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Right To Information As A Part Of Constitutional Rights: A Critical Analysis
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Right To Information As A Part Of Constitutional Rights: A
Critical Analysis
Authored by - Neelam Jhajharia
INTRODUCTION
The Right to Information,
being an aspect of the right to free speech and expression becomes the constitutional
right and is derived from Article 19(1) (a) of the constitution which
guarantees the fundamental rights to free speech and expression. However, in
this paper the interrelation of Right to Information with other constitutional
provisions is examined under following headings:
•
Preamble and Right to information;
•
Fundamental Rights and Right to information;
•
DPSP and Right to information.
Preamble and Right to information
The Preamble to the Constitution declares -
“WE, THE PEOPLE OF INDIA having
solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR
,DEMOCRATIC REPUBLIC and to secure to all its citizens:
•
JUSTICE, social, economic and
political;
•
LIBERTY of thought, expression,
belief, faith and worship;
•
EQUALITY of status and of
opportunity; and to promote among them all;
•
FRATERNITY, assuring the dignity of
the individual and the unity and integrity of the Nation; and
IN OUR CONSTITUENT ASSEMBLY this
twenty- sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES, THIS CONSTITUTION.”
The fundamental lines of the
Constitution's Preamble express the collective Indian mind on the subject of
the Republic that is being founded. Justice, liberty, equality, fraternity, and
respect for the worth of every person permeate every aspect of life in our
independent and democratic republic. The people of India are the ultimate
arbiters of the Republic's sovereignty. The Republic is a type of governance by
the people, for the people, and based on the principles of democracy. Until the
people of India are given a say in how their Republic is run, the Sovereignty
and democracy would be useless. Lack of knowledge about the problems that
influence one's life and society renders one's right to vote useless. False or
biassed information turns democracy into a farce.[1] The
Indian people serve as guides for the governing bodies that make up the
Republic. The public interest should be the driving force behind these
organisations. The public has a right to know how these institutions work to
ensure that they continue to uphold the public interest. Justification rests on
the assumption that individuals know what they are owed and how to go about
claiming those benefits. In a free society, people are allowed to speak their
minds without fear of retribution. He is entitled to an open forum in which he
can express his views, including those with which the government disagrees.
Beliefs, religion, and worship of the person are not to be founded on fits of
fanaticism but on freely pursued knowledge. Achieving status and opportunity parity
requires that individuals be aware of the means at their disposal for doing so.
Social interaction may foster camaraderie, but this, in turn, calls for
unrestricted communication and open dialogue among people. When people are
allowed to speak their minds freely and are treated with respect by those
around them, the country as a whole is able to keep its dignity.
So, it is clear that the right to
access information is established by the Constitution's Preamble.
Fundamental
Rights and Right to Information
Human Rights in modern
Bharat may be traced back to the Constitution of India, which is a landmark
document in this noble area of law. To have a just social order blossom into
existence in the fullness of time where the feeblest of the Indian fraternity
shall have fulfilment, not frustration, the great vision of our founding
fathers was influenced by the Charter of the United Nations (1945) and the
Universal Declaration of Human Rights (1948). Where people's autonomy and
democracy rule, and the State works to dry every tear it can. The Indian
Constitution's Section III, which outlines the country's Fundamental Rights, is
a manifestation of the founders' lofty ideals. Natural rights have been renamed
as fundamental rights in the modern era.[2]
In Maneka Gandhi Vs. UOI[3],
the Hon’ble Supreme Court stated:
The Hon'ble Supreme Court wrote in the case Maneka Gandhi Vs. UOI :
"The fundamental rights in Part III of the Constitution represent the
basic values cherished by the people of this country since the Vedic times and
they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the
fullest extent. They establish negative responsibilities on the state not to
infringe on individual liberty in its different aspects and create a
"pattern of guarantee" on the foundation of human rights.
Articles in Part III of the Constitution dealing with diverse basic
rights do not reflect fully independent streams of rights that do not overlap
at numerous places," it was also mentioned. The Constitution treats them
as interrelated components. For that massive, uninterrupted flow to occur,
their streams must converge. equality (of status and of opportunity, which
imply absence of unreasonable or unfair discrimination between individuals,
groups, and classes), freedom (not just of thought, expression, belief, faith,
and worship, but also of association, movement, vocation or occupation, and
acquisition and possession of reasonable property), and fraternity (assuring
dignity-of the individual and the unity of the nation).
Hence, 'liberty, equality, and fraternity' serve as the Constitution's
overarching theme throughout Article III, which guarantees fundamental rights.
