Why Right to Information under Freedom of Speech, Art.19. 3 SC Judgments

Why Right to Information under Freedom of Speech, Art.19. 3 SC Judgments

Dear readers, this article & others (Parts: A-D & F) on “Why Right to Information under Freedom of Speech, Art. 19, 3 Supreme Court judgments, Union of India v. Assn. for Democratic Reforms (2002),  Union for Civil Liberties and Anr (PUCL) v. UoI and Anr (2003), Anuradha Bhasin v. UoI (2019) & Gulam Nabi Azad v. UoI (2019), Law Commission, Election Commission, Parliament, Article 324, right to know, UCL, Kashmir Times, Article 370 are informative with facts and will educate general public, students, teachers, and help competitive aspirants in preparation of IAS, PCS, CLAT, AIBE, UGC/NET, and other exam

Freedom of speech and expression is a natural and legal right of an individual to express one’s opinions, ideas & information freely and receive the same from others, without interference, through any means, media, and mode”.   __ Dr. Md. Usmangani Ansari                                      

The Constitution is not an instrument for the Government to restrain the people, it is an instrument for the people to restrain the Government”. –Patrick Henry (1736-1799)

SC Judgments on Right to Information

The Supreme Court and High Courts with the help of their judicial creativity, wisdom, and craftsmanship have widened the scope of freedom of speech and expression by adding many elements through judgments in the  field RTI:

Right to Information

The ‘freedom of speech and expression‘ comprises not only the right to express, publish, propagate, and circulation information, but also to receive information. This was held by the Supreme Court in a series of judgments which have discussed the ‘right to information’ in varied contexts from advertisements enabling the citizens to get vital information about life-saving drugs, to the right of sports lovers to watch cricket and the right of voters to know the antecedents of electoral candidates.

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Read related articles:

  1. PIL Part-1: What is Public Interest Litigation (PIL)? 
  2. PIL Part-2:  PIL Filer, Importance, Weakness, Development Phases, and Growth of PIL in India _________________________________________________

11. Union of India v. Assn. for Democratic Reforms (2002)

In this case22, the Association for Democratic Reforms filed a petition with the High Court of Delhi to compel implementation of certain recommendations of the Law Commission (as requested by the GoI) regarding how to make the electoral process in India more fair, transparent and equitable. These recommendations provided that the Election Commission should require all candidates to disclose personal background information to the public, including criminal history, educational qualifications, personal financial details, and other information necessary for judging a candidate’s capacity and capability. The High Court of Delhi ordered the Election Commission to obtain such information for the benefit of the voters in the interest of democracy. The Union of India challenged it in the Supreme Court of India, arguing that the Election Commission and the High Court did not have such powers and that voters did not have a right to such information.

The Hon’ble Supreme Court issued two main rulings:

(i) When the legislature is silent on a particular subject and an entity (i.e. the Election Commission) has been authorised to implement such subject, the Court assumes that the entity has the power to issue directions or orders to fill such personal background information until a suitable law on the subject is enacted; and
(ii) Citizens have a right to know about public functionaries, which is derived from the concept of freedom of speech and expression and which includes the right to know about the backgrounds of candidates for public office.

In the first ruling, the Court confirmed that Article 324operates in areas unoccupied by legislation”. It means the Court’s power to issue directions under Article 324 is plenary and absolute to maintain the purity and transparency of the “entire process of democratic election”.

In the second ruling, the Court characterized the ‘right to know’ as a right derived from the ‘right to freedom of speech and expression’. The public has a right to know about candidates contesting elections because such rights include the right to hold opinions and disseminating those opinions throughout the election process. In other words, the Court observed that a successful democracy strives toward an “aware citizenry” and misinformation or non-information of any kind will create an “uninformed citizenry which makes democracy a farce or mockery”.

12. Union for Civil Liberties and Anr (PUCL) v. UoI and Anr (2003)

The Parliament nullified part of the above ruling (AIR 2002 SC 2112)23 by amending the “Representation of the People Act” in Dec. 2002 so as to require political candidates to disclose certain criminal records; namely, any charges or convictions for any offense punishable with imprisonment for two years or more. Moreover, the Act expressly stated that no candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities, “notwithstanding anything contained in the judgment of any court or directions issued by the Election Commission” (Section 33B).

