Some aspects of the Right to Information
The right to information, as such, has come to be talked about only in recent times. It is however no newfangled concept. It has been there all the time. - though in other forms.
The right of an accused to know the particulars of the charge against him is one form. It is recognised even in the holy Bible. When God almighty wanted to expel Adam and Eve from the Garden of Eden. He first informed them of the charge. The right to due notice is thus a basic-principle of natural justice.
In the field of enforcement of laws it was stated as early as in Harla v. The State of Rajasthan. (AIR 1951 SC 467) by eminent Justice Vivian Bose that "natural justice requires that before u law can become operative it must be published".
Again, in B.K. Srinivasan v. The State of Karnataka. AIR 1987 SC 1059, it was held that "where a law demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made by various processes.......................Delegated or subordinate legislation is all pervasive............... But unlike parliamentary legislation which is publicly made, delegated legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is therefore necessary that subordinate legislation, in order to take effect, must be published in some suitable manner, whether such publication is prescribed by the parent statute or not".
Obviously, a rule or regulation or G.O. which though signed by the competent authority if remains hidden on the shelves of the Secretariat or in the drawers of the functionary cannot be complied with by the citizen.
It is notorious that copies of the official gazette are generally not available even in Government offices, including the Secretariat, after months of their date line. And yet the maxim is that every citizen is presumed to know the law. The maxim should therefore be applied subject to the qualification of proper publication. Government must be compelled to promulgate all information pertaining of laws affecting the public through the mass media and to ensure that authentic copies of the laws are readily accessible and available. As observed by Justice Bharucha in Pradesh Pong Bandh Visthapit Samiti v. Union of India. AIR 1996 SC 3445. it is absurd and unrealistic to expect that agriculturists would read a notice published in the gazette. The Court directed notices to be published in the local language in news pappers having wide circulation in the areas where the persons concerned resided.
Crores of rupees arc wasted every year by the Central and Stale Governments on publication, in the newspapers, of huge advertisements of this inauguration or that foundation laying ceremony, carrying photographs of ministers and Governors and so on. With the same money all important rules and regulations and orders made thereunder could be published in the media for general information.
In order to ensure the confidence of the public in the fair administration of justice it is required that Courts should be open. This is of course subject to the normal exceptions such as the requirements of the maintenance of order and decorum in the Court room, the preservation of official or trade secrets, the protection of women and children in matters affecting their privacy or modesty.
Judges of the Supreme Court and the High Courts often make tentative observations during the hearing of cases. Reports of hearings in cases affecting the high and mighty are avidly read even by the lay public. Sometimes Judges complain that press reporters, either through insufficient understanding or for sensationalising a remark, distort their observations or quote them out of context. It is for consideration whether selected hearings in important cases could not be televised. After all Parliamentary proceedings too were not allowed to be photographed until a few years ago. Bui now they have relaxed the rigour of this rule by allowing live telecasts of the Finance Minister's budget speech, debates on motions of confidence and no confidence and the Question Hour
The institution of the Question Hour in legislatures is itself a part of the ancient right to information. It throws open to public gaze many hidden areas of governmental activity. And supplemental lies ensure that the Minister who answers the question can be subjected to effective cross-examination on the information supplied or suppressed by him.
The natural justice requirement of speaking orders is also a part of a person's right to information, as to the reasons which led the authority to make an adverse decision against him or her. The object of the insistence upon the recording of reasons was explained by Justice Chinnappa Reddy in Rajamalliah v. Anil Kishore. AIR 1980 SC 1502 to be to eliminate arbitrarness and to substitute objectivity for subjectivity on the part of the decision maker.
Our Constitution has guaranteed the fundamental right of equality. As observed by Justice Bhagwati in Maneka Gandhi's case. AIR 1978 SC 597. this requires that all public authorities act reasonably and fairly in their dealings with citizens. Reasonableness is the antithesis of arbitrariness. For this reason also transparency in governmental decisions is necessary. This requirement is not confined to cases in which the decision may adversely affect a citizen. The authorities cannot he permitted to get away with corrupt deals or with favouritism or nepotism in matters pertaining to distribution of government largesse either. This principle was established as tar back as in R.D. Shelly's case. AIR 1979 SC 1628. and has been applied vigorously in some recent P.I.L, cases relating to allotment of official houses and plots of land, the award of petrol pumps and gas agencies, the grant of out-of-turn telephone connections, the award of contracts, and so on. How Government deals with requests of the C.B.I. or Vigilance Director for sanction for prosecution of public servants for corruption should also be open to public gaze. The processes of transfer and posting of higher ranks of officers need also no longer be shut out from the requirements of transparency.
