RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

Table of Contents
CHAPTER 1 ........................................................................................................................................5 RIGHT TO INFORMATION ...........................................................................................................5 1.1 INTRODUCTION..............................................................................................................5

CHAPTER 2 .....................................................................................................................................8 WHAT IS THE NEED FOR INFORMATION ? ..............................................................................8 2.1 INTRODUCTION ........................................................................................................................8 2.2 INFORMATION AND THE STATE ................................................................................................9 CHAPTER 3 ................................................................................................................................... 11 RIGHT TO KNOW: INDIAN PERSPECTIVE .............................................................................. 11 3.1 INTRODUCTION ...................................................................................................................... 11 3.2 SEEDS FOR THE LEGISLATION ON RIGHT TO INFORMATION .................................................. 11 CHAPTER 4 ................................................................................................................................... 14 FREEDOM OF PRESS AND RIGHT TO INFORMATION: ANALYZING CONSTITUTIONAL RELATION THROUGH CASE LAWS ......................................................................................... 14 4.1 INTRODUCTION ...................................................................................................................... 14 4.2 SAKAL NEWSPAPERS (PRIVATE) LTD V. INDIA ........................................................................ 15 4.3 BENNET COLEMAN V. INDIA ................................................................................................... 16 4.4 CONFLICT BETWEEN FREEDOM OF PRESS AND THE RIGHT TO INFORMATION ....................... 17 CHAPTER 5 ................................................................................................................................... 19 RIGHT TO INFORMATION OF CITIZENS AS VOTERS AND ITS ABSOLUTENESS ............. 19 5.1 RIGHT TO INFORMATION OF CITIZENS AS VOTERS ................................................................. 19 5.2 RIGHT TO INFORMATION IS NOT ABSOLUTE ........................................................................... 22 CHAPTER 6 ................................................................................................................................... 24 RIGHT TO INFORMATION IN RELATION TO RIGHT TO PRIVACY AND CONTEMPT OF COURT .......................................................................................................................................... 24 6.2 RIGHT TO INFORMATION AND CONTEMPT OF COURT ............................................................. 26 6.3 RIGHT TO INFORMATION: CAN IT BE SITUATED EXCLUSIVELY IN ART 19(1) (A)?.................. 28 CONCLUSION ............................................................................................................................... 30

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

TABLE OF AUTHORITIES Cases AG v Times Newspapers Ltd. (1973) 1 QB 710 ............................................................................ 27 Association for Democratic Reforms v India, AIR 2001, DEL 126. ............................................ 20 Bennet Coleman Co. v. India, AIR 1973 SC 106. ....................................................................... 16 Bennett Coleman V. Union of India, AIR 1973 SC 106. .............................................................. 28 Churk Cement Mazdoor Sangh v. State of U.P, AIR 1992 All 88................................................ 12 Churk Cement Mazdoor Sangh v. State of U.P., AIR 1992 All 88 ............................................... 12 Dinesh Trivedi v. India, (1997) 4 SCC 306. ................................................................................. 22 Gadakh v. Vikhe Patil, (1994) 1 SCC 682. ................................................................................... 19 Govind v. State of Madhya Pradesh AIR 1975 SC 1378. ............................................................. 24 India v Association for Democratic Reforms,(2002) 5 SCC 294 ................................................. 20 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 ........................................................ 12 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461: 1973.............................................. 12 Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295 ........................................................ 24 Life Insurance Corporation v. MD Shah, AIR 1993 SC 171........................................................ 17 Menaka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597 .................................. 11 MSM Sharma v. Krishna Sinha , [1959] 1SCR 806,838. ............................................................. 15 New York Times Co v. Sullivan 376 US 254, .............................................................................. 25 Oxford v. Moss (1978) 68 Cr App Rep 183. ............................................................................ 9, 11 Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476: AIR 2004 SC 1442 ..... 7 Prabha Dutt v. India, AIR 1982 SC 6. .......................................................................................... 22 PUCL v. India,(2003) 4 SCC 399. ................................................................................................ 20 PV Narsimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 ........................................................... 21 R.Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632 ................................................................ 24 Romesh Thapar v. State of Madras, AIR 1950 SC 124 ................................................................ 14 Sakal Newspapers (Private) LTD v. India, AIR 1952 SC 305. .................................................... 15 S.P. Gupta v. Union of India ......................................................................................................... 11 Sheela Barse v. India,(1987) 4 SCC 373. ..................................................................................... 22 SP Gupta v. India, AIR 1982 SC 149. .......................................................................................... 28
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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

Sunday Times v. United Kingdom (1979) 2 EHRR 245................................................................ 28

United States v. Crolene Products Co. 304 US 144, 152,(1937)------------------------------------------------------16

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 1 RIGHT TO INFORMATION

The Bible says: And ye shall know the truth, And the truth shall make you free. 1.1 INTRODUCTION The importance of information as an empowering tool is well explained by several traditional scripts and international associations. Information is basis for knowledge which provokes thought and without thinking process there is no expression. Freedom of expression is running theme of democratic governance. Thus the Right to Information has been identified as a basic human right which is required for the realization of a true democratic and open government. The right to access information held by public authorities is protected by Article 19 of International Convention on Civil and Political Rights (ICCPR)1. Also under Article 10 of European Convention on Protection of Human Rights and Fundamental Freedoms,2 guaranteeing freedom of expression, basically prohibits a government form restraining a person from receiving information that others wish or may be willing to part to him. The importance of freedom of Information as a fundamental right is beyond question. In its very session in 1946, the UN General Assembly adopted Resolution 59 (I), stating, Freedom of information is a fundamental human right and the touchstone of all the freedoms to which the United Nations is consecrated. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression elaborated on this in his 1995 Report on the UN Commission on Human Rights, stating: Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.3 John-8:32

1 2

UN General Assembly Resolution 2200 A (XXI) of 16 December, 1966, entered into force 23 March, 1976. ETS, No. 5 adopted 4 November 1950, entered into force 3 September, 1953. 3 UN Doc. E/CN.4/1995/32, para. 35.

