CONSTITUIONAL DEVELOPMENTS OF RTI AND JUDICIAL ACTIVISM

Right to know is considered to be as the basic human right. Freedom of information as a part of
freedom of speech and expression has its origin in Article 19 of the UDHR 1, 1948. The Indian
Constitution adopted this principle under Article 19(1)(a) at the time of its inception. Thus Right
to Information is an inherent right under Article 19(1)(a) of the Constitution. In December 1989
Prime Minister V.P.Singh addressed to the nation and declared that right to information shall be
guaranteed through constitutional provisions. In India there are various laws that provide accesss
to information in relation to specific contexts. The Indian Evidence Act,18722 contains, Freedom
of Information Act in brief form‟. This provision requires Public Officials to provide copies of
Public Documents to anyone who has a right to inspect them.” The Factories Act 1948 provides
for compulsory disclosure of information to factory worker “regarding danger including health
hazards and the measures to overcome such hazards”, arising from their exposure to dangerous
materials. The Environment (Protection) Act 1986 and the Environment Impact Assessment
regulations provide for public hearings and publications of the executive summary of any
proposal for any project affecting the environment by the person seeking to executive the project.
It is only if people know how government is functioning that they can fulfil the role which
democracy assigns to them and make democracy a really effective participatory democracy. 3
“Knowledge”, said James Madison, “will forever govern ignorance and a people who mean to be
their own governors must arm themselves with the power that knowledge gives. A popular
government without popular information or the means of obtaining it is but a prologue to a force
or tragedy or perhaps both”. Importance of open government was observed by eminent juristic
mind of the nation, Bhagwati, J. in the following words: “Open government is the new
democratic culture of an open society towards which every liberal democracy is moving and our
country should be no exception”.4

1
Universal Declaration of Human Rights, 1948
2
Section 76 of The Evidence Act, 1872
3
J.N . Baroowala , THE RIGHT TO INFORMATION ACT 2005 5 (2010)
4
S. P Gupta vs. Union of India
In the Constitution of India there is no specific constitutional right to freedom of Information
with the chapters on Fundamental rights and Directive Principles of the State Policy seemingly
silent on the subject. However, through judicial activism, the courts have started carving out this
right in Article 19(1) (a) which confers the right of freedom of speech and expression.5 Freedom
of speech and expression, just as the equality clause and the guarantee of life and liberty, has
been broadly illustrated by the Supreme Court right from the year 1950. It has within its ambit
and scope the freedom of propagation and interchange of ideas, dissemination of information
which would help formation of one’s opinion and view point and debates on matters of public
concern.6 The Apex Court has through a series of decisions vastly expanded the scope of the
right of freedom of speech and expression; to include within its ambit the “Right to Information”.
Though a direction in this regard seems to have begun as early as in 1960 in Hamdard
Dawakhana vs. Union of India7 however, the development of the right to information as a part
of the constitutional law of the country started with petition of the press made to the Supreme
Court for enforcement of certain logistical implications of the right to freedom of speech and
expression such as challenging governmental orders for control of newsprint, bans on
distribution of papers, etc. It was through these cases that the concept of the public right to know
developed. In the case of Bennet Coleman & co.v. Union of India ,8 the petitioner, a publishing
house bringing out one of the leading dailies(Times of India) ,challenged the government’s
Newsprints policy which put restrictions on the acquisition, sale and consumption of news print.
This was challenged as restricting the petitioner’s right to freedom of speech and expression. The
court struck down the news print control order saying it directly affected the petitioner’s right to
publish and circulate the paper. In that it violated their right to freedom of speech and expression.

The judges also remarked: “It is indisputable that by freedom of the Press meant the right of all
citizens to speak, publish and express their views and freedom of Speech expression includes
within its compass the right of all right of all citizens to read and be informed.”

In State of Uttar Pradesh v. Raj Narain and others 9, Supreme Court ruled that the Right to
information is implicit in the right to freedom of speech and expression explicitly guaranteed in
5
Avinash Sharma, “Right to Information: A Constitutional Perspective” (2006) Nyaya Deepp.126.
6
S.P. Gupta vs. union of india ,AIR 1982 SC 149.
7
AIR 1960 SC 554.
8
AIR 1973 SC 106
9
1575 AIR 865. 1975 SCR (3) 333
article 19 of the constitution. In this case the respondent had summoned documents pertaining to
the security arrangements and the expenses therefore then Prime Minister.

