LIMITATIONS OF THE RIGHT TO INFORMATION ACT, 2005

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1 Global Media Journal Indian Edition Winter Issue / December 2010 LIMITATIONS OF THE RIGHT TO INFORMATION ACT, 2005 Priyanka Jana Advocate, Calcutta High Court priyanka_mandal_kol@yahoo.co.in Abstract: Right to information is a basic human right. Article 19 (1) (a) of the Constitution of India contains freedom of speech and expression which echoes Article 19 of the Universal Declaration of Human Rights, Right to information, as a part of freedom of speech and expression, has already been upheld and exhausted in various decided cases. But this right is not an absolute right. Under Article 19 (2) of the Constitution of India, the State can impose reasonable restrictions on it. The Right to Information Act, 2005, has categorically exempted information related to certain public authorities from disclosure. Other statutes like the Official Secrets Act and the Indian Evidence Act contain certain provisions according to which some informations are immune from disclosure. Moreover, it is only the public sector where the Right to Information Act is applicable. Therefore, the Act has limited area of operation. The right to know, on the other hand, was an inherent fundamental right under the Constitution of India. After the enactment of the Right to Information Act, it has become a statutory right. The scope of the right to information as a fundamental right was much wider than that of an ordinary statutory right. The dignity of the right to know has thus been reduced much. Earlier, it was our constitutional fundamental right, now it has become a statutory right. This paper intends to focus on this transformation and explore its implications. 1

2 Key words: Right to information, Article 19(1) (a), statutory right, statutory remedy, self restrictions, public authority Introduction India is a democratic republic state. Here the Government is of the people, by the people and for the people. Therefore the people of our country have the right to know about state affairs. Gone are the days when public dealings were kept in strict secret, a practice which often led to corruption, misuse and abuse of statutory and administrative power. Freedom of information brings openness in the administration which helps to promote transparency in state affairs, keep government more accountable and ultimately reduce corruption. Freedom of information owes its origin in the freedom of speech and expression which is one of the solemn Fundamental Rights under the Constitution of India. It includes the right to know and to be known and the right to impart and receive information regarding the functioning of the government and the state machineries. But so far as private affairs are concerned, the Right to Information Act has no effect. Freedom of information is not absolute. There are reasonable restrictions as imposed by the Constitution, the Act itself, other statutes and of course judicial interpretations on the access to information. But still, it is the most valuable piece of legislation in the hands of the people of India to know about the particulars of the government. During the last decade the public became vocal to get information from the state. In many State Governments enacted The Right to Information Act which is operative in the respective States only. Then the Union Government in the year 2002, passed the Freedom of Information Act. But this central legislation contained many lacunas. Jurists criticized the Act of 2002 because it did not satisfy the aspiration of the citizens; they wanted it to be more progressive, positive, participatory and meaningful. The National Advisory Council recommended certain important changes to ensure greater access to information. The Union Government examined the suggestions made by the National Advisory Council and others and decided to repeal the Act of It then enacted the Right to Information Act, 2005, which is since then considered as a landmark step in the field of Fundamental Right of freedom of speech and expression under Article 19(1) (a) of the Constitution of India. 2

3 Right to Information under the Constitution of India Right to know is considered to be a basic human right. Freedom of information as a part of freedom of speech and expression owes its origin in Article 19 of the Universal Declaration of Human Rights,1948. Article 19(1)(a) of the Constitution of India adopted the principle at the time of its inception. Thus right to information is an inherent right under Article 19(1)(a) of the Constitution. The same has been decided in various cases. In People s Union for Civil Liberties vs Union of India AIR 2004 SC 1442 : (2004) 2 SCC 476, a Division Bench of the Supreme Court of India constituted by Justice S.B.Sinha and Justice B.M.Khare held that 45. Right to Information is a facet of the freedom of speech and expression as contained in Article 19 (1) (a) of the Constitution of India. Right to Information, thus, indisputably is a Fundamental Right. Here it is also recognized that a reasonable restriction on the exercise of the right is always permissible for the security of the state. In State of U.P. vs Raj Narain case (1975) 4 SCC 428, it has been held that 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. In S. P. Gupta vs Union of India (1981) Supp SCC 87, it is observed that to ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the Government. Democracy expects openness and openness is a concomitant of a free society. But in earlier two cases the Apex Court was silent on the relationship between the restriction which should be imposed on the right to know and the reasonable restrictions which are already existing on the freedom of speech and expression under Article 19 (1) (a). In Secretary, Ministry of Information and Broadcasting, Govt. of India vs The Cricket Association of Bengal (1995) 2 SCC 161, the Supreme Court says that freedom of speech and expression includes right to acquire information and disseminate it. It enables people to contribute to debate on social and moral issues. Right to freedom of speech and expression means right 3

