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From Secrecy to the Freedom of Information —A Reluctant Transition
by Madhavi Divan1

Cite as : (2003) 8 SCC (Jour) 60

Open government is a contradiction in terms. You can be open, or you can have government.”

Sir Humphrey Appleby’s remark in the Yes Minister series aptly describes the mindset underlying Indian governmental policy.

For over fifty years, secrecy has been the norm in the working of the Government, and transparency, the 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 electorate. It demands accountability. This is fundamental to the functioning of any truly democratic society. The hallmark of a meaningful democracy is the institutionalisation of transparent and participative processes which gives the electorate 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 licence secrecy are a colonial legacy and were adopted by totalitarian regimes to legitimize suppression of information about its functioning. Secrecy in public affairs is anathema to the very notion of democracy. Yet laws favouring governmental secrecy have dragged on for half a century after India became a democratic republic. Scandinavia and USA enacted laws giving the citizen a statutory right to information as early as the 1960s. It was not for over another forty years, that a bill called the Freedom of Information Bill, 2002 finally came to be introduced in the Indian Parliament. This step came as a breath of fresh air in an otherwise cagey and inaccessible system.

But old habits die hard. Especially when vested interests are involved. Even as the Freedom of Information Act, 2002 came into force on 6th January, 2003, the Government continued to grope for pretexts to justify withholding information from the citizen. A classic instance was the Government’s response to the Supreme Court’s judgment in Union of India v. Assn. for Democratic Reforms2.

In May 2002, the Supreme Court passed a landmark judgment on the right of the voter to information about the antecedents of electoral candidates. The Court directed that all candidates for election to Parliament and to the legislative assemblies were required to furnish information about the candidate’s criminal record, if any, his or her assets and liabilities and educational qualifications.

The Court held that the requirement to disclose this information arose from every citizen’s fundamental right to information which flows from the right to free speech and expression under Article 19(1)(a) of the Constitution. The Court relied on a number of previously decided cases where the Supreme Court interpreted the right to free speech and expression to include the public’s right to knowledge of public affairs.

The Government promptly responded with an Ordinance3 professing to introduce electoral reform but which was really aimed at undoing the effect of the Supreme Court judgment:

“33-B. Notwithstanding anything contained in any judgment, 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 such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”4

Enacted on the pretext of introducing electoral reform, the new law gave every candidate a legal right to suppress vital information about his antecedents.

The amendment did away entirely with the court-mandated and constitutionally justified requirement for a candidate to disclose his educational qualifications and his assets and his liabilities. Further, a candidate was not required to disclose his entire criminal record, but only (a) if he had been convicted and sentenced to imprisonment for at least one year5, or (b) was accused of a crime punishable with imprisonment for at least two years and charges in the matter had been framed by a court of competent jurisdiction.6 Given the law’s delays, it often takes years for the charges to be framed. Meanwhile, voters were to be kept blissfully unaware of their candidate’s antecedents. Section 33-B of the Ordinance granted complete immunity to the candidate from furnishing any further information other than that specified under Section 33-A. Our law-makers were quick to realise that if the Court’s directives were to be implemented and a few unsavoury truths revealed, they may find it difficult to be re-elected and a vast majority of them may never find themselves in Parliament again!

Arguably, the Court’s requirement that a candidate disclose pending cases might be abused by detractors filing frivolous criminal cases. However, there was absolutely no justification for exempting the disclosure of assets, liabilities or educational qualifications. Oddly, Section 75-A makes it necessary for an elected candidate to disclose his assets and liabilities. What use is this information to the voter after he has cast his vote and cannot change his mind for another five years? The provision defeated the very idea behind the Supreme Court’s directions: that the voter must be able to make an informed choice. The Supreme Court’s directions did not disqualify a candidate on the basis of the information disclosed. Yet the unseemly haste with which political parties reacted was as much a telling indication of the real power of franchise and the vital importance of public information as it was a damning indictment of elected representatives.