Of course the necessity of secrecy in some sensitive areas cannot be denied. But if in the name of national security our people are denied even information already well known to our potential enemies and their allies, then it should make us sit up and wonder. And secrecy in the matter of defence purchases involving hundreds and thousands of crores should not be permitted to be so abused as to give a handle to politicians and bureaucrats for indulging in corruption with impunity.
The first Judges' case (S.P. Gupta v. Union of India. AIR 1982 SC 149) gave a lot of latitude to Government in the matter of privilege in respect of official documents. But it is gratifying to find that in S.R. Bommai's case. AIR 1994 SC F918, it has been held by all the nine Judges that Article 74, clause (2). prohibits the disclosure of only the ultimate advice tendered by the ministers to the President but not of the documents and materials on which that advice was based. This thus allows even Cabinet papers to be disclosed to the Court.
If people have easier access to the decision making processes then much of the corruption could be controlled. The Prime Minister need not be so pessimistic about the absence of a magic-wand with him to curb corruption. He need only implement his promise to enact a law conferring the right to information, as in certain developed countries, and then see the results.
In Sweden, Canada and several other countries there arc special statutes conferring the right. The statute lays down a procedure for inspection of government files. They can be inspected and copies thereof obtained, much in the same manner as we can here inspect Court records and obtain copies. The authority can no doubt reject a request, but reasons have to be given for the refusal. The refusal is subject to an appeal to the Ombudsman, —an independent institution like our Lok Ayukta or Lok Pal but with much wider powers.
While we all talk of the right to information vis a vis the executive it is also for consideration whether the right should not be extended in relation to Judges also while administratively. Their judicial work is of course all open and speaking, hence above board. But the Judges guard the secrecy of their administrative decisions and recommendations as jealously as any minion of the Executive. Thomas Jefferson had observed that "our Judges are as honest as other men. and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps." Justice Jackson once observed that "judges arc more often bribed by their ambition and loyally than by money," And our own Justice Krishna Iyer has been crying hoarse that "corruption inside the institution. going by credible information circulated by whisper, is mounting."
We all know of a case in which a Judicial Secretary of a North-Eastern State was recommended for High Court Judgeship by the Chief Justice of the High Court as well as the Chief Justice of India, apart from the Ministers, even though he did not fulfil the basic-qualification often years judicial experience. And ex President Venkataraman has put on record a case where the Union Law Minister's wife who had just completed the minimum ten years at the bar was similarly recommended by the Chief Justices. In the first case the Supreme Court on its judicial side prevented the swearing-in and in the second, the President himself put his foot down.
There are thousands of advocates and judicial officers who possess the minimum eligibility. What has further to be considered is their relative merit, their character, their prejudices or freedom from them, their temperament. In the United States of America every nomination by the President for such appointments is subject to confirmation by the Senate. The Senate Judiciary Committee has been headed for umpteen years by the redoubtable Senator Edward Kennedy. it does not function on party lines at all. The candidate appears before it and may be subjected to a gruelling cross-examination. Witnesses for and against him may also be examined. — not that it is always done. As a result sometimes the President himself has withdrawn his nomination. At others, the nominee has been rejected by the Senate. Our Rajya Sabhacorresponds to their Senate. Perhaps time has not yet arrived when the public here may accept a similar role being given to the Rajya Sabha. It may. some lime in the future, when there is less of politicking in all our institutions. The alternative proposal tor a Judicial Commission should however commend genera] acceptance. Whether final powers are re-vested in the Government, as proposed by our Law Minister, or should remain with the Chief Justices, as held in the second Judges' case, AIR 1994 SC 268, neither position is wholly satisfactory. The difference is only of degrees.
Another area in which the need of transparency arises was indicated in the recent remark of Justice Sawant the present Chairman of the Press Council of India. Justice Sawant observed in a T.V. interview that the Constitution has come to mean what the incumbent Chief Justice of India wants it to mean. He was alluding to the Chiefs power to pick and choose judges to man the Constitution Benches. In the United States the Chief has no such power, as all the Judges must sit to decide each and every case. There the Chief is sometimes in a minority, while in our country he is always in a majority. This situation could perhaps be remedied by establishing some convention about the composition of Constitution Benches. For instance, it may consist of only the senior most judges: or something like that. What is required is the introduction of greater transparency and the elimination of secret subjectivity in the matter.
It will indeed be a good thing if our judiciary takes the lead in introducing greater transparency, accountabilily and objectivity in its own working while enforcing it against the Executive.
Author Name: Hon'ble Mr. Justice Kailash Nath Goyal
