Indian Political Science Association

RIGHT TO INFORMATION AND THE JUDICIARY

Author(s): M.M. Semwal and Sunil Khosla
Source: The Indian Journal of Political Science, Vol. 69, No. 4 (OCT. - DEC., 2008), pp. 853-
864
Published by: Indian Political Science Association
Stable URL: http://www.jstor.org/stable/41856475
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The Indian Journal of Political Science
Vol. LXIX, No. 4, Oct.-Dec., 2008

RIGHT TO INFORMATION AND THE JUDICIARY

MM Semwal
SunilKhosIa

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, seek 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.

Chief Justice A. M. Ahmadi

Democracy is for the people, of the people and by the people has to be remembered forev
for the betterment of the people. Betterment of the people is linked to right to know. In a democr

republic, will of the people is paramount and is the basis of the authority of the government. The w
is expressed in periodic elections based on universal adult suffrage held by means of secret ball
in a free and fair manner. It is through the ballot that the voter expresses his choice or preference
a candidate. In a Parliamentary democracy, the government is accountable to the people thro
their elected representatives. The elected representatives act a link between the people and tf
government. They fill the role of law makers and custodians of the government. People look to t
for the redressai of their grievances. They are the focal point of the will and authority of the peop
large. The moment they put in papers for contesting election, they are subjected to public gaze
public scrutiny

Flow of information is prerequisite to bridge the gulf between the rulers and the ruled a
affects the electorate's ability to evaluate the candidate. The voter should have at least the ba
information about the contesting candidates. Freedom of speech and expression is basic to th
availability of proper and relevant information about the candidate. The right to vote is a constitut
right though not a fundamental right but right to make choice by means of ballot is a part of
freedom of expression. Democracy requires an informed citizenry and transparency in inform
which are essential to its functioning and also to contain corruption and to hold government
their instrumentalities accountable to the governed. Jurisprudence of democracy is envisage
the Universal Declaration of Human Rights 1 948. European Convention for the Protection of Hu
Rights and Fundamental Freedoms establishes a presumptive right to freedom to seek, receiv
and impart information and ideas of all kinds2. It was followed by the International Covenant on
and Political Rights which was ratified in 1978. Article 19 of the Covenant declares that:

"Everyone has the right to freedom of opinion and expression: the right includes freedom
hold opinion without interference, and to seek, and receive and impart information and ideas th
any media and regardless of frontiers".

In U.S.A., the freedom of speech and expression was provided through the first amendm
to the constitution and the Freedom of Information Reform Act was passed in 1986. In Sweden

right to know existed since 1810 which was replaced by a new act in 1949 that provided every c

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The Indian Journal of Political Science 854

the access to all documents of the state or munic

Information Act in December 1982.

In England, Official Secrets Act 1911 and 1989 do not provide access to public about the official
information on account of national security. But government recognizes the access to information
as an essential part of its accountability.

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 the decision making processes. He remains ignorant and
unaware of the processes which vitally affect his interest. Government procedures and regulations
shrouded in veil of secrecy do not allow the clients to know how their cases are being handled. The
right to information should be guaranteed and needs to be given real substance. The government
must assume a major responsibility and mobilize skills to ensure flow of information to the citizens.
The administration should become transparent and participatory. Right to information can lead to
speedy disposal of cases, minimizing manipulative and dilatory tactics of the babudom, and last
but most importantly, putting a considerable checks on graft and corruption3. This paper seeks to
make a modest attempt to deal with the questions such as what is right to information? Why should
the government provide information? Why do we need the right to information laws? What are the
constitutional provisions relating to freedom of speech and expression, and right to know? What
has been the role of the judiciary in the process of evolution of the Right to Information Act?