Fortunately, the matter did not end there. The Supreme Court came to the rescue of citizens once again and struck down the amendment under Section 33-B. In People’s Union for Civil Liberties v. Union of India7 the Supreme Court ruled that the legislature’s power to interfere with a fundamental right under Article 19(1)(a) was limited to the grounds provided under Article 19(2) and that Section 33-B was beyond legislative competence. M.B. Shah, J. said:

“78. (A) The legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the court. A declaration that an order made by a court of law is void is normally a part of the judicial function. The legislature cannot declare that decision rendered by the court is not binding or is of no legal effect.

It is true that the legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right.”8

Reddi, J. observed:

“If the legislature in utter disregard of the indicators enunciated by this Court proceeds to make a legislation providing only for a semblance or pittance of information or omits to provide for disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though certain amount of deviation from the aspects of disclosure spelt out by this Court is not impermissible, a substantial departure cannot be countenanced.”9

“[W]hen the right to secure information about a contesting candidate is recognised as an integral part of fundamental right as it ought to be, it follows that its ambit, amplitude and parameters cannot be chained and circumscribed for all times to come by declaring that no information, other than that specifically laid down in the Act, should be required to be given. When the legislation delimiting the areas of disclosure was enacted, it may be that Parliament felt that the disclosure on other aspects was not necessary for the time being. Assuming that the guarantee of right to information is not violated by making a departure from the paradigms set by the Court, it is not open to Parliament to stop all further disclosures concerning the candidate in future. In other words, a blanket ban on dissemination of information other than that spelt out in the enactment, irrespective of the need of the hour and the future exigencies and expedients is, in my view, impermissible. It must be remembered that the concept of freedom of speech and expression does not remain static. The felt necessities of the times coupled with experiences drawn from the past may give rise to the need to insist on additional information on the aspects not provided for by law. New situations and the march of events may demand the flow of additional facets of information. The right to information should be allowed to grow rather than being frozen and stagnated; but the mandate of Section 33-B prefaced by the non obstante clause impedes the flow of such information conducive to the freedom of expression.”10

Laws that licence secrecy

(i) The Official Secrets Act, 1923

The Official Secrets Act is a relic of the British Raj. First enacted in 1889, it was designed to justify suppression of information by the British Government from its subjects and thereby stifle any move by the subjects against the Government. Its stated object was to “prevent the disclosure of official documents and information”. Under the Act of 1889, an act of espionage was punishable with deportation for life or for five years or with imprisonment. The Act of 1889 was replaced by an Act of 1911 and thereafter an Act of 1923. The 1923 Act makes provisions against espionage as also against communication of official information to outsiders. The Act makes it a penal offence for any person holding office under the Government to wilfully communicate any official information to anyone other than an authorised person. It is equally an offence for any person to receive such information.

It is, however, significant that the grounds on which action may be taken under the Official Secrets Act are limited to those specified under Article 19(2).

(ii) The Central Civil Services (Conduct) Rules, 1964

Rule 11 of the Rules reads:

“No government servant shall, except in accordance with any general or special order of the Government or in the performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or information to any government servant or any other person to whom he is not authorized to communicate such document or information.”

The Manual of Office Procedure provides that only ministers, secretaries or other officers specifically authorized by the minister may give information or be accessible to the representatives of the press. Other officers, if approached by a representative of the press, must refer the latter to Principal Information Officers of the Government of India.

In the Press Information Bureau, Information Officers and Deputy Principal Information Officers normally maintain a communication link between various ministries and departments of the Government of India and the press and the public. In the ministries, no officer below the rank of Joint Secretary is authorized to communicate with the press. In addition to the general restrictive provisions for maintaining official secrets, the Manual also restricts the handling of classified papers, graded as Top Secret, Secret and Confidential. These restrictions are contained in the Departmental Security Instructions issued by the Ministry of Home Affairs.

(iii) The Evidence Act, 1872

Sections 123 and 124 of the Indian Evidence Act give blanket power to the Government to withhold documents.11 Over time, courts have, however, watered down the powers given to the Government under these provisions. Judicial review has provided some safeguard to an individual against governmental arbitrariness in matters of official secrecy.

