J.S. Verma

The cabinet has reportedly approved far reaching amendments to the Right to Information Act, 2005, which among other things seeks to restrict access to "file notings" and allow access to only "substantial notings relating to social and developmental issues" .File notings are recordings of the views and reasons given by various officials for or against any proposed decision.

Access to `file notings' under the RTI Act has to be viewed in the context of the constitutional guarantee of the `right to know' or the `right to information' available under Article 19(1)(a) of the Constitution of India. It is settled that the `right to information', implicit under Article 19 (1) (a) is an untrammeled constitutional guarantee, subject only to the `reasonable restrictions' validly imposed by legislation under Article 19 (2), which allows restrictions on the right in the interest 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 and incitement to an offence".

Any restriction imposed on the people's `right to information' by the RTI Act must fall within the ambit of Article 19(2). Section 8 of the RTI Act already allows restriction of the right to information in the interest of all the factors mentioned in Article 19(2). As held by the Supreme Court, unreasonableness of the restriction imposed on this right is to be determined by the courts. RTI Act is intended to operationalise this existing right and to impose only the permissible `reasonable restrictions' under Article 19(2). The proposed amendment must be tested in this jurisprudential context.

The scheme in Article 19(2) is clear. It specifies the heads in the interest of which alone `reasonable restriction' can be imposed by law. It does not permit an omnibus restriction permitting the right to information only under a few specified heads. It is the permissible exclusion, and not permission which needs valid legislation. Permission or the right is guaranteed unless restricted by a valid law. This is the first infirmity in the proposed amendment.

There is a greater infirmity in the restriction proposed on disclosure of file notings. It is well settled that all state actions must conform to the rule of non-arbitrariness to satisfy the requirement of Article 14. All decisions must be based on a discernible principle, and cogent reasons. A reasoned order or decision is assurance against nepotism, arbitrariness and corruption. Reasons provide an internal check against arbitrariness in decision making.

Mere information of the decision without disclosure of the reasons for it and the decision-making process is not enough to permit scrutiny of the decision made. The very purpose of the `right to information' would be frustrated without the knowledge of the `reasons' for the decision, emerging from the file notings. Except for information which can, or needs to be withheld in the interests of the specified heads under Article 19(2), there is no authority to permit exclusion of the remaining information in the form of `file notings' or otherwise.

The stated apprehension that disclosure of all file notings would deter honest persons involved in the process from expressing their candid opinion is misconceived. The fact is the opposite. Assurance of public scrutiny or transparency in government business will motivate the honest to be candid in the expression of their views in writing, and it will deter others from not acting honestly for fear of exposure.

Transparency or openness is an accepted principle of democracy and good governance. American judge Louis Brandeis had said: "Sunlight is the best disinfectant, and electricity is the best policeman". The `Seven Principles of Public Life' indicated in the Lord Nolan Committee's Report on Standards in Public Life, include objectivity, accountability and openness which have been set out in the following terms:

Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness: Holders of public office should be as open as possible about all their decisions and actions. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands the same
After all, public power is derived from `We the People of India…' Its exercise must be subject to legitimate scrutiny by the people, who are the source of that power. The people have a participatory role in a republican democracy as they are "the keepers of the Constitution" (to borrow the expression from Joseph Storey's exhortation to the American people). The only reasonable `restrictions on the people's plenary power of right to information can be those imposed by a valid law relating to the limited heads specified in Article 19(2).

Omnibus exclusion of file notings relating to all heads except `development and social issues' is impermissible under the Constitution.

(The writer is former Chief Justice of India)
Courtsey: The Times of India 9.6.2006

July-September 2006