Another interesting case came about Life Insurance
Corporation of India versus Manubhai Shah. This was decided in the year 1992 by the Supreme
Court of India which involves a very interesting issue of publication by the Life Insurance
Corporation of India. Now, Manubhai Shah was a consumer activist. He was somebody who was campaigning the cause
of consumer protection and he was trying to bring about a sense of accountability from
different agencies that were giving consumer services. Among them,
the Life Insurance Corporation
of India. LIC in fact, had a magazine and it would actually
publish this magazine and while publishing this magazine they would actually bring about
a lot of aspects about how LIC is coming up with plans, schemes, policies, how many customers
it had so on and so forth. And this is like a news letter, this was like
a publication magazine that would be circulated among various stake holders who had subscribed
to the Life Insurance Corporation of India. Now, interest
ingly Manubhai Shah was critical
about Life insurance Corporation of India and its policies and hence he actually wanted
his critique to also be published by Life Insurance Corporation of India. Now obviously LIC took a position saying that
this was their platform and hence only those that are necessary for promotion of LIC schemes
have place for publication. So, Manubhai Shah felt that this was not correct
because LIC while in its publication was using public funds and public money because LIC
is a public sector undertaking. It is tax payers’ money that was finally
been reflected in how LIC was going about its function against being a public institution. It was expected that it must play very fairly. And its platform should not be only used for
its propaganda, material for its publicity or marketing material but also for any critical
view that citizens may have about the functioning for LIC. Because every public institution must be amenable
to public view. It must be amenable to publi
c scrutiny and
it must be amenable to fair criticism by its users. And that is probably a mechanism for feedback
where public institutions can only improve their services towards the citizens and towards
the consumers. So, unless institutions that are providing
services are open to hearing views, critique or feedback from its citizens, I do not think
the institutions that are providing services will actually improve their services. And hence, in this very interesting case of
LIC versus Manubhai
Shah, the Supreme Court accepts the petition of Manubhai Shah. They see that this is a very important game
changer that public sector undertakings will have to adhere to and hence they said that
the magazine that was published by LIC must also publish rejoinders if there are any. It is like saying that if somebody has expressed
a view, somebody has expressed the counter view as well. And I think that is exactly where the Manubhai
Shah case becomes a very important case in the freedom of expressi
on development in India
because what it said is if one way of communication can be expressed, the other way of communication
can also be expressed. So, this is like you know, defense and counter
defense. This is like argument and counter argument. I think every kind of expression, it need
not always be an expression that favors the government. It may not be an expression that favors the
agency. I think counter views and expressions and
which we in popular democracy call dissent; must have space,
must have a platform, must
be taken equally seriously. Now this is important because then by looking
at defense and counter defense, people can make their own choice. People can make their own, you know selections,
about which is right and which is wrong. And I think in a democracy it is not one view
or one expression that should find means of publication. I think every view must be able to be communicated
and I think that is where the free speech or free expression finally finds its attainment
of good, attainment of human expression is finally achieved by all these purposes. I think the freedom to circulate ones view
is the start of freedom of speech and expression. So, if I wish to circulate it, I can circulate
it either through leaflets, pamphlets, either through my own blog or through my own magazine. However, when public magazines are being published,
I think they should give space to all kinds of views and hence I think both the majority
view or the minority view need that equal
amount of freedom and execution as well. The court said that in recognizing such a
kind of right, the right to express the dissent, the right to express different views, the
right to criticize fair criticism. Kindly note it should not be a right to criticize
in terms of defamation but the right to fairly criticize is something that the government
must facilitate upon and hence any kind of discretion in this is to be absolutely rejected. So, all public platforms, all public publications
or gover
nment publications that are using public money must provide expression for both
aspects, positive as well as negative. And I think this is where real free speech
and expression gets protection, recognition under article 19(1)(a) of the constitution
of India. The last paragraph on this case is about the
contention of the state. It was rejected by the court because the court
said that look, you are using public function, you are using public money and hence anything
that you do in public money and
in public function should be public interest. And public interest can only be served if
all views are taken onboard and the same provides equal expression as well. Interestingly, just to add a development over
here we are talking of press freedom. Press which is organized press, it could be
like Bennett Coleman, it could be like Indian Express, it could be NDTV, it could be any
other online media. But I think press also includes publication
which can be those kinds of publications that are gove
rnment sponsored, those kind of publications
that are government patronaged. And I think press means anything that has
been communicated as information which reaches a section of a community. It can be a section of community in the Indian
railways where there is a news letter. It is a section of community protecting minority
interests. It is section of community protecting labor
interests. It is section of community that is protecting
consumers interests. I think these are all within the domain
of
the press. I think press is not only restricted to national,
newspapers and national news television. I think press is all about where this communication
can take place and what is the basis for this same communication. What is important and pertinent to note at
this point of time is a very interesting policy that was published by the Lok Sabha secretary
in the year 1985. In 1985, they published a document which said
something like this ‘Background to Evolving a National Information Policy’.
