Editorial
Right
to Information
By K G Kannabiran
Law making in this country has a fixed framework. The British handed down this
framework to us, and it, more or less, spans the entire Anglo-Saxon world. On
this framework is structured the entire theory of interpretation whose chief
and only exponent is the highest court in these countries. If law making discards
the existing framework, courts will find themselves wholly inadequate to meet
this shift, this contingency. We have, in this country, found that legislation
for the protection of tenant and labour was interpreted by the Courts as limiting
the rights of tenant and labour, though the legislations was intended to extend
these rights. Apart from statutory restrictions on Fundamental Rights, Courts
imply restrictions to the freedom declared. Thus, they could dichotomise speech
and association and insulate one against the other. In reality speech, assembly,
and association are related rights.
Thus, free speech would be a vacuous right if that can't be expressed in an
assembly and in association with others and for the objects and purposes of
the association. A right to Association would be meaningless if the protest
forms, which these rights require as a necessary adjunct, are not part of these
rights. Thus, a right to strike in a Trade Union is a fundamental component
of right to form a Trade Union. The right to strike is separated from the fundamental
right and is given the status of legal right.
This exercise in alteration of a fundamental right is continuing and has been
introduced into the Right to Information Bill. Right to information being part
of fundamental right to free speech, one would expect the Bill to contain provisions
for the free enforcement of the right with punishment for failure to enforce
the right. Instead, the Bill reads like a legislation enacted under Sub Clause
(2) of Art 19 placing restraint (reasonableness is to be preserved) on the exercise
of free speech and expression. The legislative framework for the restraints
for the enforcement of a right is used. It really does not strike us that the
legislative framework provided by the British was not addressed to a society
of citizens with fundamental freedoms, but a society of subjects.
The Bill defines Right to Information. It sets down the procedure for applying
for information. It provides for time to take a decision. Any adverse decision
is made subject to review by an appeal. It bars jurisdiction of Courts because
it has built in redressed forum. If you are a successful applicant you will
have to pay a coping fee and this will evolve itself slowly into a revenue-yielding
asset for the Government. There are exceptions to this freedom of information.
They traverse the same field, which are traversed by the Official Secrets Act
and claim of privilege by the state under the relevant provisions of the Evidence
Act. The overriding character of this statute is limited to inconsistencies
between this Act and other Acts. If similar restrictions are placed in other
laws to meet other contingencies they will also operate along with this law.
The Bill in reality is not a declaration and recognition of the Right to information
as part of fundamental right to speech but as a (reasonable!) restraint on free
speech. While the exceptions swallow a good part of the Right, to interpretations
of the Right by Courts might swallow what is left of it.
(PUCL Bulletin, Sept., 2000)