7 = THE RIGHT TO INFORMATION Open Government is a contradiction in terms. You can be open, or you can have government. Sir Humphrey Appleby's remark in the Yes Minister series describes the mindset that has long been the basis of governmental poli India. For over fifty years after independence, secrecy was the norm in the working of the government, and transparency, the exception. In the Buiise of Protecting the State's interest, secrecy in public affairs has been a shield for those in government, concealing their actions from public scrutiny, Access to information, on the other hand, is power in the hands of the electorate. I demands accountability and transparency. This is fundamental to the functioning of any truly democratic society. The hallmark of a meaningful democracy is the institutionalisation of transparent and Participative Processes which gives the electorate access to information about. the government it has brought to power and enables it to make an informed decision to remove that government from power, if it so chooses. aptly icy in Laws that licence secrecy are a colonial legacy and were adopted by autocratic regimes to legitimise suppression of information about their functioning. Secrecy in public affairs is anathema to the very notion of democracy. Yet, laws favouring governmental secrecy dragged on for hall a Century after India became a democratic republic. Scandinavia and USA enacted laws giving the citizen a statutory right to information as early as the 1960s. It was not for over another forty years, that a bill called the Freedom [152] Scanned with CamScannerag Information Bill, 2000 finaly came to be i ; atigantennt. ThE SP CANE BS a Death of tiesh aie s the Indian Pat eon Sh air in an othernise jascessible But old habits die hand, Especially w yen as the Bieedom of Information \ pen sete interests are involved, : 2002 came into fo qanwary, 2003, the goverment continued to grope foe el fore on 6th withholding information trom the citizen, A classic me ju government's EFAS 10 the Supreme Cours ju ins was ove see 8 juadgme ic Reforms.! Iedgment in the 2002, the Supreme Court pas. aht of the voter to information INscal a landmark judgment on the Fe ences Hine eaten about the antecedents af chee cansidates, The Cour dicted that all candidates foreloeee ee ee ana 0 the legislative assemblies were regina to furnch tage ee the candidate's criminal record if any. his or her assets and eee esusatonal qualifications. The Court held tht the raisers ees this information arose from every citizen's fundamenal rate eg which flows from the right toffee spooch and expresion ee 19412) of the Constitution, The Court rete! on a numberof gene decides cases whete the Supreme Cour inert te ait ee oe ans expression to include the public's right of knowlege on public alter The government promptly responded with an Ordinance? introcice electoral reform but which was really aimed of the Supreme Court judgment, 35-8, Notwithstanding anything contained in any judgment, decree oF order of any court or any direction, onder or any other instruction issued by the Election Commission, no candidate shall be liable to d. ‘or furnish any such information, in res, his election, which is not required to be disclosed or fumtished under this Act or the rules made thereunder professing to aU undoing the etfect Enacted on the pretext of introducing electoral reform, the new law sought to give every candidate a legal right to suppress vital information about his antecedents. The amendment did away with the court-mandated requirement for a candidate to disclose his educational qualifications, his assets and liabilities, Further, a candidate was not required to disclose his entire criminal record, but only (a) if he had been convicted and sentenced to imprisonment for at 1. (2002) 5 SCC 294, . Repealed and subsequently enacted as the Representation of People (Third Amendment) Act, 2002. 3. The Representation of People (hind Amendment) Act, 2002 ection 3B, ee Scanned with CamScannerIs4 Facets of Media Law : (Chap, least one year or (b) was accused ofa crime punishable with for at least two years and if charges in the matter had been framed by of competent jurisdiction. Given the law's delays, it usually nea yet charges tobe framed, Meanie, voles were tobe kept laut oftheir candidate's antecedents. Section 33-B of the Ordnance complete immunity to the candidate from ft urnishing any further informant other than that specified under Section 33-A. Law-makers were ick realise that if the Supreme Courts directives were to be impl 2 lemented and 4 few unsavoury truths revealed, many of them may never find themselves jn Parliament again! n mprisonmen, Arguably, the Supreme Court's requirement that a candid Pending cases could be abused by detractors to file friv However, there was absolutely no justification for exempting the disclosure of assets, liabilities or educational qualifications. Oddly, Section 75-A, makes it necessary for an elected candidate to disclose his assets and liabilities, ‘What use is this information to the voter after he has cast his vote and cannot change his mind for another five years? The provision defeated the Very idea behind the Supreme Court's directions: that the voter must be able to make an informed choice. The Supreme Court's directions did not disqualify ; candidate on the basis ofthe information disclosed. Yet, the unseemly have with which political parties reacted was indicative of the extent of their discomfiture at making what were perfectly reasonable disclosures, Fortunately, the matter did not end there. The Supreme Court came to the rescue of citizens once again and struck down the amendment under Section 33-B of the Ordinance. In People’s Union for Civil Liberties vy, Union of India,$ the Supreme Court ruled that the legislature’s power to interfere with a fundamental right under Article 19(1)(@) was limited to the grounds provided under Article 19(2) and that Section 33-B was beyond legislative competence. M.B. Shah, J. said: ate disclose /olous criminal Cases, The legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the court, A declaration that an order made by a court of law is void is normally a part of the judicial function, The legislature cannot declare that decision rendered by the Court is not binding or is of no effect, It is true that the legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. 4. Supra n. 3, Section 33-A(1)(i). 5. Ibid., Section 33-A(I)(). 6. (2003) 4 SCC 399, Scanned with CamScannerThe Right to Info a This exercise of power ig g therefore, it cannot enact a fa "Nation UIect 10 cop, I55 : Mutional pr is Viole Prov) 7 which i Votive Tan right tal Reddi, J. observed: Whe legislature in utr disregard of the indicators enunciat tb ae idee ores ME a lesan Providing only fn ; semblance or pittance of information of is 10 prov ie disclosure on certain essential points, le for pass the muster of Article 19 © law would then fil 1)(a), Though cers fail to deviation from the aspects of x Certain amount of com of disclosure Spelt out by this Cour jg not impermissible, a substantial departure cannot be countenanced, ! toe ‘ {When the right to secure i candidate is recognised as an in it ought to be, it follows that its ambit, amplitude and parameters camot be shined. and cits feral tins by declaring that no information, eter tan the Specifically tid dovn in the Act shouldbe requ 1 be gic Wey legislation delimiting the areas Of disclosure was enacted, it may be that Palament fel thatthe disclosure on aker spn nessa fo theme being. ASuning hat te gure to information is not violated by making a departure from the aradigms set bythe Court ts no open Parment seg farher disclosures concerning the candidate in future. tn other words, a blanket ban on dissemination of information other than elt out in the enactment, irespecive of the need of the hone aad ie fue exigencies na expedients is, in my view, issible I must be remembered thatthe concept af eedon of speech and. expression does nol wena The felt oe aot id tes coupled with experiences drawn from the past may give rise (the need 0 inistos saan information ree aspects not provided for by lave Nex situations and the See shaee may demand the flow of additional facets of Ie the tight to infomation shouldbe allowed to grow pnt than being race an stagnated; but the mandate of Section ee by the non obs clase impede he Now o such information conduit the feed of expesion information about a Contestin er! part of fundamental ight se Laws that licence secrecy (i) The Official Secrets Act, 1923 1 Official Secrets Act is a relic of the British Raj. First enacted in The Offici is a relic r i f 889, it was designed to justify suppression of information by the British it 7. Supra n. 6, para 78, p. 452. 8. Ibid, para 109, p. 466. 9. Ibid, para 110, p. 467. it Scanned with CamScanner156 Facets of Media Law cc hap, sunjects and thereby stifle Any INOVE by the « rnd intorsnation.” Under the Act of VHD, ay ger cian punishable with deportation for if OF Yor five yea a the Act of 1889 wat replaced by an Act of 1o4y qt ‘8, 'The 192 Act makes provision against espigngr sunication of official inforination 10 outsiders, The acy for any person holding office under the govertimeys Ir yifully communicate any official information (0 anyone other thay HH 1 porned person. 