Which very clearly meant that the Lok Sabha
Secretary did understand, appreciate and acknowledge the role of the press in our democracy. And they said that it is important that the
press be evolved in the national politics, in the national elections, in national policy
making. And hence it is pertinent and important for
the parliament to actually publish its methodology, processes and its functions through the press
medium. And hence it is important for a communication
policy to be developed whi
ch they call the national information policy. Wherein the secretariat would then probably
lay down the way and manner in which the Lok Sabha, functions could be bought about through
the press. And that is an interesting development that
happened in the year 1985, National Information Policy. That is what Lok Sabha secretariat actually
published. Let us go forward and in going forward, the
next case for discussion or the next kind of intervention that the court did, the Supreme
Court did was thro
ugh the Indian Newspaper case versus Union of India. The case was decided in the year 1986. Now, one would appreciate and know that the
government of that day unlike the Bennett Coleman case that was decided in 1972, in
1986 the government decided to have an import duty on newspaper. Naturally it is the government discretion,
prerogative to bring about a regime of taxation and they can actually decide to change tax
policies as they wish they can do so by laying it down to the parliament and gett
ing it enacted
in the parliament. However, in this case when import duty on
newspaper was decided by the government, Indian newspapers, they went to the court stating
that if import duty is fixed it would actually increase the cost of communication of newspapers. So, what would that do? It will provide disincentive for citizens
to actually buy newspapers because it will be that much more expensive than what it was
before. So, import duty thus contributed to the cost
of production of the newspape
r itself. Now increased cost, does it have an impact
on containing the freedom of speech and expression? This was the question posted in the Supreme
Court of India. Now, the Supreme Court in this case did consider
the fact the role of government why was the import duty done? Was it something in public interest? Should it be something that the court should
permit? Would it have a crippling effect on freedom
of speech and expression? Will it affect the guarantee of rights and
should there be some
kind of intervention on the taxation policy of the government? These were a few things that the court was
asked to intervene upon in this particular case. Now, the court in this case highlights the
role of the press, they actually reiterate I must say. This was the first time that Supreme Court
did so but I think they found a great opportunity to impress on the government the role of the
fourth estate. The role of the watchdog called the press. The role of the press in bringing accountability
an
d transparency in governance. I think by this time probably the water gets
scandal and so many other scandals in different other countries had actually brought to the
forefront the role that the media can bring in, the role that the media can do and it
was actually becoming quite a powerful institution in itself. And hence, the court says that the freedom
of expression has probably four broad social purposes. First of all what does the freedom of expression
do? It helps an individual attain self
fulfill. So, through expression I tried to become a
human being that I wish to be. And I can express myself as a full human being. So, that is what the freedom of expression
does. Second, it assesses the discovery of truth. Now this is very important what the press
will do or probably is expected to do is to give information that is authentic, that is
something reliable, that is truth but nothing else. And I think what it helps us to do is to find
out what is the fact as against what is the myt
h. And I think this is very critical and important
and the press assists us in doing the same and freedom of expression actually brings
out the best in human beings. Third, it strengthens the capacity of individual
in participating in decision making. Because see when the press reports something
I either want to vote for or vote against it. I want to be in favor or be against it. I think it is important for individuals to
take positions. It is important for individuals to express
their satisfact
ion or dissatisfaction on a particular matter and participate in decision
making which is the foundation in democracy where people are involved in every decision
making process can only be strengthen if we strengthen the forth state that is the press. The court went ahead to also see that if you
are looking at social change and we are looking at stability, I think the press has a very
important role to play. Friends, I cannot reiterate enough and probably
there are not enough words that I can in
sist on the role of the media in bringing about
social change or social reform. The media I think has gone about in bringing
more change in so many aspects of our day to day life. For example, overruling untouchability. The media has played a very important role. It is about education, it is about communication,
it is about changing our methodology, our way and manner in which we treat the untouchables. I think in eradicating untouchability the
media has played a very significant and important p
