Transparency and the Right to Information: a Constitutional Imperative

In one line

The right to know is part of the freedom of speech, because a citizen who cannot find out what the government is doing cannot meaningfully speak about it or vote on it.

In the words a student can write in an exam: the right to information is not created by the Right to Information Act 2005; it is a facet of the freedom of speech and expression guaranteed by Article 19(1)(a), and is subject to the reasonable restrictions in Article 19(2). The Supreme Court recognised it before any statute existed, holding that in a government of responsibility where all agents of the public must be responsible for their conduct there can be but few secrets, and that the people have a right to know every public act. The Act of 2005 gave that constitutional right a practical machinery: a designated officer, a time limit, a fee, an appeal and a penalty, without which the right existed but could not be exercised.

Why transparency is a constitutional question and not merely a good idea

Four arguments, and a strong answer gives all four.

1. The argument from free speech. Article 19(1)(a) guarantees the freedom of speech and expression. Speech about public affairs that is uninformed is worth little, and a citizen who cannot obtain the facts cannot form or express an opinion about them. The right to receive and impart information is therefore an element of the freedom itself, not an addition to it.

2. The argument from democracy. In a representative democracy the people are the principal and the government is the agent. An agent who need not account to his principal is not an agent. The right to know follows from the theory of representative government.

3. The argument from accountability. Every mechanism in [Public Accountability] needs evidence. A question in the legislature, an audit objection, a complaint to a Lokayukta, a departmental proceeding and a writ petition all begin with somebody knowing something. Transparency is the precondition of the rest.

4. The argument from the control of discretion. Where an official has wide discretion, the citizen's protection is that the criteria are published, the decision is reasoned and the file can be seen. That connects this chapter to [Administrative Discretion and Why It Is Conferred] and [Reasoned Decisions].

The judicial foundation

The right existed before the statute, and Indian courts built it out of Article 19(1)(a). The line of decisions is identified in authorities/cases.json, and the two that matter most for this chapter are the case on the disclosure of the Blue Book concerning the Prime Minister's security, where the Court said that in a government of responsibility there can be but few secrets and that the people have a right to know every public act, and the case on judges' appointments and transfers, where the Court held that disclosure of information about the functioning of government is the rule and secrecy the exception. Those two decisions have not been read in a session and are therefore named without citations here, in accordance with the rule in authorities/cases.json.