1 is equally an offence for Any person (0 receive guy information. It is, however, significant that the grounds on which action may be taken under the Official ‘ely Act are limited to those specified Hr Article 19(2). (ii), The Central Civil Services (Conduct) Rules, 1964 govern ayainst the govern official document expionage imprisonment, thereafter an Act of | as also against comin makes it a penal offenc Rule 11 of the Rules reads: No government servant shall, except in accordance with any general or special order of the government or in the perforsmance in good faith of the duti yned 10 him, communicate, directly or indirectly, any official document or any part thereof or information to any government servant or any other person to whom he is: not ‘authorised to communicate such document or information, The Manual of Office Procedure provides that only ministers, secretaries or other officers specifically authorised by the minister may give information ‘or be accessible to the representatives of the press. Other officers, if approached by a representative of the press, must refer the latter to principal information officers of the Government of India. In the Press Information Bureau, information officers and deputy principal information officers normally maintain a communication tink between various ministries and departments of the Government of India and the press and the public. In the ministries, no officer below the rank of Joint Secretary is authorised to communicate with the press. In addition to the general restrictive provisions for maintaining official secrets, the manual also restricts the handling of classified papers, graded as ‘top secret’, ‘secret’ and ‘confidential’. These restrictions are contained in the Departmental Security Instructions issued by the Ministry of Home Affairs. (iii) The Evidence Act, 1872 Sections 123 and 124 of the Indian Evidence Act give blanket power to the government to withhold documents." However, over time, courts have, 0. ne shal 10. "123: Noone sal be permite i give any evidence deste from unpublished oficial recods {Gaui o any aa ofthe State, except with the permission of the officer at he head ofthe mncerned, who shall give oF withhold such permission as he thinks Scanned with CamScannerMe Right iy Mornay, a J down the Powers Piven 16 the sve LOVEII 2 watery review hts provided sonye vate 0 ey ig tty sae ca arbitrariness Mates of ofieinl, cteey, MM apn eo Pan 1, Sill Sik Si in| ne deuments whieh embody theming Me Mcetinps af lt Meld aa aera indicate the advice why tHe comet a nn i opal and the document canbe yng the adie tS Met Rai Service CONMSSION LO the eau mini eae pul 123 of the Evidence Act HF the hy ee for their production, the court per nonce the court came to the the cae e category of “alfaits of State’, then it woul into ¢ to decide whether its Production shou Cai not go into the question of whether cout would be injured of not by the disclosy imeres Raj Narain concerning the privity Mlached 0 the U. dee rules and instructions for the protection of the eel ie Supreme Court too! View from that in wane v. Sodhi Sukhdev Singh." The Supreme Coutt held hat the residual Puryal a decide whether the dis 4 document was in the Geer aol ve ea wilh be esata thal purpose it had the po interest document if necessary, The Supreme Court held that the st a head of department that the disclosure would injure the Public in was not fil. : In the Judges Transfer case," the Su reasoning in Sodhi Sukhdev Singh's case and disclosure of official documents under Sectio Bhagwati, J. held: Mety Aad of the CaMHOL ¢ Conclusion that OMpEl the St 10 produce Wolved fell he head of Milled and the MACE OF fact, pubtie me. IN a later late of Blue book Prime Minister is public wer to ment nterest Preme Court criticised the adopted a liberal view of the on 123 of the Evidence Act eis nothing sacrosanet about the immunity whichis on tte they belong to a certain class” Claes Ta ATS teas all circumstances, i is car at cchy oe applied mechanically in all cases. ‘The Fabius wher immunity is founded is that it would be contrary to public intrest odscose docu belonging to tha Saar teas as eke a impait the proper aes 2 of the public service and this aspect of public interest ranted 1124: No public ofice hall be compel o dls comma official confidence, when he considers that the public inter 11. AIR 1961 $C 493, 12, (1975) 4 SCC 428: AIR 1975 SC 865. 13, AIR 1961 SC 493. 14, SP. Gupta v, Union of India, 1981 Supp SCC 87. ons made to hit in fer by the disclosure, —__— Scanned with CamScannerwets of Media Law : : [Chap, wating tev evo, Tis ist baling 9h which ig gods pentane by the Court iM all eases Judicial recognition af the eight Co information : For may’ docaes, despite the establishment of anergy Foun ‘ora itd, there Was Ho Legal right to information, t Was through creative interpretation of Attile 19C(a) of the Constiuvion iat ye Supreme Court carved oul a fundamental tight (0 information ag vig implicit inthe tight to thee speech and expres ion. This tight i of spe inypvtan to the mia whose tine fs information and whose husines it ist communicate information to the electorate so that the latter MY make informed choices, One of the cartiest eases where the Supreme Court laid emphasis On the people's right to know was Romest: Thappar v. State ef Maaras. The petitioner challenged an order issued by the then Government of Madras under Section 9(L-A) of the Madras Maintenance of Public Oner Act, 1999 imposing a tan on the circulation of the petitioner's journal Cross Road The onder was struck down as being violative of the right (0 freedom of speech and expression under Article 19(1)(a). The Supreme Court held: (Vlery namow and stringent timits have been set to permissible legislative abridgement of the right of free speech and this was doubil and expression ss6 due to the realisation that freedom of lay at the foundation of all: democratig sion, no public ential for the proper functioning of the processes of popular Government, is possible."7 speech and of the pres In Indian Express Newspapers v. Union of India,’ challenge to the imposition of eustoms duty on newsprint, the Suprenc Cour held that the freedom ofthe press ws inherent in Article 19(1}e) ng meant freedom from interference by authority which would alfeet the Content and circulation of newspapers, In this context the Supreme Com, upheld the right to information as being part ofthe freedom of speech and expression and relied on the dictum of Lord Simon of Glaisdale in Attomney General v. Times Newspapers Ltd." upholding a The public interest in freedom of of the press is one aspect) stems from the members of a democratic society ee discussion (of which the freedom requirement that should be sufficiently informed 16. AIR 1950 $C 124. 17, Ibid. para 11. pp. 128-29, 18. (1985) 1 SCC 641 19. (1973) 3 AER 54, Scanned with CamScanner= The Ri ight to 11 f Mformation that they may influence intettipe affect themselves,2? Bently the decision: Iso S Which phe Supreme Court concluded: N may Freedom of expression, as learned yj : Writers ha ad social e8 10 se 8 have ba nr CH aa es an nga Sa se fulinetts Gt ais in the discovery sl ati surengthens the capacity of an individuat 2, Of "Wh, (ii) 4 decision-making, and (iv) it provides a pet P2tticipating a would be possible t0 establish a reagenechanism a to form their own beliefs and co: In sum, the fundamental princi right to know. Freedom of therefore, re the parti mmunicate th lem fre le involved here he te : ‘Spy ae speech and «© People's. cive A yenerous support from all eee sso”, Should, pation of people in the administation 2! 8 O*teve in In State of UP. v. Raj Narain? hich invoweg government privilege under Section 123 ofthe Evigenea a, Son of Court observed: ee Act, the Supreme Ina government of responsibility like the public must be responsible for ther conte a seem of few secrets. The people ofthis country have aright oan eet public act, everything that is done in a public way, by thee mae functionaries. ‘They are entitled 10 know the partcwan sf public transaction in all its bearing. The right to know. oueey derived from the concept of freedom of speech tron absolute, isa factor which should make one wary. when setcent claimed for transactions which can, at any rate. have repercussion on public security. To cover with veil af secrecy, the common routine business, isnot in the interest ofthe public, Such secrecy can seldom legitimately be desired. I is generally desired for the purpose of parties and politics ot personal selt-interest or bureaucratic routine, The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption. In the Judges Transfer Case, a seven-Judge Bench of the Supreme Court followed State of U.P. v. Raj Narain’ and observed: Where a society has chosen to accept democracy as its credl faith, it is elementary that the citizens ought to know what their 20. Supra n. 19, p. 81. 