art. If today we have eradicated child marriage
in India to some extent, and I believe almost absolutely, I think the media has played an
important role. While we say that the law brings about social
transformation. Please note that the communication of the
law, the knowledge of the law, I think the reach of the law can only be enhanced through
the press and the media. Recently if you look at the position of Triple
Talaq, I think the social change that was attempted was also something that was c
hampioned
by the media. And hence, while the social change is relevant
and the role of the media is important in bringing social change, one cannot forget
the fact that you need proper quoting, need proper information and that kind of a social
change can only see the light of the day if it is brought through some kind of stability. You do not expect social change to bring about
instability in the legal system. So, social change is a necessity. It is something that every generation as per
I saw I
do not think any law or any legal system is going to be static. It has to be dynamic, changes are expected
but it should be done in a manner that does not bring about instability in the society. I think the media plays that critical role. Freedom of expression through media plays
those critical roles and it helps us achieve the 4 broad social purposes is what the court
had to say in this case called Indian Express newspaper versus Union of India as it was
decided in the year 1986. Friends, it w
ould be important to note that
when I talk about the right to know, right to know also has what I call as right to access
this information, the right to receive that information, right to be able to form your
on belief in that information and the right to communicate the information. I think these are all aspects that are covered
under the right to know. So, let us sum it up in this sense and this
is something to take the observation of the court ahead. What does freedom of expression have? Free
dom of expression has one; do I have the
right to acquire the information? Yes. Do I have the right to access the source of
information? Yes. Do I have the right to communicate my information? Also yes. I think in all these 3 there is affirmative
answer to the way in which I understand freedom of expression as in article 19(1)(a) as inthe
constitution of India. And hence, if we have to learn from the couple
of cases that are relevant and important at this stage. I think what it probably gives yo
u is that
the freedom of speech serves to protect two kinds of interests. First; it tries to protect individual interest
that is about an individual citizen, a consumer, an individual who probably wants to access
that freedom of speech and expression. It is very important for us to as a human
being to have this kind of right and please note we always say that the freedom of speech
and expression is an inherent human right. It is an inalienable human right. It is something that cannot be transfer
red,
assigned or granted to individual. And second I think it is about community rights. Because we as human beings have always lived
in the society. We do not live alone and hence it is a group
activity that also needs a certain degree of protection. And that community of group activity’s protection
of right comes through the freedom of press is what the Supreme Court wanted this nation
to believe in and take it forward. I think press in India is the reflection of
our society, it is the reflect
ion of individual aspiration and it is a reflection of what
we stand as a nation for. That is what freedom of speech and expression
in terms of individual and community rights and interest goes forward to. Interestingly, the right to know as we think
is, is not restricted to those who are enjoying their liberties or those who are part of the
free society. If you look at the couple of cases that we
had come across vis-à-vis we want, the Supreme Court wanted us to look into, I think free
speech an
d expression was something that the court said is not available to free citizens
but it is also available to prisoners. And prisoners also have certain rights. Now in Prabha Dutt versus Union of India a
case decided in the year 1982. The media wanted to interview two prisoners
who were actually under death row. These were two notorious gangsters called
Ranga and Billa. They were quite popular at that point of time. They had committed numerous crimes and they
were actually sentenced to death. Now
, the interesting facet is we are quite
inquisitive as human beings, we are inquisitive in not only in our lives but in the lives
of other human beings. We are inquisitive to know how did ordinary
people turn as convicts, how did ordinary people turn as criminals? Now why is this information relevant if you
ask me this information is relevant because probably we can stop others from being criminals. So, it is important here to understand and
realize that it is a study of why the crime took place
and what made these criminals do
the same crime. So, I think that kind of a study is only relevant
and important for the media to highlight the same so that there is a larger education about
the community about what is the consequences of a crime. What will happen finally of a crime? How did ordinary individuals actually turn
into criminals? I think this is great information to have. However, the media in this case was denied
the permission by the jail authorities to interview the prisoners. Th
