia of democratic
culture of a nation. Nurtured by this right, Press and electronic
media have emerged as powerful instruments to mould the public
opinion and to educate, entertain and enlighten the public.
Freedom of speech and expression, just as equality clause and
the guarantee of life and liberty has been very broadly construed by
this Court right from 1950s. It has been variously described as a
'basic human right', 'a natural right' and the like. It embraces within
its scope the freedom of propagation and inter-change of ideas,
dissemination of information, which would help formation of one's
opinion and viewpoint and debates on matters of public concern.

The importance which our Constitution-makers wanted to attach to
this freedom is evident from the fact that reasonable restrictions on
that right could be placed by law only on the limited grounds specified
in Article 19(2), not to speak of inherent limitations of the right.
In due course of time, several species of rights enumerated in Article
19(1)(a) have branched off from the genus of the Article through the
process of Interpretation by this apex Court, one such right is the
'right to information' Perhaps, the first decision which has adverted to
this right is State of U.P. v. Raj Narain. 'The right to know,' it was
observed 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". It was said very aptly— "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."

The next milestone which showed the way for concretizing this
right is the decision in S.P. Gupta v. Union of India in which this
Court dealt with the issue of High Court Judges' transfer. In this case
it was held that "The concept of an open government is the direct
emanation from the right to know which seems to be implicit in the
right of free speech and expression guaranteed under Article 19(1)(a).

Therefore, disclosure of information in regard to the functioning of the
Government must be the rule and secrecy an exception..." Peoples'
right to know about governmental affairs was emphasized in the
following words: "No democratic Government can survive without
accountability and the basic postulate of accountability is that the
people should have information about the functioning of the
Government. It is only when people known how Government is
functioning that they can fulfill the role which democracy assigns to
them and make democracy a really effective participatory democracy."
These two decisions have recognized that the right of the citizens to
obtain information on matters relating to public acts flows from the
fundamental right enshrined in Article 19(1)(a)166. The pertinent
observations made by the learned Judges in these two cases were in
the context of the question whether the privilege under Section 123 of
the Evidence Act could be claimed by the State in respect of the Blue
Book in the first case i.e., Raj Narain's case and the file throwing light
on the consultation process with the Chief Justice, in the second
case. Though the scope and ambit of Article 19(1)(a) vis-a-vis the right
to information did not directly arise for consideration in those two
landmark decisions, the observations quoted supra have certain
amount of relevance in evaluating the nature and character of the
right.

Then, we have the decision in Dinesh Trivedi v. Union of India.
This Court was confronted with the issue whether background papers
and investigatory reports which were referred to in Vohra Committee's
Report could be compelled to be made public. The following
observations of AHMADI, C.J. are quite pertinent:—
"In modern Constitutional democracies, it is axiomatic that
citizens have a right to know about the affairs of the Government
which, having been elected by them, seeks to formulate sound policies
of governance aimed at their welfare. However, like all other rights,
even this right has recognized limitations; it is, by no means,
absolute."

The next decision which deserves reference is the case of
Secretary, Ministry of I & B v. Cricket Association of Bengal. Has an
organizer or producer of any event a right to get the event telecast
through an agency of his choice whether national or foreign? That was
the primary question decided in that case. It was highlighted that the
right to impart and receive information is a part of the fundamental
right under Article 19(1)(a) of the Constitution.

"The right to impart and receive information is a species of the
right of freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution. A citizen has a fundamental right to use
the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose. However, this right to
have an access to telecasting has limitations on account of the use of
the public property..... Jeevan Reddy, J. spoke more or less in the
same voice:

"The right of free speech and expression includes the right to
receive and impart information. For ensuring the free speech right of
the citizens of this country, it is necessary that the citizens have the
benefit of plurality of views and a range of opinions on all public
issues. A successful democracy posits an 'aware' citizenry. Diversity of
opinions, views, ideas and ideologies is essential to enable the citizens
to arrive at informed judgment on all issues touching them."
A conspectus of these cases would reveal that the right to
receive and impart information was considered in the context of
privilege pleaded by the State in relation to confidential documents
relating to public affairs and the freedom of electronic media in
broadcasting/telecasting certain events.

