Right of information is a facet of ‘speech and expression’ as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right.
In 1948, the United Nations proclaimed a Universal Declaration of Human Rights. It was followed by the International Covenant on Civil and Political Rights (ratified in 1978).
Article 19 of the Covenant declares that “everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinion without interference, and to seek, and receive and impart information and ideas through any media and regardless of frontiers.”
A similar enunciation is to be found in the declaration made by the European Convention of Human Rights (1950). Article 10 of that declaration guarantees inter alia, “not only the freedom of the Press to inform the public but also the right of the public to be informed.”
In keeping with the spirit of the Universal Declaration of 1948, the Preamble of the Constitution of India embodies a solemn resolve of its people to secure, inter alia, to its citizens, liberty of thought and expression. In pursuance of this supreme objective, Article 19(1)(a) guarantees to the citizens, the right to “freedom of speech and expression” as one of the fundamental rights listed in Part III of the Constitution. These rights have been advisedly set out in broad terms leaving scope for their expansion and adaptation, through interpretation, to the changing needs and evolving notions of a free society.
Right to receive Information
In State of U.P. Vs. Raj Narain & Ors. , the Constitution Bench considered a question-whether privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what has been described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh?
The Court observed as under:- “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can 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. They are entitled to know the particulars of every public transaction in all its bearing….”
In Indian Express Newspapers (Bombay) Private Ltd. and Others etc. Vs. Union of India and others [(1985) 1 SCC 641], the Court dealt with the validity of customs duty on the newsprint in context of Article 19(1)(a). The Court observed (in para 32) thus:
“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 Court further observed:
“…The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.”
Social Purposes of Freedom of Expression
Freedom of expression, as learned writers have observed, has four broad social purposes to serve:
(i) it helps an individual to attain self-fulfillment,
(ii) it assists in the discovery of truth,
(iii) it strengthens the capacity of an individual in participating in decision-making and
(iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration….”
Right to educate and to inform
In Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others [(1995) 2 SCC 161], the Court summarized the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2) thus:-
“The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self- fulfilment. It enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavors of all sorts.”
This Court further dealt with the right of telecast holding:-
“In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained.
The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right.”
Democracy expects openness
In Shri Dinesh Trivedi, M.P. & Ors vs Union Of India & Ors, 1997, the Court held:
“18. The case of S. P. Gupta v. Union of India [1981 Supp SCC 87], decided by a seven-Judge Constitution Bench of this Court, is generally considered as having broken new ground and having added a fresh, liberal dimension to the need for increased disclosure in matters relating to public affairs, In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of Government, disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest.
The Court held that the disclosure of documents relating to the affairs of State involves two competing dimensions of public interest, namely, the right of the citizen to obtain disclosure of information, which competes with the right of the State to protect the information relating to its crucial affairs.
It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved in each individual case.
It is important to note that it was conceded that there are certain classes of documents which are necessarily required to be protected, e.g. Cabinet Minutes, documents concerning the national safety, documents which affect diplomatic relations or relate to some State secrets of the highest importance, and the like in respect of which the Court would ordinarily uphold Government’s claim of privilege. However, even these documents have to be tested against the basic guiding principle which is that wherever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from disclosure.
What then is the test? 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 basic thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision-makers in Government can have frightening side- effects.
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 decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest.”
The aforementioned decisions came up for consideration before the Court in Union of India v. Association for Democratic Reforms & Anr. [(2002) 5 SCC 294] wherein the question which arose for consideration was as to the candidates contesting election to Parliament and to the State Legislatures and the parties they represent,
“1. Whether the candidate is accused of any offence(s) punishable with imprisonment? If so, the details thereof.
2. Assets possessed by a candidate, his or her spouse and dependant relations?
3. Facts giving insight to candidate’s competence, capacity and suitability for acting as parliamentarian or legislator including details of his/her educational qualifications;
4. Information which the election commission considers necessary for judging the capacity and capability of the political party fielding the candidate for election to Parliament or the State Legislature.”
The Court opined that having regard to the right of information obtaining in Article 19(1)(a) of Constitution of India, the election petitioner can ask for such directions. It was held that the right to get information in a democracy is recognized all throughout and it is a natural right flowing from the concept of democracy. A reference to Articles 19 (1) and (2) of the International Convention on Civil and Political Rights can be made in this regard.
Moreover Article 19 (1) (a) of the Indian Constitution provides for freedom of speech and expression. Voters’ speech or expression in the case of election would include casting of votes, that is to say, that the voter speaks out or expresses by casting a vote. For this purpose, information about the candidate to be selected is a must.
Restriction of Information
In ‘People’s Union for civil Liberties v. Union of India, (2004)’ the court said that, Unlike Constitutions of some other developed countries, however, no fundamental right in India is absolute in nature. Reasonable restrictions can be imposed on such fundamental rights. Clause (2) of Article 19 of the Constitution reads thus:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
Every right – legal or moral – carries with it a corresponding obligation. It is subject to several exemptions/ exceptions indicated in broad terms. Generally, the exemptions/ exceptions under those laws entitle the government to withhold information relating to the following matters:
(i) International relations;
(ii) National Security (including defence) and public safety;
(iii) Investigation, detection and prevention of crime;
(iv) Internal deliberations of the government;
(v) Information received in confidence from a source outside the government;
(vi) Information, which, if disclosed, would violate the privacy of individual;
(vii) Information of an economic nature, (including Trade Secrets) which, if disclosed, would confer an unfair advance on some person or concern, or, subject some person or government to an unfair disadvantage;
(viii) 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;
(ix) Information about scientific discoveries.
A reasonable restriction on the exercise of the right is always permissible in the interest of the security of the State.”
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