Right to Information Law

UNIT-I INTRODUCTION
1. Meaning and Scope of Right to Information
RTI stands for Right to Information: Right to Information Act 2005
mandates timely response to citizen requests for government information.
Right to Information empowers every citizen to seek any information from
the Government, inspect any Government documents and seek certified
photocopies thereof. Right to Information also empowers citizens to
official inspect any Government work or to take the sample of material
used in any work. Right to Information Act 2005, which became
effective on 13th October 2005, provides that machinery. Therefore, Right
to Information Act does not give us any new right. It simply lays down the
process on how to apply for information, where to apply, how much fees
etc.
Meaning: S.2 (j) right to information" means the right to information
accessible under this Act which is held by or under the control of any
public authority and includes the right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printouts where such
information is stored in a computer or in any other device.
Under this Act, the citizen has been given the Right to Information,
which means the right to obtain information from all public authorities.
The right to information has been defined quite elaborately; it includes the
right to: (a) inspect works, documents and records.
(b) take notes, extracts or certified copies of documents/records/samples.
(c) obtain information in printed or electronic form, e.g., printouts,
diskettes, floppies, tapes, etc.
However, two conditions must be satisfied for obtaining any
information under the Act by a citizen:
1. Firstly, the information should be held by the public authority or should
be under the control of a public authority, and
2. Secondly, the information must not be exempt from disclosure as per
the Act. Any citizen can exercise this right by making a request in writing
under the Act.
Right to Information includes the right to: Inspect works, documents,
and records. Take notes, extracts or certified copies of documents or
records. Take certified samples of material. Obtain information in form of
printouts, diskettes, floppies, tapes, video, and cassettes or in any other
electronic mode or through printouts. “information” means any material in
any form, including records, documents, memos, e-mails, opinions,
advice, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a public
authority under any other law for the time being in force.
“Record” includes:
a) Any document, manuscript and file
b) Any microfilm, microfiche, and facsimile copy of a document
c) Any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
d) Any other material produced by a computer or any other device;
A combined reading of Section 2(f), 2(j) and 2(i) would show that a
citizen is entitled for disclosure of information which is in a material form
with a public authority and "information and right to seek does not include
opinions, explanations, etc.
Right to Information is a part of fundamental rights under Article
19(1) of the Constitution. Article 19 (1) says that every citizen has
freedom of speech and expression.
● 1976, the Supreme Court said in the case of Rajnarayan Vs State of
U.P., that people cannot speak or express themselves unless they know.
● Therefore, Right to Information is embedded in Article 19 and is a
fundamental right.
Even though RTI is a fundamental right, still we need RTI Act to give us
this right. This is because if you went to any Government Department and
told the officer there, “RTI is my fundamental right and that I am the
master of this country. Therefore, please show me all your files”, he would
not do that. In all probability, he would throw you out of his room.
Therefore, we need machinery or a process through which we can exercise
this fundamental right.
Scope: What you can do with RTI?
The Act covers all the constitutional authorities, including Executive,
Legislature and Judiciary; any institution or body established or
constituted by an act of Parliament or a state legislature. Citizen can
inspect any government documents, inspect any government works etc.
Under the provisions of the Act, any citizen may request information from
a “public authority” (a body of Government or “instrumentality of
State”) which is required to reply expeditiously or within thirty days. The
Act also requires every public authority to computerize their records for
wide dissemination and to proactively disclose certain categories of
information so that the citizens need minimum recourse to request for
information formally. This law was passed by Parliament on 15 June 2005
and came fully into force on 12 October 2005.
What type of information can be requested through RTI?
The citizens can seek any information from the government authorities
that the government can disclose to the parliament.
Some information that can affect the sovereignty and the integrity of India
is exempted from the purview of RTI.
Information relating to internal security, relations with foreign countries,
intellectual property rights (IPR), and cabinet discussions are exempted
from RTI.
Objectives of the RTI Act
 Empower citizens to question the government.
 The act promotes transparency and accountability in the working of the
government.
 The act also helps in containing corruption in the government and work
for the people in a better way.
 The act envisages building better-informed citizens who would keep
necessary vigil about the functioning of the government machinery.
 An informed citizenry will be better equipped to keep necessary vigil on
the instruments of government and make the government more
accountable to the governed.
 To guarantee that individuals have access to information.
 To encourage administration transparency.
 To avoid arbitrary administrative decisions.
 To make sure that public governance is accountable.
 To keep corruption at bay.
 Well-informed citizens are critical to a democracy’s success.
 To make the govt and its agents answerable to the public they govern.
Make the govt more receptive, to put it another way.
Problems in accessing information
 Laws like the Official Secrets Act, Indian Evidence Act and the Civil
Servants Code of Conduct Rules contain provisions that restrict the
fundamental right to information
 Culture of secrecy prevalent in government
 Lack of accountability in public office
 People do not know where to go for information
 Illiteracy
 Badly maintained records
Need of RTI Law
 Law is needed to make access to information a reality for every citizen
 A law will operationalise the fundamental right to information
 Legislation will help set up systems and mechanisms that facilitate
peoples’ easy access to information
 Law will promote transparency and accountability and enable people’s
participation in governance
 Law will help minimise corruption and inefficiency
in public offices
Significance of the RTI Act
 The RTI Act, 2005 empowers the citizen to question the secrecy and
abuse of power practiced in governance.
 It is through the information commissions at the central and state levels
that access to such information is provided.
 RTI information can be regarded as a public good, for it is relevant to
the interests of citizens and is a crucial pillar for the functioning of a
transparent and vibrant democracy.
 The information obtained not only helps in making government
accountable but also useful for other purposes which would serve the
overall interests of the society.
 Every year, around six million applications are filed under the RTI Act,
making it the most extensively used sunshine legislation globally.
 These applications seek information on a range of issues, from holding
the government accountable for the delivery of basic rights and
entitlements to questioning the highest offices of the country.
 Using the RTI Act, people have sought information that governments
would not like to reveal as it may expose corruption, human rights
violations, and wrongdoings by the state.
 The access to information about policies, decisions and actions of the
government that affect the lives of citizens is an instrument to ensure
accountability.
 The Supreme Court has, in several judgments, held that the RTI is a
fundamental right flowing from Articles 19 and 21 of the Constitution,
which guarantee to citizens the freedom of speech and expression and
the right to life, respectively.
Recent Amendments
 The RTI amendment Bill 2013 removes political parties from the ambit
of the definition of public authorities and hence from the purview of the
RTI Act.
 The draft provision 2017 which provides for closure of case in case of
death of applicant can lead to more attacks on the lives of
whistleblowers.
 The proposed RTI Amendment Act 2018 is aimed at giving the Centre
the power to fix the tenures and salaries of state and central information
commissioners, which are statutorily protected under the RTI Act. The
move will dilute the autonomy and independence of CIC.
 The Act proposes to replace the fixed 5-year tenure with as much
prescribed by the government.
 Criticism of RTI Act
 One of the major set-back to the act is that poor record-keeping within
the bureaucracy results in missing files.
 There is a lack of staffing to run the information commissions.
 The supplementary laws like the Whistle Blower’s Act are diluted, this
reduces the effect of RTI law.
 Since the government does not proactively publish information in the
public domain as envisaged in the act and this leads to an increase in the
number of RTI applications.
 There have been reports of frivolous RTI applications and also the
information obtained have been used to blackmail the government
authorities.
Constitutional Basis of RTI
The Preamble to the Constitution describes India as a Sovereign
Democratic Republic. The interpretation of the rights conferred by the
Constitution thus has to take its colour from the Democratic Republic
character of our body politic.
Article 19 (1) (a) of the Constitution, guarantees the fundamental rights to
free speech and expression, which, by implication, includes within it the
right of access to information. The prerequisite for enjoying this right is
knowledge and information. Therefore, the Right to Information becomes
a Constitution right, being an aspect of the right to free speech and
expression, which includes the right to receive and collect information.
However, Article 19 (2) permits the state to make any law insofar as such
law imposes reasonable restrictions on the exercise of the rights conferred
by Article 19 (1) (a) of the Constitution.
The right to information also seems to flow from Article 21 of the
Constitution on the right to life and liberty, which includes the right to
know about things that affect our lives. The expression “right to life and
personal liberty” is broad which includes within itself a variety of rights
and attributes. For sustaining and nurturing that opinion it becomes
necessary to receive information. Thus Article 21 confers on all persons a
right to know which includes a right to receive information.
The ambit and scope of Article 21 is much wider as compared to Article
19 (1) (a). Article 32 and 226 of the Constitution guarantee ‘right to
constitutional remedies’ whereby a citizen is entitled to seek a remedy in
the Supreme Court and High Courts if his or her fundamental rights are
violated. Under Article 253, the Parliament has the power to make law for
giving effect to international agreements, and under Article 51, the State
is duty-bound to foster respect for international law and treaty obligations
in the dealings of organized people with one another. The Constitution sets
out the duties owed by every citizen under Article 51 A. A fully informed
citizen is better equipped for the performance of these duties. Access to
information would assist citizens in fulfilling these obligations. Further,
Article 361A which deals with ‘Protection of publication and proceedings
of Parliament and State Legislatures, creates protection against actions for
defamation arising from lawful and accurate parliamentary reporting. This
implies that the media can inform the people about what is happening in
the legislatures without fear of being sued.
As a result of the prolonged Indian national movement against the British
imperialist colonial rule, the liberal democratic political system with a
written Constitution includes rule of law, social justice, development,
adult franchise, periodic elections, multiparty system, has come into
existence. For the transparent functioning of the democratic political
system, the founding fathers of the Constitution include the provisions of
the right to expression in part three of the Constitution in the fundamental
rights.
While there is no specific right to information or even right to freedom of
the press in the Constitution of India, the right to information has been
read into the Constitutional guarantees which are a part of the chapter on
Fundamental Rights. The Indian Constitution has an impressive array of
basic and inalienable rights contained in Chapter three of the Constitution.
These include the Right to Equal Protection of the Laws and the Right to
Equality before the Law, the Right to Freedom of Speech and Expression,
and the Right to Life and Personal Liberty. The Right to Constitution
Remedies in Article 32, backs these that is, the Right to approach the
Supreme Court in case of infringement of any of these rights.
The development of the right to information as a part of the Constitution
Law of the country started with petitions of the press to the Supreme Court
for enforcement of certain logistical implications of the right to freedom of
speech and expression such as challenging governmental orders for
control of newsprint bans on the distribution of papers, etc. It was these
cases that the concept of the public’s right to know developed.
Supreme Court on Right to Information
Romesh Thappar v. State of Madras (1950)
One of the earliest cases where the Supreme Court emphasized the
people’s right to know.
In this case, the petitioner challenged an order issued by the then
Government of Madras under Section 9 (1-A) of the Madras
Maintenance of Public Order Act, 1949 imposing a ban on the
circulation of the petitioner’s journal ‘Cross Roads’. The order was
struck down by the SC as violative of the right to freedom of speech and
expression under Article 19(1)(a).

State of UP vs Raj Narain (1975)

One of the prominent instances, when the Supreme Court took cognizance
of the public demand for the right to information, was in State of UP vs
Raj Narain (1975). The SC ruled that:
In a government of responsibility like ours where the agents of the
public must be responsible for their conduct, there can be but a few
secrets. The people of this country have a right to know every public act,
everything that is done in a public way by their public functionaries.
They are entitled to know the particulars of every public transaction in
all its bearings (State of UP vs Raj Narain Supreme Court of India,
1975).

Dinesh Trivedi v. Union of India (1977)

This case concerned the questions of the disclosure of the Vohra
Committee Report, the Supreme Court once again acknowledged the
importance of open Government in a participative democracy. The Court
observed that:
“In modern constitutional democracies, it is axiomatic that citizens have
a right to know about the affairs of the Government which, having been
elected by them, seeks to formulate sound policies of governance aimed
at their welfare.” It went on to observe that “democracy expects
openness and openness is concomitant of a free society and the sunlight
is a disinfectant”.

SP Gupta & others vs The President of India and others (1982)

In the year 1982, the Supreme Court in the case of SP Gupta & others vs
The President of India and others held that the right to information was a
fundamental right under the Indian Constitution.
In this case, the petitioners questioned the validity of Central Government
orders on the non appointment of two judges. To support their claim, the
petitioners sought the disclosure of correspondence between the Law
Minister, the Chief Justice of Delhi, and the Chief Justice of India. The
state claimed privilege against disclosure of these documents under article
74(2) of the Indian Constitution and section 123 of the Indian Evidence
Act. 3 Article 74(2) provides that the advice tendered by the Council of
Ministers to the President cannot be inquired into in any court Justice
Bhagwati rejected the government’s claim for protection against
disclosure and directed the Union of India to disclose the documents
containing the correspondence.
An open and effective participatory democracy requires accountability
and access to information by the public about the functioning of the
government. Exposure to the public gaze in an open government will
ensure a clean and healthy administration and is a powerful check
against oppression, corruption, and misuse or abuse of authority. The
concept of an open Government is the direct emanation from the right to
know which seems implicit in the right of free speech and expression
guaranteed under Article 19(1) (a). Therefore, disclosures 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 to attenuate the area of secrecy as much as possible consistently
with the requirement of public interest, bearing in mind all the time that
disclosure also serves an important aspect of public interest” (Supreme
Court of India in SP Gupta & others vs The President of India and
others, 1982).

Indian Express Newspapers Pvt. Ltd. v. Union of India (1984)

In this case, the SC directed the central government to re-examine its
taxation policy by evaluating whether it constituted an excessive burden
on newspapers. The petitioners, including newspaper companies and
employees, argued that an import duty led to an increased cost of
newspapers and a drop in circulation, thereby adversely affecting freedom
of speech and expression. The Court reasoned that a government can levy
taxes on the publication of newspapers, however within reasonable limits
to not encroach upon freedom of expression.
3
S. 123 of Evidence Act provides that evidence derived from
unpublished official records on state affairs cannot be given without
the permission of the head of the concerned department.
Freedom of expression, as learned writers have observed, has four broad
social purposes to serve: (i) it helps an individual to attain self-
fulfillment, (ii) it assists in the discovery of truth, (iii) it strengthens the
capacity of an individual in participating in decision-making, and (iv) it
provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change. All members of
society should be able to form their own beliefs and communicate them
freely to others. In sum, the fundamental principle involved here is the
people’s right to know. Freedom of speech and expression should,
therefore, receive a generous support from all those who believe in the
participation of people in the administration.

Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay

(P) Ltd. (1988)
Justice Mukharji recognized the right to know as emanating from the right
to life. The question which arose was whether Reliance Petrochemicals
Ltd. was entitled to an injunction against Indian Express which had
published an article questioning the reliability of the former’s debenture
issue. The learned Judge observed:
“We must remember that the people at large have a right to know in
order to be able to take part in a participatory development in the
industrial life and democracy. Right to know is a basic right which
citizens of a free country aspire in the broader horizon of the right to
live in this age on our land under Article 21 of our Constitution. That
right has reached new dimensions and urgency. That right puts greater
responsibility upon those who take upon themselves the responsibility to
inform.”

PUCL v. Union of India (2004)

The Peoples Union for Civil Liberties approached the Supreme Court
challenging Section 33B of the Representation of People (Third
Amendment) Act which nullified the decision in Association for
Democratic Reforms (2002) by providing that candidates contesting
elections need not file an affidavit of criminal antecedents and particulars
as directed by the Court.
This provision was held unconstitutional and void as it infringed the
“right of electors' to know”, a constituent of the fundamental right to
free speech and expression and hindered free and fair elections, which
is part of the basic structure of the Constitution. Subsequently, all
criminal records and antecedents of candidates contesting elections are
now mandated to be matters of public record.

2. Historical Background
“The foundation of democracy is freedom of expression”
The idea of democracy is to be always transparent with its citizen as
“Democracy is a government of the people, by the people, and for the
people”. Our constitution gives its citizens the right to freedom of speech
and expression through “Article 19(1) of the Indian constitution”.
The RTI act is one of the most important acts which empowers ordinary
citizens to question the government and its working. This has been widely
used by citizens and media to uncover corruption, progress in government
work, expenses-related information, etc.
Objectives of the Act
 To empower the citizens

 To promote transparency and accountability

 To control corruption and

 To enhance people’s participation in democratic process.

Reasons for Adoption of Information Act

The factors responsible for adoption of information act are as follows-
 Corruption and scandals

 International pressure and activism

 Modernization and the information society

Challenges
 Different types of information is sought which has no public interest

and sometimes can be used to misuse the law and harass the public
authorities. For example-
o Asking for desperate and voluminous information.

o To attain publicity by filing RTI

o RTI filed as vindictive tool to harass or pressurize the public

authority
 Because of the illiteracy and unawareness among the majority of

population in the country, the RTI cannot be exercised.

 Though RTI’s aim is not to create a grievance redressal mechanism,

the notices from Information Commissions often spur the public

authorities to redress grievances.
It goes without saying that an informed citizen is better equipped to keep a
required track on governance instruments and hold the government
responsible to the governed. The Act is a significant step in informing
citizens about the activities of the government.
All constitutional authorities, agencies, owned and controlled, also those
organisations which are substantially financed by the government comes
under the purview of the act. The act also mandates public authorities of
union government or state government, to provide timely response to the
citizens’ request for information.
An act aimed at Establishing the Practical Right Information System for
Citizens to Secure Information under the Control of Public Officials, To
Promote Transparency and Accountability in the Working of Every Public
Authority. This Act Provides for the Organization Of A Central
Information Commission And State Information Commissions And For
Matters Linked to Or Related to Thereto. This act is known as the Right to
Information Act (RTI)
. Indian Perspective
The privilege of secrecy that existed long back during the Colonial British
rule in India, no longer survives in the present -day democratic set up of
governance and the State can no longer be allowed to function in an
arbitrary and vindictive manner of keeping the public in dark about their
governmental and also administrative activities. Thus there was a need for
particular legislation to promote the accountability, transparency and
openness among the public authorities and the citizens within a state.
India after the Freedom of Information Act, 2000 was repealed, Right to
Information Act, 2005 was introduced and was passed by the Parliament
of India. Before the enactment of this Act there were many different
efforts for establishing a new legislation, there were many campaigns and
movements to support the RTI Law. Some of them are:
(a) Mazdoor Kisan Shakti Sangthan Campaign (MKSS);
(b) The National Campaign on People's Right to Information;
(c) The Commonwealth Human Rights Initiative Campaign (CHRI);
(d) Consumer and other groups, etc.
Some states also started adopted this Law i.e.; Right to Information such
as Tamil Nadu, Karnataka, Goa, Rajasthan, Delhi, Maharashtra, Uttar
Pradesh, Bihar, etc. Therefore, the Act begins to fulfil the main objectives
of the RTI Law.
1975 — SC said that there is a right to information and citizens have a
right to know and receive a notification when a matter is a concern of
public interest.
This was famously said in the case of The State of U.P v. Raj Narain and
others (1975 AIR 865, 1975 SCR (3) 333)
Case summary: After losing the election to Indira Gandhi by a large
margin, A lawsuit was brought by Raj Narain against Indira Gandhi in the
Allahabad High Court. She claimed that she used public machinery to win
an election and also exceeded the amount of money used that was, 35000
to win the election.
Raj Narain filed a petition to the U.P government to produce a blue book
which was not produced on the grounds of the Section 123 Evidence Act
of 1872 high court gave the verdict in favour of Raj Narain which was
again challenged by Indira Gandhi in the supreme court.
1982: The petitioners, in this case, asked the government to turn up
specific communication between the Chief Justice of the Delhi High
Court, the Union Law Minister, and the CJI. Given that the Supreme Court
is now deliberating the case, this would be essential to how it turned out.
The government said that disclosure was prohibited because such
correspondence was protected by “state privilege.”
Conclusion: The Supreme Court rejected the argument and ruled that
accountability, openness, and transparency are the three key components
of effective government. And these may only be used when someone has
an unhindered right to know. The correspondence must be produced,
according to a Supreme Court order.
1985: Following the Bhopal gas catastrophe, environmental NGOs filed
an intervention petition with the Supreme Court demanding access to
information about environmental risks.
1989: Then Prime Minister candidate VP Singh promised the people of
India to bring transparency law and amend the Official Secrets Act, but
they did not materialize this promise because of the instability of the
coalition government.
1990: Formation of Mazdoor Kisan Shakti Sangathan (Wikipedia
Contributors, “Mazdoor Kisan Shakti Sangathan”) a political
organization known for its demand for RTI and launching village-level
information.
1996: Formation of National Campaign for People’s Right to Information
(NCPRI, 1996) (Wikipedia Contributors, “National Campaign for
People’s Right to Information”).
1996: NCPRI and activists from all over India, with the assistance of the
Press Council of India (PCI, 1966) Wikipedia Contributors (“Press
Council of India”), drafted the RTI bill and sent it to the government of
India under the guidance of Justice PB Savant.
1997: The Shourie Committee (INSIGHTS) was created by the
government to gather recommendations regarding the bill’s
implementation.
Between all of this, Tamil Nadu passed legislation on the right to
information, becoming the first state to do so.
Furthermore, states like Rajasthan (2002), Karnataka (2000), Delhi (2001).
2000: A case was brought before the Supreme Court to introduce RTI.
2001: Parliamentary committee gave its recommendation.
2002: Ultimatum given by the Supreme Court for implementation of RTI
act
2002: They passed the Freedom of Information Bill (THE FREEDOM of
INFORMATION BILL, 2000 the Bill Introduced in Parliament In)
brought in by the NDA government after four years in both houses of
parliament.
2004: National election strengthening of RTI was promised by the
Congress party in its manifesto.
2004: Congress party came into power with a coalition government (UPA)
they again stressed RTI and formed the National Advisory Council (NAC)
under Mrs. Sonia Gandhi (“Sonia Appointed Chairperson of NAC”).
2004: NCPRI drafted the bill again and sent it to NAC, and they slightly
modified it and sent the bill to the government and tabled it with a new
name, RTI.
2004: RTI 2004 bill which was presented only has union government
under it and no state or local government can come under it people
protested again for it as most of the information required by common
people rested on state and local government.
2005: The revised bill was presented in the parliament covering both
central and state government, passed by both houses of parliament.
2005: The RTI law received the president of India’s approval in June.
12th Oct 2005: RTI bill becomes entirely functional.
Subject to the provisions of this Act, all citizens have the right to
information. Public authorities are required to disclose information. Public
Information Officers serve as the intermediary between the information
seeker and the public authority.
Here's a timeline-table elucidating upon this entire journey:-
Supreme Court of India rules that the people of India have a
1975
right to know.
Supreme Court rules that the right to information is a
1982
fundamental right.
Intervention application in the Supreme Court by
1985 environmental NGOs following the Bhopal gas tragedy, asking
for access to information relating to environmental hazards.
Election promise by the new coalition government to bring in a
1989
transparency law.
Government falls before the transparency law can be
1990
introduced.
1) Formation of the National Campaign for People’s Right to
Information(NCPRI).
1996 2) Draft RTI bill prepared and sent to the government by
NCPRI and other groups and movements, with the support of
the Press Council of India.
1) Government refers the draft bill to a committee set up under
the Chairmanship of H.D. Shourie.
1997
2) The Shourie Committee submits its report to the
government.
A cabinet minister allows access to information in his ministry.
1999
Order reversed by PM.
1) Case filed in the Supreme Court demanding the
institutionalization of the RTI.
2000
2) Shourie Committee report referred to a Parliamentary
Committee.
2001 Parliamentary Committee gives its recommendations.
2002 1) Supreme Court gives ultimatum to the government regarding
 the right to information.
2) Freedom of Information Act passed in both houses of
Parliament.
Freedom of Information Act gets Presidential assent, but is
2003
never notified.
National elections announced, and the “strengthening” of the
2004
RTI Act included in the manifesto of the Congress Party.
Government sets up a National Advisory Council (NAC) under
June 2004
Mrs. Sonia Gandhi.
NCPRI sends a draft bill to the NAC, formulated in
August consultation with many groups and movements. NAC discusses
2004 and forwards a slightly modified version, with its
recommendations, to the government.
RTI Bill introduced in Parliament and immediately referred to
December
a Parliamentary Committee. However, Bill only applicable to
2004
the central government.
Bill considered by the Parliamentary Committee and the
Jan-April
Council of Ministers and a revised Bill, covering the central
2005
and the state governments introduced in Parliament.
May 2005 The RTI Bill passed by both houses of Parliament.
June 2005 RTI Bill gets the assent of the President of India.
October
The RTI Act comes into force.
2005
First abortive attempt by the government to amend the RTI
2006
Act.
Second abortive attempt by the government to amend the RTI
2009
Act.

. Global Perspective
 The right to information gained power when Universal Declaration of
Human Rights was adopted in 1948 providing everyone the right to
 seek, receive, information and ideas through any media and regardless
of frontiers.
 The International Covenant on Civil and Political rights 1966 states

that everyone shall have the right to freedom of expression, the freedom
to seek and impart information and ideas of all kinds.
 According to Thomas Jefferson “Information is the currency of

democracy,” and critical to the emergence and development of a vibrant

civil society. However, with a view to set out a practical regime for the
citizens to secure information as a matter of right, the Indian Parliament
enacted the Right to Information Act, 2005.
 Genesis of RTI law started in 1986, through judgement of Supreme

Court in Mr. Kulwal v/s Jaipur Municipal Corporation case, in

which it directed that freedom of speech and expression provided under
Article 19 of the Constitution clearly implies Right to Information, as
without information the freedom of speech and expression cannot be
fully used by the citizens.
Sweden
On December 2, 1766, Sweden passed the world’s first Freedom of
Information Act, 1766. In Sweden, this statute established press freedom,
with those at stake including the government, courts, and parliament. As a
result, Sweden’s constitution acknowledged that press freedom is
dependent on access to information.
France
Article 14 of the French Constitution states that “all people have the
right to determine, by themselves or via their representatives, the necessity
of a public tax, to voluntarily consent to it, to monitor its use, and to set its
proportion, basis, collection, and duration.”
The United Kingdom
Since the olden days, democracy has been the fundamental precept of
England, but secrecy rather than openness is emphasised. This is due to
the legislature’s and the executive’s natural desire to enshroud policies
rather than make them clear. The Freedom of Information Act of 2005
was passed in England. However, the current law is based on the Official
Secrets Acts of 1911, 1920, and 1939. The English judiciary has endorsed
government transparency. The House of Lords’ ruling in the case of
Conway v. Rimmer, 1968, established its jurisdiction to require the
publication of any document. It was also urged that a balance be
maintained between the competing goals of secrecy and publicity. Lord
Steyn’s statement in the case of R. v. Secretary of State for the Home
Department, Ex P. Simms, (2000) demonstrates the importance of
freedom of expression in English law:
“Freedom of speech is the lifeblood of democracy.” Political discourse is
informed by the free movement of information and ideas. It serves as a
safety valve; individuals are more willing to accept choices that go against
them if they may, in theory, try to alter them. It functions as a check on
public officials’ misuse of authority. It allows the uncovering of flaws in
the country’s administration and the delivery of justice…”
The United States
America is the oldest democracy in the world and hence often used
interchangeably. America appears to be the torchbearer of a variety of
democratic rights that should be part of a truly democratic framework. The
same is true for information distribution. Antipathy toward intrinsic
secrecy is thus not a characteristic displayed by Americans. According to
Schwartz, “Americans genuinely believe in the beneficial benefits of
exposure and have a strong aversion to the inherent secrecy of government
entities.” RTI is granted by two major statutes: the Freedom of
Information Act of 1966 and the Administrative Procedure Act of
1946. The right to information is not directly addressed in the United
States Constitution. However, such a right is regarded as a consequence
of the First Amendment freedoms. In the case of Lamont v. Post Master
General (1965), the Supreme Court decided that a legislative provision
constituted a restraint on the unrestricted exercise of First Amendment
rights and so declared it unconstitutional. Similarly, in Stanley v. Georgia
(1969), it was established that free speech safeguards the right to acquire
information.
The United Nations
In 1946, the United Nations General Assembly issued a resolution on
freedom of information that declared, “Freedom of information is a basic
right that underpins all of the freedoms to which the United Nations is
dedicated.” The right to gather, communicate, and publish news
everywhere and everywhere is implied by freedom of information. As
such, it is a vital aspect in any genuine endeavour to encourage the peace
and growth of the world.
The Universal Declaration of Human Rights (UDHR) is regarded as a
pivotal point in human rights history. It was developed by representatives
from all around the world with diverse legal and cultural backgrounds, and
it embodied the spirit of oneness despite its practical variances. It was
established as a shared standard of success for all peoples and nations by
the United Nations General Assembly in Paris on December 10, 1948
(Resolution 217 A). Certain basic human rights that were to be uniformly
guaranteed were established for the first time. The Universal Declaration
of Human Rights specifically states in Article 19(2), “Everyone shall have
the right to freedom of speech, which shall include the freedom to: seek,
receive, and impart knowledge; regardless of boundaries – orally, in
writing, or in print.”
Conclusion: Undoubtedly RTI is a landmark step in the progress of
transparency in government functioning and not only the government
should be applauded, but the credit should be given to citizens as well for
raising their voices for change as it has transformed the scenario of Indian
democracy where now the government is answerable to the people of
India this goes on to show that if people come together and raise their
voice for the injustice that is happening to them, they can overpower any
hurdle they want.
Many more countries are coming out and implementing different forms of
RTI in their country to make their government more transparent more than
100 countries have some kind of law and regulation in which they give
their citizens access to government information Right to information has
transformed a lot in every part of the world it was started in Sweden in
1776 and now most of the countries are taking part in this kind of
celebration of democracy.
3. Media Access to Official Information
 “Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas though any media and regardless
of frontiers” this is stated in Article 19 of Universal Declaration of
Human Rights adopted by the United Nations.
Media is a powerful and essential tool in providing information
without restriction to the public at large which is an important requirement
for the functioning of a democratic system of a country. People are unable
to take part in the affairs of the country if they are unaware of what is
happening in their society or if the actions of those who are ruling or
governing them, which makes media as an important medium for them to
know this.
Article 19(1) of the Indian Constitution gives the citizens of India the
right to freedom of speech and expression. But this right will be said to be
incomplete if it does not include access of information. Right to receive
and impart information is an integral part of Article 19(1) but this also
comes with reasonable restrictions, if there is any under clause (2) of
Article 19. The nature of this right has been discussed in various cases
decided by the Supreme Court. The landmark case of Secretary, Ministry
of I & B, Government of India v. Cricket Association of Bengal (1995)
the Supreme Court held that “The freedom of speech and expression
includes right to acquire information and disseminate it. Freedom of
speech and expression is important for self-expression and it enables
people to contribute to debates on social and moral issues. It is the only
vehicle of political discourse so essential to democracy.
In India press is not absolutely free they have some reasonable
restrictions under Article 19(2) of the Indian Constitution, which makes
RTI becomes an important tool for the journalists. As press freedom is
partial the media can use RTI to get information about the government.
RTI enables media to expose corruption, inefficiency or mal-
administration of the government.
The right to communicate, therefore, includes the right to communicate
through any media that is available whether print or electronic or audio-
visual such as advertisement, article, speech, etc. This is why freedom of
speech and expression also includes freedom of press. The freedom of
press includes right to circulate and also to determine the volume of such
circulation. It also includes the freedom to communicate or circulate one’s
opinion without interference to as large a population in country as well as
abroad, as possible to reach.”
So, it was held that the right to impart and receive information from the
electronic media is a part to right to freedom of speech and expression. In
the case of Benett Coleman (1973), the Supreme Court held that right to
information is included within the right to freedom and speech of
expression guaranteed by Article 19(1)(a) of the Constitution.
In the case of Raj Narain (1975) the Supreme Court stated that:
“The people of this country have a right to know every public act,
everything that is done in a public way by their public functionaries.
They are entitled to know the particulars of every public transaction in all
its bearings.” RTI is considered vital for the media and it’s an endeavour
for the media to be watch dog for the society. It has encouraged the media
and the society to think at large and ask questions about state affairs and
promoting accountability.
Union of India v. Association for democratic Reforms the court held
that all candidates for election to Parliament and to the legislative
assemblies were required to furnish information about the candidates
criminal record, if any, his or her assets and liabilities and educational
qualification. The court held that the requirement of disclose this
information arose from every citizen’s fundamental rights to information
which flows from the right to free speech and expression under Article
19(1)(a). The court relied on a number of previously decided cases where
the SC interpreted the right to free speech and expression to include the
public’s right of knowledge on public affairs.
The government promptly responded with an ordinance professing to
introduce electoral reforms but which was really aimed at undoing the
effect of the Supreme Court judgment.
In Jyoti Basu v. Debi Ghosal the Hon’ble Apex court held that securing
information on basic details concerning the candidates contesting for
elections to Parliament or the State Legislature promotes freedom of
expression and therefore the right to information forms an integral part of
Article 19(1)(a) of the constitution of India.
Justice Sabyasachi Mukherji in Reliance Petrochemicals Ltd. V.
Proprietors of Indian Express Newspapers Bombay Ltd. & Others10,
held the right to Information as a Fundamental Right under Article 21 of
the Constitution. He observed:-
“We must remember that the people at large have a right to known in
order to able to take part in a participatory development in the industrial
life and democracy. Right to know is a basic right which citizens of a
free country aspire in the broader horizon of the right to live in this age in
our land under Article 21 of our Constitution. That right had reached new
dimensions and urgency. That right puts greater responsibility upon those
who take part themselves in the responsibility to inform.”
This principle was even more clearly enunciated in a later case in Indian
Express Newspapers (Bombay) Pvt. Ltd. v. India where the court
remarked, “The basic purpose of freedom of speech and expression is that
all members should be able to form their beliefs and communicate them
freely to others. In sum, the fundamental principle involved here is the
people’s right to know.”
In State of Punjab v. Sodhi Sukhdev Singh the Supreme Court give a
very narrow interpretation about right to information. Court said if head
of the department does not give permission for their production, the court
cannot compel the state to produce them. Once the court came to the
conclusion that the document involved fell into category of “affairs of
state” than it would be left to the head of department to decide whether its
production should be permitted or not
Media can play a very constructive and vital role in the governance
process of the country:
 Providing information to the citizens and creating awareness about the

RTI Act,2005
 Acting as a catalyst on implementation of the Act by acting in his role

of the fourth pillar of the democracy

 Giving voice to the citizens
 Acting as a watchdog on behalf of citizens
The only block in the path of journalism has always been not getting
access to official information but the RTI Act, 2005 has solved this
problem. But still there are some government authorities who have been
adamant in denying information by claiming exemptions using various
circulars of government departments and court orders. So, it is important
for the media to play a good and honest role of a mediator between the
government and the citizens to provide information by carefully
interpreting facts and evidences while digging out the truth. The media
must be free of any bias or favoritism and should consider its
independence as a valuable asset for the citizens making it to be an agent
of empowerment for the society.
RTI AND ROLE OF MEDIA
As experience has shown, the independence of the media can be fragile
and easily compromised. It is clear that to support development the media
needs the right environment – in terms of freedoms, capacities, and checks
and balances. The Right to Information regime does give the media that
critical support. In fact, mass media is the most important vehicle for
information, knowledge and communication in a democratic polity:
a) They are pervasive and play a significant role in shaping societies; they
provide the public sphere of information and debate that enables social
and cultural discourse, participation and accountability.
b) They are the most accessible, cost-effective and widespread source of
information and platform for expression.
Information is power. The media can play a crucial role in building an
inclusive Information Society based on knowledge power and its
distribution. For media to fulfill its potential, actions are required in three
Key Areas:
1. To protect and extend media freedom and independence, and rights of
access to information;
2. To actively develop the potential of media to provide information, a
forum for debate on topics of public interest, cultural expression and
opportunity to communicate, especially to the poor and marginalised;
3. To strengthen the capacity of media to promote and help build an
Information Society– raising awareness, channelling civil society
concerns, debating policies and holding government, private sector and
civil society accountable.
Traditional systems of information access in India have made
journalists dependent on sources they must cultivate. Whether bureaucrats
or politicians, much depends on the privilege and patronage of the
individual source. Such relationships of patronage not only make
journalists depend on very feudal relationships, it often makes them use
the information regardless of its veracity.
An RTI regime can enable credible, evidence-based and factual
reporting on key issues of public interest. It can enable the media to
expose mal-administration, corruption and inefficiency and to propagate
stories and instances relating to accountability, transparency, effective
administration and good governance. By using the RTI Act, the media can
play an important role in highlighting issues related to public service
delivery and the efficacy and accountability of public officials.
Under the RTI Act, 2005 the journalists & reporters, like citizens,
can:
 Government information pertaining to any of its departments.
 Photocopies of Government contracts, payment, estimates,
measurement of engineering works, etc.
 Government certified samples of material used in construction of roads,
drains, buildings, etc.
 To inspect any public development work that may be under construction
or is completed.
 To inspect Government documents- construction drawings, record
books, registers, etc.
 Status of requests or complaints, details of time delays, actions taken on
Information Commission’s decisions, etc.
• Demand from the Government information pertaining to any of its
departments.
• Demand photocopies of Government contracts, payment, estimates,
measurements of engineering works etc.
• Demand from the Government certified samples of material used in the
construction of roads, drains, buildings etc.
• Demand to inspect any public development work that may be still under
construction or completed
• Demand to inspect Government documents, construction drawings,
records books, registers, quality control reports etc.
• Demand status of requests or complaints, details of time delays, action
taken on Information Commission’s decisions etc.
The media can play a constructive role in the governance process by:-
• Catalyzing Effective Implementation of the Act: As the ‘fourth pillar of
democracy’, the media not only has an important stake in what the RTI
Act purports to provide and achieve, but also in catalyzing and
entrenching the implementation and enforcement of this significant
piece of legislation.
• Providing Information to the Citizens and Building Awareness on the
Act: Despite the provisions that have been made to access information,
citizens resort to media like newspapers, radio, television etc. for day to
day information about public authorities and their activities. The media
provides a link between the citizens and their government. The media’s
right to information or right to tell is not a special privilege but rather,
an aspect of the public’s right to know. The media should fulfill this
obligation.
• Giving Voice to the Citizens: As part of the civil society, the media has
an obligation to articulate the needs and aspirations of the people. Using
the Act, the media can highlight key issues faced by the citizens,
particularly those faced by the poor and voiceless.
• Acting as a Watchdog on behalf of the Citizens: The best service that
the media can provide to the public, whether in a mature or emerging
democracy, is that of a community watchdog.
• Journalists should see and perform their role keeping in mind public
interest. Using RTI, the media can expose corruption and inefficiency.
However, in performing a watchdog role and digging out the truth,
journalists should be careful in interpreting facts and evidence.
• It is important that the media plays the role of an honest broker of
information for its readers without deliberate bias or favouritism. The
media must consider its independence to be its most valuable
commercial, editorial and moral asset.
• Maintaining its independence through professional behaviour and a
code of conduct that is subscribed to by all journalists, the media can be
a powerful user of the RTI Act and an agent for the empowerment of
people through an Information Society. The objective of the Act to
usher in a practical regime of right to information cannot be attained
without a proactive role played by the media.

