Transparency and the Right to Information: a Constitutional Imperative

What can be worked here is the case that supplies the reasoning about arbitrariness and the refusal to give reasons.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport issued in June 1976 and impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 which recited only that it was "in public interest". The petitioner was given no hearing, and when she asked for the reasons the Government declined to furnish them, saying that it was not in the interest of the general public to do so, although section 5(3) of the Act requires reasons to be recorded where a passport is refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness pervades Article 14, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, being right and just and fair and not arbitrary, fanciful or oppressive. Even where a statute is silent, the law may in a given case imply the requirement of natural justice and apply it, and there is no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters here. The Government's answer to a citizen who asked why, that disclosure was not in the general public interest, is the administrative reflex the whole of this topic exists to answer. The constitutional development from that refusal runs through the duty to give reasons to the statutory right to demand the record.

Why a constitutional right needed a statute

This is the most useful point in the chapter, because it explains why the Act was necessary although the right already existed.

A right under Article 19(1)(a) is enforceable only by moving a High Court under Article 226 or the Supreme Court under Article 32. To obtain a single document a citizen would have to file a writ petition, engage a lawyer, wait, and satisfy a court. That is not a right anybody can use.

What the Act supplies is not the right but the machinery:

That table is the answer to the examination question "was the Act necessary if the right already existed?" The right was real and unusable; the Act made it usable.

The preamble of the Act

The preamble is worth knowing because it states the constitutional theory in the statute's own words. It recites that democracy requires an informed citizenry and transparency of information, which are vital to its functioning and to containing corruption and holding governments and their instrumentalities accountable to the governed; that revelation of information in actual practice is likely to conflict with other public interests including efficient operation of the governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; and that it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.

Three propositions to take from it: information is vital to democracy and to containing corruption; disclosure conflicts with other public interests; and the conflict is to be harmonised with the democratic ideal remaining paramount. That is the interpretive key to the exemptions in [Exemptions from Disclosure].

Section 3: the right itself

Section 3 provides, simply, that subject to the provisions of the Act, all citizens shall have the right to information.

Three things follow, and all are examinable.

1. It belongs to citizens, not to every person. A foreign national or a company as such is not within section 3, though the practical position is that a request is rarely refused on that ground where the information is otherwise disclosable.
2. No reasons need be given for wanting it, and no locus standi need be shown. Section 6(2) is the provision that says so, and it is the most radical thing in the Act.
3. It is subject to the Act, which means subject to the exemptions.

Transparency and privacy, which now pull harder against each other

This is where the chapter must be current, because the balance changed very recently and no textbook reflects it.

Section 8(1)(j) of the Act, which is the exemption for personal information, was substituted by section 44 of the Digital Personal Data Protection Act 2023, being Act 22 of 2023, with effect from 13 November 2025. The clause now reads simply: "information which relates to personal information".

The clause it replaced contained a balancing test of its own: personal information was exempt only where its disclosure had no relationship to any public activity or interest, or would cause an unwarranted invasion of privacy, unless the officer or the appellate authority was satisfied that the larger public interest justified disclosure; and a proviso stated that information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.

What survives is section 8(2), the general public interest override, which is untouched and provides that notwithstanding the Official Secrets Act 1923 and notwithstanding any of the exemptions in section 8(1), a public authority may allow access to information if the public interest in disclosure outweighs the harm to the protected interests. So it is wrong to say that the Act now has no public interest test for personal information; the test inside clause (j) has gone and the section 8(2) override remains. The consequence is treated fully in [Exemptions from Disclosure].

The wider point for this chapter is that transparency and privacy are both constitutional values. The right to information rests on Article 19(1)(a); the right to privacy was held in 2017 to be protected under Article 21 and as part of the freedoms in Part III, in Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161. The 2025 substitution is a legislative choice about where the line between two constitutional rights should fall, and that is what makes it worth arguing about.

A worked example

A citizen believes that a road contract was awarded improperly.

Before 2005. He could ask, and be refused. His remedy was a writ petition asserting a right under Article 19(1)(a), for which he needed a lawyer, a court and time. In practice the information was unobtainable.

After 2005. He files an application with the Public Information Officer of the department under section 6, paying a small fee, without giving any reason for wanting the information. Within thirty days he receives the tender file, or a refusal citing an exemption. If refused or ignored, he appeals under section 19, and the officer risks a penalty under section 20.

The difference is not the right. It is the machinery. That is the sentence to write.

Now vary it. He also asks for the caste and the medical records of the officer who signed the file. Before 13 November 2025 the officer would have had to consider whether disclosure had any relationship to a public activity or interest, whether it would be an unwarranted invasion of privacy, and whether a larger public interest justified disclosure. Since that date clause (j) exempts information which relates to personal information, and the only route to disclosure is the public interest override in section 8(2).

