Deliverance comes not from electoral forms but informed franchise, not from the mystic authority of franchise but from the enlightened participation of the populace in the public affairs. — Justice Krishna Iyer
Transparency in public administration would go to mean that any citizen of India either has a fundamental right or a statutory right to have access to information about state’s affairs. Furthermore, denial of access to any information to the public by the public authorities, without proper reasons, would be an offence under the law. But would not free access to information threaten national integrity and security?
On similar thinking the Britishers had enacted the Official Secrets Act, 1923, to deter the Indians from empowering themselves through access to information. Unfortunately, the tradition of keeping the official information as secret continued even after independence in the name of national integrity and security. Thereby denying the people the right to know the way they are being governed. No wonder that India is the seventh most corrupt state in the world ranking.
Of late, there has been an increase in demand for transparency in administration due to the increasing interference by the government in the social realm of people. The Supreme Court, recently, gave a constitutional status for the right to know. Yet the bureaucrats are not in a position to allow the public a free access to information because of the Official Secrets Act, 1923. Besides this, section 123 of Indian Evidence Act, 1872, empowers the Executive to withhold its record from production in the court of law. These laws not only encourage corrupt practices but also prevent the corrupt bureaucrats from being exposed to the public.
Undoubtedly, transparency in public administration would empower the people, through information, to question the acts of the state. With transparency as a rule and secrecy an exception the administrators would be more responsible. As a consequence the administration would be more effective and people-friendly.
But to what extent can the people have the right to information? Could such a right override the national interests? Would right to information be accompanied by any duties? What is the forum to hear the violations of such rights? To what extent can the judiciary intervene, through the power of Judicial Review, to secure the right to information? Some of such issues need to be addressed and discussed in length before coming to any conclusion.
Transparency or right to information emanates from the Right to Free Speech and Expression guaranteed under Article 19(l)(a) of the Indian Constitution. There can be no Right to Free Speech and Expression until this right is accompanied by a responsibility to proving what was said or reported. If there is an onus to prove what has been said then access to true information is a must. Thus the need for information arises. Lack of information would ultimately mean a restriction on Right to Free Speech and Expression.
A Liberal Democratic state demands the active and intelligent participation by the public. Democratic process does not end with exercise or franchise. It demands a continuous participation by the people. If active and intelligent participation is necessary then it necessarily follows that the people of the state be well informed about the affairs of the state. Unfortunately, secrecy is the rule and transparency an exception.
When such is the situation, can the people of the state rest?
What guarantee would a citizen of country have that the officers of the state would function in good faith? Mr. Justice Krishna Iyer rightly observed: “Therefore the essential measure to ensure a responsible political order is to grant the right of information without which an intelligent participation is not possible.” In other words, right to information is one of the pillars of a democratic state. Should not such a right be a Fundamental Right?
Right to information, like other Fundamental Rights, is essential for the overall social, economic and political development of a person. Right to information has been a constitutional status by the judgement of Supreme Court in the case State of U.R v Raj Narain, 1975, which 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 few secrets. The people of this country have right to know every public act. The denial of the right to know, which is derived from the concept of freedom of speech and expression, though not absolute, is a factor which should make one worry.”
Nevertheless, the government still sticks to its policy of opaqueness. It is a matter of regret that the government provides for public inspection of documents only after thirty years through Archival Policy Resolution of Government of India, 1972, with several limitations like, the document can only be non-confidential and that they are open only to bona fide research scholars (Ms. Sita Bhatia, Freedom of Press). Added to this practice is the Official Secrets Act, 1923 and section 123 of Indian Evidence Act, 1872. The greatest danger lies in the fact that nowhere in the Official Secrets Act, 1923 is the word secret or official secret defined. As a result, all the documents may be classified as secret even though the situation may not warrant so.
In section 5 of the Official Secrets Act, 1923 there is hardly anything, which can escape its staggering provisions. It has been said that over two thousands differently worded charges can be framed under it. Secondly, this covers all the happens in the government. Thirdly, the Act makes a mere receipt of official information an offence. Fourthly, it relates not only to Civil Servants but to other persons as well.
