RIGHT TO INFORMATION – A FUNDAMENTAL RIGHT?

[Mr. M. GOVINDARAJAN]

                        Section 2(j) of the Right to Information Act defines the terms ‘Right to information’ as the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

• Inspection of work, documents, records;
• Taking notes, extracts, or certified copies of documents or records;
• Taking certified samples of material;
• Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print outs where such information is stored in a computer or in any other devise.

Section 3 of the Act provides that subject to the provisions of this Act, all citizens shall have the right to information.  It is to be discussed in this article whether such right is a fundamental right to the citizens. 

                        Lord Action said on one of his speech that everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.  It is thus clear that a society which adopts openness as a value of overarching significance not only permits its citizens a wide range of freedom of expression, it also goes further actually opening up the deliberative process of the Government itself to the sunlight of public scrutiny.

                        Justice Frankfurter opined that the ultimate foundation of a free society is the binding tie of cohesive sentiment.  Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation and thereby create that continuity of a treasured common life which constitutes a civilization. 

                        The concept of active liberty, which is structured on free speech means sharing of a nation’s sovereign authority among its people.   Sovereignty involves the legitimacy of a governmental action.   Sharing of sovereign authority suggests intimate correlation between the functioning of the Government and common man’s knowledge of such functioning.

                        On the emerging concept of an ‘open government’ the Constitution Bench of Supreme Court in ‘State of UP V. Raj Narain’ – AIR 1975 SC 865 held that 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 made on wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public authority.   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.

                        In ‘S.P Gupta V. President of India’ –AIR 1982 SC 149 the Supreme Court Constitution Bench 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 Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands.   The approach of the court must be to attenuate the area of secrecy as must as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.

                        From the above judgment it can be inferred that the right to information is basically founded on the right to know which is  an intrinsic part of the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution. 

                        In ‘Reliance Petrochemicals Limited V. Properties of Indian Express Newspapers Bombay (P) Limited’ – (1988) 4 SCC 592 the Supreme Court held that the right to information is a fundamental right under Article 21 of the Constitution.   It was further held that we must remember that the people at large have a right to know in order to able to take part in participatory development in the industrial life and democracy.  Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of the Constitution.   That right has reached new dimension and urgency.  That right puts greater responsibility upon those who take upon themselves the responsibility to inform.  In ‘Secretary, Ministry of Information and Broadcasting, Government of India V. Cricket Association of Bengal’ – (1995) 2 SCC 161, the Supreme Court held that right to acquire information and to disseminate it is an intrinsic component of freedom of speech and expression.

                        In ‘People’s Union for Civil Liberties V. Union of India’ – (2004) 2 SCC 476 the Supreme Court held that right to information is a facet of the right to freedom of speech and expression as contained in Article 19(1)(a) of the Constitution of India.  It was also held that right to information is definitely a fundamental right.   In coming to the conclusion the Supreme Court traced the origin of the said right from the Universal Declaration of Human Rights, 1948 and also Article 19 of the International Covenant on Civil and similar enunciation or principle in the Declaration of European Convention for the Protection of Human Rights and found that the spirit of the Universal Declaration of 1948 is echoed in Article 19(1)(a) of the Constitution.

                        The preamble to the Right to Information Act shows that the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic public.  It is thus clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable.   It is to harmonize the conflicting interests of Government to preserve the confidentiality of sensitive information with the right to citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.

                        The Supreme Court is also conscious that such a right is subject to reasonable restrictions under Article 19(2) of the Constitution.   In ‘Dinesh Trivedi, M.P., V. Union of India’ – (1997) 4 SCC 306 it was held that sunlight is the best disinfectant.   But it is equally important to be alive to the dangers that lie ahead.   It is important to realize that undue popular pressure brought to bear on decision makers in Government can have frightening side effects.   If every action taken by the political executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision who may find it safer not to take any decision.   It will paralyze the entire system and bring it to a grinding halt.  So we have two conflicting situation almost enigmatic and the Court thought the answer is to maintain a fine balance which would safe public interest.