Constitutional Perspective on the Right to Know

It is often said that in modern society information is power. By sharing that information with the people at large, we are therefore, proposing decentralisation and participatory governance. It is revolutionary enactment that has placed huge powers in the hands of the ordinary citizen of the country to demand a transparent and accountable administration. [1]

Introduction

It has been oft repeated that secrecy ought not to be more than what is absolutely necessary. [2] A regime of secrecy is antithetical to a democratic society. One of the fundamental rules of good governance in a democracy is openness. The peoples’ right to know, therefore, is a prerequisite to a healthy and meaningful political intercourse between the people and the democratic State. The right to know has taken long in finding a firm footing in India. Independent India never rid itself of the colonial culture of the unreachable, unquestionable, holier-than-thou babus, something that has, for obvious reasons, proved to be a major barrier to transparency in the administrative decision-making process.

The Constitution framers, with their clairvoyance foresaw the need to provide a light to guide the first steps of the democracy they were creating, a path that would take India towards modernity and enlightenment. They conceptualized an India that was not an autocracy or anarchy but a democracy. Yet, the state of governance in India is still by and large reflective of a largely illiterate and uneducated populace unequipped to realize the full potential of the laws that govern them. Corruption has become a byword in all bureaucratic decisions, to a point where even popular media reflects the peoples’ presumption that a government official will not carry out his/her duties responsibly unless incentivised by a bribe. [3]

In the words of M.A. Ayyengar, ‘[Our d]emocracy is not worth anything if once in a blue moon individuals are brought together for one common purpose, merely electing X, Y and Z to this assembly and thereafter disperse.’ [4]

A democracy is based on the principal that the people give legitimacy to the laws created by their chosen, elected legislators. Yet, even a broad overview of the Indian democracy will show that a large amount of power and discretion is vested in the Executive comprising of people holding government offices who, unlike our legislators, are not directly accountable to the people. Corruption can be minimized if only the people are allowed a channel to actively participate in the governing process, ensure that the office bearers, right from the Prime Minister to the Sarpanch of a Panchayat are acting in public interest.

Even as the researcher sets out to chart this project, it is understood at the outset that despite a preference for an open government there are things that must be kept confidential in the interest of public security or national interest. [5] There is public interest in both, the “unhampered administration of justice” [6] as well as the “considerations of defence, internal security, foreign affairs etc when the government may be permitted not to produce the required documents so that no prejudice or injury is caused to the national interest.” [7] It is on the law to strike a balance between these two competing public interests. Yet, it is emphasized that there should be translucency, if not transparency, in administrative workings, but they certainly should not be opaque.

The right to know is generally classified into two categories, the general right to information and the voter’s right to know. The researcher shall be dealing specifically with the constitutional basis for the right to information exploring alongside the Supreme Court’s interpretation of the constitutional provisions to provide the right to information for three decades before the Right to Information Act, 2005 (hereinafter referred to as “the Act”) came into existence. The researcher shall proceed to do so in the following steps:

Why is the right to know important in a democracy?

Why are the people of India entitled to this right? What is the constitutional vires of the Right to Information Act, 2005? How had the Supreme Court read in this right to know under Art 19(1) (a) and Article 21 before the enactment of the RTI Act?

Has the RTI Act had the desired/ projected impact? What has been the impact of this “right”?

Importance of Right to Know in a Democracy:

In a democracy sovereignty lies in the people. It is the people who appoint governments as well as dismiss them. The Constitution of India was adopted and enacted in the name of ‘We the people of India.’ The two major institutions of governance, namely the Parliament and the state legislatures, are constituted by representatives of the people and are elected through “free and fair” elections. The legislatures and the governments are made of the representatives of the people. The Constitution though has not explicitly created any mechanism to reinforce the responsibility of the other wing of the government: the public administrative system.

The questions to be asked here are a) whether this responsibility can be reinforced in some way; b) how will the people judge whether the legislatures or the governments have acted in their interest; and c) whether the governments have fulfilled the promises, which they made in their election manifestoes. [8]

Distrust of the government is harmful to a democracy. Without transparency, there is bound to be distrust in the government. Lesser the secrecy more shall be the faith of the people in the government. People must get an opportunity to ventilate their grievances, and also suggest alternatives to policies and methods by which the government can realize the people’s wants and needs. The right of the people to information is a condition precedent to accountable and participatory governance.