21. (1985) 1 SCC 641, para 68. p. 686 22. (1975) 4 SCC 428: AIR 1975 SC 865. 23, Ibid, para 74, p.453 (SCC); see also RK. Jain v. Union of Indi 24, S.P. Gupta v. Union of India, (1981) Supp SCC 87. 25, (1975) 4 SCC 428: AIR 1975 SC 865. (1983) 4SCC 119. eT Scanned with CamScannerFacets of Media Law 160 . Ich, ‘The citizens have aright to decide by y “p. sovernment is doit ; ; govern hey sll be governed and they are eng go” and what govern on ther Beal 0 SCCOUN or hr ong on thos ho Beovernment aN SuIViVE Without accountanes No enn ‘of accountability is thatthe people and a onmation about the functioning of the government. tig ae arate know how government is functioning that they cq only i pes ole which democracy assigns 10 them and mage fulfil rey a really effective patcipatory democracy demo sud James Madson ‘wil for ever govern ignorane sero eopte who mean {© be their OWN gOVEINOTS must arm themselves with the power Knowledge gives. A popula fovernment without popular information of the means of aprnining it, is but a prologue (0 a farce or tragedy or perhaps both,’ The citizens” right to know the facts, the true facts, abou, the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in diferent parts ofthe world, ‘The demand for openness in the government is based principally oon two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content ‘and its orchestration has to be continuous and pervasive. This rmeans inter alia that people should not only cast intelligent and | rational votes but should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of government—an attitude and habit of mind. But this important role people can fulfil ina democracy only if itis an open government where there is full access to information in regard to the functioning of the 126 hould government eo # This is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. 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 government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be 10 26. (1981) Supp SCC 87, paras 64-65, p. 273. net Scanned with CamScannerThe Rij 1 ight to Information attenuate the area of sey, i i 16) the requirement of public int = ce 8S possi | sible cons; disclosure also serves an imy 5 in mind al thet” th In Reliance Petrochemical, Ld. y bic interes, 27 Newspapers Bombay (P) Lid. upton oetors of ina know as emanating from the preme Han Exp i Fight to life, poo interpreted the 4 whether Reliance Petrochemic, . stion which 'S Was, hy Ich arose indian ESDreS® which had pubis ana (an injunetion against the the former’s debenture issue, Mukharj, 7. absent ning the reliability of order tobe ae a Pe at large have aight know oreer 10 De able to take part @ Participatory dover Stow in industrial life and democracy. Right to know 2c oPment in the citizens ofa free county 9 mo} testion which arose in this mercial gain could avail of (a). The Supreme Court held: ng aS 2 “commercial speech” has two facets, Advertising no more than a commercial transaction, nonetheless dissemination of information regarding the product-advertised Public at large is benefited by the information made available through the advertisements. Ina democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements The economic system in a democracy would be handicapped without there being freedom of “commercial speech”... the protection guaranteed under Article 19(1) Examined from another angle, the public at large has a right to receive the “commercial speech’. Article 19(1\@) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech, 27. Supra n. 26, para 67, p. 275. hi tae bag nology National Resource 3 ii a 34, p. 613; see also Research Foundation for Science Techno 2 Ne tone ese Policy v. Union of India, (2005) 10 SCC 510, where it was held t at he ign rain and cominumty parteipaton for prtection ofthe envionment which flows from Article 21 of the Constitution. 30. (1995) 5 SCC 139. = Scanned with CamScanneriw Ravers of Media Law Chup o far as the eonnamic weats of a citizen ae concerngy fuliment bas to te guided by the information gee through the advertisements, The protection of Atticle wn availabe to the speaker a8 wel a 10 the tecipent of the ‘The nvipient of “oommercial speech” may be having mich Ye at ingest in the advertisement tha the business han patvication, An advertisement giving information repute saving drag may be of much more importance wy genet Xie than to the advertiser who may be having purely 4 ral consideration. ride crezary, Ministry of formation and Broadcasting v, Crick . while considering the right ofa person to telecast a spor ision through the use of airwaves, the Supreme Court held that nee! unser Arile 19(1)a) includes the right to receive and acquie ing and that viewers have the right o be infonmed adequately and wa suppor of this right the Court quoted from Anticle 10 of the Bune Convention on Human Rights and Fundamental Freedoms, 1959, p Court held that although a person seeking (0 telecast sports event wi, : inself i not parspatng in the game isnot exercising his tg tea expeesion, he is seeking ro educate and entrtin the public which spn the freedom of expression. The Cour held that the right ofthe viewer ig he entertained and informed is also, likewise, integral to the free expression. fom of True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right participate in the affairs of the country is ey citizens are well informed on all sides of the respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy 2 farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1-1/2 per cent of the population has an access to the print media which is not subject to pre-censorship. 31. Supra n, 30, paras 23-24, p. 156. 32. (1995)2 SCC 161. “10.1 Everyone has the right to freedom of expression. Ths right shall include the freedom ‘bold opinioas and to receive and impart information and ideas without interference by public ‘zuthority and regardless of frontiers.” (1995) 2 SCC 161, para 82, p. 229: see also Food Corporation of India v. V.K. Sukumaran, (1996) $ SCC 401, where it was held that it is the duty of the government to use the media for dissemination of vital public information, —_— Scanned with CamScannerA The Right wo Information ie Dinesh Trivedi v. Union of Indiggs disclosure of the Vohra Committee Re crime syndicates in’ the country, acknowledged the import democracy and observed: involved the question of the Port based on an investigation of The Supreme Court once again ince of open government in a participative In modern constitutional democracies, itis axiomatic that citizens have a right 10 know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of povermince timed at their welfare...democracy... expects cpenness and openness is concomitant of a free society. Sunlight is the best disinfectant . The landmark judgments on mandatory disclosure of information by clectoral candidates have already been discussed at the start of this chapter.” Ina couple of relatively recently decided cases, the ‘Supreme Court has declined the disclosure of information on important issues of public interest and accountability. These judgments have come as a disappointment from the Court that has otherwise steadfastly upheld the right to know, A case that arose in 2002, infamously known as the ‘Mysore sex scandal case", raised interesting questions on different facets of the right to know. Leading newspapers published reports on how three judges of the Karnataka High Court had been found indulging in immoral behaviour at a private resort in Mysore. The High Court responded by issuing to the editors and publishers notice for contempt of court. The Court's demand to know the journalists’ sources of information was staunchly resisted by the press on the grounds of journalistic privilege. While there was something to be said in favour of confidentiality of sources, there was also something to be said against news reports which cast aspersions of such a serious nature without a shred of supporting material. In the meantime, a committee comprising of senior judges appointed by the Chief Justice of India carried out an ‘in-house investigation’ and absolved the judges concerned who have since continued in judicial office, There was a strong demand for the contents of the report to be made public. In Indira Jaising v. Registrar General, Supreme Court of India, a senior advocate practising in the Supreme Court filed a petition demanding the publication of the inquiry report. The Court declined disclosure with a 35. (1997) 4 SCC 306. 36. Ibid., para 19, p. 314. 37. Union of india v. Assn. for Democratic Reforms, (2002) 5 SCC 294; People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399; see also Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673. where it was held tht the public has the right to know the circumstances under which elected representatives got allotment of petrol pumps. 