Right to information in the context of the voter's right to know
the details of contesting candidates and the right of the media and
others to enlighten the voter. For the first time in Union of India v.
Association for Democratic Reforms' case, which is the forerunner to
the present controversy (petition challenging the constitutional
validity of Amendments to R.P. Act invalidating the Supreme Court's
May 2, 2002 judgment, the right to know about the candidate
standing for election has been brought within the sweep of Article
19(l)(a). There can be no doubt that by doing so, a new dimension has
been given to the right embodied in Article 19(1)(a) through a creative
approach dictated by the need to improve and refine the political
process of election. In carving out this right, the Court had not
traversed a beaten track but took a fresh path. It must be noted that
the right to information evolved by this Court in the said case is
qualitatively different from the right to get information about public
affairs or the right to receive information through the Press and
electronic media, though to a certain extent, there may be
overlapping. In Association for Democratic Reforms v. Union of India
and another, In this case it was held that the right to information of
the voter/citizen is sought to be enforced against an individual who
intends to become a public figure and the information relates to his
personal matters. Secondly, that right cannot materialize without
State's intervention. The State or its instrumentality has to compel a
subject to make the information available to public, by means of
legislation or orders having the force of law.

The information is currency that every citizen requires to
participate in the life and governance of the society. In any democratic
polity, greater the access, greater will be the responsiveness, and
greater the restrictions, greater the feeling of powerlessness and
alienation. Information is not private property. If at all it is the
property, it is the national property. Especially the property the
Government has the hold over is the information generated for
purposes related to the legitimate discharge their duties of office and
for the service of people and hence the people as ultimate beneficiaries
or sovereign, are entitled to know and benefit from it. Thus the
government and public officers who are supposed to serve the people
on the payment from public purs, are none else than the trustees of
this national resource-information. Besides moral and legal obligation
it is their constitutional obligation also based on the philosophical
foundation of freedom of speech and expression under Article 19(1)(a)
of the Constitution. As the transparency is the culture required for
good governance, secrecy directly means disempowerment.
Whenever, the executive interfered with the freedom of speech
and expression through its executive orders or legislative measures,
the press knocked the doors of justice in apex court and the resultant
judgments paved way for the jurisprudence of information rights (le
development of the right to information as a part of the Constitutional
Law of the country started with petitions of the press to the Supreme
Court for enforcement of certain logistical implications of the right to
freedom of speech and expression such as challenging governmental
orders for control of newsprint, bans on distribution of papers, etc. It
was through the following cases that the concept of the public's right
to know developed.

The landmark case in freedom of the press in India was Bennett
Coleman and Co. v. Union of India in which the petitioners, a
publishing house bringing out one of the leading dailies challenged
the government's newsprint policy which put restrictions on
acquisition, sale and consumption of newsprint. This was challenged
as restricting the Petitioner's rights to freedom of speech and
expression. The court struck down the newsprint control order saying
that it directly affected the Petitioners right to freely publish and
circulate their paper. In that, it violated their right to freedom of
speech and expression. The judges also remarked, "It is indisputable
that by freedom of the press meant the right of all citizens to speak,
publish and express their views" and "Freedom of speech and
expression includes within its compass the right of all citizens to read
and be informed." The dissenting judgment of Justice K.K.Mathew
also noted, The freedom of speech protects two kinds of interests.

There is an individual interest, the need of men to express their
opinion on matters vital to them and a social interest in the
attainment of truth so that the country may not only accept the wisest
course but carry it out in the wisest way. Now in the method of
political government the point of ultimate interest is not in the words
of the speakers but in the hearts of the hearers.

This principle was even more clearly enunciated in the case of
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, in
which the court remarked, "The basic purpose of freedom of speech
and expression is that all members should be able to form their
beliefs and communicate them freely to others. In sum, the
fundamental principle involved here is the people's right to know.
Another development on this front was through Manubhai D. Shah v.
Life Insurance Corporation, case in which it was held that if an
official media or channel was made available to one party to express
its views or criticism, the same should also be made available to
another contradictory view. The facts of this case, briefly, were: One
Mr. Shah who was also a Director of a voluntary consumer rights
organization and had, incidentally, worked extensively on the right to
information, including drafting a model Bill, wrote a paper
highlighting discriminatory practices by the Life Insurance
Corporation which is a government controlled body. The Corporation
published a critique of this paper in its institutional publication, to
which Mr. Shah wrote a rejoinder which the LIC refused to publish.
The Court held that a state instrumentality having monopolistic
control over any publication could not refuse to publish any views
contrary to its own.

In the area of civil liberties, the courts have built up the right to
have a transparent criminal justice system free from arbitrariness. In
Prabha Dutt v. Union of India the Court held that there excepting
clear evidence that the prisoners had refused to be interviewed, there
could be no reason for refusing permission to the media to interview
prisoners in death row.

