Constitutional basis of the right to information and the Supreme Court

1. The text

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. Article 19(2) allows the State to impose reasonable restrictions in the interests 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 or incitement to an offence. Article 21 protects life and personal liberty.

Speech presupposes something to say, and something to say presupposes information. The Supreme Court reasoned from that: the freedom to express includes the freedom to receive and gather information, and a democracy in which citizens choose their government cannot work if the government’s acts are hidden from them. International instruments say the same in terms: Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights include the freedom “to seek, receive and impart information”.

2. Raj Narain (1975): the right to know

In State of U.P. v. Raj Narain, 1975 INSC 14, (1975) 4 SCC 428, arising from the election petition against Indira Gandhi, the State claimed privilege over the “Blue Book” containing security instructions for the Prime Minister’s tours. The issue was the scope of the privilege for unpublished official records relating to affairs of State under sections 123 and 162 of the Evidence Act (section 123 is now section 129 of the Bharatiya Sakshya Adhiniyam, 2023). The Court held that the court, not the department, has the final word on whether disclosure would injure the public interest, and that the court may inspect the document to decide.

The passage always quoted is from Mathew J.: in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets; 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 this right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can have no repercussion on public security.

3. S.P. Gupta (1981): disclosure the rule, secrecy the exception

In S.P. Gupta v. Union of India, 1981 INSC 209, AIR 1982 SC 149 (the Judges’ Transfer case), the Government claimed privilege over correspondence between the Law Minister, the Chief Justice of India and the Chief Justice of a High Court about the non-extension of an additional judge. Bhagwati J. described the concept of an open government as the direct emanation of the right to know, which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Disclosure of information about the functioning of government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The Court ordered the correspondence to be produced and rejected the claim of a class privilege for such documents.

The case also widened locus standi for public interest litigation, which is why it is studied in constitutional law; for this subject the point is the open government passage.

4. Cricket Association of Bengal (1995): airwaves and information

In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161 (decided 9 February 1995; Ratio lists no neutral citation for it), the Association wanted to have cricket matches it organised telecast by a foreign agency; Doordarshan and the Government claimed a monopoly. The Court held that the airwaves are public property to be used for the public good, that the freedom of speech and expression includes the right to acquire and disseminate information through the electronic media, and that the right belongs both to the broadcaster and to the viewers who have a right to be informed. It directed the creation of an independent public authority to regulate the airwaves.

5. Dinesh Trivedi (1997)

In Dinesh Trivedi, M.P. v. Union of India, 1997 INSC 303, (1997) 4 SCC 306, members of Parliament sought publication of the supporting material behind the Vohra Committee report on links between criminals, politicians and officials. The Court accepted that in a modern democracy the citizen has a right to know about the affairs of government, but held the right is not absolute: it may be limited where disclosure would harm the public interest or the security of the State, and it declined to direct disclosure of the background papers. The case is useful to show the limits of the right.

6. The voters’ cases (2002 and 2003)

In Union of India v. Association for Democratic Reforms, 2002 INSC 253, (2002) 5 SCC 294, the Court held that the voter has a right to know the antecedents of candidates, including criminal record, assets and liabilities and educational qualifications, as part of Article 19(1)(a), and directed the Election Commission to require this information in affidavits. When Parliament tried to cut down the directions by inserting section 33B in the Representation of the People Act, 1951, the Court struck the section down in People’s Union for Civil Liberties v. Union of India, 2003 INSC 176, (2003) 4 SCC 399: the voter’s right to know is a fundamental right, and it can be restricted only on the grounds in Article 19(2).

7. Electoral bonds (2024)

In Association for Democratic Reforms v. Union of India, 2024 INSC 113, (2024) 5 SCC 1, a Constitution Bench struck down the Electoral Bond Scheme and the related amendments that made contributions to political parties anonymous. The Court held that information about the funding of political parties is essential for the voter to exercise an informed choice, and that the right to information of voters under Article 19(1)(a) was infringed by a scheme that kept donors secret. It is now the leading recent statement that the right to information is a constitutional right, not merely a statutory one.

8. Article 21 and the RTI Act

The right has also been tied to Article 21, since the right to life includes the right to live with dignity and to know about matters affecting one’s life, such as environmental hazards. Section 7(1) of the RTI Act reflects this: information concerning the life or liberty of a person must be supplied within forty-eight hours.

The RTI Act’s own Statement of Objects and Reasons says it provides a framework for effectuating the right of information recognised under Article 19 of the Constitution. Two consequences follow. First, the exemptions in sections 8 and 9 are restrictions on a fundamental right and must be read so as to stay within Article 19(2). Second, the right under section 3 belongs to citizens, matching Article 19, which is also confined to citizens.

How this is examined

“Explain the provision of right to information under the Indian Constitution” was the first question in November 2021 (16 marks). Structure: the text of Article 19(1)(a) and 19(2); the reasoning that speech includes the right to receive information; then the cases in order — Raj Narain, S.P. Gupta, Cricket Association of Bengal, Dinesh Trivedi, ADR and PUCL, electoral bonds; and finish with the RTI Act as the statutory form of the right. Quote Mathew J. in Raj Narain; examiners look for it.