On November 25th, 1949, in his final remarks to the Constituent Assembly, Dr.
B. R. Ambedkar said:
There is no trinity to be formed out of the ideals of freedom, equality,
and brotherhood. Together, they create a holy trinity, since separating any of
the three would be antithetical to democratic ideals. Freedom and justice go
hand in hand; you can't have one without the other. Freedom, equality, and justice
are meaningless without brotherhood. Liberty would lead to the dominance of the
few at the expense of the many if equality were not guaranteed. Without
freedom, equality would be destructive to initiative.”[4]
Right to equality under Article 14 of
the Constitution aiding the Right to information
Equality is one of the magnificent corner-stones of Indian democracy[5].
It is a basic structure of the Constitution of India. Article 14 of the
Constitution lays that –
“The state shall not deny to any
person equality before the law or the equal protection of the law within the
territory of India.”
Article 14 strikes at arbitrariness in executive/administrative action
because any action that is arbitrary must necessarily involve the negation of equality.
Every action of the state must be informed by reasons and guided by public
interest. Actions uninformed by reason may be questioned as arbitrary. It
follows, therefore, that every party affected by the decision has the right to
be informed of the reasons for the same.
Further, with a view to control arbitrary action, the Courts have
insisted upon the right of hearing before passing of administrative orders. In Maneka Gandhi’s case[6],
the Court held that –
“Even executive authorities when taking administrative action which
involves any deprivation of or restriction on inherent fundamental rights of
citizens must take care to see that justice is not only done but manifestly
appears to be done. They have a duty to proceed in a way which is free from even
the appearance of arbitrariness, unreasonableness or unfairness. They have to
act in a manner which is patently impartial and meets the requirements of
natural justice”
In Haji Abdool Shakoor & Co.
Vs. UOI[7],
it was held that –
“An order depriving a person of his
civil right passed without affording him of an opportunity of being heard
suffers from the vice of violation of natural justice and is thus an arbitrary
order.”
The right of impartial hearing again presupposes that the concerned party
is informed of all the facts and issues that form the subject of enquiry.
Freedom of speech and expression guaranteed under Article 19 (1) (a) as
the essence of Right to Information
The right to freedom of speech and
expression has been regarded as a ‘basic human right’, ‘a natural right’. In “Civil
Liberties & Human Rights” authored by David Feldman, the justification for freedom of expression has been
stated in the following words -
“The liberty to express one’s self freely is important for a number of
reasons. Firstly, self-expression is a significant instrument of freedom of
conscience and self-fulfillment. Second justification concerns epistemology.
Freedom of expression enables people to contribute to debates about social and
moral values. The best way to find the best or truest theory or model of
anything is to permit the widest possible range of ideas to circulate. Thirdly,
the freedom of expression allows political discourse which is necessary in any
country which aspires to democracy. And lastly, it facilitates artistic
scholarly endeavors of all sorts.”[8]
The cornerstone of a democratic
society is the right to freely express oneself. Democracy refers to a form of
government in which power is vested in the hands of the governed. Until the
people are educated about the social, political, economic, and other concerns
they face, they will not be able to rule themselves effectively. They need
access to many perspectives on the topics at hand so that they may reach an
informed decision. To make an educated decision on such topics, to know what is
in their actual interest and to preserve the same, they must have access to a
wide range of perspectives, views, and ideas.
When we talk about free speech, we're
talking about the right to spread ideas, to have conversations about
controversial topics, and to challenge those views and those who hold them.
The freedom of expression and
expression itself are regarded as fundamental human rights on a global scale.
"Freedom of information is a basic human right and... the touchstone of
all the freedoms to which the United Nations is committed," the UN General
Assembly stated at its very first session in 1946.”[9]
In the Constitution of our democratic
Republic, among the fundamental freedoms, freedom of speech and expression
shines radiantly in the firmament of Part III. Article 19 (1) (a) of the
Constitution guarantees that
“All citizens shall have the right to freedom of speech and expression”
Speaking about the significance of
freedom of speech and expression, in Maneka
Gandhi Vs. Union of India[10],
BHAGWATI J. stated -
“Democracy is based essentially on free debate and open discussion, for
that is the only corrective of government action in a democratic set up. If
democracy means government of the people, by the people, it is obvious that
every citizen must be entitled to participate in the democratic process and in
order to enable him to intelligently exercise his right of making a choice,
free and general discussion of public matters is absolutely essential”
Over the years, the Courts in India
have authoritatively interpreted the freedom of free speech and expression to
ensure and protect the fundamental rights of the citizens from encroachment in
various situations as also to guard against an unfettered freedom.