ey said “Look you can interview under
trials, you can interview those who have committed the minor offenses but not these two Ranga
and Billa. Because they are prisoners who have been given
death sentence. So, probably they were dangerous and probably
they had done certain crimes in connivance with very powerful people or they did the
crime for powerful people.” And I think the jail officials did not allow
the media into the prison and to undertake the interview. However, the Supreme Court again
reiterated
the fact that the media has a role to play. And the media cannot be gagged and the media
cannot be stopped from interviewing the prisoners. The only thing is they have to follow the
prison manual, they have to seek the permission, and probably the interview will have to be
recorded and probably it has to be something that the jail authorities can view and based
on that I think the media's freedom to interview the prisoners cannot be contained is what
the Prabha Dutt versus the Union
of India case did say. Which means in the prisoner, if an undertrial
prisoner or a convict wants to express, wants to publish his own story about how he did
the crime, why did he become the criminal so on and so forth. I think they have a story to tell and it is
a story that is quite fascinating at times for all of us to read and understand because
I think crime stories are quite imaginative, they are quite captivating and I think they
make big movies as well. I think there are a lot of books th
at are
written. There are biographies that are written by
criminals and I think that is something that citizens have the right to know is what was
decided in this case called Prabha Dutt versus Union of India. I also at this point of time remember a very
interesting case called the Auto Shankar case. This is the case called R Rajagopal versus
the State of Tamil Nadu. This was a rowdy by the name Auto Shankar. He had actually committed a lot of murders
and he was also sentenced to death. Now Auto
Shankar wanted to write a biography
and he hired a pressman, Nakkerran, to write a biography for them. He wanted to write his biography in the prison
obviously. So, before he could be hanged probably he
wanted to tell the world why did he do that and what he did. At this point of time the State of Tamil Nadu
decided that Rajagopal cannot, Auto Shankar cannot do the same. And they insisted that he should not write
it and there must be an injunction against the publication of his biography. Now,
why did the State of Tamil Nadu do? I think there was suspicion in Tamil Nadu
saying that Auto Shankar will disclose the names of prominent politicians in his book. And prominent police officers who helped him
do the crime. And they all, the politicians and police men
felt that they will be defamed in the book. And hence they wanted that book not to be
released. But again in this case I think what the court
said is I think every accused has the right to express. I think if you look at death row
I think you
have the right to make the last wish before you are hanged. In this case expression of views by a person
in the death row is not something that can be prohibited. I think media has every right to express the
same. However, please note the media also takes
the wrath of being sued for defamation if it is not true. So, what media has to do is to protect its
own interest by reporting only truth, facts, and not stories that may unfortunately either
infringe the privacy of individuals or d
efame individuals as well. So, I think the media will have to be very,
very careful when they exercise their freedom and please note every freedom under article
19 comes with restrictions under article 19 (2). And one of the most important restrictions
that is made in article 1982 is the following. First public order, you cannot by your own
publication, damage or disturb public orders. Second, you cannot from your publication defame
I mean, individual. So, deformation is the great restriction on
the freedom of the best and hence while the information has been shared, defamation is
to be avoided as well. So, the R Rajagopal versus State of Tamil
Nadu case I think is another great addition in understanding the rights of accused to
free speech and expression through the instrument of media. I think that is what we say right to know
and please note ordinary individuals cannot go to the prison. They cannot interview prisoners, the media
can do it. They can use the power of communication to
put the story across the whole world and they can communicate it to the whole world including
those that are interested to know about it. I think when we had talked about civil liberties
and the right of the accused, please note we say an accused has the right to information
and this is protected by the constitution in article 20 and accused has the right to
be informed about the grounds of his arrest and accused has the right to being produced
before magistrate in the 24 hours. And accused has
the right to inform that he
can be represented by a lawyer. These are basic information that an accused
has. Now please note this is his right to information. So, when I have been curtailed of my liberties,
when I have been curtailed about my freedom, I must be told why it is being done so. And probably, I must also be told how I can
actually get back my liberty and freedom. I think right to legal aid, right to legal
