The Right to Information

Author(s): S. Viswam
Source: India International Centre Quarterly, Vol. 10, No. 2, MEDIA: response and change
(JUNE 1983), pp. 175-185
Published by: India International Centre
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THE PRESS

The Right to Information

S. Viswam

I N all free societies there has been an inevitable conflict between

democratic requirements of openness, and the need to preserve
official secrecy. Governments as a rule tend to be secretive: they

regard secrecy as a functional necessity. The Press, as the conscience

keeper of the citizenry, on the other hand, is committed to feeding the
citizens with the kind of information which will help them in under

standing the functioning of the government, and of the democratic

processes. Between the tendency of the bureaucracy to insulate itself
from outside control, and the inclination of the Press to make the
government truly accountable to the people, a clash of interest

invariably develops. This clash of interest tends to get sharpened

when governments become the sources of much of the information

which is necessary for a proper assessment of governmental per

formance, and understanding of the processes by which decisions

are made.

A democratic government is supposed to be sensitive to public

opinion. But public opinion cannot be moulded either adversely or
supportively to the government of the day, unless proper information

is made available to the people. One of the pillars of a democratic

state is the people's right to know the facts. Open government is the
basis of democracy; and democratic governments need to function in
a political system in which they are accountable. Thus, in turn,
effective accountability rests on acquaintance with the information and
circumstances in which the decision-makers function.
175

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176 S. VISWAM

In modern welfare states, governments have become increasingly

involved in a variety of functions and services for an increasing variety
of sectors of the society. This often makes them the "most important

single institutional repository of information" about the society's

political, social and economic and environmental problems. The
argument has been advanced that in parliamentary forms of democracy,
where the executive is responsible to parliament, it is parliament that
should act as the purveyor of governmental information. But in practice

this has been found to be an unworkable proposition; since the

executive tends to conceal information even from parliament, on the
grounds of public interest.

The Franks Committee of the United Kingdom was appointed in

1971, in the wake of a historic judgement by Justice Caulfield in the
famous Biafran Secrets Case. This Committee stated that it is the

concern of democratic government to see that information is widely

diffused; for this enables the citizens to play a part in controlling their

common affairs. The modern processes of government have made

more obvious the need to improve the effectiveness of control. The

Committee observed:

A totalitarian government finds it easy to maintain secrecy.

It does not come into the open until it chooses to declare its
settled intentions and demand support for them. A demo
cratic government, however, though it must compete with
these other types of organisation, has a task which is com
plicated by its obligations to the people. It needs the trust of
the governed. It cannot use the plea of secrecy to hide from the
people its basic aims. On the contrary it must explain these
aims. It must provide the justification for them, and give the

facts both for and against a selected course of action. Nor

must such information be provided only at one level and
through one means of communication. A government which
pursues secret aims, or which operates in greater secrecy
than the effective conduct of its proper functions requires, or
which turns information services into propaganda agencies,

will lose the trust of the people. It will be countered by ill

informed and destructive criticism. Its critics will try to break

down all barriers erected to preserve secrecy, and they will

disclose all that they can, by whatever means, discover. As a
result matters will be revealed when they ought to remain
secret in the interest of the nation.

The demand for a legislation which confers on the people (and

the Press) the right to information has been growing, in countries

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THE RIGHT TO INFORMATION 177

where governments have tended to resort to a policy of secrecy

regardless of whether the information to be disclosed affects the
interests of the nation or not. In India, the Press has been clamouring

for such legislation. But executive secrecy is generally not the norm
in several modern free societies. In Sweden, the Constitution itself
declares that citizens shall have free access to official documents:

subject only to such restrictions as are demanded out of

consideration for the security of the realm and its relations
with foreign powers, or in connection with official activities for
inspection, control or other supervision, or for prevention and
prosecution of crime, or to protect the legitimate economic
interest of the State, communities and individuals, or out of
consideration for the maintenance of privacy, security of the
person, decency and morality.