In this case the Court ruled: “In a government of responsibility like ours, where all 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 act, everything that
is of speech, though done in a public way by their public functionaries. They are entitled to
know, which is derived from concept of freedom of speech, though not absolute is a factor which
should make one wary secrecy is claimed for transactions, which can at any rate have
repercussion on public security.”

In S.P.Gupta vs Union of India 198210(popularly known as Judge case) , the Supreme Court Of
India ruled that “Where society has chosen to accept democracy as its faith, it is elementary that
the citizens ought to know what their government is doing”. The concept of an open government
is the direct emanation from the right to know under Article 19(1)(a) .Therefore, disclosure of
information in regard functioning of government must be rule and secrecy as much as possible
consistent with the requirement of public interest bearing in mind all time that disclosure also
serve as an important aspect of public interest. It was stated that, “A modern government state
being answerable to the people are entitled to know what policies and programmes, how and why
are being followed by the government. It is essential that powers are exercised foe public good,
not improperly and for the purposes of which the powers are conferred. This objective can be
achieved by access to how the government exercises its power in individual cases. Since the
power tends to corrupt and absolutely, there is a danger that the vast powers available to the
executive may be used not for public, but for private gain, or for corrupt motive. It is therefore
essential for the people to have as much information about governmental is bound to act as a
powerful check on the abuse or misuse of power by the government.”

Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. vs. Union of India 11, This is one of the
most important supreme court judgments on right to information act. Honorable Supreme Court
observed: "The basic purpose of freedom of speech and expression is that all members should be

10
(AIR 1982 SC 149)
11
(1986 AIR 515)
able to form their beliefs and communicate them freely to others. In sum, the fundamental
principle involved here is the people's right to know." The court held that Article 142 of the
Constitution enables the Court in the exercise of its jurisdiction to make such order as is
necessary for doing complete justice in any cause or matter pending before it. The court ordered
that the petitioners and others who are engaged in newspaper business shall make available to the
Government all information necessary to decide the question.” In Sheela Barse vs. State Of
Maharashtra 12, Honorable Supreme Court pointed out that when factual information is collected
as a result of interview the same should usually be cross-checked with the authorities so that a
wrong picture of the situation may not be published. The court noted that as and when
reasonableness of restrictions is disputed it would be a matter for examination and tape-recording
should be subject to special permission of the appropriate authority. The court ordered that
interviews cannot be conducted under forceful circumstances but the willingness of the prisoners
to be interviewed would always be insisted upon. In Reliance Petrochemicals Ltd., vs.
Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and others 13, the Apex court
observed that pending determination of the issues raised, any court will order interim relief to
such applicants by way of grant of such refunds. The court held that the petitioner will be liable
to make any such refund only if it is ultimately decided by this court or any other court that the
issue of debentures is invalid and that the application moneys have to be refunded. The court
ordered that there was no cause for apprehension on the part of the petitioner that the publication
of any such article could abort the debenture issue in the manner it could have done. In Life
14
Insurance Corpn. Of India And Ors.vs. Prof. Manubhai D. Shah Etc. Honorable Supreme
Court observed: "The basic purpose of freedom of speech and expression is that all members
should be able to form their beliefs and communicate them freely to others". The court held that
Doordarshan being a State controlled agency funded by public funds could not have denied
access to the screen to the respondent except on valid grounds. The court accepted the point of
view of the petitioners who submitted that the film faithfully brought out the events that took
place at Bhopal on that fateful night. The court also noted that the respondent cannot be accused
of having distorted the events subsequent to the disaster. The court ordered that Doordarshan
being a State controlled agency funded by public funds could not have denied access to the
12
(JT 1988 (3) 15)
13
(1989 AIR 190)
14
(1993 AIR 171)
screen to the respondent except on valid grounds. The Secretary, Ministry of Information &
Broadcasting vs. Cricket Association of Bengal & Anr. 15Honorable Supreme Court observed in
para 44 as: "The freedom of speech and expression Includes right to acquire information and to
disseminate it. Freedom of speech and expression is necessary, for self-expression which is an
important means of free conscience and self-fulfillment .The right to communicate, therefore,
includes the right to communicate through any media that is available whether print or electronic
or audio-visual such as advertisement, movie, article, speech etc This fundamental right can be
limited only by reasonable restrictions under a law made for the purposes mentioned in article
19(2) of the Constitution". In Shri Dinesh Trivedi, M.P. & Ors. vs Union Of India &
Ors.16Honorable Supreme Court observed: "To ensure the continued participation of the people
in the democratic process, they must kept informed of the vital decisions taken by the
Government and the basis thereof. Democracy, therefore, expects openness and openness is a
concomitant of a free society". that the respondent cannot be accused of having distorted the
events subsequent to the disaster. The court ordered that Doordarshan being a State controlled
agency funded by public funds could not have denied access to the screen to the respondent
except on valid grounds.

