Technology
The right to information is implicit in the right to freedom of speech and expression.
At the outset one would have to determine whether or not the right to freedom of information exists. In so determining, it would be necessary to examine briefly some of the sources of law pertinent to this issue.
The Constitution of India is the primary legal document of the country. It is from this document that the various laws of the country derive their legal sanction. In the event any law is found to be in violation of any of the provisions of this basic document, such law is liable to be struck down as being ultra vires the provisions of the Constitution. In addition, where a government official takes any action which is contrary to the provisions of the Constitution such action could be struck down on constitutional grounds regardless of the alleged authority under which the action was taken.
A brief examination of the provisions of the Constitution indicates that it is clearly silent about the right to information. While numerous other rights, such as the right of freedom and expression, the right to form associations and unions, the right to move freely throughout the territory of India and the right to practice any profession or carry out any occupation have been clearly enunciated in the Constitution, no explicit mention has been made of the fundamental right to information.
However, even though the express provisions of the law do not make mention of the right to freedom of information, the courts of the land have, through a series of judicial decisions held that the right to information is implicit in the right to freedom of speech and expression. In the case of State of UP v. Raj Narain1 , the court acknowledged that the right to freedom of information was implicit in the right to freedom of speech and expression and stated that the "people of the country have the right to know every public act, everything that is done in a public way, by their public functionaries". This and a series of other cases that followed this reasoning, establish clearly that the concept of freedom of information, though not expressly set out in the provisions of the Constitution of India, are just as constitutionally enforceable as the other rights that have been clearly spelled out in the Constitution.
Despite the fact that this position is pretty much clearly established in law, there is little doubt that information is not as free as scientists or other common citizens would like it to be. With particular reference to geographical data, there are vast amounts of information to which the general public is denied access. Maps of numerous areas are restricted beyond a particular scale and where maps are submitted to the Surveyor General of India for approval, more often than not, these maps are returned with instructions to remove contour details and other essential information such as the latitude and longitude of the section covered by map. With the increasing sophistication of map-making technologies and remote sensing satellite imagery, these restrictions are becoming more and more redundant. In many cases, the information to which the ordinary citizens of the country are being denied access are readily available in other countries of the world. One would be justified in questioning the rationale of such regulations particularly where the rest of the world has access to this information already. It appears that there is very little justification for such restrictions when the information sought to be protected has already entered the public domain.
If one probes the reasons why access to information is being denied, one is inevitably presented with the argument that the restriction is in the interests of the defense of the country. As it stands, this is a defense that has constitutional support. The provisions of Article 19(2) of the Constitution of India clearly state that the right to freedom of speech and expression must be subject to reasonable restrictions on a variety of grounds, one among which is in the interests of the sovereignty and integrity of India and the security of the State. The government or any department of the government could, on the basis of this provision, validly deny any citizen right to access this information if it is deemed that if such information were to be disclosed such disclosure may compromise the security and integrity of the State.
No citizen has the power to question why or on what grounds any information that he/she has sought was denied. One would have to be satisfied with the decision of any government official who claims that the information sought is being denied in the interests of the security of the State. However, the courts do have the power, for the limited purpose of determining whether or not the executive has exercised its discretion appropriately, to examine the nature of the information withheld as well as the grounds for so withholding the information.
The Constitution is, no doubt, the primary document from which all other laws derive their legal sanction. As a document, it sets out the general legal parameters within which the country’s legal system must function. However, there are various statutes that discuss with in more detail, specific areas of governance and regulation. Several such statutes impose restrictions on the free access to information. It may be useful to examine some of these statutes to understand the extent to which freedom of information is provided under the legal system of this country.
The most maligned statute in this context is the Official Secrets Act, 1923 which the government functionaries often lean upon to justify their decisions to deny information. However, a brief review of the provisions of this Act indicates that it deals largely with issues such as espionage, entry into prohibited places, use or control of secret official codes or other acts that result in the communication of information to enemy agents or enemy States. This hardly appears to be the catch-all statute that is brandished as the sole reason for denial of information. However, a closer look at the provisions of the statute indicates that the mischief lies in the manner in which the law has been drafted. In many places the language used in the statute allows the widest interpretation of provisions, thereby permitting its misuse by government officials who could use the wide letter of the law to subvert its relatively narrow spirit.
While there are various such statutes that impose such restrictions on the freedom of access to information, perhaps one enactment whose provisions merit discussion is the Atomic Energy Act, 1962. Though this statute does not deal with geographical data, it does impose restrictions on the utilisation and dissemination of information relating to atomic energy or atomic power plants and the reason why it calls for discussion is the exclusion clause that is spelt out in Section 18(3)(ii). Under that section, the Act clearly excludes from the purview of the restrictions set out in the rest of the enactment, those items of information which have already been made available to the general public otherwise than as a result of a contravention of the provisions of the Atomic Energy Act. This is a statutory affirmation of the principle that finds its way into most contracts – the exclusion of public domain information from the restrictions on confidentiality.
This is a rational approach to the whole issue of imposing restraints on the freedom of information. As has been discussed earlier, maps that are restricted in India are sometimes easily available in other countries. This is clearly representative of the type of mismatch that exists between regulatory authorities and practical reality. It is obvious that little can be achieved by way of protecting the integrity and sovereignity of the State when the items whose restriction is supposed to achieve this end, is easily available to all who choose to purchase it.
This mismatch can be avoided by adopting principles such as those enunciated in the Atomic Energy Act, 1962. Thus the law relating to the dissemination of geographical information could be amended to state that information which is available in the public domain would be excluded from the purview of the restrictions. This would at least serve to put Indian citizens on par with persons from other parts of the globe who are, as a result of these myopic restrictions, in a better position vis a vis Indian geographical data than Indian citizens.