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Right to Information - The Current Legal Status

A Democracy is popularly defined as a Government of the people, by the people and for the people. This was the definition given by Abraham Lincoln, former President of the United States of America, in one of his speeches.[1] This definition points to a form of Government where people select who will represent them and these representatives must work for the welfare of the people. When people themselves have such a big role to play in the functioning of the Government, it should be well known that they have a right to know about the affairs of the Government, and secrets should not be kept from the people, unless required.

This Right to know helps to keep a check on the Government and ensures the absence of any maladministration.[2] If this Right to Know is taken away from the people, it would be a direct form of disempowerment.[3] Thus, the Right to Information is extremely important for the proper functioning of a democracy and this has even been appreciated by the Courts in India.

Right To Information Under Constitutional Law

The Hon’ble Supreme Court of India through various judgments has interpreted the right to freedom of speech and expression as given under Article 19(1)(a) of the Constitution of India[4] to include the right to form and express opinions as well. One such case is that of Indian Express Newspapers (Bombay) Pvt. Ltd v. Union of India[5], where it was held that the ability to form opinions and communicate them freely is the basic purpose of the right to freedom of speech and expression.

It is only a matter of common sense to say that the formation of a valid opinion is based on some information. This would mean that, for an opinion to be formed about the Government or any of its actions, proper information must be provided about the same. Justice Mathew, in the landmark judgment of State of U.P v. Raj Narain[6], held that in a democracy, all agents of the public are responsible for their conduct, and there can’t be too many secrets.

It was held that the people have a right to know everything about any public act, done through any of its functionaries. This right is derived out of the right to freedom of speech and expression and only that information can be a secret which may pose a threat to public security. Even after this judgment, the legislature failed to enact a legislation giving force to the same.

After the judgment delivered in the above case, the Right to Information was upheld in a plethora of judgments delivered by the apex court. In S.P. Gupta v. Union of India[7], known better as the Judges Transfer Case, it was held that disclosure of information about appointment of judges had to be done in order to respect the Right to Information implicit in the right to freedom of speech and expression.

The Apex Court in Union of India v. Association for Democratic Reforms[8], it was held that voters had the right to know about the criminal background of any candidate, as this is essential to free and fair elections.

Further, in the case of Essar Oil Ltd v. Halar Utkarsh Samiti[9], a PIL filed in order to obtain information about the basis of permission granted for a pipeline being constructed through a wildlife sanctuary, it was held that the Right to Information was also implicit in the Right to Life and Personal Liberty as guaranteed under Article 21[10] of the Constitution of India. This is because, a secret government decision could greatly affect the lives and livelihood of the people.

Thus, it is clear that the Courts advocate the right to information, and continued to do so for a very long time, even without a legislation describing the terms of such a right.

The Right To Information Act, 2005

The preamble of the Act states that the very purpose of the Act is to promote transparency and accountability in the functioning of the democratic Government, by providing the citizens the right to secure access to information about the functioning of public authorities, and establishment of Central and State Information Commissions for the same.

Section 4 of the Act[11] provides that it is the duty of public authorities to maintain records of its functioning and make it easily accessible to the people. Section 6[12] and 7[13] give out the procedure to obtain such information.

Section 8 of the Act[14] gives out the information exempt from the provisions of the Act. This is where interpretation of the statute plays a big role. These exemptions are subject to the public interest test.

In CBSE v. Aditya Bandopadhyay[15], the main issue before the court related to right to evaluate answer books after giving a public examination. CBSE contended that this was not required in fiduciary relationship as under Section 8(1)(e) of the Act. It was held that corrected answer sheets must be provided under RTI.

In the case of RK Jain v. Union of India[16], the information requested was inspection of adverse confidential remarks against ‘integrity’ of a member of tribunal and follow-up actions taken on issue of integrity. The exemption was claimed on the basis of Section 8(1)(j).

The Court interpreted Section 11 of the Act as an exemption to give information when it is considered confidential by a third party, while it only gives the procedure to inform the third party before giving out such information. This may be possible even if the third party denies it, if the information pertains to larger public interest.

Thus, various loopholes have been found in RTI Act, 2005 that may be exploited and misused. Interpretation of the Statute plays a very big role here, as this legislation directly related to a fundamental right guaranteed by the Constitution of India.

[3] Ibid.
[4] Article 19(1)(a), the Constitution of India
[5]Indian Express Newspapers (Bombay) Pvt. Ltd v. Union of India, (1985) 1 SCC 641
[6] State of U.P v. Raj Narain, AIR 1975 SC 865
[7] S.P. Gupta v. Union of India, AIR 1982 SC 149
[8] Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112
[9] Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834
[10] Article 21, the Constitution of India
[11] Section 4, Right to Information Act, 2005
[12] Section 6, Right to Information Act, 2005
[13] Section 7, Right to Information Act, 2005
[14] Section 8, Right to Information Act, 2005
[15] CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497
[16] RK Jain v. Union of India, (2013) 10 SC 430

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