In Bennett Coleman & Co. &
Ors. Vs. Union of India & Ors.[11],
the Court held -
“Although Art. 19(1) (a) does not mention the freedom of the Press, it is
the settled view of this Court that freedom of speech and expression includes
freedom of the Press and circulation. The Press has the right of free
propagation and free circulation without any previous restraint on
publication.”
Underlining the importance of the
freedom of press in democratic society, the Court, in Indian Express Newspapers (Bombay) Private Limited & Ors. Vs. Union
of India & Ors.[12],
stated that-
‘Freedom of press is the heart of social and political. Intercourse……The
purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible
judgments…..’
It was observed that –
‘The public interest in freedom of discussion (of which the freedom of
the press is one aspect) stems from the requirement that members of a
democratic society should be sufficiently informed that they may influence
intelligently the decisions which may affect ’themselves’.
A very important aspect of ‘freedom of speech and expression’ is
seen in the judicial exposition of its scope by the Courts recognizing the
right to know as part of thereof. In its various judicial pronouncements, the
Hon’ble Supreme Court has interpreted and held the freedom of speech as
involving not only communication, but also receipt, of information and that the
right to receive information springs from the right to freedom of speech and
expression. The Court has time and again recognized the right to know as a
basic right of the citizens of a free country and added multiple dimensions to
it.
In State of U.P. V. Raj Narain[13],
MATHEW J. observed -
“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. 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
transactions which can, at any rate, have no repercussion on public security…
They (the public) are entitled to know the particulars of every public
transaction in all its bearing. 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 transactions which can, at any rate,
have no repercussion on public security. To cover with veil of secrecy, the
common routine business is not in the interest of the public. Such secrecy can
seldom be legitimately desired. It is generally desired for the purpose of
parties and politics or personal self-interest or bureaucratic routine. The
responsibility of officials to explain or to justify their acts is the chief
safeguard against oppression and corruption”.
In S. P. Gupta V. Union of India[14],
BHAGWATI J. 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 an
exception……No democratic Government can survive without accountability and the
basic postulate of accountability is that the people should have information about
the functioning of the Government. It is only when people known how Government
is functioning that they can fulfill the role which democracy assigns to them
and make democracy a really effective participatory democracy….”
The above two decisions are regarded
as landmarks in the judicial discourse of right to information to its present
form. The later decisions of the Court fortified the legal and constitutional
status of this right, which grew from strength to strength in every case and
finally in the case of People’s Union of
Civil Liberties & Anr. V. Union of India & Ors.[15]
, it was clearly held to be a fundamental right. The said various decisions
have already been dealt in detail in chapter II and clearly establish the right
to information as an important facet of the right to freedom of speech and
expression guaranteed under Article 19 (1) (a) of the Constitution.
Fundamental right to life and personal liberty under Article 21 promotes right
to information.
Article 21 assures to every person the right to life and personal
liberty. It lays down that –
“No person shall be deprived of his
life or personal liberty except according to procedure established by law.”
Article 21 is regarded as the heart of fundamental rights[16].
According to BHAGWATI J., Article 21
“embodies a constitutional value of
supreme importance in a democratic society.”[17]
Iyer J., has characterized Aricle 21
as “the procedural magna carta protective
of life and liberty.”[18]
Aricle 21 uses three crucial expressions, viz. ‘life’, ‘personal liberty’
and ‘procedure’.
In Chameli Singh Vs. State of Uttar
Pradesh[19],
the Hon’ble Court observed -
“In any organized society, right to
live as a human being is not ensured by meeting only the animal needs of man.
It is secured only when he is assured of all facilities to develop himself and
is freed from restrictions which inhibit his growth. All human rights are
designed to achieve this object. Right to live guaranteed in any civilized
society implies the right to food, water, decent environment, education,
medical care and shelter. These are basic human rights known to any civilized
society…”
The expression ‘’personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights, which go to constitute the
personal liberty of man.[20]
It includes the right of a detenu to socialize with family members and friends
as well as to have interviews with friends.[21]
As is clear from the above judgments,
the matrix of right to live and personal liberty, invariably, includes all
that, which is necessary for a just human existence, viz. the right to
expression of the human self, social interaction and education, the right to
live with human dignity, the right to food, clean water, shelter, decent
environment all presuppose a flow of
information necessary to make a person aware about the various entitlements
and enables him to realize the same. This
is where the right to information becomes relevant.
The judgment of the Hon’ble Supreme
Court in the case of Reliance
Petrochemicals Ltd. V. Indian Express Newspapers[22], is pertinent in the above
regards. The case is related to the issue of freedom of press and fair trial.
