Right to Information- India and International Perspective

Shuvro Prosun Sarker [1] 

Introduction

For over fifty years, secrecy has been the norm in the working of the Indian Government and transparency as exception. In the guise of protecting the State’s interest, secrecy in public affairs has been a shield for those in government, a means of concealing their actions from public scrutiny. Access to information, on the other hand, is power in the hands of the people. It demands accountability. This is fundamental to the functioning of any truly democratic society. The hallmark of a meaningful democracy is the institutionalization of transparent and participative process which gives the people access to information about the government it has brought to power, and enables it to make an informed decision to remove that government from power, if it so chooses. Just as secrecy undermines democracy, information is a threat to authoritarianism.

Laws that license secrecy are a colonial legacy and were adopted by totalitarian regimes to legitimate suppression of information about its functioning. Secrecy in public affairs is anathema to the very notion of democracy. Yet laws favoring governmental secrecy have dragged on for half a century after India became a democratic republic. Scandinavia and USA enacted laws giving the citizens a statutory right to information as early as the 1960s. But in India the Freedom of Information Bill came to be introduced in the Indian Parliament in 2002. Finally in the year 2005, the Right to Information Act came into existence. This step came as a breath of fresh air in a cagey inaccessible system.

In the first part of this project I will refer to the Constitutions of different countries to find out the position of right to information. Second part will describe the various Indian and international cases which were dealt by the Court to make information as a fundamental or constitutional right. The last part will talk about the suggestions and conclusion.

Constitutions Revisited

Faith in the democratic form of government rests on the old dictum: ‘let people have the truth and freedom to discuss it and all will go well’. The Constitution of India confers fundamental rights on individuals. Article 19(1)(a) of the Constitution of India guarantees to the citizens freedom of speech and expression. For expression of freedom of speech, one must have also the freedom to receive the opinion from others [2] . Interpretation of Article 19 of the Constitution of India has laid down that right to information is one of the essential ingredients of Article 19(1)(a). Article 19 says:

“Protection of certain rights regarding freedom of speech etc. – (1) All citizen shall have the right – (a) to freedom of speech and expression;"

In 1982, the Supreme Court of India ruled that access to government information was an essential part of the fundamental right to freedom of speech and expression in Article 19 of the Constitution: “The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures 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 much 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 [3] ."

So right to information gets the legal mandate in India as it is the duty of the Supreme Court to interpret the provisions of the Constitution of India and the law declared by the Supreme Court is binding under Article 141 reads as under:

“The law declared by the Supreme Court shall be binding on all courts within the territory of India."

In Japan courts have held that the right to access information held by the State is protected by a constitutional right to freedom of expression. For example, as early as 1969, the Supreme Court of Japan established in two high-profile cases the principle that shiru kenri (the "right to know") is protected by the guarantee of freedom of expression in Article 21 of the Constitution [4] .

Article 21 of the Constitution of Japan declares:

“1) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. 2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated."

The Constitution of the Republic of South Africa is an unique example, not only to the extent of its guarantee of freedom of information, but also to that it requires the adoption of national legislation to give effect to this right, within three years of its coming into force. Article 32 of the Constitution of South Africa declares:

“(1) Everyone has the right of access to -

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state."

But in United States the Supreme Court interprets the First Amendment [5] to imply a negative right. This interpretation prevents the government from restraining protected speech. In another context, First Amendment’s protection shifts to an individual’s right to receive information.

Thus it can be assumed that very few of the constitutions of the world directly talks about the right to information, but no doubt that it gets mandate from the decision of the Courts and gets the necessary affirmative action by the State to be a right of the individuals.

Court Ruling on Right to Information

Right to receive information is not written in the Indian Constitution, but later declared as a fundamental right by the Supreme Court of India by its various decisions. , it is an established fact that fundamental rights themselves have no fixed content. Most of them are skeletons into which flesh in content must be added by generations in the light of its experiences and circumstances. The attempt of the Court should be to expand the reach and ambit of fundamental rights by the process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Part III of the Constitution of India and any new right which comes from the interpretation of such fundamental right by the Supreme Court.

The first brick of the conceptual foundation of the ‘right to know’ was formally laid down by Justice K. K. Mathew, in the case, State of Uttar Pradesh Vs. Raj Narain [6] . The official communication between the then Prime Minister Smt. Indira Gandhi and the Chief Minister of U.P., instructions for protecting the Prime Minister was not produced before the Court on the ground of privilege under Section 123 of the Evidence Act since it was a matter a relating to “affairs of State". Justice Mathew in his concurring judgment observed:

“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."