Constitutional Entitlement to the Right to Know:

Post-independent India has a liberal democratic political system with a written Constitution that incorporates the rule of law, social justice development, adult franchise, periodic elections, and multiparty system. [9] Part III of this Constitution deals with civil, social and political rights and freedoms (the Fundamental Rights) that the people of India are entitled to. [10] These rights have received dynamic interpretation by the Supreme Court over the years and can truly said to be the basis for the development of the Rule of Law in India. [11] Of these are the Right to Freedom of Speech and Expression, Art 19(1), and the Right to Life, Art 21, and the Right to Constitutional Remedies, Art 32.

While there is no specific right to information or even right to freedom of press in the Constitution if India, the right to information has been read in to these constitutional guarantees. [12]

SC decisions, which shall be discussed below, have considered the Right to Freedom of Speech and Expression to be complementary to the Right to Know and have expressed the opinion that one cannot be exercised without the other. The interesting aspect of these judicial pronouncements is that the scope of the right to know has gradually widened, taking into account the cultural shifts in the polity and the society.

Precursors to the RTI Act

Although since the early 1970s the Supreme Court of India held that the right to information was included in the freedom of speech and expression guaranteed by article 19(1)(a) of the Constitution and subsequently it recognized that right in various contexts, and also as comprehended within Article 21 of the Constitution, that right needed to be spelt out in detail. [13]

Fundamental rights cannot become operative without a law laying down who can obtain information, who is liable to give information, what is the procedure for seeking information and for giving it, what kind of information is immune from disclosure, to whom an appeal will lie if the request for information is refused and what penal sanctions exist against breach of the right to information.

Since 1989, there has been talk of such legislation. When the establishment did not take an initiative in forming such a law, several peoples’ movements grew in support of the right to information, which irrefutably demonstrated that the right to information was related to the problems of survival of the people at the grassroots. [14] Around the same time, the courts in India became liberal in incorporating the rules of access such as locus standi and justiciability, and began to encourage collective actions on behalf of the marginalized people the governments could not hold to the privileges and immunities which they had inherited from the colonial rulers. [15] The Supreme Court not only recognized the right to information as a fundamental right but also de-legitimized such privileges and immunities by adopting liberal interpretations of the Constitution and interpreting strictly the laws conferring privileges and immunities on to the state.

The Right to Information Act is not the only law that gives a right of access to information. Beyond the Right to Information Act, there are some stronger provisions in other laws which promote transparency: for instance, the PDS (Control) (Amendment) Order, 2004 enables citizens to directly seek information from a fair price shop owner, and the National Rural Employment Guarantee Act has built in transparency prerequisites.

The SC and RTI

Right to information incorporation into India’s constitutional law started with petitions of the press to the SC challenging governmental orders for control of bans on distribution of newspaper. The petitions demanded the Court to remove such impositions that would indirectly control the free dissemination of information, something that was a logical implication of the right to freedom of speech and expression. It was through these cases that the concept of the public’s right to know developed.

In Bennett Coleman v. Union of India [16] , the right to information was held to be included within the right to freedom of speech and expression guaranteed by Article 19(1)(a). In State of UP v Raj Narain, [17] Mr. Justice K.K. Mathew explicitly stated that “it is not in the interests of the public to cover with a veil of secrecy the common routine business…. the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” It was further held that “in a Government….where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people…. have a right to know every public act, everything that is done in a public way, by their public functionaries.”

Again, the SC in Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal [18] , held that the freedom of speech included the right to impart and receive information from electronic media. In SP Gupta v. Union of India [19] , the right of the people to know about every public act, and the details of every public transaction undertaken by every public act, and the details of every public transaction undertaken by public functionaries was described. In People’s Union for Civil Liberties v. Union of India [20] , the right to information was further elevated to the status of a human right which is necessary for making governance transparent and accountable. It was also emphasized that governance must be participatory.