In State of Punjab v. Sodhi Sukhdev Singh12 the Supreme Court held that the documents which embody the minutes of the meetings of the Council of Ministers and indicate the advice which the Council of Ministers gave to the Raj Pramukh and the documents embodying the advice tendered by the Public Service Commission to the Council of Ministers are protected under Section 123. If the head of the department does not give permission for their production, the Court cannot compel the State to produce them. Once the Court came to the conclusion that the document involved fell into the category of “affairs of State”, then it would be left to the head of the department to decide whether its production should be permitted and the Court would not go into the question of whether, as a matter of fact, public interest would be injured or not by the disclosure. In a later case, State of U.P. v. Raj Narain13 the Supreme Court took a different view from that in Sukhdev case12 and held that the Court had the residual power to decide whether the disclosure of a document was in the public interest or not and for that purpose it had the power to inspect a document if necessary. The statement of the head of the department that the disclosure would injure the public interest was not final.

In Judges Transfer case14 the Supreme Court took an even more liberal view of the disclosure of official documents under Section 123 of the Evidence Act. Justice Bhagwati held:

“There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to anyone by withholding relevant evidence. This is a balancing task which has to be performed by the court in all cases.”15

Judicial recognition of the right to information

For many decades, despite the establishment of parliamentary democracy in India, there was no legal right to information. It was through a creative interpretation of Article 19(1)(a) of the Constitution that the Supreme Court carved out a fundamental right to information as being implicit in the right to free speech and expression. This right is of special importance to the media whose lifeline is information and whose business it is to communicate information to the electorate so that the latter may make informed choices.

One of the earliest cases where the Supreme Court laid emphasis on the people’s right to know was Romesh Thappar v. State of Madras16. There the petitioner had challenged an order issued by the then Government of Madras under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposing a ban on the circulation of the petitioner’s journal Cross Roads was struck down as violative of the right to freedom of speech and expression under Article 19(1)(a). Again in Indian Express Newspapers (Bom) (P) Ltd. v. Union of India17 the Court relied on the following decision (Per Lord Simon of Glaisdale in Attorney General v. Times Newspapers Ltd.18) : (SCC pp. 685-86, para 68)

“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.”

The Court concluded:

“Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment, (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.”19

In State of U.P. v. Raj Narain13 which involved the question of government privilege under Section 123 of the Evidence Act, the Supreme Court 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. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”20

In Judges Transfer case14 a seven-Judge Bench of the Supreme Court followed Raj Narain case13 and observed thus:

“Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their Government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. 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. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy. ‘Knowledge’ said James Madison, ‘will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular Government without popular information or the means of obtaining it, is but a prologue to a force or tragedy or perhaps both’. The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world.

The demand for openness in the Government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the Government. Today, it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the Government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of Government — an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open Government where there is full access to information in regard to the functioning of the Government.”21

This is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as 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.”22

In Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd.23 Justice Mukharji recognized the right to know as emanating from the right to life. The question which arose was whether Reliance Petrochemicals Ltd. was entitled to an injunction against Indian Express which had published an article questioning the reliability of the former’s debenture issue. The learned Judge observed:

“We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age on our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.”24

In a later judgment, Tata Press Ltd. v. MTNL25 the Supreme Court, while considering the scope of Article 19(1)(a) in the context of advertising or commercial speech, held that the public has a right to receive information. The question which arose in that case was whether advertisements being for commercial gain could avail of the protection guaranteed under Article 19(1)(a). The Supreme Court held:

23. Advertising as a ‘commercial speech’ has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisements. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of ‘commercial speech’—

* * *

24. Examined from another angle, the public at large has a right to receive the ‘commercial speech’. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of ‘commercial speech’ may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life-saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.”26

In Secy., Ministry of Information and Broadcasting v. Cricket Assn. of Bengal27 the Supreme Court, while considering the rights of a person to telecast a sports event on television through the use of air waves held that the right under Article 19(1)(a) includes the right to receive and acquire information and that viewers have the right to be informed adequately and truthfully. In support of this right, the Court quoted from Article 10 of the European Commission on Human Rights.28 The Court held that although a person seeking to telecast a sports event when he himself is not participating in the game is not exercising his right to self-expression, he is seeking to educate and entertain the public which is part of the freedom of expression. The Court held that the right of the viewer to be entertained and informed is also, likewise, integral to the freedom of expression.