The spirit of the Universal Declaration of Universal Rights, 1948 is reflected in the Preamble,
the Parts III and IV of the Constitution of India which embody a solemn resolve of its people to
secure, inter alia, to its citizens, liberty of thought and expression. In pursuance of this supreme
objective, Article 19(1) (a) guarantees to the citizens, the right to freedom of speech and expression
as one of the fundamental rights listed in the Part III. These rights have been set out in broad terms
leaving scope for their expansion and adaptation, through interpretation, to the changilng needs and
evolving notions of a free society. The right to information is implicit in the Article 19(1) (a) of the
Constitution of India which guarantees to all citizens the fundamental right to freedom of speech
and expression. This basic human right has been recognized by the Universal Declaration of
Human Rights, 1948. The Preamble of the Constitution of India ensures to the people the liberty of
thought and expression. The right to freedom of expression includes several specific rights which
are bound together and through which a common string passes. These include4:

1 . Right to voice one's opinion.

2. Right to seek information and ideas.

3. Right to receive information.

4. Right to impart information.

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Right to Information and the Judiciary 855
In Indian Express Newspapers, Bombay v Union of India5 the c
interest in freedom of discussion of which the freedom of the pr
requirement that members of a democratic society should be suffi
influence intelligently the decisions which may affect themselves.

The Law Commission of India's 179th Report and Reports of n

Councils working on this subject sensitized the government to ena
information. In 2005, the Right to Information Act was passed by
of the Act declares that the Act has been enacted for establishing "th
information for the citizens to secure access to information6 under

in order to promote transparency and accountability in the workin

constitution of a Central Information Commission8 and State Inf
that matters connected therewith or incidental thereto". It reads a

WHEREAS the Constitution of India has established democrat

AND WHEREAS democracy requires an informed citizenry trans

are vital to its functioning and also to contain corruption and to
instrumentalities accountable to the governed;

AND WHEREAS revelation of information in actual practice i

public interests including efficient operations of the Government
resources and the preservation of confidentiality of sensitive infor

AND WHEREAS it is necessary to hamionise these conflicting i

paramountcy of the democratic ideals;

NOW, THEREFORE, it is expedient to provide for furnishing c

who desire to have it.

The Act applies both to Central and State Governments and all public authorities. The Act
defines information in section 2(f) as any material in any form, including the records, documents,
memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports,
papers, samples, models, data material held in any electronic form and information relating to any
private body which can be accessed by a public authority under any law for the time being in force.

Public has a fundamental right to know about the functioning of the government. Right to get
information in a democracy is natural right flowing from the concept of democracy. Freedom of
speech and expression is one of the essential foundations of the democratic setup and it is
necessary condition for the progress of democracy as well as individual's personality. The English
Law attaches considerable importance to the freedom of expression. Lord Steyn observed:

"Freedom of speech is the life blood of democracy. The free flow of information and ideas
informs political debate. It is a safety valve; people are more ready to accept decisions that go

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The Indian Journal of Political Science 856

against them if they can in principle seek to infl

by public officials. It facilitates the exposure of err
of the country..."10

Freedom of speech and expression is, howe

reasonable restrictions in the interest of the sove
friendly relations with foreign States, public order
court, defamation or incitement to an offence.

THE RIGHT TO INFORMATION DEFINED

The term information has been derived from the Latin words formation and forma which

means giving shape to something and formation of a pattern. It adds something new to our awareness
to remove the vagueness of our ideas. Information11 means any material in any form relating to the
administration, operation or decisions of the public authority established or constituted by or under
the constitution.

The right to information is defined in the section 2(j) as a right to information accessible
under the control of public authority and includes a right to:

i. Inspection of work, documents, records,

ii. taking of extracts and notes,

iii. Certified copies of any record of such public authority,

iv. Taking separate samples of material,

v. Obtaining information in form of diskettes, floppies or any other electronics mode or

through print-outs where such information is stored in a computer or in any other
device.