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

At a more principled level, democracy is quintessentially about ensuring that governments perform according to the will of the people. This sort of basic accountability is clearly impossible unless governments operate in an open transparent fashion, including by allowing people to access the information they hold. But democracy is also but responsibility to the people and the idea that civil servants really should serve the public. This includes the idea that public authorities have, in principle on right to keep information they hold from people, unless there is some overriding public interest reason to justify this. In a country like India where the government consists of numberless agents of the public, each one of them has to be responsible for their own conduct and hence, there is no room for maintaining secrets. In less than a decade, the flourishing movement for the right to information in India has significantly empowered the ordinary citizen. He can now exercise significant check over the arbitrary use of power by the State functionaries and thereby the democratic set-up of the country is expanding. People of India have long battled to achieve the Constitution and thereby the inalienable fundamental rights. The right to information is also one of fundamental rights implicit in the Constitution. Fundamental Right to Information is the sine qua non of democracy in India because historically the culture of the executive has been one of secrecy in India since the colonial rule. There has never been constant and resolute access to information. Where the disclosure of information is required proactively, it is often ignored or taken very lightly. The growing number of complaints and appeals are responsible to strain enforcement mechanisms for the new law. Nonetheless, the potential of transformation of the new law has already been demonstrated by the advocates of RTI Act, and they are continuously pressing for proper implementation in a very energetic way. Innovations have been developed in practice by the public officials and civil society organizations which may prove to be of great use to other countries ready to adopt similar laws. But the right does not carry with it a right in an absolute sense of the term to gather information. A reasonable restriction on the exercise of the right to know or right to information can always put in order to ensure the security of the State. Generally, the exemptions/exceptions under the laws referred to in Article 19(2) entitled the Government to withhold information to the following matters: 1. International relations. 2. National security (including defence) and public safety.
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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

3. Investigation, detection and prevention of crime. 4. Internal deliberations of the Government. 5. Information received the confidence from a source outside the Government. 6. If the information can violate the right to privacy of an individual, if disclosed. 7. If information can confer an unfair advantage on some persons or to an unfair disadvantage i.e. of an economic nature, (including trade secrets), if disclosed. 8. Information which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and the patient. 9. Information about scientific discoveries.4 10. Much of this has been covered by the Right of Information Act, 2006.

Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 1442.

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 2 WHAT IS THE NEED FOR INFORMATION ?

2.1 INTRODUCTION It should be remembered that Right to Information or the Freedom of Information has the ability to generate more controversy and heated debate than virtually any other aspect of contemporary government and administration. Freedom of Information has long been a rallying cry of libertarians. But what does freedom of information mean? For most those who employ the phrase it means that the public files, documents or the information in any form, should be normally accessible to the common people so as to know what government in up to. In some jurisdictions, it may mean not only allowing access to government documents in whatever form they happen to exist, but also opening up the meetings of governments, their advisory bodies and client groups to public scrutiny. Or it may involve access by individuals to files containing information about themselves and an assurance that the information is not being used for improper or unauthorized purposes. It covers individual access to information, and the protection of information upon individuals form unjustified use. If individual access to such information is too costly, or too sensitive or not worth the effort because of public apathy, or because there is little public feedback of views or ideas to inform specialists or decision-makers, is this an argument against freedom of information? Or is it an argument in favour of the provision of essential and unadulterated information to bodies that we trust, so that they may check the policy-making process, render that process accountable, and report on their findings? The reason for coining the phrase Information Society was to evaluate the essence of the advanced computerized world. From financial markets to government, from national security to education, form multinational corporations to small employers, from police to social welfare, medical treatment and social services, we are confronted by information repositories and retrieval systems whose capacity to store and transmit information is staggering. If we study the constitutional history of Britain then we will find that parliaments desire to know about who counselled and advised the monarch in the formulation of policy was a major factor in the struggle between Crown and Parliament. What is novel in our society, however, is the heightened awareness of the use, collection, dissemination or withholding of information. Our capacity as human beings to acquire, use and store information is essential for our survival. This
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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

might appear a tall claim for something which in English law cannot be the object of theft.5 At a practical level, disasters are avoided, accidents prevented and sustenance provided by our use of information. Hamlets tragedy was that he was accurately informed; Othelos that he was not. While information itself is important, our ability to discern the degree of the reliability of the information provided is essential in the exploitation of resources or relationships, or in the exposure of sham. 2.2 INFORMATION AND THE STATE The position that a ruling body adopts towards the provision of information about its activities to a representative chamber or the civil society at large will inevitably be coloured by considerations about the proper role of government, as well as sheer political experience. When the government was in the personal household of Monarch, the words of James I of England expressed the private nature and arcane mysteries of state business by warning that None shall presume henceforth to meddle with anything concerning our government or deep matters of state.6 The nature of the bond between the citizens and the State, and the bond between citizens among themselves, is formulated in an implied contract, not an unalterable status. Breach by the government justifies its removal. It was the theme that was to be developed in the liberal tradition. There are arguable reasons why confidentiality must be maintained or not maintained in various relationships. These relate to individual respect and integrity. A problem arises when the private body in question exercises considerable influence in public life but insists on confidentiality in its operations to such an extent that it is effectively its own master. A lack of information facilitates a lack of accountability for the exercise of power and influence and the impact these forces have upon the public interest where democratic controls are absent.7 Secrecy being an instrument of conspiracy, said Bentham ought never to be the system of a regular government.8 Secrecy was the climate in which, at worst, those placed in government would abuse the power which had been given to them. It protected misrule. Publicity, regular elections and a free press were needed to safeguard the electorate from their chosen governors5 6

Oxford v. Moss (1978) 68 Cr App Rep 183. Science and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture (1994). 7 Patrick Birkinshaw LLB, Freedom of Information, (3rd Ed. 2001), at p. 25. 8 Works of J Bentham, (1843) Ed. H Bowring, 2, pp 310-17.

RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

from the excesses of bullies, blackguards and buffoons. What can we reason but from what we know? Bentham. The UN General Assembly adopted Resolution 59(I), stating, Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.9 Article 19 of the Universal Declaration of Human Rights 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.10

http://webcache.googleusercontent.com/search?q=cache:CUWp4ghUOL0J; www.humanrightsinitiative.or g/programs/ai/rti/articles/undp_rti_2006/annex4_global_perspective, visited on 20-4-2012. 10 http://www.humanrightsinitiative.org/programs/ai/rti/articles/undp_rti_2006/annex4_global_perspective_o n_rti.pps, visited on 20-4-2012.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 3 RIGHT TO KNOW: INDIAN PERSPECTIVE

A Government which reveals in secrecy not only acts against democratic decency but busies itself with its own burial.11

3.1 INTRODUCTION Indian Constitution does not specifically provide for the right to information as a fundamental right though the constitutional philosophy amply supports it. Preamble to Indian Constitution constitutes India into a democracy and secures for its people, justice-social, economic and political, liberty of thought, expression and belief. Supreme Court in the case of S.P. Gupta v. Union of India12 Bhagwati, J. observed 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 This justifies the conclusion that the Indian constitution is drawn upon the idea of open government. In the same manner Article 19(1) a, freedom of speech and expression and Article 21, right to life and personal liberty would become redundant if information is not available article 39 (a), (b) (c) of the Indian Constitution make provision for adequate means of livelihood, equitable distribution of material resources of the community to check concentration of wealth and means of production. As today the information is wealth, hence, need for its equal distribution cannot be over emphasized. 3.2 SEEDS FOR THE LEGISLATION ON RIGHT TO INFORMATION In India today, being a welfare-state, the state has spread its tentacles to virtually every aspect of public life. The person on the street is condemned to grapple hopelessly with corruption in almost every aspect of daily work and living. Information is power, and the executive at all levels attempts to withhold information to increase its scope for control, patronage, and the arbitrary, corrupt and unaccountable exercise of power. Ultimately the most effective systemic check on corruption would be where the citizen herself or himself has the right to take the
11 12

Menaka Gandhi v. Union of India, AIR 1978 SC 597. (1981) Suppl. SCC page 87.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

initiative to seek information from the state, and thereby to enforce transparency and accountability. It is in this context that the movement for right to information is so important. The statutory right to information gives a legal right to have access to government-held information strengthens democracy by ensuring transparency and accountability in the actions of public bodies. It enhances the quality of citizen-participation in governance from mere votecasting, to involvement in the decision-making that affects her or his life.13 A statutory right to information would secure for every citizen the enforceable right to question, examine, audit, review and assess government acts and decisions, to ensure that these are consistent with the principles of public interest, probity and justice. Alternatively, the greater the restrictions that are placed on access, the greater the feelings of powerlessness and alienation. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. Government information is a national resource. Article 39 of the Constitution of India makes clear that the end of State in India is not doctrinaire but practical. The humanist path towards socialistic pattern of society is ideal for India and Article 39 (b)14 and (c) illustrates this ideal and it also illustrates the doctrine of growth accompanied by distributive justice.15 These clauses, together with other provisions of the constitution, contain one main objective, namely, the building of a welfare State and an egalitarian social order, to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution, the Constitution seeks to fulfill the basic needs of the common man and to change the structure of the society, without which political democracy would have no meaning.16 The expression Material resources is wide enough to include not only natural or physical resources but also movable or immovable property. It would include all private and public sources of meeting materials needs, not merely public possessions.17 Then why cant the public information be included with the meaning of material resources of the community. And if the public information is a material resource then the State is duty bound to distribute it so as to subserve the common good. And the Right to Information Act is the best way to fulfill this requirement. No type of information is
13 14

Shalu Nigam, Right to Information Law & Practice, at p. 4. The ownership and control of the material resources of the community are so distributed as best to subserve to common good. 15 Churk Cement Mazdoor Sangh v. State of U.P, AIR 1992 All 88. 16 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 17 D.D. Basu, Constitutional Law of India, (8th Edn. Vol. 3), at p. 4087.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

created by any government or public officials for their individual benefit. This information is created so that the duties of office could be properly discharged by the public officials and for purposes related to the legitimate discharge of the service of the public for whose benefit the institutions of government comes into existence, and by whom ultimately the salaries of the officials and institutions of government are funded. It follows that government and officials are trustees of this information for the people. The members of the public are enabled to have legal access to documents, information and files of the government through the Right to Information Act that may not otherwise be available without the discretion of government. Under the parliamentary system the information is transferred from government to the parliament and the legislatures, and from these to the people. It is hoped that the gap between the information rich and the information poor would be reduced through the recent technological developments in the country. However, it may be found that in practice the situation of bureaucracy in India remains the same as was prevalent during the rule of British. Bureaucracy, even now, can be found as one of secrecy, distance and mystification. In fact, this preponderance of bureaucratic secrecy is usually legitimized by a colonial law, the Official Secrets Act, 1923, which makes the disclosure of official information by public servants an offence. It is expected that the quality of decision making by public officers will improve by the right to information, in all sorts of matters, when the unnecessary secrecy around the decision making process will be removed. The quality of participatory political democracy will definitely improve after the citizens are given a chance to participate in the political process in an informed way in the political process. The citizen would be able to assess the performance of the government and public officers, and to have a role in participating and influencing the decisionmaking process of the government, after having an access to pertinent information. It would be important to see an increasing impact on eradication of corruption and the control on arbitrary exercise of power with the availability of such information to the citizens.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 4 FREEDOM OF PRESS AND RIGHT TO INFORMATION: ANALYZING CONSTITUTIONAL RELATION THROUGH CASE LAWS
4.1 INTRODUCTION The constitution guarantees fundamental rights subject to restrictions that may be imposed by law upon them within limits drawn by the constitution. Article 13 (1) provides that an existing law inconsistent with the fundamental rights shall, to the extent of its inconsistency be void. Article 13(2) of the constitution further mandates the state not to make law which may take away or abridge any of the fundamental rights. Article 19(1) gave six rights to the citizens, one of which is the right to freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of state, friendly relations with foreign states, public order, decency or mortality in relation to contempt of court, defamation or incitement to an offence. Freedom of speech and expression is guaranteed by the first amendment of the constitution of the United States , which says that Congress shall not make any lawabridging the freedom of speech or of the press. While the first amendment gives the right to freedom of speech in absolute terms and restrictions thereupon were carved out by the supreme court of the United States through constitutional interpretation, the constitution of India gives the right in clause (1) (a) of art. 19 and specifies the grounds on which reasonable restrictions can be imposed by law on that right in clause (2), while the first amendment of the United States constitution specifically mentions the freedom of the press, art. 19(1)(a) of the Indian constitution does not mention the freedom of the press. But it was held that the freedom of speech included the freedom of the press.18 The press had played a significant role during the colonial rule. From Tilak to Gandhi, every leader who had mobilised the people against colonial rule had used the press as a means of informing the people and educating them about liberal values. Gandhi insisted on the truth and Ahimsa for Indias struggle for freedom and such struggle could succeed only if the the people could speak freely and fearlessly. The entire Gandhian movement highlighted the value of speech.19 The supreme court of India held in Brij Bhushan v. State of Delhi that prior censorship of press is unconstitutional. Prior censorship is permitted only when the the right to freedom is
18 19