Interpreting Article 19 (1)(a)

Right to information is part of the right to free speech and expression guaranteed under Article 19 (1)(a). Justice V.R. Krishna Iyer, in the S.P. Gupta case [21] observed that right to express one’s thoughts is meaningless if it is not accompanied by related right to secure all information on mailers of public concern from relevant public authorities; people had the right to know about every public act, and the details of every public transaction undertaken by public functionaries. [22]

In Bennett Coleman and Company v. Union of India [23] , the court observed that it is indisputable that freedom of press meant the right of all citizens to speak, publish and express their views and freedom of speech includes within its purview the right of all citizens to read and be informed.

Again, in Express Newspaper v. Union of India [24] , the court observed that the basic purpose of freedom of speech and expression is that members should be able to form their beliefs and communicate them freely to others. The fundamental principle involved in this is peoples’ right to know. On the same principle, the court allowed a media person to interview a prisoner waiting for execution. [25] Thus, the right to acquire information includes the right to access the sources of information.

In Union of India v. Association for Democratic Reforms [26] judgment, the apex court held that the right of the voters to know about the past history including criminal records of the candidate contesting elections for MPs or MLAs is much more fundamental and basic than the privileges of the MPs or MLAs for a democracy to thrive. Voters speak or express by casting votes and for this purpose, information about the candidates to be selected must be made public.

In Ozair Husain v. Union of lndia [27] , the Delhi High Court held that it is the customers’ fundamental right to know whether the food products, cosmetics and drugs are of non-vegetarian or vegetarian origin, as otherwise their fundamental rights under Articles 19(1)(a), 21 and 25 of the Constitution will be violated.

Interpreting Article 21:

In R.P. Limited v. Indian Express Newspaper [28] , the court observed that it must be remembered that people in general have a right to know in order to be able to take part in a participatory development of the industrial life and democracy. The court observed that the right to know was a basic right, to which citizens of a free country aspire, in the broad ambit of the right to life under article 21 of the Constitution.

In People’s Union for Civil Liberties v. Union of India AIR 2004 SC 1442: (2004) 2 SCC 476, the right to information was further elevated to the status of a human right which is necessary for making governance transparent and accountable. It was also emphasized that governance must be participatory.

In K. Ravi Kumar v. Bangalore University [29] , the apex court held that the public authorities cannot deny completely any document on the ground of confidentiality.

Impact of the RTI Act

RTI has significant bearing on good governance and development. India’s economy in the last three years has grown at unprecedented high rate of 8 – 9 per cent per annum, which also coincides with the RTI induced good governance. [30]

Under the Act, the public authorities are required to adopt open and transparent procedures and methods of delivery of services. [31] They ought to reveal what they do, how they do and what are the outcomes of the policies, programmes and public expenditures [32] . In a democratic society, the citizen, NGOs and media have the right to know as to how they are governed and they also have right to indicate how they ought to be governed and served by the Government. It is important, therefore, to ensure the proactive and suo motu disclosure of information.

As a result of increased Government’s accountability in delivery of services, rural to urban migration has grown relatively less, as widely reported in the media. This is also corroborated by the findings of a national level survey, jointly conducted by the Transparency International and the Centre for Media Studies [33] . The survey has revealed that in the opinions of 40 per cent of respondents (all below the poverty line), corruption and malpractices in implementation of poverty alleviation programmes have declined due to RTI induced accountability of the Government and its functionaries at various levels. [34]

Conclusion

The Right to Information legislation may have taken a long time to arrive, but Supreme Court gave the right to know a head start. MacBride rightly argues that it is a duty of individuals as responsible citizens in the community at the local, national and even international level to be adequately informed, and possess sufficient, even controversial, facts on which to base rational judgements and select courses of action. [35]

It is not possible to have a meaningful right to freedom of expression without the right to information that creates a foundation for that expression. [36] Liberty of thought is the basis of freedom of speech and expression under Article 19(1)(a), which is an essential component of a democratic governance. As information is vital not only for life of society but also for the life with dignity of an individual, the Article 21 guaranteeing Right to life includes the basic right to be informed.

Article 19(1) (a) of the Constitution guarantees the fundamental rights to free speech and expression. The prerequisite for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumours and speculations and avoidable allegations against individuals and institutions. Therefore, the Right to Information should be in fact understood as a Constitutional Right since it is an aspect of the right to free speech and expression which includes the right to receive and collect information.