38, (2003) 5 SCC494, Scanned with CamScanner164 Racets of Media Law lo " lap, reasoning that is difficult t0 reconcile with ts own bold pronounce é n the past ‘A report made on su more harm than good face inquiry leading (0 course open to the parl sce inquiry if given publicity will only lead yy to the institution as Judges would prefer 1p impeachment. In such a case the only es concerned if they have material is t9 ‘of Article 124 or Article 217 of the invoke the provisio ! nile ; Constitution, as the case may be... The said report only for the ction of the Chief Justice of India that such a purpose of satis [ ; Feport has been mae. 1 is purely preliminary nature, ad hoc oom final... The only source or authority by which the Chiet Justice can exercise this power of inquiry is moral or ethical and pat in exercise of powers under any law. Exercise of such power or the Chiet Justice of India based on moral authority cannot be made the subject-matter of a writ petition (0 disclose a report made to him? That the Supreme Cot wurt had instituted an inquiry into the incident was a fact allowed to be widely publicised. This was a measure that inspired public confidence and was intended to do so. It was therefore in the fines of things that the report itself be made public. The public, afer all, has a right to know about the integrity of those who dispense justice. Quite apart from the public interest it was in the interest of the judges concerned to have the report made public; in fact, the more sO if it established their innocence, ‘Another case where a demand for information was declined was People's Union for Civil Liberties v. Union of India.” This case arose out of a challenge to Section 18 of the Atomic Energy Act, 1962 which restricts the disclosure of information relating to an atomic energy plant. The appellants (petitioners before the Bombay High Court) sought disclosure of information | from the respondents relating to safety violations and defects in nuclear otiations and power plants across the country. The demand was made on | the basis of a report of the Atomic Energy Regulatory Board (AERB) which (0 instances of serious safety defects and violations. ‘The respondents raised the plea of privilege in defense contending that the information sought was classified as secret since it pertained to highly sensitive nuclear facilities of a highly classified nature. The Supreme Court | upheld the constitutionality of Section 18 of the Act and relying on the earlier judgments in State of U.P. v. Raj Narain‘! and S.P. Gupta v. Union of India,® held that the report was privileged and its disclosure was rightly withheld in the public interest. The Court was, however, completely silent on documented 131 39. Supra n.38, para 3, p. 497. 40, (2004) 2 SCC 476, 41. (1975) 4 SCC 428: AIR 1975 SC 865. 42. 1981 Supp SCC 87. Scanned with CamScannera The Right to Information 165 the public interest in safety and protection against accidents in nuclear plants. The campaign for a legislation on the right to information Laws on the right to information were first enacted in the Scandinavian countries and in the USA in the 1960s and thereafter, in other countries including Canada, New Zealand and Australia. In India, some states such as Goa, Tamil Nadu, Rajasthan, Madhya Pradesh, Karnataka, Maharashtra, Delhi and Assam introduced laws on the subject between the mid-1990s and 2003. The Central Government finally followed suit and came out with a draft bill called the Freedom of Information Bill, 2000 which was passed by Parliament in December 2002. The Freedom of Information Act, 2002 was Jater substituted by the Right to Information Act, 2005. The campaign in India for the right to information evolved with a grassroots movement in Rajasthan in the mid-1990s. The Mazdoor Kisan ‘Shakti Sangathan (MKSS), an organisation of peasants and rural workers, Jed a sustained campaign for information on development expenditure in Panchayati Raj (local self-government) institutions. When villagers in central Rajasthan began assessing bills, vouchers and muster rolls of expenditure incurred in their Panchayat and verified them against the work actually carried out, the workers employed and wages paid to them, they discovered wide-scale manipulation of records and rampant embezzlement of development funds by public officials in connivance with private parties. The result of this corruption was not only non-employment of or underpayment to the local workforce and inadequate or poor quality assets, but depletion of funds which were meant for education, housing and health facilities for the rural poor. The campaign led to a public assurance by the then Chief Minister Bhairon Singh Shekhawat, in the state assembly that people would be entitled to the right to obtain photocopies of all documents pertaining to Panchayati Raj institutions. The assurance remained unfulfilled and it was not until 1996-1997, in the aftermath of two massive strikes that the State Government relented and amended the rules of the Rajasthan Panchayati Raj Act to incorporate the people’s right to information relating to Panchayati Raj institutions by inspecting and obtaining photocopies of documents. The MKSS campaign was followed by the efforts of a coalition of senior journalists, lawyers, academics and NGOs called NCPRI (National Campaign for People’s Right to Information) to draft a model bill on the right to information for the Central Government's consideration. This became a wide consultative process with the participation of the Press Council of India. A committee headed by senior consumer activist HD Shourie was set up in 1997 by the then United Front Government. However, Scanned with CamScannerFacets of Media Law ne HD Shourie Commitee COE nt se fell at the centre in rapid. sys => Freedom of Information bill was passed by 5 ae ne the Feed of infomation At. 2002 ane ng This Ac as repeated and substituted bythe Right Information dg. 5 whch reed the ascent ofthe Preset 15th June, 205 ag 2 published in the Gazette of India on 21st June, 2005. 166 the first draft bill based on the H of day as three governments i The Right to Information Act, 2005 The Right to Information Act, 2005 seeks: [To provide for setting out the practical rezime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.* the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons reads: In order to ensure greater and more effective access t information, the Government resolved that the Freedom of Information Act, 2002 enacted by the Parliament needs to be made more progressive, participatory and meaningful. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the existing Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law, ‘The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Office penal provisions for failure to provide information as per lat provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and 43. The Right to Information Act, 2005, Section 2(4) defines ‘public authority” as “any authority ce body or institution of self-government established or constituted — (a) by or under the Constitution; (6) by any other law made by Parliament; (6) by any other law made by State Legislature; (@) by notification issued or order made by the appropriate Government, and inclses any— (0 body owned, controlled or substantially financed; (i) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Governments? 44, The Right to Information Act, 2005, Preamble ie Scanned with CamScanneright to 1 . " ic effective mechanism fy Yormation authorities, ete. In view fae of existing Act, the Governme‘ chi of taformation Act, 29qy nt Aso deci effective framework recognized under Avice yg ° The Bill secks to achieve qh : n 167 al Salient features of the Right t hh Maintenance of records All public authoritj ies their records‘ in a man ie under an obi ee fanner that faci ran obligati i authorities are required to crane ye? a ‘rin Pa indexed and to the Xxtent possib| oa and are connected throu; : systems so that access to such : r are required to fie Publish specified in 0 interval appropriate government or compet thay.) 6 mesa . permits or authorisations granted.5> The Act of 2005 makes an attempt to ensure dissemination of information through easily acessible and effective methods suchas through 45. Supra n. 44, for the meaning of ‘public authority’ see Section 2(), 46. Ibid, for the meaning of ‘record’ see Section 20. 47. Ibid., Section 4(1)(a). 48. Ibid., Section 4(1)(b). 49. Freedom of Information Act, 2002, Section 4(b). However, a provision under the Freedom of Information Act, 2002 requiring public authorities before initiating any project to publish or communicate to the public or persons affected or likely to be affected by the project facts which should be known to them ‘in the best interests of natural justice and promotion of democratic principles" is absent in the Act of 2005. 