RTI is Inbuilt within Right to Freedom of Speech and Expression, says Bombay HC

Moneylife Digital Team 11 December 2019

In a major boost to transparency, the Bombay High Court recently held that the Right to Information (RTI) is an implicit and an inbuilt Right under Freedom of Speech and Expression as declared under Article 19(1)(a) of the Constitution of India. While making this observation, the Court directed the state government to fill up vacant posts of its staff, including information officers in Maharashtra, says a report from Bar & Bench.

Quoting the division bench of Justices SC Dharmadhikari and RI Chagla, the report says, “The enactment is in larger public interest. It is not as if the right to information is a right derived by the citizens from the RTI Act 2005. Be it known to everybody that right to information is implicit and inbuilt in the right and freedom guaranteed to a citizen under Article 19(1)(a) of the Constitution of India. The right to free speech and expression includes within it the right to obtain information.”

The bench was hearing a public interest litigation (PIL) filed by Public Concern for Governance Trust (PGT), seeking an effective enforcement and implementation of the RTI Act.

A bench consisting of Justice SC Dharmadhikari and RI Chagla observed in their judgement “That is how this constitutionally recognised and permitted right is made meaningful and its enforcement is now serving a larger public purpose. It is only the enforcement machinery which is created by the RTI Act.”

Former central information commissioner and RTI activist Shailesh Gandhi, however, says, “The High Court has in the past reiterated this point over and again.

However, the courts should treat all three fundamental right, ‘right to publish, right to freedom and expression and right to information equally’. Any restriction that applies on one should apply on all and any enhancement of one should apply on all.”

In light of that, the court observed that while the state government has been handicapped for want of staff, with the new recruitment rules of 2018 and also based on certain decision of the Supreme Court, they should be able to fill up the vacant positions.

The state government assured the court that it would fill up the vacancies arising from time to time. In their affidavit submitted to the high court, they mentioned that out of the sanctioned posts (138 in number) 124 have been filled and only 14 are remaining vacant.

With regards to RTI and denial of information due to vacant positions, the HC in their response to the affidavit filed by the state government noted that while the process is on-going merely because there are vacancies, the state government or the machinery will not deny information to the members of the public on something which is to be made available to public otherwise.

Advocate Jamshed Mistry and Dipesh Siroya represented PCGT in the PIL.

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