Repeated violations of civil rights by the police and other law
enforcement agencies have compelled the courts to give, time and
again, directions to the concerned agencies for ensuring transparency
in their functioning in order to avoid violations like illegal arrests and
detention, torture in custody and the like. In cases concerning the
right to life and liberty under Article 21 of the Constitution the Courts
have stressed the need for free legal aid to the poor and needy who are
not either aware of the procedures or not in a position to afford
lawyers, and therefore unable to avail of the constitutional guarantees
of legal help and bail. The Courts have said, that it is the legal
obligation of the judge or the magistrate before whom the accused is
produced to inform him of the that if he is unable to engage a lawyer
on account of poverty or indigence, he is entitled to free legal aid.
'Right to know' has been given status of fundamental right by the
highest Court of the land in S.P. Gupta v. Union of India (Judges'
Transfer Case). The Apex Court held that the right to know is implicit
in the right of free speech and expression guaranteed under our
Constitution in Article 19(1)(a).

Right to know is also implicit in Article 19(1)(a) as natural
concomitant to free press which right is deducible from fundamental
right of freedom of speech and expression. In S.P. Gupta's case the
Apex Court also recommended change in century-old provisions of
Section 123 of the Indian Evidence Act, 1872 so as to be conducive to
the republican form of government and the open society which, we the
people of India, have established. Section 123 relates to immunity
from production of documents and was enacted to suit the needs of
the empire builders.

The Supreme Court has reaffirmed this legal position in its
subsequent decisions in Reliance Petro Ltd. v. Indian Express and
Secretary, Ministry of Information and Broadcasting v. Cricket
Association, Benga. In Reliance Petro's case, the Supreme Court
has observed that the right to know has reached new dimensions and
urgency and is basic right which citizens of a free country aspire in
the broaden horizons of the right to live in this age on our land under
Article 21 of the Constitution. The people at large have a right to know
in order to be able to take part in a participatory development in the
industrial life. In Secretary, MIB's case, the Apex Court has given a
very broad definition to the right to receive and disseminate
information through any media including air waves and electronic
media. Right to information is inherent in right to live as enshrined in
Art.21 and freedom of speech and expression as guaranteed under
Article 19(1)(a) of our Constitution. Right to information thus
emanates from the fundamental right to life and fundamental freedom
of speech and expression.

These freedoms guaranteed by the Constitution have to be
enjoyed subject to some reasonable restrictions. But these restrictions
can never outweigh and dominate the freedoms. After all what is
fundamental is the freedom and not the restriction.
Under the mantle of Welfare State, the Government today is
engaged in variety of activities which cannot be termed as sovereign
functions of the Government. These activities do not constitute 'Affairs
of the State' in strict sense. The Government, especially of a welfare
state, is responsible for socio-economic development and uplift of the
people, besides maintaining routine law and order. One of the
Directive Principles of the State Policy says: "the State shall strive to
promote the welfare of the people by securing and protecting as
effectively as it may, a social order in which justice, social economic
and political, shall inform all institutions of the national life. The
State shall in particular strive to minimize the inequalities in Income
and endeavour to eliminate inequalities in facilities and opportunities
not only amongst individuals but also amongst groups of people
residing in different areas or engaged in difference vocations." In an
independent, democratic and welfare state, the citizens occupy quite
an important position. They are the ones who are not only being
governed but also govern by way of exercising their right of franchise
and electing their representatives, who in turn formulate policies in
accordance with which the administrators are supposed to govern for
the benefit of the society. The benefits are to be accorded to or
conferred on the citizens by the administration in a manner whereby
most optimum position is attained and no one is favoured or deprived
of at the cost of or for favouring the other one. In such a system, it is
expected of the administration to provide to all the members of the
society a reasonable dignified standard of life in which there is no
risks of insecurity or stagnation on the economic front. No
individual should have any fear of suspicion and mistrust towards the
system in his mind. This is possible only by disseminating proper
information, of course, without leaking out the vital secrets. More
than fifty per cent of the citizen's problems could be sorted out
promptly through a proper communication between different channels
in the administration.