50. Right to Information Act, 2005, Section 4, SL. Ibid,, Section 4(1)(6). $2. Ibid,, Section 4(1)(6)(x. $3. Ibid., Section 4(1)(0)(xit. Scanned with CamScannerFacets of Media Law \ ha ‘p, 168. announcements, media brondes, any public authority. yy abled, assistance oe here must rs, public f the offices of on is sensorily dis n 55 notice boards, newspape! internet and inspection o! person seeking. informat provided to enable access i to informatio! Duty 10 publish ‘An important improvement in the Act of 2005 over the Act of 2p), the imposition of a duty (0 publish on public — is It shall be a constant endeavour of every public authority 10 take steps in accordance with the requirements of clause (b) of sub. section (1) to provide as much information $49 ‘moto to the public at regular intervals through various means ‘of communications, incading internet, so thatthe public have minimum resor (0 the use of this Act to obtain information. This is a recognition of the principle that transparency must be the no, and not the exception. Rather than to put the citizen through the trouble and expense of extracting information from government departments i necessary that public authorities (as also private bodies that perfony ic) be made to disclose on their website o, functions affecting the publ through such other accessible means, information of public interey particularly those relating to public spending, the execution of governmen, contracts, etc. With the introduction of a duty to disclose, the onus shifts from the citizen to the government. A duty to disclose is far more effective than a mere right to know. Establishment of Information Commissions The Act of 2005 provides for the establishment of a Central Information Commission®? and a State Information Commission.** Each commission isto be headed by a Chief Information Commissioner and has upto ten other information commissioners. Persons to be appointed to these posts are persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The Central Information Commission and the State Information Commission are given the power to inquire into complaints made by aggrieved persons. Agerieved persons include persons who have been 4, Supra n, 50, Section 4(4). 55. thid., Section 7(4). 6, Ibid., Section 42). 51, Ibid., Chap. Ih 58, Ibid., Chap. 1V. ‘59, Ibid, For constitution of Central Information Commission see Section 12. For constitution of State Information Commission see Section 15. Scanned with CamScannerhe wy ly 7 “Mt wy, ory ¢ ‘Maton oy y for Mor mation °F aceon. who f thos who ha unreasonable, Request for information A person desirous writing OF through elec language of the area ; prescribed fee. The apy ion mat Pl made snp il Information Officer op cae fae Tae 10 the Cont m Re authority or the Ntral Assistant Publi 'atiON Offices of Assistant Public Info, the public sc : « pnformation Ofies sei, Merman Ope, State particulars of informati OM Sought Where woe May be, Specifying the cannot be made : er es ie nf titng, the Cent pag Inormatig en State Public Information ofr, lation Officer t to writing 2 Ser shall assist the applic oo reques a contacting him Public Information Officers are required to provide the information re luested on payment of the Prescribed fee as expeditiously as possible and Within a maximum of thirty days from the date of the request.‘ ; i : Tejected for ©. Supra n. 50, Section 18(1), 61. Ibid, Sections 18(2)-(4), 62. Ibid., Section 6(1) 63. Ibid., Section 6(1) proviso. Ibid.. Section 6(2). oo ss. Ibid., Section 7(1). Where the information sought concerns aie they on same shall be provided within fory eight hou proviso. ; 66. Ibid, Sections 8, 9 read with Section 7(1). Scanned with CamScanner170 Facets of Media Law = ith Mp, fails to give a decision on the request for See this Petiod a, Officer is deemed to have refused the reques ab . the re walt rejected, reasons must be furnished to the pipaaneeh Pe and he ue guided as to the particulars of the appellate 7 jor y an te tine pt within which he may prefer an appeal from the rejection of his Fequeg t Lop information. Exemptions from disclosure ae : request for information may be rejected on any of the gro, ee ae: Seations 8 and 9 of the Act. Many ofthe exemption at as those in the interests of the sovereignty and integrity of India, Securit the State or information disclosure of which would lead to incitemeny of. offence, constitute contempt of court or affect relations with foreign Stat are restrictions which are expressly permissible under Article 192)» However, there are exemptions which go beyond the restrictions Specified in Article 19(2). These include: + Information, the disclosure of which would prejudice the seieng or economic interests of the State.” + Information, which would impede the process of investigation gg apprehension or prosecution of offenders.”> * Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.” This could mean that a director of a company or a managing trustee of an organisation who acquires information in that capacity can resi, disclosures relating to its operations on the ground that the information was acquired in a fiduciary capacity. * Information including commercial confidence, trade secrets op intellectual property, the disclosure of which could harm the competitive position of a third party unless the disclosure is found to be warranted in the larger public interest.” This provision existed in the Freedom of Information Act, 2002 and has crept 67. Supra n, $0, Section 7(2). (68. Ibid, Section 7(8); appeals under Section 19. 69, Ibid, Section 71). 70. Ibid, Seetions 8(1)(2), (8), (f. 11, Ibid, , Section 8(1)(a). ‘72, Ibid., Section 8(1)(h). While itis necessary to ensure that investigations are not interfered with such protection is often times misapplied. See Indira Jaising v. Registrar General, Suprene Cour of india, (2003) 5 SCC 494 referred to earlier in this chapter. 73. Ibid., Section 8(1)(e), 74, Wid Section 8G). For third party related information see Section 11 discussed late ints chapter. eet Scanned with CamScannera ; The Right tg Infor Mation 'egistation, : eisla Arguntt " Bi¥en 10 thin Pity wid ruse 10 resist OF delay q li a inthe domain of publie back into the new protection has bee Renerayy ties nde) Onn Tide regi, OUI De Hye : Stor i interest, Mornay of the legislation is so mnewhat Nota large SWathe of inye and security or Sations,?5 7 Iese Organisatio paramilitary Organisations, by ' invest organisations such as Re ‘arch Wing eae Intelligence Bureau, the Directorat fee the ea Economic Intellij + The effectivene: complete exclusion dilute, Mhative, ing U by the Clligenc nent, the Central 0 is MeClOFC Of Revenue Intelligence, Narcotics Control Bure 1° Aviation Reesch exempted of ions My be expanded at nteal Government | ! 80 adding 5, curity and intelligence Tctet information pertaining to and human tights yi ‘olations relating to Yormation sought in ions is to be provided only after the Information Commission and such ed within 45 days of the date of the respect of human rights’ viotat approval of the Central information is t0 be provid receipt of the request,7 + Information relating to cabinet papers including records. of deliberations of the council of ministers, secretaries and other officers.” However, this is not a blanket ban since decisions of the council of ministers along with reasons and the material on the basis of which such decisions were taken are 0 be made public after the decision is made and the matter is. complete This, however, would not cover matters which fall within the other exemptions under Section 8, ificati for secrecy of internal notings ee os 5 This was debunked in the Judges Transfer case where rae Court observed thatthe fear of disclosure was hardly Teal ode an honest public servant from doing his i duty ca aati his honest views. On the other hand, disclosure an 16 tie Seco See (Sson 20 71. Ibid., Section 242). Scanned with CamScannerFacets of Media Law (hp refore 172 deter a dishonest public servant, and ih was likely only 10 early be inthe public interes, the disclosure would cl Soe ead ns . i of which would endanger the j; : CO ead poy or identify the source of infor ee given in confidence for law anata or Security purposes: This is an attempt to protect whistle blowers, an jg? which was brought into focus with the murder in of Satyendra Dubey, an engineer employed with the Nationay Highway Authority of India who blew the whistle on lange sea, corruption in government contracts relating to the Golden Quadrilateral highway project in Bihar. In April 2004, pending the scrutiny of the Public Interest Disclosure (Protection of Informers) Bil, 2002 proposed by the Law Commission of India, the Cent Government passed a resolution authorising the Central Vigilanoy Commission to entertain complaints or disclosures of corruption misuse of office by any Central Government employee white protecting the identity of the complainant. This As an important provision although it is no substitute for the necessity of a Separate legislation which imposes a duty on the State to Protect whistleblowers, The need for such protection was again broughy into focus with the murder in 2005 of Manjunath, @ young employee of the Indian Oil Corporation who blew the whistle op adulteration of petrol. + Information, the disclosure of which would cause a breach of a privilege of Parliament or a State Legislature. This restriction may be excessive in view of the fact that privileges enjoyed by the legislature continue to be undefined and are for this reason often misused in a manner that is contrary to public interest.85 or * Information, disclosure of which has no relationship to any public authority or interest or which would cause an unwarranted invasion of privacy of an individual. Such information may be disclosed only where the Central Public Information Officer or 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.