Shrutanjaya Bhardwaj*

Article 19(1)(a) of the Indian Constitution guarantees a fundamental right “to know”. But what information does a citizen have a right to know? The Supreme Court’s Electoral Bonds judgment lays down an unsatisfactory test: that the information should be necessary for participatory democracy. The Court gives no reasons for laying down this test, except saying that it emerges from a reading of the Court’s previous judgments. But this is factually incorrect, and the Court overlooks some key judgments which contradict its articulation of the test. In doing so, the judgment adds to the confusion and deserves to be clarified by a future bench.

Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of speech and expression. However, besides the textual rights of “speech” and “expression”, Article 19(1)(a) has been judicially interpreted to include the right to know, also known as the right to receive information. This broad principle is well settled, but the precise contours of the right to know are not. One basic question which, until very recently, remained entirely unanswered is: exactly what information does a citizen have a fundamental right to know? The Supreme Court has now given an answer, though not a satisfactory one, in the recent Electoral Bonds judgment (“ADR-III”). This piece critiques the Court’s answer.

This piece is divided into five parts. Part I explains the Court’s answer and indicates that it is inconsistent with the Court’s earlier judgments. Parts II & III discuss the Court’s previous judgments with which ADR-III is inconsistent, and which are unfortunately not noticed in ADR-III. Part IV contains a discussion on why this inconsistency is of significant concern. Finally, Part V concludes.

I. The finding in ADR-III

The Court’s answer is this. The right to information developed in India in two phases. The first phase, the narrower one, only focused on transparency and accountability in governance. It recognized a right to a very specific kind of information—i.e., information about state affairs. The second phase expanded the right to include all information which is “necessary to further participatory democracy in other forms”.[1] It is this second description that the Court applies in the Electoral Bonds judgment, holding that the details of political funding must be disclosed because they are essential for rational and informed voting behaviour.

But this second description—that the information must be “necessary to further participatory democracy” (unclear as to what this means)—is an inaccurate description of the Court’s earlier judgments. It is both conservative and overbroad. It is conservative because it ignores judgments that recognize a right to a broader category of information. It is overbroad because it ignores judgments denying access to information that is clearly “necessary to further participatory democracy”. Unfortunately, the Court selectively picks and cites only certain judgments to make its point.

II. Judgments that recognize a broader right

In Cricket Association of Bengal (1992), the Supreme Court held that Doordarshan could not claim a monopoly over broadcasting rights to cricket matches. In arriving at this finding, the Court extensively discussed the scope of Article 19(1)(a) and concluded that the right to freedom of expression includes the broadcaster’s right “to educate, to inform and to entertain” and the viewer’s right “to be educated, informed and entertained”. The Court held that the State cannot prevent anybody from telecasting or broadcasting cricket matches; any law imposing such a restriction must comply with the requirements of Article 19(2) or must be justified with reference to the limited availability of frequencies.

Though Cricket Association of Bengal is noted in ADR-III on a different point,[2] surprisingly, it is not noted while postulating on the kind of information to which citizens have a right. Watching cricket matches is not—by any stretch of language or imagination—“necessary to further participatory democracy”. Neither is “being entertained”. Yet these activities have been held to be covered by Article 19(1)(a). ADR-III should have discussed this judgment while describing and summarizing the ‘second phase’ and explained how it fits the Court’s articulation of the test.

Another example is the Constitution Bench judgment in English Medium Schools (2014). The Government of Karnataka mandated all schools in the State to adopt the vernacular language (Kannada) as the medium of instruction up to a certain standard. The Supreme Court invalidated this provision, holding that the right to know includes the right to be educated “in a language of the choice of the child” (the choice is presumably exercised through a parent) and hence any governmental imposition of a language is contrary to Article 19(1)(a).

The judgment makes no reference to participatory democracy—rightly so, for the case had nothing to do with it. The Court simply extrapolated the right to receive information (education) to a right to receive it in a language of one’s choice. It found that primary school education was covered by Article 19(1)(a). No filter was applied to extend Article 19(1)(a) only to such education as would be “necessary to further participatory democracy”. Once again, the Court in ADR-III ought to have explained how English Medium fits its articulation of the test.

Finally consider Motion Picture Assn. (1999). The Central Government imposed certain license conditions on cinema halls. It was demanded that before every movie, a short scientific or educational film be shown to the audience. When the cinema hall owners complained that this is “compelled speech” and hence violative of Article 19(1)(a), the Court refused. Rather than violating the freedom of speech, the Court held, this license condition “furthers informed decision-making which is the essence of the fight to free speech and expression”. The central premise of the Court’s finding is India’s social context:

“When a substantially significant population body is illiterate or does not have easy access to ideas or information, it is important that all available means of communication, particularly audiovisual communication, are utilised not just for entertainment but also for education, information, propagation of scientific ideas and the like. The best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all-literate and illiterate alike; To earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues.” (emphasis mine)

Despite the somewhat sudden reference to public issues, the Court’s focus seems to be on education rather than public debate. The Court does not limit its holding to only those scientific documentaries, e.g., that address a live public issue. In any case, it is questionable whether scientific documentaries (or, beyond a point, even ‘education’ generally) are necessary for participatory democracy. Further, the Court does not hold that compelling cinema halls to exhibit these films is necessary for participatory democracy, though it may be the best way to educate the masses.