4. Right to Information and Human Rights Violations

The freedom of speech and expression includes right to acquire
information and disseminate it. Freedom of speech and expression is
necessary for self-fulfillment. It enables people to contribute to debates on
social and moral issues. It is the best way to find a truest model of
anything, since it is only through it that the widest possible range of ideas
can circulate. It is the only vehicle of political discourse so essential to
democracy. Equally important is the role it plays in facilitating artistic and
scholarly endeavours of all sorts.
The purpose of the press is to advance the public interest by publishing
facts and opinions without which a democratic electorate cannot make
responsible judgments.
In one of the leading English case, Lord Simon of Glaisdale has said that
the public interest in freedom of discussion (of which the freedom of the
press is one aspect) stems from the requirement that members of a
democratic society should be sufficiently informed that they may
influence intelligently the decisions which may affect themselves.
Freedom of expression has four broad social purposes to serve:
i. It helps an individual to attain self-fulfillment;
ii. It assists in the discovery of truth;
iii. It strengthens the capacity of an individual in participating in decision-
making; and
iv. It provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change.
In our democratic set up the enlightenment of the electorate is very
important for the fair functioning of the democracy i.e., for the fair
election of the representatives of the power of the people of India. It is we,
the people of our country, who will decide the future of our country. So, it
is possible only if we are well informed about the choices we have to
make. It is only the knowledge, the information that can show us the right
path.
All members of society should be able to form their own beliefs and
communicate them freely to others. In sum, the fundamental principle
involved here is the people’s right to know. Freedom of speech and
expression should, therefore, receive a generous support from all those
who believe in the participation of people in the administration.
The concept of an open government is the direct emanation from the right
to know which seems to be implicit in the right of free speech and
expression guaranteed under Article 19(1) (a). Therefore, disclosure of
information in regard to the functioning of the government must be the
rule and secrecy an exception. To conclude, right to information is a basic
human right and even Article 19 of the International Covenant on Civil
and Political Rights (ratified in 1978) declares that: “Everyone has the
right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference, and to seek, and receive and impart
information and ideas through any media and regardless of frontiers”. The
Supreme Court of India while interpreting Article 19(1)(a) of
Constitution. Right of expression, thus, indisputably is a fundamental
right, a basic human right.
Access to information is at the foundation of a democracy. The right to
know has been seen to be at the base of the democratic process and in
Romesh Thapar v. State of Madras, the Supreme Court of India found
the freedom of discussion to be included in Article 19(1)(a) of the
Constitution and the freedom of press to be an aspect of the freedom of
discussion so that members of a democratic society should be sufficiently
informed to ‘be able to form their own beliefs and communicate them
freely. The fundamental principle is the people’s right to know’. Later in
many cases this view has been amplified by the Supreme Court.
In Maneka Gandhi v. Union of India, in S.P Gupta v. Union of India, it
has been held for a clean and healthy administration and effective
participatory democracy the information or the means of obtaining it, is
very important.

5. Right to Information different from Right to know

Right to Information Right to obtain Information/
Right to know
1 Article 19(1)(a) of the Article 21 enshrine ‘right to life and
constitution guarantees the a person liberty’ are compendious
fundamental right to free speech term which include within
and expression. themselves variety of right and
attributes.
2 Right to Information empowers Right to be informed simply means
ordinary citizens to question the being transparent and allowing
government and its working. someone to access the information
This has been widely used by that it requires; it also include right
citizens and media to uncover to receive information.
corruption, progress in
government work, expenses
related information, etc.
3 The Right to Information has The right to be informed is legally
already received judicial recognised under the Right to
recognition as a part of the Information Act, 2005.
fundamental right to free speech
and expression.
4 The right to information forms Right to know is also closely linked
the crucial underpinning of with other basic rights such as
participatory democracy it is freedom of speech and expression
essential to ensure accountability and right to education.
and good governance.
5 If the information is denied by They also provide strong incentive
 the authorities at any time for firm to undertake self-regulation
without a justified cause, the and reduce risky activities; when
citizens have the right to companies face a choice between,
approach the appellate courts to say , disclosing harmful substances
enforce their rights under this in their product and reformulating
Act. the product to eliminating the
harmful substances, often they
chose to eliminate the substances.
6 The right to information has Right to be informed is one of the
been recognized as a most important consumer rights.
fundamental human right, which
upholds the inherent dignity of
all human beings.
7 In the Raj Narain vs the State of In R.P Ltd v Indian express news
Uttar Pradesh case, the Supreme paper the SC reads right to know in
Court ruled that Right to article 21. The SC held that right to
information will be treated as a know is a necessary ingredient of
fundamental right under article participatory democracy. In view of
19. The Supreme Court held that translational development when
in Indian democracy, people are distance are shrinking international
the masters and they have the communities are coming together
right to know about the working for cooperation in various sphere
of the government. and they are moving toward the
Thus the government enacted the global preparative in various field
Right to Information act in 2005 including human right, the
which provides machinery for expression liberty must receive and
exercising this fundamental expanded meaning.
right.

6. Basic Elements of Right to Information Law

 Right to Information is a Fundamental Right
 IT is a part of the Fundamental Right to Freedom of Speech and
Expression recognised in various Supreme Court decisions.
 IT is directly linked to the Right to Life - the Supreme Court has
widened the definition of Right to Life to include the right to food,
health, education, liberty, etc. denial of information is a denial of these
rights.
 The RTI Act lets people look at government documents and ask for any
public information from the government.
 All government bodies, whether state, central or local, are liable to
respond to an RTI query. All government-owned organisations are also
liable to provide information under RTI Act.
 A Public Information Officer (PIO) will be designated to handle RTI
queries. This person accepts the request forms and gives the public the
information they want.
 Assistant PIOs work in every district or divisional level and help people
get information.
 Every person who wants to get information under the RTI Act must fill
out an application in Hindi or English and send it in by email. If you
can’t write it, PIOs will assist in putting your oral request in writing.
 If the applicant is deaf, blind, or has disabilities, the public authority
must offer assistance and access to the documents sought.
 The applicant doesn’t need to explain why they want the information or
give any other personal information.
 The applicant can file a complaint against the PIO if he doesn’t give
him the information he needs on time.
 Any information that can be given to the legislative assembly must be
given to any applicant under the RTI Act.
 PIOs are liable to pay a fine of Rs. 250 per day for delay in not
furnishing the required information to an applicant.
Objectives
The Right to Information (RTI) Act is required because of a number of
significant elements that highlight how vital transparency, accountability,
and citizen participation are in a democratic society:
*Transparency in Governance: The RTI Act addresses the requirement
for an open, transparent government that makes its choices, acts, and
policies known to the general public. Between citizens and government
institutions, this transparency contributes to the development of credibility
and trust.
*Citizen empowerment: People have a right to know how their
government works and what factors influence its decisions. By giving
people access to information, the RTI Act gives people the power to make
informed decisions and actively engage in the democratic process.
*Preventing Corruption and Mismanagement: The RTI Act’s
transparency serves as a disincentive to unscrupulous behavior and the
abuse of authority by government agencies. By enabling citizens to
examine activities and expenses, it lowers the possibility of corruption and
encourages efficient administration of public resources.
*Accountability and accountability: The RTI Act ensures that public
officials and institutions stay accountable for their actions and choices by
allowing citizens to request information and explanations from public
authorities. This encourages a culture of accountability and ethical
conduct.
*Effective Policy Formulation: Information access aids citizens in
understanding the justification for government actions and choices. In
turn, this makes it possible for public conversations and debates to be
more fruitful, which help policy makers, make better decisions.
*Protecting Fundamental Rights: The freedom of speech and expression
is dependent on the right to knowledge, which enables people to exercise
their fundamental liberties by learning about the laws and policies that
impact them.
*Encouraging Good Governance: The RTI Act is an essential tool for
supporting a well-functioning and equitable society by encouraging good
governance values including transparency, accountability, responsiveness,
and inclusivity.
*Preventing Arbitrary Decisions: Because of the RTI Act, public
authorities must now give good grounds for their judgments. This prevents
arbitrary behaviors and encourages just and equitable decision-making.
*Strengthening Democracy: For a democracy to thrive, its citizens must
be informed. By ensuring that citizens have the capacity to access
information and hold their government responsible, the RTI Act helps to
maintain the health of democratic institutions.
Salient features of RTI Act 2005
Several notable characteristics of India’s Right to Information (RTI) Act
contribute to the promotion of transparency, accountability, and citizen
participation in governance. The RTI Act’s major characteristics are as
follows:
* Right to Access Information: The RTI Act gives Indian residents the
ability to seek for and get a variety of government-related information
from public agencies.
* Application to Public Authorities: The Act is applicable to all central
and state government departments, agencies, and ministries as well as
organizations that receive significant government funding.
* Information Request Method: Citizens have three options for
submitting information requests: verbally, electronically, or in writing.
Public authorities must respond in a predetermined amount of time,
typically 30 days.
* Proactive Disclosure: In order to avoid the necessity for formal
requests from individuals, public bodies are required to proactively
disclose certain kinds of information to the public.
* Information Commissions: Each state and union territory have an
information commission specifically tasked with monitoring the RTI Act’s
implementation, including hearing appeals, handling complaints, and
enforcing sanctions for non-compliance.
* Grounds for Denial: The Act encourages openness but also specifies
circumstances in which information may be withheld, including national
security, business confidentiality, and individual privacy.
* Public Interest Override: Even though material is exempt, it must be
released if the benefit to the public outweighs the harm that would result
from keeping it a secret.
* Fees and Costs: Public agencies may charge a small cost for supplying
information; the amount depends on the nature of the request and the
format of the information, among other things.
* Electronic Format: Requesting and providing information in electronic
form makes it much easier to obtain and disseminate.
* No Need to Specify Reason: Citizens are not need to state their purpose
for requesting information, preventing pointless barriers from standing in
the way of information access.
* Whistleblower Protection: By protecting individuals from
victimization, the Act offers protection to those who disclose corruption or
wrongdoing.
* Appeals Process: Individuals have the option of appealing to the
Information Commission’s higher levels if their request for information is
turned down or not handled properly.
* Support for open government: The RTI Act upholds open government
values by allowing citizens to examine government activities, decisions,
and policies.
* Building awareness and capacity: Public bodies are urged to run
campaigns to inform people about the Act and their rights. Public
information officers who purposefully conceal information or give
misleading information may be subject to penalties for non-compliance.

Basic Elements of RTI/FOI Law

1. Minimal Exceptions
Some information that can affect the sovereignty and the integrity of India
is exempted from the purview of RTI. Information relating to internal
security, relations with foreign countries, intellectual property rights
(IPR), cabinet discussions are exempted from RTI. Empower citizens to
question the government.
Public interest override: This means that even if the information is
exempted from disclosure under the law, if the disclosure is in the public
interest, the information in question shall be disclosed.
2. Duty to Inform – Suo motto disclosures
The purpose of suo motu disclosures under Section 4 is to place large
amount of information in public domain on a proactive basis to make the
functioning of the Public Authorities more transparent and also to reduce
the need for filing individual RTI applications. Example for obtaining
information, including the working hours of a library or reading room, if
maintained for public use.
3. Accountability Provisions
The RTI aims at promoting accountability and transparency in the working
of every public authority has turn out to be a norm with secrecy as
exception. This law empowers Indian citizens to seek any accessible
information from a Public Authority and makes the Government and its
functionaries more accountable and responsible.
4. Provisions for setting up systems to maintain records and store
information for easy retrieval
Best practice requires that records are created and managed in accordance
with clear, well-understood filing, classification and retrieval methods
established by a public office as part of an efficient records management
programme. With new technology being developed all the time, it is
important that records management guidelines deal with how to manage
electronic records as well. A good system will develop guidelines for all
four stages in the 'life' of a record:
 the creation or acquisition of the record;

 its placement within a logical, documented system that governs its

arrangement and facilitates its retrieval throughout its life;

 its appraisal for continuing value, recorded in a disposal schedule and

given effect at the due time by appropriate disposal action;

 its maintenance and use, that is, whether it is maintained in the

creating office, a records office, a records centre or an archival

repository, and whether the use is by its creator or a successor in
function or by a third party, such as a researcher or other member of
the public.
5. Reasonable Fee Structure
To get information under RTI act, application fee is only ₹. 10/- to be paid
by affixing a 10 rupee court fee stamp if it is State governnent public
authorities; by enclosing a postal order for ₹. 10/- to central governnent
public authorities.
The Supreme Court bench said public authorities cannot ask for more than
₹5 for each page as photocopying charge, and an application need not
mention the ‘motive’ while filling out the form.
The upper limit of ₹50 as application fee that government authorities can
charge those seeking information under the right to information (RTI) act,
the country’s transparency law.
It was pointed to the top court that the Allahabad high court asked ₹500 as
application fees and ₹15 as photocopying charges.
6. Time limits for providing information.
In normal course, information to an applicant shall be supplied within 30
days from the receipt of application by the public authority. If
information sought concerns the life or liberty of a person, it shall be
supplied within 48 hours. (Sec 7(1) of RTI Act, 2005)
7. Be applicable to private bodies too/Inclusion of Private Bodies
Private entities, including private schools, colleges, cooperative
societies/banks, private sector banks, insurance companies, public/private
trusts, private service providers, and public limited companies, come
under the purview of the RTI Act when they engage in 'public'
functions. Need for Information from Private Body is also growing with
increase in privatization of public works. RTI for private companies isn't
directly subject to the Right to Information (RTI) Act, as it typically
applies to public/government bodies. ‘Private companies' information,
including “RTI for private companies,” is governed by their internal
policies and relevant laws, like data protection regulations.
8. Protection of Privacy
Section 8 (1)(j) of the RTI Act states that information which relates to
personal information will be exempted from RTI Act, if its disclosure has
no relationship to any public activity or interest or if it would cause
unwarranted invasion of the privacy of the individual. If the information
sought to be declared by the citizens cannot be disclosed because it affects
the interests, security of the nation or for preserving confidential
information that is sensitive, then the Personal Information is protected.
9. Protection of Whistleblowers
The term “Whistle blowing” is used to describe conduct in which a person
uncovers the details which are considered to be unlawful, immoral, or
misconduct either to the public or within an organization. The
whistleblower in India may be an existing or an ex-employee who reveals
information about what is suspected to be corruption, wrongdoing, fraud,
or violation from the company’s policies and laws.
Whistleblowers Protection Act, 2011 is an Act of the Parliament of India
which gives a system to examine affirmed defilement and abuse of power
by community workers and furthermore secure any individual who
uncovered alleged wrongdoing in government bodies, activities, and
workplaces. The malpractices or wrongdoings may appear as
misrepresentation, defilement, or botch.
10. Publicity and Training
Publicity stories on cases where citizens managed to access information
revealing public inefficiency or corruption
• Publicity stories on successful appeals to Information Commission
• Publicity stories on cases where information was wrongly withheld by
PIOs
• Publicity stories on specific decisions by Information Commissions.
• Profiles of organizations promoting RTI
•Personality stories on Information Commissioners, prominent
personalities and activists involved in the RTI campaign
• Write-ups on Right to Information in general
• Significant initiatives undertaken by civil society organizations and
community based organizations
• Editorials
• Social Audit Case Studies
Training: The training module is most flexible according to the
requirement of Client Organisation. The training module can be developed
on the areas in which much focus is required to the officers/staff of the
Client organization. The trainer wants to conduct training to the
officers/staff of public Authority to create awareness among them on RTI
Act 2005 and to deal with RTI petitions effectively. His motive is only to
render service to the persons who need it. He wants to share his wide
experience and knowledge with the participants.

7. Factors Restricting Free Flow of Information

Regardless of the constitutional provisions, the system of governance in
India has traditionally been opaque, with the State retaining the colonial
Official Secrets Act (OSA) and continuing to operate in secrecy at the
administrative level. The Central Civil Service Conduct Rules, 1964 also
strengthened the OSA by prohibiting government servants from
communicating any official document to anyone without authorization.
The major factors which influence the free flow of information are
bureaucratic culture, illiteracy and absence of effective communication
tools.
No doubt, there is need for administrative secrecy in certain cases. No one
wants classified documents concerning national defence and foreign
policy to be made public till after the usual period is over. But, at the same
time, every citizen has a right to know how the Government is
functioning. Right to Information empowers every citizen to seek any
information from the Government, inspect any Government documents
and seek certified photocopies thereof. Some laws on Right to Information
also empower citizens to official inspect any Government work or to take
sample of material used in any work.
The information to the applicant shall ordinarily be provided in the form in
which it is sought. However, if the supply of information sought in a
particular form would disproportionately divert the resources of the public
authority or may cause harm to the safety or preservation of the records,
supply of information in that form may be denied.
The Act gives the right to information only to the citizens of India. It does
not make provision for giving information to Corporations, Associations,
Companies etc. which are legal entities/persons, but not citizens.
However, if an application is made by an employee or office-bearer of any
Corporation, Association, Company, NGO etc. who is also a citizen of
India, information shall be supplied to him/her, provided the applicant
gives his/her full name. In such cases, it will be presumed that a citizen
has sought information at the address of the Corporation etc.
Sub-section (1) of section 8 and section 9 of the Act enumerate the types
of information which is exempt from disclosure. Sub-section (2) of section
8, however, provides that information exempted under sub-section 3(1) or
exempted under the Official Secrets Act, 1923 can be disclosed if public
interest in disclosure overweighs the harm to the protected interest.
(Sec 8 of RTI Act,2005)
The free flow of information in India remains severely restricted by
three factors:
1. The legislative framework includes several pieces of restrictive
legislation, such as the Official Secrets Act, 1923;
2. The pervasive culture of secrecy and arrogance within the bureaucracy;
and
3. The low levels of literacy and rights awareness amongst India's people.
The primary power of RTI is the fact that it empowers individual Citizens
to requisition information. Hence without necessarily forming pressure
groups or associations, it puts power directly into the hands of the
foundation of democracy- the Citizen.
In the Constitution, Article 19 has been interpreted to mean that right to
information is one of the essential ingredients of Article 19(1).
After going through Article 19 of the Constitution, it is pertinent to note
that the interpretation of the provisions of the Constitution is the duty of
the Supreme Court of India and the law declared by the Supreme Court is
binding under Article 141 of the Constitution which reads as under: “The
law declared by the supreme court shall be binding on all courts within the
territory of India.”
When we come to the interpretation of Article 19 of the Constitution vis-a-
vis right to information, the Supreme Court of India has laid down that
right to information is a fundamental right under Article 19(1)(a) of the
Constitution. The state under clause (2) of Article 19 of the Constitution,
however, is entitled to impose reasonable restrictions, inter alia in the
interest of the state. Right of information is a facet of the freedom of
 “speech and expressions” as contained in Article 19(1)(a) of the
Constitution.
Right of information, thus, indisputably is a right of freedom of speech
and expression guaranteed by Article 19(1)(a) of the Constitution. A
citizen has a fundamental right to use the best means of imparting and
receiving information and as such to have an access to telecasting for the
purpose.
The people of this country have a right to know every public act,
everything that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public transaction in all
its bearing. The right to know, which should make one wary, when
secrecy is claimed for transactions which can, at any rate, have no
repercussion on public security.
1. Legislative background of the Right to Information Act, 2005
A. Section 8 in the Right to Information Act, 2005,
i. Exemption from disclosure of Information, information disclosure of
which would prejudicially affect the sovereignty and integrity of India
ii. Information which has been expressly forbidden to be published by
any court of law or tribunal.
iii. Information, the disclosure of which would cause a breach of
privilege of Parliament or the state legislature;
iv. Information including commercial confidence, trade secrets, or
intellectual property, the disclosure of which would harm the
competitive position of 3rd party.
v. Information available to the person in his fiduciary relationship
vi. Information received in confidence from foreign government;
vii. Information, the disclosure of which would endanger the life or
physical safety of any person or identify. The source of information or
assistance given in confidence for law enforcement or security
purposes;
viii. Information which would impede the process of investigation or
apprehension or prosecution of offenders
ix. Cabinet papers including records of deliberation of the council of
ministers secretaries and other officers
x. Information which relates to personal information, the disclosure of
which has not relationship to any public activity or interest, or which
would cause unwarranted. Unwarranted invasion of the privacy of the
individual.
B. The official secret act, 1923:- Section 5 of this act has a wide ambit. It
virtually prohibits the disclosure of information which the government
considers to be confidential (Secret).
C. Dividends Act, 1872:- Section 123 and 124 of the Indian Evidence
Act, 1872 has placed restriction on using official information as evidence.
Section 124 disallows the compelling of an officer to disclose
communication made to him in official confidence when he started, that
public interest will be suffered by disclosure.
D. All India Service Conduct Rules 1968: This Act through section 9
provides the civil servants shall not divulge in official information.
E. Other acts:- Colon lastly certain acts contain provision against the
disclosure of information for example atomic energy act 1962 place
several restriction on the releasing of information about atomic plants.
F. The Atomic Energy Act, 1912 provides that it shall be an offence to
disclose information restricted by the Central Government.
G. The Central Civil Services Act provides a government servant not to
communicate or part with any official documents except in accordance
with a general or special order of government.
H. The Official Secrets Act, 1923 provides that any government official
can mark a document as confidential so as to prevent its publication.
2. Bureaucratic culture.
1. Culture of secrecy prevalent in government, lack of accountability and
the public office.
2. Illiteracy,
3. Absence of effective communication tools and storage.
4. Badly maintained record by government office.
3. The low levels of literacy and rights awareness amongst India's
people: Because of the illiteracy and unawareness among the majority of
population in the country, the RTI cannot be exercised.
4. Different types of information is sought which has no public interest
and sometimes can be used to misuse the law and harass the public
authorities. For example-
o Asking for desperate and voluminous information.

o To attain publicity by filing RTI

o RTI filed as vindictive tool to harass or pressurize the public authority

5. Though RTI’s aim is not to create a grievance redressal mechanism, the

notices from Information Commissions often spur the public authorities to
redress grievances.
6. Other Issues
 Information commissioners do not have adequate authorities to enforce

the RTI Act.

 In case of award of compensation to activist by public authority as

ordered by commision, compliance cannot be secured.

 Poor record-keeping practices

 Lack of adequate infrastructure and staff for running information

commissions
 Dilution of supplementary laws like the whistleblowers protection Act.

Applicability
The Act applies both to Central and State Governments and all public
authorities. A public authority (sec. 2(h)) which is bound to furnish
information means any authority or body or institution of self-government
established or constituted
(a) by or under the Constitution,
(b) by any other law made by Parliament,
(c) by any other law made by State Legislature,
(d) by a notification issued or order made by the appropriate Government
and includes any
(i) body owned, controlled or substantially financed,
(ii) non-government organization substantially financed-which, in clauses
(a) to (d) are all, directly or indirectly funded by the appropriate
Government.
 UNIT-II: THE RIGHT TO INFORMATION ACT, 2005
1. Preliminary (Section 1 to 2)
Section 1. Short title, extent and commencement.
(1) This Act may be called the Right to Information Act, 2005.
(2) It extends to the whole of India.
(3) The provisions of sub-section (1) of section 4, sub-sections (1) and (2)
of section 5, sections 12, 13, 15,16, 24, 27 and 28 shall come into force at
once, and the remaining provisions of this Act shall come into force on the
one hundred and twentieth day of its enactment.
2. Definitions.-In this Act, unless the context otherwise requires,
(a) "appropriate Government" means in relation to a public authority
which is established, constituted, owned, controlled or substantially
financed by funds provided directly or indirectly
(i) By the Central Government or the Union territory administration, the
Central Government;
(ii) By the State Government, the State Government;
(b) "Central Information Commission" means the Central Information
Commission constituted under sub-section (1) of section 12;
(c) "Central Public Information Officer" means the Central Public
Information Officer designated under sub-section (1) and includes a
Central Assistant Public Information Officer designated as such under
sub-section (2) of section 5;
(d) "Chief Information Commissioner" and "Information
Commissioner" mean the Chief Information Commissioner and
Information Commissioner appointed under sub-section (3) of section 12;
(e) "competent authority" means—
(i) the Speaker in the case of the House of the People or the Legislative
Assembly of a State or a Union territory having such Assembly and the
Chainnan in the case of the Council of States or Legislative Council of a
State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of a High Court;
(iv) the President or the Governor, as the case may be, in the case of other
authorities established or constituted by or under the Constitution;
(v) the administrator appointed under article 239 of the Constitution;
(f) 'information" means any material in any form, including records,
documents, memos, e-rnails, opinions, advices, press releases, circulars,
orders, logbooks. contracts, reports, papers, samples, models, data material
held in any electronic form and information relating to any private body
which can be accessed by a public authority under any other law for the
time being in force;
(g) "prescribed" means prescribed by rules made under this Act by the
appropriate Government or the competent authority, as the case may be;
(h) "public authority" means any authority or body or institution of self-
government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(ci) by notification issued or order made by the appropriate Government,
and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or
indirectly by funds provided by the appropriate Government;
(i) "record" includes—
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a computer or any other device;
(j) "right to information" means the right to information accessible
under this Act which is held by or under the control of any public
authority and includes the right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printouts where such
information is stored in a computer or in any other device;
(k) "State Information Commission" means the State Information
Commission constituted under sub-section (1) of section 15;
(l) "State Chief Information Commissioner" and "State Information
Commissioner mean the State Chief Information Commissioner and the
State Information Commissioner appointed under sub-section (3) of
section 15;
(m) 'State Public Information Officer" means the State Public
Information Officer designated under sub-section (1) and includes a State
Assistant Public Information Officer designated as such under sub-section
(2) of section 5;
(n) "third party" means a person other than the citizen making a request
for information and includes a public authority.

2. The Central Information Commission (Section 12 to 14)

Section 12 of the Right to Information Act, 2005 deals with the
constitution of a statutory body known as the Central Information
Commission. According to this provision, the central government shall
constitute a body called the Central Information Commission bypassing a
notification in the Official Gazette. The Central Information Commission
is entitled to exercise the powers conferred to it and perform its duties and
functions as per this legislation. The Government of India through the
Parliament of India amended the Right to Information Act in July 2019
and introduced some changes in RTI Rules related to salaries, allowances,
and tenures of the Information Commissioner(s). The members of
opposition parties started protesting and challenging these proposed
amendments on the ground that these changes are arbitrary in nature and
the Government of India wants to degrade the effectiveness of the
Information Commission.
Salient features of Section 12 of the RTI Act
Section 12 of the Right to Information Act, 2005 is termed as the
constitution of the Central Information Commission. Furthermore, the
salient features of this section are as follows:
 Section 12(1): This subsection empowers the central government to

constitute a body known as the Central Information Commission.

 Section 12(2): As per sub-clause (2) of Section 12, the Central

Information Commission should consist of the Chief Information

Commissioner and such other Chief Information Commissioners not
more than 10 as may be deemed necessary.
 Section 12(3): As per sub-clause (3) of Section 12, the Chief

Information Commissioner and other Information Commissioners shall

be appointed by the President of Republic of India on the
recommendation of a committee consisting of; the Prime Minister of
India, as the Chairperson of the committee; the leader of the single
largest group in opposition of the Government of India in Lok Sabha;
the Union Cabinet member shall be nominated by the Prime Minister of
India.
 Section 12(5): As per sub-clause (5) of Section 12, the Chief

Information Commissioner and other Information Commissioners

should be the person of acknowledge superiority in public life and
possess wide knowledge and experience in the field of law, technology,
social science, management, science, mass media, journalism,
governance, and administration.
 Section 12(6): As per sub-clause (6) of Section 12, the Chief

Information Commissioner and other Information Commissioners shall

not hold any office of profit or should not be the Member of Parliament
or shall not be the Member of any State/Union Territory Legislative
Assembly, or shall not be pursuing any profession or carrying any
business or shall not be connected with any political party.
 Section 12(7): As per sub-clause (7) of Section 12, the headquarters of

the Central Information Commission shall be at Delhi and the Central

Information Commission may, with the previous approval of the Central
Government, establish offices at other places in India.
 Chapter II
3. Right to Information and Obligations of Public Authorities
(Section 3 to 11)
Section 3 of the Act provides for the right of the citizens to obtain
information subject to the provisions of the Act.
Obligations of public authorities: Section 4
Section 4(1) lists the following obligations of public authorities:
1. Maintenance of records: Every public authority is required to maintain
all its records duly catalogued and indexed. In order to facilitate access
to its records, the public authority shall ensure that all the records that
are appropriate for computerisation are computerised and connected
through a network across the country on various systems within a
reasonable time frame and according to resource availability.
2. Publication of certain matters: Every public authority is required to
publish certain particulars within 120 days of the enactment of the Act,
some of which are enumerated below:
 the particulars of its organisation, functions, and duties;

 the powers and duties of its officers and employees;

 the procedure followed in the decision-making process, including

channels of supervision and accountability;

 where any arrangement exists for public representation or public

consultation in matter of policy formulation or implementation of

policy of public authority, the particulars of such arrangement;
 Employee directory of such public authority

 Monthly salary given to employees and officers

 Details of budget allocated to its agencies

 Details regarding manner of execution of subsidy programmes

 Details regarding information held in electronic form

 Particulars of facilities available to citizens for obtaining information

 Names and designations of the Public Information Officers etc.

3. While formulating key policies or decisions that affect the public, a

public authority must publish all the relevant facts regarding the same.
4. Every public authority shall provide reasons for its judicial or
administrative decisions to those affected by it.
Suo-moto furnishing of information: Section 4(2)
Section 4(2) provides for the obligation of the public authority to make
efforts for providing information suo moto to the public at regular
intervals using various modes of communication.
Dissemination of information: Section 4(3) and 4(4)
Section 4(3) provides for wide dissemination of information in a manner
that is easily accessible to the public.
Section 4(4) provides that the dissemination of information has to be done
after considering the following factors:
1. Cost-effectiveness,
2. Local language of an area, and
3. The most effective method of communication in a particular local area.
Designation of Public Information Officers: Section 5
 Section 5(1) provides for the designation of Central Public Information

Officers (CPIOs) and State Public Information Officers (SPIOs) by

every public authority within 100 days from the enactment of this Act.
Such officers have a duty to provide information requested under the
Act.
 Section 5(2) provides for the designation of Central Assistant Public

Information Officer or a State Assistant Public Information Officer at

each sub-divisional level or other sub-district level. Such officers shall
receive applications for information or appeals under the Act for
forwarding the same to the CPIO/SPIO or the senior officer specified
under Section 19(1) or the Central Information Commission or the State
Information Commission, as the case may be.
Duty/Function of public information officers
 Section 5(3) provides for the following duties of CPIOs and SPIOs:

1. To deal with requests from the person seeking information, and

2. To provide reasonable assistance to the person asking for information.
Request for obtaining information: Section 6
Manner of making a request for information
Section 6(1) provides for the manner of making a request by a person who
desires to obtain any information under this Act.
 Manner of making requests: In writing or through electronic means.

 Language: English/Hindi/official language of the area in which the

application is being made.

 Any fee: Such application shall be accompanied by the prescribed fee.

 To whom application is made: To the CPIO/SPIO of the concerned

public authority or to the Central Assistant Public Information

Officer/State Assistant Public Information Officer.
 Contents of application: Particulars of information sought by the

applicant.
When the request cannot be made in writing
The proviso to Section 6(1) deals with a case where the applicant has
made an oral request for information. It states that where a person cannot
make a written request, the CPIO/SPIO shall assist such person to reduce
his request in writing.
Applicant need not give his details
As per Section 6(2), a person seeking information under the Act need not
disclose any reason for such request or his personal details except such
information that might be required for contacting him.
When the information requested is held by another public authority,
etc.
Section 6(3) deals with the case where an application is made to a public
authority requesting information that is held by another public authority,
or the subject matter of which is more closely related with the functions of
another public authority. In this case, the public authority to whom the
application is filed must transfer the application, or the concerned portion
of it, to that other public authority and notify the applicant of the transfer
as soon as possible. The section provides for a maximum of five days for
transferring the application.
Disposal of request: Section 7
Period within which information to be furnished
Section 7(1) provides for expeditious disposal of the request for
information by the CPIO/SPIO. The CPIO/SPIO shall within thirty days of
receiving the request, either:
1. Accept the request which means providing information after the fee
prescribed has been paid, or
2. Reject the request for reasons as specified under Section 8 and Section
9.
Thus, a 30 day period is provided for responding to the request.
An additional period of five days is allowed in computing the period for
response in the following cases:
1. When the application is received through the Assistant Public
Information Officer.
2. When the application is received by way of transfer.
Also, the information sought has to be provided within 48 hours of
receiving the request where the said information concerns the life and
liberty of a person.
Failure to decide within 30 days deemed as a refusal
Section 7(2) provides that the failure of the CPIO/SPIO to decide on the
request for information within the prescribed period shall be deemed as a
refusal of the request.
Decision regarding fee
Section 7(3) deals with the case where the applicant is required to pay a
further/additional fee. The sub-section states that where a decision is made
to provide information on payment of any further fee representing the cost
of providing the information, the CPIO/SPIO shall send an intimation
regarding the same to the person making the request. Such intimation must
provide to the applicant:-
1. Information regarding the details of such additional fees as determined
by the CPIO/SPIO along with the calculations made to arrive at such an
amount. The intimation shall also request the applicant to pay such
additional fee;
2. Information regarding the right of the applicant to ask for a review of
the decision regarding fees or form of access. The details of the
 appellate authority, the time limit, the process of review, etc. are also
required to be intimated to the applicant.
Access to information
 Section 7(4): The CPIO/SPIO shall provide assistance to enable access

to the information where the person seeking such access is sensorily

disabled.
 Section 7(5): The applicant is required to pay such fee as may be

prescribed for access to information in the printed or electronic format.

According to the proviso attached to this sub-section, the fee charged
under the Act must be reasonable. Also, no fee can be charged from
those living below the poverty line.
 Section 7(6): Failure of the public authority to provide the information

within the prescribed time limit entitles the applicant for access to such
information free of any charge.
 Section 7(7): Before making a decision regarding furnishing of

information or rejection of a request, the CPIO/SPIO has to consider the

representation made by a third party under Section 11.
Rejection of request under sub-section (1)
Section 7(8) deals with the rejection of requests for information. In case,
the CPIO/SPIO rejects a request, he is required to communicate the
following particulars to the applicant:
1. reasons for such rejection;
2. the period within which he can file an appeal against the rejection;
3. the details of the appellate authority.
Form of information
Section 7(9) provides that generally, the information asked for under the
Act has to be provided in the form in which it is sought, except where:
1. It would lead to disproportionate diversion of the resources of the public
authority, or
2. It would prejudice the safety or preservation of the record in question.
Exemption from disclosure of information: Section 8
Section 8(1) lists the categories/types of information which is exempted
from disclosure under the RTI Act. There is no obligation to disclose such
information to any citizen. The categories of information so exempted
include:
1. Information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;
2. Information, publication of which has been expressly forbidden by
Court or tribunal;
3. Information, disclosure of which may amount to contempt of court;
4. Information, the disclosure of which would cause a breach of
parliamentary privilege
5. Information including trade secrets, commercial confidence or
intellectual property, the disclosure of which would jeopardise a third
party’s competitive position. Such information can be furnished if the
competent authority determines that it is necessary to disclose such
information in the public interest.
6. Information accessible to a person in his fiduciary relationship. Such
information can be furnished if the competent authority determines that
it is necessary to disclose such information in the public interest.
7. Information received in confidence from foreign government;
8. Information, the disclosure of which would endanger the life or physical
safety of any person or identify the source of information or assistance
given in confidence for law enforcement or security purposes;
9. the information that would obstruct the process of investigating,
apprehending, or prosecuting offenders etc.
Regardless of anything in the Official Secrets Act of 1923 or the
permissible exclusions under sub-section (1), a public authority may allow
access to information if the public interest in disclosure outweighs the
harm to protected interests.
Grounds for rejection to access in certain cases: Section 9
Section 9 provides that a CPIO/SPIO may reject a request for information
where it would lead to infringement of copyright owned by a person other
than the State.
Severability: Section 10
Section 10 provides that if a request for access to information is denied
because the disclosure of the information is prohibited by the Act, access
may be granted to that part of the record:
1. That does not contain any exempt information, and
2. Can be reasonably separated from any part that contains exempt
information.
Thus, Section 10 deals with the furnishing of information after severance
of non-exempt information from the information that is exempted.
Section 10(2) states that when access is granted to a part of a record under
sub-section (1), then the CPIO/SPIO shall give notice to the applicant,
informing him:
1. That only a part of the record requested is being provided after severing
the information that is exempted from disclosure;
2. Of the reasons for the decision;
3. Name and designation of the person who made the decision;
4. The details of the fees required to be paid by the applicant; and
5. Of his or her right to file for a review of the decision of non-disclosure
or regarding fee or the form of access provided and the particulars of
the authority competent to review.
Third-party information: Section 11
Section 11 contains the provision regarding the disclosure of information
related to a third party.
 Under Section 11(1), a third party has to be notified in writing when the

CPIO/SPIO intends to disclose:

1. Any information which relates to, or has been supplied by the third
party, and
2. Such information is treated as confidential by that third party.
Such written notice has to be given within five days of the receipt of the
request. The notice shall:
1. Inform the third party of such request and
2. Inform the third party of the fact that the CPIO/SPIO intends to disclose
such information and
3. Invite the third party to make a submission as to whether the
information should be disclosed.
Such submission shall be taken into consideration while taking a decision
regarding the disclosure of information.
The proviso to Section 11(1) states that such disclosure may be permitted
if the public interest in disclosure outweighs in importance any possible
harm or injury to the interests of such a third party. However, the proviso
shall not be applicable to trade or commercial secrets protected by law.
 Section 11(2) provides that the third party shall be given an opportunity

to make representation against the proposed disclosure within 10 days

from the date of receipt of notice under sub-section (1).
 According to Section 11(3), the CPIO/SPIO has to make a decision

regarding disclosure within 40 days of the receipt of a request under

Section 6, if the third party has been given an opportunity of making
representation under the previous sub-section. The notice of the
decision has to be given to the third party in writing by the CPIO/SPIO.
 The notice given under Section 11(3) must state that the third party is

entitled to file an appeal against the decision.

4. The State Information Commission (Section 15 to 17)

SECTION 15: Constituted by: State Government.
Membership: SIC consists of the following members:- State Chief
Information Commissioner State Information Commissioners (Maximum
no. of State Information Commissioners is 10.)
Who appoints the members of the Commission: Governor on the
recommendation of a Committee consisting of the following members:
Chief Minister (Chairperson of the Committee) Leader of Opposition in
Legislative Assembly; and A Cabinet Minister nominated by the Chief
Minister.
Role and responsibilities of the State Chief Information
Commissioner: Power of general superintendence and direction and
management of the affairs of SIC. The State Chief Information
Commissioner shall be assisted by the Information Commissioners. He has
the authority to exercise all the powers and do all acts which may be
exercised or done by the SIC.
Qualification of members: The State Chief Information Commissioner
and Information Commissioner shall be persons of eminence in public life
with wide knowledge and experience in law, science, technology, social
service, management, journalism, mass media, or administration and
governance.
Prohibition on membership: The State Chief Information Commissioner
and the Information Commissioners shall not: be an MP or MLA, orhold
any other office of profit or connected with any political party or engage
in any business or profession.
Headquarters: The headquarters of SIC shall be at such place in the State
as specified by the State Government by way of notification in the Official
Gazette. However, the SIC may establish its office at another place in the
State with the previous approval of the State Government.

