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 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 – S.P Gupta v President of India and ors. , Anjali Bhardwaj and Others v Union of India and Others.
The Right To Information Act, 2005 (hereinafter referred to as “The Act”) was passed by The Parliament of India on 15th June, 2005 and came into force on 12th October, 2005. The Act replaces Freedom of Information Act, 2002. The Act provides the citizens of India the power to request for information from any public authority as per Section 3 of The Act which is to be read with Section 6 of The Act for which there shall be designated Central Public Information Officers/Central Assistant Public Information Officer (CPIO) and State Public Information Officers/State Assistant Public Information officer (SPIO) who shall be responsible for providing the requested information to the person concerned as per Section 7(1) of The Act. In cases, where the CPIO or SPIO are unable to provide any information within thirty days of receiving the request for information the officer shall be deemed to have refused the request as per Section 7(2) of The Act. However, in case the request is rejected the Officer shall provide the reasons under Section 7(8) of The Act for rejecting the request, the period within which the person can appeal against the rejection and the details of the appellate authority which the person can approach regarding the same.
What is interesting to note though that even though The Act empowers citizens by empowering them to hold various authorities accountable and to seek information from authorities on various issues The Act also states that there shall be no obligation on the authority to provide citizens information which can affect the sovereignty and integrity of India, security, strategic, scientific or economic interests of the State or any of the reasons as given under Section 8(1) of The Act. Another reason for rejecting the request of any citizen can also be if the access to such information would lead to an infringement of copyright subsisting with a person other than a State as per Section 9 of The Act. However, if a person’s request is rejected they can always approach the CPIO or SPIO with a request for disclosing the information and then later can approach the Central or State Information Commission under Section 18 of The Act. The person can also appeal against the decision of the CPIO/SPIO to not provide the required information to any officer senior to the CPIO/SPIO after thirty days and can further go in second appeal to the Central Information Commission (CIC) or State Information Commission (SIC) under Section 19(3) of The Act. During appeal proceedings the onus to justify the rejection of request for information by the person shall fall on the concerned information officer(CPIO/SPIO) as per Section 19(5) of The Act. The Act however, isn’t applicable on intelligence and security organisations of the government and the government can amend the second schedule of The Act to include organisations from time to time on which The Act shall not be applicable.
Recently, The Parliament of India passed a bill to amend The RTI Act which has created a furor not just with the opposition parties but also amongst various ex-Central Information Commissioners. The bill amends Sections 13, 16 and 27 of The Act which concerns the appointment, tenure and salary of the various Information Commissioners at State and Central level. Now, what is essential to understand is that the right to information is to be considered as something flowing directly from Article 19(1)(a) of The Constitution of India relating to freedom of speech and expression and hence, by this logic the right to information becomes a fundamental right of citizens as well. This has also been decided by the apex court in 2013, where it held that ” the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of The Constitution of India and thus, the right to information is indisputably a fundamental right”. Various other judgments of the apex court have also arrived at the same conclusion, for instance in the cases of People’s Union for Civil Liberties and ors. v Union of India, State of Uttar Pradesh v Raj Narain, etc.
Now, Fundamental rights have attached to them a positive and negative dimension, while the negative dimension of these rights protect the individual against State interference and the positive dimension of these rights requires the State to protect, respect, promote and fulfil these rights. The Supreme Court can and has tested in many cases whether a law fulfils the State’s positive obligations under part III of the Constitution of India. It is this precise argument which makes the amendments made in The RTI Act unconstitutional as discussed by Gautam Bhatia in one of his blog posts.
While the author wouldn’t wish to impose that the amendment is constitutionally valid or not, this blog post would simply wish to put forth the facts and issues concerned and would wish the reader to make their own opinion based on the background of the issue and the facts which have made it constitutionally controversial. There exists in today’s time heavy backlash against the amendments into The Act which is evident from the statements of various ex- Information Commissioners who have expressed their displeasure at the amendments passed by the Parliament. However, what is important and essential to consider is the fact that the amendment shall definitely hinder the independence and autonomy of the information commissioners who shall think twice before passing any order against the government of the day. Further, the Parliamentary Standing Committee Report on the draft RTI bill, 2004 had also pointed out the fact that the provisions pertaining to the appointment and payment of salary of the information commissioners was an integral part of the RTI Act which ensures that the information commissioners decide every case with full autonomy and independence and with no fear for being critical of the government of the day. In the end, the author would like to point out that yes, while the amendments made to the act are controversial and dilute the provisions and basic objective and purpose of RTI it is equally essential to be suspicious of the control which the government might want to establish over the information commission especially in light of the various vacancies not being filled since a long time now at the Central and State level which is ultimately hindering the working of these commissions.
Constitutional Law and Public Policy 