Administrative India puts the greatest weight on keeping
happenings within its corridors secret, thereby denying the citizens
access to information about them. Such orientations produce deep
contradictions in the larger socio-political system of the land which
itself is in a state requiring nourishment and care. As the latter is
still relatively new and in its infancy, its growth processes inevitably
get retarded for want of information about the government, which
means from the Government. Over- concealment of governmental
information creates a communication gap between the governors and
the governed, and its persistence beyond a point is apt to create an
alienated citizenry. This makes democracy itself weak and insecure.
Besides, secrecy renders administrative accountability unenforceable
in an effective way and thus induces administrative behaviour, which
is apt to degenerate into arbitrariness and absolutism. This is not all,
"The Government, today, is-called upon-to make policies on an ever
increasing range of subjects, and many of these policies must
necessarily impinge on the lives of the citizens. It may sometimes
happen that the data made available to the policy makers is of a
selective nature and even the policy-makers and their advisors may
deliberately suppress certain viewpoints and favour others. Such
bureaucratic habits get encouragement in an environment of secrecy;
and openness in governmental work is possibly the only effective
corrective to it, also raising, in the process, the quality of decision making.

Besides, openness has an educational role in as much as
citizens are enabled to acquire a fuller view of the pros and cons of
matters of major importance, which naturally helps in building
informed public opinion, no less than goodwill for the Government."
Justice Krishna lyer while commenting on the public functionaries
remarked, "Be you ever so high, the law is above you". The public
power must not hide its heart in a welfare State and open system. The
normal rule in the Government of India is secrecy and openness the
exception. There is the Official Secrets Act, 1923 which makes
unauthorized communication of information including documents, an
offence punishable with imprisonment which may extend upto three
years. This Act covers all documents and information and makes no
distinction of kind or of degree. A blanket is thrown over everything.
Nothing escapes. By secrecy system the government safeguards its
reputation, buries its mistakes, manipulates its citizens, maximizes
its powers and corrupts itself. In the backdrop of judgement of the
Supreme Court in the Judges' Transfer case, the provisions of the
Official Secrets Act, 1923 and of Section 123 of the Evidence Act 1872
suffer from the stigma of unconstitutionality. These colonial
provisions need to be pensioned off. "Secrecy in government is
fundamentally anti-democratic, perpetuating bureaucratic errors.
Open discussion based on full information and debate on public
issues are vital to our health".

Woodrow Wilson has rightly said, "A democratic Government
ought to be all outside and not inside". Unbridled freedom is not
possible in our world of perils and evils designs. Truth may have to be
withheld in moments when a nation's survival is in imminent danger.
In Churchill's words: "In time war, the truth is so precious that it
must be escorted by a bodyguard of lies". No State should adopt the
mendacious methodology of Goebbels and mislead its subjects,
whatever the crisis. However, quite often the right to information is
denied and a seemingly authentic diet of official lies is served with a
view to condition the minds of men and they are expected to consume
government's version. Free speech is sabotaged from within by
fouling the fountains of information. The bureaucracy itself is banned
from telling the truth by forced statutory secrecy. Administrative
secrecy relating to classified documents concerning national security
and foreign policy is justified. But routine claim to secrecy or privilege
by the government and public bodies may jeopardize the very survival
of democracy in India because this immunity is anti-democratic.
Therefore, no government should think that people must be told only
that much which it thinks to be good for the people and safe for
itself. Dangers of burying truth have been very powerfully put by
Emile Zola:

"When truth is buried underground it grows, it chokes, it
gathers such an explosive force that on the day it bursts out, it blows
up everything with it".

Equally forceful are the views of Kurt Eisner, who says that the
truthful information must not be withheld because:-"Truth is the
greatest of all national possessions. A state, a people, a system which
suppresses the truth or fears to publish it, deserves to collapse.
The overall impact of these decisions has been to clearly
establish that the right to freedom of information, or the public‘s right
to know, is embedded in the provisions guaranteeing fundamental
rights under the Constitution. Various Indian laws provide for the
right to access information in specific contexts. The system of
governance in India has traditionally been opaque, with the State
retaining the colonial Official Secrets Act (OSA) and continuing to
operate in secrecy at the administrative level. The OSA, enacted in
1923, still retains its original form, apart from some minor
amendments made in 1967. The poor flow of information is
compounded by two factors -- low levels of literacy and the absence of
effective communication tools and processes. In many regions, the
standard of record-keeping is extremely low. Most government offices
have stacks of dusty files everywhere, providing a ready excuse for
refusing access to records, on the specious excuse that they have
been ‗misplaced‘. The rapid growth of information technology, on the
other hand, has meant that most states in the country are now trying
to promote technology, primarily to attract investment. This is
indirectly contributing to an improved flow of information.
 



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