SECTION 16: Term of office of State Chief Information

Commissioner: As prescribed by the Central Government.
Whether the State Chief Information Commissioner is eligible for
reappointment: No. No State Chief Information Commissioner shall hold
office after he has attained the age of 65 years.
Term of office of State Information Commissioners: As prescribed by
Central Government or till he attains the age of 65 years, whichever is
earlier.
Whether a State Information Commissioner can be reappointed as a
State Information Commissioner: No. However, he is eligible for being
appointed as the State Chief Information Commissioner, after vacation
from his office.
Tenure of the Information Commissioner appointed as the State Chief
Information Commissioner: Maximum 5 years in aggregate as the State
Information Commissioner and the State Chief Information
Commissioner.
Resignation of members of Commission: The State Chief Information
Commissioner and the State Information Commissioner(s) may resign
from the office by writing under his hand addressed to the Governor.
Section 16(6) provides for assistance to the State Chief Information
Officer and the State Information Officers by way of officials required by
them for the efficient performance of functions entrusted to them under
the Act.
SECTION 17: The power to order the removal from office of the State
Chief Information Commissioner or any State Information Commissioner
vests with the Governor under Section 17(1).
Grounds for removal under Section 17(1): Proved misbehaviour or
incapacity.
Manner/process of removal: The Governor sends a reference to the
Supreme Court for inquiry into the alleged misconduct. If after such
inquiry, the Supreme Court comes to the conclusion that the charges of
misbehaviour are proved and recommends the removal of such a member
in its report, the Governor shall remove such member. Interim suspension:
The Governor has the power: to suspend such member in respect of whom
reference is made to Supreme Court to prohibit such aforesaid member
from attending the office during enquiry, until the Governor has passed
orders on receipt of the report of the Supreme Court on such reference.
Disqualifications: Notwithstanding anything contained in sub-section (1),
the Governor has the power to remove the State Chief Information
Commissioner or the Information Commissioner if he is guilty of any of
the following acts: Declaration of insolvency Conviction for an offence
involving moral turpitude Engagement in paid employment outside
official duties Infirmity of mind or body Acquisition of such financial or
other interest which might affect prejudicely his functions as such member

5. Powers & Function of the Information Commission, appeals

& penalties (Section 18 to 20)
Powers and functions of Commission: Section 18
Section 18(1) provides for the duty of the CIC/SIC to receive and inquire
into a complaint from any person on the following grounds:
1. Where a person has been unable to submit a request to the CPIO/SPIO:
 Owing to the non-appointment of CPIO/SPIO, or
 Due to the refusal of the Central Assistant PIO or the State Assistant
PIO to accept his or her application for information or appeal under the
Act for forwarding the same to the CPIO/SPIO, as the case may be.
2. Refusal of access to any information requested under the Act.
3. Violation of time limit for providing information under the Act.
4. Where the fee required to be paid is considered unreasonable.
5. Providing incomplete, false, or misleading information.
6. With regard to other matters relating to obtaining access to records
under the Act.
Power to inquire [Section 18(2)]
Section 18(2) provides for the power of the Commission to initiate an
inquiry. The Commission is not bound to inquire into every complaint
received by it. The CIC/SIC may initiate an inquiry if it is satisfied that
there are reasonable grounds for the same.
Powers of the Civil Court to vest in the Commission [Section 18(3)]
Section 18(3) states that while inquiring into any matter under Section 18,
the CIC/SIC shall have the same powers as are vested in a civil court
while trying a suit under the Code of Civil Procedure, 1908. Those powers
are:
1. Power to summon and enforce the attendance of persons and compel
them to give evidence on oath and to produce the documents or things;
2. Power of discovery and inspection;
3. Power to receive evidence on affidavit;
4. Power of requisition of public record etc.;
5. Power to issue summons for examination of witnesses or documents;
and
6. Any other matter which may be prescribed.
Power to summon record [Section 18(4)]
The CIC/SIC has the power to summon and examine any record to which
this Act applies and which is under the control of any public authority.
Also, such records cannot be withheld from the Commission on any
grounds.
Appeal: Section 19
First Appeal under Section 19(1)
 Grounds of filing the appeal:

1. The applicant has not received the decision on his application within the
time specified under Section 7(1) or 7(3)(a) of the Act, or
2. The applicant is aggrieved by the decision of the CPIO/SPIO.
 Period for filing of an appeal and condonation the delay:

The appeal has to be filed within 30 days from the expiry of the response
period or the receipt of the decision of CPIO/SPIO. An appeal may be
admitted after the expiry of 30 days if the First Appellate Authority is
satisfied that the appellant was prevented by a sufficient cause from filing
the appeal in time.
 To whom appeal filed:

The appeal is to be filed to such officer who is senior in rank to the

CPIO/SPIO in each public authority (First Appellate Authority).
Appeal by a third party [Section 19(2)]
This sub-section deals with the filing of appeals by the third party who has
suffered an adverse order under Section 11. A third party aggrieved by the
decision of the CPIO/SPIO to disclose third party information under
Section 11 may prefer an appeal within 30 days from the date of the order
to the first appellate authority.
Second appeal [Section 19(3)]
 Appeal to Commission against the decision of the first appellate

authority: A Second appeal shall lie to the CIC/SIC against the decision
of the first appellate authority made under Section 19(1).
 Period for filing an appeal: The Second appeal has to be filed within 90

days from the date on which the decision should have been made or was
received. An appeal may be admitted after the expiry of 30 days if the
CIC/SIC is satisfied that the appellant was prevented by a sufficient
cause from filing the appeal in time.
Opportunity of hearing to a third party[Section 19(4)]
Where the order against which the appeal has been filed pertains to
information of a third party, the concerned Commission shall give a
reasonable opportunity of being heard to that third party.
Onus to justify denial on the PIO
Section 19(5), provides that burden to prove that a denial of a request was
justified shall be on the CPIO/SPIO who denied the request.
Time limit for disposing of the appeal [Section 19(6)]
The appeal under Section 19(1) or 19(2) has to be disposed of within 30
days of the receipt of the appeal. However, in exceptional circumstances,
an extended period of a total of 45 days from the date of filing may be
provided for reasons to be recorded in writing.
Supremacy of the Commission
Section 19(7) states that the decision of the CIC/SIC shall be binding.
Orders to be passed by the Commission
Section 19(8) provides for the power of the CIC/SIC to give the following
orders in its decision:
1. Requiring the public authority to take steps for complying with the
provisions of the Act, including:-
 Providing access to information, if so requested, in a particular form

 Appointing PIOs

 Publishing certain information or categories of information

 To make required changes to its practices regarding maintenance,

management, and destruction of records

 Enhancing the provision of training on the right to information for its

officials
 To submit an annual report to the Commission in compliance with

Section 4(1)(b)
2. Require the public authority to award compensation to the complainant
for any loss suffered by him
3. Impose any of the penalties provided under the Act
4. Reject the application
Notice [Section 19(9)]
The CIC/SIC shall give notice of its decision, including any right of
appeal, to the complainant and the public authority.
Penalties: Section 20
While deciding a complaint or an appeal under the Act, the CIC/SIC has
the power to impose penalties on the CPIO/SPIO for the deliberate
violation of the provisions of the Act. Before any decision regarding
imposition of penalty is taken, the concerned CPIO/SPIO shall be given a
reasonable opportunity of being heard. The burden to prove that he acted
in a reasonable and diligent manner lies on the concerned CPIO/SPIO
only.
GROUNDS PENALTY IMPOSED
SECTION 20(1): Refusal to receive an
application for information without reasonable
cause.
At the rate of Rs. 250 per
Information not furnished within the time limit
day till the application is
prescribed under Section 7(1).
received or information
Denied the request for information malafidely.
is furnished.
Knowingly gave incorrect, incomplete, or
However, the total
misleading information.
amount of penalty shall
Destroyed the information requested by the not exceed Rs. 25,000.
applicant.
Obstructed in any manner in furnishing the
information
SECTION 20(2): deals with the persistent
default/failure of the CPIO/SPIO. The commission shall
Persistent default or failure of the CPIO/SPIO to recommend that
receive an application for information or in disciplinary action be
providing information without any reasonable taken against the
cause or malafidely denying the request for concerned CPIO/SPIO
information or knowingly furnishing false, under the service rules
incomplete, or misleading information or applicable to him.
destroying the information requested.

6. Miscellaneous (Section 21 to 31)

Section 21. Protection of action taken in good faith.—No suit,
prosecution or other legal proceeding shall lie against any person for
anything which is in good faith done or intended to be done under this Act
or any rule made there under.
Section 22. Act to have overriding effect.—The provisions of this Act
shall have effect notwithstanding anything inconsistent therewith
contained in the Official Secrets Act, 1923 (19 of 1923), and any other law
for the time being in force or in any instrument having effect by virtue of
any law other than this Act.
Section 23. Bar of jurisdiction of courts.—No court shall entertain any
suit, application or other proceeding in respect of any order made under
this Act and no such order shall be called in question otherwise than by
way of an appeal under this Act.
Section 24. Act not to apply in certain organisations.—
(1) Nothing contained in this Act shall apply to the intelligence and
security organisations specified in the Second Schedule, being
organisations established by the Central Government or any information
furnished by such organisations to that Government:
Provided that the information pertaining to the allegations of corruption
and human rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of
allegations of violation of human rights, the information shall only be
provided after the approval of the Central Information
Commission, and notwithstanding anything contained in section 7, such
information shall be provided within forty-five days from the date of the
receipt of request.
(2) The Central Government may, by notification in the Official Gazette,
amend the Schedule by including therein any other intelligence or security
organisation established by that Government or omitting there from any
organisation already specified therein and on the publication of such
notification, such organisation shall be deemed to be included in or, as the
case may be, omitted from the Schedule.
(3) Every notification issued under sub-section (2) shall be laid before
each House of Parliament.
(4) Nothing contained in this Act shall apply to such intelligence and
security organisation being organisations established by the State
Government, as that Government may, from time to time, by notification
in the Official Gazette, specify:
Provided that the information pertaining to the allegations of corruption
and human rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of
allegations of violation of human rights, the information shall only be
provided after the approval of the State Information Commission and,
notwithstanding anything contained in section 7, such information shall be
provided within forty-five days from the date of the receipt of request.
(5) Every notification issued under sub-section (4) shall be laid before the
State Legislature.
Section 25. Monitoring and reporting.—(1) The Central Information
Commission or State Information Commission, as the case may be, shall,
as soon as practicable after the end of each year, prepare a report on the
implementation of the provisions of this Act during that year and forward
a copy thereof to the appropriate Government.
(2) Each Ministry or Department shall, in relation to the public authorities
within their jurisdiction, collect and provide such information to the
Central Information Commission or State Information Commission, as the
case may be. As is required to prepare the report under this section and
comply with the requirements concerning the furnishing of that
information and keeping of records for the purposes of this section.
(3) Each report shall state in respect of the year to which the report relates,
—
(a) the number of requests made to each public authority;
(b) the number of decisions where applicants were not entitled to access to
the documents pursuant to the requests, the provisions of this Act under
which these decisions were made and the number of times such provisions
were invoked;
(c) the number of appeals referred to the Central Information Commission
or State Information Commission, as the case may be, for review, the
nature of the appeals and the outcome of the appeals;
(d) particulars of any disciplinary action taken against any officer in
respect of the administration of this Act;
(e) the amount of charges collected by each public authority under this
Act;
(J) any facts which indicate an effort by the public authorities to
administer and implement the spirit and intention of this Act;
(g) recommendations for reform, including recommendations in respect of
the particular public authorities, for the development, improvement,
modernisation, reform or amendment to this Act or other legislation or
common law or any other matter relevant for operationalising the right to
access information.
(4) The Central Government or the State Government, as the case may be,
may, as soon as practicable after the end of each year, cause a copy of the
report of the Central Information Commission or the State Information
Commission, as the case may be, referred to in sub-section (1) to be laid
before each House of Parliament or, as the case may be, before each
House of the State Legislature, where there are two Houses, and where
there is one House of the State Legislature before that House.
(5) If it appears to the Central Information Commission or State
Information Commission, as the case may be, that the practice of a public
authority in relation to the exercise of its functions under this Act does not
conform with the provisions or spirit of this Act, it may give to the
authority a recommendation specifying the steps which ought in its
opinion to be taken for promoting such conformity.
Section 26. Appropriate Government to prepare programmes.—
(1) The appropriate Government may, to the extent of availability of
financial and other resources,
(a) develop and organise educational programmes to advance the
understanding of the public, in particular of disadvantaged communities as
to how to exercise the rights contemplated under this Act;
(b) encourage public authorities to participate in the development and
organisation of programmes referred to in clause (a) and to undertake such
programmes themselves;
(c) promote timely and effective dissemination of accurate information by
public authorities about their activities; and
(d) train Central Public Information Officers or State Public Infomrntion
Officers, as the case may be, of public authorities and produce relevant
training materials for use by the public authorities themselves.
(2) The appropriate Government shall, within eighteen months from the
commencement of this Act, compile in its official language a guide
containing such information, in an easily comprehensible form and
manner, as may reasonably be required by a person who wishes to
exercise any right specified in this Act.
(3) The appropriate Government shall, if necessary, update and publish the
guidelines referred to in sub-section (2) at regular intervals which shall, in
particular and without prejudice to the generality of sub-section (2),
include—
(a) the objects of this Act;
(b) the postal and street address, the phone and fax number and, if
available, electronic mail address of the Central Public Information
Officer or State Public Information Officer, as the case may be, of every
public authority appointed under sub-section (1) of section 5;
(c) the manner and the form in which request for access to an information
shall be made to a Central Public Information Officer or State Public
Information Officer, as the case may be;
(ci) the assistance available from and the duties of the Central Public
Information Officer or State Public Information Officer, as the case may
be, of a public authority under this Act;
(e) the assistance available from the Central Information Commission or
State Information Commission, as the case may be;
(j) all remedies in law available regarding an act or failure to act in respect
of a right or duty conferred or imposed by this Act including the manner
of filing an appeal to the Commission;
(g) the provisions providing for the voluntary disclosure of categories of
records in accordance with section 4;
(h) the notices regarding fees to be paid in relation to requests for access to
an information; and
(i) any additional regulations or circulars made or issued in relation to
obtaining access to an information in accordance with this Act.
(4) The appropriate Government must, if necessary, update and publish the
guidelines at regular intervals.
Section 27. Power to make rules by appropriate Government.—
(1) The appropriate Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters,
namely:—
(a) the cost of the medium or print cost price of the materials to be
disseminated under sub-section (4) of section 4;
(b) the fee payable under sub-section (1) of section 6;
(c) the fee payable under sub-sections (1) and (5) of section 7;
'[(Ca) the term of office of the Chief Information Commissioner and
Information Commissioners under sub-sections (1) and (2) of section 13
and the State Chief Information Commissioner and State Information
Commissioners under sub-sections (1) and (2) of section 16;
(cb) the salaries, allowances and other terms and conditions of service of
the Chief Information Commissioner and the Information Commissioners
under sub-section (5) of section 13 and the State Chief Information
Commissioner and the State Information Commissioners under sub-
section (5) of section 16;
Leading Cases:
i) M.P. Varghese V Mahatma Gandhi University, AIR 2007
Ker. 230
Kerala High Court
APPELLANT: M.P.Varghese vs
RESPONDENT: The Mahatma Gandhi University
DATE: 4 July, 2007
Bench: S.Siri Jagan
The petitioners in these writ petitions are principals of private aided
colleges in the State.
The issue involved in all these writ petitions is common and therefore
these writ petitions are disposed of by this common judgment.
2. The issue involved is as to whether aided private colleges would come
within the purview of the Right to Information Act, 2005 ("the Act" for
short).
3. The contention raised by the petitioners is that the aided private colleges
are not authorities coming within the purview of the definition of "public
authority" under section 2(h) of the Act. They would submit that going by
the scheme of the Act, the object behind the Act is to uphold the
fundamental right to freedom of speech and expression. According to
them, since a fundamental right can be enforced only against the
Government, governmental agencies or instrumentalities of the
Government, the Act can be enforced only against such authorities. In
short, they would contend that the term, "public authority" would take in
only Government and those instrumentalities of State which would come
within the definition of "State" under Article 12 of the Constitution of
India.
4. The petitioners would further submit that although there is some control
by and financial aid from the Government to these aided private colleges,
the same would not amount to deep and pervasive control and substantial
financing by the Government, without which these aided private colleges
would not answer the definition of "public authority" under the Act. They
also particularly refer to the preamble to the Act in their attempt to show
that the Act is primarily intended for protection of the fundamental right
to freedom of speech and expression and that the same is intended to be
applicable to Governments and their instrumentalities alone who alone are
accountable to the governed as stated in the preamble. Since those colleges
are not accountable to the governed, they cannot be saddled with the
liability to comply with the provisions of Act, is the submission made.
In the above circumstances, the petitioners seek to quash the directions
issued to the colleges to comply with the provisions of the Act by
appointing Information Officers as stipulated in the Act and to declare that
such colleges are not public authorities as defined in Section 2(h) of the
Act, as also to restrain the respondents from enforcing the provisions of
the Act against such colleges.
5. The Government, State Information Commission and the University
who are the respondents in the writ petitions stoutly oppose the
contentions and prayers of the petitioners. All of them would contend that
aided private colleges in the State are substantially controlled and financed
by the Government, and fully controlled by the Universities. Therefore,
they come squarely within the definition of "public authority" under
Section 2(h)(d) of the Act. According to them, the scope of the definition
of "public authority" is much wider than that of "State" as defined in
Article 12 of the Constitution of India. They also rely on the very same
preamble to show that the applicability of the Act is not confined to
Government and instrumentalities of Government alone, but all authorities
which exercise public functions. They would submit that apart from
providing of land and buildings and appointment of staff and teachers, all
other facts of the management of the colleges are strictly controlled by the
Government and the Universities and hence they are bodies owned,
controlled or substantially financed by funds provided directly or
indirectly by the appropriate Government as provided in the definition of
"public authority" under the Act.
6. The petitioners rely on the decision of Ajay Hasia v. Khalid Mujub
reported in AIR 1981 SC 487, which is one of the earliest authorities on
the question as to the interpretation of the definition of "State" under
Article 12 of the Constitution of India and would submit that only those
institutions which would satisfy the tests laid down by that decision for
answering the definition of "State" would come within the purview of the
Act.
7. I have considered the rival contentions in detail. I shall first deal with
the contention of the parties with reference to the preamble to the Act,
which reads thus:
"An Act to provide for setting out the practical regime 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.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
Governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests
while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain
information to citizens who desire to have it.
BE it enacted by Parliament in the Fifty-sixth Year of the Republic of
India as follows:
(Emphasis supplied) Of course, in one part, the same certainly refers to
'Government and their instrumentalities accountable to the governed', but
on a reading of the preamble as a whole, the same itself would make it
abundantly clear that the scope of the Act is much wider in its
applicability. The Preamble starts with the statement that the Act is
intended to provide for setting out the practical regime 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 Act is intended to harmonise
the conflict between the right of the citizens to secure access to
information and the necessity to preserve confidentiality of sensitive
information.
I am not satisfied that the preamble would not in any way have the effect
of indicating that the purpose of the Act is to confine its applicability to
Government and instrumentalities of Government.
8. In any event, the applicability of the Act is to be determined based on
the provisions of the Statute also. Section 3 of the Act lays down that
subject to the provisions of the Act, all citizens shall have right to
information. Section 4 of the Act lays down obligations of public
authorities in the matter of supply of information. The said section
requires public authorities to comply with the provisions of the Act. The
term, "public authority" is defined in Section 2(h) of the Act thus:
"2. Definitions. - In this Act, unless the context otherwise requires, -
 (h) "public authority" means any authority or body or institution of
self-government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the
appropriate Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii)non-Government Organisation substantially financed, directly or
indirectly by funds provided by the appropriate Government;"
So what has to be looked into in this case is as to whether these aided
private colleges are bodies owned or controlled or substantially financed,
directly or indirectly by funds provided by the appropriate Government.
9. The following facts are not in dispute.
After the introduction of the direct payment system, teachers and staff of
all aided private colleges are paid by the Government directly. These
teachers and staff are also paid pension and other retirement benefits from
the exchequer. The emoluments, patten, duties and conditions of service of
the teaching and non-teaching staff of these colleges are as prescribed by
the University Acts, [See for example Sections 5(xiii) and 60 of the Kerala
University Act, 1974]. The qualifications for admission of students to the
various courses of studies and to the examination and the conditions under
which exemptions may be granted are also prescribed by the Universities.
[for example Section 25(v) of the Kerala University Act, 1974]. The fees
collected from the students are remitted to the Government. The
managements are paid maintenance and other grants for the upkeep of the
buildings of the college. Selection for admission of students has to be in
accordance with the University Act, Statutes and Ordinances.
Selection and appointment of teachers although made by the
managements, have to be made strictly in accordance with the University
Act, Statutes and Ordinances. Such appointments are to be approved by
the University and the Government. In short, every facet of the functions
of these aided private colleges is strictly controlled and financed by the
Government. For coming within the definition of 'public authority' either
control or financing by government need be satisfied. In this case, both the
conditions are satisfied. In the above circumstances, I have no doubt in my
mind that these aided private colleges are bodies controlled and
substantially financed directly or indirectly by the funds provided by
appropriate Government.
Further, these colleges deal with information relating to educational
activities pertaining to students who pay fees to the Government and
teachers and staff whose salaries are paid by the Government. When these
colleges are financed and controlled by the Government and Universities
and they are privy to information relating to students and staff, those
information do not have the character of private or sensitive information
and the public have a right of access to such information so as to ensure
transparency in the conduct of the management of the colleges in which
the public are vitally interested. Denial of such information would be
against the very object of the statute. Essentially much of these
information relate to students, teachers and staff of these colleges, and not
to any information to any private activities of the managements of the
colleges. That being so, these colleges would certainly answer the
definition of "public authority" under Section 2(h) of the Act.
10. Since I have already held that the applicability of the Act is not
confined to bodies answering the definition of "State" under Article 12 of
the Constitution of India, I do not think it necessary to advert to the Ajay
Hasia' case (supra) which lays down the tests to determine which
authorities would fall within the ambit of "State"
under Article 12 of the Constitution of India.
Further, when the Act makes the same applicable to 'public authorities' as
defined therein there is no need to give a restricted meaning to the
expression 'public authorities' strait-jacketing the same within the four
corners of 'State' as defined in Article 12 of the Constitution, especially
keeping in mind the object behind the Act. The definition of 'public
authority' has a much wider meaning than that of 'State' under Article 12.
Further, the definition of 'State" under Article 12 is primarily in relation to
enforcement of fundamental rights through courts, whereas the Act is
intended at achieving the object of providing an effective framework for
effectuating the right to information recognised under Article 19 of the
Constitution of India.
In the above circumstances, I do not find any merit in these writ petitions
and accordingly the same are dismissed.

ii) L.K.Koolwal V State of Rajasthan, AIR 1998 Raj 2

Rajasthan High Court
PETITIONER: L.K. Koolwal vs
RESPONDENT: State Of Rajasthan And Ors.
Date: 19 September, 1986
Equivalent citations: AIR1988RAJ2, 1987(1)WLN134
JUDGMENT: D.L. Mehta, J.
Facts:
● LK Koolwal, the Petitioner, sought to enforce the Rajasthan
Municipalities Act, 1959 (the Act) in the city of Jaipur.
● Under the Act, the Municipality has a duty to clean public places of all
filth.
● The Petitioner contended that several areas in Jaipur were fraught with
sanitation problems and the Municipality was not performing its duties
under the Act.
● The writ petition was filed under Articles 51A and 226 of the
Constitution of India seeking directive orders against the Municipality to
remedy the sanitation issues that plagued several localities in the city of
Jaipur.
Judgement:
● On the issue of sanitation, the Court held that a citizen has the right to
know the functioning of State machinery, especially in matters of
sanitation.
● As to the performance of duties of the Municipality, the Court held that
a citizen has the right to move the courts if a State instrumentality or
agency fails to perform its duties.
● It also held that that lack of funds is no excuse for not implementing the
law.
● The Court emphasized the obligation of State instrumentalities in
performing their duties under Article 51A of the Constitution of India and
the right of any citizen to move the courts to enforce such duties.
● The Court recognized that insanitation could adversely affect the life of
a citizen and lead to an early death. Therefore it was essential that the
Municipality take immediate steps to rectify the situation.
● The Court therefore directed the Municipality to clean the affected areas
within six months and submit periodic reports before the Court on its
progress.

1. Right and duty co-exists. There cannot be any right without any duty
and there cannot be any duty without any right. It is a happy sign that the
citizens of Jaipur, through the present petitioner Mr. L. K. Koolwal has
moved to this Court in the matter of sanitation of Jaipur City. Good
number of affidavits have been filed by the citizens of Jaipur relating to
each of the locality referred to in the writ petition to show that the
sanitation problem is acute in Jaipur which is hazardous to the life of the
citizens of Jaipur. Insanitation leads to a slow poisoning and adversely
affects the life of the citizen and invites the death at an earlier date than
the natural death.
2. Article 51A of the Constitution has been inserted in the Constitution of
India vide 42nd Amendment in 1976. We can call Article 51A ordinarily
as the duty of the citizens, but in fact it is the right of the citizens as it
creates the right in favour of the citizen to move to the Court to see that
the State performs its duties faithfully and the obligatory and primary
duties are performed in accordance with the law of land. Omissions or
commissions are brought to the notice of the Court by the citizen and thus,
Article 51A gives a right to the citizen to move the Court for the
enforcement of the duty cast on State, instrumentalities, agencies,
departments, local bodies and statutory authorities created under the
particular law of the State. It provides particularly under Clause (g) that
the State and its instrumentalities and agencies should strive to protect and
prove the natural environment. Under Clause (j) it has been further
provided that the State should (strive towards) collective activity so that
the nation constantly rises to the higher levels of endeavour and
achievement. Parliament in its wisdom has correctly used the word citizen
instead of the word subject to create a feeling of citizenship amongst the
masses and also to see that the persons living in the country do not feel
that they are subjects. We were used to be the subjects prior to
independence, but now we have ceased to be the subject and now we are
the citizens of the Country. The requirement of the time is that we should
be real citizens of the Country. That can only be achieved if we strive
towards the achievement of the goal laid down in the Preamble of the
Constitution. Chapter IV directs the principles of the Constitution and
Article 51A of Chapter IVA. Prior to 1976 everyone used to talk of the
rights but none cared to think that there is a duty also. The right cannot
exist without a duty and it is the duty of the citizen to see that the rights
which he has acquired under the Constitution as a citizen are fulfilled.
3. Citizen has a right to know about the activities of the State, the
instrumentalities, the departments and the agencies of the State. The
privilege of secrecy which existed in the old times that the State is not
bound to disclose the facts to the citizens or the State cannot be compelled
by the citizens to disclose the facts, does not survive now to a great extent.
Under Article 19(a) of the Constitution there exists the right of freedom of
speech. Freedom of speech is based on the foundation of the freedom of
right to know. The State can impose and should impose the reasonable
restrictions in the matter like other fundamental rights where it affects the
national security and any other allied matter affecting the nation's
integrity. But this right is limited and particularly in the matter of
sanitation and other allied matter every citizen has a right to know how the
State is functioning and why the State is withholding such information in
such matters. Mr. Koolwal has approached this Court in exercise of rights
vested in him under Article 51A, though it is said to be a duty, that the
Court should issue directions against the respondents to implement the
law, the Municipal Law and to perform the obligatory duties cast on the
State. Maintenance of health, preservation of the sanitation and
environment falls within the purview of Article 21 of the Constitution as it
adversely affects the life of the citizen and it amounts to slow poisoning
and reducing the life of the citizen because of the hazards created, if not
checked.
4. In the instant case, Mr. Vimal Choudhary was appointed as
Commissioner by the Court and he has submitted the report earlier and
pointed out the dirtiness existed at that time in some parts of the City.
Yesterday, the Court requested Mr. G. S. Bafna, Mr. Vimal Choudhary,
Mr. R. K. Kala, Administrator, Municipal Board and others to visit the
same site and to make submission about the existing condition prevalent.
The present petitioner has given a long list of the areas and that all the
details supported by the affidavits of the residents of that locality to show
that there is insanitation, which is injurious to the health of the citizen and
the mandamus must be issued against the Municipality to perform the
obligatory duties cast on it. He has also submitted the sketch map and also
suggested some measures for the improvement of the sanitation of the
Jaipur City. A person who acts a citizen, a real citizen, who highlights the
problem of the city and who brings to the notice the conditions which are
hazardous to the life of the citizens, needs appreciation by the Court as
such persons are very few in the country at this moment.
5. Under Chap. 6 of the Rajasthan Municipalities Act, 1959, Section 98
provides that it is the duty of every Board to make reasonable provisions
referred therein within the Municipality under its authority. Clauses (c)
and (d) of Section 98 reads as under : --
(c) "cleaning public streets, places and sewers, and all spaces, not being
private property, which are open to the enjoyment of the public, whether
such spaces are vested in the Board or not, removing noxious vegetation
and obtaining all public nuisances."
(d) "removing filth, rubbish, night-soil, odour, or any other noxious or
offensive matter from privies, latrines, urinals, cesspools or other common
receptacles for such matter in or pertaining to a building or buildings."
6. It will not be out of place here to mention that Chapter VI deals with
three of duties of the Municipality namely, primary duty, secondary
functions and special duty. Cleaning public streets, places and sewers, and
all spaces, not being private property which are open to the enjoyment of
the public, whether such spaces are vested in the Board or not, removing
noxious vegetation and all public nuisances are the primary duties of the
Municipality. Furthermore, it provides that it is the primary duty of the
Municipal Council to remove filth, rubbish, night-soil, odour or any other
noxious or offensive matter. The primary duties will have to be performed
by the Municipal Board and there cannot be any plea whether the funds
are available or not; whether the staff is available or not. It is for the
Municipality to see how to perform the primary duties and how to raise
resources for the performanace of that duty. In the performance of primary
duty no excuse can be taken and can be directed also as it is primary,
mandatory and obligatory duty to perform the same.
7. The Commissioner, Mr. Vimal Choudhary, eminent lawyers Mr. R. K.
Kala and Mr. G. S. Bafna visited yesterday Chokri Modi Kana area and
submitted the written report today. It was submitted that the Municipality
have effectively taken some steps in that area and though the problem
exists but the quantum has been reduced. It was further pointed out that in
Radha Damodar Ji Ka'Gali the sanitation problem is because of the
encroachment made by the fabricators. It was also pointed out by Mr. Kala
particularly that because of 'SARIS' there is also insanitation in Lalji Sand
Ka Rasta and it was supported also by the Commissioner Mr. Vimal
Choudhary and Mr. G. S. Bafna equally with same vigilance. It was also
submitted that in Tomar Ji Ka Nohra there is a problem of insanitation
because of the buffaloes which are tied on the road and the problem is
created by the persons of that very locality. It was also submitted that
because of the old insanitary latrines which exist nearby Acharya Ka Gali,
there is a problem of insanitation and it is very difficult for the people to
move through that area and the odour is so bad that one cannot move.
8. Mr. Koolwal who is the real person to plead the case was not satisfied
to a great extent and submits that it is true that in some parts of Chokri
Modi Khana the Municipal Board has taken step to remove the dirt, filth
etc. and to provide some hygenic condition. A pertinent question was
placed by Mr. Koolwal that what about the other parts of the city which he
had referred in the writ petition and why the Municipal Council has not
taken steps to clean that area so far. It was also submitted by Mr. Koolwal
that the sanitation problem is throughout the city and the special efforts
will have to be made. A special effort has been made by the Municipality
to some extent. He has also submitted that some steps have been taken by
the Municipality, but the taking of some steps will not suffice and the
directions should be issued to the Municipality to see that the provisions of
Clauses (c) and (d) of Section 98 of the Municipal Act are implemented in
its true spirit. On behalf of Municipality Mr. Mehta submitted that
Municipality has taken keen interest in the sanitation problem of the city
and he has submitted that the very report of the Commissioner is an
indicative that the Municipality has taken steps though there may be
laches somewhere and there may be necessity for the removal of dirt,
night-soil, filth etc. Mr. Mehta submits that the Municipality is trying its
best to implement the provisions of Clauses (c) and (d) of Section 98. But
he is not in a position to say whether it has been implemented in full. He
has given an affidavit that the Administrator has taken steps and has
divided the area into zones and regular inspections are done now and
problem which exists in the city of Jaipur particularly relating to the
sanitation shall be dealt with in some time and as a result of which the
people of Jaipur may not have any complaint about the sanitation and they
may appreciate the Municipal Council for the work done by them. I am of
the view that the Municipality has taken steps but the provisions of
Clauses (c) and (d) of Section 98 have not been implemented in full and
the sanitation problem exists even today. This is evident from the
submissions made by the Commissioner Mr. Vimal Choudhary, Mr. G. S.
Bafna and Mr. R. K. Kala Advocates who have visited the same sites
yesterday. This is also evident from the affidavits filed by the various
citizens. Mr. U. N. Bhandari, an eminent lawyer of this Court voluntarily
submitted that the manhole nearby the house of Mr. S. R. Surana,
Advocate is lying open for quite some time and the condition of the
sanitation is not good.
9. Taking into consideration the serious allegations made in the affidavits
and spontaneous submissions made by some of the eminent members of
the Bar in the Court during the course of argument as well as taking into
consideration the report of the Commissioner, which is the foundation for
arriving at the conclusion, I am of the view that the problem of sanitation
is very acute in Jaipur City and it is creating hazard to the life of the
citizens. It is true that now after a lapse of time, the Municipality has
awakened and is trying to do something and let us hope that they will do
somet hing within a short period.
10. In the result, I accept the writ petition and hereby direct the
Municipality to remove the dirt, filth etc. within a period of six months
and clean the entire Jaipur City and particularly in relation to the areas
mentioned in the list submitted by the petitioner with this writ petition.
Some applications have also been filed by some persons during the course
of hearing about different areas and the Municipality will see that the
sanitation is maintained in accordance with the provisions of Clauses (c)
and (d) of Section 98, in those areas also. A team of five eminent
Advocates of this Court is appointed as Commissioners in this case to
inspect the city with the petitioner and Administrator, Municipality and to
submit the report about the implementation of provisions of Clauses (c)
and (d) of Section 98. The team shall consist of Mr. U. N. Bhandari, Mr.
D. L. Bardhar, Mr. R. K. Kala, Mr. G. S. Bafna and Mr. Vimal
Choudhary. Mr. U. N. Bhandari shall fix up the date in consultation with
other Advocates, the petitioner and Administrator, Municipal Council. It is
a healthy sign that the Advocates of this Court have voluntarily offered
their services and they have decided not to charge any fees in the
performance of the duty, particularly as it relates to the city in which they
are residing. The petitioner and Administrator, Municipal Council shall
also accompany them and prepare the report of the area referred to in the
writ petition as well as in the applications. In the first month the report
shall be given about the area of Ch. Topkhana Desh, Cho. Visheshwarji
and Cho. Topkhana Hujuri. In the second month the report shall be given
about the area of Ramganj Chopar, Purani Basti and Badi Chopar. In the
coming months the report shall be given about the remaining parts of the
cities which are not mentioned in the writ petition. After the dictation of
this part of the judgment it was submitted by the Administrator, Municipal
Council that it is very difficult to clean the entire city within the stipulated
period of six months. It has been made very clear that it is not the duty of
the Court to see whether the funds are available or not and it is the duty of
the Administrator, Municipal Council to see that the primary duties of the
Municipality are fulfilled. Municipality cannot say that because of the
paucity of fund or because of paucity of staff they are not in a position to
perform the primary duties. If the Legislature or the State Govt. feels that
the law enacted by them cannot be implemented then the Legislature has
liberty to scrap it, but the law which remains on the statutory books will
have to be implemented, particularly when it relates to primary duty.

