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PUCL Bulletin,

November 1986

The right to know and the duty to inform

-- By Madan Lokur

The Sriram Gas leak case has given the Supreme Court an opportunity to conclusively lay down the law with regard to right of a citizen to have access to information. In the past, the Supreme Court did give some thought to the problem but merely touched the fringe of the issue.

In Raj Narain's case, Justice Mathew had expressed the view 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 and further that the right to know is derived from the concept of freedom of speech.

In the Judges case, Justice Bhagwati expressed the view that the right to know is implicit in the right of free speech and expression and that secrecy can be justified only where the strictest requirement of public interest so demands.

Government's Role

Though the Supreme Court recognized the right to know, it did not give this right any punch. The result is that the Government can still decline, or at least delay giving information to a citizen. The procedure is quite easy. When a request is made by a citizen, the Government can simply file the request. Reminders can be dealt with in the same manner. A citizen would normally not approach a court of law to exercise his right to know. But, if he does so, the Government can claim privilege, and by the time this claim is decided, perhaps the information would be outdated or otherwise no longer relevant. And, when it comes to the crunch, the Government can always seek the protection of the Official Secrets Acts.

As such, the law is very heavily loaded in favour of the Government and against the citizen. To set the balance right, the Supreme Court must decide some issues of seminal importance.

The Supreme Court must appreciate that not only does a citizen have the right to know, but the Government also has a duty to inform. The right to know and the duty to inform are really two sides of the same coin. The Supreme Court should also appreciate that in cases where the Government has the right to withhold information in public interest, there is also a corresponding obligation on the Government to make public all information, the withholding of which is not in public interest. It is only when the right to know is coupled with the duty to inform that a citizen's fundamental rights and the Directive Principles of State Policy can have some meaning.

What information should be included in the right to know? There are essentially two kinds of information. Firstly, information in which an individual is personally interested and secondly, information in which the public at a large is interested.

As regards information of individual importance it seems quite obvious that a person has the right to know everything that personally affects him. A person must have an answer to all the questions. For example, an employee must know whether his employment is hazardous and if so, the reason why. He must also know what are the consequences that he may have to face and what steps he can take to prevent a disaster, or if a disaster does strike, what curative action can he take. The employee must have immediate knowledge of these facts, or at least time-frame within which he must act so that damage is minimized. The employee must also know where the effects of the disaster or hazard will be felt; will he be personally affected or will the other workers also be affected or will the entire locality be affected. Armed with all this information an employee can take remedial and safety measures, such as sounding a general alaram if the consequences are likely to be wide-spread. Similarly, a housewife must know whether the drinking water in the house is safe and if not, the reason why. She must also know the consequences of drinking unfit water so that she can immediately warn her family, and if necessary, her neighbours. Immediate availability of such information will enable her to take appropriate remedial action and safety precautions, such as boiling the water before drinking it. This small act may protect her health and life as also that of several others.

Grey Areas
Information in which the public at large is interested is unlimited in its scope. But this does not mean that the people must know everything. For example, the people do not have the right to know complete details of defence preparations, details of foreign policy and similar political affairs. The people do, however, have the right to know the state of the environment and what the Government is doing to implement the laws and generally what are the policies of the Government. This will enable the people to effectively monitor the "health" of the country. On the other hand, if relevant information of this kind is withheld, the result will be a total absence of meaningful public debate and public participation in the affairs of the country. In the long run, this will also handicap the Government in taking the right decisions which also have popular approval. Of course, there are bound to be grey areas, such as with regard to information pertaining to the country's space programme. However, these grey zones would be very rare. But wherever possible, the people should get the benefit of doubt or any such dispute should be expeditiously adjudicated by a competent court, on merits.

Rights to Life

Why should there by a duty to inform? Primarily, because knowledge is essential to prevent dangers. For example, it is well known that cancer, if detected early, can be treated. If a person has knowledge that he is suffering from primary cancer, his life can probably be saved. On the other hand, if a person's medical records are withheld, he will not know that precautions to take to avoid contracting a serious disease. Absence of this vital information will deprive him of taking suitable prophylactic action. In such cases, the right to life, guaranteed by Article 21 of the Constitution will be set at naught. Similarly, the public at large must be told that they are residing in areas which are environmentally hazardous so that they can take necessary safety precautions. For example, it is believed that not many people in Bhopal knew that Union Carbide was dealing in toxic substances. Of those who did know, not many were aware that merely putting a wet towel on ones nose could substantially minimize the effects of M.I.C. Due to lack of such basic information, hundreds of people died. The residents of Bhopal were not only deprived of their right to life, but also their right of safe residence guaranteed by Article 19 (1) (e) of the Constitution.