aid information or right to be informed why my liberties have been curtailed in
the democracy,
I think is the fundamental right and something that adds to the freedom of information legal
regime. And hence in Gopalana versus State of Madras
the Supreme Court says that every accused should have access to his arrest information. So, I think whether you know what you have
done is bailable offence or non bailable offence. Whether this requires a warrant or not a warrant
and I think if you are not in a good physical condition you have the right to be examined
by the doctor. And
in case you require medical help I think
you have the right to be sent to medical aid. And I think these are basic information that
have to be shared with the accused. What is relevant important here is, friends
please note, the family or the relatives also have the right to information. So, it is not only the accused. Why does the family have the right to information? The family has the right to be told where
you have been kept or detained, the place. So, if they wish to visit you, if they wis
h
to apply for bail, if they wish to perceive the matter and prove your innocence I think
the required information that the family has or should have is something that the family
has the right to information. So, I think here by these 3 cases one gets
a view and an idea about how far and to what extent family can access that kind of information
in case of prisoners, in case of those who have been detained and whose similar duties
have been curtained by the state. The state has the duty and an ob
ligation to
disclose the same information to these citizens. So, I think this is the kind of legal development
that we are looking forward to in the right to information age. I think the police, the state through its
agencies like the police have the duty to inform and that duty to inform clearly is
the duty on right to know. And I think that is an important aspect about
understanding the right to information legal regime prior to the statutory law of 2005,
in which RTI was inactive as a basic l
aw. Kindly note, Right to Information Act 2005
applies to the police department. It applies to prison authority, it applies
to the state, the prosecuting agencies as well. So, apart from the constitutional obligation
as you see in these three cases apart from the obligation that the Supreme Court has
lead on by guidelines from time to time under the RTI act 2005 now there is a statutory
obligation, there is the process and the mechanism in which these 3 agencies the police, the
prison authoritie
s, the prosecution department may have to share with the citizens as well. Plenty of cases where we see judicial activism,
where we see the courts trying to protect, ensure the rights of citizens. Another case in the addition is the Printers
Limited versus CTO. Where the Supreme Court reiterates that freedom
of press is not expressly guaranteed. However, it is very much implicitly guaranteed
for free speech and expression. The court in this case says that the fourth
chamber of democracy is the p
ress. And the press have the right to know. It is a collective right. It is an important right that the press must
ensure. And it is the fundamental principle of democracy
to grant this to the press and free flow of information and participation of people in
the administration is something that is very, very crucial for democratic institutions to
survive and for the aspiration of people to be projected. So, it is the primary duty of national courts,
this is what the court says. To uphold this fr
eedom and hence the courts
have to check and balance administrative institutions that violate this kind of a freedom. It is the duty of the court to look at whether
the loss curtail freedom or whether administrative actions interfere with freedom of the constitution
mandate. So, the courts on themselves took up on the
task about regulating the two other institutions the legislature and the executives in case
they went about infringing the right to know and hence they said it is our duty to prote
ct
the right to know, it is our duty to protect the freedom of the press, it is our duty to
protect the democratic principles in the country. So, in Printers Limited versus CTO the Supreme
Court says it is the duty of all the national courts to uphold the required freedoms. And it is something that the constitution
has mandated the judiciary to rule. And hence you will notice that whenever the
state action or whenever any law be it the news print control order, be it the import
duty. If there wa
s the law that actually influence
the freedom of speech and expression I think the institutions that felt that the were aggrieved
went to the court. Wherever individuals thought that their right
was being infringed, again they went to the court and court that protected the right it
was the court that adjudicated the matter. And hence if I look at the legal development
in there I own the right to know. I think the right to know was expressed by
the court. It was defined by the court and it was pr
otected
by the court till we got the right to information act in 2005. So, the role of the court, the role of the
judiciary has been very crucial till the time the statutory enactment of 2005 was needed
and the court I think performed extremely well, exceptionally well in trying to protect
this kind of individual as well as community right on right to information. And I think that is where the growth of this
law. I think the transparency rule, the accountability