A writ petition was filed by the petitioner asking the Court to issue
directions to the State to perform its obligatory duties, in the matter of
sanitation of Jaipur City. The petitioner invoked fundamental rights and
the directives principles of State policy and brought to the fore the acute
sanitation problem in Jaipur which, it claimed as hazardous to the life of
the citizens of Jaipur.
The Court observed that maintenance of health, preservation of sanitation
and environment falls within the purview of Art. 21 of the Constitution as
it adversely affect the life of the citizen and it amounts to slow poisoning
and reducing the life of the citizen because o the hazards created of not
checked and that Article 51A creates the right in favour of the citizen to
move to the Court to see that the State performs its duties faithfully and
the obligatory and primary duties are performed in accordance with the
law of land. It provides particularly under Clause (g) that the State and its
instrumentalities and agencies should strive to protect and prove the
natural environment. Under Clause (j) it has been further provided that the
State should (strive towards) collective activity so that the nation
constantly rises to the higher levels of endeavour and achievement. The
Court held that the Municipality had a statutory duty to remove the dirt,
filth etc from the city within a period of six months and clear the city of
Jaipur from the date of this judgment. A committee was constituted to
inspect the implementation of the judgment.
 UNIT-III JUDICIARY ON RIGHT TO INFORMATION

1. Free flow of Information for Public Record

Maintenance and Publication of Records
Sec. 4 makes it a duty of public authorities to maintain records for easy
access and to publish within 120 days the name of the particular officers
who should give the information and in regard to the framing of the rules,
regulations etc. Subsection (3) of sec. 4 states that for the performance of
subsection (1), all information shall be disseminated widely and in such
form and manner, which is easily accessible to the public.
Sec. 6 permits persons to obtain information in English or Hindi or in the
official language of the area from the designated officers. The person need
not give any reason for the request or any personal details. Sec. 7 requires
the request to be disposed of within 30 days provided that where
information sought for concerns the life or liberty of a person, the same
shall be provided within 48 hours. Under sec. 7(7) before any decision is
taken for furnishing the information, the designated officer shall take into
consideration the representation, if any, made by a third party under sec.
11.
A request rejected shall be communicated under sec. 7(8) giving reasons
and specifying the procedure for appeal and the designation of the
appellate authority. Sec. 7(9) exempts granting information where it would
disproportionately divert the resources of the public authority or would be
detrimental to the safety and preservation of the record in question.
Exemptions
Sec. 8 exempts from disclosure certain information and contents as stated
in Sub-clauses (a) to (j) thereof. Sub-clause (b) exempts information,
which is expressly forbidden by any court of law or tribunal or the dispute
of which may constitute contempt of court. Sub-clause (g) exempts
information the disclosure of which would endanger life, or physical
safety of any person or identify the source of information or assistance
given in confidence for law enforcement or security purpose. Sub-clause
(h) exempts information, which could impede the process of investigation
or apprehension or prosecution of offenders. Sub-clause (i) exempts
Cabinet papers.
It is important to note that the Act specifies that intelligence and security
organizations are exempted from the application of the Act. However, it is
provided that in case the demand for information pertains to allegations of
corruption and human rights violations, the Act shall apply even to such
institutions.
Constitutional Avenues Remain Open
Under the Act, where a citizen has exhausted the remedy of appeal or
second appeal, the finality given to the orders of the commissioners and
appellate authorities is only for the purposes of the Act and the citizen has
a right to approach the High Court under Art. 226 or where it refers to a
fundamental right, he may even approach the Supreme Court under Art.
32.
The law has strong provisions to ensure disclosure of most information,
and lays down in Section 22 that its provisions supersede all earlier laws.
It further stipulates that denial of information can only be done based on
the provisions of Section 8 or 9. Additionally the onus to justify denial of
information is on the PIO in any appeal proceedings. Denial of
information should be rare. An analysis of the judgements of the Supreme
Court on the RTI Act shows that out of sixteen judgements disclosure of
information was ordered only in the judgement mentioned below at
number 1.
1. In Appeal of 2011 the Court held, “Some High Courts have held that
Section 8 of RTI Act is in the nature of an exception to Section 3 which
empowers the citizens with the right to information, which is a derivative
from the freedom of speech; and that therefore Section 8 should be
construed strictly, literally and narrowly. This may not be the correct
approach, the earlier approach where exemptions are interpreted narrowly,
since these abridge a fundamental right of citizens.
Another strong statement in the said judgment is: ‘Indiscriminate and
impractical demands or directions under RTI Act for disclosure of all and
sundry information (unrelated to transparency and accountability in the
functioning of public authorities and eradication of corruption) would be
counter-productive as it will adversely affect the efficiency of the
administration and result in the executive getting bogged down with the
non-productive work of collecting and furnishing information.
The Act should not be allowed to be misused or abused, to become a tool
to obstruct the national development and integration, or to destroy the
peace, tranquility and harmony among its citizens. Nor should it be
converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75%
of the staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular
duties.’
2. The Apex Court in India Jaising v. Registrar General, Supreme Court
of India, (2003) 5 SCC 494, also took the same view and held It is no
doubt true that in a democratic framework free flow of information to the
citizens is necessary for proper functioning particularly in matters which
form part of a public record. The decisions relied upon by the learned
Counsel of the Petitioner do not also say that right to information is
absolute. There are several areas where such information need not be
furnished. Even the Freedom of Information Act, 2002, to which also
reference has been made, does not say in absolute terms that information
gathered at any level in any manner for any purpose shall be disclosed to
the public.
The Supreme Court refused disclosure with its bold declarations in the
past, reasoning that is difficult to reconcile. A report made on such an
inquiry that if the advertising is issued would only result in more damage
than good to the institution. In such a case the only course to the parties
concerned is to invoke the provisions of Article 124 or Article 217 of the
Indian Constitution if they have material. The said report is by its nature
purely preliminary, Ad-hoc and not final. The only source of authority
from which the Chief Justice may exercise this investigation power is if it
is morally ethical or not in exercising its powers according to any law.
3. A Madras High Court judgement on 17 September 2014 has caused
considerable confusion since it said that citizens must give reasons for
seeking information. This was in direct violation of Section 6 (2) of the
Act which states,” An applicant making request for information shall not
be required to give any reason for requesting the information”. The court
realised this mistake in a week and withdrew this observation. This
judgement not only violated the RTI Act it was in violation of Article 19
(1) (a) of the constitution.
I hope the courts will take an active part in expanding the reach and scope
of RTI. If they interpret the RTI Act giving more importance to exemptions
and widening their scope, this great law may become ‘Right to Denial of
Information’. This would be a sad regression for democracy.
4. In Shri Shiv Kr. Chaudhari vs Central Public Information Officer,
Bank of Maharashtra, Mumbai, the Commission further observes that the
appellant's representative stated during the hearing that the respondent
Bank is under an obligation to provide reasons for its administrative
decisions to affected person as per Section 4(1)(d) of the RTI Act.
5. In Central Board Of Secondary Education & Anr. vs. Aditya
Bandopadhyay & Ors. S S, It is emphasized therefore that assessing the
locus standi of a citizen who invokes life and liberty proviso of Section
7(1) of RTI Act to seek information regarding another individual who has
prima-facie no relation to the information seeker is imperative to secure a
balance between right to information and use of resources of the public
authorities in attending to such RTI Applications within 48 hours. Even so,
the RTI Act or specifically the proviso to Section 7(1) of RTI Act does not
qualify the phrase life and liberty of a person with an inclusive or
exclusive parameter, a purposive construction of the same is necessitated
in cases such as the instant one.
Access to Public Records
A long process of waiting is to be completed before the citizen gains an
access to the information in the control of thy executive. The people at
large have a right to know in order to be able to take part in a participatory
development in the industrial life and democracy. Right to know is a basic
right which citizens of a free country aspire in the broader horizons of the
right to live in this age on our land under Article 21 of the Constitution.
That right has reached new dimensions and urgency. That right puts
greater responsibility upon those who take upon the responsibility to
inform.132 Thus, for the first time the Supreme Court recognized the right
to information as part of the right to live under Article 21 in 1989.
The free flow of information in India remains severely restricted by
these factors:
Associated Challenges
 Misuse of RTI Act : Due to non-applicability of locus-standi rule to
RTI case and non-requirement of giving reasons for seeking
information, it has been observed that the RTI act is misused by the
many petitioners.
o This leaves ample scope for non-serious information seekers to

misuse it for their personal interest rather than public interest in

disclosure.
o Also, this diverts the time of public servants and adversely affects

their work.
 Low Public Awareness: Public Awareness is very low in India
regarding their rights as well as duties.
o Some reasons behind this are lack of education and awareness. It was

further observed that awareness level is low among the rural areas and
in disadvantaged communities such as women, SC/ST/OBC.
 Huge Backlog and Delay in Disposal of Cases: One of the reasons the
RTI Act was considered to be revolutionary was that a response has to
be provided in a fixed time, failing which the government official
concerned would be penalized. However, this time-bound nature of the
Act suffers due to multiple reasons:
o Due to the insufficient number of Information Commissioners at

the center level, there is a high backlog and delay in the hearing of the
cases.
o Further, because of poor quality, incomplete and inaccurate
information, the filing the First appeal increases significantly under
the RTI Act.
o Moreover, the act doesn’t provide any limit within which the

Second Appeal to Chief Information Commission (CIC) must be

 heard. Due to this, the applicant has to wait for months in order to
have his or her case heard at CIC.
o Ineffective record management systems and procedures to collect

information from field offices lead to delays in processing RTI

applications.
 Dilution of the law: The RTI Act (Amendment) Act, 2019 gives the
central government the power to fix the terms and the service conditions
of the Information Commissioners both at central and state levels.
o By vesting excessive powers with the central government, this

amendment has hampered the autonomy of CIC.

 Issue of Enforceability: The Act does not give adequate authority to
the Information Commissions to enforce their decisions.
o Information commissions can give directions to public authorities to

take the steps necessary to comply with the Act, but are not
empowered to take any action if such directions are ignored.
 Secrecy: The free flow of information in India remains severely
restricted by the legislative framework including several pieces of
restrictive legislation, such as the Official Secrets Act, 1923.

Way Forward
 Open Data Policy: Government institutions should put all disclosable
information on their respective websites.
 By this, the petitioners may immediately access whatever
information they need.
 This will also reduce the burden of the department to provide

information which takes much of its valuable time.

 Compiling of Similar RTI Applications: Many RTI Applicants file
multiple RTI applications on the same subject/seek the same
information, which increases the burden of the information department
of various public institutions.
 Also, a system needs to be put in to weed out such duplicate cases.

 Preventing Misuse of RTI: RTI misuse can be prevented by

introducing the reason knowing provision for filing the petition.
  Also, there should be a provision of Penalty for wasting the valuable
time of the Information Commissioner for demanding unnecessary
information or which is not in public interest.
 Balancing with Privacy Right: Another right of a citizen protected
under the Constitution is the right to privacy. This right is enshrined
within the spirit of Article 21 of the Constitution.
 Thus, the right to information has to be balanced with the right to

privacy within the framework of law.

 Increasing Public Awareness: This can be done by the launch of
awareness campaigns through Radio, Television and Print Media
various regional languages in rural areas.
 A chapter on RTI Act, 2005 should be added in school/college

curriculum.
 Central/State Information Commissions should be provided with

sufficient funds for creating awareness about RTI Act, 2005.

Democracy is all about governance of the people, by the people and
for the people. In order to achieve the third paradigm, the state needs to
start acknowledging the importance of informed public and the role that it
plays in the country’s development as a nation. In this context, underlying
issues related to RTI Act should be resolved, so that it can serve the needs
of Information societies.

Applicability
The Act applies both to Central and State Governments and all public
authorities. A public authority (sec. 2(h)) which is bound to furnish
information means any authority or body or institution of self-government
established or constituted
(a) by or under the Constitution,
(b) by any other law made by Parliament,
(c) by any other law made by State Legislature,
(d) by a notification issued or order made by the appropriate Government
and includes any
(i) body owned, controlled or substantially financed,
(ii) non-government organization substantially financed - which, in
clauses (a) to (d) are all, directly or indirectly funded by the appropriate
Government.
2. Right to information: Fundamental Right
Right To Information Recognized As A Fundamental Right By The
Judiciary: At this juncture, it is imperative to note that the Supreme
Court, in State of U.P v. Raj Narain - a 1974 case, recognized the ‘right to
know’ as a right inherent in Fundamental Right to freedom of speech and
expression guaranteed under article 19(1)(a) of the Constitution.
Following this, a plethora of cases the right to information was recognized
as a right implicit in the article 19(1)(a) and in article 21 (fundamental
right to life and personal liberty).
In Peoples Union for Civil Liberties v. Union of India, the Supreme
Court observed that in Right of information is a facet of the freedom of
‘speech and expression’ as contained in Article 19(1)(a) of the
Constitution of India. Right of information, thus, indisputably is a
fundamental right.
However, every time the Constitution is amended, the ‘basic structure’ test
laid down in Keshavanada Bharti Case has to be satisfied. The test
provides that a constitutional amendment should not be in derogation of
the basic features of the Constitution like judicial review, democracy or
Rule of Law. While including the right to information is as a fundamental
right, if at all there is any effect on any of the basic structure it would be in
the nature of strengthening the democracy and making it progressive, as
envisaged by the makers of our Constitution.
Need for the Fundamental Right Status:
The nature of problems the Act has faced till date ranges from
administrative interpretation against the grant of requested information, to
ordinary and easy amendment to reduce the scope of the Act. I feel, the
above problems would not have arisen had the right been a fundamental
right. Let us now analyse the problems case-wise to understand my
reasoning.
1. Exclusion of ‘File Notings’ From the Purview of the RTI Act:
In December 2005, the Central Government, for the first time, floated the
idea to excluding ‘file notings’ from the scope of the Act by bringing
about an amendment to the Act. File notings is an important public
document containing details of the decision making process in any public
matter - such as who said what and who rejected whose view and on what
grounds before a decision was reached in government. It also includes the
official correspondence between officers in pursuance of a government
scheme or project.
The news created uproar, with activists opining that the accountability of
the government would remain only in paper with such exclusion. The
matter was then put to rest with the Prime Minister, Mr. Manmohan
Singh’s statement against the exclusion.
However, today the matter is back in news. As on date, the Union Cabinet
has approved the Amendment Bill to the Act, that when passed will
exempt file notings as information that can be demanded as a matter of
right.
2. Indian Army’s Recent Refusal to Grant Information:
Again in December 2005, the Indian Army refused to provide information
to an applicant on the ground that issues of national security were involved
in the requested information. This was in spite of the Army not being one
of the eighteen agencies that are exempted under the Act, by virtue of
section.24. But when the PM intervened and insisted that Army cannot
refuse until a government notification to that effect, the army retracted its
stand.
Could It Have Been Avoided?
The above mentioned controversies has brought out into the open, the hard
facts. The spineless politicians are going to amend the Act as and when
they like it, suiting their needs of the day; the officers are going be
complacent and hesitant in giving the information. Had right to
information been a Constitutional provision, the fear of PILs would have
kept a check on the notoriety of the parliamentarians and authorities.
Conclusion: Thus, it is evident the issues such as those illustrated above
could have been avoided had right to information been a fundamental right
under the Constitution. Ideally, the legislature should have brought about a
constitutional amendment to include the right to information as a
fundamental right and the Act should have merely constituted the
Information Commissions and appointed the Public Information Officers.
With the separate government agency to tackle the problems relating to
the fundamental right to information, the evils of bureaucratic pressures
and whimsical administrative interpretations could have been kept at bay
and democracy celebrated.
Inclusion of right to information as a fundamental right would have also
been in conformity with the decisions of the apex court.
Therefore, though India has finally woken up to realize that right to
information is a key component in the attainment of economic, social and
political rights of an individual as well as the community at large, in my
opinion, the step she has taken towards it could have been more effective
had she guaranteed a fundamental right to information to its citizenry.

3. Disclosure of Information
Information that can be disclosed under the Act
The information that can be disclosed under the RTI Act can be divided
into two categories:
1. Information that is to be disclosed upon request.
2. Information that is required to be disclosed to the public without any
request.
1. Information that can be disclosed upon request
Under this category Information can be accessed by requesting for the
same from the Public Information Officer by following the procedures
provided under the Act. The information as defined under Section 2 (f)
has to be disclosed by the Public .Information Officer when requested by
any individual. In order to understand what all Information can be
disclosed under the RTI Act it is essential to first understand what the term
Information means as per the provisions of the RTI Act.
 What is information under RTI Act

To be able to understand what Information can be disclosed under the RTI

Act it becomes essential to first understand what the term Information
means as per the provisions of the RTI Act.
Section 2(f) defines the term “information” which means any material in
any form, including records, documents, memos, e-mails, opinions,
advices, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and
also include information relating to any private body which can be
accessed by a public authority under any other law for the time being in
force.
Another term which may help us to understand the term Information better
is the word Record which is defined under Section 2 (i) of the Act which
includes-
 Any document, manuscript and file;

 Any microfilm, microfiche and facsimile copy of a document;

 Any reproduction of image or images embodied in such microfilm

(whether enlarged or not); and

 Any other material produced by a computer or any other device.

Hence from the reading of the above mentioned definitions along with
section 3 in totality makes it clear that the citizens have the right to access
all those information which are held by or under the control of any public
authority. The manner in which these terms have been defined under the
Act shows that it has been done for the sole reason of concretizing the
people’s right to information so that no information can be denied by the
public authority for the want of clarity as to what all information can be
provided under the Act. It is mandatory to provide all such information as
defined under Section 2 (f) and Section 2 (i) to the public as and when
needed by them.
In the case of Central Public Information Officer, Supreme Court of
India vs. Subhash Chandra Agarwal the Supreme Court, on the question
of whether the office of the chief justice of India and whether the
declaration of assets by the judges to the Chief justice of India comes
under the ambit of RTI Act, by relying on the section 2 (h), (j) and (f)
held the office of the Chief justice of India comes under the purview of
RTI (Right to information) and is a public authority under Section 2 (h) of
the Act. It was held that the citizens have the right to information under
Section 2(j) of the RTI Act with regard to the information of declarations
of assets by the incumbent judges to the Chief Justice of India and such
information relating to declaration of assets by the judges comes under the
definition of information under Section 2 (h) of the Act. It held that “such
disclosure would not tantamount to encroaching the personal information
and privacy of the judges. The Chief Justice did not hold such declarations
in a fiduciary capacity or relationship and in terms of Section 8(1)(e) of
the RTI Act and that the information was neither protected under Section
8(j) of the Act.”
 Information relating to matters more than 20 years past

Section 8 (3) specifically mentions the time duration of 20 years after

which the person can access such information and the same would not
amount to the violation of right to privacy in relation to that information.
The Section provides that the public authority has to disclose the
information when requested by the individual under Section 6 if such
information relates to any occurrence, event or matter which has taken
place, occurred or happened twenty years before the date on which any
request is made by such individual.
In Green hood cooperative housing society ltd v. State of west Bengal, It
is observed that any information falling under Section 8 (3) shall be made
available when requested and such disclosure shall not amount to
infringement of right to privacy. In other words such disclosure cannot be
challenged on the grounds of breach of privacy right.
 Municipal records
Municipal records also come under the definition of Information as
provided under the Act. Whenever an individual requests and applies for
accessing such records it becomes obligatory on municipal bodies to
provide such information. In Ram Vishal v. Dwarka Prasad Jaiswal, It
was held that the record of the Municipal Corporation is a public record
and it will be usually presumed that there should be no difficulty in getting
the certified copy of public records. Where a person applies for certified
copies of public record and it has been denied, there must be some
substantial reason which ought to be placed on record supported by an
affidavit stating reason for rejecting the request for the said records.
 Procedure for seeking Information

 Submission of an application (section 6)-

 Whoever requests for an information has to first apply to the concerned

Public Information Officer of the concerned authority either in writing

(English, Hindi or local official language of the area) or through
electronic means or through email. Where the request is not in writing,
PIO will provide assistance to reduce it in writing.
 The application should contain the applicants name, address and

particulars for a response in prescribed format as mentioned in rules.

 The person seeking information is not required to mention the reason

for seeking information.

 Prescribed fee (section 7) -

 The applicant seeking information has to pay a prescribed fee along

with the application.

 There shall be no fee for the person coming below the poverty line.

 Review of the fees could be sought by the applicant through an appeal

to the concerned Appellate Authority.

 Applicants shall be provided with the information free of cost if there is

a failure to respond within the time limit as mentioned in the RTI Act.
 Response time (section 7)-

 In normal cases- after the receipt of an application by an applicant the

concerned PIO shall provide the information to the applicant within 30

days from the receipt of an application.
 In case of life and liberty of person- in such cases the PIO shall provide
the information within 48 hours from the receipt of application to the
applicant.
 Where the application is sent through the assistant Public Information
Officer or sent to a wrong a wrong public authority, five days shall be
added to the period of 30 days or 48 hours, as the case may be.
 In case of third party information(section 11)- if the information
involves the interest of the third party then In case of Third party
information, PIO gives written notice to the said third party within five
days from the receipt of the request for information, stating that he
intends to disclose the information and whether the information sought
should be supplied or the third party has any objections regarding the
same and while deciding the RTI application, such submission is taken
in consideration, to decide whether the PIO should provide the
information sought or not. The third party is required to file the
representation within 10 days from the date of receipt of such notice
either in writing or orally. After receiving the oral or written submission
from the third party and if the PIO decides in favour of the applicant the
PIO within forty days (40) after receipt of the request under section 6
shall furnish the information to the applicant.
 No response to the application within the time limit is deemed refusal.
 Appeals-
 If the PIO fails to furnish the information within the time prescribed for
the information as mentioned above or if the applicant is not satisfied
with the information given to him, the applicant can prefer an appeal to
first Appellate Authority who is an officer senior in rank to the PIO,
within a period of 30 days from the date on which the time limit
prescribed for providing the information gets expired or from the date
on which the information or decision of the PIO is received.
 If the first Appellate Authority fails to decide the appeal within the
prescribed time of 30 days or if the applicant is not satisfied with the
order of the first Appellate Authority, he may prefer a second appeal to
the Central Information Commissioner within 90 days from the date on
 which the first Appellate Authority should have decided the case or the
date on which the applicant had received the order of the court.
5. Information that is required to be disclosed to the public without
any request
Under this category for accessing Information it does not require any
request to be made but it is obligatory for the Public Authority to make
such information public as enumerated in clause (b) and (c) of Section 4
(1) of the RTI Act which can be accessed by the citizen easily and without
following any procedure.
 Obligation on the authorities to disclose information

The Right to Information Act not only requires the public authority to
provide information upon request, it also makes it obligatory on the part of
the public bodies to actively disclose, disseminate and publish information
of general public interest as widely as possible and in any form possible to
the public even before it has been requested. Section 4 (1) (a) creates an
obligation on every public authority to proactively maintain information of
general nature for easy access to the public. The overall reading of Section
4 of the RTI Act, 2005, makes it obligatory for every public authority to
publish information regarding as many as 17 items enumerated in Clause
(b) (i) to (xvii) which need to be updated every year.
 Publishing and dissemination of information

Section 4 (3) of the Act provides that all information “shall be

disseminated widely and in such a form and manner which is easily
accessible to the public.”This tries to establish that it is not enough for the
public authority to collect and store the information with them, instead it is
essential on their part to ensure that every citizen can access the
information easily in a manner and form that can be understood.
Dissemination of information by public authority includes making known
or communicating the information to the public through the notice board,
newspapers, public announcements, media, broadcasts, advertisement,
internet or any other means. It also includes inspection/access of official
documents of the office of any public authority.
Section 4 (4) makes it mandatory that all information sought to be
disseminated must be cost effective, that is, at no cost or available at low
cost, must be given or published in local language and must be released in
the most effective method of communication.
 Suo moto information

Section 4 (2) of the act requires the public authority to provide as much
information as possible suo moto (at their own initiative) to the public at
regular intervals through any modes of communication including press,
print and internet media. The object of providing information suo moto is
to enable the public to know about various governmental and public issues
and thereby there is no need for the citizen to request for these
informations by taking resort to the provisions of the RTI Act.
The two categories of information that has to be disclosed, as we have
discussed in the above paragraphs, the first category of information
requires diligence on the part of the public authority before it is provide to
the public on their request as it is necessary to ascertain whether they are
exempted from disclosure under the Act or not.
With regard to the second category of the information it cast a duty upon
the public authority to collect, store and disseminate information suo moto
as widely as possible to the public as provided under section 4 (1) (b) and
(c) in a proactive basis.
The Supreme Court in The Institute of Chartered Accountants of India
v. Shaunak H. Satya and Others observed that It is necessary to make a
distinction between the information which is crucial for bringing
transparency and accountability and in reducing corruption, following
under section 4 (1) (b) and (c) and other information which may not have
a bearing on accountability or reducing corruption but the disclosure of
which may interfere with other public interest including efficient
operations of public authorities and government, preservation of
confidentiality of sensitive information and optimum use of limited fiscal
resources. Hence while dealing with the request for the access to
information, the Public Information Officer is required to maintain a
balance between the right to know and other competing public interest.
Section 8 of the RTI Act helps in maintaining such balance by providing
exemption to certain information from being disclosed.
 Information exempted from disclosure
Like any other fundamental right, Right to Know is also not an absolute
right, restrictions can be placed on it on reasonable grounds. Right to
Information Act, 2005 provides information to the general public but there
is certain information the disclosure of which may infringe upon other
rights like right to privacy or other public interest or which may harm the
sovereignty or integrity of the nation. These are certain grounds on which
disclosure of information may be validly denied. Section 8 of the RTI Act
provides for various grounds on which disclosure of information can be
denied to the public. The main objective behind introduction of section 8
in the RTI Act is to harmoniously balance the various conflicting rights
available to the public so that not a single right gets jeopardized by the
other as every right is fundamental and intrinsic in its own form.
The same idea was seen to be reflected in the case of C.B.S.E of
secondary education and others v. Aditya Bandopadhyay and ors, where
it was observed that the preamble to the Act specifically states that the
object of the Act is to harmonize the two conflicting interests, which is
important for preserving democracy and achieving the object of the RTI
Act. The two conflicting interest that the Act seeks to harmonize is; first,
to bring about transparency and accountability by providing access to
information under the control of public authorities and second to ensure
that the revelation of information, in actual practice, does not conflict
with other public interests which include efficient operations of the
government, optimum use of limited fiscal resources and preservation of
confidentiality of sensitive information. The court further elaborated that
such harmony is brought into action through the provisions of sections 3
and 4, which seek to achieve the first objective, and through sections 8, 9,
10 and 11 which seek to achieve the second objective. Therefore the
object behind incorporating section 8, which exempt certain information
from being disclosed, is not to fetter the right to information but to grant
protection to other public interests essential for the fulfilment and
preservation of democratic ideals.
The grounds on which information may be denied under Section 8 (1) of
the RTI Act, 2005 are:
The information under the Act can be denied if:
1. The information, the disclosure of which would prejudicially effects
sovereignty and integrity of India, security, strategic, scientific or
economic interest of the state, relation with the foreign state or lead to
incitement of an offence;
2. The information, publication of which, is expressly forbidden by court
of law or tribunal and disclosure
3. Of which may constitute contempt of court;
4. The Information, disclosure of which, would cause breach of privilege
of the Parliament or the State Legislature;
5. The Information is related to commercial confidence, trade secrets or
intellectual property and the disclosure of which would harm
competitive position of the third party unless the competent authority is
satisfied that the public interest warrants disclosure of such information;
6. Information available to the person in his fiduciary relationship unless
the competent authority is sissified that larger public interest requires
disclosure of such information;
7. Information received in confidence from the foreign government;
8. Information, the disclosure of which, would endanger the life or
physical safety of any person or identify the source or assistance given
in confidence for enforcement of law or security purposes;
9. Information, if given, would impede the process of investigation or
apprehension or prosecution of offenders;
10. Cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other Officers;
11. Any information which is personal and has no connection and
relation to any public activity or interest or which would cause
unwarranted invasion into the privacy of the individual
12. Notwithstanding any of the exemption listed above, a public authority
may allow access to information, if public interest in disclosure
outweighs the harm to the protected interest.
There are certain organisations that have been exempted from the
provisions of the act as mentioned in the Second Schedule namely certain
Intelligence and Security. However even in such organisations if there is
some information relating to allegations of corruption or violation of
human rights, such kind of information is not exempted. The concerned
government can add or delete any organisation from the Second Schedule.
The right to information act 2005 being elaborative in nature as it includes
both the disclosure and non-disclosure of the information it has an
overriding effect over all the laws that are inconsistent with the RTI Act.

R.K. Jain vs Union of India & Anr: The requester sought copies of all
note sheets and correspondence pages of file relating to a member
CESTAT. The CPIO rejected the request on the ground that the
information is exempted under 8(1)(j) of the RTI act,2005.
Decision of the Supreme Court: The petitioner in the instant case has not
made a bonafide public interest in seeking information, the disclosure of
such information would cause unwarranted invasion of privacy of the
individual under section 8(1)(j) of the RTI act.
We are therefore of the view that the petitioner has not succeeded in
establishing that the information sought for is for larger public interest.
That being the fact, we are not inclined to entertain this SLP. Hence the
same is dismissed.
4. Right to Know
Right To Know: Article 21 enshrine ‘right to life and a person liberty’
are compendious term which include within themselves variety of right
and attributes. Some of them are also found in article 19 and thus have two
sources at the same time. In R.P Ltd v Indian express news paper the SC
reads right to know in article 21. The SC held that right to know is a
necessary ingredient of participatory democracy. In view of translational
development when distance are shrinking international communities are
coming together for cooperation in various sphere and they are moving
toward the global preparative in various field including human right ,the
expression liberty must receive and expanded meaning . The Supreme
Court is limited mere absence of bodily restrain. It is wide enough to
expand full range of right to hold a particular opinion and right to sustain
and nurture that opinion Article 21 confer on all person a right to know
which include right o receive information. The ambit and scope of article
21 is much wider as compared to article 19(1)(a).
Thus the court are required expand its scope by the way of judicial
activism. In PUCL vs UOI the Supreme Court observed that fundamental
right themselves have no fixed content, most of them are empty vessel into
which each generation must pour its content in the light of its
experience .The attempt of the court should be to expand the reach and
ambit of the fundamental right by the process of judicial interpretation.
There cannot be any discrimination between fundamental right mention in
chapter III of the constitution and the declaration of such right on the basis
of judgment render by Supreme Court.
Over past two decades, right to know laws have become one of the most
innovative and effective means for protecting the environment and public
health. These laws, also known as information disclosure statute, serve
number of board and important societal interests. Right to know laws
helps to improve the efficient functioning of the market. Armed with
better information, consumer can make informed decision, and press for
safer products. Better informed worker can negotiate for less toxic
working conditions, or demand wages premiums for hazardous jobs.
Investor in securities market can act more knowledgeably; indeed, studies
shows that stock prices significantly to the release of environmental
information; upward when information reveals a firm’s superior
performance; downward when poor performance is revealed.
Right to know laws also serve fundamental liberty and autonomy interest.
They provide individuals with knowledge of the risk involved in their
choice and allow them to decide whether or not encounter these risks.

Right to know laws also promote a democratic decision making and the
power of ordinary citizens. Equipped with better information, citizens can
participate on a more equal footing it regulated entities permitting, land
use and other political decisions. Local resident and member of the public
can exert pressure on firm to reduce risky activities or eliminate
unnecessary toxic exposures. Right to know laws also can improve health
and safety, by facilitating emergency planning, avoiding accidents, and
helping the government determine area In need of additional regulation.
They also provide strong incentive for firm to undertake self-regulation
and reduce risky activities; when companies face a choice between, say ,
disclosing harmful substances in their product and reformulating the
product to eliminating the harmful substances, often they chose to
eliminate the substances.
Making People Aware of Their Right to Know
The Right to Information Act, 2005 got the assent of the President of India
on 15.6.2005 and was published in The Gazette of India on 21.6.2005. It
applies to whole of the country except the State of J&K w.e.f 15th June,
2005. The West Bengal Right to Information Rules, 2006 were framed by
the Administrative Reforms Cell of Personnel and Administrative Reforms
Department of Government of West Bengal and published in the Kolkata
Gazette Extraordinary on 29.3.2006.
The RTI Act, 2005 is the culmination of responses generated at different
corners of the country including the Government at the Centre, to people's
demand for right to know initiated by Mazdur Kisan Shakti Sangathan in
1990 in a sleepy village named Devdungri of Rajasmand district of central
Rajasthan. From 1997 onwards in several landmark judgments Supreme
Court of India and High Courts of different States observed that Articles
19(1) and 21 of Constitution of India, i.e., right to freedom of speech and
expression and right to life and liberty include right to information. Right
to live loses much of its meaning if a citizen's right to information is
denied. In the preamble to the Act this has been widely acknowledged as a
necessity by way of commitment for creation of an informed citizenry, to
contain corruption and enhance accountability and transparency in the
working of every public authority.
Assert Your Right to Know
Right to Information Act, 2005 has come into effect from 15th June, 2005.
It applies to the whole of India except Jammu & Kashmir
· Under the Act all 'public authorities' as defined under section 2(h) are
liable to designate for all administrative units or offices Central Public
Information Officers or State Public Information Officers to receive and
dispose of requests for information within thirty days from the date of
receipt.
Right to know a constitutional prospective: The right which provides us
the conformant of right to know can be classified in this way.
A) Article 19(1) (a) - freedom to Speech and expression.
B) Article 21-
C) Right to information Act, 2005
Article 19(1)(a) guarantees to all citizens “the right to freedom of speech
and expression” clause 2 of 19, at the same time provides, “nothing in sub
clause (a) of clause (1) shall affect the operation of any existing law, to
prevent the state from making any law, in so far as, such law imposes
reasonable restriction on the exercise of the right confer by the said sub
clause in the interest of sovereignty and integrity of India, the security of
state, friendly relations with foreign state, public order, decency and
morality or in relation to contempt of court, defamation or incitement to an
offence.
Freedom to speech and expression has been held to be basic and
indivisible for a democratic polity, the citizens most cherished and scared
right, the prized privilege” it is said to be a cornerstone of functioning of
democracy.
It is the foundation of a democratic society. It is essential to the rule of law
and liberty of citizen’s.. The democratic form of Government, it self
demands its citizens, active and intelligent participation in the affairs of
the community. The public discussion with people participation is a basic
feature and rational process of democracy, which distinguishes it from all
other forms of government.
The framers of the constitution recognized the importance of safeguarding
this right since the free flow of opinions and ideas was essential to sustain
the collective life of the citizenry.
The right to information, like other right is subject to several
exemption/exceptions. There is rational behind exempting areas like
national Security, military, Deployment, international relations and like
from the RTI ambit, the judiciary has no valid reason to claim such
immunity from public gaze. Since Right to Information has turned out to
be a grate cheque on the executives, this is said to be strong case for
extending the Act, two sectors like the judiciary that remained insulated
from it.
Though some of the judges were in favor of voluntary disclosure of the
assessed by the Supreme Court judges, the chief justice of India had
resisted the judge’s inclusion in the right to information. The honorable
chief justice of India has expressed recently that he would resist “tooth
nail” any attempt to share “confidential” information about appointments
and transfer of the judges and instead that the office of chief justice of
India kept outside the preview of right to information .
On 2nd September, 2009, a division bench of Delhi high court had given a
land mark ruling that the information on assets declared by the Supreme
Court judges in possession of chief justice of India would come within the
ambit of right to information Act, 2005.
Since the chief justice of India held the Information pertaining to Assets
declaration by him and his brother judges, the chief justice of India was
held to be a “Public Authority” under the right to information Act, 2005.
The ruling deserves to be lauded because it will promote transparency and
accountability. If the judges support the Right to information like
voluntarily assets disclosure, it would go a long way in enhancing their
moral stature ,empower the people and give a fillip to the movement of the
right to know within the meaning of Art-19 (1)(a).
The Apex court ruled in famous case voter’s right to know antecedents
including criminal past of his candidate contesting election from M.P and
MLA was fundamental and basic for survival of democracy. Democracy
cannot survive without free and fare elections, without free and fairly
informed voters, the court said that the voters had right to get material
information, with respect to a candidate contesting election for a post ,
which was utmost importance in the democracy was implied in the
freedom of speech guaranteed by Article 19(1)(a).
The Apex court ruled that right of a voter to know the bio data of
candidate was the foundation of democracy, a facet of the right to freedom
of speech and expression. It would be the basis of free and fair election
which was the basic structure of constitution.
The court distinguished the right of the voter to know the antecedent of a
candidate from the right to vote and stand as a candidate for election.
Right to Information Act is a weapon in the hand so f a common people.
the importance for the right to information in India were discussed in
detail by the supreme court in 1974 in the land mark judgment of Raj
Narain V. Indira Nehru Gandhi, where the court while rejecting the
government’s claim of privilege of the disclosure of the security
instructions for the prime minister, “in a government of responsibility like
ours there all the agents of the public must be responsible for their conduct
there can be but few sectorates. The people of this country have a right to
know every public Act, everything that is done in public way, by their
public functionaries. They are entitled to know the particulars of the very
public transaction in all its bearing”
We cannot make the government accountable if we do not have basic
information regarding the government decisions and its functioning. The
right to information in the Indian jurisprudence has largely immerged from
the freedom of speech and expression guaranteed by article 19(1) (a) of
the Indian constitution. In the words of Justice Bhagwati, the concept of
open government is the direct emanation from the right to know which
seems to be implicit in the right of freedom of speech and expression. The
rational of this view in the words of learned judges is that the right to
information or assessed to information is basic to the democratic way of
life. It redefines the relationship between the people and the government
by providing critical information and evidence in the hands of common
people.
The right to know is not meant for gratifying idle curiosity or mere
inquisitiveness but is essential for the effective functioning of democracy.
Transparency and accountably are sine qua non in a genuine democracy.
Information is a tool that empowers people to act more meaning fully a
electors as well as elected representative of the people. If the people are
well informed they will be more vigilant and therefore democracy is
bound to become more vibrant. Abraham Linkon said at the gettysdurg
address, way back in 1863, “Democracy is government of the people, by
the people, for the people.” It is basic postulate of democracy that
government shall be based on consent of the government and the
governed. The consent of governed implies not only that consent shall be
free but also that it shall be grounded on an adequate information and
discussion aided by the widest possible dissemination of information from
diverse and antagonistic sources, consequently citizens must have access
to information, “right to know” about the functioning of the government
and public functionaries.
Jeffosen Said, “Information to the people is the most certain and legitimate
engine of government. When a government refuses to put its trust in the
people, the people in turn will withdraw their trust from the people.
The Act in its preamble says to provide for setting up the practical regime
of the right to information under the control of public authority in order to
promote transparency and accountabilities in the working of every public
authority.
a) It helps an individual to attain self fulfillment.
b) Assist in discovering of truth.
c) Strengthens the capacity of an individual in participating in decision
making.
d) Provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change.

5. Right to Acquire & Disseminate Information

Scope of information access: According to Section 2 (j) of RTI Act
2005, "Right to Information" means the Right to Information accessible
under this Act which is held by or under the possession of any Central or
State Public Authority and that includes the right to:
 Inspection of work, documents, records;

 Taking notes, extracts or certified copies of documents or records;

 Taking certified samples of material;

 Obtaining information in the form of diskettes, floppies, tapes, video

cassettes or in any other electronic mode or through printouts where

such information is stored in a computer or in any other device.
Right to Acquire means a legal, equitable or contractual right to acquire
(whether directly or indirectly and whether exercisable immediately, or
only after the passage of time, compliance with regulatory requirements,
fulfillment of a condition or otherwise).
The term “right to information” is defined in Section 2(j). It refers to the
right to get information available under the RTI Act that is held or
controlled by any public authority. These rights include:
1. Right of inspection
This refers to the right to examine and scrutinise papers, works, and
records. In this case, no document or copy of a document is obtained, and
the information is just observed and scrutinised.
2. Right to take notes, extracts, and so forth.
Taking notes or extracts refers to jotting down specific information from
papers. Important information from the papers is set down here, and
authentic excerpts from the documents can also be copied.
3. Right to get verified material samples
A citizen has the right to acquire verified samples of government-
purchased materials or materials used by the government.
4. Right to acquire information in an electronic format
When the information requested is recorded on a computer or other
electronic device, the Right to Information Act allows citizens to acquire it
in electronic forms, such as tapes, video cassettes, floppy discs, diskettes,
printouts, and so on.
Disseminate Information
 Obligation on the authorities to disclose information

The Right to Information Act not only requires the public authority to
provide information upon request, it also makes it obligatory on the part of
the public bodies to actively disclose, disseminate and publish information
of general public interest as widely as possible and in any form possible to
the public even before it has been requested. Section 4 (1) (a) creates an
obligation on every public authority to proactively maintain information of
general nature for easy access to the public. The overall reading of Section
4 of the RTI Act, 2005, makes it obligatory for every public authority to
publish information regarding as many as 17 items enumerated in Clause
(b) (i) to (xvii) which need to be updated every year.
 Publishing and dissemination of information
Section 4 (3) of the Act provides that all information “shall be
disseminated widely and in such a form and manner which is easily
accessible to the public.”This tries to establish that it is not enough for the
public authority to collect and store the information with them; instead it is
essential on their part to ensure that every citizen can access the
information easily in a manner and form that can be understood.
Dissemination of information by public authority includes making known
or communicating the information to the public through the notice board,
newspapers, public announcements, media, broadcasts, advertisement,
internet or any other means. It also includes inspection/access of official
documents of the office of any public authority.
Section 4 (4) makes it mandatory that all information sought to be
disseminated must be cost effective, that is, at no cost or available at low
cost, must be given or published in local language and must be released in
the most effective method of communication.
 Suo moto information

Section 4 (2) of the act requires the public authority to provide as much
information as possible suo moto (at their own initiative) to the public at
regular intervals through any modes of communication including press,
print and internet media. The object of providing information suo moto is
to enable the public to know about various governmental and public issues
and thereby there is no need for the citizen to request for these
informations by taking resort to the provisions of the RTI Act.
The two categories of information that has to be disclosed, as we have
discussed in the above paragraphs, the first category of information
requires diligence on the part of the public authority before it is provide to
the public on their request as it is necessary to ascertain whether they are
exempted from disclosure under the Act or not.
With regard to the second category of the information it cast a duty upon
the public authority to collect, store and disseminate information suo moto
as widely as possible to the public as provided under section 4 (1) (b) and
(c) in a proactive basis.
The Supreme Court in The Institute of Chartered Accountants of India v.
Shaunak H. Satya and Others observed that It is necessary to make a
distinction between the information which is crucial for bringing
transparency and accountability and in reducing corruption, following
under section 4 (1) (b) and (c) and other information which may not have
a bearing on accountability or reducing corruption but the disclosure of
which may interfere with other public interest including efficient
operations of public authorities and government, preservation of
confidentiality of sensitive information and optimum use of limited fiscal
resources. Hence while dealing with the request for the access to
information, the Public Information Officer is required to maintain a
balance between the right to know and other competing public interest.
Section 8 of the RTI Act helps in maintaining such balance by providing
exemption to certain information from being disclosed.
Govt. of India vs The Cricket Association of Bengal (1995) 2 SCC 161.
The Supreme Court says that “the freedom of speech and expression
includes right to acquire information and disseminate it. It enables people
to contribute to the debate on social and moral issues. Right to freedom of
speech and expression means right to education, to inform, to entertain
and right to be educated, informed and entertained. Right to telecast is,
therefore, within the ambit of Article 19 (1) (a).”
Apart from these leading cases, there are many cases where a person’s
right to know and right to information have been upheld. The purpose of
discussing all these is to show that we already have the right to
information as guaranteed by Article 19(1) (a) of the Constitution of
India. Moreover, as an extended part of the freedom of speech and
expression, the right to know and to be known is our Fundamental right.