In this instant case, the Union for Civil Liberties (UCL) filed a petition with the Supreme Court challenging the constitutionality of Section 33B. In particular, UCL contended that the provision was arbitrary on its face and violated the fundamental rights of the voters as previously recognized by the Supreme Court in Union of India v. Assn. for Democratic Reforms 2002 case judgment. 

The Hon’ble Supreme Court reiterated the main findings in Union of India v. Association for Democratic Reforms and Another as,

(i) It observed that the judgment in the said case was a final decision that had a precedential effect.
(ii) It ruled that Parliament cannot exercise its powers in violation of fundamental rights and has no power to declare a court’s decision as void or of no effect. Therefore, once the Supreme Court held that a voter has a fundamental right to know candidates’ qualifications, this right may be limited only in cases provided by Article 19(2) of the Constitution.
(iii) The fundamental right of the voters to know relevant qualifications of the candidate is independent of any statutory rights under the election law and when a statutory provision violates a fundamental right, such provision must be struck down.
(iv) With respect to the relationship between the right to access asset declarations of the candidates and the right to privacy, the Court emphasized that the right to privacy is not absolute and “a person having assets or income is normally required to disclose the same under the Income Tax Act or, such similar fiscal legislation”. This is especially true for candidates for public offices. Disclosure of asset declarations is “the necessity of the day because of statutory provisions of controlling widespread corrupt practices”.

Thus, for all of the above reasons, the Court declared Section 33-B of the Amended Act “to be illegal, null and void”. 

13. Anuradha Bhasin v. UoI (2019) & Gulam Nabi Azad v. UoI (2019)

Case Facts24: Mobile and broadband Internet services were suspended in Jammu and Kashmir on August 4, 2019, before the repealing of Article 370 of the Constitution of India. A petition was moved by Anuradha Basin, the executive editor of the Kashmir Times. This petition challenged the curbing of media freedom in the state. The petition claimed that the media in the erstwhile state cannot practice their profession owing to the internet as well as telecommunications shutdown in the state. A similar petition was moved by Gulam Nabi Azad seeking issuance of an appropriate writ to set aside, quash any orders, notifications, directions, or circulars issued by the Government of India under which all/any modes of communication have been shut down.

The Supreme Court began by stating that in light of the facts of the present case, the objective of the Court was to “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner,” and leave the “propriety” of the orders at issue for “democratic forces to act on”.

The Court then identified five issues from the arguments presented by the petitioners and the government:

(i) Whether the Government can claim exemption from producing all of the restriction orders?
(ii) Whether freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights protected by Article 19(1)(a) and Article 19(1)(g) of the Constitution?
(iii) Whether the Government’s action of prohibiting internet access is valid?
(iv) Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
(v) Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
Based on the above issues the Supreme Court ruled that:
(i) Freedom of expression and the freedom to practice any profession online was protected by India’s Constitution under Art. 19(1)(a) and Article 19(1)(g).
(ii) An indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the “tests of necessity and proportionality” which the Government failed to do in this case.
(iii) However, the Court did not lift the internet restrictions, and instead, it directed the government “to review the shutdown orders against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit”.
(iv) Though the Government was empowered “to impose a complete internet shutdown, any order(s) imposing such restrictions had to be made public and was subject to judicial review”.
(v) Restrictions under Section 144 of the Code of Criminal Procedure could not be used to suppress legitimate expression. The Court thus ordered the State to review its restrictions.

Copyright © Writer (Dr. Md. Usmangani Ansari)

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  1. Union of India v. Assn. for Democratic Reforms AIR (2002) SC 2112
  2. Union for Civil Liberties and Another (PUCL) v. UoI and Another AIR (2003) SC 2363
  3. Anuradha Bhasin v. UoI WP(C) 1031/2019 & Gulam Nabi Azad v. UoI WP(C) 1164/2019

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