Romesh Thapar v. State of Madras, AIR 1950 SC 124. PK Tripathi, Spotlight on Constitutional I nterpretation,1972, p 213.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

suspended during the proclamation of emergency under article 352 of the Indian constitution.20The supreme court held that freedom of press which is included in the freedom of speech, does not stand on a higher footing than the freedom of speech enjoyed by a citizen.21 4.2 SAKAL NEWSPAPERS (PRIVATE) LTD V. INDIA In Sakal Newspapers (Private) LTD v. India22, the validity of the Newspaper (Price-Pe) Act, 1956 and the daily Newspapers (price and Page Order)1960 made under that Act were challenged by Sakal Newspapes (Private) LTD. The impugned Act empowered the in Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allotment of space for advertisements and the impugned order prescribed the number of pages to be published by a newspaper corresponding to the price charged. It further limited the advertisement space that a newspaper could provide. This law was enacted to further the policy of helping the smaller and regional language newspapers to compete with the bigger and English language newspapers with large circulations, which due to the economy of scale could afford to sell their paper at a comparatively lower price. Although the object was laudable, it had the effect of curbing the freedom of the press. Advertisements were a source of revenue for newspapers with a large circulation and therefore they could give more pages for fewer prices. The supreme court held that the impugned Act and the order imposed unconstitutional restriction on freedom of the press. A question arose whether such restrictions should be seen as restriction on the freedom to carry on business guaranteed by art. 19(1)(g) or whether they be considered as restrictions on the freedom of press protected by art. 19(1)(a)? if the were considered as restrictions business, they could certainly be upheld as restrictions in the interest of the general public permitted by art. 19(6) but if they were considered as restrictions on the freedom of press, they could not be upheld since such restrictions did not fall within the ambit of the restrictions permitted by art. 19(2). While examining the validity of restriction on the freedom to carry on a business or a trade, a court will accord greater deference to the will of the legislature since it is the best of what is in the interest of general public. But while examining its validity with reference to the freedom of the press, a court would adopt a stricter construction. Such a restriction must be in the interests mentioned in the art.19 (2). By laying emphasis on the texts of two clauses, namely clause (2) and clause(6) of art.19, the court brought in the preferred freedom
20 21

Constitution of India, art. 358. MSM Sharma v. Krishna Sinha , [1959] 1SCR 806,838. 22 Sakal Newspapers (Private) LTD v. India, AIR 1952 SC 305.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

doctrine in the Indian constitution. Restrictions upon freedom of speech were to be examined with lesser presumption of constitutionality than the restrictions upon trade or business. Without saying so, the court incorporated the doctrine of preferred freedom which was initiated in a footnote by CJ Stone of the Supreme Court of the United States.23 4.3 BENNET COLEMAN V. INDIA Similar curbs were imposed by the newsprint Control Order of 1972-73 issued under the Essential Commodities Act1955. Newsprint was a scarce commodity and therefore its distribution among newspaper has to be rationed but while doing so it imposed restrictions on the freedom of the press of a similar as had been held unconstitutional in Sakal Case. This was challenged by the Bennett Coleman Co, which published the Times Of India and various other dailies and weeklies. According to the Newsprint Control Order, (i) a ceiling of 10 pages was imposed on all newspapers; (ii) increment of 20% was provided for newspapers which published less than 10 pages; (iii) no owner who published several papers and weeklies could publish an additional edition or an evening newspaper; (iv) such owner could not transfer the newsprint allotted to one paper to another published by it or could not reduce the circulation of any of its papers in order to increase the number of pages of another of its publication; and (v) its advertisement space was limited. It was contended that the Newsprint Control Order imposed unreasonable restriction on the freedom of the press. It was also urged that the restrictions on the press also implied restriction on the readers who could not read the newspaper of their choice. In Bennett case24, the majority held that the impugned order viol;ated the freedom of the press and therefore the ultra vires art. 19(1)(a) of the constitution. The court however went furtherthan the Sakal decision in holding that the impugned order did not merely violate the rights of the newspapers to publish, which was inherent in the freedom of the press but also violated the right of information of readers which was included in their right to freedom of speech and expression. Chief Justice Ray in the majority judgement said: It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. Freedom of speech and expression is a right, which is quintessence of democracy. Media performs the function of giving information and also thought to the readers.a mature citizenry
23 24

United States v. Crolene Products Co. 304 US 144, 152,(1937). Bennet Coleman Co. v. India, AIR 1973 SC 106.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

must be equipped with the infra structure of information to enable it to play a meaningful role in democracy. In Indian Express Newspapers (Bombay) Private Ltd v. India, J Venkataramiah said: In todays free world freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of the society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. The learned judges therefore observed that such means of mass media were capable of being suppressed or manipulated to its own ends by those various devices such as fiscal means, use of force, pre-censorship, interference with transit of newspapers or imposition of restrictions on the price of the newspaper, etc. all such restrictions are ultimately bound to tell upon the citizens right to obtain information. The independence of the mass media, it was observed, was essential for the right of the citizen to information. 4.4 CONFLICT BETWEEN FREEDOM OF PRESS AND THE RIGHT TO INFORMATION If the ambit of freedom of speech has to be determined by taking the right to information into consideration, they must be balanced very neatly so that neither of them is sacrificed in favour of the other. In Life Insurance Corporation v. MD Shah,25 the court was required to balance the right of freedom of the press against the right of the readers to information. Shah of the Consumer Education and Research Center of Ahemedabad wrote an article criticizing the policies of Life Insurance Corporation of India (LIC), which was published in The Hindu, a leading newspaper of India. One Mr. Krishnan, an employee of LIC wrote a rejoinder to Shahs article and it was also published in The Hindu. Shah wrote a further rejoinder to Krishnans article and it was published in The Hindu. Thereafter Krishnans article was published in Yogakshema, a house journal of the LIC. Shah requested the editor of Yogakshema to publish his article written in reply to Krishnans also in Yogakshema. the editor of Yogakshema declined to do so. Shah filed a writ petition in the Gujarat High Court. The High Court accepted the Shahs plea and issued a mandamus to the editor of the Yogakshemaasking her to publish that article in that journal. The LIC went in appeal to Supreme Court, which upheld the decision of the High Court.
25