More recent and landmark judgements on right to information are also discussed below:

In the case of CBSE Vs. Aditya Bandopadhyay;17the main issue before the Court: Whether an
examinee's (Students) right to information under the RTI Act includes a right to inspect his
evaluated answer books in a public examination or taking certified copies thereof? The
examining body,-CBSE,- had claimed that it held the information in a fiduciary relationship and
hence this was exempt under Section 8 (1) (e) of the RTI Act.

The observations of the Court: Para 18: “Section 22 of RTI Act provides that the provisions of
the said Act will have effect, notwithstanding anything inconsistent therewith contained in any
other law for the time in force. Therefore the provisions of the RTI Act will prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result,
unless the examining body is able to demonstrate that the answer-books fall under the exempted

15
(1995 AIR 1236)
16
(1997) 4 SCC 306
17
(2011) 8 SCC 497
category of information described in clause (e) of section 8(1) of RTI Act, the examining body
will be bound to provide access to an examinee to inspect and take copies of his evaluated
answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the
examining body governing the examinations.” Para 23. “It cannot therefore be said that the
examining body is in a fiduciary relationship either with reference to the examinee who
participates in the examination and whose answer books are evaluated by the examining body.”
Para 26: “The examining bodies contend that even if fiduciary relationship does not exist with
reference to the examinee, it exists with reference to the examiner who evaluates the answer-
books. On a careful examination we find that this contention has no merit.”

Para 37. “Indiscriminate and impractical demands or directions under RTI Act for disclosure of
all and sundry information (unrelated to transparency and accountability in the functioning of
public authorities and eradication of corruption) would be counter-productive as it will adversely
affect the efficiency of the administration and result in the executive getting bogged down with
the non-productive work of collecting and furnishing information. The Act should not be allowed
to be misused or abused, to become a tool to obstruct the national development and integration,
or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted
into a tool of oppression or intimidation of honest officials striving to do their duty. The nation
does not want a scenario where 75% of the staff of public authorities spends 75% of their time in
collecting and furnishing information to applicants instead of discharging their regular duties.The
Court held that: The Court ruled that corrected answer sheets were information which would
have to be provided to students who seek them under RTI.

In Chief Information Commissioner vs. State of Manipur; 18the main issue before the Court:
Whether the Information Commissioner can direct the disclosure of information when a
complaint is made u/s 18 of the RTI Act.

The observations of the Court: Para 36: “This Court accepts the argument of the appellant that
any other construction would render the provision of Section 19(8) of the Act totally redundant.
It is one of the well known canons of interpretation that no statute should be interpreted in such a
manner as to render a part of it redundant or surplusage.” Para 37: “ We are of the view that
Sections 18 and 19 of the Act serve two different purposes and lay down two different
18
AIR 2012 SC 864
procedures and they provide two different remedies. One cannot be a substitute for the other.”
The Court held that: No information can be ordered to be given in complaints made u/s 18 of the
RTI Act.