These exceptions are broad, but the Constitution also provides

that the circumstances in which official documents are to be held shall

be 'closely defined, by statute, in accordance with the constitutional

principles.
The United States has an enactment giving its citizens the right
of access to official information. In 1966, the Congress enacted the

Freedom of Information Act to "clarify and protect the right of the

public to information". The Act was amended in 1974, to widen its
scope further. The kinds of documents which are exempt from public

access have been listed. They include those relating to national

defence, foreign policy, trade secrets, privileged financial information,
personal and medical files, investigatory records compiled for the pur
pose of law enforcement, and geological and geophysical information.
The United Kingdom has a British Information Bill. While Finland

enacted legislation providing access to official information in 1951,

Denmark has a law since 1964 and Norway from 1970. The Scandi

navian laws are patterned on the Swedish model. Austria has some
provision for access to information since 1973. A French legislation
enacted in 1978 gives some measure of right of access, leaving a wide
discretion in the government. The Netherlands legislation of 1978
emphasises the aspect of disclosure of information rather than the
supply of documents. Australia is all set to enact an information Bill.
So also is Canada.

The MacBride Commission has pointed out that concepts such a

"freedom of information", "free flow of information" and "free acces

to the media" are the natural outgrowth of the basic principle of

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178 S. VISWAM

freedom of speech and opinion. If that freedom is an individual right,

freedom of information has both collective and individual aspects. It

has taken on a broader character by virtue of the diversification and
extension of the means of mass communication.

The post-Second World War period has been a struggle for the
implementation of the Universal Declaration of Human Rights, 1948.
Article 19 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". Read in its ordinary
meaning this clause establishes one world for the purpose of receiving
and imparting information, as an individual right. There was no
intention in that article to promote a one-way flow of information. On
the contrary, flow in all directions and regardless of frontiers was
the aim.

It is needless to emphasise that the right to information has to be

made subservient to considerations such as national security and some
other paramount interests of the State. Mindful of this, the Universal

Declaration lays down that the exercise of the rights provided in

Article 19 carries with it special duties and responsibilities. "It may

therefore be subject to certain restrictions, but these shall only be

such as are provided by law and are necessary: (a) for respect of the
rights or reputations of others; and (b) for the protection of national
security or of public order, or of public health or morals."
The most serious restrictions of a legal character on the exercise
of the right to information by journalists arise from such concepts as
"official secrets", "classified information", "national security",

"national interests" and "public interest". The State has no doubt a

right to withhold information affecting national defence. What is
proving irksome is the tendency of governments to extend the exemp
tions to cover information of a political character, information in the

technical or industrial sphere and what is worse, even to expressions

of opinion. A matter relating to national security can be open to very
narrow or broad interpretations. Often, as it happens in India, every
document in possession of the Government is apt to be regarded as
"secret" and fall within the ambit of "classified information".

Admittedly, there can be some arguments in favour of official

secrecy. Secrecy has been universally conceded to be necessary in

certain spheres of governmental activity: defence, foreign relations,
criminal law, personal privacy, trade secrets, anonymity of civil

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THE RIGHT TO INFORMATION 179

servants in a parliamentary system and frankness in departmental

communications. But often the exercise of such secrecy can lead to

wholesale cover-ups, unless the authority exercising it uses its dis

cretion more in favour of disclosure than in favour of non-disclosure

regardless of the nature of the information.

Obviously, the factors necessitating openness and those requiring

secrecy need to be reconciled. A balance has to be struck; and such

a balance has necessarily to lean in favour of openness in free

societies. Commenting on the "inevitable tension" between the
requirements of openness and "the continuing need to keep some
matters secret" the Franks Committee noted:

This tension has been increasing in recent years. In part

this is because the dangers to the State have changed in
character and become more complex, and have come to seem
internal as well as external. The processes of government have

become more sophisticated; the activities of a government

increasingly affect all the affairs of the citizen. Its economic

manoeuvres have come to be considered no less vital to the

basis of the life of the community than the movement of its

troops. Many new advances in science have both peace-time

and military applications. Rapid changes in society, and the
increased influence of centralised institutions, further compli
cate the issue. More and more information about the private
affairs of citizens comes into the possession of the government;

there is a feeling that the government should safeguard the

confidence of the citizen almost as strictly as it guards in
formation of use to an enemy.

