RTI and Judicial Activism

Constitutional Law Democracy and Rule of Law Freedom of Speech Fundamental Rights
Governance Right to Information Supreme Court and High Court Rules for RTI
Supreme Court has recently delivered a judgment in Chief Information Commissioner v. High
Court of Gujarat and another on 4 March 2020. It is likely to have a very negative implication on
the citizen’s fundamental right to information (RTI). The court has ruled that if a citizen wants
copies of judicial proceedings, s/he cannot get it by asking for it in RTI.

The Supreme Court of India and all the High Courts have certain rules for conducting their
proceedings. Most of them have had a rule stating that parties in a suit may get copies relating
to their case. However, those who are not parties to the suit may obtain these if they give an
affidavit stating their reasons for seeking this information. If the Court was satisfied with the
reasons for seeking information, it would provide it.

This violates the basic premise that all information in government belongs to the citizens and
they have a right to access it.

RTI has been accepted as a fundamental right of citizens under Article 19 (1)(a). This covers the
right to free speech, right to publish and right to information. A citizen does not have to give
reasons for exercising any of these, and some reasonable restrictions on all these can be
imposed on these as laid down in Article 19 (2).

In line with this, the Right to Information Act, 2005 (RTI Act) has specific exemptions under
Section 8 and only these exemptions could be used to deny information to a citizen. To ensure
that other laws and constraints could not be used to deny information to the rulers of democracy
the citizens parliament provided a non-obstante clause in Section 22: ‘The provisions of this Act
shall have effect notwithstanding anything inconsistent therewith contained in the Official
Secrets Act, 1923, and any other law for the time being in force or in any instrument having
effect by virtue of any law other than this Act.’

This clearly means that the RTI Act will prevail over all laws and rules, including the Official
Secrets Act, 1923 as far as providing information in RTI is concerned. It does not mean that the
Official Secrets Act, 1923 or other acts are repealed. When a request for information is filed
under the RTI Act, it can be denied only if the provisions of the RTI Act provide for an
exemption.

The judgment of the apex court does not clearly identify how it has concluded that the Supreme
Court and the High Courts rules are not inconsistent with the RTI Act. Instead, the court has
concluded that if any law or rule provides for providing information, it would be held to be
consistent with the RTI Act. This is clearly erroneous. The court should have noted the following
inconsistency of the court rules:-
In the RTI Act, no locus is required, whereas the Court rules differentiate those with locus RTI
clearly states that no reasons can be sought for seeking information, while the court rules
require filing an affidavit giving reasons for those who are not a party
The information may not be provided by the court if ‘good cause’ is not shown. In RTI
information may be denied only if it falls in the exemptions in Section 8 or 9
There is no appeal process to an independent Information Commission in the Court rules.
This ruling could subvert the RTI Act very seriously. Various public authorities could make the
RTI Act irrelevant by creating their own rules for giving information. This ruling also violates a
basic premise that if there is more than one route for an activity, it is the citizen’s choice to
choose the route.

It is worth noting that the Supreme Court in Commissioner of Income Tax Gujarat v. A. Raman &
Company, which was upheld in Commissioner of Income Tax v. Calcutta Discount Co. Ltd. and
subsequently in Union of India and Anr. v. Azadi Bachao Andolan and Anr., observed as follows:

“… Avoiding of tax liability by so arranging commercial affairs that charge of tax is distributed is
not prohibited. A tax payer may resort to a device to divert the income before it accrues or
arises to him. Effectiveness of the device depends not upon considerations of morality, but on
the operation of the Income Tax Act. Legislative injunction in taxing statutes may not, except on
peril of penalty, be violated, but it may be lawfully circumvented…” (Emphasis Added)

Therefore, even when the state may lose revenue, the apex court has ruled that an individual
taxpayer has the liberty to arrange her commercial affairs in order to reduce her tax liability, so
long as such arrangement is within the operation of legislation.

Drawing an analogy, it certainly stands to reason that a citizen should be able to decide on the
method most convenient and expedient by which she wants to obtain information.

The apex court, on various occasions, has ruled that it is incumbent on public sector institutions
to be model employers following all laws in letter and spirit. It is humbly submitted that the
Supreme Court should become a role model in implementation of the provisions of the Right to
Information Act, 2005 in its true letter and spirit and inspire all public authorities to follow its lead
in transparency.

This would certainly enable better delivery of the citizen’s fundamental right to information. The
apex court has consistently widened the scope of Article 19 (1)(a) for freedom to speak and
publish. We hope it will not treat RTI inconsistently.

ROLE OF SC IN THE CREATION OF "RIGHT" TO

INFORMATION
The Supreme Court in particular and the judiciary in general has contributed to the beneficial
interpretation of the various rights guaranteed under the Constitution of India. It is rightly said
that the right to information as now made available under the Right to Information Act, (RTI)
2005 is the result of favourable interpretation of legal regulation for the welfare of people and
good governance of the country by the judiciary. While the weapon of secrecy was used by the
executive in governance to defeat the rightful claims of the governed, the judiciary destroyed
this weapon in favour of an open, democratic and welfare form of governance. Article 19 in the
constitution of India can said to be the mother of the 'right to know' and article 19(1) (a) is the
womb. In essence the right to information is a human right as declared by the UDHR, 1948.

