The preamble is the soul of any enactment. The significance of the Preamble can be understood by the fact that most of the contents of the Preamble to the Constitution have been declared to be “Basic Structure” of the Constitution that cannot be taken away even by exercising the “Constituent power of amendment” by the Parliament.
The preamble to the RTI Act, 2005 provides that”
(1) A practical regime has been created to secure and effectuate the right to information to the “Citizens”. This is an important declaration in many aspects. Firstly, by using the expression “citizens” the applicability of the Act has been “restricted to natural persons” and “juristic persons” like companies have been kept outside the purview of this Act.
Solution: The solution lies in either “impleading a natural person” along with the Company or Invoking Article 21 that confers right to know upon all “persons”. The expression “persons” includes both natural as well as artificial persons.
Secondly, Article 13 will come into play with all its rigours. It will take non-citizens out of the protective umbrella of Constitutional safeguards, wherever Fundamental Rights or/and Constitutional Rights are not provided to such non-citizens.
(2) The right can be enforced against “Public authorities” possessing certain information. Not every information is sharable.
The problem: An exhaustive definition of “public authorities” has been used. This will restrict the applicability of the Act in its true letter and spirit.
Solution: Apply the tests of “Statehood” to private individuals as well. Thus, this problem will automatically be solved.
(3) The Preamble has accepted and acknowledged the “Democratic nature” of the Constitution of India. Democracy is a “Basic Structure” of the Constitution, hence any attempt to curb that will be per se unconstitutional and void.
(4) The “public interest exceptions” have been retained. Surprisingly, the Government has preferred to adopt an “inclusive category” for this purpose. This left the scope of introducing many more public interest exceptions in the future.
(5) The best part about the Preamble is that it is adopting the “harmonisation” of conflicting interests and while doing so giving paramountcy to the democratic ideals. Thus, in case of conflict between the “disclosure requirements” and “Secrecy mandates” , the democratic ideals will play the conclusive role.
Regards
Praveen Dalal
Arbitrator, Consultant and Advocate
Supreme Court of India
Managing Partner-Perry4law(Legal Firm)
Associate Partner-Legal Solutions India (Legal Firm)
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