6. Direction on Voter’s Right to Information

The right to information in India derives its legitimacy from the
democratic framework established by the Constitution and rests on the
basic premise that since government is ‘for the people’, it should be open
and accountable and should have nothing to conceal from the constituency
it purports to represent. Information is the currency that every citizen
requires to participate in the life and governance of society. The greater
the access of the citizen to information, the greater would be the
responsiveness of government to community needs. Alternatively, the
greater the restrictions that are placed on access, the greater the feelings of
‘powerlessness’ and ‘alienation’. Without information, people cannot
adequately exercise their rights and responsibilities as citizens or make
informed choices.
Recent developments have seen high courts issuing directions for
disclosure of information to other authorities, such as the Election
Commission of India, which is a Constitutional body. A group of active
citizens wanted a right to know the antecedents of political parties and
their leaders. Their argument was accepted by the Delhi High Court, in a
Public Interest Writ Petition filed by Association for Democratic Reforms
and PUCL in 2000. Strangely the Election Commission opposed the
petition as 'undemocratic'. The Delhi High Court directed the Election
Commission of India to make necessary arrangements to inform voters
about the criminal background of candidates contesting elections. The
Court recognized the right of the voters to know the antecedents of the
contestants along with their financial position and educational
qualification, so that they express their considered choice in franchise. The
EC has been directed to make this information public through electronic
and print media.
People’s Right to Know
In a recent judgement passed by the Supreme Court (SC) on 13
February 2020 in Public Interest Foundation vs Union Of India,
political parties have been directed to publish criminal antecedents of
contesting candidates along with reasons for fielding each one of these
candidates, notwithstanding their ‘winnability’. The Election Commission
of India (ECI) has also issued a directive to implement the apex court’s
orders concerning criminal antecedents of candidates.
While the judgement is a step towards ensuring accountability and
transparency in politics, the SC has issued similar directions over the past
few years. In this article, we take a stock of the major judgements
delivered by courts, important reports on electoral reforms and persistent
challenges against the growing criminalisation of politics in India.
Right to Vote:
Voting is one among the foremost impactful belongings you can do for
yourself and your community. On a macro level, it is easy to think that
you're only one person which your vote doesn't make much of a
difference. But consistent with Rachael Cobb, PhD, chair and professor of
state at Suffolk University, your vote always matters.
"Some elections are razor-thin. In 2016, the margin of victory for
Donald Trump within the swing states that he won was but 1 percent,"
says Dr. Cobb.
Simply put, voting is power, says Dr. Cobb. "The theory of democracy is
that it's a government for and by the people, and therefore the vote is that
the basic building block that provides people the facility to regulate their
government and to shape what policies they need and the future direction
of their town, state, and country," she says, adding that your vote should
function "the great equalizer." But that's not always the case.
Vote in India?
Our Indian Constitution has particularly laid certain qualifications to
become eligible for voting in India.
 One must be a Citizen of India;

 One must be above 18 years of age;

 Must be of sound mind.

If one becomes eligible for voting in India, then the person can
participate within the following sorts of elections held in our country:
 National-level elections;

 State-level elections;

 Local government body elections;

 District level elections.

As per the voting rules:

 You can cast just one vote.

 You must have Voter ID or EPIC card or photo identity election card.

 You can vote only at your registered constituency.

In 2010, voting rights were extended to citizens of India living abroad.

How can you vote?
The two methods the way to cast your vote, are mentioned below:
1. Visiting the booth: By visiting the pooling booth, one can cast his
choose the election. This may clarify no fake vote has been sew that
person's behalf.
2. Using the postal ballot: This vote is by via Post. This facility is
obtainable particularly to those people that cannot attend the booth
themselves thanks to some unavoidable circumstance; for instance, the
soldiers' personnel, electoral officers on duty, policemen who are on
duty, people on preventive detention, etc.
Process of Elections in India:
1. Marking of constituencies elections: Constituencies are areas marked
for people to elect their representatives from. In India, each
constituency has roughly an identical size of the population, meaning
the amount officiaries from state to state. This also implies that the
amount of seats (example, in Lok Sabha) is in proportion to the
population of the state.
2. Preparation of Electoral Rolls Elections: The constituencies have
people that vote for his or her representatives or can even represent
elections themselves. Electoral rolls' are the lists of voters in one
constituency. In India, there's a universal franchise by law. Meaning,
that each individual, above the age of 18 features a right to vote and
choose his representative. Then all their names should appear in their
respective electoral rolls.
3. Registration of Political Parties: India allows every eligible person to
face for elections, as long as they need a 'ticket'. A party registers for
elections and individuals file their nomination papers too. Then, an
individual each gets a 'ticket' from the party they're representing and he
can formally contest the elections. Every party features a symbol that
represents them, for instance BJP features a lotus flower.
4. Political Campaigning Elections: Each party contesting elections
features a particular ideology and set of policies. They have to carry
political campaigns for around fortnight so as to publicize them and
gather voters. Ideally, they have to try to this ethically by convincing
voters with good policies and plans. In India, they're given a specific
limit of expenditure, beyond which they can't spend extra money.
5. Voting Day Preparations Elections: Today is finally when voters vote
for his or her choice of representative in election booths. Earlier, people
want to vote by ballot paper, but nowadays, they use EVM (electronic
voting machines) by simply pressing a button on their party symbol.
The votes are them later counted and therefore the candidate with the
bulk of the votes wins the election.
Voting Basis:
A.Decision of individuals
The first parameter considers that for what reason or on what basis people
voted for the candidate. Where 52% people vote on work basis and 45%
People voted on the recognition of single man.
B.If you voted, does your choice for candidate match your parents or
your family member's choice?
According to the survey conducted, 12% for people’s matches their
candidate's choice that they're voted 23% doesn't matched that and 65% of
individuals say that perhaps they match maybe not. Meaning 65% peoples
don't discuss about the voting reception.
C.Does one know what's manifesto?
According to survey only 54% of individuals know that what's manifesto.
And 46% people don't realize it.
D.Does one know the difference between Lok Sabha and Rajya
Sabha?
According to survey report 80% people don't know what difference Lok
Sabha and Rajya Sabha is where 80% people know that.
E.Does one vote on the idea of polling survey of Indian news
channels?
According to survey report 66% people vote by themselves but 34 you
look after people vote on basis of stories channel surveys.
F. Vote on the idea of faith
Consistent with survey report 33% of individuals vote on basis of faith.
Means they people vote for the candidate who belongs to their religion.
Where 65% of individuals don't see the faith of that candidate to whom
they're voting. 2% peoples are there who vote on the idea of faith
sometimes.
G. Does one believe term "VOTE FOR NOTE"?
According to survey report 10% people take money for giving the vote for
the candidate where 76% are loyal who didn't take any sort of bribe for
voting.
H. Does one know what are NOTA?
According to survey report 47% of individuals don't know what are
NOTA whether 53% people know about it.
I. If you recognize what's NOTA. Have you ever used it yet in any of
the elections?
According to survey report 53% people knows about NOTA but only 14%
of individuals use it and 86% people vote for the candidate they need.
As studies of aggregate data reveal, in spite of the decreasing importance
of the effect of urbanization, the extent of electoral participation has been
increasing with socio-economic development. Such a pattern of increase is
in line with the actual socio-political situation of every State. Some studies
supported the survey of people show the essential faith of the electorate
within the election system. Thus, the increasing electorate reflects
confidence in electoral politics.
It are often said that, though there are several defects, the electorate has
fundamental faith within the voting system. It's important that such
fundamental faith within the core of the democratic regime, namely the
election system, has been maintained for five decades, despite several
political crises. Because the popularity of the once dominant Congress
party has gradually decreased, the peculiar pattern of party preference of
every State in line with the actual socio-political situation, especially
castes religions, backwardness, et al., has come to the surface.
As a result, there has been a transparent differentiation of the party system
since the 1980's, and therefore the era of multi-party systems and coalition
governments has come. Many parties have grown supported particular
ethnic groups like castes and religion. But such increase and strengthening
of regional parties supported some particular ethnos has not necessarily
exposed the matter of national integration due to the aforementioned basic
faith within the democratic regime.
Many ethnicity-based parties also are likely to be patronage-based parties.
During a very heterogeneous country like India, a celebration could also
be supported some specific ethnic groups, but it also must articulate and
integrate other ethnicities so as to grow. So as to articulate and integrate
other ethnicities, one effective strategy is to require moderate policy and
distribute patronage or interests to other ethnic groups. Conversely, if an
ethnicity-based party takes a radical and disintegrative policy with no
patronage to be distributed, it cannot attract the support of other
ethnicities.
Thus, the electoral process during a heterogeneous country has two
effects on the party system:
1. Differentiation on the idea of a specific ethnic also as a socio-
economic situation and
2. An integrative effect.
Problems faced by people casting vote Challenges in India:
In India, there are a few of problems that substitute the way of free
and fair elections. a number of these are: The rigging of poll booths:
Some big political parties have a clear advantage where they will use a
more than money power to 'buy' votes with bribery. Even while
campaigning, smaller parties have a disadvantage since they don't have the
maximum amount money or power because the bigger parties.
Populism is additionally a serious problem in India: Parties in India follow
caste politics where parties give the 'ticket' to an individual who is from a
scheduled caste in order that in his/ her constituency, he's bound to win.
This entrenches power in just one caste and at an equivalent time violates
the sacred purpose of reservations.
Awareness of voting rights:
It has become a standard ritual to speak bitter about any candidate or an
elected leader of any legislative assembly or the parliament. The fault-
finding then comes right down to the 'System' and the way democracy isn't
working because it should. However, a really little room has been given to
'What the people can do' to strengthen the democratic roots and convey a
few changes within the system. even as it is the responsibility of the
elected leader to fulfil the well-beings of the voters, an equivalent is that
the need for the people of India to contribute to picking the right leader for
his or her representation.
Democracy has given people a strong right- that's to VOTE. Voting is
that the fundamental basis of democracy's 'Of the people, for the people,
and by the people' slogan. Therefore, instead of enjoying it as a vacation,
one must vote if he truly wants to contribute to the nation-building process
and bring a few changes. A Citizen should actually not got to find any
reason to Vote. It must be done as a compulsive duty although there's no
legal obligation to vote.
Here are some points which might aid in enlightening voters about the
importance of Voting:
Every Single Vote Is Significant: Needless to mention, every citizen's
vote is counted within the polling process. If the people are equally
divided between two candidates, one single vote is often a game-changer
and a clincher. We've seen within the past how one vote from an MP can
decide the autumn of the government. Precisely the same way, one
person's vote can confirm the win/fall of an aspiring MP or MLA.
Origin of the Change: Aside from the protests, voting may be a highly
effective medium to possess the change that we would like within the
government. Our nation has already witnessed how a non-performing
government gets dethroned by the spirit of wanting a change. In recent
years, there's a considerable rise within the voting percentage and other
people truly love to be the 'Change Makers'.
Isn't it exciting that an individual can choose the leader of the country
right from the age of 18?
Non-choosers get NOTA: Sometimes, it's possible that one doesn't want
any single candidate to be elected from all who are contesting. The
committee has made a special provision of NOTA. It stands for None of
The Above. Hence if none of the candidates fit into your criteria, just hit
the NOTA option and voice the opinion. Introduction of this alternative is
believed to play a big role within the future. within the late future, it's
going to even be possible that the NOTA will decide the re-elections with
fresh candidates.
A Sense of Pride: We must honour the proper of voting given by the
constitution of India. The youngsters are well excited to exercise their
right to vote as soon as they turn 18. The sensation after having cast a vote
infuses a way of pride for being a responsible citizen. As are often
witnessed from the sharing of the inked finger on social media. The trend
is constant to realize popularity amongst the youngers and therefore the
elders also.
Gone are the times when it had been required for people to motivate them
to vote. The vote share for the General Election of 2014 was 8% above the
previous election. Vote within the Lok Sabha Election 2019 was 67%.
Voter awareness program has become successful in its mission and
therefore the vote share continues to extend till date in many state
elections. With this increasing number of voter turnout, we'll soon reach
the 80-90% golden mark.
Right to Vote:
Apart from Article 326 of the Constitution (that guarantees the proper to
vote to each citizen above the age of 18 years, unless disqualified by any
law), Section 62 of the RPA, 1951 also ensures that each person who is
within the electoral roll of that constituency is entitled to vote.
One person can vote at one constituency only and just for just one
occasion during a particular election. If an individual is confined during a
prison, whether under a sentence of imprisonment or transportation, then
he is not eligible for voting, however, within the case of preventive
custody, he can vote. In 2014, the ECI had said that the person under
preventive custody had the proper to vote, but not under-trials and
convicts.
However, the Act allows those serving sentences but 2 years to contest
elections from prison.
(NOTA) None of the above was introduced within the ballot papers/
Electronic mechanical device (EVMs) in General Election to the State
Assemblies in 2013.
VVPAT: Voter Verifiable Paper Audit Trail is an independent system
attached with the EVMs that allows voters to verify that their votes are
cast as intended. it had been introduced in 2013, after the SC allowed the
ECI for the 'requirement of free and fair elections' in its verdict within the
People's Union for Civil Liberties vs. Union of India case (2013).
Right to Information:
Candidates got to furnish information whether he/she is accused of any
offence punishable with imprisonment of two years or more during a
pending case or has been convicted of an offence.

7. Right to Information and Community Participation

Community participation can be loosely defined as the involvement of
people in a community in projects to solve their own problems. People
cannot be forced to ‘participate’ in projects which affect their lives but
should be given the opportunity where possible. This is held to be a basic
human right and a fundamental principle of democracy.
Democracy means meaningful participation of the people in the public
affairs; it can be done on individual or community basis. Right to
Information brings accessibility to the administration and Community
Participation. The Right to Information is the only rightful law in India.
This is most popular, citizen centric and change oriented law in Indian
administrative history.
Information availability ensures effective participation by enabling the
people to make sound judgment on the policies and performance of the
governance system. Information is important because without it the people
cannot adequately exercise their rights and responsibilities as citizens.
Well informed citizenry can make better choices and are able to
effectively participate in the governance process. In the absence of
information, the people may fail to reflect and appraise the success or
failure of various policies committed to alleviate the conditions of the
people.
In other words, for a democratic government to be responsive to the public
opinion, information must be made available to the people. In this sense,
the Right to Information has proven to be a key component of a healthy
democracy because it empowers citizens with the right to demand what
activities and decisions are being made in their name. Information and
knowledge promote and ensure a transparent, open and accountable
governance structure, the conditions that are necessary.
The affairs of the state become transparent when documents are accessible
by public eyes. With transparency, rampant corruption can be questioned
and reduced. It also helps in rectifying public policies with the help of
feedback provided by the people as these policies are made for the
ultimate welfare of these people.
The Right to Information promotes transparency and accountability in the
working of every public authority. In other words through this act, the
citizens of India have been empowered to question, audit, review, examine
and assess the government acts and decisions so as to ensure that these are
consistent with the principle of community participation for public
interest, good governance and justice.
Giving the judgment in the case of Cricket Association of Bengal vs.
Union of India (1995), the Court observed that the right to impart and
receive information from electronic media was included in the freedom of
speech. The airwaves were held to be public property and hence
distribution of these waves between government and private channels was
to be done on an equitable basis.
In the case of Bennet Coleman v. Union of India' (1973) the Supreme
Court stated that the right to information was held to be included within
the right to freedom of speech and expression guaranteed by Art.19 (1) (a)
of the Constitution of India. This case, which was about the restriction of
newsprint to newspapers, led the Supreme Court to observe that such
restriction meant that an infringement of the right of the citizen's right to
read and therefore, an infringement of the right to information.
Thereby Article 19 (1) (a), which guarantees the right to freedom and
expression would be infringed if the news print were not to be provided to
the newspaper.
Community participation can take place during any of the following
activities:
1. Needs assessment–expressing opinions about desirable improvements,
prioritizing goals and negotiating with agencies.
2. Planning–formulating objectives, setting goals, criticising plans.
3. Mobilising–raising awareness in a community about needs, establishing
or supporting organisational structures within the community.
4. Training–participation in formal or informal training activities to
enhance communication, construction, maintenance and financial
management skills.
5. Implementing–engaging in management activities; contributing
directly to construction, operation and maintenance with labour and
materials; contributing cash towards costs, paying of services or
membership fees of community organizations.
6. Monitoring and evaluation – participating in the appraisal of work
done, recognizing improvements that can be made and redefining needs.
Most emergency sanitation programmes tend to be designed and executed
by the relief agency; however, this does not mean that the community is
unable or unwilling to participate in some or all of the activities outlined
above.
Incentives of community participation
The following are some of the main reasons why people are usually
willing to participate in humanitarian programmes:
1. Community participation motivates people to work together –
people feel a sense of community and recognise the benefits of their
involvement.
2. Social, religious or traditional obligations for mutual help
3. Genuine community participation – people see a genuine opportunity
to better their own lives and for the community as a whole
4. Remuneration in cash or kind
There are often strong genuine reasons why people wish to participate in
programmes. All too often aid workers assume that people will only do
anything for remuneration and have no genuine concern for their own
predicament or that of the community as a whole. This is often the result
of the actions of the agency itself, in throwing money or food at
community members without meaningful dialogue or consultation.
Remuneration is an acceptable incentive but is usually not the only, or
even the primary, motivation.
Disincentives to community participation
The following are some of the main reasons why individuals and/or
community may be reluctant to take part in community participation:
1. An unfair distribution of work or benefits amongst members of the
community
2. A highly individualistic society where there is little or no sense of
community
3. The feeling that the government or agency should provide the facilities
4. Agency treatment of community members – if people are treated as
being helpless they are more likely to act as if they are
Generally, people are ready and willing to participate; the biggest
disincentive to this is probably the attitude and actions of the agency
concerned. Treating people with respect, listening to them and learning
from them will go a long way toward building a successful programme; it
will also save time and resources in the long run and contribute greatly to
programme sustainability. Fieldworkers who expect members of the
affected community to be grateful for their presence without recognising
and empathising with them as people may satisfy their own egos but will
have little other positive effect.
Community participation can contribute greatly to the effectiveness and
efficiency of a programme; the crucial factor in its success is the attitude
of agency staff in the field. If staff do not treat people with respect or are
seen to favour particular individuals or groups within a community, this
can have a highly destructive effect on participation. For this reason it is
important to identify key representatives and groups within the affected
population early.
Conclusion
The success of RTI is often judged by the fact that within the initial 10
years when its enactment virtually 5000 applications were filed on each
day. However, with the recent amendments, there’s a fall of 6 June 1944
within the applications submitted. It’s believed that the recent amendments
challenge the independence of the RTI Act.
The RTI Act may be a powerful tool if employed in the right approach.
The effective implementation of this Act is required. RTI isn’t a mere info
supplier, it’s a tool that empowers the people to require half within the
method process. It strengthens our democracy. It’s the true essence of
excellent governance. The abuse of authority is controlled by the Act. The
government ought to give the knowledge voluntarily to the folks it
governs. This may encourage trust between the folks and therefore the
government. It’ll conjointly save time and potency of the officers UN
agency got to give similar info in numerous repetitive applications.

8. Third Party Information

Third party in relation to the RTI Act, 2005 means a person other than
the citizen who has made request for information. The definition of
third party includes a public authority other than the public authority to
whom the request has been made.
Section 11 of the Act provides the procedure of disclosure of ‘third party’
information. According to it, if a Public Information Officer (PIO) intends
to disclose information or record relates to a third party and has been
treated as confidential by that third party, the PIO within 5 days from the
receipt of the request, the PIO before taking a decision to disclose the
information shall give written notice to such third party of request, shall
invite the third party to make a submission in writing or orally, regarding
whether the information should be disclosed. Such submission of the third
party shall be kept in view while taking a decision about the disclosure of
information.
The third party within 10 days from the date of receipt of such notice is
given the opportunity to make representation against the proposed
disclosure. The PIO within 40 days after receipt of the request, make a
decision as to whether or not to disclose the information or record or part
thereof related to the third party and give in writing the notice of his
decision to the third party. The PIO cannot disclose such information
unless the procedure prescribed in Section 11 is completed.
As defined in clause (n) of Section 2 of the Act 'third party' includes a
public authority. Reading of the definition of the term, 'third party' and
Section 11 together makes it clear that if a public authority 'X' receives
some information from another public authority 'Y' which that public
authority has treated as confidential, then 'X' cannot disclose the
information without consulting 'Y', the third party in respect of the
information and without following the procedure prescribed in Section 11
of the Act. It is a statutory requirement, non-compliance of which may
make the PIO liable to action.
The Public Information Officers and the First Appellate Authorities should
keep these provisions of the Act in view while taking decision, about
disclosure of third party information in general and disclosure of the third
party information, when third party is a public authority, in particular.

What can one do upon such rejection?

There is a fundamental difference between RTI requests and RTI appeals.
RTI request is filing an application for the first time. The request is made
by the citizen to one person (i.e., PIO) to provide information. This means
that it involves only the citizen and PIO.
RTI appeal is an appeal before a senior officer against the decision of the
PIO. This means that here, a third person (i.e., Appellate Authority) comes
between the citizen and the PIO.
This means RTI request is the application process while RTI appeal is the
appellate procedure against the decision on RTI application.
The appeal is only filed when the citizen is not satisfied with the reply of
PIO or PIO rejects the citizen’s request for information.
Steps for filing RTI first appeal
When will the RTI first appeal be made?
Within the stipulated time to apply for information, if the public
information officer did not provide information or provide incomplete
information or provide the wrong information or did not give a written
answer as to why the information was not provided, then applicants can
make the first appeal within 30 days or citing reasons, the first appeal can
be made even after 30 days. In other words, within 40 days of applying for
the information, if the public information officer did not provide the
information or provide incomplete information or gave the wrong
information or did not give a written answer as to why the information
was not provided, then 30days from this date or even citing reasons after
30 days, the first appeal can be made.
Where to apply?
Every government office has a public information officer or PIO, so
similarly the person who heads the office or organization is the first
appellate officer for that office. If the head office of that is located at the
block or district level then the chief officer of that office is the first
appellate authority to submit the RTI first appeal application to her/him.
How to apply?
This requires applying in a prescribed form. Paste a court fee of Rs.20 on
this form. Though, court fees as set forth, so your case will be heard as a
judicial type here. Applicants must be present at the hearing to provide a
view or support.
Where can you get the application form?
This form is usually found in stamp vendors or magazine stores, xerox
shops, etc. You can get this form from there. If not, enter your WhatsApp
number in the comment box and this form will be sent to you.
How long will the hearing be?
The first appeals officer will hear the case within 30 days and announce
his decision. He can take 45 days to hear it if necessary. The date and time
of the hearing will be announced on his behalf. As stated earlier, the
petitioner/applicant must be present on the day of the hearing to provide a
view or support.
If the applicant is not satisfied with the decision of the first appellate
officer, he or she may apply to the State Information Commission within
90 days from the date of the decision or 90 days after giving the
appropriate reason.
Steps for filing RTI final appeal
When will the RTI final appeal be made?
If the applicant is not satisfied with the decision of the first appellate
authority, the applicant can finally appeal within 90 days or the final
appeal may be made after 90 days with appropriate reason.
Where to apply?
The final appeal must be made to the State Information Commission. So
we need to submit the final appeal form to his/her office.
How to apply?
This requires applying in a prescribed form. Paste a court fee of Rs.25 on
this form. The case will be heard as a judicial type. The petitioner may be
present at the hearing, either by a lawyer or by a representative on his
behalf. Yet, if he may not be present there, there will be no problem with
his hearing.
Where can you get the application form?
This form is usually found in stamp vendors or magazine stores, xerox
shops, etc. You can get this form from there. If not, enter your WhatsApp
number in the comment box and this form will be sent to you.
How long will the hearing be?
No specific deadline has been set as to how long the Commission will take
to hear. The date and time of the hearing will be announced on his behalf.
The Commission’s decision will be taken as a final decision. If the
commission feels that the Public Information Officer or PIO has
knowingly or maliciously not provided the information or given
incomplete or incorrect information. So the Information Commission can
fine a public information officer (PIO) up to Rs.25,000/- which the public
information officer has to pay out of his/her pocket.
Significant case laws
Kausa Education & Charitable Trust & Ors. V.S. Maharashtra State
Information Commission & Ors.
The petitioner claimed that the school run by the trust is a private unaided
one and, therefore, it is not a public authority under the RTI Act. The
authority has answered this issue in its favour and its concurrent findings
have not been questioned by the respondent who sought information. The
appellate authority, however, directed Education Officer (Secondary) to
gather the information from the petitioners and to supply it, respondent no.
5, an ex-employee is sought to be achieved indirectly, thereby the powers
or jurisdiction under the RTI Act are being exceeded and legal rights of
the petitioner are violated.
The Hon’ble Bombay High Court held that a direction by respondent no.
1 in its order dated 10th February 2012 cannot be viewed as excessive.
The contention that what is directly prohibited has been achieved
indirectly through such a direction or course of action is misconceived and
unsustainable. However, the petitioner has not been given a necessary
opportunity of hearing before passing of impugned order. The impugned
order passed without hearing the petitioners is unsustainable.
Puneet Kumar v/s State Information Commission, Haryana and Ors
The petitioner had filed an application before the State Public Information
Officer-cum-District Education Officer, Hisar seeking information
pertaining to different public schools in Haryana regarding their
affiliation; area and size of the schools in square meter; attested copies of
NOC of fire safety certificate for last three years. The appeal filed by the
petitioner has been dismissed on the ground that the information sought
for by the petitioner, is related to the private schools which are neither
Government aided institutions nor in receipt of any grant from the
Government and are not covered under RTI Act. The petitioner submitted
that the said observation regarding private schools being not covered
under RTI Act is contrary to the statutory provisions as the private schools
are under the supervision of the District Education Officer which is a
statutory authority as such information sought for by the petitioner should
have been provided under the provisions of RTI Act.
The Hon’ble High Court of Punjab and Haryana held that it is apparently
personal information regarding the third party which is being sought for
by the petitioner. There is no infirmity in the order passed by the State
Information Commissioner.

Conclusion
The basic object of the Right to Information Act is to empower the
citizens, promote transparency and accountability in the working of the
government and make our democracy work for the people in a real sense.
Information can be demanded in any form and it is the duty of the Public
Information Officer to study the Act carefully and understand its
provisions correctly and deliver the information. Some information that is
confidential in nature and is not provided to the public can be excluded.
Otherwise, all information is disclosed. Thus, RTI has become a very
important tool and mechanism for redressal of public grievances.
 9. Public Authority under Art. 12 of the Indian Constitution
The Act states that every public authority shall designate, within one
hundred days of the enactment of the Right to Information Act, at each
sub-divisional level Assistant Public Information Officer. The RTI Act
gives us the right to access to information held by “public authorities”.
Public authorities mean and includes are:
(1) Any authority or body or institution of self government constituted
under the Constitution of India.
(2) Any authority or body established by an Act of Parliament.
(3) Any authority or body established by an Act of State legislature.
(4) Any authority or body constituted by notification or order made by the
government both Central and State which also includes the bodies owned,
controlled and “substantially financed by the government.
Even the non-governmental organizations which were substantially
financed either directly or indirectly by the government were also brought
under the sweeping definition of public authority.
The Article 12 of Constitution of India defines the term “State” as used in
different Articles of Part III of Constitution. It says that unless the context
otherwise required, the term State includes the following.
(1)The government and Parliament of India i.e. Executive and Legislature
of Union.
(2) The government and legislature of each state i.e., executive and
legislatures of States.
(3) All local or other authorities within the territory of India.
(4) All local or other authorities under the control of Govt. of India.
The word “Public Authority” has a wider space in contrast to the
definition of State under Article 12 of Constitution of India. The Supreme
Court interpreted the word “other authorities” in a number of cases. The
development of law as to other authorities must be traced through the
following four cases
(i) Electricity Board Rajasthan v Mohan Lal, decided by a bench of five
judges
(ii)Sukhdev Singh v Bhagatram, decided by bench of five judges
(iii) R D Shetty v International Air Port Authority, decided by a bench of
three judges and
(iv) Ajay Hasia v Khalid Murjib ,decided by a bench of five judges.
In holding that the Rajasthan State Electricity Board fell within the
definition of State in Article 12, the majority adopted the test that a
statutory authority would be within the meaning of other authorities, if it
has been invested with statutory power to issue binding directions to the
parties, the disobedience of which would entail penal consequences or it
has the sovereign power to make rules and regulations having the force of
law.
In Sukhdev’s case the Supreme Court considered its earlier decision on
the meaning of the word authorities in Article 12. The question arose in
these appeals in which dismissed employees claimed re-instatement
respectively from Oil and Natural Gas Commission (ONGC), Life
Insurance Corporation (LIC) and Industrial Finance Corporation
(IFC) which were incorporated under ONGC Act, 1959, the LTC Act
1956 and IFC Act, 1948. As to whether the three Corporations were other
authorities the Supreme Court held. “For the foregoing reason we hold that
the rules and regulations framed by the ONGC, LIC and IFC has the
force of law. The employees of these statutory bodies have a statutory
provision. By way of abundant caution we State that these employees and
not servants of the union or State. These statutory bodies are “Authorities
within the meaning of Article 12.”
Bhagwati J. formulated the relevant test for determining whether a
corporation was an agency or instrumentality of the government in Hasia’s
case as follows:—
(a)“One thing is clear that if the entire share capital of the corporation is
held by the government, it would go a long way towards indicating that
the corporation an instrumentality or agency of the government
(b) Where the financial assistances of the State is so much “as to meet
almost (the) entire expenditure of the corporation, it would afford some
indication of the corporation being impregnated with governmental
character
(c) it may also be a relevant factor whether the corporation enjoys
monopoly status which is the (SIC) State conferred or State protected
(d) existence of the deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality
(e) if the functions of the corporation are of public importance and clearly
related to government function, it would be relevant factor in classifying
the corporation as an instrumentality or agency of the government
(f) especially, if a department or government is transferred to a
corporation., it would be a strong factor supportive of their inference of
the corporation being an instrumentality or agency of the government.”
In M.C. Mehta v Union of India the important question which was raised
before the Court was whether a private corporation fell within the ambit of
Article 12 was not finally decided by the Court, but it stressed the need to
do so in future.
In Hemant Goswami Vs Administrator, U.T., Chandigarh, there can be
little doubt about the fact that the Administrator is an authority established
under Article 239 of the Constitution, occupied by an official with an
assignment, and therefore an office. It matters little whether that authority
exercises any duty or not. Even if he does not head a particular body or sit
in a room or building where people work at desk, he still occupies a
formal position of responsibility. Under the circumstances there can be
little doubt about the fact that the Administrator is a public authority and,
under sec. 5(1) was required within 100 days of the enactment of this Act
to designate a Public Information Officer.
 University of Madras v. Shanta Bai (1950), the Madras High Court

evolved the principle of ‘ejusdem generis’ i.e., of the like nature. It

means that only those authorities are covered under the expression
‘other authorities’ which perform governmental or sovereign
functions. Further, it cannot include persons, natural or juristic, for
example, Unaided universities.
 Ujjammabai v. the State of UP (1961), the Supreme Court rejected the

above restrictive scope and held that the ‘ejusdem generis’ rule could
not be resorted to in interpreting other authorities. The bodies
 named under Article 12 have no common genus running through them
and they cannot be placed in one single category on any rational basis.

Leading Cases:
i) Indira Jaising V Registrar General Supreme Court of
India (2003) 5 SCC 494
Supreme Court of India
PETITIONER: Indira Jaising vs
RESPONDENT: Registrar General,Supreme Court Of India & Anr.
DATE: 9 May, 2003
Bench: S. Rajendra Babu & G.P. Mathur

Facts.: space. A. PIL. Was filed by senior advocate and former Additional
Solicitor General Indira Jaisingh. In July 2015, in which she termed the
present system of senior designation as arbitrary, non transparent and
discriminatory. She had asked for the system to be made more democratic.
The process of senior designation in the apex court was on hold since the
filing of the PIL. Vijaysingh.
Along with her plea. To ensure that any destination of lawyers as India
was based on proper criteria., Jaisingh also raised an argument that the
practice violated Article 14 and 15 of the Constitution by being arbitrary
and discriminatory and lead to lobbying.. Undo new power among Current
senior advocates.
Other stakeholders also filed similar cases that were clubbed with Jai
Singh, such as the Gujarat High Court Advocates Association, and the
Meghalaya Bar Association. In which some of the petitioners even
demanded Section 16 of the Advocate Act 1961 to be struck down for the
want of constitutionality. Section 16 provides for creation of 2 classes of
advocates. Senior advocates and other advocates.
As per the petitioners. This differentiation had never a reasonable
classification nor a Nexus with the object it sort to achieve, and therefore
was violative of Article 14. Right to Equality of the Constitution of India
of. One of the petitioner even contended that the use of senior advocate
designation was against Article 18 of the Constitution, which effectively
has abolished granting titles to Indian citizens.
Issue raised.
A. Weather present system of designated. Designating a lawyer as senior
advocate is arbitrary, common, transparent and discriminatory?
B. Weather Section 16 and the provision of the Supreme Court rules.
Command 2013 was unconstitutional and violative. Violet, Article 14 and
18 of the Indian Constitution?
Relevant legal provisions.
1. Section 16 in the Advocates Act, 1961.
Section 16. Senior and Other Advocates. –
1. There shall be 2 classes of advocates, namely, senior advocates and
other advocates.
2. An advocate Mein, with his consent, be designated as senior advocate if
the Supreme Court or a higher court is of opinion that by virtue of his
ability. Standing at the bar, Oregon. Special knowledge or experience in
law? He is deserving in such distinction.
3. For making such a distinction, the Supreme Court and various high
courts have respectively formulated rules and procedures.
Order I.V.. Advocate:Supreme Court Rules, 2013.
Here the Chief Justice and the judges, after obtaining prior consent of the
advocate, may designate him or her as a senior advocate, if, in their
opinion, he or she deserves such distinction. Double inverted comma starts
by virtue of his ability, standing at the bar or special knowledge or
experience in law. Double inverted comma stops.
Supreme Court held.
 Section 16- As long as the basis of the classification is found on
reasonable parameter, which can be introduced by way of uniform
guidelines\ norms to be laid down by his court, we had, we do not see how
the. power of designation confront conferred by section 16 of the act can
be said to be constitutionally
Power of designation confront conferred by section 16 of the Act can be
said to be constitutionally impermissible.
Article 14- The object behind the classification is to recognise qualities of
merit and ability demonstrated by in depth knowledge of. Intricate
questions of law and fairness in court proceedings, consistent with the
duties of. Accounts Dil. As an officer of the Court and contributions in
assisting the court of Court to Charter the right courts of action in any
given case.
Article A teen- The court held that the designation. Senior Advocate is
not a title. It is a distinction; Recognition of the talent and special qualities
of a person which have been proved and tested over a period of time.
Analysis.
The sole yardstick of. by which we propose to introduce a set of
guidelines to govern the matter is the need for the maximum objectivity in
the process so as to ensure that it is only and only the most deserving and
the The very best who would be bestowed the. Honour and dignity.
The credential of every advocate who seeks to be designated as a senior
advocate, or whom the full court suo Moto. Decides. To confer the
honour. Must be subject to an utmost strict process of screw unity, leaving
no scope for any doubt or dissatisfaction in the matter.
The court created a permanent committee. PC known as Committee for
Designation of Senior Lawyers and gave the power for the equivalent for
executing the set of rules that were established.
Headed by Honorable. the CJI.
 2 Senior Most judges of the SC. And HCF of India. Dalan, Attorney
General for India or the Advocate General of the state for HC. The above
4 members of the Permanent committee will nominate another member of
the bar to be the 5th member. Permanent secretariat, the composition of
which will be decided by the sea G. J. Of India. \ HP in consultation with
the other members of the Permanent Committee.
Structure of committee. 5 members plus permanent secretariat. PS.