Every citizen has the right to know how the government is functioning. Right to information
empowers every citizen to obtain information from the government. It is duty of public authorities to
maintain records for the easy access and to publish within 120 days the name of the particular
officers who should give information and in regard to the framing of the rules and regulations.12 All
information shall be disseminated widely and in such form and manner which is easily accessible
to the public.13 It has been provided that it is required that the request to be disposed of within 30
days provided that where information sought for concerns life or liberty of a person, the same shall
be provided within 48 hours.14 If a request is rejected it shall be communicated giving reasons and
specifying the procedure for appeal and the designation of the appellate authority.15 The Act also
exempts granting information where it would disproportionately divert the resources of the public
authority or would be detrimental to the safety and preservation of the record in question.16

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Right to Information and the Judiciary 857
WHY RIGHT TO INFORMATION AS A FUNDAMENTAL RIGHT ?

Article 19 (1) (a) of the Constitution of India which guarantees the fundamental right to free
speech and expression. It has been interpreted in numerous judgments rendered by the Court. In
Association for Democratic Reforms17 the Court concluded that for the survival of democracy, right
of the voter to know antecedents of the candidate would be part and parcel of his fundamental right.
It would be the basis for free and fair elections which are a basic structure of the Constitution. The

right to information flows from Article 19(1) (a) which includes the following perceptions18 :

1 . It helps an individual to attain self fulfillment;

2. It helps in discovery of the truth;

3. It strengthens the capacity of an individual through participation in the decision making.

4. It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change.

JUDICIARY AND RIGHT TO INFORMATION

Over the years the Supreme Court of India has consistently observed that the individual can
not express himself unless he "knows". It had occasion to deal with the exposure of the conduct of
government through media or otherwise. In S. Rangarajan v P. Jagjivan Ram,19 the Court held that
the criticism of the government policies was not prohibited though there should be a proper balance
the freedom of expression and social interests. Freedom of speech is the liberty to propagate one's
view. It includes the right to propagate or publish the views of other people. The right is jealously
guarded by the Supreme Court20 in Life Insurance Corporation v Manubhai D. Shah,21 while
dealing in citizen's right to freedom of speech and expression, pointed out that the freedom of
speech and expression is a natural right which a human being acquires on birth and, therefore, it is
a basic human right.

In Dinesh Trivedi v Union of India,22 the Supreme Court traced the origins of the community's

right to know from the right to freedom of speech and expression and held that 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, seek to formulate sound policies of governance aimed at their
welfare. To ensure that the continued participation of the people in the democratic process, they
must be kept informed of the vital decisions taken by the government and the basis thereof. Hence
the right to information has been accepted as a part of the fundamental right to speech and expression
by the Supreme Court.

Knowledge and information is the prerequisite for the enjoyment of this right because the
lack of authentic information on matters of public interest leads to the wild rumors. Freedom of

speech and expression includes the right to receive and collect information. Since the democracy is

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The Indian Journal of Political Science 858

the government of the people who are the sovere

people if they are ignorant of the issues to be re
solutions and the facts underlying those argume
belong to the people. They have the right to know
their money is being spent. The business of the g
fact should be made public. Only a fully informed c
of these duties.

The Right to Information Act enables the citizens to get the required information for the
redressai of the grievances within a specified time from the date of filing application. Any citizen can
ask for information under this law by applying in writing or through electronic means to the Public
Information Officer (PIO), specifying the particulars of the information sought for.

The right to information has been judicially recognized as a part of the fundamental right to
speech and expression. Information is sine qua non for the efficient functioning of democracy. It
keeps the people informed about the socio-political and economic affairs and issues. In a developing
country like India, the availability of the information is required to be assured to the people in a
simple and speedy manner because the development process depends on it.

Information means to know. Soli Sorabji stressed on the right to information as a device to
bring transparency in the administration and public life which can check corruption and can lead to
accountability and integrity. Sense of responsibility is essential to curb the menace of corruption
from administration. Lack of knowledge tends to social superiority and inferiority complexes which
perpetuate the socio-economic division. It in turn creates a political clout and leverage in favor of
those who have monopoly over the flow of information. Justice P. B. Sawant held that the barrier to
information is the main cause responsible for the corruption in society.