The Court observed:

“True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs to the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolized either by a partisan central authority or by private individuals or oligarchic organizations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 1/2 per cent of the population has an access to the print media which is not subject to pre-censorship.”29

In Dinesh Trivedi v. Union of India30 which concerned the questions of the disclosure of the Vohra Committee Report, the Supreme Court once again acknowledged the importance of open Government in a participative democracy. The Court observed that: “In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.” It went on to observe that “democracy expects openness and openness is concomitant of a free society and the sunlight is a disinfectant”.

The campaign for a legislation on the freedom of information

Legislations on the right to information were first enacted in the Scandinavian countries and USA in the 1960s and thereafter, in other countries including Canada, New Zealand and Australia. In India, some States such as Goa, Tamil Nadu, Rajasthan, Karnataka, Maharashtra, Delhi and Assam introduced legislations on the subject between the mid-1990s and 2001. The Centre finally followed suit and came out with a draft Bill called the Freedom of Information Bill, 2000 which was passed by Parliament in December 2002.

The campaign in India for the right to information evolved with the grassroots movement in Rajasthan in the mid-1990s. The Mazdoor Kisan Shakti Sangathan (MKSS), an organisation of peasants and rural workers, led a sustained campaign for information on development expenditure in Panchayati Raj (local self-government) institutions. When villagers in central Rajasthan began assessing bills, vouchers and muster rolls of expenditure incurred in their Panchayat and verified them against the work actually carried out, the workers employed and wages paid to them, they discovered wide-scale manipulation of records and rampant embezzlement of development funds by public officials in connivance with private parties. The result of this corruption was not only non-employment of or underpayment to the local workforce and inadequate or poor quality assets, but depletion of funds which were meant for education, housing and health facilities for the rural poor. The campaign led to a public assurance by the then Chief Minister Bhairon Singh Shekhawat, in the State Assembly that people would be entitled to the right to obtain photocopies of all documents pertaining to Panchayati Raj institutions. The assurance remained unfulfilled and it was not until 1996-97, in the aftermath of two massive strikes that the State Government relented and amended the rules of the Rajasthan Panchayati Raj Act to incorporate the people’s right to information relating to Panchayati Raj institutions by inspecting and obtaining photocopies of documents.

MKSS campaign was followed by the efforts of a coalition of senior journalists, lawyers, academics and NGOs called NCPRI (National Campaign for People’s Right to Information) to draft a model Bill on the right to information for the Central Government’s consideration. This became a wide consultative process with the participation of the Press Council of India. A committee headed by senior consumer activist H.D. Shourie was set up in 1997 by the then United Front Government. However, the first draft Bill based on the H.D. Shourie Committee could not see the light of day as three Governments fell at the Centre in rapid succession. Eventually, the Bill was passed by Parliament in December 2002 and the Act came into force on 6th January, 2003.

The Freedom of Information Act, 2002: An analysis

The object of the Freedom of Information Act, 2002 is:

“To provide for freedom to every citizen to secure access to information under the control of public authorities,31 consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto.”

Significantly, the Act has the effect of rendering inoperative provisions of the Official Secrets Act, and any other legislation, insofar as their provisions are inconsistent with the provisions of the Freedom of Information Act.32 The Act makes it mandatory for all public authorities to properly maintain their records and furnish information about their functioning.33 It also provides for the appointment of Public Information Officers to deal with requests for information from citizens and to assist them in gathering information.34 Public Information Officers are required to provide the information requested as expeditiously as possible and within a maximum of 30 days from the date of the request.35 Where the request is rejected, reasons must be furnished to the person concerned and he must be guided as to the particulars of the Appellate Authority and the time period within which he may prefer an appeal from the rejection of his request for information.36

Wide exemptions from disclosure

A request for information may be rejected on any of the grounds specified under Sections 8 and 9. Several exemptions under Section 8 are excessive and considerably dilute the stated object of the legislation. Some exemptions even travel beyond the restrictive scope permissible under Article 19(2) of the Constitution. For instance, exemptions carved out in the name of information “the disclosure of which would prejudicially affect the conduct of Centre-State relations, including information exchanged in confidence between the Central and State Governments or any of their authorities or agencies”37 or “cabinet papers including records of advice, including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation”38 do not fall into any of the categories exhaustively listed under Article 19(2). Such exemptions are clearly unconstitutional. Even the Official Secrets Act did not go beyond the grounds specified under Article 19(2). There is no justification whatsoever to exclude from public access all kinds of exchanges between the Central and State Governments. To invoke the exception and avoid disclosure, all that a Government needs to do is to mark all communications confidential. That a disclosure might affect Centre-State relations is no justification at all for denying a citizen access to information of public interest.

