Right2Information

Right to Information – Master key to good governance

GOVERNMENT’S CURBING RIGHT TO KNOW – UNCONSTITUTIONAL.

Posted by rtiact2005 on July 30, 2006

P.K. Aditya, Chandigarh Says:
July 30th, 2006 at 7:32 am e

 

 

GOVERNMENT’S CURBING RIGHT TO KNOW – UNCONSTITUTIONAL.

 

 

It is not true that the RTI Act did not include any provision for full disclosure of “file notings” by officials. File notings having not been defined in section 2 of the RTI Act, there could be no question of having to have said provision in the Act. ‘File’ having been defined under Sec.2(i) without any mention that file notings are not included in ‘file’, implies clearly that truncating file notings from any file is not only absurd, but also against canons of officials process.

 

 

Perusal of court rulings shows that, leave apart High Courts, the Apex Court in St of Orissa v Jagannath Jena (1977), rejected the claim of privilege, after disclosure of endorsement on the file by the Deputy Chief Minister and the I.G Police was opposed by the Government, on the ground that the aspect of public interest had not been clearly brought out in the affidavit, essential to claim privilege.

 

 

In the very well known S.P Gupta v UOI (1982), which has been a water shed in the matter of Government claiming privilege to not disclose unpublished official records, the Apex Court after studying the documents in chamber, came to the conclusion the disclosure would not injure public interest. Rejecting the claim the Supreme Court held that the provisions of Evidence Act should be construed keeping in view our new democracy, wedded to the basic values enshrined in the constitution. There are several ‘gems of quotations’ in this ruling, not reproducible in restricted space, which abundantly support the view that any en masse clamp on disclosure of information is unconstitutional. Each and every case, in which government may claim privilege, deserves to be supported by proper affidavit, after full application of mind by the prescribed authority (Minister, or Secretary of the department concerned). Exclusion of all type of file notings, in mundane files of officialise from disclosure is against settled law. It cannot be said by any stretch of imagination, or of argument, that promulgation of RTI 2005, was meant to lead to deprivation of the citizen from the constitutional right of information, compared with the settled situation of law.

 

 

Another associated matter is that of ‘class privilege’, attached with ‘cabinet papers’ etc., under Article 74(2) of the Constitution, on which there are enough rulings, prominent of which is R.K. Jain v. UOI (1993), which has obviously led to enunciation of the sec.8(1)(i), in the RTI Act 2005. The government had claimed privilege, later agreed to perusal of the file by the court, the Court allowed the privilege, to the extent to it being not open to the petitioner to see. In course of judgment the court clarified that bar of judicial review is confined to the factum of the advice, but not to the record i.e., material on which the advice is founded. There is clear provision that only a very restricted range papers connected with this any matter, which can be withheld from disclosure. File notings, in such files may belong to this category, and it would be well for the government to properly word their exclusion from disclosure. In other subsections of section 8(1), the government may improve qualification of the first word: ‘information’ to ensure that officers concerned feel safe to make notings fearlessly. There should be no element of fear in the minds of all other officers, not dealing directly with matters enlisted in section 8(1) of the Act. Once again, it is worth mentioning that there are enough ‘gems of quotations’ in the said judgment, to stress that any blanket ban on all type of notings is unconstitutional.

 

P.K. Aditya, Chandigarh.

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