Despite its liberal traditions, England still imposes restrictions on

the right to information, and on the freedom of newspapers to publish
what they feel is fit to print. The system however, is highly liberalised

in the United States; but even there the courts were approached for
rulings on the publication by the New York Times of the "Pentagon
Papers" and by Washington Post on matters connected with the
Watergate scandal. Britain has the system of serving D-Notices on
newspapers if the government wants publication stopped. Of late, the
issue of D-Notices appears to have become less frequent, but the
system is still in force.

In a debate in the House of Lords, Lord Radcliffe summed up

some of the factors governing relations between the government and
the press, specially in regard to matters which the government may

feel do not deserve disclosure.

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180 S. VISWAM

In my view, security is never an absolute consideration. When

we have a system of our kind, with a free press, I think we
are bound to recognise that security is one of the questions,
and an important one, which has always to be weighed
against others, in that free dialogue between government and

press and people out of which our public life is built up... .
Governments always tend to want not really a free press, but a
well-managed or a well-conducted press. I do not blame them.
It is part of their job. It is equally part of the job of the press

to be wary about responding to these sometimes rather

subtle, sometimes rather obvious inducements.
II

Before we come to the constraints that operate against the

exercise of the right to information in India, it may be pertinent to
note the recommendations of the MacBride Commission in this regard.
Communication, it says, with its immense possibilities for influencing
the minds and behaviour of people, can be a powerful means of promot
ing the democratisation of society and of widening public participation

in the decision-making process. This depends on the structures and

practices of the media, and their management; and to what extent they
facilitate broader access and open the communication process to a free
interchange of ideas, information and experience among equals, with
out dominance or discrimination. (Many Voices, One World, p. 265)

The Commission has recommended to all countries to adopt

measures to enlarge sources of information needed by citizens in their

everyday life. A careful review of the existing laws and regulations

should be undertaken, with the aim of reducing limitations, secrecy
provisions and other constraints in information practices. It is recom
mended that censorship or arbitrary control of information should be

abolished (Emphasis added). In areas where reasonable restrictions

may be considered necessary, these should be provided for by law,
subject to judicial review and in line with the principles enshrined in
the United Nations Charter, the Universal Declaration of Human Rights
and the International Covenants relating to human rights and in other
instruments adopted by the community of nations.

Opinion is steadily growing in India in favour of more openness

in government. The Supreme Court in S.P. Gupta vs. President of
India, made a strong plea for open government. Mr. Justice Bhagwati,
speaking for the majority on the subject, said that "open government
is the new democratic culture of an open society towards which every

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THE RIGHT TO INFORMATION 181

liberal democracy is moving and our country should be no exception."

(A.I.R. 1982 S.C. 149)
Because of its colonial history, officialdom in India tends to
emulate that of Britain. The weapon of "official secrecy" is employed
to prevent investigations by the press or publication of the news item
in England. James Aitken, in his book Officially Secret, remarks that a
study of the public prosecutions and private pressures applied to
newspapers under the Official Secrets Act during the last fifty years
shows all too clearly that this law has often been used to restrict free
expression and investigation on the activities of the government. These
restrictions have steadily increased over the years, due to an apparent
extension of Parkinson's law, which might be stated as 'The influence
of the Official Secrets Act grows in inverse proportion to the number
of secrets to be guarded'. Indeed, the Civil Service's obsession with
secrecy has grown to such an extent that the legitimate operations of
journalists are today much more hindered by the Official Secrets Act,
than are the illegal machinations of spies."
The Government of India divides documents into two categories:
classified and non-classified. Classified documents are further sub

divided into: "top secret", "secret", "confidential" and "personalnot

for publication". As regards non-classified information, the rule is that

no official is to communicate any information to anyone which has

come into his possession in the course of his official duties, unless so

authorised by general or special orders. Information to the press is

to be communicated through the Press Information Bureau; but there
is no bar on ministers and officials being accessible to the press.
According to the Central Secretariate Manual of Office Procedure
1977, a government servant under the civil service rules is under an
obligation not to disclose to anyone, including a fellow government

servant, any information acquired by him during the course of his

official duties. This is provided by Rule 8 of the Central Civil Service
Conduct Rules 1955. A violation of this rule will subject the civil servant
to disciplinary action, apart from punishment under any other law like
the Official Secrets Act, 1923.
The extent of secrecy in the Government of India is elastic, in the
sense that it can cover both necessary and unnecessary situations.
Some examples are provided in a study by the Indian Law Institute
and the Press Council of India. Under Article 77 of the Constitution,
the President has to make rules for the more convenient transaction of

the business of the Government of India and for the allocation of the

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182 S. VISWAM

said business among ministers. Under this article, the President has
framed the Transaction of Business Rules and the Government of India

(Allocation of Business) Rules 1961 which are also known as the Rules

of Business. The allocation rules were published till 1973 and were
available to the public. But these are now treated as confidential.