III. Judgments that refuse information fitting the Court’s description

Now consider judgments which deny information even though it clearly fits the Court’s description of the ‘second phrase’ of the right to know. In Indira Jaising (2003), the Petitioner demanded access to the report of a judicial inquiry against sitting judges of the Karnataka High Court. The Court refused this request by describing the report as “confidential and discreet” and “not for the purpose of disclosure”. In Anjali Bhardwaj (2023), the Court refused to share the agendas and decisions of certain meetings of its Collegium,[3] holding that only the final decision of the Collegium needs to be published; all earlier decisions are merely tentative decisions that need not be made public. Why this is so, the Court does not say. Finally, consider Saurav Das (2023), in which the Court refuses to direct the online publication of all chargesheets, without even discussing the right to know.

The information sought in each of Indira Jaising, Anjali Bhardwaj and Saurav Das was “necessary to further participatory democracy”. Judicial appointments, behaviour and misconduct are a matter of public concern. Further, though judges are not elected, citizens are entitled to know all information that may indicate a nexus between judges and politicians, or reveal how deeply judicial functioning is influenced by other branches of the State.  The same is with chargesheets. Citizens ought to be entitled to know the kinds and levels of crime in society, the involvement of state officials in crime, the (in)competence with which investigations are carried out, or even the State’s abject failure to prevent certain kinds of offences. It is puzzling that all these judgments deny the information sought, but even more puzzling that ADR-III does not even cite them.

IV. What turns on all this?

ADR-III seems to imply that citizens have a right to only such information which fits the courts’ description of “necessary to further participatory democracy”. For otherwise, there was no need to articulate this test. Indeed, in deciding whether citizens are entitled to know about Electoral Bonds, the Court applies the test of necessity which, as discussed above, has no basis in its previous judgments. This raises a few questions.

First, what now is the authority of the six judgments mentioned in Sections II & III? Are they still good law, given that the Court has not formally overruled them? If a citizen wants the State to disclose information about the Prime Minister’s educational qualifications or the financial details of a state-run relief fund, should she first demonstrate that the information is “necessary” to further “participative democracy”?

Second, what is the basis of the test laid down in ADR-III? We have seen that the Court’s stated basis (that this is a mere reproduction of existing law) is factually wrong. Therefore, if we are to sustain the ADR-III test, we must have a philosophical basis on which the test can be justified. This is a challenging task given that the right to receive information itself rests on an infirm foundation. The right is usually justified by saying that the availability of information would enable a citizen to exercise their freedom of speech under Article 19(1)(a) more effectively and meaningfully. However, a 7-judge bench in Maneka Gandhi (1978) categorically held that such a justification cannot be used to read a derivative right into the Constitution.

Third, perhaps most importantly, why is the Court not citing all relevant precedent even in its Constitution Bench judgments? Particularly troubling is the Court’s ignorance of English Medium (supra), a judgment rendered by a bench coordinate to the ADR-III bench, which was hence binding. What we have now is a set of conflicting judgments which add to the confusion rather than solving the problem. This is not a one-off situation. The Supreme Court does not have a good track record of following its own precedent. Research shows that the Court’s judgments are becoming less and less grounded in precedent, which might even increase litigation at the Supreme Court by signalling to litigants that they can always take a chance at the apex court despite clear precedent standing against them.

V. Conclusion

ADR-III has taken a welcome step by attempting to answer a hard question: To what kind of information does a citizen have a fundamental right? Unfortunately, the Court’s answer is not satisfactory. The Court gives no reasons for the test it lays down, except saying that it is a mere description of the Court’s previous judgments on this topic, which is factually incorrect. The Court overlooks some key judgments which contradict its articulation of the test. In doing so, it adds to the confusion and creates tremendous scope (and an urgent need) for a clarification by a future bench.

[1] ¶65 (emphasis mine).

[2] ¶¶112-115.

[3] The ‘Collegium’ is a group of a few senior-most judges of the Supreme Court who select other judges for elevation to the Supreme Court or the High Courts.

*Shrutanjaya Bhardwaj is an advocate practising in the Supreme Court of India, Delhi High Court and various tribunals. At present, he is teaching an elective course titled Free Speech Law at the National Law University, Delhi.