A common justification of the need for secrecy of internal notings is that its open access would discourage candour among public servants. This was debunked in Judges Transfer case14 where the Supreme Court observed that the fear of disclosure was hardly likely to deter an honest public servant from doing his honest duty and from writing his honest views. On the other hand, disclosure was likely only to deter a dishonest public servant, and therefore, the disclosure would clearly be in the public interest.

The blanket exemption granted in respect of all cabinet papers is also contrary to public interest. Any paper, however innocuous, becomes a cabinet paper simply by being placed before the Cabinet. All cabinet papers even on subjects not covered under the restrictions specified in Article 19(2) would be immune to disclosure. This exemption is excessively wide and clearly beyond its constitutional permissibility. The effectiveness of this legislation is further diluted by the complete exclusion of a large swathe of investigative, intelligence and security organisations. These organisations include not only paramilitary organisations, but a large number of investigative organisations such as the Research and Analysis Wing (RAW), the Intelligence Bureau, CID, the Directorate of Vigilance, the Directorate of Enforcement, the Central Economic Intelligence Bureau, the Directorate of Revenue Intelligence. This list of exempted organisations may be expanded at the discretion of the Government. The State Governments have also been given the option of adding security and police organisations to this list. In typically bureaucratic irony, the Act39 demands that information about the life and liberty of a person must be furnished within 48 hours, but simultaneously draws a veil of secrecy over the operations of the very organisations most often accused of human rights violations. If the only real concern was to protect sensitive information in the national interest, the exemption in Section 8(a) covering “information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security of the State, strategic, scientific or economic interest of India” was more than adequate.

The exclusion of these organisations is complete and shields even information totally unrelated to security. Surely, the disclosure of financial affairs of security organisations is a matter squarely in the public interest: it involves public money and in no way compromises national security. The fuzzily defined bogey of “national security” cannot be used against the very public interest the Act claims to serve.

Appeals from refusal of information

The appeal mechanism under the Act altogether excludes the intervention of the courts.40 The first appeal from a rejection of a request for information lies to the next higher authority and thereafter to the Government concerned which may well have an interest in withholding the information sought. This is an appeal from Caesar to Caesar. As we have already seen, it is only by a judicial review of administrative attempts to block public access to government records and information that a constitutional basis for the public right to information came to be evolved in the first place. To exclude courts from a review process is paying lip service to the stated object of the Act. In a matter where the battle is between the public and the Government for access to government records, the Government is made the defendant, the judge and the executioner.

Exclusion of private bodies performing acts of public importance

The Act has also been criticised for failing to bring within its sphere private bodies from the obligation to provide information pertaining to the public sphere. The right to information flows from Article 19(1) of the Constitution. This makes the right available against all the world and not just the State.41 There is a strong case for including private bodies within the scope of the Freedom of Information Act to the extent that they are in possession of information of public importance and interest. Investigations into investor grievances or environmental disasters which concern private bodies are matters of public interest.42 Increasingly, privatisation has brought more and more public bodies into the private sector. There is no logical rationale for excluding an erstwhile public sector enterprise from the Act merely because, as a matter of economic policy, the enterprise has now passed into private hands. There is therefore, a strong case for transparency and accountability for such private bodies.43

Failure to protect confidentiality of sources of information

An area that has been entirely overlooked by the Freedom of Information Act is the protection of sources of information. The press gathers information from various sources which must be assured anonymity and protection to ensure the free availability of information. Investigative journalism is assisted by sources who would be exposed to danger or embarrassment if named and to whom anonymity must be assured as a precondition for assistance. However, a journalist must be able to establish the reliability of his sources. He would be handicapped in proving his case unless he establishes the credibility of his source. As Lord Steyn remarked in Reynolds v. Times Newspapers44:

“If a newspaper stands on the rule protecting its sources, it may run the risk of what the judges and jury will make of the gap in the evidence.”