Canada, Australia, New Zealand, U.S.A., France, South Africa and Scandinavian countries
along with India provide for the right to access to information about the administration, operation
and decision of the public authority. There is global sweep of change towards openness,
transparency and accountability.

DEMOCRACY AND RIGHT TO INFORMATION

The need for the right to information in sphere of seeking and receiving information with
reference to elections, as a sentinel to protect fundamental rights has received judicial recognition
through various landmark verdicts of the Indian courts. |n 1950, the Apex Court observed that the
freedom lay at the foundation of all democratic organizations. Without free political discussions on
public education, the proper functioning of the processes of popular government is not possible. In
Sakal papers24 the Court said that the freedom of speech and expression guaranteed by the Article
19 (1) gives a citizen the right to propagate and publish his ideas to disseminate them to circulate
them either by words of mouth or by writing. This right extends not merely to the matter it is entitled

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Right to Information and the Judiciary 859
to circulate but also to the volume of circulation. A freedom of such
of abuse. But it is better to leave a few of its noxious branches to t
pruning them away, to injure the vigor of those yielding the proper f

The right to get information in democracy is recognized all thro

flowing from the concept of democracy26 and the citizens in a democr
informed.27 Association for Democratic Reforms case is the foreru
the candidate standing for the election has been brought within the
observed in this case that Mthere can be no doubt that by doing so
to the right embodied in Article 19(1) (a) through a creative approach
and refine the political process of election. In carving out this righ
beaten track but took a fresh path. It must be noted that the right to i
in the said case is qualitatively different from the right to get inform

the right to receive Information through the press and the electr
extent, there may be overlapping. The right to information of the
against an individual who intends to become a public figure and th
personal matters. Secondly, that right cannot materialize without S
its instrumentality has to compel a subject to make the information
legislation or orders having the force of law."

Kesavananda v Union of India28 also indicated for the need of law

Court issued the directives to the Election Commission of India reg
antecedents of the election candidates.

In Bennett Coleman29 the right to formation was held to be included within the right to
freedom of speech and expression guaranteed by the Article 19 (1) (a) not only for the freedom of
press but also for the benefit of the public.

It also observed that the right to know is implicit in the right to free speech and expression.
Disclosure of information regarding the business of the government must be the rule.30 The decision
in State of Uttar Pradesh v Raj Narayan31 in 1975 is considered as a landmark one in which it was
held that the freedom of speech and expression includesse right of citizens to know every public
act, everything that is done in a public way, by their public functionaries. The responsibility of officials
to explain and to justify their acts is the chief safeguard against oppression and corruption. Justice
Mathews held :

"In a government of responsibility like ours, where all the agents of the public must be
responsible for their conduct, there can be few secrets. The people of this country have a right to
know every public act, every thing 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 bearings. Their right to know,
which is derived form the concept of freedom of speech, though not absolute, is a factor wh'

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The Indian Journal of Political Science 860

should make one wary when secrecy is claimed f

public security. To cover the veil of secrecy, the com
public. Such secrecy can seldom be legitimately d
parties and politics or personal self-interest or bur
explain and to justify their acts is the chief safeg

It further held :

"There may be classes of documents which pu

no matter what the individual documents in tho
recognizes that there may be classes of documen
from the disclosure. There is one such class of d
law as entitled in the public interest to be protec
documents which it is really necessary for the pr
from the disclosure. The document falling within
because of their contents but because of the c
minutes, minutes of the discussions between
departmental communications and dispatches

To justify a privilege, secrecy must be in

communication or efficiency in the transaction of
which has remained or would have remained inv
many transactions of the official business is ther
time a genuine instance of such otherwise inviola
determined on its merit.

On the issue of controversy as to whether the Court can inspect the document for the purpose
of coming to the conclusion whether the document relates to the affairs of states. In Sukhdev Singh
case32 the court held that it has no power to inspect the document.