rule, slowly started coming in th
e forefront in this country. I think we have discussed this case previously
as well but this Ministry of Information and Broadcasting versus Cricket Association of
Bengal also is another addition to the constitution history. It is another addition to what kind of information
a person is entitled to read and what should be brought and what should not be brought
about it. The reader’s right to access the newspapers
was his right to information and I think it is important that everybody gets the in
formation
about what is happening with a sports event. I think this kind of news, information is
very critical. As I told you in the past you know, we all
have our own requirement of information. Some of us may need information about newer
forms of cooking, newer dishes to be made. Some of us may need information about our
interest is. I may be interested in sports, I may be interested
in business, I may be interested in stock exchange, I may be interested in lending,
I may be interested in inte
rnational trade, I may be interested in some other. So, I think while human beings have varied
interests in their requirement I think it is the press that feeds this information. It is the duty of the press to give the different
kind of information that can be consumed by citizens and hence it is in the reader’s
interest, it is in the citizen’s interests or it is in the consumer’s interest as the
case may be to access this information. And the only means of accessing this information
before the
social or digital media came in before media, you know, started giving this
information through the internet. I think the only mechanism, authentic way
of getting that information was through newspapers. And I think what this case again reiterates
is the role of the media through newspapers in reaching out this information to the communities
and to the citizens. And hence sports related information is also
information that you are entitled to and the same should be given unbiased, without any
di
scrimination and without any preference between the private media and the public media. Let us now come to the real focus of say the
right to know the name. The right to know the name from fiction to
this case of 1975. The case is Sate of UP versus Raj Narain. A very popular case in terms of constitution
history, popular case in terms of government functioning, popular case in terms of how
the government of the day is accountable for its registration making process. I think in 1975 when the situ
ation in India
was quite volatile and when Raj Narain asked a few relevant but pertinent questions. The state actually denied it because at this
point of time I think the kind of attitude state had especially in 1975 where it was
almost a single party system where opposition was very weak in the legislature. The administrative bureaucracy in the government
literally took upon itself only being a government servant and to a public servant. These were the times when the Supreme Court
had to take u
p this case of State of UP versus Raj Narain. And I think at this point of time you notice
that the judiciary was slowly waking up to the reality that it had an onerous responsibility
in ensuring social, economic and political justice. The judiciary had to probably intervene in
certain matters. So, the time was right for the judiciary to
start asserting itself. The time was right for the judiciary to implement
the spirit of the constitution as it was and hence they got an opportunity in this cas
e1975. Now, what did Raj Narain ask? He wanted the government to disclose two things;
first the security guidelines from the Prime Minister of this country and second I think
most important and probably he was concerned about the expenses involved in the Prime Ministers
time. Security is one concern and the expenses were
the second concern that Raj Narain wanted to know. So, he said why do not you disclose this? Now the Prime Minister is the chief, kind
of chief officer of the government. He is
not only part of the legislature, he
is also the part of the executive system. And the Prime Minister makes sure that he
is also probably implementing the law through the cabinet and through his government. And the Prime Minister’s office is a very
powerful office and probably when the Prime Minister travels they use public money and
the probably the only question that I would want to ask you is can the expenses of Prime
Minister travel be disclosed under your right to know? Should it be disclos
ed under your right to
know? See interestingly many of these security guidelines
or expenses of the Prime Minister office are not published. So, there are many documents, there are many
information that are generally do not get published. They are all kept but never published. Now publication is an official way or manner
in which the government communicates. Now, how are these communications of publication
done? They are done through what is known as an
annual report of a particular department o
r particular ministry or they are published
in the form of some memos, circular and so on and so forth. However, many of what the government does
is never publish. And hence it is never available to citizens
at all. Now when a public functionary involves public
money, should not there be sense accountability? Should not there be a sense of disclosure? Is what the court had to evaluate in the State