The circumstances under which disclosure of sources of information can be compelled have been widely debated in the UK, Europe and USA.

A leading common law English decision on the point is British Steel Corpn. v. Granada Television Ltd.45 Granada Television broadcast a programme called “The Steel Papers” which revealed that poor management played a part in the financial difficulties of British Steel which was evident from documents leaked to Granada by a British Steel Corporation employee. In an action against Granada by BSC, Granada returned the confidential documents they had used, but defaced them to conceal the identity of their source. Granada defended itself by pleading that the press should be granted an exception from the general rule, for potential informers would be less likely to give information to the press unless assured that their identity would be protected. The House of Lords by a majority did not accept this plea and held that the court could compel the disclosure in the interest of justice. The lone dissenter, Lord Salmon, observed that “the immunity of the press to reveal its sources of information save in exceptional circumstances is in the public interest, and has been so accepted by the courts for so long that I consider it is wrong now to sweep this immunity away”.46

The common law position was strengthened by Section 10 of the English Contempt of Courts Act, 1981:

“No court may require a person to disclose, nor is any person guilty of contempt of court from refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

English courts have loosely invoked the grounds under which the disclosure of sources may be compelled, particularly “in the interests of justice”.47

In India, all persons who are competent to be witnesses under Section 118 of the Evidence Act can also be compelled to give evidence and also to answer relevant questions, unless exempted by law.48

The Mysore scandal and the right to know

A recent case in India, infamously known as the “Mysore sex scandal case”, raised interesting questions on different facets of the right to know. Leading newspapers published reports about how three Judges of the Karnataka High Court had been found indulging in immoral behaviour at a private resort in Mysore. The High Court responded by issuing to the editors and publishers notice for contempt of court. The Court’s demand to know the journalists’ sources of information was staunchly resisted by the press on the grounds of journalistic privilege. While there was something to be said in favour of confidentiality of sources, there was also much to be said against news reports which cast aspersions of such a serious nature without a shred of supporting material.

In the meantime, a committee comprising of senior Judges appointed by the Chief Justice of India carried out an “in-house investigation” and absolved the judges concerned who have since continued in judicial office. There was a strong demand for the contents of the report to be made public. In Indira Jaising v. Registrar General, Supreme Court of India49 a senior Advocate practising in the Supreme Court filed a petition demanding the publication of the inquiry report. The Court declined disclosure with a reasoning that is difficult to reconcile with its own bold pronouncements in the past:

“A report made on such inquiry if given publicity will only lead to more harm than good to the institution as judges would prefer to face inquiry leading to impeachment. In such a case the only course open to the parties concerned if they have material is to invoke the provisions of Article 124 or Article 217 of the Constitution, as the case may be … The said report is only for the purpose of satisfaction of the Chief Justice of India that such a report has been made. It is purely preliminary in nature, ad hoc and not final … the only source or authority by which the Chief Justice can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made the subject-matter of a writ petition to disclose a report made to him.”50

Surely, the public has a right to know about the integrity of those who dispense justice. That the Supreme Court had instituted an inquiry into the incident was a fact allowed to be widely publicised. This was a measure that inspired public confidence and was intended to do so. It was therefore, in the fitness of things that the report itself be made public. Quite apart from the public interest was in the interest of the judges concerned to have the report made public; the more so if it established their innocence.

Evidently, old mindsets die hard. It is going to be a slow and reluctant transition from a deeply ingrained psyche of secrecy to openness and the freedom of information.