This was one of the cases which gained considerable media traction in the
recent years. Petitions were filed challenging the procedure of designation
of Senior Advocates before the Supreme Court of India. Given the parties
in this case, it is natural to question how Supreme Court can adjudge a
case against itself? All the courts in India and elsewhere dispense two
functions: one is judicial in nature while the other one being
administrative in nature. In the process of designation of Senior
Advocates, the Supreme Court performs an administrative function. In the
instant case, by sitting in judgment over its administrative functions, the
Supreme Court is dispensing its judicial function, which is permissible as
per law.
Multiple petitions were filed before the Supreme Court by parties across
India. Ms. Indira Jaising, herself a designated Senior Advocate, challenged
the prevalent procedure of designations on the premise that the same needs
to be uniform across India. Some of the petitioners even demanded
Section 16 of the Advocate Act, 1961 to be struck down for the want of
constitutionality. Section 16 provides for creation of two classes of
advocates: Senior Advocates and Other Advocates. As per the petitioners,
this differentiation had neither a reasonable classification nor a nexus with
the object it sought to achieve, and therefore was violative of Article 14
(Right to equality) of the Constitution of India. One of the Petitioners even
contended that the use of ‘Senior Advocate’ designation was against
Article 18 of the Constitution, which effectively has abolished granting
titles to Indian citizens.
Before proceeding further, I wish to briefly describe the legal position
pertaining to designation of Senior Advocates in India. As per Section 16
of the Advocates Act, 1961, two classes of advocates are prescribed:
Senior Advocates and Other Advocates. For being designated as a Senior
Advocate, the Act has empowered the Supreme Court and High Courts to
confer such a designation on advocates who, in the respective Court’s
opinion, deserve such distinction for their “ability, standing at the Bar or
special knowledge or experience in law”. For making such a distinction,
the Supreme Court and various High Courts have respectively formulated
rules and procedures. For instance, as per Order IV, Rule 2 of the Supreme
Court Rules 2013, the Chief Justice and the Judges, after obtaining prior
consent of the advocate, may designate him/her as a Senior Advocate if, in
their opinion, he/she deserves such distinction “by virtue of his ability,
standing at the Bar or special knowledge or experience in law”. An
advocate who becomes a Senior Advocate is subject to certain restrictions
as he/she then is considered to be an “Advocate of Advocates”. These
restrictions need not be discussed for the purposes of this synopsis.
The Supreme Court, in the instant case, reiterated the history of this
distinction, which as you shall notice, naturally had colonial roots. The
profession of Advocacy traces itself back to the Greek and Roman legal
systems. Notably, Emperor Justinian (482-565 AD), equated lawyers with
soldiers as the former protected the “hopes, lives and the children of those
who are in serious distress”. Subsequently, after a few centuries, England
had inherited the Roman traditions, but the practise of advocacy had not
mushroomed in the British Empire. It was only the priests and the nobility
who represented people, necessarily because of the prevalence of Canon
Law or the Law of the Church in those times. It was only in the 13th
century that professional lawyers emerged in England. Due to the
complexities of litigation, the legal professionals were divided into two
classes: ‘Pleaders’ and ‘Attorneys’. While ‘Attorneys’ were engaged in
drafting and transactional part of the case, ‘Pleaders’ became the voice of
their clients before the courts. Over the course of time, “distinguished
class of senior pleaders with considerable status and experience emerged,
and they came to be known as Serjeants-at-Law”.
Drawing special privileges from the King, these serjeants had the right of
pre-audience in Courts which made them gain considerable advantage
over other lawyers. Moreover, Courts of those times permitted only such
eminent lawyers to practise before it. “They (Serjeants) were so exclusive
and rare, that at a given point of time, there would be only about ten
serjeants in the practice of the law”. Given their legal expertise and
admirable court-craft, the development of legal jurisprudence in the 13th
century undoubtedly could be credited to them. In the forthcoming years,
the serjeants lost their importance, primarily due to the creation of Crown
Law Officers like Attorney General and the Solicitor General. The
serjeants were relegated to a subordinate position to the Crown Law
Officers. It was in the 16th Century when Queen Elizabeth I created the
position of Queen’s Counsel, which exists in Britain even today. “The
appointments as Queen’s Counsels were made to recognize professional
eminence, or political influence”. Finally, when the Courts were opened
for practise to the entire Bar, the serjeants lost their eminence. Similar
system developed in India in the later years. A ‘Senior Advocate’ in India
is an equivalent of a ‘Queen’s Counsel’ in England.
The Supreme Court in the present case, perused the procedure for such
designation across the globe, specifically in Nigeria, Australia, Singapore
and Ireland, and came to the conclusion that the procedure there was more
or less similar to the one existent in India. It was also observed that the
reason for drawing such distinction in those countries was also similar to
that in India. The Court then went on to examine the various procedures
for designation of Senior Advocates in India.
In the Supreme Court, an Advocate was eligible to apply for being
designated as a Senior Advocate, provided he was in practice for the last
20 years. The applications of all such interested candidates, would then be
circulated for assessment by the Chief Justice and all the other Judges of
the Supreme Court. Only those cases, which were approved by a minimum
of five Supreme Court Judges, would then be placed before the Full Court
(all Judges) for voting by secret ballot. A majority vote would decide
whether a particular candidate gets the designation or not. Alternatively, if
any of the Judges of the Supreme Court, including the Chief Justice, felt
that a particular advocate deserved such distinction, then they may
themselves recommend him/her for such designation. Such a
recommendation would undergo the same procedure as mentioned above.
After perusing the various procedures implemented by the High Courts in
India, the Supreme Court noticed that those were more or less similar to
the aforementioned procedure prevalent in the Supreme Court. However,
the procedures of High Courts did have several inconsistencies as regards
the “age; income; length of practice” required of the applicants. While
some High Courts prescribed a minimum practice of 15 years, there were
some which required only 10 years of practice for being eligible to apply
for a designation. In some High Courts, only the Court or senior members
of the Bar could recommend an advocate for the Senior designation. Some
High Courts required applicants to have at least Rs. 2-3 lakhs of assessable
annual income, while some others prescribed an assessable annual income
of at least Rs. 7-10 lakhs. There was clearly no uniformity.
Recently, in a brazen use of power, the Meghalaya High Court abolished
the requirement of 5 years practice before itself and made any advocate
practicing anywhere across India eligible for getting himself a Senior
designation from the Court. Moreover, the Meghalaya High Court also
allowed any Senior Advocate in the country to recommend the name of
any advocate in any Court of India to be designated as a Senior Advocate
by the Meghalaya High Court. In all the other High Courts in India, it was
only the advocates practicing before those respective Courts, who were
eligible to apply for designation from those High Courts. This practice of
the Meghalaya High Court was condemned by the Supreme Court in the
present case. Consequently, the Meghalaya High Court agreed to amend
its procedures of designating Seniors.
The Supreme Court then proceeded to assess the constitutionality of
Section 16 of the Advocate Act, 1961. As per the petitioners, this Section,
by drawing a separate class amongst the Advocates, violated the right to
equality of the junior advocates under Article 14 of the Constitution. It
was also argued that the distinction of ‘Senior Advocates’ was not at all
necessary since all advocates professionally held the same qualifications.
Furthermore, merely because of one being a designated ‘Senior
Advocate’, he/she “steals an undeserving head start in the profession” by
virtue of right of pre-audience given to them under Section 23 of the
Advocate Act, 1961. It was also argued that because of this designation,
the common public developed a perception that only the Senior Advocates
had the “competence, ability and merit” in the eyes of the Judges. The
practice of designating Senior Advocates was also challenged to be
violative of Article 18 of the Constitution which abolished conferment of
titles.
Having heard the parties, the Supreme Court went on to hold that the
canons for drawing such a distinction had been drawn by the Advocate
Act, 1961: “(1) ability; (2) standing at the Bar and (3) special knowledge
or experience in law”. It was only based on these parameters that the
classification was made. Therefore, there was a tangible reason for making
such a classification as it was not “uncontrolled, unguided, uncanalised
power” conferred upon the Courts. It was further held that “the
consequences spelt out by the (petitioners), namely, (1) indulgence
perceived to be shown by the Courts to Senior Advocates; (2) the effect of
designation on the litigant public on account of high fees charged; (3) its
baneful effect on the junior members of the bar; and (4) the element of
anti-competitiveness, etc. (were) untoward consequences occasioned by
human failures. Recognition of qualities of merit and ability demonstrated
by in-depth knowledge of intricate questions of law; fairness in court
proceedings consistent with the duties of a counsel as an officer of the
Court and contributions in assisting the Court to charter the right course
of action in any given case, all of which would go to determine the
standing of the Advocate at the bar (was) the object behind the
classification. Such an object would enhance the value of the legal system
that Advocates represent”. Thus, the two limbs of Article 14- “reasonable
classification” having a nexus with the “object sought to be achieved”
were satisfied in this case and therefore Section 16 of the Advocate Act
was held to be constitutional.
As far as the constitutionality under Article 18 was concerned, the Court
held that the designation ‘Senior Advocate’ was “hardly a title. It was a
distinction; a recognition”. The Court drew analogies from other
professions which used similar titles- “Senior Surgeon”, “Senior
Consultant”, etc. Hence, the Court turned down the issue of
unconstitutionality of the senior designation under Article 18.
The Supreme Court, however, observed that the discretionary power
which Section 16 conferred upon the various Courts in India while
designating seniors, had to be exercised based on tangible evidence and
must be uniform across India. Relevant precedents were also relied upon
by the Supreme Court to reach this finding[2].
Based on the aforementioned findings, the Supreme Court laid down a
skeleton of the process of Senior designation to be implemented in India.
It is as follows:
 A Permanent Committee for designation of Senior Advocates, along
with its Secretariat, was to be constituted each, by the Supreme Court
and the respective High Courts.
 The Permanent Committee would comprise of the Chief Justice and

two senior-most judges of that Court, the learned Attorney General

for India (Advocate General in case of High Courts). These four
members shall then nominate a member from the Bar as the fifth
member on the Permanent Committee.
 All applications and written proposals by Hon’ble Judges, would be

sent to the respective Secretariats which would then collect data

pertaining to the reputation, conduct, integrity of the Advocate to be
so designated. This data would be compiled into a report to be
published on the website of the concerned Court, to seek comments
and suggestions by various stakeholders.
 After receiving such comments/suggestions, the final report would

then be sent to the Permanent Committee for their scrutiny. The

Permanent Committee shall conduct an interview and then decide
each case based on a point-based system prescribed in this regard.
 The points-based system is as follows: 20 points for the number of

years of practice (minimum number of years required were 10); 40

points for contribution to reported judgments and specialization in a
particular area of law; 15 points for publications by the Applicant
 Advocate; 25 points on the 'Test of Personality' based on the
interview.
 The Permanent Committee would subsequently place its report before

the Full Court, which shall then vote on the candidatures through a
secret ballot and the view of the majority shall prevail.
 The candidates who were unsuccessful in receiving the senior

designation, would be ineligible to apply again at least until after two

years.
This was the effective outcome of the present case. Subsequently, the
administrative sides of the Supreme Court and all the High Courts in India
modified their designation procedures to conform with the aforementioned
blueprint.
ii) People;s Union for Civil Liberties V Union of India
AIR 2004 SC 1442
Supreme Court of India
PETITIONER: People's Union for Civil Liberties & Anr.
RESPONDENT: U.O.I. & Ors.
DATE OF JUDGMENT: 06/01/2004
BENCH: CJI & S.B. Sinha
The appellants People’s Union for Civil Liberties (PUCL) had sought for
disclosure of a report on safety of nuclear installations, submitted by the
Atomic Energy Regulatory Board (AERB) to the Delhi government in
November 1995, envisaging issues relating to purported safety violations
and defects on various nuclear installations & Power Plants across the
country. It was contended by UOI that the report was classified as "Secret"
as it pertains to several sensitive facilities carried out dummy nuclear
installation and raised a plea of privilege in relation to the said report.
The petitioners had moved the Supreme Court after the Bombay High
Court had rejected their petition in January 1997. The petitioners had also
raised doubt about the safety aspect with regard to disposal of nuclear
waste.
The Supreme Court held that for determining a question when a claim of
privilege is made the following questions need to be answered:(i) whether
the document in respect of which privilege is claimed, relation to affairs of
any state;(ii) whether the disclosure of the contents would be against
public interest. Based on the aforementioned test, the Supreme Court held
that the restrictions as regard disclosure of information as contained in
Section 18 of the Atomic Energy Act are not vague or wide in nature. It
specifies the areas where such disclosures are prohibited. The powers of
the Central Government to make an order in terms thereof are, thus,
limited. Therefore Section 18 is cannot be considered unconstitutional and
is a valid piece of legislation.
It has not been contended nor could it be contended that the operation and
functioning of a nuclear plant is not sensitive in nature. Any information
relating to the training features processes or technology cannot be
disclosed as it may be vulnerable to sabotage. Keeping in view the purport
and object for which the disclosure of the Report of the Board has been
withheld, the Court is of the opinion that it is not a fit case where this
Court should exercise its discretionary jurisdiction under Article 136 of
the Constitution of India, nor a perusal of the report by the Court is
necessary. The order issued by the Central Government under Section 18
of the Act and its claim of privilege do not suffer from any legal infirmity.
Rejecting the petition by the People’s Union of Civil Liberties (PUCL)
and the Bombay Sarvodaya Mandal for making public the government
report, the Court ruled that the petitioners were "not entitled" to get the
document declared as "secret" by the Union Government under Section 18
of the Atomic Energy Act 1962.
Case Analysis
Case Summary and Outcome
The Supreme Court of India held that Indian voters have a right under
Article 19(1)(a) of the Indian Constitution to obtain information about
political candidates. The People’s Union of Civil Liberties (PUCL)
challenged the validity of a 1951 law, which stated that political
candidates were not bound to disclose any information not required under
the law. The Court reasoned that the availability of basic information
about the candidates enables voters to make an informed decision and also
paves the way for public debates on the merits and demerits of candidates.
Facts
The People’s Union of Civil Liberties (PUCL) challenged the validity of
Section 33B of the Representation of People Act, 1951. Section 33B
provided that, notwithstanding a judgment or order of the court or Election
Commission, an electoral candidate is not bound to disclose any
information apart from that required under the Act. In Union of India v.
Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Supreme
Court of India recognized that the right to know about electoral candidates
falls within the right to information available under the right to freedom of
speech and expression described in Article 19(1)(a) of the Indian
Constitution. It further indicated that information about the criminal
background of candidates, assets and liabilities of candidates and their
family members, and educational qualifications of candidates should be
available to the voters as part of their right.
The Election Commission issued directives to effect this judgment.
However, Section 33B made ineffective the judgment in that case and
other directives. Thus, the PUCL challenged Section 33B as violative of
Article 19(1)(a).
Decision Overview
P. Venkatarma Reddi, J., delivered the opinion of the Court. The Supreme
Court of India reiterated that Article 19(1)(a) includes the right of voters to
have basic information about electoral candidates. In a democracy, the will
of the people is expressed in periodic elections. Availability of basic
information about the candidates enables voters to make an informed
decision and also paves the way for public debates on merits and demerits
of candidates. This in turn goes a long way in promoting freedom of
speech and expression, and also ensures the integrity of the electoral
process in a democracy. Further, freedom of expression is not limited to
oral or written expression, but also includes voting as a form of
expression. Even though the right to vote itself may not be a fundamental
right, the expression of opinion through the final act of casting a vote is
part of the fundamental right of freedom of speech and expression under
Article 19(1)(a).
A liberal approach to the disclosure of information about an electoral
candidate is desirable. However, compelling a person to disclose personal
information affects the person’s privacy. There is a need to draw a line
between the voters’ right and candidates’ privacy. The legislature must
apply its mind and lay down the criteria on which information must be
disclosed. In the absence of such a law, in the case of Union of India v.
Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Court gave
certain broad indicators for disclosure in order to give effect to the right
under Article 19(1)(a). The Election Commission directives based on this
judgment were meant to operate only until the time legislature enacted an
appropriate law. While these points of disclosure serve as broad indicators
for enacting a law, the legislature must give them due weight.
The Court concluded that Section 33B of the Representation of People
Act, 1951, was unconstitutional. Firstly, it froze and stagnated the right to
information by nullifying the effect of any order or judgment requiring
disclosure of information. Instead, the right to information is a dynamic
right that should be allowed to grow. Secondly, the Act inadequately
required disclosure of information with respect to criminal background of
the candidates, and assets and liabilities of candidates and their spouse and
children. However, the Court held that by not providing for disclosure of
educational qualifications, it cannot be said that Article 19(1)(a) has been
violated.
The Court directed the Election Commission to issue revised instructions
in accordance with the law laid down in this judgment.
Decision Direction
Decision Direction indicates whether the decision expands or contracts
expression based on an analysis of the case.
Expands Expression
The Court expanded the scope of the right of voters with respect to
information about electoral candidates.
Facts
The Petitioner i.e. PUCL, a voluntary organization, filed a public interest
petition challenging the constitutional validity of Section 5(2) of the Act,
which allowed the Central Government or the State Government, during
public emergency or for public safety, to intercept messages if satisfied
that it is necessary or expedient so to do on various grounds including the
sovereignty and integrity of India, friendly relations with foreign states
and public order. The Petitioner challenged this section claiming it
violated individuals’ right to privacy in the wake of a report published by
the Central Bureau of Investigations on “Tapping of Politicians Phones”.

Issues
1. Whether Section 5(2) of the Act was used to infringe the right to
privacy; and
2. Whether there was a need to read down Section 5(2) of the Act to
include procedural safeguards in order to preclude arbitrariness and
prevent indiscriminate phone tapping.

Arguments
The Petitioner argued that right to privacy was a fundamental right
guaranteed under Articles 19(1) and 21 of the Constitution. The Petitioner
further contended that to save Section 5(2) of the Act from being declared
unconstitutional, it would be necessary to read down the provisions so as
to safeguard the right to privacy and while Section 5(2) was vital for the
several state purposes, it was essential to read in procedural safeguards.
The Petitioner also argued that prior judicial sanction, ex parte in nature
was the only safeguard that could eliminate the element of arbitrariness or
unreasonableness.
The Respondents, the Union of India, argued that the striking down of
Section 5(2) would injure public interests and jeopardise the security of
the state. The Respondents further denied the allegations of misuse of
power as they averred that phone tapping can only be ordered by an
officer specifically authorized by the Central or State Government and
only under certain conditions and was therefore sufficiently checked. They
also contended that reasons for ordering phone tapping had to be recorded
and if there was misuse of power, the aggrieved party could approach the
Government to take suitable action. Further, they argued that the party
whose telephone was to be tapped could not be informed as it would
defeat the purpose of phone tapping and it was absolutely necessary to
maintain secrecy in the matter.

Decision
The Court placed reliance on the judgments in Kharak Singh vs. State of
U.P. & Ors. (AIR 1963 SC 1295), Gobind vs. State of MP & Anr. (AIR
1975 SC 1378) and R. Rajgopal vs. State of TN (AIR 1995 SC 264) and
noted that though the Indian Constitution did not expressly provide for a
right to privacy, the right was a part of the right to "life" and "personal
liberty" under Article 21 which could not be curtailed "except according to
procedure established by law". It held that only a case by case inquiry
would reveal if the right had been infringed or not.
The Court observed that “the right to hold a telephone conversation in the
privacy of one's home or office without interference can certainly be
claimed as ‘right to privacy’” and held that telephone-tapping would
violate Article 21 unless it was permitted under a “procedure established
by law”. The Court also stated that telephone conversations were an
exercise of a citizen’s right to freedom of speech and expression under
Article 19(1)(a) and hence interception of these conversations must be a
reasonable restriction under Article 19(2) of the Constitution.
The Court reviewed the report of the Second Press Commission which
stated that “tapping of telephones was a serious invasion of right to
privacy. It is a variety of technological eavesdropping.” and that the
“relevant Statute i.e., Indian Telegraph Act, 1885, a piece of ancient
legislation, does not concern itself with tapping”. Moreover, the report
stated that “tapping cannot be regarded as a tort because the law as it
stands today does not know of any general right to privacy” and
recommended that telephones may not be tapped except in the interest of
national security, public order, investigation of crime and similar
objectives.
The Court analysed Section 5(2) and noted that the provision clearly laid
down conditions under which interception orders could be given. The first
step under this provision was to satisfy two prerequisites, i.e. ‘occurrence
of any public emergency’ or in ‘the interest of public safety’. The officer
authorised by the Government had to be satisfied that it was “necessary or
expedient” in the interest of five grounds enumerated under this section:
1. Sovereignty and integrity of India;
2. Security of the State;
 3. Friendly relations with foreign States;
4. Public order; or
5. Preventing incitement to the commission of an offence.
Moreover, the officer was empowered to issue the order for interception
only after recording the reasons in writing. After making these
observations, the Court refused to declare Section 5(2) unconstitutional,
though it emphasised the need to strictly follow the two statutory
prerequisites and the five grounds enumerated under Section 5(2).
Further, the Court refused to accept the Petitioner’s submission regarding
imposition of prior judicial scrutiny as the only procedural safeguard
before passing of interception orders. It reasoned that the power to make
rules in this regard rests with the Central Government under Section 7 of
the Act and censured the government for not framing proper laws despite
the severe criticism attracted by Section 5(2). However, the Court decided
to lay down guidelines in the interim period in order to rule out
arbitrariness, and to protect the right to privacy.
The guidelines laid down broadly entailed the following –
1. Orders for telephone tapping could be issued by the Home Secretary
of the Central Government or a State Government, and this power
could be delegated only in an emergency;
2. The authority making the interception order must consider whether it
was necessary to obtain the information required through such orders;
3. The interception order, unless renewed, would cease to be effective
after two months from the date of issue, and limited the total period
of the operation of the order to six months;
4. Detailed records were to be maintained of the intercepted
communication and the procedure followed;
5. The use of intercepted material was limited to the minimum
necessary for the purposes under the Act, and intercepted material
would be destroyed when retention became unnecessary; and
6. Review committees should be constituted at Central and State levels
to assess compliance with the law.

iii) S.P. Gupta V Union of India, AIR 1982 SC 149

Supreme Court of India
 PETITIONER: S.P. GUPTA
RESPONDENT: UNION OF INDIA & ANR.
DATE OF JUDGMENT: 30/12/1981
BENCH: P.N. Bhagwati & A.C. Gupta & S.M. Fazalali & V.D. Tulzapurkar & D.A. Desai
Background of SP Gupta vs Union of India
SP Gupta vs Union of India marks a significant milestone within the
context of the ‘Three Judges Cases,’ which is now commonly referred to
as the ‘Four Judges Case’ since the year 2015. These cases played a
pivotal role in the establishment of a collegium system for the
appointment of judges within the Supreme Court and High Courts.
Through these cases, the Court set a crucial precedent, emphasising the
principle of independent jurisdiction. This principle ensures that the
judiciary is the sole authority responsible for the appointment of judges,
with no interference from any other branch of the government.
The case of SP Gupta v Union of India in 1981, often referred to as the
‘Judges’ Transfer Case,’ is the foundation of the collegium system.
Subsequently, in 1993, a second case solidified the implementation of this
system across the nation and in 1998, a third case addressed and clarified
any existing loopholes within the system. In the fourth case in 2015, the
Court took a decisive step by abolishing the National Judicial
Appointment Commission, which had previously assisted the President in
the selection of judges for both the Supreme Court and High Courts.
S.P. Gupta, a prominent figure in the legal profession, had a long-standing
career as a pleader in the Allahabad High Court since 1951. He also served
as the Advocate General for the State of Uttar Pradesh on two occasions
during his distinguished tenure. His pivotal role in this case played a vital
part in shaping the establishment of the collegium system in our country
for the appointment of judges.
Brief Facts of SP Gupta vs Union of India
In the year 1981, a multitude of writ petitions were initiated by various
legal practitioners across different high courts. The common thread in all
these petitions was a challenge to a government order pertaining to the
non-appointment of two judges and their subsequent transfer. This legal
saga began with the filing of the initial petition in the Bombay High Court,
followed by a second petition lodged in the Delhi High Court. These
petitions not only contested the government’s order but also raised
constitutional concerns regarding the procedure employed for appointing
judges to higher courts.
The heart of the matter in SP Gupta vs Union of India revolved around the
appointment of three additional judges to the Supreme Court for a limited
term, a move perceived as inconsistent with the provisions outlined in
Article 224 of the Constitution. The petitions further sought the
conversion of these temporary judicial positions into permanent ones, a
step seen as crucial for safeguarding the independence of the judiciary.
Among the several petitions, one was submitted by S.P. Gupta, who held
the role of an advocate in the Allahabad High Court at the time. His
petition specifically addressed the appointment of Justice Murlidhar,
Justice A.N. Verma and Justice N.N. Mittal as additional judges in the
High Court. An advocate from the Ministry of Law and Justice contested
the validity of these petitions, contending that the government’s order and
the short-term judicial appointments had not resulted in any legal harm to
any party.
Issues Raised
The central concern in SP Gupta vs Union of India revolved around the
constitutional validity of the Central Government’s order regarding the
non-appointment and short-term transfer of judges in High Courts.
Furthermore, the case questioned the disclosure of correspondence
between the Minister of Law, the Chief Justice of the Delhi High Court
and the Chief Justice of India. Challenges to the standing (locus standi) of
the petitioners were also raised. An equally significant issue pertained to
the independence of the judiciary and the procedures governing the
appointment of judges in higher courts.
Contentions of the Parties in SP Gupta v Union of India
Arguments Presented by the Petitioners
In their petitions, the petitioners in SP Gupta vs Union of India contended
the constitutional validity of the Central Government’s order. They argued
that this order indirectly coerced judges into consenting to their
appointment as additional judges under the threat of jeopardising their
professional permanency. The petitioners also sought the disclosure of
communications related to the non-appointment and short-term transfers
of judges.
Another argument in SP Gupta v Union of India put forth was that the
President had failed in their duty under Article 216 of the Constitution to
appoint judges effectively to address the backlog of cases. Consequently,
the petitioners called for a writ of mandamus against the President.
Additionally, they claimed that the procedure outlined in Article 124 had
not been properly followed.
Arguments Presented by the Respondents
The respondents in SP Gupta vs Union of India countered the issue of
disclosure by invoking Article 74(2), which asserts that advice sought by
the President from members of the Council of Ministers is immune from
challenge in court. Moreover, they cited Section 123 of the Indian
Evidence Act, 1872, which prohibits the use of unpublished documents as
evidence in court.
Concerning the publication of documents, the respondents referenced the
precedent set in the case of State of Punjab v. Sodhi Sukhdev Singh
(1961), wherein the Court held that documents pertaining to ‘state affairs’
fall under the discretion of the department head regarding their
publication. Furthermore, they argued that the advice provided by the
Council of Ministers during meetings is protected from disclosure under
Section 123 of the Evidence Act.
Regarding the issue of maintainability in SP Gupta v Union of India, the
respondents asserted that the petitions filed by the petitioners should be
deemed non-maintainable as they had not suffered any harm. If these
petitions were to be pursued, the judges appointed as additional judges
should have done so. Thus, they contended that the Court should not
entertain these petitions, as the petitioners did not experience any injury or
loss as a result of the Central Government’s order.
Rule of law
According to Article 124 of the Indian Constitution, the number of judges
in the Supreme Court will be decided by Parliament as per the law.
Currently, the number of judges is 33, apart from the Chief Justice of
India. All the judges in the Supreme Court will be appointed by the
President and will hold office until the age of 65 years.
Article 217 sets out the conditions for the appointment of judges in the
High Court. The appointment will be made by the President. The
recommendation of the candidates will be given by a collegium formed for
this purpose. The Article further provides that a judge will not be qualified
for the appointment in the following cases:
 If he is not a citizen of India or

 He does not have an experience of 10 years in the judicial office in

the territory or,

 He has not practised as an advocate for 10 years in the High Court.

Judgement of the Court in SP Gupta vs Union of India

Majority Decision – 5:2
In SP Gupta vs Union of India, a majority decision of 5:2 affirmed the
validity of not extending the term of an additional judge, specifically,
Judge S.N. Kumar. The matter was heard by 7 judge bench of the Supreme
Court of India.
Justice Bhagwati proposed the establishment of a collegium to recommend
candidate names to the President for appointing judges in the Supreme
Court and High Courts.
Conversely, Justice Pathak and Tulzapukar emphasised the importance
and supremacy of the Chief Justice of India’s opinion and advice over
others. It was unanimously agreed that ‘consultation’ meant
comprehensive and effective deliberation, requiring constitutional
functionaries to base their decisions on complete and identical facts.
Explanation of the Judgment
The Honourable Supreme Court, in SP Gupta vs Union of India, rejected
the respondents’ argument regarding the disclosure of correspondence.
The Court in SP Gupta vs Union of India ruled that disclosure should only
be withheld if it negatively impacts public interest and conflicts with
public policy. However, if disclosure is necessary for the public’s benefit,
it must be promptly executed. The Court emphasised the concept of an
open and accountable government, wherein the government is answerable
to the people for its actions.
This concept aligns with the right to information protected under the
freedom of speech and expression, as outlined in Article 19(1)(a) of the
Constitution. In a democracy, transparency and accountability are essential
and citizens must have access to information. The only exception to this
right is when the information pertains to national security or its disclosure
would harm the public interest.
Regarding the advantage of advice taken by the respondents under Article
74(2), the Court clarified that the correspondence did not fall under the
category of advice as defined in the Article. Labelling the correspondence
as advice by the Chief Justice of India and the Chief Justice of the Delhi
High Court did not grant it protection under the Article, especially
considering that it contained their opinions, which did not amount to
official advice.
Regarding the third claim of the respondents in SP Gupta v Union of
India, in which they sought to shield unpublished documents from being
treated as evidence under Section 123 of the Indian Evidence Act, 1872,
the Court referred to the precedent set in the case of State of UP v. Raj
Narain (1975). In that case, the Court upheld the High Court’s decision to
treat unpublished documents as admissible evidence, stating that the court
has the authority to determine the potential impact of disclosure on public
interest.
In this case, there was a lack of proper consultation between the
government and the relevant authorities regarding the appointment and
transfer of judges. Furthermore, these decisions were not based on relevant
grounds. The Court’s objective is to strike a balance between fairness,
justice and the public interest. In this context, the appointment and transfer
of judges were deemed to be in the public interest, necessitating the
disclosure of correspondence.
Conclusion
This is one of the most important cases as it is the first case where the
question related to the appointment of judges in the Supreme Court and
the High Court’s was raised and dealt with by the Court. The case
discussed various aspects like the independence of the judiciary, the
meaning of the word ‘consultation’, the power of the President to appoint
the judges of the Supreme Courts and the High Courts and the introduction
of the collegium system. It also widened the scope of PIL by allowing a
person other than the sufferer to file public interest litigation in court. This
case is also important for emphasising the right to know as part of freedom
of speech and expression given under Article 19(1)(a) of the Constitution.
This case paved the way for future developments in the judiciary.
However, there is still a long way to go. The present collegium system for
the appointment of judges is lacking in transparency. The risk of nepotism
is always there due to insufficient criteria. All these issues might lead to
various other judgements in the near future so that the ultimate goal of the
independence of the judiciary can be achieved completely by the
judiciary.
UNIT-IV MEDIA & LAW