% eee 81. Supra n. 80, paras 71-81, pp. 281-96. 82. Ibid, Section 8(1)(g). 83. GR. No. 371/12/2002-AVD IM 84, Ibid, Section 8(1)(0). 85. See Chap, 10 tiled “Privileges of Parliament and the State Legislatures". Se in particular, PV. Narasimha Rao v. State (CBUSPE), (1998) 4 SCC 626, 86. Right to Information Act, 2005, Section 8(1)(). Scanned with CamScannera The —— Right © Informar, + A request for informati mation ion m, the iclosure wou Y 80 be rejctey _ subsisting in a person oer an inftinos,.-' a n infringemen S°UNd tha severability nthe State 37 ‘Where a request for ACCESS tg, ink i i Ort n it is exempt from disclosure, Coge tion is, Tejecte 1 of the record which “88 May neve, on the arains exCmpl informatica t88Onably pe SS be prov contain: hay uF ‘Ormation,#* yyy te acon Severed from ieee record, U vn Icant must be informed 1 ate eanted only toa that toa en —— ater severance of ene eing gran applicant must be furnished with Teasons for gf! Poton” Further ye designation of the person giving the decs he decision the name and including the amount Fequired to be decision granting only part access Third party information a third party and has been tre; five days from the receipt of Information Officer ofthe tate Public Infor tim the Cental Public : eras th third party to make a submis nee mY iti miss writing as to whether such information ‘on orally or in Appeals ‘A person who has not received a decision in respect of his request fr information within the specified time or is aggrieved by the decision ofthe concerned Public Information Officer may prefer an appeal within tiny days of the expiry of such period or from the receipt of such decisions An appeal filed by a concerned third pany against an order to disclose third party information under Section 11 must be filed within thirty days from the date of the order. Appeals are to be preferred to an officer senior in rank in 87. Supra n. 86, Section 9. 48, Ibid, Section 10(1). 89, Ibid., Section 10(2)(a). 90, Ibid, Section 10(2)(b). 91. thid., Section 10(2)(¢) 92. thid., Section 10(2)(d). 93, Ibid, Section 10(2\(). 94, thid., see Section 11 9. Ibid., Section 19(1) 96, Ibid.. Section 19(2). Scanned with CamScannerFacets of Media Law : 174 Facets of! lo, he Public Information Officer fro, ’A. second appeal lies before the cy State Information Commission, as the e date the decision should hayg the public authority 10 th information was sought.! Information Commission or the i s from th nay be, within ninety days from U e « oul ae or was received.? An appeal may be admitted after the expiry of days if the Central Information Commis He Information Commission is satisfied that the appellant was prveniod H tlficient cays from fling the appedt in tine. The fist appeal mst be disposed of yin thirty days of receipt of the appeal or within an oe Period oy exceeding a period forty five days from the date of Filing OF the appa, yy appeal proceedings, the onus to prove that a denial oF a request Was justifgg is on the Public Information Officer who denied the request! If the decision against which the appeal is preferred relates (o information of a third party, reasonable opportunity to be heard must be given (0 the third Party.) In jag decision, the Central Information Commission on the State Information Commission is empowered to require the public authority to: provide access to information, if so requested, in a particular fom, ‘Mra Case big appoint a Central Public Information Officer or State Public Information Officer, as the case may be; publish certain information or categories of infor + make necessary changes to its practices in relation to the maintenance, management and destruction of records; ion; + enhance the provision of training on the right to information for its officials; | + provide it with an annual report in compliance with clause (b) of sub-section (7) of Section 4; | ‘* compensate the complainant for any loss or other detriment suffered; + impose any of the penalties provided under the Act; «+ reject the application’ Penalties Where the Central Information Commission or the State Information Commission, while deciding a complaint or an appeal, is of the view that a 1. Supra n, 86, Section 19(1), 2. Ibid., Section 19(3). Section 19(3) proviso, Section 19(5). 5. Ibid, Section 19(4). 6. Ibid., Section 19(8). : — Scanned with CamScannerThe Right to Information 175 1 formation Officer has without reasonable cause refused to receive «sation for information or has failed to furnish information within the ime (thirty days of the receipt of the request) or has for mala fide nied the request OF has knowingly given incorrect, incomplete or ‘sind information, has destroyed information which was requested or rai lea ructed the furnishing of information, it may impose a penalty of two ms avs rand fifty rupees a day till the application is received or the unde rion is furnished. The total amount of penalty, however, cannot inform rupees twenty thousand, A penalty may be imposed only after giving exceed Toned Public Information Officer an opportunity of being heard. The ine COPe proving thatthe concemed office acted reasonably and diligently purde! the officer himself. In an appropriate case, the Central Information is mission. as the case may be, or State Information Commission may Commis d disciplinary action against the concerned officer. This provision 000! mewhat ditured BY the absence of any specific power conferred on the is some Information Commission to take direct disciplinary action against cerned In te errant offt icer.” ps ons pesiricted inclusion of private bodies private bodies ate also covered by the Act, however only to the limited extent that information relating toa private body can be accessed by a public temay under any law in force The Act fils to bring within its sphere ater odies that are in contol of information perning to the pubic privet. The right to information flows. from Anicle 19(1) of the iteration. This makes the right available ageins al the work and not just Constate? There is strong case for including private bodies within the tm eof the Right to Information Act to the extent that they are in ossession of information of public importance and interest. Investigations into investor grievances or environmental disasters which concern private bodies are matters of public interest.'® Increasingly, privatisation has brought more and more public bodies into the private sector. There is no logical mijnale for excluding an erstwhile public sector enterprise from the Act merely because, as a matter of economic policy, the enterprise has now _ 7. Supra n. 86, Section 20. &. Right to Information Act, 2005 Section 2(). The expression ‘public authority’ expressly indludes non-government organisations substantially financed directly or indirectly by funds provided by the appropriate government. See Section 2(A)(a)\i). The right to information reans the right to information accessible under the Act which is held by or under the control of any public authority. See Section 2(). 9. Note that Article 19(1) begins “All citizens shall have the right..." whereas Anicle 14 is available only against the State. 10. The Bhopal gas tragedy of 1984 isa glaring example ofa private corporation whose acts and omissions had a disastrous effect on the lives of thousands of common people. Scanned with CamScanner176 Facets of Media Law (hoy passed into private hands. There is therefore, a strong case for tray any and accountability for such private bodies." Pareng, Monitoring. reporting and preparation of programmes toy, implementation of the Act Cilia, A the end of each year, the Central Information Commission g, State Information Commission, as the case may be. is requited 19 prose OS Teport on the implementation ofthe Right to Information Act, 2095, 4 that year and forward a copy of its report to the concemed governmen's Each ministry or department is required to collect and provide information to the Information Commission for the preparation ei fsport and comply with the requirements concerning the fumishing S information and maintenance of records. Every such annual repgn ‘auired to state the number of requests for information made to gap Public authority, the number of decisions where applicants were refy zi Access to information, the provisions of the Act under which suey decisions were made and the number of times such Provisions Were invoked. The report is also required to state the number of appear preferred to the Central Information Commission or the State Information Commission, as the case may be, for review, the nature of these appeals and their outcome.'