The Court interpreted the right as within the realm of right to live under
Article 21. It observed -
“We must remember that the people at large have a right to know in order to be able to take part in a participatory
development in the industrial life and democracy. Right to Know is a basic
right which citizens of a free country aspire in the broader horizon of the
right to live in this age in our land under Article 21 of our Constitution.
That right has reached new dimensions and urgency. That right puts greater
responsibility upon those who take upon the responsibility to inform.”
Article 21 envisages a fair trial, a fair procedure and a fair
investigation,[23]
which again presupposes that the accused must be fully informed of the case against
him, the reasons of his indictment and the fundamental and statutory rights to
his avail. Thus, we see that the right to information is a necessary corollary
to the right to live and personal liberty.
Right to information in Article 22 of
the Constitution
Article 22 provides for protection against arrest and detention in
certain cases and gives right to information to detained persons. Article 22(1)
lays that –
“No person who is arrested shall be
detained in custody without being informed, as soon as may be of grounds for
such arrest nor shall he be denied the right to consult, and to be defended by
a legal practitioner of his choice.”
Article 22(5) lays that –
“When any person is detained in
pursuance of an order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.”
Right to constitutional remedies
under Article 32 of the Constitution safeguarding the right to information.
Article 32(1) guarantees the right to move the Supreme Court, by
appropriate proceedings, for the enforcement of the fundamental rights
enumerated in the Constitution. Underlining the significance of Article 32, GAJENDRAGADKAR J., observed[24]
that –
“The Fundamental Right to move to
this Court can therefore be appropriately described as the cornerstone of the
democratic edifice raised by the Constitution. That is why it is natural that
this Court should regard itself ‘as the protector and guarantor of Fundamental
Rights’ and should declare that “it cannot, consistently with the
responsibility laid upon it, refuse to entertain applications seeking
protection against infringements of such rights….In discharging the duties
assigned to it, this Court has to play the role of ‘sentinel on the qui vive’
and it must always regard it as its solemn duty to protect the said Fundamental
Rights ‘zealously and vigilantly’.”
So far as regards the relationship between Article 32
and right to information is concerned, it is very obvious that the Supreme
Court has elevated the right to information to the status of fundamental right
as such in cases of violation of such right a person can have recourse to the
Supreme Court under Article 32.
Further, it is settled that in cases where the action taken by a
quasi-judicial body is procedurally ultra vires, for example, when principles
of natural justice are infringed[25]
as for instance it fails to inform the person against whom an order to his
prejudice may be passed about the charges against him or fails to give the
reasons for the decision arrived at against him, in such cases, the person
aggrieved can take recourse to Supreme Court under Article 32 against the same.
Thus Article 32 acts as the savior of the right to information.
Directive
Principles of State Policy and right to information
A very relevant aspect of the right to information can be seen as
reflecting in the directive principles of state policy enshrined in Article 51
in Part IV of the Constitution, which lays as under –
“Promotion of
international Peace and Security.- The State shall endeavor to—
a)
promote international peace and
security;
b)
maintain just and honorable relations
between nations;
c)
foster respect for international law
and treaty obligations in the dealings of organized people with one another;
and
d)
encourage settlement of international
dispute by arbitration.”
Now, India is a signatory to the Universal Declaration of Human Rights
(‘UDHR’), 1948. Article 19 of UDHR lays that –
“Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.”
As a party to these obligations, India is under an international
obligation to effectively guarantee the right to information. Article 51 (c)
directs the State to foster respect for international laws and treaty
obligations. This casts a duty upon the Government of India to create suitable
conditions to implement international laws and obligations with respect to the
right to information in conformity with Article 19 of the UDHR.
Conclusion
The right to information is grounded on other
constitutional articles such as Articles 14, 21, 22, 32, and 51, even though it
is derived from Article 19(1)(a) of the constitution, which guarantees the
basic rights to free speech and expression. The Supreme Court has often upheld
this in a wide range of circumstances.
[2] Golak Nath Vs. State of Punjab,
AIR 1963 Sc 1643
[4]
PREAMBLE, The Spirit and Backbone of the
Constitution of India, Justice R. C. Lahoti, First Ed. Eastern Book Company,
Lucknow, 2004, Page 94
[6] Supra, 7.
[8] Quoted
in Secretary, Ministry of Information & Broadcasting Vs. Cricket
Association of Bengal & Anr. 1995 AIR 1236
[22] AIR 1989 SC 190
Article Information
Right To Information As A Part Of Constitutional Rights: A Critical Analysis
Authors: Neelam Jhajharia
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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