1. Legal Dimension of Media

While the Constitution provides a guarantee to freedom of speech and
expression, which is exercised by the media, the criminal law imposes
certain restrictions on that freedom for protecting the social or group
interests and public tranquility. Article 19(2) provides certain grounds,
based on which the state can impose reasonable restrictions on this
freedom. Media-persons are basically under the same obligation as the
people in general to abide by general principles of penal law. Media in its
exercise of free criticism may slip either intentionally or through its
routine activity into any kind of criminal liability under different
circumstances. The Indian Penal Code envisaged certain crimes which a
media person may get entangled into and face the prosecution. Media
persons' right to free speech cannot extend to cause sedition, by bringing
disrepute of the state, or affect the reputation of individual leading to
defamation or represent obscene or base material disturbing the moral and
serene atmosphere of society. In case they do so, the criminal provisions
of Indian Penal Code are attracted. Thus Defamation, Sedition and
Obscenity are the three major areas where the media persons could be
vulnerable to face the prosecution.
.Media & Criminal Law (Defamation/obscenity/Sedition)
MEDIA & CRIMINAL LAW
While the Constitution provides a guarantee to freedom of speech and
expression, which is exercised by the media, the criminal law imposes
certain restrictions on that freedom for protecting the social or group
interests and public tranquility.
Article 19(2) provides certain grounds, based on which the state can
impose reasonable restrictions on this freedom. Media-persons are
basically under the same obligation as the people in general to abide by
general principles of penal law. Media in its exercise of free criticism may
slip either intentionally or through its routine activity into any kind of
criminal liability under different circumstances.
The Indian Penal Code envisages certain crimes which a media person
may get entangled into and face prosecution. The right to free speech of
Media persons cannot extend to cause sedition, by bringing disrepute of
the state, or affect the reputation of individual leading to defamation or
represent obscene or base material disturbing the moral and serene
atmosphere of society. In case they do so, the criminal provisions of
Indian Penal Code are attracted. Thus Defamation, Sedition and Obscenity
are the three major areas where the media persons could be vulnerable to
face the prosecution.
1. Media and Crime of Defamation:
Journalist who defames is liable both in civil law and criminal law.
Section 499
Indian Penal Code defines defamation:
Whoever by words either spoken of intended o be read, or buy signs or by
visible representation, makes or publishes any imputation concerning any
person intending to harm or knowing or having reason to believe that such
person, is said, except in cases herein after excepted, to defame that
person.
Intention to harm
According to section 499 of the IPC (The Indian Penal Code, 1860), the
person who defames another must have done it intending to harm or
knowing or having reason to believe that such imputation will harm the
reputation.
It is not necessary to prove that the complainant actually suffered directly
or indirectly from the scandalous imputation alleged; it is sufficient to
show that the accused intended to, knew or had reason to believe, that the
imputation made by him would harm the reputation of the complainant,
irrespective of whether the harm is actually caused or not. It is not
necessary that there should be an intention to harm the reputation. It is
sufficient if there was reason to believe that the imputation made would
harm the reputation of the complainant. Section 499 of the
Indian Penal Code gives four explanations in this regard.
Defamation of the dead
Explanation 1: According to this, the imputation must not only be
defamatory of the deceased but it must also be hurtful to the feelings of his
near relatives. The question depends upon the harm caused and not the
harm intended, for in the case of deceased the latter test is inapplicable.
Defamation of a company or a collection of persons
Explanation 2: A corporation or company could not be liable in respect of
a charge of a murder, incest, or adultery because it could not commit those
crimes.
The words complained of must attack the corporation or company in the
method of conducting its affairs; must accuse it of fraud or
mismanagement or must attack its financial position
The class defamed must not be too large to cease to be distinct from the
memory of certain trade or profession. If a person calls the lawyers as
thieves or medical men as a class of cut-throats in disguise or the police
force as a hotbed of corruption, there would not be indictable libel-because
the class is too large and the generalisation too sweeping to affect any of
its composing members.
Defamation by innuendo
Explanation 3 says that when a particular passage is prima facie non-
defamatory the complainant can show that it is really defamatory of him
from the circumstances and nature of the publication. Such a passage is
called ‘innuendo’.
The language of irony or sarcasm very often will be better, forcible, and
impressive than a bold statement. It is thus necessary for the prosecution
to establish that the words, though innocent their appearance, were
intended to be said in a libelous sense. So it may be libelous to say of an
attorney that he is an honest lawyer meaning thereby he is the reverse of
the honest.
Explanation 4 deals with what is considered as harming the reputation.
This explanation specifies various ways in which the reputation of a
person may be harmed. It says that the imputation must directly or
indirectly lower the moral or intellectual character of the person defamed.
It includes degradation in caste, community at feasts and so on. During a
feast, a Hindu declared that complainant had been excommunicated and
was not fit to sit down along with others to have food. It was held that
priest was guilty of defamation
Publication
Publication in its primary sense is communication by the defendant to a
person other than the defamed. It is the basis of liability in English civil
law of defamation i.e., in torts. This principle though not accepted as the
basic principle of English Penal Law of defamation is accepted as the
basic principle of Indian Penal Code. (Section 499 Expln.4) Words which
may have the effect of provoking other persons at whom they are uttered
are made punishable under Section 504 of the Indian Penal Code which
deals with intentional insults with intent to provoke breach of peace. The
gist of the offence in section 499 seems to lie in the tendency of the
statements verbal or written to create that degree of pain which is felt by a
person who is subjected to unfavorable criticism and comments.
Exceptions
The ten exceptions to Section 499 state cases in which an imputation
prima facie defamatory may be excused. They are occasions when a man
is allowed to speak out or write matters which would ordinarily be
defamatory. Those exceptions are:
1. Imputation of truth for public good,
2. Public conduct of public servants,
3. Public Conduct of public men other than public servants,
4. Comment on cases and conduct of witnesses and others concerned,
5. Merits of cases, decisions and judicial proceedings,
6. Merits of a public performance, literary criticisms,
7. Censure in good faith by one in authority,
8. Complaint to authority,
9. Imputation for protection of interest,
10. Caution in good faith.
It is pointed out that the ninth exception states a general principle of which
exceptions 7, 8 and 10 are particular instances so that the last four
exceptions really fall under privilege i.e., communication made on
privileged occasion that is in the discharge of a duty or protection of an
interest in the person who makes it.
In Lingam Gouda V. Basan Gouda Patil C.R. Criminal appeal No.173
of 1927 decided on Sept.22,1927 (Unrep.Bom) it was held: "if one repeats,
another writes a libel, and a third approves what is written they are all
makers of it, as all who concur and assent to the doing of an unlawful act
are guilty; and murdering a person, in which all who are present and
encourage the act are guilty, though the sound was given by one only.
Taki Hussain 1884,7 All 205 (222) F.B. Publication legally means
communication of defamatory matter, to the third person other than the
defamed one. Direct communication to the defamed was held to be no
publication under the Code by a majority of the Full Bench of the
Allahabad High Court
Balasubramania Mudaliar V. Rajagopalachariar 1944 46 Cr. L.J. 71 -
The publisher of a newspaper is responsible for defamatory matter
published in such paper whether he knows the contents of such paper or
not. The editor of a journal is in no better position than any other ordinary
subject with regard to his liability for libel. He is bound to take due care
and caution before he makes a libelous statement.
Landmark Cases
In the Supreme Court decision in Harbhajan Singh v. State of Punjab
A.I.R.1966 s.C.97 the accused was secretary of Punjab Praja Socialist
Party. He wrote a defamatory article in Blitz about Surinder Singh, son of
the Chief Minister of Punjab, Pratap Singh Kairon. Two defamatory
statements reveal that he is the leader of smugglers and is responsible for a
large number of crimes being committed in Punjab State. The statement
added that because the culprit happens to be the Chief Minister’s son, the
cases are always shelved up. ‘There was evidence that certain pending
cases against some smugglers were withdrawn by the State at the instance
of the Chief Minister. The truth of these allegations was not proved
beyond the shadow of doubt in the trial of the defamation case.
The accused pleaded that imputation made in good faith and for public
good falling under Exception 9 though he has stated in the original trial
court that he relied on the truth of his statements falling under the First
exception to S.499. Trial Court and High Court found against the accused,
even on the plea of ‘good faith’ under ninth exception, namely on the
ground that heehaw not conclusively established the truth of the
allegation. High Court sentenced him to undergo three months simple
imprisonment and to pay a fine of Rs. 2,000/-. The Supreme Court
allowed the appeal of the accused and set aside the order of conviction by
holding that in the circumstances of the case that the appellant was entitled
to the protection of the Ninth Exception.
Sewakram v. R.K. Karanjia A.I.R. 1981 S.C.1514 During the period of
Emergency Sewakram who is a senior lawyer practicing at Bhopal, was
placed under detention under Section 3(1)(a)(ii) of the Maintenance of
Internal Security Act, 1971 and was lodged at the central Jail Bhopal.
There were among other detenues three lady detainees, including Smt.
Uma Shukla. She was found to have conceived. She got the pregnancy
terminated. In an ex parte confidential inquiry by a Deputy Secretary to
the Government (Homes) it was found that the pregnancy was due to illicit
relations between Sewakram and Smt. Shukla, the Blitz in its three
editions in English, Hindi and Urdu flashed a summary of the report. The
story included that
(i) there was a mixing of male and female detainees in the central Jail,
(ii) Sewakram had the opportunity and access to mix with Smt. Shukla
freely and
(iii) Smt. Shukla became pregnant by Sewakram. The news item was per
se defamatory. After revocation of Emergency, Mr. Sewakram lodged a
criminal complaint for defamation. Mr. Karanjia prayed the Court to order
the production of inquiry report, which was rejected by the Magistrate.
Mr. Karanjia filed a revision before the High Court, wherein the inquiry
report was produced and the High Court quashed the proceedings on the
ground that the respondent's case clearly falls within the ambit of
exception 9 of S.499. In reaching that conclusion the Court observed that
‘it would be abuse of the process of the court if the trial is allowed to
proceed which ultimately would turn out to be vexatious proceeding. It
was held that the publication of report was for the welfare of the society.
A public institution like prison had to be maintained in rigid discipline; the
rules did not permit mixing of male prisoners with female prisoners and
yet the report said the prison authorities connived at such a thing. The
balance of public benefit lay in tits publicity rather than in hushing up the
whole episode. The report had further shown that the publication had been
honestly made in the belief of the truth of the report and also upon the
reasonable ground for such a belief, after the exercise of such means to
verify its truth as would be taken by a man of ordinary prudence under
similar circumstances.
The case went to Supreme Court on a technical ground whether an
appellate court like High Court can quash the original trial of the case
where it was not prayed for, and in a miscellaneous application. The
majority of Supreme Court bench allowed the appeal. Behraul Islam J.
dissented and said that the quashing of original proceeding is correct. The
Supreme Court also agreed that the publication of the defamatory
statement by Blitz is for public good and thus falls under the exception 9
to S.199
Sections 500, 501 and 502 of IPC -1860 prescribe punishments for
various defamatory statements
Sec. 500: Whoever defames another shall be published with simple
imprisonment for a term which may extend to two years or with fine, or
with both.
Sec. 501: Printing or engraving of defamatory matter is made publishable
with simple imprisonment for 2 years or with fine or with both.
Sec. 502: Whoever sells or offers for sale any printed or engraved
substance containing defamatory matter, knowing that it contains such
matter, shall be punished with simple imprisonment for a term which may
extend to two years or with fine or with both.
Media and Crime of Sedition
Criticism of government is not sedition. The expression ‘sedition’
generally means defamation of state. But the legal meaning of ‘sedition’ is
different.
Definition: Section 124A of the Indian Penal Code defines and punishes
sedition as follows:
Whoever by words, either spoken or written, or by signs, or by visible
representations, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards, the
Government established by law in India, shall be punished with
imprisonment for life to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine.
Explanation 1: The expression 'disaffection includes disloyalty and all
feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of
the Government with a view to obtain their alteration by lawful means,
without exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section.
Explanation 3: Comments expressing disapprobation of the
administrative or other action of the Government without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Meaning: Sedition is a crime against the state. The word 'seditio' in a
latin means 'going aside' The State intends to bring in all kinds of
separatist tendencies into this word and curb the writings or campaign
causing disaffection. According to Sir J Fitzjames Stephen are not
connected with open violence but they presuppose disaffection with the
existing government in various ways. This offence in English law is a
crime against the Crown and government, but not as serious as treason.
Sedition according to English law is the misdemeanour of publishing
verbally or otherwise any words or documents with the intention of
exciting disaffection, hatred or contempt, against the sovereign or the
government and constitution of the Kingdom or either House of
Parliament, the administration of justice, or exciting the subject to change
by unlawful means the Church, the State or Exciting ill-will, hostility, or
ill feelings between different classes.
According to decision in Indramani Singh case, sedition is a
comprehensive term, and it embraces all those practices, whether by word,
deed, or writing, which are calculated to disturb the tranquility of the State
and lead ignorant persons to endeavour to subvert the Government and
laws of the country.
Balagangadhar Tilak's Case: In Balagangadhar Tilak Case,28 the
proprietor, editor, manager and printer of Bangbasi, a Bengali weekly
newspaper, published a certain article, for which charged under Section
124-A and 500 Indian Penal Code. In his speech, he suggested that the
government established by law in British India was thoroughly dishonest
and unfair and that steps should be taken either by violence or by threat of
violence to abolish it, comes within the provisions of this section. Anyone
is entitled to hold what political views he chooses provided he expresses
them with proper restraint and with due regard to law. The right of free
speech exists, subject only to the qualification that the freedom is not
permitted to degenerate into a licence to provoke breaches of peace, to stir
up disaffection towards the King Emperor or the Government established
by law in British India, or to bring the Government established by law into
hatred or contempt.
Supreme Court in Kedar Nath case (1962) 2 Cr L J 103, AIR 1962 SC
955- Moreover a citizen has a right to say or write whatever he likes about
the government; or its measures, by way of criticism, or comment so long
as he does not incite people to violence. When he does so and incites
people to violence, he loses the constitutional protection of freedom of
speech and freedom is different from licence. It further observed that the
restrictions imposed by these provisions cannot but be said to be in the
interest of public order and within the ambit of permissible legislative
interference. The explanations appended to the main body of section make
it clear. It is only when the words used have the pernicious tendency or
intention of creating public disorder or disturbance of law and order that
the law steps in to prevent such activity in the interest of public order.
Section 124-A is a proof of this that the Government can be criticised by
all legitimate means and the State cannot do anything.
A threat to Media's Freedom
This case is an example for slapping a case of sedition against the visible
representation and its symbolic communication of seditious message.
Sedition is a weapon generally a state uses against the persons having
opposite political thought or those who are propagating against the foreign
rulers and championing the cause of self-rule like that of Indian
Independence struggle.
Section 124A defined as an offence, exciting disaffection against the state;
it was replaced with sedition' in 1898. The English law meaning of
sedition is basically libel of government, but its ordinary English meaning
is “stirring up rebellion against the Government”
Media and Crime of Obscenity
The society is now reeling under the impact of unending flow of cinema,
story, dance and drama through small screen of television and of
pornography in its vulgar form in personal computer with World Wide
Web. The television with powerful, multi-channel visual splendors is
totally occupying the young minds. Its utility in educating, informing and
news giving is camouflaged by its misuse in dishing out obscene and
indecent stuff in the name of entertainment. Images of women in
electronic media, either by way of commercial advertisements or themes
of serials or repeated show of films, can straight away influence the young
minds.
It is the need of civilized world to protect the human dignity and medium
of any kind has to project the image of humanity in decent form. The
commodification of women as the object of sex and obscene writing or
visual, or sensational theme of a serial or film represents the moral and
cultural levels of a society.
While all other media have their own limitations of reach, the TV and
Internet have no technological, territorial or literacy limitations. The
writing is for those who know to read and write, and the film as such is
meant for which they have to pay. TV at present is playing a role of
"medium of the medium" by becoming a vehicle for films based on stories
and novels. Seeing a cinema in theatre requires preparedness, whereas the
TV which has become an inevitable ingredient of either drawing room or
bed room, repeats a film either in totally or in part for umpteen number of
times without requiring any preparedness on the on the part of audience
except to switch on the set. A song and dance part or a fight sequence is
having a tremendous impact because of its repetition in TV, the most
powerful and effective vehicle of thoughts at present.
The internet as an information infrastructure, a communicative device, is
viewed as a tool for democratising speech on a global basis. Some say that
no national law can regulate the net users and TV viewers. Before
understanding the effectiveness of any control over distorting image of the
women, it is necessary to know the existing legal controls over the media.
Restriction on Freedom of Expression: Constitution of India
The constitution Art.19(1)(a) recognizes the right to freedom of speech
and expression, which can be restricted under Art.19(2) where in several
grounds were prescribed including "decency or morality and public order",
through which the image of humanity and dignity of women can be sought
to be protected in the media projections.
Obscenity and Indecency:
'Obscene means offensive to chastity or modesty; expressing or
representing to the mind or view something that delicacy, purity and
decency forbid to be expressed; impure, as obscene language obscene
pictures'. Decency connotes conformity to standards of propriety' good
taste or morality, conformity to ideals or right human conduct34 .
According to Oxford dictionary, obscene means 'offensive to modesty or
decency expressing or suggesting unchaste and lustful ideas; impure,
indecent. Indecency includes anything which an ordinary decent man or
woman would find to be shocking disgusting and revolting. Indecency is a
wider concept than obscenity. Anything obscene has to be indecent, but
indecency may be something which may not be obscene always, in the
sense of tendency to disgrace and corrupt the reader. For example
glorification of violence and a criminal may not be offensive and obscene
under Section 292 IPC but is still punishable under the Young Persons
Harmful Publications Act, 1956, for not being decent for them. Decency is
the ground available under Article 19(2) on which restrictions can be
placed on the freedom of speech and expression.
Offences affecting public decency and morals, IPC:
Indian Penal Code incorporates offences affecting public decency and
morals. S. 292 punishes selling or letting or distributing the objects (book
or pamphlet etc) which are lascivious or appeals to the prurient interest or
its effect tends to deprave and corrupt persons who are likely to read, see
or hear. Section 292 punishes selling of such objects to a person under the
age of 20 years. Section 294 punishes public exhibition, selling or singing
of obscene object.
Hicklin Test: As quoted in Ranjit D. Udeshi Case by Supreme Court
Validity It has to be decided on the facts and circumstances of each case
whether in the context of its surroundings, the questioned act is obscene or
not. As stated in Ranjit D. Udeshi v. State AIR 1965 SC 881 none has so
far attempted to define 'obscenity'. In this case, the Supreme Court upheld
constitutionality of Section 292 and applied what is known as the Hicklin
test as the right test to determine obscenity. The test laid down by the
Chief Justice Cockburn in Queen v. Hicklin, was referred:
Whether the tendency of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral influences, and into
whose hand a publication of this sort may fall… it is quite certain that it
would suggest to the minds of the young of either sex, or even to persons
of more advanced years, thoughts of a most impure and libidinous
character"
The Supreme Court recently allowed some scenes of female frontal nudity
and ghastly rape in the feature film "Bandit Queen" saying that they were
essential to explain why Phoolan became a bandit Queen. The Court
refused to cancel the censor certification to the film, saying that the scenes
were not obscene. 1996(4) SCC 1
.Media & Tort Law (Defamation and Negligence)
DEFAMATION:
Definition of Defamation: A statement is considered defamatory when it
impugns another person‘s reputation or adversely affects his/her standing
in the community. It is actionable without proof of its falsity. Typically,
the elements of a cause of action for defamation include:
1. A false and defamatory statement concerning another;
2. The publication of the statement to a third party (that is, somebody
other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to
negligence on the part of the publisher; and
4. Damage to the plaintiff.
5. In the context of defamation law, a statement is "published" when it is
made to the third party. That term does not mean that the statement has to
be in print.
Slander and Libel:
A slander is a false and defamatory statement by spoken words or gestures
tending to injure the reputation of another. Slander is a civil wrong only.
Where a document containing defamatory statements is published by
being read out to a third person, or where the publication of the
defamatory statement is to a clerk to whom it is dictated, the
communication in either case amounts to slander and not to libel.
Differences: Apart from differences in form, the libel differs from slander
in its procedure, remedy and seriousness. In common law, a libel is a
criminal offence as well as a civil wrong, but slander is a civil wrong only;
though the words may happen to come within the criminal law as being
blasphemous, seditious, or obscene or as being a solicitation to commit a
crime or being a contempt of court. Under Indian Penal Code both libel
and slander are criminal offences.
A libel is in itself an infringement of a right and no actual damage need be
proved in order to sustain an action. At common law, a slander is
actionable only when special damage can be proved to have been its
natural consequence, or when it conveys certain imputations. Libel is
actionable per se but generally, slander is not.
Slander, actionable per se
Generally the plaintiff, to claim damages, has to prove that he suffered
special damage. The rule is slander is not actionable per se. But under
exceptional circumstances it is actionable without proof of special
damage. These exceptional circumstances are as follows:
a) When the slander contains imputation of crime:
b) When the slander contains allegation that plaintiff has a contagious
disease:
c) When the unchastity or adultery is attributed to any woman:
d) When the unfitness or incompetence is alleged:
In other ordinary slanders, the proof of special damage is necessary to
claim damages. The special damage must appear to be natural
consequence of the words spoken. Following are
the examples:
1. the loss of a customer, or
2. the loss, or
3. refusal, of some appointment or employment or
4. the loss of a gift, or
5. of hospitality of friends or
6. the loss of the consortium of one‘s husband
The media’s most dreaded professional hazard is the defamation litigation.
In fact a journalist who reports in hurry to meet the deadlines amidst
competition, is more vulnerable for both civil suit demanding
compensation for defamation and also a criminal charge which if
successful might land him in jail. Because the defamation is a two-in-one
choice available to every citizen to protect his reputation against
defamatory publication made by newspapers. One can either sue for
damages and/or also prosecute defamer.
Defamation is a ground on which a constitutional limitation on the right to
freedom of the expression, as mentioned Article 19(2) could be legally
imposed.
Thus the expression “Defamation” has been given constitutional status.
This word includes expressions like libel and slander covering many other
species of libel, such as obscene libels, seditious libels, and offensive
libels and so on. The law of defamation does not infringe the right of
freedom of speech guaranteed by article 19(1) (a). It is saved by Article
19(2) as it was included as one of the specific purposes for which a
reasonable restriction can be imposed.
The law relating to the tort of defamation, from the point of view of
distribution of legislative power, would fall under “actionable wrongs”
mentioned in Entry 8 of the Concurrent List in the Eleventh Schedule to
the Constitution.
Criminal law also falls under the Concurrent List. This would cover the
offence of defamation. Questions of defamation frequently arise in regard
to newspapers. The particular topic of “newspapers, books and reprinting
presses” is also covered by entry 39 of the Concurrent List. Special forms
of communication such as wireless, broad casting and the like find a
mention in entry 31 of the Union List. The field of legislation relating to
defamation is thus within parliament competence.
Defamation is both a crime as well as civil wrong. The criminal law of
defamation is codified in India. If state wants to prohibit a particular
conduct, it has to specifically define it and pass a law to prospectively
punish such conduct. This is a constitutional right under Article 20(1).
However the civil wrong of defamation is not a codified law in India and
the rules and principles of liability that are applied by our courts are
mostly those borrowed from the common law as explained in UK.
Because of this historical background, extensive reference to English law
becomes necessary to understand the civil liability for defamation.
A journalist working for any media is supposed to know that he has a duty
not to injure the reputation of another person by false publications, with or
without intention, because every citizen has a right to reputation. Right to
reputation is a facet of the right to life guaranteed under Article 21 of the
Constitution. Where any authority in discharge of its duties traverses into
the realm of personal reputation, it must provide a chance to the person
concerned to have a say in the matter, as decided by the Supreme Court in
State of Bihar v Lal Krishna Advani [(2003) 8 SCC 361] Noted writer
Weir It can be stated that the right of reputation is one of the most
important things in a man’s life. The right of reputation is a jus in rem,
which can be defined as a right, good against the whole world.

. Media and Legislature-Privileges of the Legislature

PRIVILEGES IN INDIA: India was ruled by English people for a long
time. For the proper functioning of the government, they made laws, while
adopting their own pattern prevailing in England with certain
modifications i.e. they made laws in accordance with situations and
circumstances at that time. The system copied or based on English pattern
exercised a great influence upon the members of the Constituent Assembly
who drafted the Indian Constitution, so, naturally, this Constitution carries
with it the British concept of Parliamentary privileges In India, the
privileges, immunities etc. of Parliament and its members are provided
under Article 105 and that of State Legislatures under Article 194 of the
Constitution '". The position under clause (1) & (2) of Article 105 is that
subject to the provisions of the Constitution and the rules and standing
orders regulating the procedure of Parliament, there shall be freedom of
speech in the Parliament.
In other respects under clause (3) of Article 105 (As it stands today after
44th Amendment of 1978) the powers, privileges and immunities of each
House of Parliament and of its members and committees shall be such as
may be defined from time to time by Parliament and until so defined, shall
be those of that House and of its members and committees immediately
before the coming into force of section 15 of the Constitution (44th
Amendment) Act, 1978. Article 194 (3) contains identical provision in
respect of State Legislature.
Under Article 105(3) of the Constitution, therefore, the privileges of our
Parliament are identical with those of the House of Commons as they
existed on the Jan 26th 1950. The Supreme Court, however, in special
reference no 1 of 1964 held that the Parliament cannot claim all the
privileges as enjoyed by the House of Commons at the Commencement of
the Constitution. It can exercise only those privileges of the House of
Commons which are incidental to legislative functions.
As a House continues to enjoy the same privileges as it enjoyed at the
commencement of the Constitution, the answer to the question that, what
were the privileges of parliament and the State Legislature being enjoyed
at the commencement of 44 Amendment is that they enjoyed the same
privileges which were being enjoyed by House of Commons at the
commencement of Constitution.
This amendment, therefore, merely excluded the name or reference of the
House of Commons from Article 105 and 194 but retained the same
position to continue which was existing at the commencement of the
Constitution. The parliamentary privileges restrict the freedom of press
and while publishing the reports of proceedings of a House of Parliament
or of its committees or on a conduct of a member or members inside or out
side the House, a lot of caution is required to be undertaken by the press.
The following privileges of the parliament affect the freedom of press.
(1) Right to Exclude Strangers - The parliament has the privilege to
exclude the strangers'. The Speaker or Chairman, as the case may be,
whenever, thinks fit under the rules of the House, may order the withdrawl
of strangers from any part of the House, including the representatives of
the press. The Parliament has not yet exercised these rights. However, it
may exclude press whenever holding a secret session though such chances
are quite rare. The Parliament is also empowered to withdraw press cards
of any particular journalist if any default is committed by him. The Lok
Sabha has, infact, withdrawn press cards twice Once of a special
correspondent of Blitz and on another occasion of a special correspondent
of Hindustan New Delhi. Any person including a press representative
excluded from the House under rule 248 of the House when It sits in a
secret session.'
(2) Right to prohibit the publication of its proceedings:
It is another important privilege which has been enforced by the
Parliament on various occasions with a specific intention, only to prevent
malafide publication of any inaccurate report or expunged portions of any
proceeding Unlike England, in India, there is no rule or standing order of
the Parliament prohibiting the publication of its proceedings. In M.S.M.
Sharma V. Sri Krishna Sinha A.I.R. 1959 S.C. 395 (Searchlight case) the
question before the Court was whether the legislature is empowered to
prohibit the publication of expunged portion of the proceeding of the
House. The Supreme Court gave the answer in affirmative and held that
Article 105 (3) and Article 194(3) confer all those powers and privileges
on Parliament and State Legislature.
(3) Power to Commit for Contempt:
One of the most important privileges available to Parliament is the power
to commit for its contempt and also defined as the 'keystone of
Parliamentary privilege'. The power is identical with that of House of
Commons in England. The power to punish for contempt was not
available to the legislature under the Government of India Act, 1919. For
the first time Government of India Act, 1935 conferred such powers. The
question is whether the existence of such punitive powers affects the
freedom of press. To answer such question it is to be kept in mind the
difference between the existence of power and exercise of that power. In
India, like the House of Commons, it has been the practice of each of the
House to exercise privilege under great limitation and conditions. In
majority of the cases the Parliament though oversensitive to its privileges
did not take any action when the editor or person making the defamatory
statement as the case may be expressed his sincere regret In the Blitz case
the editor of the newspaper was reprimanded by the Lok Sabha but the
Privilege Committee recognised the right of fair comment and observed as
following.
"Nobody would deny the members or as a matter of fact, any citizen, the
right of fair comment. But if the comments contain personal attack on
individual members of parliament on account of their conduct in
Parliament, or if the language of the comment is vulgar or abusive, they
cannot be deemed to come within the bounds of fair comment or
justifiable criticism”.
It is, therefore, clear that the privileges of the Parliament as discussed
above are of extreme importance for the smooth and proper functioning of
the parliament and State Legislatures and whenever, these privileges are
violated by the press, it would be guilty of committing contempt of
parliament or State Legislature. Under the following circumstances the
press has been held guilty of committing the contempt:
(1) Comments in a newspaper casting reflections on the character or
proceedings of the House, or of its committees, or member or members
collectively and thereby lowering their prestige in the eyes of the public
(2) Pre - mature publication of a motion tabled before the House and of
proceedings of a Committee of a House or the proceedings of a meeting
thereof by a newspaper before the committee completes its task and
presents its report to the house.
(3) Publication of proceedings of a committee of a House before it is
presented to the House concerned.
(4) Misreporting of the proceeding of the House, or of a report of a
Parliamentary Committee or, of a member of the House by newspaper
(5) Casting aspersions on the impartiality of the speaker attributing
malafides to him in discharge of his duties in the House.
(6) Publication of expunged portion of the proceedings of a House
(7) Publication of a document or paper presented to a committee before
the committee's report is presented to the House. (8) Comments on the
officers of the House casting reflections
The position of the parliamentary privileges when they are in conflict with
the freeedom of press has been settled in re-under Article 143 of the
Constitution of India. The advisory opinion of the Supreme Court in this
case however has made Article 105 (3) quite ambiguous in its approach as
if and when a law is made defining the privileges it would be subject to
Article 19 (1) (a) but in case if no law is made then the same provision
would yield to parliamentary privileges. However, inspite of the fact that
freedom of press is subject to privileges of the House, there are certain
enactments which give protection to press against a third party if
substantial and true report of the proceeding of either House is published.
In 1956 Parliamentary Proceedings (Protection of Publication), Act was
passed. Under the Act, no liability, Civil or Criminal, attaches to the
publication of proceedings of either Hosue, provided it is true and without
malice and also for public good. This Act was repealed in Dec. 1975
during Emergency but re-enacted in April 1977 and currently is the law
relating to the publication of proceeding of either House of Parliament.
The law also extends to the radio broadcasts. The Act of 1977 therefore,
provides immunity from any civil or criminal liability for publishing any
proceedings of either Hosue of Parliament, if the following conditions are
fulfilled,
(i) The report of the proceedings is substantially true;
(ii) It is not made with malice; and
(iii) It is made for public good.
The protection thus, extended by the aforesaid Act is confined not only to
the wrong or offence of defamation but also comprehends any other wrong
or offence which might possibly be caused by such publication, eg,
obscenity, incitement to an offence, sedition etc. notwithstanding that they
are otherwise punishable under Indian Penal Code or any other law in
force, in the year 1978 Article 361 - A was inserted into the Constitution
through the 44th Constitutional Amendment. The amendement provided
the constitutional protection to the Parlimentary
Proceedings (Protection of Publication) Act, 1977 and to the similar state
enactments.
. Media and Executive-Official Secrets Act,
The Official Secrets Act, 1923 (OSA) is a comprehensive document
relating to official secrets and it defines a number of offences. The Act is
aimed at maintaining the security of the State against leakage of secret
information, sabotage and the like. It is India’s anti-espionage legislation
held over from British colonisation. It states clearly that any action which
involves helping an enemy state against India is liable. It also states that
one cannot approach, inspect, or even pass over a prohibited government
site or area. According to this Act, helping the enemy state can be in the
form of communicating a sketch, plan, model of an official secret, or of
official codes or passwords, to the enemy. The disclosure of any
information that is likely to affect the sovereignty and integrity of India,
the security of the State, or friendly relations with foreign States, is
punishable by this act. The Act is important from the points of view of the
Press since many of the acts prohibited by law may be committed by
newspapers and journalists, as private individual, while performing their
duties.
The OSA, 1923 broadly has two parts – One relating to spying for the
enemy (Section 3 & 4). The other relates to unauthorised communication
of any other official code or pass words, or any sketch, plan, model,
article, note, document or information (Section 5).
Punishments under the Act range from three to fourteen years
imprisonment. A person prosecuted under this Act can be charged with the
crime even if the action was unintentional and not intended to endanger
the security of the state. The Act only empowers persons in positions of
authority to handle official secrets, and others who handle it in prohibited
areas or outside them are liable for punishment.
In any proceedings against a person for an offence under this Act, the fact
that he has been in communication with, or attempted to communicate
with a foreign agent, whether within or outside India is relevant and
enough to necessitate prosecution. Journalists also have to help members
of the police forces above the rank of the sub-Inspector and members of
the Armed forces with investigation regarding an offence, up to and
including revealing his sources of information (If required). When a
company is seen as the offender under this Act, everyone involved with
the management of the company including the board of directors can be
liable for punishment. In the case of a newspaper everyone including the
editor, publisher and the proprietor can be jailed for an offence.
. Media & Judiciary-contempt of Court
Power to punish for contempt of court is given in Articles 129 and 215,
Section 228 of Indian Penal Code and in the Contempt of Courts Act
1971. Contempt of Court is classified in to Civil Contempt and Criminal
contempt. Civil Contempt refers to a wilful disobedience of any judgment,
decree, order writ or other process of a court or a wilful breach of or
undertaking given to the Court. This concept is very clearly defined and
does not require much deliberation as opposed to Criminal Contempt.
Criminal Contempt has been defined as “ the publication (whether by
words, spoken or written or by signs, or by visible representations or
otherwise) of any matter or the doing of any other act whatsoever which
scandalises or tends to scandalise, or lowers or tends to lower the authority
of any court or prejudices or interferes or tends to interfere with, the due
course of any judicial proceeding or interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other
manner. Hence it is seen that as per the definition, whether or not an act or
rather the publication of something can be called contempt of court
depends a lot on the facts of the case and the discretion of the Court.
Hence there have been numerous judgements that have interpreted the
provisions.
What amounts to scandalising the court was discussed in the case of
Brahma Prakash Sharma Vs State of Uttar Pradesh AIR 1954 SC 10 The
Court after examining various decisions of English courts observed that
there were two important aspects in this regard.
The first aspect being that the reflection on the conduct or character of a
judge in reference to the discharge of his judicial duties would not be
contempt if such reflection is made in the exercise of the right of fair and
reasonable criticism which every citizen possesses in respect of public acts
done in the seat of justice.
Secondly, when attacks or comments are made on a judge or judges,
disparaging in character and derogatory to their dignity, care should be
taken to distinguish between what is a libel on the judge and what amounts
really to contempt of court.
The fact that a statement is defamatory so far as the judge is concerned
does not necessarily make it contempt. The Court held that the position
that emerged was that a defamatory attack on a judge may be a libel so far
as the judge is concerned and it would be open to him to proceed against
the libel or in a proper action if he so chooses. If, however, the publication
of the disparaging statement is calculated to interfere with the due course
of justice or proper administration of law by such court, it can be punished
summarily as contempt. One is a wrong done to the public. It will be an
injury to the public if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the judge or to deter
actual and prospective litigants from placing complete reliance upon the
court's administration of justice, or if it is likely to cause embarrassment in
the mind of the judge himself in the discharge of his judicial duties. The
above judgement was passed in the year 1953, which was well before the
Contempt of Court Act came in to force. However the case is important in
order to interpret and understand the provisions of the Act. In contrast to
the provisions of what constitutes contempt there are many more
provisions in the Act that provide situations that do not amount to
contempt. It is important to note from the point of view of the media that
innocent publication and distribution of matter does not amount to
contempt. The important exceptions are fair and accurate report of judicial
proceedings and fair criticism of judicial act.

. Media and Human Rights

It is here that the media can play a salutary role in creating larger
awareness of the concept of human rights, Basic human rights that would
constitute the right of every individual to his fundamental freedom without
distinction as to race, sex, language or religion.
Human society has developed from Stone Age to space age. But while
some nations or societies have developed apace the others seem to be
nowhere in the race. The rights which citizens enjoy vary depending upon
the economic, social, political and cultural developments.
In view of the fact that there is a revolutionary change and growth in every
sphere of life and mainly in the communication and media world, media
today, plays a decisive role in the development of society. Thus the role of
media in protection of human rights cannot be ignored or minimized.
Media is a communicator of the public. Today its role extends not only to
giving facts as news, it also analyses and comments on the facts and thus
shapes the views of the people. The impact of media on society today is
beyond doubt and debate. The media has been setting for the nation its
social, political economic and even cultural agenda. With the advent of
satellite channels its impact is even sharper and deeper. With twenty-four
hours news-channels, people cannot remain neutral to and unaffected by
what the channels are serving day and night. It is, therefore, of paramount
importance that the media plays an important and ethical role at all levels
and in all parts of the country and the world.
 2. Media in Constitutional Framework:
Freedom of Press - Article 19(1)(a)
To preserve the democratic way of life it is essential that people should
have the freedom of express their feelings and to make their views known
to the people at large. The press, a powerful medium of mass
communication, should be free to play its role in building a strong viable
society. Denial of freedom of the press to citizens would necessarily
undermine the power to influence public opinion and be counter to
democracy.
Freedom of press is not specifically mentioned in article 19(1) (a) of the
Constitution and what is mentioned there is only freedom of speech and
expression. In the Constituent Assembly Debates it was made clear by Dr.
Ambedkar, Chairman of the Drafting Committee, that no special mention
of the freedom of press was necessary at all as the press and an an
individual or a citizen were the same as far as their right of expression was
concerned.
The framers of the Indian constitution considered freedom of the press as
an essential part of the freedom of speech and expression as guaranteed in
Article 19 (1) (a) of the Constitution.
In Romesh Thaper vs State of Madras and Brij Bhushan vs State of
Delhi, the Supreme Court took it for granted the fact that the freedom of
the press was an essential part of the right to freedom of speech and
expression. It was observed by Patanjali Sastri J. in Romesh Thaper that
freedom of speech and expression included propagation of ideas, and that
freedom was ensured by the freedom of circulation.
It is clear that the right to freedom of speech and expression carries with it
the right to publish and circulate one’s ideast, opinions and other views
with complete freedom and by resorting to all available means of
publication. The right to freedom of the press includes the right to
propagate ideas and views and to publish and circulate them. However, the
freedom of the press is not absolute, just as the freedom of expression is
not. Public Interest has to be safeguard by article 19(1)(2) which lays
down reasonable limitations to the freedom of expression in matters
affecting:
a. Sovereignty and integrity of the State
b. Security of the State
c. Friendly relations with foreign countries
d. Public order
e. Decency and morality
f. Contempt of court
g. Defamation
h. Incitement to an offence
Freedom of Press Defined
It is an absence of statutory and administrative control on dissemination of
information, ideas, knowledge and thoughts.
The freedom of the press and of expression is guarded by the First
Amendment to the US Constitution which specifically lays down that this
freedom be in no way abridge by the laws. It is not Indian Leaders were
not aware of the US First Amendment or of Jefferson’s famous declaration
when he said that “Were it left me to decide whether we should have a
government without newspaper or newspapers without a government, I
should not hesitate a moment to prefer the latter.” Jawahar Lal Nehru
echoed similar views “I would rather have a completely free press, with all
the dangers involved in the wrong use of that freedom, than a suppressed
or regulated press.” Voltair once said, “I do not agree with a word you say
but I defend to death your right to say it.”
Mrs. Gandhi has never had much faith in the press. Her misgivings about
the press wee first expressed in her address to the International Press
Institute Assembly in New Delhi on November 15, 1966, when she
blamed the press for for giving wide publicity to student unrest in the
country. She said, “How much liberty should the press have in country
like India which is engaged in fighting a war against poverty,
backwardness, superstition and ignorance.” Mrs. Gandhi would not
suggest restrictions that might be imposed on the press but said that it was
for the leading editions, and journalists of the country to decide. Nine
years later when Mrs. Gandhi declared emergency action was taken
against the press immediately and complete censorship was imposed.
Kuldip Nayar, a veteran journalist wrote to Mrs. Gandhi soon after she
imposed the emergency, “if newspaper have criticized the government, it
is largely because of its sluggish administration, slow progress in the
economy field and the gap between promise and performance. My concept
of a free press is to ferret out the truth and let the public know.”
To preserve the democratic way of life, it is essential that people should
have the freedom to express their feelings to make their views known to
the people at large. The press, a powerful media of mass communication
should be free to play its role in building a strong viable society. Denial of
the freedom of press to citizens would necessarily undermine the power to
influence public opinion.
Besides the restrictions imposed on the press by the Constitution, there
exists various other laws which further curtail press freedom and the right
of the citizen to information as well as the right to freedom of speech and
expression. They are all in force in the interest of public order of the
sovereignity and security of the state.
Development of the Meaning of Freedom of Press
Historically, the origin of the concept of freedom of press took place in the
England. From the earliest times, in the West, persecution for the
expression of opinion even in matter relating to science or philosophy was
restored to by both the Church and the State, to suppress alleged heresay,
corruption of the youth or sedition. Such restraints, through licensing and
censorship, came to be accentuated after the invention of printing towards
the latter part of the 15th Century, and the appearance of newspaper in the
17th Century, - which demonstrated how powerful the press was as a
medium of expression.
Shortly after their emergence, newspaper came to take up the cause of the
Opposition against monarchical absolutism, which in turn, led to different
methods of suppression. It is in protest against such governmental
interference that freedom of the Press was built up in England. Opposition
to governmental interference, which had been brewing on for some time,
was supported by logical arguments by Milton in his Areopagitica (1644),
for instance, that free men must have the ‘liberty to know, to utter, and to
argue freely according to conscience, above all liberties’. Any for of
censorship was intolerable, whether imposed by a royal decree or by
legislation.
In fact, Milton’s Areopagitica was a protest addressed to the Long
Parliament which had taken up licensing, after the abolition of the Star
Chamber. It was as a result of such agition that the Licensing Act of 1662
was eventually refused to be renewed by the House of Commons, in 1694,
though the reasons given were technical.
The history of Freedom of Press, in England, is thus a triumph of the
people against the power of the licensor.
Since there is no written Constitution nor any guarantee of fundamental
right in England, the concept of freedom of press, like the wider concept
of freedom of expression, has been basically negative.
In other words, freedom of press, in England, means the right to print and
publish anything which is not prohibited by law or made an offence, such
as sedition, contempt of court, obscenity, defamation, blasphemy.
Status of Freedom of Press in India
In Romesh Thapar v/s State of Madras, Patanjali Shastri,CJ, observed that
“Freedom of speech & of the press lay at the foundation of all democratic
organization, for without free political discussion no public education, so
essential for the proper functioning of the process of popular government,
is possible.” In this case, entry and circulation of the English journal
“Cross Road”, printed and published in Bombay, was banned by the
Government of Madras. The same was held to be violative of the freedom
of speech and expression, as “without liberty of circulation, publication
would be of little value”.
The Hon’ble Supreme Court observed in Union of India v/s Association
for Democratic Reforms, “One-sided information, disinformation,
misinformation and non information, all equally create an uninformed
citizenry which makes democracy a farce. Freedom of speech and
expression includes right to impart and receive information which includes
freedom to hold opinions”. In Indian Express Newspapers v/s Union of
India, it has been held that the press plays a very significant role in the
democratic machinery. The courts have duty to uphold the freedom of
press and invalidate all laws and administrative actions that abridge that
freedom. Freedom of press has three essential elements. They are:
1. Freedom of access to all sources of information,
2. Freedom of publication, and
3. Freedom of circulation.
There are many instances when the freedom of press has been suppressed
by the legislature. In Sakal Papers v/s Union of India, the Daily
Newspapers (Price and Page) Order, 1960, which fixed the number of
pages and size which newspaper to grow.
.Freedom of Expression in Indian Constitution (Constitutional
Perspective)
In India before Independence, there was no constitutional or statutory
guarantee of freedom of an individual or media/press. At most, some
common law freedom could be claimed by the press, as observed by the
Privy Council in Channing Arnold v. King Emperor.
“The freedom of the journalist is an ordinary part of the freedom of the
subject and to whatever length, the subject in general may go, so also may
the journalist, but apart from statute law his privilege is no other and no
higher. The range of his assertions, his criticisms or his comments is as
wide as, and no wider than that of any other subject.”
With object and views, the Preamble of the Indian Constitution ensures to
all citizens inter alia, liberty of thought, expression, belief, faith and
worship. The constitutional significance of the freedom of speech consists
in the Preamble of Constitution and is transformed as fundamental and
human right in Article 19(1)(a) as “freedom of speech and expression.
For achieving the main objects, freedom of the press has been included as
part of freedom of speech and expression which is a universally
recognized right adopted by the General Assembly of the United Nations
Organization on 10th December, 1948. The heart of the declaration
contained in Article 19 says as follows:
“Everyone has the right to freedom of opinion and expression, this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.”
The same view of freedom of holding opinions without interference has
been taken by the Supreme Court in Union of India v. Assn. for
Democratic Reforms in which the Court has observed as follows: (SCC p.
317, para 38)
“One-sided information, disinformation, misinformation and non
information, all equally create an uninformed citizenry which makes
democracy a farce. …
Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions.”
In India, freedom of press is implied from the freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of India.
Article 19(1)(a) says that all citizens shall have the right to freedom of
speech and expression. But this right is subject to reasonable restrictions
imposed on the expression of this right for certain purposes under Article
19(2).
Keeping this view in mind Venkataramiah, J. of the Supreme Court of
India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India
has stated:
“In today’s free world freedom of press is the heart of social and political
intercourse. The press has now assumed the role of the public educator
making formal and non-formal education possible in a large scale
particularly in the developing world, where television and other kinds of
modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing
facts and opinions without which a democratic electorate [Government]
cannot make responsible judgments. Newspapers being purveyors of news
and views having a bearing on public administration very often carry
material which would not be palatable to Governments and other
authorities.”
The above statement of the Supreme Court illustrates that the freedom of
press is essential for the proper functioning of the democratic process.
Democracy means Government of the people, by the people and for the
people; it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his
right of making a choice, free and general discussion of public matters is
absolutely essential. This explains the constitutional viewpoint of the
freedom of press in India.
The fundamental principle which was involved in freedom of press is the
“people’s right to know”. It therefore received a generous support from all
those who believe in the free flow of the information and participation of
the people in the administration; it is the primary duty of all national
courts to uphold this freedom and invalidate all laws or administrative
actions which interfere with this freedom, are contrary to the constitutional
mandate.
Therefore, in view of the observations made by the Hon’ble Supreme
Court in various judgments and the views expressed by various jurists, it is
crystal clear that the freedom of the press flows from the freedom of
expression which is guaranteed to “all citizens” by Article 19(1)(a). Press
stands on no higher footing than any other citizen and cannot claim any
privilege (unless conferred specifically by law), as such, as distinct from
those of any other citizen. The press cannot be subjected to any special
restrictions which could not be imposed on any citizen of the country.