Life Insurance Corporation v. MD Shah, AIR 1993 SC 171.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

By conceding Shahs right to have his article published in the Yogakshema, did the court not abridged the right of the editor to decide whether to publish an article or not? Had Shah publish his article in Yogakshema and then the editor of that magazine published rejoinder to that article, Shah would have been justified in asking for the publication of his reply to Krishnan in that Journal. but the original article had been published in The Hindu and Krishnans rejoinder also had been published in The Hindu. Krishnans article was additionally published in Yogakshema, which was a house journal of the LIC. Why should shah have a right right to get his reply published in that journal again? It could have been the policy of the house journal to publish articles form their employees or clients. All the three articles had been published in The Hindu, which had a larger circulation than the Yogakshema. So the readers right to information had been fully protected. In that case it is submitted that the editors right, which is part of the freedom of press ought to have been given precedence over the rights of readers of Yogakshema to information or even Shahs right to get his rejoinder published. It is respectfully submitted that the right of the editorwas unnecessarily curbed only to satisfy the right to information of the readers of the Yogakshema. The Editors freedom of the press may conflict with the readers right to information as shown above. Can a reader insist that her article or news in which she is interested nust be published in a newspaper? The editor has a right to decide what to publish or not to publish. Only when an adverse matter is published against a person, such a person has a right to reply to it and the editor is bound to publish it. Barring such an exception, the editors right must prevail over the readers right to information.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 5 RIGHT TO INFORMATION OF CITIZENS AS VOTERS AND ITS ABSOLUTENESS 5.1 RIGHT TO INFORMATION OF CITIZENS AS VOTERS The Indian politics has been polluted by election of persons with tainted characters to parliament or state legislatures. Although such persons can be made ineligible to stand for election by amending the election law, though a clear parameter of such disqualification is difficult to determine, the real exclusion will come only when the voters reject persons with tainted characters. This requires voters empowerment. Voters must be informed of the assets and liabilities and the past and pending criminal cases against the candidate standing for election. the right to information of the voters is a condition precedent to their intelligent and discriminating exercise of their right to vote. The supreme court recognized the right to information of the voters indirectly in Gadakh v. Vikhe Patil.26if a candidate fighting an election makes an allegation against the rival candidate casting aspersions on his character, which she knows to be false, and which adversely affects the electoral aspects of such a candidate, it is a corrupt practice under section 123 (4) of the Representation of The People Act 1951. In the above mentioned case, both Gadakh and his supporter Sharad Pawar stated that Vikhe Patil had bribed the voters. The High Court of Bombay held the election of Gadakh void on the ground that he had indulged in corrupt practice. Gadakh appealed to Supreme Court. The Supreme Court held that in order to constitute a corrupt practice all the three ingredients namely (a) the defendant must have alleged a conduct casting aspersions on the plaintiffs character; (b) she should have done it knowing that it was false (c) it should have caused actual loss to the rival candidate in terms of votes must be induced. The Supreme Court held that in order to disqualify a person on the ground of corrupt practice, all the abovementioned ingredients must simultaneously exist and the onus of proving them is on the person who alleges it. Such a strict construction of the election law was adopted because the court felt that such a strict construction would facilitate the voters access to information about the candidates. While the strict construction of the provisions defining corrupt practice may be justified, the reason for adopting such an interpretation is hardly convincing. It is submitted that this could hardly be a justification for allowing irresponsible advocacy against the rival
26

Gadakh v. Vikhe Patil, (1994) 1 SCC 682.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

candidates. Should the voters know the truth or should they be led by gossips? The provisions defining corrupt practices are doubtless penal statutes but should they do not be construed to save the voters from false information? Peoples right to information cannot be furthered by allowing candidates contesting election to make irresponsible against their rivals. In Association for Democratic Reforms v India,27the delhi high court held that voters had the right to receive information about the antecedents of the candidates who stood for election. The court held that the election commission had a duty to inform the voters about the candidates and therefore it could direct the candidates filing nominations for election election to give details about their assets, liabilities, the past criminal cases endingin acquittals or convictions and the pending criminal cases if any. The Union Government appealed against that decision to the Supreme Court, which upheld the Delhi High Courts decision in India v Association for Democratic Reforms28 and directed the EC to such information from the candidates filing nominations. The story does not end there. The government after consulting various political parties arrived at the conclusion that the EC should not have such power and it brought forth an ordinance under art. 123 of the constitution to amend the Representation of The People Act 1951 to withdraw from the election commission such power of requiring information to the extent mandated by the above decision of the Supreme Court. The ordinance was converted into an Act in course of time. Section 33 A added by that amendment provided that a candidate would be required to give only as much as information as was mentioned therein but not including the other information that was required to be disclosed by the decision of the Supreme Court. Section 33 B added by the amendment Act said that notwithstanding anything contained in any judgement, decree or order of any court or any direction, order or any other instruction issued by the election commission, no candidate shall be liable to disclose or furnish any information, in respect of her election, which is not required to be disclosed or furnished under this Act or the rules made there under.29 The constitutional validity of that amaendment was challenged in the Supreme Court. The Supreme Court held the amendment to be unconstitutional and void in PUCL v. India.30

27 28

Association for Democratic Reforms v India, AIR 2001, DEL 126. India v Association for Democratic Reforms,(2002) 5 SCC 294. 29 SP Sathe, Judicial Activism in India; Transcending Borders and Enforcing Limits, Ed. 2003, p.51-52. 30 PUCL v. India,(2003) 4 SCC 399.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