What it does NOT mean

It does not mean the Act created the right. The right is part of Article 19(1)(a); the Act supplied the machinery.

It does not mean the right is absolute. It is subject to Article 19(2) and to the exemptions in the Act.

It does not mean everybody has it. Section 3 confers it on citizens.

It does not mean transparency always defeats privacy. Both are constitutional values, and the line was moved towards privacy on 13 November 2025.

Quick revision

1. The right to information is a facet of the freedom of speech and expression under Article 19(1)(a), subject to Article 19(2). It was recognised judicially before the statute.
2. Four arguments: free speech is worth little uninformed; a democratic government is an agent that must account; every accountability mechanism needs evidence; and discretion is controlled by published criteria, reasons and an inspectable file.
3. The constitutional right lacked machinery. The Act supplied a Public Information Officer, a procedure, a time limit, defined exemptions, appeals, a penalty and proactive publication.
4. The preamble: information is vital to democracy and to containing corruption; disclosure conflicts with other public interests; the conflict is harmonised with the democratic ideal paramount.
5. Section 3: subject to the Act, all citizens have the right to information. No reasons for the request need be given.
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597: Article 14 strikes at arbitrariness; equality and arbitrariness are sworn enemies; the procedure under Article 21 must be right, just and fair. The Government's refusal to give reasons in that case is the reflex this topic answers.
7. Section 8(1)(j) was substituted by section 44 of the Digital Personal Data Protection Act 2023, Act 22 of 2023, with effect from 13 November 2025, and now reads "information which relates to personal information". The old balancing test inside the clause and the Parliament proviso are gone; the section 8(2) public interest override remains.
8. Privacy is itself a constitutional right: Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161.

Test yourself

1. Is the right to information a fundamental right in India? Yes, in substance. It is not separately enumerated, but it is a facet of the freedom of speech and expression guaranteed by Article 19(1)(a), and is therefore 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 the 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 Right to Information Act 2005 did not create the right; section 3 declares that subject to the Act all citizens shall have the right to information, and what the Act added was the machinery by which the right can actually be exercised.

2. If the right already existed under Article 19(1)(a), why was the Act necessary? Because a constitutional right without machinery cannot be used. To obtain a single document a citizen would have had to move a High Court under Article 226 or the Supreme Court under Article 32, engage a lawyer and wait, which is not a remedy anybody can use for an ordinary file. The Act supplied what was missing: a Public Information Officer in every public authority to receive requests under section 5, a simple written procedure with a small fee under section 6, a time limit of thirty days and of forty-eight hours where life or liberty is concerned under section 7, defined exemptions in sections 8, 9 and 24 so that refusal must be justified by reference to a stated ground, a first and second appeal under section 19 and a complaint under section 18, a penalty of two hundred and fifty rupees a day up to twenty-five thousand under section 20, and proactive publication under section 4 so that much information need not be asked for at all.

3. What does the preamble of the Right to Information Act 2005 state, and why does it matter? It recites that democracy requires an informed citizenry and transparency of information, which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed; that revelation of information in actual practice is likely to conflict with other public interests, including the efficient operation of governments, the optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; and that it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal. It matters because it supplies the key to interpreting the exemptions: disclosure is the rule and the exemptions are the harmonisation, and the democratic ideal remains paramount, so an exemption is to be read as an exception and not as a general licence to withhold.

4. How has the balance between transparency and privacy changed? By legislation, very recently. Section 8(1)(j) of the Act, the exemption for personal information, was substituted by section 44 of the Digital Personal Data Protection Act 2023, which is Act 22 of 2023, with effect from 13 November 2025, and now reads simply that there shall be no obligation to give any citizen information which relates to personal information. The clause it replaced exempted personal information only where disclosure had no relationship to any public activity or interest or would cause an unwarranted invasion of privacy, and then only unless the officer or appellate authority was satisfied that the larger public interest justified disclosure, with a proviso that information which could not be denied to Parliament or a State Legislature could not be denied to any person. Both the internal balancing test and the proviso have gone. What remains is section 8(2), the general public interest override, under which access may still be allowed where the public interest in disclosure outweighs the harm to the protected interests. The change is a legislative choice about where the line falls between two constitutional values, since privacy was itself held to be protected under Article 21 in Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161.

5. Who holds the right under section 3, and must a reason be given for seeking information? Section 3 confers the right on citizens, subject to the provisions of the Act, so it is a citizen's right rather than a right of every person, although in practice a request is rarely refused on that ground where the information is otherwise disclosable. No reason need be given for seeking the information and no locus standi need be shown; section 6(2) provides that an applicant shall not be required to give any reason for requesting the information or any personal details except those necessary for contacting him. That is the most radical feature of the Act, because it removes from the official the power to decide whether the citizen is entitled to be curious, and leaves only the question whether the information is exempt.