Though the President makes these rules under the Constitution

yet they are treated as confidential without the Constitution explicitly
giving any confidentiality to them.
Again, the process of consultation of the affected interests in

enacting delegated legislations is rarely followed. Rules are made in

the secret chamber of bureaucrats. Trivial matters are treated as

secret. Matters having no relation to state security are hidden from

public gaze. Thus, reports of the Bihar C I.D. and D.I.G. into the

infamous Bhagalpur blindings of undertrials were being treated as

secret when the Supreme Court called for information pertaining to
them. Another case cited, as an instance of secrecy to protect the
government from political embarrassment, relates to the change over of
consultancy contracts for the gas-based fertiliser plants at Thal

Vaishet and Hazira from an American company. The switch led the
World Bank to withdraw its commitment to aid the project. The case
figured in parliament where documents were produced to establish
mala fides on the part of the minister in making the switch. The
government has initiated action against the persons responsible for
exposure under the Official Secrets Act. On occasions, the leakage of

information of the report of a Commission of Inquiry by a person

results in his prosecution. The Tamil Nadu Government is prosecuting

the officer who is alleged to have leaked out the report of the Paul
Commission. Commenting on this, Mr. Justice V. Krishna Iyer said:
"To plead secrecy of the report of a commission of inquiry, or prohibit

publication of the report, is contrary to the basic right to know

enjoyed by citizens of our country." The Tamil Nadu Government is
also reported to have treated as secret the report of the public analyst
about the contamination of water supply to Madras.

The Government of India has armed itself with specific statutes,

providing for secrecy in administration. Section 123 of the Evidence
Act, for example, provides that no one shall be permitted to give any
evidence from unpublished official records relating to any affairs of
state, except with the permission of the head of the department who
shall give or withhold such permission as he thinks fit. Even courts
can be denied documents if the government holds that they relate to
affairs of the state. The Official Secrets Act, 1923, is another statute
which comes in the way of the exercise of the right to information by

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THE RIGHT TO INFORMATION 183

officialdom, members of the public and the press. Section 5 of the

Act is an omnibus and a catch-all provision. It covers all kinds of

secret official information, whatever be the effect of disclosure.

The Act has been rarely used. Barring one prosecution of the
press, and that too before Independence, section 5 has not been
enforced against the press in recent times. Yet, the very fact of its
existence on the Statute Book inhibits the interaction of the press and

the officialdom and consequently affects the right to information

adversely. Its overall detrimental effect on the freedom of the press is
always manifest. To conclude that because of its non-use or non

frequent-use, it is harmless, would be deceptive. Such a conclusion

will not take into account the fact of the frequency of threats (notaction)
used by government, to prevent the press from publishing information
and the fear of violation of the Act by the press and the possibility of

prosecution as a self-restraining factor, in withholding information

whose disclosure may be in public interest.
The question of amending the Act, particularly its section 5, has
been considered several times in the past. The matter was examined
by the Press Laws Inquiry Committee in 1948, the Press Commission
in 1954, the Law Commission in 1971 and recently by a Study Group

appointed by the Central Government in 1977. The Press Commission

in 1954 felt that the government must be the sole judge in the matter

of deciding what confidential information can be published and what

not. It was largely because a liberal like Jawaharlal Nehru was the
Prime Minister then that the Commission observed that "in view of the

eminently reasonable manner in which the Act is administered, we

refrain from making any recommendation for an amendment of the Act."
However, it agreed with the contention of editors that merely because

a circular is marked confidential, it should not attract the provisions

of the Act if the publication thereof is in the interest of the public and
no question of national emergency and interest of the State as such
arises.

However, times have changed since then, and India has suffered
the ordeal of censorship and pre-censorship during the 1975 Emergency.
Besides, there is a growing tendency on the part of the government to
withhold even such information as has no bearing on national security.