It was argued that the right to vote not being a fundamental right but only a constitutional and statutory right, the right to know the antecedent of the candidates could not be a part of freedom of speech and expression. Is the right to vote a fundamental right? Article 326, which gives the right to vote, is not in part III of the Constitution and therefore an entitlement to vote could not be a fundamental right. The right to vote of every adult above the age of 18 years emanates from art. 326 and the right not to be excluded from electoral roll on the grounds such as religion, race, caste or sex is provided in art.325. While such an entitlement is a constitutional right, the actual exercise of vote involves choice and preference and such is an act of speech or expression. although the entitlement to vote is not a fundamental right, the actual exercise of vote is an aspect of freedom of speech and expression. Secret ballot is provided only for ensuring such freedom of speech. In PV Narsimha Rao v. State (CBI/SPE),31 the Supreme Court had held that no criminal prosecution of a member of the parliament for having taken bribe in consideration of voting for or against the vote of confidence could be taken up since it would require the knowledge of how that member had voted on the resolution, and that would breach the members right to freedom of speech in the house given by art. 105(1) of the constitution. This clearly means that court had held that the actual exercise of vote was an exercise of freedom of speech of that member, the exercise of the right to vote by a citizen was also an exercise of her freedom of speech. The Supreme Court held that the impugned amendment to the Representation of People Act which denied information about the candidates antecedents, violated the right to information of the voters, which was a condition precedent to the exercise of their choice of a a candidate which involved their fundamental right to freedom of speech and expression. The right to know antecedents of the candidates who offered themselves for election was therefore a concomitant of the right to freedom of speech and expression guaranteed by art. 19 (1) (a) of the Constitution. The court clarified that its decision in Association for democratic Reforms v. India was not a mere res judicata between two parties; rather it was a decision containing interpretation of the constitution. It was contended on behalf of the Union Government that the right to information was not included in the original constitution and it had been derived from the judicial interpretation of the constitution. The Union therefore tried distinguishing between the original rights given by the constitution and the rights derived from judicial interpretation of the
31

PV Narsimha Rao v. State (CBI/SPE), (1998) 4 SCC 626.

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constitution. The court observed that the rights, which emerged through judicial interpretation of the fundamental rights, were of no lesser status than the original rights mentioned in the constitution. 5.2 RIGHT TO INFORMATION IS NOT ABSOLUTE The right to information being integral part of the right to freedom of speech is subject to restrictions that can be imposed under art 19(2). In Prabha Dutt v. India,32 the Supreme Court held that the right to information of a journalist did not give her an unrestricted access to information. The journalist petitioner claimed the right to interview the prisoners against her will. The consent of the prisoner was necessary. Further, the interview could be permitted subject to the provisions of the jail manual. In Sheela Barse v. India 33, a letter written by a freelance journalist , Sheela Barse, complaining against the withdrawal of permission to interview the prisoners given earlier by the authorities was treated as a writ petition.the Supreme Courthad in previous decisions humanized the conditions in prison but the assessment of how far those conditions were actually fulfilled could be made only if the prisoners were given freedom to speak to the journalists. Interviews with the prisoners wre an important source of knowing how far those conditions had been observed. The court conceded that right but said that such a right was subjected to the jail manual. The provisions of the jail manual have to stand the test of reasonableness under art. 19(2) and also under art.21. according to the court most of the manuals provide restrictions which are reasonable.34 It was held that tape recording should be subject to special permission of the appropriate authority.35 A committee under the chairmanship of NN Vora, the Home Secretary, had been appointed to take urgent stock of all available information about the activities and links of all mafia organizations to enable further action. In Dinesh Trivedi v. India,36 the petitioner had argued that the full report of the Vora committee along with the supporting materials submitted by the various members of the committee should be revealed. Chief Justice Ahmadi observed:37 To ensure 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. democracy
32 33

Prabha Dutt v. India, AIR 1982 SC 6. Sheela Barse v. India,(1987) 4 SCC 373. 34 Ibid, p.381. 35 Ibid, p. 382. 36 Dinesh Trivedi v. India, (1997) 4 SCC 306. 37 Ibid, p.314.

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therefore, expects openness and openness is a concomitant of free society. Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. If every action taken by the political or 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 decisions makers who may find it safe not to give decisions. The committee had recommended that a nodal agency be set up to determine the process of prosecution of people involved in such pernicious activities. The court came to the conclusion that the details of Vora committee report and the materials on which it was based might be kept confidential until the nodal agency prepared cases against the guilty persons. The learned chief justice said:38 We are, therefore, of the view that the matter needs to be addressed by a body, which can function with the highest degree of independence, being completely free from every conceivable influence and pressure. Such a body must possess the necessary powers to be able to direct investigation of all charges thoroughly before it decides, if at all, to launch prosecutions. To this end the facilities and services of trained investigators with distinguished records and impeccable credentials must be made available to it. This decision should guide future determination of when and which information would be required to be given and which kind of information may be covered by the exemptions provided by the Right to Information Act 2005.

38

Ibid, p.318.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CHAPTER 6 RIGHT TO INFORMATION IN RELATION TO RIGHT TO PRIVACY AND CONTEMPT OF COURT 6.1 RIGHT TO INFORMATION IN RELATION TO RIGHT TO PRIVACY The right to freedom of speech and expression often collides with two rival rights, namely the right to privacy and the right to fair adminsitration of justice. Both the rightrs are protected by the laws of tort and the contempt od court res[ectively. Unfortunately, the law of torts has not developed in India. It must develop in view of Indias march towards the market economy. We shall examine the legal position regarding privacy. Privacy was recognised as inherent in the right to personal liberty guarantedd bu Art.21 of the Constitution.39 The right to information may some Times conflicts witnthe right to privacy and may also invite legal action for defamation. The laws of defamation and privacy need to be made compatible with the right to freedpm of speech and the right to information, which are sine qua non of a democratic society. The balancing of competing interests in these seemingly conflicting values will bring about the harmonious solution. The right to information cannot be asserted to obtain information regarding matters, which are personal and private. The government stores a lot of information about individuals in its dossiers supplied by individuals in application made for obtaining various licences, permission including passports or through disclosures such as income tax returns or for census data. The government can refuse to give such information about a person to a third person because such information pertains to her private life. In order to fall under purview of the exception of privacy, the information must be concerning the private life of a person. What about the acts of public functionary? Can she plead privacy as a defence to disclosure of information relating to her public duties? The Supreme Court dealt with this problem in R.Rajgopal v. State of Tamil Nadu40. The petitioner was the editor, printer and publisher of a Timely Weekly. She had agreed to publish the autobiography of Auto Shankar who had been convicted of murder and sentenced to death. The autobiography was to reveal the close association of some police officers in the crimes committed by her. The police authorities had issued a warning to the petitioner against publishing that book because (i) she had no
39

Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295; Govind v. State of Madhya Pradesh AIR 1975 SC 1378. 40 R.Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

authority to do so since Autoshankar could not give the power of attorney which could be given only by the prison authorities; (ii) her action of publishing the autobiography would cause breach of their privacy and amount to blackmail. The petitioner therefore petitioned the court to restrain the police from interfering with the with the publication of the book because such interference would amount to an unreasonable restriction upon their right to give information included in the right to freedom of speech. Justice BP Jeevan Reddy, in his judgement traced the decisional law in the United States and India on the right to privacy. The learned judge observed that the petitioner had the right to publish, what they alleged to be the life story of Shankar in so far as it appeared from public records, even without her consent or without the permission of prison authorities. If the petitioner went beyond the public records, she might be violating the right to privacy of a person concerned, if such information was published without her consent. If such a person voluntarily gave information about herself, she would be deemed to have forfeited her right to privacy to that extent. However, if such disclosures causes breach of privacy of other persons or causes harm to their reputation, they could sue for breach of privacy or defamation. If such persons are government servants, they could not stop the publication but they may take action after the publication. No prior restraint on a publication on the ground that it might violate the right to privacy could be imposed consistently with the right to freedom of speech. In the case of such a public functionarys action for breach of privacy, however, the right to privacy would have limitations. The judge said:41 In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy for action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their duties. This is so even when the publication is based upon facts and statements, which are not true, unless the official establishes that the publication was made with reckless disregard for truth. In such a case, it would be enough for defendant to prove that the he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. The court relied upon a similar decision of the United States Supreme Court in New York Times Co v. Sullivan42 where it was held that in a defamation suit by a public official, the defendant

41 42

SP Sathe, constitutional Law I (Fundamental Rights) in XXX Annual Survey of Indian Law, 1994, p.703. New York Times Co v. Sullivan 376 US 254, 11 L 2nd Ed 686 (1964).

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

need not establish absolute truth of her statements; it was enough if it was proved that the statements were made after verification and not maliciously. The Supreme Court, while extending that principle held that a public official would not be able to raise the plea of breach of privacy for assailing the staatements against her in respect of her acts done in exercise of her duties as such public functionary unless it was proved that the publication was made with reckless disregard for truth. Such stricter burden of proof on a public official was felt to be justified because the information about misbehaviour or abuse of power on her part must be allowed to come out freely. Since defamation was not involved in this case, the court left the question open. This means that no breach of privacy would be caused whe information was given which was available on public records. It also means that information about the public acts of the public functionaries would not come within the exemption contained in s8(1)(j) of the Right to Information Act 2005 which entitles the public information officer to refuse information which is related to the personal information the disclosure of which has no relationship to any public activity or interest. Should her income-tax return to be disclosed in response to a request for such information? It is submitted that only actions done in official capacity an din exercise of powers as a government servant and which are part of the public record would be subject to disclosure. Her property or assests cannot be disclosed. They will be disclosed in a court when the person is tried under the Prevention of Corruption Act orf or any other criminal offence where such evidences becomes relevant. 6.2 RIGHT TO INFORMATION AND CONTEMPT OF COURT Press and Media are forbidden to publish matters pertaining to matters which are pending in a court where such publication may prejudice the court one-way or the other. Such matters re called sub judice. The purpose of such restriction is to avoid any interference with the administration of justice. Where there are disputed facts, any opinion about them could prejudice the court and prevent it from arriving at an unbiased decision. Article 19(2) of the Constitution permits reasonable restrictions on freedom of speech in relation to contempt of court. When a court grants injunction against publication of a matter and such publication is necessary to inform the people of an impeding danger, a conflict between the public interest in fair administration of justice and the public interest in dissemination of information may rise. Such a conflict was encountered in England.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

Between 1959 and 1961, the Distillers Co Biochemicals Ltd put on the market a drug called Distoval, which contained thalidomide. It was withdrawn in Novenber 1961, after about 450 children had been born with physical deformities bacause their mothers had consumed that drug during their pregnancies. Suits were filed on behalf of the affected mothers against the company. Those suits were compromised by the Distillers agreeing to give compensation equal to 40 percent of what they would have recovered had they been successful in their suits. The settlement was not accepted by all and a leave to file a suits despite the lapse of the limitation period was sought by about 260 petitioners. Even though some of such suits were settled through negotiations, that settlement was not acceptable by five parents. Negotiations for a settlement continued. However, the plight of the thalidomide babies was a national tragedy and it raised a great public outcry. The editor of the Sunday Times wrote an article was sent to the Attorney General. The Attorney General held the view that the article would amount to contempt of court in view of the fact that it might prejudice the court one way or the other before which the litigation had been pending. The Attorney General therefore sought injunction against the article. The matter came up before the Division Court in AG v Times Newspapers Ltd.43 The Times agrued that whatever might have been the law in the past, the time had come for the Court to balance the competing public interests in free discussions and uninterrupted flow of litigation. The people had a right to be informed of the evil effects of thalidomide so that no expectant mother would use it to the detriment of her child and it was the duty of the Times to provide such information. The distillers were purposely prolonging the settlement negotiation so as to obtain better bargain from the litigants. But in that process, vital information regarding the ill effects of the drug was being withheld from public knowledge. The Court did not countenance the above argument and issued injunction to the Times against publishing that article. The Times appealed and the Court of Appeal vacated the injunction.44 The Attorney General appealed to the House of Lords, which held against the Times and continued the injunction against the article. The Times then took up the matter to the European Court of Human Rights, which upheld the action of the Times and thereby disapproved of the dcision of

43 44

AG v Times Newspapers Ltd. (1973) 1 QB 710. (1973) 1 QB 710 (per Lord Denning, MR Philmore and Scarman LJJ).