® The report must also state the particulars of any disciplinary action taken against any officer under the Act:!* the amount of charges collected by each public authority under the Act;!” any facts Which indicate an effort on the part of public authorities 10 administer ang implement the spirit and intention of the Act:! and recommendations for reform for the development, improvement, modernisation or amendment yy the Act or any other legislation or law relevant for facilitating the right to access information." The Central Government or the State Government, ag 11. Interestingly, the South African Constitution (1996) which makes the right to information 4 fundamental right has a general sweep under Section 32 that covers private bodies, Setion $2 reads: “(1) Everyone has the right of access to—(a) any information held by the State, and () any information that is held by another person and that is required for the exercise o¢ protection of any rights; (2) National legislation must be enacted to give effect o this righ. and may provide for reasonable measures to alleviate the administrative and financial unden ‘on the State.” 12. Right to Information Act, 2005, Section 25(1) 13. Ibid. Section 25(2), 14, Ibid, Sections 25(3)(a),(b). 15, Ibid, Section 25(3\¢c), 16, dbid., Section 25(3)(4), 17, Ibid., Section 25(3\e) . Ibid., Section 2513): Section 25(3)g) Se ae, Scanned with CamScanner1 The Rij Right to INformation the case May be, may Jay Y @ cop of fl 7 parliament or of the State Legislature 2 POMS before ch the State Information Comm; Sion, ast Conteal Infor tn of the practice of a public authori 1 Y be, is ofthe view the spirit of the Act it may Tecommen tot conform wit tu View that py the concerned public authority tg ale steps vies Provisions oy ‘act! May be take ne es Te Such Conformity with ic ‘The Act provides that the a i organise educational programmes ete Hn May develop ang vlc, in particular, disadvantage rmmunitie Ustanding of the which rights contemplated under the Ag ay ft 8810 the manner in also be taken by the appropriate sovernme Sees tend authorities to participate in the development fa a programmes and to undertake Such an oo Hew appropriate government must al timel ee i dissemination of accurate information by public autho tie a aotivities® and train Central Public Information Officers aaa ae Information Officers, as the case Public ulti ON ‘Tment22 advance under the Act2” The guide must conan details inclnie he objects ofthe Act, the contact details of the Central Public Information Ofer ns Information Officer, as the ease may be, of every public authority, the manner and form in which a request for information may be nate assistance available from the Public Information Officers and reg ie Information Commissions, the remedies avaiable under the Ae including the manner of filing an appeal, fees 10 be paid, ete The appropring government must, if necessary, update the guide and publish the semen regular intervals.” 20. Supra n, 12, Section 25(4). 21. Ibid., Section 25(5). 22. Ibid., Section 2(a). 23. Ibid., Section 26(1)(a). 24. Ibid., Section 26(1)(b). 25, Ibid., Section 26(i)(c). 6. Ibid., Section 26(1)(@). 21, Ibid., Section 26(2). 28. Ibid., Section 26(3).. 29. Ibid., Section 26(4). Scanned with CamScannerve Pacers of Media Law Overviding Kitvet 1, The Right to Tntormation Act hia the effect of fonder M v ° ieee Mt Moy ' “ ‘sions of the Ottieial Secwetn Act, 1928 aud any other Hoyt ig ay their provisions ane ineonsistent With H™ "In Protection of sources of information The press gathers iuformation fom various somes yl assured anonymity and: protection to ennure the tree Wformation, Tnvestigative journalism iy avsisted by jaune exposed 10 danger or embarrassment If named and to wl be assured as a Precondition for assistunee, eH yy Avallabitny ® Who Wouyy tt ‘hom Mmonyinity ty Ie iM ' The circumstances under which diseloste of xomrecs oF informa Pe compelled have been widely debated in the UK, Lupe andthe tt The United Kingdom and the A leading common tuw English decision on the point is dtrtish ¢ Corporation v. Granada Television Lid." Granada Television bros Pogramme ealled The Steel Papers whiel revealed that poor mina played a pact in the financial difficulties of British Steel Corporation wt was evident from documents Feaked 10 Granada by a Brith art Corporation employee. In an action against Granada by Bish sec Corporation, Granada returned the confidential documents they had Po, but defaced them to conceal the identity of their source, Granada, defended itself by pleading thatthe press should be granted! an exception fram te general rule, for potential informers would be less likely to give informatgg to the press unless assured that their identity would be protected. The Hone of Lords by a majority did not accept this plea and held tha the disloyne could be compelled in the interest of justice. It was held thatthe ‘newspaper rule” was confined t0 libel actions, It did not extend 0 actions basedon breach of confidence and did not operate to confer on the media a gene immunity from the disclosure of their sources, ‘The lone dissenter, Lord Salmon, observed: May "A, suropean Court AM ‘The imnuunity of the press to reveal its sources of information save in exceptional circumstances is in the public interest, and has been so accepted by the courts for so long that I consider itis \wrong now to sweep this immunity away... ‘The freedom of the | depen immunity. Were it to disappear so would the from which its information is obtained; and the public | 30. Supra n. 12, Section 22. An identical provision was contained in the Freedom of formation ‘Act, 2002, Section 14. 31. (1981) 1 AIL ER 417; referred to in Nishi Prem v, Javed Akhuar, AIR 1988 Bown 222 where i ‘was held that atthe interim stage of a matter in answer to interrogatories, a newspaper canta bbe made 0 disclose its source of information, Scanned with CamScanner4 The Right 10 Information 9 would be deprived of much of the re Information to which the publ ofa fice nation is entitled? Mich the public In support of his dissent, Lord 7 7 ‘almon relied on a passage from the judgment of Lord Denning, MLR. who view © took the majority view in the same {T]he public has a tight to access to information which concer and of which the public ought to know. are the agents, so (0 sped of public “The newspapers " of the public to collect that information and 10 tell the public of it. In support of this right of access. the newspapers should not in general be compelled to disclose their sources of information, Neither by means of discovery before trial Nor by questions or cross examination at the trial. Nor by subpoena. ‘The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have, ‘Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied, Misdeeds in the corridors of power, in companies or in government departments, would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press. Notably in the Watergate exposure in the United States and the Poulson expos in this country. It should not be unduly hampered or restricted by the law. Much of the information gathered by the press has been imparted to the informant in confidence. He is guilty of a breach of confidence in telling it to the press. But this is not a reason why his name should be disclosed. Otherwise much information that ‘ought to be made public will never be known.’ Ironically, however, in the facts of the case, Lord Denning was persuaded to allow disclosure of the source, The common law did not grant journalists an absolute right to preserve the confidentiality of their sources, although it did recognise that the court had the discretion to decide as to whether or not to compel journalists to name their sources. The common law position was reinforced by Section 10 of the English Contempt of Courts Act, 1981: No court may require a person to disclose, nor is any person guilty of contempt of court from refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime. 32. BS.C. v. Granada Television, (1981) 1 AIL ER 417, p. 475. 