of UP versus Raj Narain. And I think what Justice K.K. Mathew in his dissenting opinion said was
ve
ry, very relevant. He said’ look in democracy like us in the
interest of the public the veil of secrecy has to be removed. In, if it states security one can understand
the meaning of security. But if it is common routine business of say
Prime Ministers travel, what is the secrecy that the government wants to justify? Why should the government withhold this information? I think what Justice K.K. Mathew in this case said was if you decide
to have a veil of secrecy it will only breed contempt, it w
ill only breed corruption and
hence contempt and corruption only will breed oppression. And hence it is very important for agents
of the public. Now what are the agents of the public? It is government officials. They represent people, they do not represent
the government. The government is only employee so when you
are an agent or public it is your responsibility, it is your conduct in public interest which
would say that we should have only a few secrets and we should try and disclose certain r
elevant
information that the public ought to know on which the public have the right to information. I think what is important over here is that
you know that the Supreme Court said in democracy transparency should be the rule and secrecy
should be the exception. Not that you cannot have secrecy, you ought
to have secrets in terms of national security and national interest. I think if you look at section 8(1)(a) of
the right to information act 2005. Even the law that currently stands does provid
es
exemption for information of national security and national interest. However, that is an exception that is something
that you can exercise if it is necessary to do the same. However, the rule is disclosure, the rule
is transparency, the rule is sharing of information. And hence, I do not think the government understood
the implications of this case. I think the implication of this case were
very, very huge, it had an impact of international character because the Supreme Court as early
as 197
5 did say what should a democracy stand for? What should a government stand for? I think the democracy and government should
stand for disclosure, for transparency and secrecy should be an exceptional principle
that the government must follow upon. The next case for discussion is the case of
SP Gupta versus Union of India case. A case decided in 1982. This is popularly known as the judges transfer
case and at this point I think the petitioner, he did not want the information from the legislature
. He did not want information from the executive. He wanted information from the judiciary. Now we say the legislature, executive and
the judiciary are the 3 organs of the government and if I want to implement the transparency
rule, I think it has to be equally applied to all the 3 organs of the government. Now in this case, generally you notice, that
you know, appointments are generally made by the government or executive wing of the
government. But the judiciary in cases like this SP Gupta
cas
e decided that appointment of judges or transfer judges should be done by the judiciary
itself so that it can protect autonomy of the institution and it can protect the independence
of the institution. So, political interference in appointment
and transfer can be taken out is what the judges thought. And that is the reason they passed the judgments
wherein they took on themselves the appointment and transfer processes. And this was probably quite a landmark decision
on judge’s appointment that h
appened in this country. However, how do or what is the process and
mechanism for transfer of judges? Are there rules, are they regulations and
are they adhered to? Second; how the appointments of judges happening? What is the process? What is the mechanism in which judges are
been appointed? I think the SP Gupta case very clearly said
that the government had an obligation to disclose the same. It is not the discretion or not an arbitrary
decision that the government can take. And the Central go
vernment said that you know
appointment and transfers are secret information. This will not be given is something that court
rejected and the court said that the government of the day must be fair and transparent. They may provide reasons for transfer; they
must provide a process of selection and appointment and there must be a sense of accountability
about who is appointed as a judge and why is he transferred from one place to another. I think these are certain necessary functions
that the gove
rnment must perform and please note unless the government is open, unless
the government is disclosing the reasons, I think the institution of the judiciary may
be adversely affected. The autonomy of the institution maybe adversely
affected and the judiciary may lose the credibility and the faith that the citizens have in that
kind of an intuition. This is something that the court said that
the government of the day had a duty. And if it violated that duty, the judiciary
thought it is best to ta
ke away this function from the government and the judiciary to cope
on itself, the role of appointing and transferring the judges. The SP. Gupta case versus Union of India case again
reiterates the fact that judicial related information must be disclosed and must be
in the open form. It is the duty of the court to actually put
this into the public domain.
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