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

the House of Lords.45 The European Courts of Human Rights obviously held that since the public interest damanded the disclosure of a vital information, it could not be withheld by a court injunction. The two interests of the people to be informed and of the litigants to have fair administration of justice were weighed and the former was held to prevail over the latter. 1n 1981, the British Parliament enacted the Contempt of Court Act 1981. The new Act now accepts the need to balance the competing interests of the right to information and the need to protect the judicial process from interference so that a free trial does not degenerate into trial by media.46 6.3 RIGHT TO INFORMATION: CAN IT BE SITUATED EXCLUSIVELY IN ART 19(1) (A)? There are several disadvantages of treating the right to information as situated exclusively in art 19 (1)(a) of the constitution. The right to freedom of speech includes the freedom to give information but does it also include the right to receive information? In Bennett Coleman,47 the Supreme Court held that the right to information of the readers was also adversely affected when freedom of the press was restricted. A newspaper has the right to give information may not always have a linkage with the freedom of speech. The right to information is required to make the exercise of discretionary powers by the executive transparent because such transparency will act as a deterrent against unequal treatment. In SP Gupta v. India,48 the petitioners had raised the question of alleged misuse of power of appointing and transferring the judges of the high court by the Government. This had the background of suppression of three senior most judges of the Supreme Court in 1973 and suppression of J Khanna, in 1977. In order to make sure that the power of appointment of judges was not used with political motives thereby undermining the independence of the judiciary, it was necessary to find out whether the procedures laid down under articles 124 (2) and 217 (1) had been scrupulously followed. The information about consultation with the CJI and CJ of High Court was sought because without such information, it could not be ascertained whether appointments of judges had been made in accordance with the constitution. Here the Right to information was a condition precedent of the rule of law. Most of the issues, which the Hind Mazdoor Shakti Sangathan of Rajasthan had raised in their struggle for the right to information, were mundane matters regarding wages and employment of the workers. Such information was
45 46

Sunday Times v. United Kingdom (1979) 2 EHRR 245. For a detailed discussion of these cases see HM Seervai, Constitutional Law of India, 1999, fourth edn, vol 1, pp 727-732, Reprinted 2001. 47 Bennett Coleman V. Union of India, AIR 1973 SC 106. 48 SP Gupta v. India, AIR 1982 SC 149.

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necessary for ensuring that no discrimination had been made between workers and that everything had been done according to law. Proper audit of the development works could be made only if information about how many workers were employed, how they were paid, from where the materials for the development works were bought and how they were utilized. The right to information is therefore not confined to art 19(1) (a) but is also situated in articles 14 article 21. It emanates from the preamble of the Constitution, which speaks in the name of the people of India and the parliamentary system of government, which the Constitution envisages. It is submitted tat the right to information is as an aspect of the basic structure of the Constitution. It is embeded in the basic structure of the Constitution and is specially situated in articles 14, 19 (1)(a) and 21 of the Constitution. This shows how the right to information is situated in the Constitution. The legislation on the right to information that has how been passed in various states and at the Center provides the infra structure for its actual execution.

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RIGHT TO INFORMATION AND RIGHT TO KNOW AS FUNDAMENTAL RIGHT

CONCLUSION The Right to know is not meant for gratifying idle curiosity or mere inquisitiveness but is essential for the effective functioning of democracy. Transparency and accountability are sine qua non in a genuine democracy.49 Soli J. Sorabjee Importance of the information is very aptly echoed in the words of James Madison who said, Knowledge will for ever govern ignorance and people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information is or the means of obtaining it, is but a prologue to a force or tragedy or perhaps both. India now can proudly proclaim that its citizens today have been conferred with specific RTI, which will surely lead them towards the path of development. Although there are still some shortcoming but it can not be allowed to dominate the growth of a healthy democratic atmosphere- especially in a country which happens to be the largest democracy in the world. Harsh Mander and Abha Joshi in their study titled THE MOVEMENT FOR RIGHT TO INFORMATION IN INDIA: Peoples Power for the Control of Corruption opined that information is power, and that the executive at all levels attempts to withhold information to increase its scope for control, patronage, and the arbitrary, corrupt and unaccountable exercise of power. Therefore, demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Combating corruption which has been a major concern for our country for decades has a solution potentially in the hands of RTI. It is therefore, quite safe to assert that RTI is a means as well as end to achieve democracy in its truest meaning. This can be achieved by development of a comprehensive information management system and by the promotion of information literacy

49

B. N. Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhawan and Raju Ramchandran (Eds.), Supreme But Not Infallible- Essays in Honour of the Supreme Court of India, p. 354 (Oxford University Press, 2004) cited in Avinash Sharma, Right to Information : A Constitutional Perspective, Vol. VIII Nyayadeep, see at pg. 119.

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among the masses. This will positively lead to ultimate realization of the objectives of RTI viz. transparency and accountability. An informed citizenry is a condition precedent to democracy.

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BIBLIOGRAPHY 1. Kumar Dr. Niraj, Treatise on RIGHT TO INFORMATION ACT, 2005, Bharat Law House, New Delhi (2007). 2. Chandra Dr. U., Human Rights, Allahabad Law Agency Publications, Allahabad, 7th Edition (2007). 3. Rao Prof. (Dr.) S. V. Joga, Law Relating to Right to Information, First edition (2009). 4. Sathe S. P., Right to Information, Lexis Nexis Butterworths. 5. Das P. K., Handbook on The Right to Information Act, 2005, Universal Publication, 2005 Edition. 6. Shukla V. N., Constitution of India, Eastern book Company, Lucknow, 10th Edition. 7. Bailey, S.H., Administrative Law, Sweet and Maxwell, London, 2005. 8. Basu, Durga Das, Administrative Law, Kamal Law House, Kolkata, 20-06 9. Cane, Peter, Administrative Law, Oxford University Press, New York, 2004. 10. Craig, P.P., Administrative Law, Sweet and Maxwell, London, 2007. 11. Elliott, Mark, Administrative Law, Text and Materials, Oxford University Press, New Delhi, 2007. Online research 1. http://www.humanrightsinitiative.org 2. http://www.freedominfo.org/ 3. http://www.parivartan.com/home.asp 4. http://www.rti.org.in 5. http://www.rtiindia.org 6. http://www.pudr.org

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