In Dinesh Trivedi33 it was held that the freedom of speech and expression includes the right
of citizens to know about the affairs of the government. Right to know and be informed is the
foundation of democracy. In PUCL34 the Court observed that true democracy cannot exist unless the
citizens have a right to participate in the affairs of the policy of the country. For this, they need to be
well informed on all issues from all sides in respect of which they express their views. One-sided
information, misinformation, disinformation, and non-information all equally create uninformed
citizens which makes democracy a farce...

In S.P.Gupta35 the court described the right of the people to know about every public act and
details of every public transaction undertaken by the public functionaries.

Accounts uility is an essential ingredient of a democratic government. No democratic

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Right to Information and the Judiciary 861
government cn survive without accountability and the basic postulat
the people should have information about the functioning the governm
how government is functioning that they can fulfill the role which d
make democracy participatory. "A popular government" said James
information or the means of obtaining it, is but a prologue to a force
The citizens' right to know the facts about the administration of the
democracy. They can play a significant role only if there is full acces
governmental functioning.

The demand for the openness in the government is growing almos

In S. P. Gupta37 it was observed that the demand for openness in the
reasons. Democracy does not consist merely in people exercising their
to choose their rules and, once the vote is cast, then retiring in passiv
in the government. Today it is common ground that democracy has a
orchestration has to be continuous and pervasive. This means tha
intelligent and rational votes but should also exercise sound judg
government and the merits of public policies, so that democracy doe
exercise in voting but becomes a continuous process of government -
But this important role people can fulfill in a democracy only if it is an
is full access to information in regard to the functioning of the govern

The concept of an open government is the direct emanation from

seems to be implicit in the right of free speech and expression gua
Therefore, disclosure of information in regard to the functioning of th

secrecy an exception justified only where the strictest requirement o

The approach of the court must be to attenuate the area of secrecy a
with the requirement of public interest, bearing in mind all the tim
important aspect of public interest.38

The Supreme Court of India in Ministry of Information and Broadca

v Cricket Association of Bengal expanded the provisions of Article
information. It held that "the freedom of speech and expression is nec
It enables the people to contribute to debates on social and moral issu
a truest model of anything, since it is only through it that the wide
circulate. It is the only vehicle of political disclosure so essential to d
the role it plays in facilitating artistic and scholarly endeavors of all

The court while dealing with the right to receive and impart inform
held :

"...the right to freedom of speech and expression also includes th

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The Indian Journal of Political Science 862

and to entertain and also to the right to be educate

right of the telecaster and the latter that of the v
therefore also include the right to educate and info
interested in the particular game and also to inform a
were held to be public property and distribution
channels was to be done on an equitable basis. H
sporting event, it is incorrect to say that the free-sp

The Supreme Court in Peoples Union for Civil

foundation of a healthy democracy is to have well i
was further elevated to the status of a human rig
accountable governance. The reason to have right t
the candidate is that the voter can judge and decide
is the master of his right. He must have the necessa
in favor of a candidate who satisfies his criterion f

the candidate to the voters is necessary. It also emph

The right to freedom of speech and expression

creative approach dictated by the need to improve
court has gone into each and every aspect of vote
opinion that the Democratic Republic is the basic str
are must for it. The foundation of healthy democracy
voter to know the candidate is the foundation of d
Constitution of India and is given effect to in speci

It is expected that the Right to Information Act w

department as it will be a salutary check on the i

corrupt motives of the public officials41 and will s
while creating greater certainty and transparency
governance. Information intends to promote acco
making the process of decision making more open
effective device to promote the culture of accounta

References :

1. Lily Thomas v Speaker, Lok Sabha AIR 1993 SC 2948.

2. Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms

3. Report of National Commission to Review the Working of the Constitution, 2002 mentioned in P.K. Da
The Right to Information Act 2005, Universal, Delhi, 2006, pp. 167-168.