4 to education, to inform, to entertain and right to be educated, informed and entertained. Right to telecast is, therefore, within the ambit of Article 19 (1) (a). In Union of India vs Association for Democratic Reforms (2002) 5 SCC 294, the Supreme Court observed that the voters right to know the antecedents of the candidates is based on the broader interpretation of Article 19 (1) (a). The foundation of healthy democracy is to have well informed citizens. Free and fair election is the basic structure of the Constitution and for that, information about the candidates, eg., whether the candidate is literate, what is his asset and liability, whether he is charged with any criminal offence, these must be known to every voter. In Bennet Coleman and Co. vs Union of India AIR 1973 SC 60, the Supreme Court looked at the freedom of press which is within the ambit of Article 19 (1) (a) from another angle. The Constitutional Guarantees for the freedom of speech is not so much for the benefit of press as it is for the benefit of the public. The freedom of speech includes within its compass the right of all citizens to read and be informed. Apart from these leading cases there are many cases where people s right to know and right to information have been upheld. The purpose of discussing all these is to show that we already have right to information as guaranteed by Article 19(1)(a) of the Constitution of India. Moreover, as an extended part of the freedom of speech and expression, the right to know and to be known is our Fundamental right as ensured by Chapter III of the Constitution. As per the Constitution if there is violation of Fundamental Right by the state, the aggrieved person may go to the Supreme Court under Article 32 or to the High Court under Article 226 directly. But after passing of the Right to Information ct, 2005, this Fundamental Right becomes only a statutory right. From Fundamental Right to Statutory Right Under the Right to Information Act, 2005, Central Information Commission and State Information Commission have been set up. These are the supreme appellate authorities to exercise the power conferred on and to perform the functions assigned to under this Act. In all administrative units of the Government there shall be Central Public Information 4

5 Officer or State Public Information Officer as the case may be for providing information to the person requesting under the Act. A person who desires to obtain information shall make a request in writing or through electronic means of communication to the Central Public Information Officer or State Public Information Officer of the concerned public authority along with prescribed fees. The Central Public Information Officer or the State Public Information Officer shall within 30 days of the receipt of such request either provide information to the person or reject the request. If he fails to give any decision it will be presumed that he has refused the request. A person who is not satisfied with the information provided by the Central Public Information Officer or the State Public Information Officer as the case may be or a person who is denied to have any information or whose request is rejected without assigning any reason may prefer an appeal to the officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer. A second appeal may be preferred to the Central Information Commission or the State Information Commission established under the Act. Decision of the Commission is final and binding. Thus a hierarchy has been set up within the public authority and the power of court has been curtailed. Now the court is not entitled to entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question in court. Thus jurisdiction of the court cannot be invoked because there exists a statutory bar under Section 23 of the Act. Now Right to Information has become a statutory right and any person aggrieved with the decision of the Central Public Information Officer or the State Public Information Officer has statutory remedy under the Act. He does not have to knock the door of the court. The scope of Fundamental Right is wider than any statutory right. The Fundamental Right of Chapter III of the Constitution is the basic feature which cannot be altered or taken way by the legislature or executive. But statutory right does not stand in such a solemn position and statutory right is liable to be changed. The Parliament or the State Legislative Assembly may anytime alter such right. Right to Information as a part of Right to Freedom of Speech and Expression as enshrined in Article 19(1)(a) is our 5