The Official Secrets Act has thus kept the people in dark about the happenings in the government. If transparency was the rule and secrecy an exception, perhaps, India would not have seen Emergency being imposed in 1975; also scandals and scams would not have been possible. A new section 15 was inserted during 1976 amendment of the Act. The effect of this amendment is that any publication of an official secret by a newspaper would not only make the correspondent, editor, publisher and printer liable to punishment but also every director of the company which owns the newspaper, unless he can prove that the publication was made without his knowledge or that he exercised all due diligence to prevent the commission of the offence. It was against this background that the Janata Government repealed this Act in April 1977,
The Second Press Commission, 1982 has stressed the need for amending the Act and section 5. They are:
(a)Repealing of sections and substituting it by other provisions suited to meet the paramount need if national security and other vital interests of the state as well as the right of the people to know the affairs of the state affecting them.
(b)Restrictions of the operations of section 5 by prescribing the types of information, which needs protection from disclosure.
As regards the safeguarding of individual rights and providing a forum to hear cases involving violation of the right to information, Mr. S.N. Jain had recommended constitution of a committee consisting of Attorney General, a person nominated by the Chairman of the Press Council of India and a person nominated by Chairman of the Bar Council of India without which no person can be prosecuted under section 5 of the Official Secrets Act, 1923. Along with this committee, the judiciary through the power of Judicial Review has been working to safeguard the individuals against the government’s arbitrariness.
The Press, an agent of the public, gathers lot of information and opinions. Thereby they enlighten the masses about the governmental proceedings. The Press along with the Judiciary (through judicial review) can regulate the government from working arbitrarily. Together, they protect people’s rights. Fortunately, for the citizens, the Press and the Judiciary are working in close co-ordination.
Since secrecy is the rule in the Official Secrets Act, 1923, the Press would have to depend on a source of information. If the Press is made to disclose the source of its information it may lead to the drying up of facts because information is given under the pledge of confidentiality (Smt. Sita Bhatia). But can the Press be compelled to disclose the source of information?
Mr. S.N. Jain states that his compulsion may be required by the government for two purposes:
(a) To prosecute the Press for exposing the government secrets.
(b)To file an action against its employees for violating confidentiality.
In the case of Agarwal V.v d, Sharma, 1986, the Delhi High Court stated that there was neither absolute immunity nor absolute obligation, on the part of the journalist, to disclose the source of information. This is found to be a reasonable solution to the problem of disclosure of sources of information and therefore section 15(2) of the Press Council Act, which says that no newspaper, news agency, editorial or journalist shall be compelled by the Council to disclose the source of information, needs to be changed. The logic of the argument is that the Press, like the government, should be accountable to the people for its actions.
The court, through the exercise of judicial review, decides whether a person has committed an offence under the Official Secrets Act or not. Further, it is the court that decides whether the discolure is in public interest or not. But how far can the court determine the question of disclosure in public interest? The answer could be got from section 123 of Indian Evidence Act, 1982, which empowers the Executive to withhold its record from production in the court of law. However, the only justification of the existence of such a privilege is the requirement of public interest.
In State of U.P. v Raj Narain’s case, 1975, the Supreme Court held that the court shall have a residual power to decide whether the disclosure of a document is in the interest of public or not and for the purpose they can inspect a document if necessary, and the assertion of the head of the department that the disclosure would hurt public interest is not final.
Transparency, as we have seen, is the basic tenet of democracy. When ‘the government is of the people, by the people, for the people,’ why should the people be denied the opportunity to know the way they are being governed? “If ‘we the people’ are the final masters and performance auditors of the nation’s administration, the case for free access to all public information argues for itself.” It is ridiculous to grant right to information, which emanates from right to free speech and expression, through Article 19(l)(a) and take away the same by the Official Secrets Act, 1923, is unconstitutional as it denies the citizens right to enjoy free speech and expression meaningfully.
The Press is one of the principal vehicles for supplying information to the citizens. A balance has to be drawn between documents that could be made transparent and those in which secrecy has to be observed. All the Press asks for is nothing more than the right to publish governmental secrets which are of public interest and not to expose India’s military secrets to endanger its national security and integrity. While granting the right to information it is important to made sure that the right to privacy must be maintained.
It would be a pleasure to mention that the Vajpayee government is planning to consider the Right to Information Bill, 1997 in the winter session of the Parliament to ensure freedom of access and to obtain public information for its citizens and for matters connected therewith.