Monthly Archives: November 2010

My Book On RTI – Chapter on Judiciary

Judiciary causes the blossom and fragrance of right to Information:

The Indian judicial system has inherited its legacy from British legal system, which governed India in accordance with their own laws suitable to their own interests, policies, trade, and business and to perpetuate their rule . ‘The law regime under the colonial system aimed at maintaining property rights and also ensuring the law and order for the enjoyment of property. It did not focus much on civil liberties and dignity of an individual.’1a British legal system was primarily based upon secrecy and confidentiality signifying stronghold of administration upon people. In the process of codification of law in British India thought was initiated with aim of reformation and to provide certainty, uniformity and accessibility of all the laws to people however, the hidden agenda and intention of the Britishers was to strengthen their control over the people and the country. It was not transparency but secrecy and confidentiality with which Britishers tried to establish supremacy or superior1
Before the advent of the British into India , the people themselves used to settle the disputes to the satisfaction of the contending parties under the Panchayat system. Then the litigants had not to waste their money and the panchayats settled the disputes to the satisfaction of the contending parties and made the people happy in all respects . Such an excellent panchayat system is then abolished and the law courts cause enormous loss of money to the people.

In a decade of British India Government formalized its rule in India , Indian Evidence Act (1872)came into force in which section 123 says ”No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.” Thus the government gets privilege not to produce unpublished record in courts. 51 years of such practice made the consolidation of secrecy by the executive legitimized by statutory support of the Official secrets Act, 1923 which deals with the barriers for disclosure of secret official information . According to Sec 5 , not only the person communicating the information is guilty of an offence, but also the person receiving it commits an offence . The Supreme court in Sama Alana Abdulla Vs State of Gujarat (1996) 1SCC 427 has held that the word ‘secret’ in clause (c) of sub-section (1) of section 3 , qualified official code or password and not any sketch , plan, model, article or note or other document or information. Finally the second Administrative Reforms commission has recommended in its first report (June 2006) to repeal the Official Secrets act 1923.

‘With the adoption of the Constitution in 1950, there was a paradigm shift in the field of law. Common man came to occupy the centre stage, and making justice available to them became both a constitutional duty and an obligation of the State, which obviously included the Judiciary.

In the last two decades of 20th century and from the beginning of this century, people started turning towards the court, much more frequently than they used to do in the past. The most important among them is a pronounced awareness among the common people about their rights and its consequential assertion in courts. Secondly , being the spate of legislation, both by Parliament and State legislatures, in order to balance the conflicting rights in a growing complex social situation. The Third factor ,which is linked with the other two , which is the affirmative role of the courts in upholding the rights of the common man, by opening new areas in our jurisprudence .’1b Fourth factor is the bureaucratic lethargy to discharge their work of enforcing the laws enacted by the legislature with commitment to democracy by accountability and transparency. Fifth factor is more often pushing the ball to the courts is the ‘modes operande’ of corrupt bureaucracy and weak and inefficient political heads. Hence the press/media and judiciary started to take the space left by them. Judicial interpretation of freedom of ‘speech and expression’ becomes the panacea for these evils.

Judiciary interpreted the various provisions of the Constitution more so of the Art.19 (1)(a) Freedom of speech and expression. During the six decades of Supreme Court ‘s in depth interpretation of this right, out of the seven rights in Art.19, the expansion of its hold is finest of other interpretation. India is successful in practicing democracy under the written constitution with adult franchise for every citizen, without any other qualification or test. Hence the judicial interpretation of this right was of using the democracy as touch stone rather than as a right itself. This made the India to sail in the international waters of human rights by asserting the ‘Right to Information of Governance ‘ as the substantial part of right to speech and expression.

Next to the Judicial interpretation, the part played by Print media and electronic media made further broadening the right of Information since these are the tool through which this right is cultivated-groomed-protected, to blossom with fragrance as the beautiful democracy.

The Freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential for the welfare of the public.
Such freedom is the foundation of free government of a free people. The purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind

Freedom of speech and right of business:
Freedom of speech goes to the heart of the natural right of an organized freedom-loving society to “impart and acquire information about that common interest “. If any limitation were placed which results in the society being denied of such right then no doubt it would fall within the guaranteed freedom under Art 19 (1) (a). (1960) Entry in inam register has great value in evidence as regards the nature and quantum of rights and interest in hand if authentic evidence to the contrary is not present.
The right to information ensues from the right to know, which has been avowed by Supreme Court of India in State of UP v Raj Narain (1975):
“In a government of responsibility like ours where 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, every thing 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 bearings”3a
It further stressed that right to information can be used to elevate a ‘democracy’ to participatory democracy. ”True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation is monopolized either by a partisan central authority or by private individuals or oligarchic organizations. This is particularly so in a country like ours where about 65 percent of the population is illiterate and hardly 1 per cent of the population has an access to the print media, which is not subject to pre-censorship. When, therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a need to have a central agency representing all sections of the society. Hence to have a representative central agency to ensure the viewer’s right to be informed adequately and truthfully is a part of the right of the viewers under Art. 19 (1) (a). The primary function of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and mobilizing role to play. It plays an important role in molding public opinion and can be an instrument of social change. (1996)
If the publication were through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published. (1998)
It is the basic principle of jurisprudence that every right has a correlative duty and every duty has a correlative right. But the rule is not absolute. It is subject to certain exceptions in the sense that a person may have a right but there may not be a correlative duty. (1998)

The freedom of speech and expression is basic to and indivisible from a democratic polity. It includes right to impart and receive information. Restriction to the said right could be only as proved in Art.19 (2) Right of a voter to know the bio-data of a candidate is the foundation of democracy. The old dictum – let the people have the truth and freedom to discuss it and all will go well with the Government – should prevail. (2003)

A successful democracy is based on awareness of  citizenry. The right to information was elevated to the status of a human right, necessary for making governance transparent and accountable. It was also emphasized that governance must be participatory (2004)9

The right to information principle is applicable to all the three organs of the State. The Judiciary is believed by the people and confidence on the system is purely on the transparency of enquiry , examination of witness, hearing the both sides of the case in open court in front of the conflicting claimants and delivering the judgment in open court are all the some of the aspects of the transparency applied and practiced by judiciary. Now the people of India expect the similar practice in the administrative part of Judiciary in the matter of appointment, transfer, disciplinary action against the erring judges in law levels such as subordinate courts, High courts and Supreme Court. Delhi high court had made the rules under RTI Act enabling the court to refrain the parties from certain information. But the RTI activist and CIC has made certain effort which was responded well by CJ by modifying the rules to reflect of sprit of right to information. This aspect was supported by the effort of Parliament by the department related Parliamentary committee for Personnel, Public grievances, Law and Justice

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