Another reason why disclosure is essential is because the availability of information can lead to cure, in the event that prevention is not possible. For example in the event of a calamity like a fire in a hotel, it is imperative for the residents to know where the emergency exits are located and where one can find fire extinguishers. If this information is not available, several lives can be lost, as happened recently in Delhi when residents jumped out of the windows to save themselves. Similarly, in the event of a war, the people must know where they can find air-raid shelters or what precautions to take in the event of an air raid. If such information is withheld, lives, which could otherwise be saved, will be needlessly lost.

Let's look at the problem form another point of view. Why should there not be a duty to inform? Everyday the courts give reasoned judgements so that a litigant is informed why he has not succeeded. The courts also strike down orders because the aggrieved party has not been informed of the case to be met, that is to say, that he has not been given any show cause notice. Similarly, in matters of preventive detention, the Courts set a detenue at liberty because he is not informed of the ground of detention or because all the documents before the detaining authority were not disclosed to him.

These instances indicate that the courts have implicitly recognized the duty to inform especially in matters concerning justice, fair-play and personal liberty. Surely the courts can explicitly recognize the duty of inform in the cases where the right to life is threatened, more so in cases where the right to life is threatened, more so in cases where the right to life has actually been extinguished. This recognition is all the more imperative, when it is realised that in matters concerning the environment, it is not as if only one life is threatened but hundreds as is Bhopal, and potentially thousands, if one takes into consideration the fact that the living dead will some day have children.

Accessibility

Who should be obliged to supply information? The answer to this depends on the nature of the information. If the information is of individual interest, then the person who has the information should be obliged to supply it. For example, the employer should be obliged to supply to the employees all information concerning his terms and conditions of employment or information pertaining to his confidential reports, or information concerning any enquiry against him.

On the other hand, all information of public interest should be accessible from the government. The government should be duty bound to obtain information of public interest from all possible sources. All the corporations and organizations should also be obliged to give information of public interest to the Government.

The task of collecting such information is not impossible for the Government. the infrastructure is already available and this can be suitably adapted to the needs and requirements. For example, motor vehicles are registered every year for road tax. While applying for registration, the owner of the vehicle can required to give a test report on auto emissions. Similiary, while issuing industrial licences, the Government can direct the applicant to give information with regard to the raw materials used, the environmental impact of the manufacturing processes, whether any hazardous substance are stored or manufactured and the measures that the applicant proposes to take for the safety of workers and nearby residents. When the Government has collected the relevant information, it should be obliged to disseminate in public interest.

Dissemination

The dissemination of information is also relatively simple. The Government can use the electronic media already under its control. For example, the Government can disseminate information through radio and TV. The literate people can also be informed through newspaper advertisements, brochures and leaflets. A case in point is that of smokers who are told by a warning on cigarette packets and in advertisements that smoking is injurious to health. For the uneducated , posters can also be used for conveying information. The help of communication experts can also be taken to disseminate information in remote and backward areas. Far example, in the outer reaches of Bhutan and Nepal, where iodine deficiency disorders are endemic and literacy and communication systems are almost non-existent, volunteers and voluntary organizations are disseminating information by actually talking to the people to advise them to change their food habits and consume iodine fortified salt. In India, where communication is not a serious problem, the task before the Government is relatively easy.

It is not too much to expect the Government to regularly disseminate information every day. If a dangerous person escapes or a terrorist is on the loose, the Government informs the public and flashes photographs on the TV. Similarly if a cyclone is expected, the residents of coastal areas are given a warning and the coast guard is put on alert. If there is a landslide, tourists are warned of the dangers and sometimes all traffic is stopped. The Government also regularly gives out innocuous information like the weather forecast. The relevance of this is a matter of debate.

Why then, is it difficult for the Government to disseminate information where the question is of survival and of life and death, the importance of which can never be a matter of debate?


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