Right to information: first principles & sound practice
By Arun Jaitley

The constitutional right to freedom of speech and expression is the repository of the right to information — not the 2005 Act, which is an instrument laying down the statutory procedure in the exercise of this right. It follows that all exceptions, exemptions, and denials of the right to information must necessarily conform to Article 19 (2). The Government must drop in its entirety its present proposal to amend the Act.

THE CURRENT debate with regard to the width of the Right to Information (RTI) has thrown up certain interesting issues for an informed national debate. The key question in the current debate evolves around the desirability of making notings on various files public. The Central Information Commission had interpreted the Right to Information Act, 2005 to include a citizen's right to get copies/inspection of file notings containing advices and opinions given by various civil servants. The United Progressive Alliance Government, on the contrary, has argued that this right was never included in the Act and that it is now willing to confer a limited right with regard to social sector expenditure and projects only and not with regard to other areas of governance.

The proponents of the liberal view have argued that information, as defined under the Act, includes opinions and advices and is therefore broad enough to cover file notings. File notings are essentially to understand not merely the fairness of the decision but also the decision-making process. Contrarian viewpoints upon consideration of which the Government decides become clear once the decision-making process is made public. If merely the final decision is conveyed, the rationale and logic behind the decision may not become apparent. Any unfair influence or collateral considerations in decision-making will not be known. The reasons why a more logical point has been overruled will never be known. The right to information will itself be incomplete without notings and observations on various files given by officials being made public. In our system of governance, we expect the civil services to advise the political executive freely and objectively. It will have to be made known why in certain cases this professional advice has not been accepted. Governments are expected to act fairly and rationally. All actions must be informed by reason. Decisions must necessarily be in the public interest and not suffer the vice of arbitrariness.

Supporters of the conservative view, on the other hand, have sought to contend that the original Act never conferred the right to know the notings, advices, and opinions. The proposed amendment reaffirms that position with an exception that decisions relating to various social sectors would now be made more transparent. The civil service has consistently been advising the political executive that since it is under an obligation to advise the political executive correctly and objectively, the prospect of a public gaze on its advice would deter it from taking strong positions on various issues. If bureaucratic notings are to be made public, officials would tend to be non-committal; or at times they would merely place alternative viewpoints before the decision-making authority for its direction. Governance may suffer on this count.

In order to analyse this issue, it is necessary to examine the source of the right to information. Is the source of this right to information merely the Right to Information Act, 2005 — or is it a right that emanates from the constitutional guarantees itself? The Constitution guarantees, under Article 19(1)(a), to every citizen the freedom of speech and expression. The only reasonable restrictions on this fundamental right are those which have a nexus to the interest of sovereignty and integrity of India, the security of the State, friendly relations with various States, public order, decency or morality; or relate to contempt of court, defamation or incitement to an offence. The freedom of speech and expression is a preferred right even among the fundamental rights. Its curtailment cannot be on any generalised public interest but only on grounds laid down by law with nexus to the specific circumstances mentioned in Article 19(2).

In order to exercise the freedom of speech and expression effectively, you need an informed public opinion. The right to knowledge includes the right to information. The right to information thus flows out of freedom of speech and expression. The Right to Information Act, 2005 is not the repository of the right to information. Its repository is the constitutional right to free speech and expression. The Right to Information Act is merely an instrument that lays down the statutory procedure in the exercise of this right. It is, therefore, necessary that all exceptions and denials or exemptions and denials of the right to information must necessarily conform to restrictions that bear a nexus to those mentioned in Article 19 (2) and to none others.

The veteran Socialist leader, Raj Narain, in his election case against Indira Gandhi sought the production of documents dealing with prime ministerial security. The state wanted to withhold the information on the ground of privilege. The Supreme Court observed in 1975: "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."

This chain of thought continued in the Judges Case of 1982 where it was reaffirmed that India could be no exception to the democratic culture of open society: "The concept of an open government is a direct emanation from the right to know which seems to be implicit in the right to speech and expression guaranteed under Article 19(1)(a)." In the Airways case the Court reaffirmed in 1995 that "the freedom of speech and expression includes the right to acquire information and to disseminate it."

Excessive taxation that constitutes an unbearable burden on the right to disseminate information has now been regarded in liberal democracies as "tax on knowledge."

The very essence of the two judgments of the Supreme Court making it mandatory for candidates to disclose certain information while contesting elections are based on a citizen's right to information, which is guaranteed as a derivative right of free speech. The two election cases have set to rest the possibility of any conflicting constitutional opinion. The law declared in India is thus clear. The right to information is now recognised as a necessary component of free expression. It has been elevated to a level of constitutional guarantee. The exercise of this right is through a process which is laid down in the Right to Information Act. Any blanket bar on disclosure of opinions, advices, and notings on the files could run foul of the constitutional guarantees.

It is obvious that the civil service is uncomfortable with the public disclosure of notings. A very large number of political activists, including myself, have at one point of time seen some merit in the argument of the civil service. There may be some rationale in the argument that the civil service as trained presently will resist offering candid advice if such advice is exposed to the public gaze. This could be an administrative argument against openness. At the same time, one cannot ignore the problem that governmental decisions lack the appearance of fairness. At times, they are actuated by collateral and even corrupt considerations. Just as judicial review has been a deterrent against arbitrary decision-making, the prospects of transparency and public gaze will necessarily compel decision-making authorities to record relevant reasons and to ensure that decisions are fair and appear to be fair.

In a society that suffers the curse of both arbitrariness and corruption, sunlight could be the best disinfectant. The advantages of transparency are far too many. Public interest in transparency will override the relative discomfort of the civil service against public disclosure. It is this overweighing public interest that has persuaded media opinion, public opinion, and even parliamentary opinion to scoring in favour of greater transparency. In any case, it may be difficult for the Government with the evolution of constitutional law to contend today that advices and opinions can still be kept as secret.

There is another aspect of the Act that requires reconsideration. Even though the rules under the law require a person claiming the right to documents and opinion to pay for its cost, Section 7(9) exempts the government from providing information that will "divert the resources of public authority." This ground, among others, has been used to deny documents in a recent case relating to making public the documents and correspondence between the Central Bureau of Investigation and the Crown Prosecution Service in London in relation to Ottavio Quattrocchi's case. If the deployment of some manpower and the cost of xeroxing a few pages is going to be cited as a ground for the denial of information, it will render the provisions of Section 7(9) suspect.

The Government would do well to drop altogether its present proposal to amend the Act. Its exercise should be primarily confined to ensuring that the provisions of the existing Act conform entirely to constitutional guarantees.

(The author, a Member of the Rajya Sabha and senior Supreme Court lawyer, is general secretary of the BJP. He is a former Union Minister whose portfolios have included commerce, industry, law, disinvestment, and information & broadcasting.)