33. Ibid..p. 441. Scanned with CamScannerPE acets of Media Law io 180 the English Contempt of Courts Act, 1981 rey ue of journ ists who want (0 protect the identity OF the; ir ron cat be rebut if He COU each i any of the four stated prow seclusion that the disclosure is Nec ary on any tated gr national security, for the preveny nds, it ests tice, OF s 5 ention ie, in the interests of jus a aH e . disorder or for the prevention of crime. The oe on have loose) invoked these grounds under which the disclosire Of sources may fy 7 sts of justice’. This has been ropa c ‘cularly ‘in the interests 0° J) req compelled, particularly cian ‘0 the general princip) as the widest and most dangerous n to We f ple thay 5 will be protected. ee ‘source will be overridden where the court, con lucting a | atancing exercise so athe public interest in disclosure OH WENT Murali’ right to f the considerations to be weigheg Section 10 o} ey 4 presumption in favo! sources, However, that prestt maintain confidentiality. Some 0! by the court are: + te informa tor will be the nature of the information One, important ef The reat te egimate public meres in the information which the source has gIVED the publisher or intended publisher, the greater wil be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of Pro\ceB the source will be the manner in which the information was itself obtained by the ee ree If it appears t0 the court thatthe information WWE obtained Tegitimately this will enhance the imporane® of protecting the scarce, Conversely, i it appears thatthe information Wht obtained iegaly, this will diminish the importance oF pro Sune the source anced by a clear public unless, of course this factor is counterbal d i the information, as in the classic case interest in publication of he classic where the source has acted for the purpose of exposing iniquity 35 red by the court were laid down by the House ‘I! Goodwin, a journalist employed with The Engineer, received information that a leading private corporation, contrary to its own publicity, was in deep financial trouble and was desperately seeking to raise a large Joan. Goodwin telephoned the company secking information and comment. The company responded by obtaining an injunction on grounds of breach of confidence and seeking disclosure of the identity of the source of information. The company relied on evidence to persuade the court that the information had been leaked to the journalist from a stolen copy of a confidential corporate plan and the source was likely to have been in contact with the person who stole the information. The Court ‘These factors to be consider of Lords in the. Goodwin case. Bil 34. Goodwin v. United Kingdom, (1996) 22 EHRR 123; Camelot Group Plc Centaur Communications Ltd, (1998) | All ER 251 (CA); O'Mara v. Express, (1998) EMLR 383. 35, X. v. Morgan-Grampian (Publishers) Ld.,(1991) | AC 1, p. 44 per Lord Bridge. en Scanned with CamScanner7 The Right to Information of Appeal directed the journalist 19 envelope and hand it to th the House of Lords. The j 14h source in 2 sealed the final appeal to tection of sources and that the company “able to identify the employee or cd what it regarded as confidential infor-macen w st lodged a complaint with the European Court of hat there was no overriding requirement in the pul ing the disclosure of the source of Journalistic sources, the the press. The journalis Protection of journalistic sources is one Of the basic conditions for Press freedom, as is reflected in the laws and professional codes of conduct in a number of Contracting States and is affirmed in Several international instruments on joutnalistic freedoms Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest, Ac a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having revard to the importance of the protection of journalistic sources for press freedom in a democratic Society and the Potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article J0_of_the [European] Convention fon Human Rights] unless it is justified by a overriding requirement in the public interest.2* The Public Interest Disclosure Act, 1998 (UK) provides some protection for whistleblowers in the United Kingdom. It is linked to employment legislation and protection is afforded to a ‘qualifying disclosure’ > The person making the disclosure must reasonably believe that it tends to show the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, danger to the health or safety of an individual, damage to the environment and likelihood of the information mentioned above being concealed. The matter complained of could be in the Past, the present or the future, within or outside the United Kingdom. However, the disclosure does not qualify if the person making the disclosure —___ 36. Supra n, 35. 37. Goodwin v. United Kingdom, (1996) 22 EHRR 123, 38. Ibid., para 39, 39. Employment Rights Act, 1996 (UK), Section 43-B. Scanned with CamScanner182 Facets of Media Law commits a criminal offence by making the disclosure. There (5 three types of ‘qualifying disclosures’: internal disclosure "2g employers or other responsible persons such as managers cy (#2 regulatory disclosures made to a person prescribed by the Seerer, "8, and may include the Financial Services Authority, Health >; St Executive, the Inland Revenue, etc. and sclosures whieh» 3 made to the police, the media, members of Parliament and the lige, 22 does not necessarily protect even qualifying disclosures to the The acy informant must make the disclosure in good faith, reasonably tej, Te information to be true and not make the disclosure for the pus,’ “© Would - Personal gain, Additionally, he must reasonably believe that he subjected to a detriment if he made the disclosure to his employer. or disclosed substantially the same information previously to his employ, me a prescribed regulator or there is no regulator and the informant reas believes that evidence will be destroyed if he made the disclosure 1a employer. Further, the disclosure must be reasonable in all cizcumepos’® which include considerations of the identity of the person to whom disclosure is made, the seriousness of the employer’s actions and whe they are continuing or likely to occur in the future. The Act provides compensation to a whistleblower. Where victimisation falls shon gy dismissal, the awards will be uncapped and based on losses. Where th, whistleblower is an employee and has been dismissed from service, he mar seek interim relief so that his employment continues until the hearing concluded. The USA In the USA, the Whistleblower Protection Act, 1989 provides whistleblowers an individual right of action (IRA) before the US Merit Systems Protection Board (MSPB). The disclosure must be made either tg the special counsel, the inspector general of an agency, another employee designated by an agency head to receive such disclosures or any other individual or organisation ie. a congressional committee or the media provided the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs. Procedures have been prescribed for the protection of witnesses and for the non-disclosure of the identity of the complainant. A significant feature of the U.S. Whistleblower Protection Act is the creation of ‘more realistic burdens of proof’. This feature is based on three principles ic. eliminating the relevance of employer motives, easing the 40. Supra n. 39, Section 43-G. : __ eet Scanned with CamScannerH he Ri A The Right 10 Information crandant 10 6Stlish a prima fag agencies which must then. Prove ersonnel action by ‘clear and Convincing eV her ees ae transfer 4 Tigaton bower is ieatelovers may find ae ation is complete Ww i medy ofthe option of» i Nent hostile and ane thereby ning Hil pnrter which maybe invoked even during th ‘ " a the Sebel »_ amendments ha een made to the whistleblower Protection Aci Since its engey i ie protection given to whistleblowe by the Sarbanes-Oxley Agy enact prompted by accounting debacles. in large corporates: such as Anderson, Enron and World.com, This legist a pvr pen d me i S legislation provides protection to, whistleblowers who report on the basis Of. reasonable belie ; ’ subject to the Securities ang Exchange Commission's engaged in fraudulent activities, A significant ch hange was brought abo ted by the 1 i Congress in 2002, This was f that a company, Regulations. has India In India, in the past, the law has been more inclined to compel disclosure rather than protect sources. For instance, the Evidence Act, 1872 provides that all persons who are competent to be witnesses under Section | 18 of the Act can also be compelled to give evidence and also to answer relevant questions, unless exempted by law." Likewise, the Prevention of Terrorism Act, 2002 (which was subsequently repealed in 2004) provided under Section 14 that a person could be compelled to furnish information regarded as useful or relevant for the purpose of the Act. Ths included lawyers and journalists who are otherwise bound by their professional duties to treat information rendered in the course of their professional work as Privileged communication. In People's Union for Civil Liberties v. Union of Indias? arising out of a constitutional challenge to the Prevention of Terrorism Act, 2002, it was held that a jouralistor lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. This was justified on the ground that i isthe duty of every citizen to assist the State in the detection of crime and bringing criminals to losin However, no provision was made for the protection of journalists who were compelled to disclose information about terrorists. 41. Such exemptions are contained in: ; (i) Section 5 of the Bankers’ Books a Act, 1891 i Act, 1869. (i) Section 51-52 ofthe Divorce (iid) Sections 121 to 129 ofthe Evidence Act, 1872. 42, (2008) 9 SCC 580, pp. 602-03. : 43, Ibid,, para 37, p. 603. See also Code of Criminal Proce Gujarat v.Aniudsng,(W99T.6SCCSIA 44, Prevention of Terrorism Act, 2002 has been repeal dure 1973, Section 39 and State of fect from 21st September, 2004 Scanned with CamScanner