19
The most crucial judgment in this regard was Namit Sharma vs. Union of India; The issue
before the Court: The Constitutional validity of Sections 12(5), 12(6), 15(5) and 15(6) of RTI
Act, were challenged, which deals with the appointment and qualifications of Information
Commissioners. The Court ruled that all Information Commissions must sit in benches of two,
one of whom should be a retired judge and there should be transparency in the selection of
Commissioners. This judgement would have resulted in the effective disposal rates of all
Commissions being reduced to less than 50% and possibly made it difficult for citizens to
approach Commissions without lawyers. Its immediate impact was that many Commissions
stopped working and backlogs which were already high became unmanageable. The judgement
disrupted the working of some Information Commissions. If implemented it would have dropped
the disposal rate to less than 50% since two Commissioners would have to sit together, one of
whom would have to be a retired judge. Generally retired judges insist on lawyers arguing
matters before them, whereas currently less than 1% of the appellants have a lawyer. This would
have discouraged most ordinary citizens from approaching the Commission. It appears to have
been given without regard to the law. If it had not been reviewed it would have damaged RTI
permanently.

JUDICIAL ACTIVISM AND RTI

The role of courts as givers of justice has been recognised since times immemorial. But this
power of court is primarily rooted in the concept of royal prerogative; where the king for all
practical purposes was the state and the state was the king .The judges exercised the judicial
power of the King, who was the fountainhead of justice. The role of the state, however, became
more complex with the advent of democracy, and expansion of state activities in diverse fields.
In the absence of a unitary command system over the affairs of a nation, political philosophers
found the necessity of defining the functions of different activities of the state in a more

19
WRIT PETITION (CIVIL) NO. 210 of 2012;
structured manner, and the theory of separation of powers propounded by Montesquieu gained
ground. This theory primarily sees the judiciary as interpreter of law in cases of disputes brought
before it, the task of making and enforcing of law vesting primarily in the legislature and the
executives.20 It is in the context of this philosophy which seems to dominate the contemporary
thinking; the role of courts requires re-exploration. This re-exploration becomes all the more
critical and necessary because the common people seek, and expect redressal of their multiple
grievances from the courts of law .This creates a philosophical dilemma for the judges, for if the
old notion of justice is applied, in many cases granting creative relief attracts criticism for
crossing the undefined Lakshmenrekha, and raises the question of legitimacy of exercise of
judicial power itself in those areas. The ground reality is that courts of law in almost the entire
democratic world now are increasingly getting engaged in such issues, and are taking cognizance
of inherent inequalities within the system in their decisions. India is no exception to this global
trend and could claim to be a pioneer of this trend in recent years. But is this approach, which is
often praised and sometimes criticized as “Judicial Activism” being beyond its mandate, or
whether this very role has been envisaged for the judiciary by the Constitution? Honestly, it is
the constitutional mandate that the judiciary plays a compassionate role, particularly on deciding
constitutional issues, and the Constitution itself confers the superior courts with such power and
jurisdiction.An endeavour has been made to provide a simple speedy enforcement procedure
which has been geared up to cope up with and combat the dynamic expansion of government
activities. The Supreme Court (SC) and the High Courts (HC) of India have from time to time
added new dimensions to this fundamental right. It would also be right to say that after right to
life and personal liberty, Article 19(1)(a) has been one of the most luxuriant branch of
fundamental rights.

COMPARISON WITH THE US CONSTITUTION

It is required to stress at the very threshold that the movement of right to information in India
was never aimed to merely ensure an access to the public information. Rather, the aim is create
such favourable conditions so that the right to information can be effectively exercised. It is for

20
Justice Aniruddha Bose : Social Justice and the Constitution – Role of Judiciary as Interpreter of Law or
Dispenser of Justice? (2005) Nyaya Deep ,p.5.
sure that that the Indian Constitution does not contain any specific right to information or even
right to freedom of the press. The Chapter on Fundamental Rights when interpreted broadly
guarantees the right to information as a part of freedom of speech and expression. As pointed out
by H.M. Seervai, “Corruption, nepotism and favouritism have led to the gross abuse of power by
the Executive, which abuse has increasingly come to light partly as a result of investigative
journalism and partly as a result of litigation in the Courts” 21. It is submitted that the provisions
of the two constitutions (US and Indian) as to freedom of speech and expression are essentially
different. The difference being accentuated by provisions in our Constitution for preventive
detention which have no counterpart in the US Constitution.22

21
H.M. SEERVAI, Constitutional Law of India, (4th Edn. Vol. 2), at p. 1096.
22
H.M. SEERVAI, Constitutional Law India, (4th Edn. Vol. 1), at p. 710