6 Fundamental Right. But after passing of the Right to Information Act, 2005, this right has become a statutory right. The dignity of right to know has been much reduced. Restrictions Imposed by the Act The Act itself is self-restrictive in nature. The Act does not make the Right to Information an absolute right but imposes restriction on this right. Section 8(1) of the Act deals with exemption from disclosure of information. The section says that Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court ; (c) information disclosure of which would cause a breach of privilege of Parliament or the State Legislature ; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information ; (e) information available to a person is his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information ; (f) information received in confidence from foreign Government ; (g) information, disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes ; (h) information which would impede the process of investigation or apprehension or prosecution of offenders ; 6

7 (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers ; Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over ; Provided further that those matters which come under the exemptions specified in this section shall not be disclosed ; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information; Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Though in the proviso clause and under Sub-Section (2), (3) of Section 8 again restrict Section 8 (1) to some extent by saying those information which cannot be denied to the Parliament or a state legislature shall not be denied to any person or by giving overriding effect of the Act over the Official Secrets Act, 1923, by saying if public interest in disclosure outweighs the harm to the protected interest, in such case public authority may allow access to information. But this has to be kept in mind that proviso clause of Section 8 (1) and Sub-Sections (2) and (3) are exceptions and exemption from disclosure of certain information as stated earlier is the rule. Section 9 of the Act says that a Central Public Information Officer or a State Public Information Officer may reject a request for information where such a request for providing access to information involves an infringement of copyright subsisting in a person other than the state. Section 24 lays down that the Act has no application to certain organizations. These are the intelligence and security organizations specified in the Second Schedule of the Act, as organizations established by the Central Government. The Act also cannot be applied for certain intelligence and security organizations established by the State Government as that Government may, by notification in the Official Gazette specify. Information pertaining to the allegations of corruption and 7

8 violation of human rights shall not be excluded under this Section. Only one exception is that if the information in respect of violation of human rights is there, after obtaining the approval of Central Information Commission such information shall be provided. The intelligence and security organizations established by the Central Government not under the perview of the Act 1. Intelligence Bureau 2. Research and Analysis wing of the Cabinet Secretariat 3. Directorate of Revenue Intelligence 4. Central Economic Intelligence Bureau 5. Directorate of Enforcement 6. Narcotics Control Bureau 7. Aviation Research Centre 8. Special Frontier Force 9. Border Security Force 10. Central Reserve Police Force 11. Indo-Tibetan Border Police 12. Central Industrial Security Force 13. National Security Guards 14. Assam Rifles 15. Sasastra Seema Bal 16. CID Special Branch, Andaman and Nicober 17. The Crime Branch CID CB, Dadra and Nagar Haveli 18. Special Branch, Lakshadweep Police 19. Special Protection Group 20. Defence Research and Development Organisation 21. Border Road Development Board 22. Financial Intelligence Unit, India 8

9 Other Laws Relating to the Restriction on Communication of Information While discussing other laws relating to the restriction on communication of information, first comes the Constitution of India. The Constitution is the supreme law of the land and any law which ultravires (goes beyond authority) the Constitution or made in violation of it is void abinitio(void from its very beginning). Article 19(1)(a) is the main source of right to information and Article 19(2) puts reasonable restriction on it. It is not wise to make access to information absolute for the security of the state and to maintain tranquility and harmony within the country some facts / information must be kept unpublished. Under Article 19(2), the state is empowered to make any law which imposes reasonable restrictions on such right on the grounds of sovereignty and integrity of India, security of the state, friendly relation with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The All India Service (Conduct) Rules, 1968 prohibits unauthorized communication of information by member of All India Services. Under the Atomic Energy Act,1962 the Central Government is empowered to declare any information as restricted information which cannot be made public or published. The Central Government may by order restrict the disclosure of information relating to atomic plant, mode of operation, substances, mode of acquisition of materials, transaction, purchase, theory, design, construction, research, technology etc. of an atomic plant. Sections 123 to 126 deals with communications of which evidence cannot be given. Section 123 says that no one is permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the head of the department concerned who shall give or withheld such permission as he thinks fit. Under this Act official communication is immune from disclosure. Public officer cannot be compelled to disclose official communication made to him in official confidence, when he thinks that public interest would suffer by such disclosure. Information as to the communication of offence and professional communication are also exempted from disclosure. 9

