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.
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(PUCL Bulletin, Sept., 2000)