This apart, the government seems to have appropriated to itself

the sole right to determine what constitutes national (public) interest

and what does not. Which is why it is being increasingly felt that the
pernicious section 5 should be knocked out of the Act, orthe provision
amended suitably, keeping in mind the minimum exemptions that are

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184 S. VISWAM

necessary to guard official secrecy. The Second Press Commission,

whose report is currently before the government, has pointed out that
the scope of the section 2 of the British Official Secrets Act which
corresponds to section 5 of the Indian Act is enormously wide in the

opinion of the Franks Committee. That committee noted that "any law
which impinges on the freedom of information in a democracy should
be more tightly drawn".
The Second Press Commission has taken the view that section

5 of the Act should be repealed and substituted by other provision

"suited to meet the paramount need of national security and other vi
interests of the state as well as the right of people to know the affai
of the state affecting them." In other words, the Commission accepts
that there are certain areas, information pertaining to which must be
deemed as classified and withheld from the press and the public. It
declares that it is essential to restrict the operation of section 5 by
prescribing the types of information which need protection from dis
closure. "These types or categories will necessarily be broad; but
primarily it will be the task of the executive to determine whether a

document falls under any of the specified categories," it adds. It is

doubtful if there will be a broad measure of agreement with the view
that the executive must be considered competent to determine and
implement the classifications.
Ill

In this context, the recommendations of the Press Council of

India would appear to be aimed at the circumvention of the necessity
of giving discretionary powers to the executive. The Council has
prepared a draft amendment of section 5. According to it, nothing shall
be an offence under the section if it "predominantly and substantially"
subserves public interest, unless the communication or use of the
"official secret" is made for the benefit of any foreign power or in any
manner prejudicial to the safety of the state. It defines the parameters
within which "official secret" can qualify to be withheld from the public.
The matters which qualify will have to concern (a) defence or
security of the nation, (b) foreign relations, (c) monetary policy, foreign
exchange policy, economic plans and policies, commercial or financial
information where premature disclosure may harm the national interest
or provide opportunities for unfair financial gains to a private interest,

(d) information which is likely to be helpful in the commission of

offences, helpful in facilitating an escape from legal custody or to be
prejudicial to prison security or likely to impede the prevention or

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THE RIGHT TO INFORMATION 185

detection of offences or the apprehension or prosecution of offenders,

(e) private information given to government in confidence, and
(f) trade secrets.

The most significant provision in the draft however is contained

in the recommendation that no person shall be prosecuted under this
section without the sanction of a committee consisting of the Attorney

General of India, a person nominated by the Chairman of the Press

Council of India and a person nominated by the Bar Council of India,
unless the charge against the person is that he communicated or used
the "official secret" for the benefit of a foreign power or in a manner
prejudicial to the safety of the state.

The government's powers are thus sought to be circumscribed

by the safeguard provision of a committee whose voice will have to be
reckoned with in determining the offence so long as the charge is not
related to the two exceptions listed. While the Press Council suggestion
is no doubt worthy of consideration as constituting a marked liberalisa
tion of the impact of section 5, there can be differing opinions in regard
to the definition of the "official secret" itself. For instance, the draft

amendment lists "documents regarding proceedings, decisions and

minutes of the Union or State Cabinets" as official secrets. Not all pro

fessional journalists will subscribe to this as in practice it has been

found that access is barred totally to any decision of the Cabinet,
unless the government chooses to take the public into confidence.
A national debate on the right to information is undoubtedly
called for. The entire concept of the right to information, including the
right of protection to journalists engaged in the normal and routine
discharge of their professional responsibilities, cries out for a drastic
overhaul. The Press Commission holds the view that there is no

absolute immunity for journalists from disclosing their sources of

information. The public interest in the free flow of information and
hence in protecting a journalist's source of information has to receive

wide recognition in India. For the present, the government does not
wish to give the journalists immunity from disclosing their sources of

information. But there is a contrary view, gaining wider acceptance,

that journalists should be compelled to disclose their sources, if at all,
in extreme cases only; and that too in confidence to a judge or
a judicial officer, and any changes in laws that may be necessary
for this purpose should be made. There has been a dissenting
opinion to this effect incorporated also in the Press Commission's
recommendations.

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