Raj Narain’s case is a typical instance how through a dynamic process of juristic activism the court has endeavored to enlarge the social content and meaning of the Constitutional text of the fundamental rights.

The next judicial step in spelling out a right to information from Article 19(1)(a) was taken by the apex court in S.P. Gupta Vs. Union of India [7] . In this case, one of the questions for determination before the Court was: whether the Union of India was entitled to withhold disclosure of all correspondence between the Law Minister and the Chief Justice of High Courts of Delhi and Patna in connection with non-appointment and transfer of certain judges. Answering the questions in negative Justice P. N. Bhagwati stated:

“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 …. The concept of 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)".

Justice V. R. Krishna Iyer, in the same case observed that the right to express one’s thoughts is meaningless if it not accompanied by a related right to secure all information on matters of public concern.

In Futaki v. Japan Tobacco Company Biotechnology Center the Osaka High Court ordered the disclosure to Mr. Futaki of requested documents. These included floor plans and specifications of the Japan Tobacco Company Biotechnology Center, a major genetic laboratory, constructed in a crowded residential area. The government officials had rejected Mr. Futaki’s request, claiming that the disclosure of the documents would result in significant injury to the competitive position of the company. The Osaka District Court upheld the city’s decision to withhold the information, concluding that the documents qualified for protection under the relevant law and that the risk of harm to the community if the documents were not disclosed was insufficient to warrant disclosure.  On appeal, the Osaka High Court overturned the lower court’s decision. The High Court agreed with the lower court’s determination that disclosure of the documents would cause competitive injury to the company but concluded that the level of risk of injury to human life, the human body or health was sufficient to override the business interest and require release of documents. Mr. Futaki had requested the information shortly after the Great Hanshin Earthquake, which caused massive structural damage to several buildings in the area, and the documents might provide some comfort regarding the threat of biohazards in the community [8] .

In South Africa, a shareholder’s right of access to information in a private company’s books of account has been recognized in Davis vs. Clutchco (Pty) Ltd. Mr. Davis approached the court for an order that the books of account be made available to him. But the company denied with reasons for refusing his request. But the court ordered that a shareholder may obtain access to information in the company’s books of account to safeguard his investment in the company [9] .

The Freedom of Information Act, 2000 came into force in the United Kingdom 0n 1st January 2005. It has given any person (including foreign nationals) a general right of access to information held by UK public authorities [10] .

Looking closely to the case decisions and related laws it can be said that Japan [11] and South Africa [12] has taken good steps by including private bodies under the access to information or right to information law. On the other side Japan [13] , South Africa [14] , United Kingdom [15] and United States [16] established the right to know available for any person irrespective of his immigration status. But in India, the right to information act is applicable only to public authorities defined under Section 2(h) [17] and this is a right only exercisable by the citizens of India [18] .

Suggestions and Conclusion

Right to information is an internationally protected human right. Within the UN, freedom of information was recognized early on as a fundamental right. In 1946, during its first session, the UN General Assembly adopted Resolution 59(1) which stated:

“Freedom of information is a fundamental human right and … the

touchstone of all the freedoms to which the UN is consecrated [19] ".

In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights [20] . Article 19 guarantees freedom of opinion and expression as follows:

“Everyone has the right to freedom of opinion and expression; this

right includes freedom to hold opinions without interference and

to seek, receive and impart information and ideas through any media

and regardless of frontiers".

Thus right to information is basic human right and it is a matter of personal liberty.Until the decision of the Supreme Court in Maneka Gandhi v. Union of India [21] , a rather narrow and constricted meaning was given to the guarantee embodied in Article 21 of the Constitution of India. But in Maneka Gandhi, P.N. Bhagwati, J. (as his Lordship then was) held that the expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man. Thus the rights under Article 21 are available to all persons, whether or not they are citizens of India.

By considering all the international instruments and declarations relating to human rights it is therefore necessary to keep the possibility of judicial developments in mind when developing the scope of the right to information law, including that Article 21 of the Constitution can be relied upon by persons who are not Indian citizens.

In this globalizing world India is considered to be the fastest grown economy. Individuals are investing a huge part of their income in the national and multinational private companies for a good return. But unfortunately, the Right to Information Act, 2005 did not make scope to know from the private bodies. It is necessary to secure the investors right to know from their respective companies. So it is necessary to keep in mind when considering the scope of the act further.