10 Section 52 of the Competition Act,2002, says that information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission, without the previous permission in writing, shall not be disclosed. In the Bureau of Indian Standard Act, 1986, it has been laid down that any information obtained by an inspecting officer or the Bureau from any statement made or information supplied or any evidence given or from inspection made under the provision of this Act shall be treated as confidential. The Central Civil Services (Conduct) Rules,1964, also prohibits unauthorized communication of information. By virtue of Article 19 (2), the State has made many laws like The Official Secrets Act which prohibits disclosure of official communication and enacted restrictive provisions in other laws on communication of information. In public dealings and state affairs high secrecy was used to be maintained by public officers as part of their duty. Confidentiality remained a condition of public service and violation of it attracts penalty including dismissal. No Right to Information in the Private Sector The Right to Information Act,2005 is applicable in respect of public authorities established, owned or substantially financed by the Central Government, State Government, administration of Union Territories, panchayat, municipality or local bodies. Under Section 2(h) of the Act public authority means any body or institution or authority constituted or established (a) by or under the Constitution of India (b) by any law made by the Parliament (c) by any law made by the State Legislature (d) by any notification issued by the appropriate government and includes (1) body owned, controlled or substantially financed (2) NGOs established,financed (directly or indirectly) by the Government From the above discussion it is clear that the ambit of the Right to Information Act covers only public sector. So far as private sector is concerned like partnership business, private 10

11 companies and factories, multinational companies which have their head offices outside India, NGOs not financed by the government etc. the Act remains silent. Therefore private bodies or authorities are not under obligation to furnish any sort of information if asked for. The Act is operative in the public sector only. The Act has no application in the private sector. Conclusion The Right to Information Act is a social legislation enacted for the benefit of the society at large. It is a special law having some overriding effect on general laws. Though the Act contains restrictive provisions and above all there are reasonable restrictions under the Constitution, we hope the Act will be exploited for the benefit of the society. The Official Secrets Act continued to govern the country for years. There were recommendations for amendment, even repeal of the Act. With the advent of the Right to Information Act, it has been repealed indirectly. Section 22 of the Right to Information Act gives overriding effect on anything inconsistent contained in any other law for the time being in force or in contradictory provisions of the Official Secrets Act. The Right to Information Act, 2005 is a complete code. The public has a fundamental right to know what the government has done or is been doing in its name. The Statute is enacted to make the state affairs more fair, transparent and obviously to check corruption. The Act is a strong weapon in the hands of the media and the press. If they sniff any irregularity or incorrectness in any public dealing they can ask for correct information. The restrictions imposed on such right under the Constitution, the Act itself, any other law and by judicial interpretation seem to be reasonable and strike a good balance between people s right to know and secrecy maintained by the State. References: 1. Shukla T.N. (2007) The Right to Information Act,2005 with W.B. Rules. Kolkata. Kamal Law House 2. Barowalia J.N. (2006) Commentary on The Right to Information Act. Delhi. Universal Law Publishing Co. Pvt. Ltd. 11

12 3. Pandey J.N. (2006) Constitutional Law of India. Allahabad. Central Law Agency 4. People s Union for Civil Liberties vs Union of India AIR 2004 SC 1442 : (2004) 2 SCC State of U.P. vs Raj Narain case (1975) 4 SCC Secretary, Ministry of Information and Broadcasting, Govt. of India vs The Cricket Association of Bengal (1995) 2 SCC S. P. Gupta vs Union of India (1981) Supp SCC Bennet Coleman and Co. vs Union of India AIR 1973 SC Union of India vs Association for Democratic Reforms (2002) 5 SCC