4. L.M. Singhvi, Constitution of India, 2nd Edition, Volume I, Modem Law Publications, New Delhi, 2006,
p. 676.

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Right to Information and the Judiciary 863
5. Indian Express Newspapers, Bombay v Union of India (1985) 1 SC

6. Information" means any material in any form, including records, doc

advices, press releases, circulars, orders, logbooks, contracts, rep
data material held in any electronic form and information relating to
accessed by a public authority under any other law for the time being

7. "Public authority" means any authority or body or institution of self-go

a. by or under the Constitution;

b. by any other law made by Parliament;
c. by any other law made by State Legislature;
d. by notification issued or order made by the appropriate Government, and includes any -
i. body owned, controlled or substantially financed;
ii. non-Government Organization substantially financed, directly or indirectly by funds provided
by the appropriate Government.

8. Central Information Commission is constituted by the Central Government through a Gazette Notification.
It includes one Chief Information Commissioner (CIC) and not more than ten Information Commissioners
(IC) who will be appointed by the President of India. It shall have its Head quarter in Delhi.

9. The State Information Commission will be constituted by the State Government through a Gazette
notification, it will have one State Chief Information Commissioner (SCIC) and not more than 10 State
Information Commissioners (SIC) to be appointed by the Governor. The headquarters of the State
Information Commission shall be at such place as the State Government may specify.

10. R. v Secretary of State for the Home Department Ex P. Simms (2000) 2 LR 115 (AC) quoted in P.K. Das,
The Right to Information Act 2005, Univeral, Delhi, 2006, p. 4.

1 1. The Freedom of Information of Bill 2000 was introduced in Lok Sabha on 25th July 2000.

12. Section 4 of the Right to Information Act, 2005.

13. Sub-section (3) of section 4 of RTI Act, 2005.

14. Section 7 of RTI Act, 2005.

15. Section 7(8).

16. Section 7(9).

17. Union of India v Association for Democratic Reforms AIR 2002 SC 2112.

18. Indian Express Newspapers Bombay Ltd v Union of India AIR 1986 SC 515.

19. 1989 (2) SCC 574.

20. Brij Kishore Sharma, Introduction to the Constitution of India, PHI, New Delhi, 2005, p. 82.

21. Life Insurance Corporation v Manubhai D. Shah (1992) 3 SCC 637.

22. Dinesh Trivedi v Union of India 1997 (4) SCC 306.

23. P. .K. Das, n.8, p. 4.

24. Sakal papers case AIR 1962 SC 305.

25. Romesh Thappar v State of Maharashtra AIR 1950 SC 124.

26. Union of India v Association for Democratic Reforms AIR 2002 SC 2112.

27. Indian Express Newspapers, Bombay v Union of India AIR 1986 SC 515.

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The Indian Journal of Political Science 864

28. Kesavananda Bharti v State of Kerala AIR 1973 SC 1461.

29. Bennett Coleman v Union of India AIR 1973 SC 60.

30. S. P. Gupta v Union of India AIR 1982 SC 149.

31. AIR 1975 SC 865.

32. AIR 1961 SC 493.

33. Dinesh Trivedi, M.P. v Union of India (1997) 4 SCC 306.

34. Peoples Union for Civil Liberties v Union of India AIR 2003 SC 2363.

35. S. .P. Gupta v Union of India AIR 1982 SC 149.

36. Quoted in P. K. Das, n.8, p. 229.

37. AIR 1982 SC 149.

38. P. K. Das, n.8, p. 231.

39. Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal (1995)
2 SCC 161.

40. Peoples Union for Civil Liberties v Union of India AIR 2002 SC 2112.

41. The word "Public official" would include an elected representative, an appointed official and a
governmental employees... who have or appear to have substantial responsibility or control over th
conduct of governmental affairs. See 179th Report of Law Commission of India on Public Interes
Disclosure and Protection of Informer, 2001.

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