Open Government and Right to Information
The most important function of democracy is open access of Government actions to its citizens. Keeping this in mind, framers of the Indian constitution divided the powers into three organs viz. legislature, executive, and judiciary.
The three organs acted as a system of checks and balances. However, in order to provide for more openness in the Government and to increase efficiency, the legislature introduced the Right to Information Act. With the Right to Information being considered as inherent to Article 19(1)(a) of the Constitution.
Table of Contents:
- Three Organs of Indian Constitution
- Defect in RTI Act
- Attorney General v. Jonathan Cape Ltd.
- SP Gupta v. Union of India
- Nand Lal More v. The State
- Official Secrets Act Vis-À-Vis Right To Information
- Sama Alana Abdulla v. State of Gujarat
- Buddhikota Subbarao v. State of Maharashtra
Right to Information Act has by far been the closest a common man can get to know the functioning of the Government. However, in democracies like India, it is by far the most neglected right as well. The right to information act provides the right to the Government to deny any information sought as protected by Section 8 and 9 of the Right to Information Act which bars giving information when it violates private party copyright.
Defect in RTI Act
Another major defect that this Act has is the non-disclosure of information by any authority which does not fall under public purview. Thus, even when public funds or interest is involved at large in the non-public authority, information cannot be sought under the Right to Information Act.
However, in the last decade or so, freedom of information of public undertakings activities have been recognized as an internationally protected human right.
Furthermore, open government and the right to information work hand-in-hand with each other. However, in National interests like public security, national threats, etc. all information cannot be given to the Public through the Right to Information.
And as held by the House of Lords in the landmark case of Attorney General v. Jonathan Cape Ltd. that “where an action was brought for an injunction to restrain the publication of the political diaries of a certain Cabinet Minister in the Labour Government of the late 1960s on the plea the publication of the diaries would reveal cabinet secrets and infringe the principle of collective responsibility of the government.”
This position was again observed by Justice Bhagwati in the case of SP Gupta v. Union of India, wherein it was held that “Open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.”
In another landmark judgment of Nand Lal More v. The State, Supreme Court observed that Section 5 of the Right to Information Act is the provision that acts as the helping hand for the Government by covering for provisions such as a budget leak, etc. Furthermore, this section relates to willful communication, retention or failure to take reasonable care of all information which has been entrusted in confidence to him by any person which has been entrusted in confidence to him by any person holding office, or which he has obtained or which he has had access to owing to his position.
OFFICIAL SECRETS ACT VIS-À-VIS RIGHT TO INFORMATION
The most plausible exception for the Government to deny the right to information to its citizens is the official secrets act. As held in the case of RK Karanjia v. Emperor, the most intriguing aspect of the Official Secrets Act is that there is very little case law reported on this statute. The efficacy of the statute rests on its presence as a symbolic statement and a warning.
The major problem with this act is the broad definition given to the word ‘secrets’. Under the act, any kind of information, which according to the Government must be kept secret is considered to be secret under the Act.
Thus, in other terms, it gives vast powers to the Government to determine which information is secret and which is not?
With Supreme Court clarifying the definition of secret in the case of Sama Alana Abdulla v. State of Gujarat, held that the word ‘secret’ in clause (c.) of sub-section (1) of Section 3 qualifies official code or password and not any sketch, plan, model, article, note, document, or other information. Therefore, a sketch, plan, model, article, note or document need not even be secret in order to avail of the protections under the Act. Any sketch, plan, model, document, etc. as the Government determines to be an ‘Official Secret’ will therefore avail of the protections under the Act.
Similarly, Bombay High Court in the case of Buddhikota Subbarao v. State of Maharashtra again clarified the position regarding the official secrets act and held that “It is by now well settled that such words take colour from the context. While interpreting the words or statutory provisions, it becomes necessary to have regard to the subject matter of the statute and the object, which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the word occurs, the object of the statute in which the provision is included and the policy underlying the statute, assume relevance and become material.”.
The openness of the Government is an important feature of any democracy and so it is in India. With the Right to Information Act being introduced, it felt that openness is becoming the trend, with the Government allowing its citizens to ask questions regarding the functioning of the Government. With every comes reasonable restriction, restrictions needed to be imposed on Right to Information as well.
However, the problem with the official secrets act is that it is in the hands of the Government to decide which information to treat as secret and which not to. With so much liberty given to the Government, the citizens are again on the same stance with Government deciding which information to disclose and which not to.