ROLE OF JUDICIARY IN THE CREATION OF "RIGHT" TO

INFORMATION

There is no doubt that the judiciary in India, especially the Supreme Court of India, over the last
several decades since the enactment of the Constitution, has contributed to the interpretation,
creation and enforcement of several rights for the welfare of the citizens of India. Many
landmark judgments have corrected the lapses of the legislature and the executive in India. The
entire human rights jurisprudence in India is the contribution of the Supreme Court.

The creation of the 'right' by the Supreme Court may be traced back to its judgment in State of
U.P v Raj Narain { (1975) 4 SCC 428}. In its judgment the court stated, " 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 transaction which can, at any rate, have no
repercussion on public security." Further, it stated, "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".

Thus, it was made clear by the court that a citizen has a right to receive information and that
right is derived from the concept of freedom of speech and expression comprised in Article
19(1) (a).

The right to know was concretized by the Supreme Court in its decision in S.P.Gupta v. Union of
India (1981) Suppl. SCC pg 87. While dealing with the issue of High Court Judges' transfer, the
Court 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 and exception..."

The emphasis on right to know was stated in the following words, "No democratic government
can survive without accountability and the basic postulate of accountability is the that the people
should have information about the functioning of the government. It is only when people know
how the government is functioning that they can fulfill the role which democracy assigns to them
and make democracy a really effective participatory."
From the above it can be stated that, the link between the citizens' right to know and
government accountability was firmly established.

In R.P.Limited v Indian Express Newspapers (AIR 1989 SC190) the Supreme Court read into
Article 21 the right to know.
The Supreme Court held that right to know is a necessary ingredient of participatory democracy.
In view of transnational developments when distances are shrinking, international
communities are coming together for cooperation in various spheres and they are moving
towards global perspective in various fields including Human Rights, the expression "liberty"
must receive an expanded meaning. The expression cannot be limited to mere absence of
bodily restraint. It is wide enough to expand to full range of rights including right to hold a
particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that
opinion it becomes necessary to receive information. Article 21 confers on all persons a right to
know which include a right to receive information. The ambit and scope of Article 21 is much
wider as compared to Article 19(1) (a).

The following observations of the Supreme Court in Dinesh Trivedi v. Union of India {(1997) 4
SCC 306) are quite pertinent on the creation of the right to information, "In modern
Constitutional democracies, it is axiomatic that the citizens have a right to kno about the affairs
of the government f which, having been elected by them, seeks to formulate sound policies of
governance aimed at their welfare. However, like all other rights, evn this right has recognized
limitations; it is, by no means, absolute." In this the propostion expressed in Raj 11 Narain's
case was quoted with approval.

The next decision which deserves reference is the case of Secretary, Ministry of I & B v. Cricket
Association of Bengal {(1995) 2 SCC pg 161). While dealing with issue of right to get an event
telecast through an agency of his choice whether national or foreign, the court has said that,
The right to impart and receive information is a species of the right of freedom of speech and
expression guaranteed by Article 19 (1) (a) of the Constitution. A citizen has fundamental right
to use the best means of imparting and receive information and as such to have an access to
telecasting for the purpose. However, this right to have an access to telecasting has limitations
on account of the use of the public property..."

In another epoch making judgment the Supreme Court of d Indian in the case of Union of India
v. Association for е, Democratic Reforms, [3] case recognized that a voter has a e right to know
about the antecedents and past performance of the candidate at an election. Such information
would include assets held by the candidate, his qualification including educational qualification
and antecedents of his life including whether he was involved in a criminal case and if the case
is decided, its result, if pending -whether charge has been framed or cognizance has been
taken by the court. There is no necessity of suppressing the relevant facts from the voters. It is
relevant to mention here that the right to information
evolved by the Court in the above discussed case is qualitatively different from the right to get
information about public affairs. The right to information about a candidate an election cannot
materialize without the Government's intervention.

SIGNIFICANCE OF RIGHT TO INFORMATION ACT. 2005

India's new Right to Information Act is the outcome of the consistent inroads made by the
judiciary in India into the secrecy clause covering the layers of administration. The preamble of
the law on Right of Information states that it sets out the practical regime of right to information
for citizens to secure access to information under the control of public authorities, in order to
promote transparency and accountability in the working of every public authority. It has emerged
as a powerful tool for India's civil society to promote transparency and hold those in power
accountable. Ordinary citizens have taken up their battle against government officials. Various
cases of corruption, nepotism, biased decision making have been exposed. As a result of the
law, the government has come with various schemes and polices to keep the citizens informed
about the various activities empowering citizen's participation in governance.

CONCLUSION

From the above discussion of the various cases decided by the Supreme Court of India it may
be concluded that the Judiciary has played a proactive role in the creation of 'right' to
information which ultimately led the enactment of law tilted Right to Information Act, 2005. In
less than ten years of its existence the law has benefited the citizens in espousing their cause
and exposing cases of mala-administration in governance.