. Interpretation of Media Freedom

A free press plays a crucial role in safeguarding democracy and fostering a
transparent and accountable government. However, recent actions against
journalists associated with the online portal NewsClick, including raids,
seizures, and arrests, have intensified concerns about the protection of
digital data and press freedom in India.
 In the midst of the digital revolution, India confronts a threat from

digital authoritarianism. At this critical juncture, India needs both

political action and judicial determination to safeguard press freedom
in the country.
Press freedom is a fundamental principle that allows journalists and media
organizations to operate without censorship or government interference. It
is a core component of freedom of expression and is essential for a
democratic society.
Press freedom encompasses the following key aspects:
 Freedom from Censorship: Journalists and media outlets should be

able to publish or broadcast news and information without

government-imposed censorship.
 Access to Information: A free press should have access to

information and sources to investigate and report on matters of public

interest.
 Independence: Editorial independence ensures that news reporting is

based on facts and not influenced by outside interests.

 Protection of Sources: Journalists should be able to protect their

sources to encourage whistleblowers and informants to come forward

with information without fear of exposure or reprisal.
 Pluralism and Diversity: A free press should encompass a diverse

range of viewpoints and opinions, allowing for open debate and

discussion in society.
 Accountability: The media should hold those in power accountable

by investigating and reporting on their actions and decisions.

Constitutional Background:
 Freedom of the Press is nowhere mentioned in the Constitution.

However, Freedom of press or media refers to the rights given by

the Constitution of India under the freedom and expression of
speech in Article 19(1)(a). It encourages independent journalism and
promotes democracy by letting the people voice their opinions for or
against the government’s actions.
o Article 19 of Universal Declaration of Human Rights

enshrined that everyone has the right to freedom of opinion and

expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
o However, there are certain restrictions in Article 19(2) to protect

the nation and its integrity.

Status of Press Freedom in India :
 World Press Freedom
Index ranks countries and
regions according to the
level of freedom available
to journalists.
 It has been published every

year since 2002 by

Reporters Without
Borders.
 Each country or territory’s

score is evaluated using five

contextual indicators:
political context, legal
framework, economic
context, sociocultural
context and safety.
st
 In 2023, India ranked 161

among the 180 countries

with a score of 36.62 out of
100. In 2022, India’s rank
was 150.
What is the Importance of a Free Press for India?
 Democracy and Accountability: Journalists investigate and report

on government actions, policies, and decisions, holding officials

accountable for their actions.
 Information Dissemination: It helps citizens stay informed about

current events, government activities, and societal issues, enabling

them to make informed decisions and participate actively in the
democratic process.
 Check on Power: A free press acts as a check on the abuse of power

by the government and other powerful entities. It helps uncover

corruption, human rights abuses, and other wrongdoing, making it
difficult for those in authority to act with impunity.
  Transparency and Accountability: A free press promotes
transparency in government operations and decision-making
processes. It helps uncover hidden agendas, conflicts of interest, and
other factors that may influence government actions.
 Diverse Voices: India is a diverse country with a multitude of

languages, cultures, and perspectives. A free press provides a

platform for diverse voices and viewpoints, ensuring that the
concerns of various communities are heard.
 Protection of Fundamental Rights: A free press is a guardian of

fundamental rights, including the right to freedom of expression and

the right to know. It helps protect these rights by advocating for the
rights of individuals and groups.
 International Standing: India's reputation on the global stage is

influenced by its commitment to press freedom. Upholding press

freedom demonstrates a commitment to democratic values and
human rights, enhancing India's standing in the international
community.
Article 19 was brought to light after the Romesh Thappar vs State of
Madras case highlighted the importance of media being the fundamental
basis of all democratic organizations. However, it recognised the ‘public
safety and public order’ under Article 9 (1-A) and dismissed the case.
Venkataramiah J. of the Supreme Court of India in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India has stated: “In today’s
free world, freedom of the press is the heart of social and political
intercourse. The press has now assumed the role of the public educator
making formal and non-formal education possible on a large scale,
particularly in the developing world, where television and other kinds of
modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing
facts and opinions without which a democratic electorate (Government)
cannot make responsible judgments. Newspapers being purveyors of news
and views having a bearing on public administration very often carry
material which would not be palatable to Governments and other
authorities.”
Freedom of press and media is widely recognised in India. It does have
reasonable restrictions under Article 19(2) to protect the safety of the
people of the nation.
At the heart of the declaration in Article 19 it states, “Everyone has the
right to freedom of opinion and expression, this right includes freedom to
hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”
rights of the media?
Freedom of the Press is nowhere mentioned in the Constitution. It is
believed to be covered under Freedom of Speech and Expression. Hence,
the rights of a common citizen are the same as the rights of a media or
press house.
The media has certain rights to challenge the government and showcase
the issues gaining rapid attention by the people through various media
sources and houses. Some rights are:
 Defamation and free press

 Freedom of speech and expression

 Right to publish and circulate

 Right to receive information

 Right to conduct interviews

 Right to report court proceedings

 Right to advertise

However, there are certain restrictions in Article 19(2) to protect the

nation and its integrity. The restrictions can be imposed in case of threats
against:
 Sovereignty and integrity of India

 Security of the State

 Friendly relations with foreign states

 Public order, decency or morality

 Contempt of court

 Defamation

 Incitement to an offence

Which Institutions are Responsible for Protecting Press Freedom in

India?
  Press Council of India (PCI): The Press Council of India is a
statutory body established under the Press Council Act, 1978. It acts
as a watchdog to safeguard and promote press freedom and the
ethical standards of journalism.
 Ministry of Information and Broadcasting: The Ministry of

Information and Broadcasting is a government body responsible

for formulating policies and guidelines related to the media sector in
India.
 News Broadcasters Association (NBA): NBA is a self-regulatory

body representing the private television news and current affairs

broadcasters in India. It formulates and enforces a code of ethics and
standards for television news channels.
 Editors Guild of India: This is a voluntary association of editors of

leading newspapers and news magazines in India. It plays a crucial

role in defending press freedom and addressing issues related to the
rights and responsibilities of journalists.
 Legal System: India's legal system, including the judiciary, plays a

significant role in upholding press freedom. Courts have the authority

to address violations of press freedom, protect journalists, and
interpret laws related to media.
o In 1950, the Supreme Court in Romesh Thappar v. The State

of Madras observed that freedom of the press lay at the

foundation of all democratic organizations.
 International Organizations: International organizations such as

Reporters Without Borders (RSF) and the Committee to Protect

Journalists (CPJ) monitor press freedom in India and raise
awareness about violations on the global stage.
freedom of the press important in India?
 Free exchange of ideas: The press inspires people to think beyond

the social norms and gives a platform to exchange ideas and thoughts
that deserve to be heard by people all around the nation.
 Holding the person or body accountable for their actions: Often,

people try to cover up their actions and settle a case without bringing
the media into it. The press brings to light such situations and makes
 sure that justice is served correctly with the backing of the common
people.
 Voice of the people: The press acts as a channel which writes and

speaks the thoughts of the majority of people. It focuses on the issues

that are suppressed and brings forward the ones that should be talked
about.
 Fourth pillar of democracy: Since the media is an independent

body that challenges the Government, it can be referred to as the

fourth pillar of democracy alongside the judiciary, legislative and
executive bodies of the Government.
current state of the press?
Although there has been some progress from the time when ‘freedom of
the media’ can be estimated, the situation today is not very good. There
have been lots of cases of hate crimes, false accusations, trials due to
wrongful portrayal, fake news, etc., in the recent years.
Let’s take a look at the following:
 Fake News: We have all fallen victim to fake news which is so

widely circulated that we believe it to be the truth.

 Paid News: Due to journalism and news-reporting being a low-

paying job, some professionals often publish false news in exchange

of a payment.
 Biased Media: High-paying criminals and politicians often pay

media companies to cover ‘good’ and charitable moments of

themselves. This leaves the audience biased, especially when it
comes to elections.
 Crimes against journalists

As of 2021, 6 journalists have been killed because of their work. India is

among the top 4 countries with the most number of deaths on record.
Whether it is on job or off the job, they have been targeted and attacked
due to their work.
Over the course of the last five years (2017-2021), 138 cases of assault
and attacks against journalists were recorded. In Uttar Pradesh alone, 12
were killed, 48 were attacked and 66 were booked under various charges
and cases.
Several cases of crimes have surfaced over the years. Some of the most
prominent cases have been listed here.
Daniel Pearl
Daniel Pearl was an American Jew who was working in Mumbai, India as
the South Asia Bureau Chief of The Wall Street Journal. He went to
Pakistan to investigate the links between British citizen Richard Reid (i.e.
shoe bomber) and Qaedat-al Jihad. He was abducted on January 23, 2002,
and was found dead on February 1, 2002. His body, however, was
discovered only on May 16, 2002.
What are the Challenges associated with Press Freedom in India?
 Legal and Regulatory Constraints: India has laws that can be used

to restrict press freedom, such as defamation laws, sedition laws, and

laws related to national security. These laws are sometimes used to
intimidate journalists and media organizations.
 Government Interference: There have been instances of
government interference in the editorial independence of media
outlets. Governments may use advertising budgets as a tool to
reward or punish media organizations, which can influence their
reporting.
 Threats and Violence: Journalists in India often face physical

threats and violence, especially when reporting on sensitive issues

like corruption, organized crime, or communal tensions. Some
journalists have been attacked or even killed in the line of duty.
 Self-Censorship: Due to fear of reprisals or pressure from various

sources, journalists and media outlets may engage in self-censorship,

avoiding certain topics or taking a cautious approach to reporting.
 Ownership and Control: Media ownership in India is often

concentrated in the hands of a few powerful entities, which can

influence editorial decisions and limit the diversity of voices in the
media landscape.
 Defamation Lawsuits: Journalists and media organizations in India

are frequently targeted with defamation lawsuits, which can be time-

consuming and financially burdensome.
Measures can be Taken to Ensure a Free and Impartial Press in
India?
 Strengthen Legal Protections:

o Reform laws that can be misused to restrict press freedom, such

as defamation and sedition laws.

o Ensure swift and fair legal processes in cases involving press

freedom violations.
 Independent Regulatory Framework:

o Establish independent media regulatory bodies with members

representing a cross-section of society, ensuring that they are

free from government control and political influence.
 Protect Journalists and Whistleblowers:

o Enact and enforce laws that protect journalists from harassment,

violence, and threats, both online and offline.

o Establish mechanisms to protect whistleblowers who provide

information to the media in the public interest.

 Promote Transparency:

o Enact robust freedom of information or access to information

laws to promote transparency and enable journalists to access

government information.
o Promote transparency in media ownership to prevent media

concentration and conflicts of interest..

 Public Broadcasting Independence:

o Ensure the independence of public broadcasting institutions

from government control and influence.

o Appoint qualified and impartial boards to oversee public

broadcasters, and ensure their funding is secure and nonpartisan.

 Promote Journalistic Ethics:

o Encourage media organizations to adhere to a code of ethics that

emphasizes accuracy, fairness, and balanced reporting.

o Support professional development and training for journalists to

maintain high ethical standards.

o Raise public awareness about the importance of a free and

impartial press in a democratic society.

  International Cooperation:
o Collaborate with international organizations, such as UNESCO

and international press freedom groups, to promote press

freedom and share best practices.
o The UN Plan of Action on the Safety of Journalists aims to

create a free and safe environment for journalists and media

workers.
Conclusion
Addressing the issue of press freedom in India will require a concerted
effort from various stakeholders, with a shared commitment to upholding
the principles of a free press in a democratic society. It is a complex
challenge that needs continuous attention and action to ensure a vibrant
and independent media environment in the country.
. Issues of Privacy
Media has entered in almost every sphere of our lives, connecting us to
both the local and global community. Most popular these days are social
media platforms. These have become the most preferred pedestals of
sharing information, most importantly on glaring social issues. They have
become a vital source of information, especially for the younger
generation. Hence, they create a glaring impact on young minds.
This is where the issue of the right to privacy creeps in. Right to privacy is
a fundamental right of every citizen of India, interpreted by the Supreme
court of India to derive from Article 21 of the Constitution of India. The
issue at hand is that of competing claims between staunch advocates of
social media platforms and people claiming breach of their right to
privacy, at the behest of social media platforms, eulogized as the right to
freedom of speech and expression.
The higher judiciary of the country has recognised the right to privacy as a
right implicit in the right to life and liberty guaranteed to the citizens
of this country by Article 21. The Indian law has made some exceptions
to the rule of privacy in the interest of the public, especially, subsequent to
the enactment of the Right to Information Act, 2005 (RTI).
The RTI Act, makes an exception under section 8 (1) (j), which exempts
disclosure of any personal information which is not connected to any
public activity or of public interest or which would cause an unwarranted
invasion of privacy of an individual. What constitutes an unwarranted
invasion of privacy is not defined. However, courts have taken a positive
stand on what constitutes privacy in different circumstances.
Constitutional Framework of Privacy
The right to privacy is recognised as a fundamental right under the
Constitution of India. It is guaranteed under the right to freedom (Article
19) and the right to life (Article 21) of the Constitution. Article 19(1) (a)
guarantees all citizens the right to freedom of speech and expression. It is
the right to freedom of speech and expression that gives the media the
right to publish any information.
Reasonable restrictions on the exercise of the right can be imposed by the
State in the interests of sovereignty and integrity of the State, the security
of the State, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to
an offence.
Article 21 of the Constitution provides:
No person shall be deprived of his life or personal liberty except according
to procedure established by law.
Courts have interpreted the right to privacy as implicit in the right to life.
In R.Rajagopal v. State of T.N. and PUCL v. UOI the courts observed
that the right to privacy is an essential ingredient of the right to life.
For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar:
Who was sentenced to death for committing six murders: in his
autobiography divulged his relations with a few police officials. The
Supreme Court in dealing with the question on the right to privacy,
observed, that the right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of the country by Article 21. It is a 'right to be
left alone.' "A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child-bearing and education
among other matters.
The publication of any of the aforesaid personal information without the
consent of the person, whether accurate or inaccurate and 'whether
laudatory or critical' would be in violation of the right to privacy of the
person and liable for damages. The exception being, when a person
voluntarily invites controversy or such publication is based on public
records, then there is no violation of privacy.
In PUCL v. UOI which is popularly known as the wire-tapping case, the
question before the court was whether wire-tapping was an infringement
of a citizen's right to privacy. The court held that an infringement on the
right to privacy would depend on the facts and circumstances of a case.
It observed that: telephone conversation is an important facet of a man's
private life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office. Telephone-tapping
would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law."
It further observed that the right to privacy also derives from Article 19 for
"when a person is talking on telephone, he is exercising his right to
freedom of speech and expression."
In Kharak Singh v. State of U.P where police surveillance was being
challenged on account of violation of the right to privacy, the Supreme
Court held that domiciliary night visits were violative of Article 21 of the
Constitution and the personal liberty of an individual.
Right to Privacy Under Article 21
In India, the law of privacy evolved due to the challenge raised on police
surveillance. The Court, struck down a regulation permitting surveillance
and equated 'personal liberty' with 'privacy', and observed, that the concept
of liberty in Article 21 was comprehensive enough to include privacy. and
that a person's house, where he lives with his family is his 'castle' and that
nothing is more deleterious to a man's physical happiness and health than
a calculated interference with his privacy. The law of privacy is the
recognition of the individual's right to be let alone and to have his personal
space inviolate.
Freedom of Expression and information U/A 19(1) (a)
The right to impart and receive information is a species of the right to
freedom of speech and expression. A citizen has a Fundamental Right to
use the best means of imparting and receiving information. The State is
not only under an obligation to respect the Fundamental Rights of the
citizens, but also equally under an obligation to ensure conditions under
which the Right can be meaningfully and effectively be enjoyed by one
and all. Freedom of speech and expression is basic to and indivisible from
a democratic polity.
In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, the trial Judge
restrained the exhibition of the controversial film Bandit Queen both in
India and abroad. The trial court reached a prima facie view that the film
infringed the right to privacy of Phoolan Devi, notwithstanding that she
had assigned her copyright in her writings to the film producers.
This was upheld by the Division Bench. The Court observed that even
assuming that Phoolan Devi was a public figure whose private life was
exposed to the media, the question was to what extent private matters
relating to rape or the alleged murders committed by her could be
commercially exploited, and not just as news items or matters of public
interest.
Right of privacy and Right to know under Article 21
Article 21 enshrines right to life and personal liberty. The expressions
right to life and personal liberty are compendious terms, which include
within themselves variety of rights and attributes. Some of them are also
found in Article 19 and thus have two sources at the same time.
In R.P.Limited v Indian Express Newspapers the Supreme Court read
into Article 21 the right to know. The Supreme Court held that right to
know is a necessary ingredient of participatory democracy.
Safeguarding Identity of Children
The Juvenile Justice (Care and Protection of Children) Act lays down that
the media should not disclose the names, addresses or schools of juveniles
in conflict with the law or that of a child in need of care and protection,
which would lead to their identification. The exception, to identification of
a juvenile or child in need of care and protection, is when it is in the
interest of the child. The media is prohibited from disclosing the identity
of the child in such situations.
Similarly, the Convention on the Rights of the Child (CRC) stipulates
that:
Article 16
 1. No child shall be subjected to arbitrary or unlawful interference with
his or her privacy, family, or correspondence, nor to unlawful attacks
on his or her honour and reputation.
2. The child has the right to the protection of the law against such
interference or attacks.
Article 40 of the Convention, states that the privacy of a child accused of
infringing penal law should be protected at all stages of the proceedings.

Safeguarding Identity of Rape Victims Section 228A of the Indian Penal

Code makes disclosure of the identity of a rape victim punishable. In the
recent Aarushi Talwar murder case and the rape of an international student
studying at the Tata Institute of Social Sciences (TISS) the media frenzy
compromised the privacy of the TISS victim and besmirched the character
of the dead person.
In the TISS case, the media did not reveal the name of the girl, but
revealed the name of the university and the course she was pursuing,
which is in violation of the PCI norms. In addition to revealing names of
individuals, the PCI norms expressly states that visual representation in
moments of personal grief should be avoided. In the Aarushi murder case,
the media repeatedly violated this norm.
Right of privacy and Sting Operations
Section 5 of the Cable Television Networks (Regulation) Act, 1995 and
the Cable Television Network Rules (hereafter the Cable Television
Networks Act), stipulates that no programme can be transmitted or
retransmitted on any cable service which contains anything obscene,
defamatory, deliberate, false and suggestive innuendos and half truths. The
Rules prescribes a programming code to be followed by channels
responsible for transmission/re-transmission of any programme.
International Conventions
Internationally the right to privacy has been protected in a number of
conventions. For instance, the Universal Declaration of Human Rights,
1948 (UDHR) under Article 12 provides that:
"No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, or to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such
interference or attacks."

. Pre-Trial by Media and Free Expression

Media Trial:
Trial is essentially a process to be carried out by the courts. The trial
by media is definitely an undue interference in the process of justice
delivery. Before delving into the issue of justifiability of media trial it
would be pertinent to first try to define what actually the 'trial by media'
means.
Trial is a word which is associated with the process of justice.
It is the essential component on any judicial system that the accused
should receive a fair trial. India is a country where all the people have an
upsurge of curiosity to know about the sensational and the high profile
cases. People themselves start collecting information to lead the case in
their mind and in this process the media by publishing their own versions
of facts in the source of newspapers, news websites, and news channels
pour water on the people's thirst for these sensational cases.
This is known as investigative journalism, which is permissible in India.
The power of the influence and revolutionizing the mass in creating
perception against a guilty or innocent mind is known by trial by media or
media trial. Trial by the media is not merely a legal issue. It is also a
political problem.
Honourable Justice Kurian Joseph of Supreme Court of India while
addressing Bar Council of India Meet at Chennai on 26-07-2015 citing
pressure on the judiciary during the Nirbhaya rape case had remarked
that Media Trials in pending cases should be avoided and thereby judges
saved of the enormous strain created by it. "Please stop trying (cases) in
the media till a case is over. Never try a case in the media, it creates a lot
of pressure on judges, they are also human beings," Referring to: "the
amount of pressure that is built,"
He recalled how a judge who dealt with the case had once told him
that: "had he not given that punishment, they would have hung him."
 The Judge said: If I had not given that punishment they would have
hung me, the media had already given their verdict, (like) it is going to be
this only". He however, added, "He (the Judge who went into Nirbhaya
case) had reasons to give the punishment, not because the media said it,
but because he had reasons.
Trial by Media: Is it a Fair Trial:
Litigation is not always a search for truth. According to philosopher
Charles Taylor, it is a zero-sum game, where the law only says either A
or B is right. Media trials have always given rise to a certain kind of
problem as it involves the tug-of-war between two different principles
which are the free trial and the free press, both in which the public at large
is generally invested. The freedom of the press is a part of democracy in
any country. This is the kind of justification, given to investigative
journalism.
But at the same time, the right to have a fair trial is a basic right that
is given to every accused and the victim alike which is uninfluenced by
any external source and is thus, recognized as a basic tenant of justice.
It does not consider the multitude of truth and complexity of events,
issues or individuals. British Marxist Terry Eagleton put it in perspective:
Court rooms, like novels, blur the distinction between fact and fiction. The
jury judge not on the facts but between rival versions of them. (The
Guardian, 25 May 2005) When trial by the court itself is inherently
problematic in the adversarial system of justice, a media trial poses
additional issues.
Trial By Media And Its Impact
Impact Of Media Trials
Media Trials v/s Freedom Of Speech And Expression
Freedom of speech plays a crucial role in the formation of public opinion
on social, political and economic matters. Similarly, the persons in power
should be able to keep the people informed about their policies and
projects, therefore, it can be said that freedom of speech is the mother of
all other liberties.
In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated that
though freedom of the press is not expressly guaranteed as a fundamental
right, it is implicit in the freedom of speech and expression. Freedom of
the press has always been a cherished right in all democratic countries and
the press has rightly been described as the fourth chamber of democracy.
In R. Rajagopal v. State of T.N the Supreme Court of India has held that
freedom of the press extends to engaging in uninhabited debate about the
involvement of public figures in public issues and events. But, as regards
their private life, a proper balancing of freedom of the press as well as the
right of privacy and maintained defamation has to be performed in terms
of the democratic way of life laid down in the Constitution.
Therefore, in view of the observations made by the Supreme Court in
various judgments and the views expressed by various jurists, it is crystal
clear that the freedom of the press flows from the freedom of expression
which is guaranteed to all citizens by Article 19(1)(a). Press stands on no
higher footing than any other citizen and cannot claim any privilege
(unless conferred specifically by law), as such, as distinct from those of
any other citizen. The press cannot be subjected to any special restrictions
which could not be imposed on any citizen of the country.
Media Trial v/s Fair Trial
Trial by media has created a problem because it involves a tug of war
between two conflicting principles: free press and free trial, in both of
which the public are vitally interested. The freedom of the press stems
from the right of the public in a democracy to be involved on the issues of
the day, which affect them. This is the justification for investigative and
campaign journalism.
At the same time, the Right to Fair Trial, i.e., a trial uninfluenced by
extraneous pressures is recognized as a basic tenet of justice in India. A
journalist may thus be liable for contempt of Court if he publishes
anything which might prejudice a 'fair trial' or anything which impairs the
impartiality of the Court to decide a cause on its merits, whether the
proceedings before the Court be a criminal or civil proceeding.
In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme
Court explained that a: Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated.
Freedom of speech and expression
‘Freedom’ may refer to as being impartial or having any absence of
control or lack of inference from any authority sovereign or otherwise.
However, no freedom can have a meaning when its totally independent.
Therefore, certain ‘reasonable restrictions apply’ in every case.
The right of freedom of speech and expression is incorporated in Article
19 of the Universal Declaration of Human Rights, 1948, and Article 19
of the International Covenants on Civil and Political Rights 1976.
In India, Article 19 (1) (a) states that all citizens have the right to freedom
of speech and expression in the Constitution of India. This includes their
right to express one’s own convictions and opinions freely by words of
mouth, writing, printing, pictures, or any other mode. It, therefore,
includes the expression of one’s idea through any communicable medium
or visible representation, such as gestures, signs, and etc.
The Supreme Court of India has said that the words “freedom of speech
and expression” must be broadly constructed to include the freedom to
circulate one’s views by words of mouth or in writing or through
audiovisual instrumentalities.
It, therefore, includes the right to propagate one’s views through the print
media or through any other communication channel e.g. the radio and the
television.
However, as stated in Article 19(2) of the Constitution this freedom comes
with ‘reasonable restrictions’ such as the in interests of the sovereignty
and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence cannot be protected with
freedom of Speech and expression under Article 19(1)(a)
Media’s role in democracy
Media as we know is an integral part of every democracy. It is the duty of
the media to report on economic, political, social, and cultural aspects in
an impartial manner without any state interference. It is a sine qua non of a
healthy democracy.
In Printers (Mysore) Ltd. v. CTO11 the Supreme Court has reiterated
that though freedom of the press is not expressly guaranteed as a
fundamental right, it is implicit in the freedom of speech and expression.
Freedom of the press has always been a cherished right in all democratic
countries and the press has rightly been described as the fourth chamber
of democracy.
As regards the history of freedom of speech and expression though
press/media, it is believed to be an inalienable right just like the right to
live. It is a right that pre-exists the constitution and the legal system.
media coverage so important
Press or media is the voice of the people of the country. Its important that
the ruling government aligns its actions as per the mass opinion so that
they can occupy their positions for a much longer period of time.
Here’s where the problem begins. If media reports can influence the
voting choice and decide the fate of the political party, its salient feature
ought to be independent and not inclined to any idealistic view as to left
right or center.
Transparent media reporting is a cornerstone of a healthy democracy. But
this isn’t the case here in India. Often media trials are influenced by
political funding and the rush to gain TRP. Running parallel trials with the
court is the new norm.
Often the courts have to directly intervene and ban the media from specific
coverage. In Devangana Kalita vs Delhi Police the court held that
”Selective disclosure of information calculated to sway the public opinion
to believe that an accused is guilty of the alleged offence; to use electronic
or other media to run a campaign to besmirch the reputation or credibility
of the person concerned; and to make questionable claims of solving cases
and apprehending the guilty while the investigations are at a nascent
stage, would clearly be impermissible”.
Regulation of press media
The only pieces of legislation that ‘loosely’ hold the media to some extent
are the Contempt of court Act, 1971, and the guidelines by the statutory
authority regulating these media houses AKA Press Council of India(PCI)
and the News Broadcasters Association(NBA).
PCI’s main functions under section 13 of the Press Council Act, 1978
specifically highlights the body’s mandate to
(i) maintain high standards of public taste,
(ii) foster “a due sense of both the rights and responsibilities of
citizenship” on part of newspapers, news agencies and journalists and
(iii) to “keep under review any development likely to restrict the supply
and dissemination of news of public interest and importance”.
The norms of Journalistic Conduct framed by the council for self-
regulation in reporting in the matter of “paramount national, social or
individual interests” which calls for due restraint and caution in presenting
any news, comment, or information that might jeopardize, endanger or
harm these paramount interests.
However, PCI issues only general guidelines and have limited powers to
enforce them. News Broadcasters Association, on the other hand, is a
private self-regulating body that takes care specifically of the
broadcasters, television journalists, and news agencies. It has devised
a Code of Ethics to regulate television content. The News Broadcasting
Standards Authority (NBSA), a part of the News Broadcasters
Association, is empowered to warn, admonish, censure, express
disapproval, and fine the broadcaster a sum up to Rs. 1 lakh for violation
of the Code.
Contempt of courts Act, 1971 however, states that Criminal Contempt
under section 2(c) means the publication (whether by words, spoken or
written, or by signs, or by visible representation, or otherwise) of any
matter or the doing of any other act whatsoever which
(i) scandalizes or tends to scandalize, or lowers or tends to lower the
authority of, any court
(ii) prejudices, or interferes or tends to interfere with, the due course of
any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner;
Therefore, any coverage by press or media that interferes with the judicial
proceedings would amount to contempt and may be punished with simple
imprisonment for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both.
Is Media Trial A Contempt Of Court?
Trial by Media is Contempt of Court and needs to be punished. The
Contempt of Court Act defines contempt by identifying it as civil and
criminal.
Criminal contempt has further been divided into three types:
1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.
Prejudice or interference with the judicial process: This provision
owes its origin to the principle of natural justice; 'every accused has a right
to a fair trial' clubbed with the principle that 'Justice may not only be done
it must also seem to be done'. There are multiple ways in which attempts
are made to prejudice trial. If such cases are allowed to be successful will
be that the persons will be convicted of offences which they have not
committed. Contempt of court has been introduced in order to prevent
such unjust and unfair trials.
No publication, which is calculated to poison the minds of jurors,
intimidate witnesses or parties or to create an atmosphere in which the
administration of justice would be difficult or impossible, amounts to
contempt. Commenting on the pending cases or abuse of party may
amount to contempt only when a case is triable by a judge. No editor has
the right to assume the role of an investigator to try to prejudice the court
against any person.
Bad Impact of Media trial
Pro-Plaintiff Media Bias
Litigation involving well-known companies or individuals always has
grabbed the attention of the news media, especially when it involves
sensational charges. The magnitude of the coverage and the filter through
which the media reports on litigation can create a clear plaintiff bias in
civil cases.
While small companies can find themselves under the media spotlight in a
particularly novel or bet the company suit, the media tends to focus on
allegations against established and respected corporate defendants. These
larger companies tend to have household names, and allegations against
them can make good copy: even if the allegations are seemingly spurious,
commonplace or unproven. The same is true for litigation involving
celebrity defendants.
The Nature of Bias in High-Publicity Cases: A larger issue is the
complex nature of juror bias and how that bias predisposes a juror toward
one side in a case. It is no secret that we all have biases. The difficulty
comes from understanding how those biases may ultimately affect the
viewing of evidence and the deliberations in a case. Judges are also
Human Beings they too care about the reputation and promotion. That
time is gone when judges are not considered as social because it will harm
their reputation.
Now days Judges are social and being an human being they care about
their promotions and remunerations. In high profile cases they tend to be
bias and give verdict as per as media reports just to be in lime light. This
will surely help them to get a promotion before other competitive judges.
Media is so much into our daily life's that judges too can't stay away from
it and they usually tend to give verdict as per media reports.
The Additional Pressure on Judges in High-Publicity Trials
The media create a series of unconscious pressures on a juror in a high-
profile trial. Jurors know that they are being watched by the world. They
are not only making a decision for themselves, but they are making a
statement for their family, co-workers, community, and society as a whole.
This elevates their verdict to a level beyond the evidence.
Implications of Trial by Media?
 Affects Judicial Functioning:
o Concerted campaigns against judges, particularly on social media, and

media trials affect judicial functioning.

o Ill-informed, biased and agenda-driven debates in the media on issues

pending in courts are affecting justice delivery.

 Unable to Distinguish Fake and Real:
 o New media tools have enormous amplifying ability but appear to be
incapable of distinguishing between the right and the wrong, the
good and the bad and the real and the fake.
o Media trials cannot be a guiding factor in deciding cases.

 Wrongful Portrayal:
o Media has been successful in portraying events that have to be kept

a secret.
o Media trials have caused wrongful portrayal of alleged accused and

have acted as a helping hand in destroying their careers merely by

the fact that they were accused, even though they have not yet been
portrayed guilty by the court of law.
 Not Good for Democracy:
o Media has breached its responsibility, taking democracy two steps

backwards, affecting people and harming the system.

o Print media still has a certain degree of accountability whereas

electronic media has zero accountability as to what it shows vanishes

in thin air.
 Instigate Hatred and Violence:
o Paid news and fake news can manipulate public perception and can

instigate hatred, violence, and disharmony among the various

communities within society.
o The absence of objective journalism leads to the false presentation of

truth in a society which affects the perception and opinions of people.

 Right to privacy:
o They invade their privacy which causes a breach of the Right to

Privacy guaranteed under Article 21.

Some of the Landmark Judgements:
Media has a totally different group of people to handle high-profile cases
in the criminal justice system. This may also influence the way the trial
procedure which includes the witness, evidence and important elements. I
have focused my Research and my analysis on the following cases which
show the influence of media on us and the criminal justice system:
1. P.C. Sen vs. Unknown (8th November, 1968)
In the case of re P.C. Sen, 1968, a special leave petition had been filed that
a broadcast that had taken place on the night of November 25 1965, on an
All India Radio station had been obstructive in the course of justice and
had amounted to contempt of court as it gave out the details of the
accused. Justice Shah stated that any law related to the contempt of the
court is well-settled. Any act that is done or published to bring any Jude or
the court to the ambit of contempt or which tries to bring down the
authority of the court of that anything that tries to interfere with the
proceedings of the law will be termed as contempt of court.
2. Y.V. Hanumantha Rao vs. K.R. Pattabhiram and Anr.
In the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr, 1973,
there was a curfew that had been imposed in a small district of Andhra
Pradesh. It was brought before the court that the curfew that was imposed
was arbitrary and that there was no law upholding the same. During this
time, while the case was pending, the Deccan Chronicles had published
about the law of curfew and why it was imposed along with its historical
background and stated everything about the case. It was then it was
observed that, when a litigation was pending in the court of law, there
shall be no comments made regarding that litigation which may cause
substantial danger of prejudice of any trial, for instance, the prejudice in
the decisions given by the judge, the witness or any other general public
having access to such media news. It was also stated in this case that, even
if a person who publishes such news believes in his or her capacity for it
to be true, it shall still stand as contempt of the court for the reason that
this truth was established before the verdict given by the judiciary.
3. Sushil Sharma vs. The State (Delhi Administration)
In the case of Sushil Sharma v. The State (Delhi Administration and Ors.),
1996, there was little evidence that the accused had murdered his partner.
However, while the case was still pending in the court, the media had
started portraying the accused as a murderer and was capable of changing
the views of the public even before the decision of the case. It held by the
High Court of Delhi that the conviction of any person would solely be
based on the facts of the case and not because the media wanted the person
to be declared as guilty. The charges also have to be framed against the
person accused based on the evidence available on record and not based
on what the media portrays the person to be.
4. Sushant Singh Rajput Case:
The Bombay high court did not mince words while pointing out to the fact
that journalists today have lost their neutrality and the media has become
polarised. The observations were made by the bench of Chief Justice
Dipankar Datta and Justice Girish Kulkarni on Friday while hearing public
interest litigations against the media trial in the Sushant Singh Rajput
death case. The court was prompted to make the observations after the
advocate of one of the respondent channels submitted a report authored in
1947 by a European institute, which analysed options between self-
regulation and statutory regulation for the media, and concluded that there
was no need for government control.
While clarifying that the channel was not guilty of the allegations made by
the petitioners as it was not named by any of the petitions, advocate Ankit
Lohia appearing for Zee News, however, said that he wanted make
submissions in support of the contentions of other channels that there was
no need for government interference in functioning of channels. He cited a
1947 report of a European institute and stated that the report had made it
clear that the media should self-regulate instead of any statutory
regulation.
The chief justice made an observation on the submissions of Lohia and
said, We are ruled by the rule of law. In India there is a rule of law, right?
How do you advocate that people who go around accusing others can find
shelter of freedom of press? Journalists back then were responsible and
neutral, now the media is polarised.
5. Jasleen Kaur Harassment Controversy Case:
The Jasleen Kaur harassment controversy stemmed from the accusation of
sexual harassment made by Jasleen Kaur against Sarvjeet Singh in 2015
and the events that followed. In August 2015, Delhi woman Jasleen Kaur
posted a photo of a man, Sarvjeet Singh, on Facebook and accused him of
harassment. The post immediately went viral on Indian social media and
garnered widespread attention. She received widespread support for
raising her voice against eve-teasing and sexual harassment on social
media including from national celebrities and politicians. Sarvjeet was
arrested the next day and was bailed the day after.
Conclusion
Though media act as a watchdog and act as a platform to bring people
voice to the notice of society and legislatures. But now days media is so
much sensationalized and they just do for their salaries and TRP's. There
are few reporters those showing only those news for what they have been
paid by political parties.
From the above account it becomes clear that the media had a more
negative influence rather than a positive effect (except for a few
exceptions here and there). The media has to be properly regulated by the
courts. The media cannot be granted a free hand in the court proceedings
as they are not some sporting event.
Question arises that whether a Media Trial: A Boon or a Curse:
From the above such Research and Article, it has been clear that the
media trials have had more of a negative impact than a positive one. The
media has to be properly regulated by the courts. While a media which has
been controlled by the government is not good for democracy, the
implications and the result of unaccounted publications are even more
damaging not just to the reputation of the person but also to the judgment
imposed by the courts. Therefore, media trials have only served to help the
people in only very few instances but that does not happen in all the cases,
thus it is necessary to have restrictions imposed on it. Media, as referred to
by many as the eyes and ears of the general public.
It forms the backbone of our society. And a responsible media is
expected to take into consideration the reliance entrusted on it by the
general public and confidence and faith entrusted whereby common
man/public blindly accepts the truth of the news published by media.
This actually calls for the existence of a responsible media. No
freedom, however sacred it may be, can be absolute. This is also true of
press freedom. Not only the freedom of press is subject to the laws of the
land, such as contempt and libel, but also is responsible to the society it
serves. It should accept certain responsibilities in the discharge of its
function.
 The press has an obligation: voluntary and selfimposed that in
presentation of truthful news and fair comment it adheres to certain norms
of decency and decorum, and that it does not indulge in vulgarity,
obscenity, character assassination, violation of citizen's privacy and
incitement to offence, disorder and disintegration of the country. The
media strongly feels bitter about this sub judice rule and complain that
Courts during the course of a hearing tend to interpret the sub judice rule.
However, there is an urgent need to liberalize the sub judice rule,
applying it only in important cases that will likely influence the trial and
not to any act that might have the remote possibility of influencing it.
Another main constraint on stings and trials by media is the public
interest. If public interest is missing and either self or manipulative
interests surface, the media loses its ground and invites the rage of the
court.
Norms that should be followed by the Media for any Media Trial to
avoid any Issues on the Path of Justice under the Constitution:
While acting as a responsible media, it should follow certain norms in
reporting of a crime or any news related to the same:
1. Accuracy of the case shall be maintained and verified before the
same is reported/published and read of all.
2. Every caution shall be undertaken to avoid any writing that is opinion
based i.e. either favoring or defaming any person/party.
3. Right to privacy shall not be interfered with.
4. Accuracy is of utmost importance while reporting court proceedings.
5. Reports based on mere suspicion or personal opinion shall not be
published.
6. Appreciation of an act of violence shall be avoided always.
7. The heading shall not be purposely made sensational or provocative;
it must be apt for the matter printed under it.
8. Rectification shall be published without any delay in cases of error.
9. Media should only engage in acts of journalism and not act as a
special agency for the court.
10. Though the media acts as a watchdog and brings us a platform
where the people can know about the things happening in a society, it
 is important to know that this has only led to the whole of the world
being biased against one community or a single person.
11. Media should understand that its role is to raise issues which
the public is facing. Media can be a voice for those who can’t speak
for themselves. Media should not deliver judgment because in
India we have a judiciary for this purpose.
12. Media should maintain its code of laws and ethics, social
responsibility and credibility by not interfering in the matters of
court so early. Instead, they should do the research, keep a check on
high profile cases, find the evidence and keep it to them until and
unless they find the truth suppressing.