1. Advocate, High Court, Mumbai. The author acknowledges the valuable suggestions of Gautam Patel, Advocate, High Court, Mumbai who reviewed an earlier draft of this article. Return to Text

2. (2002) 5 SCC 294 Return to Text

3. Repealed and subsequently enacted as the Representation of the People (Third Amendment) Act, 2002. Return to Text

4. Section 33-B of the Representation of the People (Third Amendment) Act, 2002. Return to Text

5. Section 33-A(1)(ii) of the Representation of the People (Third Amendment) Act, 2002. Return to Text

6. Section 33-A(1)(i) of the Representation of the People (Third Amendment) Act, 2002. Return to Text

7. (2003) 4 SCC 399 Return to Text

8. Ibid., para 78, at p. 452. Return to Text

9. Ibid., para 109, at p. 466. Return to Text

10. Ibid., para 110, at p. 467. Return to Text

11. “123. No one shall be permitted to give any evidence desired from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. Return to Text

124. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.” Return to Text

12. AIR 1961 SC 493 Return to Text

13. (1975) 4 SCC 428 Return to Text

14. S.P. Gupta v. Union of India, 1981 Supp SCC 87 Return to Text

15. Ibid., para 73, at p. 285. Return to Text

16. 1950 SCR 594 Return to Text

17. (1985) 1 SCC 641 Return to Text

18. (1973) 3 All ER 54 Return to Text

19. Supra fn 17, p. 686, para 68. Return to Text

20. Supra fn 13, para 74 at p. 453. Return to Text

21. Supra fn 14, paras 64 and 65, at p. 273. Return to Text

22. Supra fn 14, para 67, at p. 275. Return to Text

23. (1988) 4 SCC 592 Return to Text

24. Ibid., para 34, at p. 613. Return to Text

25. (1995) 5 SCC 139 Return to Text

26. Ibid., paras 23 and 24, at p. 156 Return to Text

27. (1995) 2 SCC 161 Return to Text

28. “10.1. Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Return to Text

29. Supra fn 27, para 82 at p. 229. Return to Text

30. (1997) 4 SCC 306, 314 Return to Text

31. The Freedom of Information Act defines “public authority” in Section 2(f) as “any authority or body established or constituted,— Return to Text

(a) by or under the Constitution; Return to Text

(b) by any law made by the appropriate government; Return to Text

and includes any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate government;” Return to Text

[This would include not only bodies owned and controlled by the State but even NGOs that are substantially funded by the Government.] Return to Text

In Section 2(a), appropriate Government means “in relation to a public authority established, constituted, owned, substantially financed by funds provided directly or indirectly or controlled— Return to Text

(i) by the Central Government, the Central Government; Return to Text

(ii) by the State Government, the State Government; Return to Text

(iii) by the Union Territory, the Central Government;” Return to Text

32. See Section 15. Return to Text

33. See Section 4. Return to Text

34. See Section 5. Return to Text

35. See Section 7. Return to Text

36. See Section 7(3); appeals under Section 12. Return to Text

37. Section 8(c) Return to Text

38. Section 8(d) Return to Text

39. Section 7(1) Return to Text

40. Section 15 Return to Text

41. Note that Article 19(1) begins “All citizens shall have the right…” whereas Article 14 is available only against the State. Return to Text

42. A very recent example is the failure by several States to disclose the so-called results of their independent tests into the pesticide content of aerated beverages and colas. Is there any compelling reason why this information should be withheld from the consumer? The Bhopal gas tragedy is another glaring example of a private corporation whose acts and omissions had a disastrous effect on the lives of thousands of common people. Return to Text

43. Interestingly, the South African Constitution which makes the right to information a fundamental right has a general sweep under Section 32 that covers private bodies. Return to Text

44. (2001) 2 AC 127 Return to Text

45. (1980) 3 WLR 774 : (1981) 1 All ER 417 Return to Text

46. Ibid., at p. 846 (WLR). Return to Text

47. Goodwin v. United Kingdom, (1996) 22 EHRR 123; Camelot Group Plc v. Centaur Communications Ltd., (1998) 1 All ER 251 (CA); O’Mara v. Express, 1998 EMLR 383 Return to Text

48. Such exemptions are contained in: Return to Text

(i) Section 5 of the Bankers’ Books Evidence Act, 1891. Return to Text

(ii) Sections 51-52 of the Divorce Act, 1869. Return to Text

(iii) Sections 121 to 129 of the Evidence Act. Return to Text

49. (2003) 5 SCC 494 Return to Text

50. Ibid., para 3, at p. 497. Return to Text


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