The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19(1) (a) of the constitution of India. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. A true democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolized either by a partisan central authority or by private individuals. Hence to have a representative central agency to ensure the viewer’s right to be informed adequately and truthfully is a part of the right of the viewers under Article 19(1) (a). An alien or foreigner has no rights under this Article because he is not a citizen of India. Thus to confer protection upon non-citizens one has to depend upon and apply Article 21 which is available to all persons, whether citizen or non-citizen[1].

It is important to note that even if we have no RTI Act, 05 (RTIA) still these Fundamental Rights are available. Their enforcement is not “dependant” upon any “statute” like RTIA though RTIA will “strengthen and help in stronger enforcement” of the Right to Information. It is a cardinal principle of interpretation of Constitution that if a statute or statutory provision is violative of “any provision” of the Constitution it is void and ineffective. Thus, even if certain undertakings, organisations, etc have been excluded from the “applicability and ambit” of the RTIA still the Fundamental and Constitutional Rights can be enforced against them independently of the RTIA. Thus, if these organisations etc fall within the definition of “State” U/A 12 of the Constitution they are “bound and obliged” to provide the relevant information within the parameters of the Constitution of India. Although, it would be better if they are included in the ambit of the RTIA yet if they are not so included still Constitutional provisions can be invoked against them.

There is an emergent need to expressly include “private persons” within the ambit of Article 12 of the Constitution and declare them “State” as well. The need for the declaration of private persons[2] as State is immediate and compulsive in nature. This has arisen due to globalisation, privatisation and decentralisation. The traditional “welfare state functions” have now slipped into the hands of private individuals due to this phenomenon. The crucial “public interest” has also been transferred to these private persons as far as the transferred business is concerned. This is, however, not the end of the story. The duties and limitations by which the traditional State was bound are also, with necessary modifications, passed to the private persons. These duties and limitations, though not as stringent and rigorous as were meant for traditional State, are still in existence and are required to be followed by the “successors” of those welfare state functions. It is no doubt true that private individuals cannot be expected to play the role of “parents or guardians” of the nation, but certain minimum fair and reasonable obligations, commensurate with the basic Human Rights, Fundamental Rights and Constitutional Rights, have to be met reasonably. The welfare state requirements mandate that if the power and essential functions of a state are decentralized or delegated to private persons, they retain their mandates of welfare requirements, though in a modified form. For instance, if a public company, performing crucial public functions is pravitised, then the successors are required to act justly, fairly and reasonably. An arbitrary, unreasonable or oppressive act of a “privatised public company” should be equally vulnerable to the challenges of unconstitutionality. Thus, the changed socio-economic conditions of India require a different outlook and this makes the declaration inevitable and essential[3].

[1] http://legalsolutionsindia.blogspot.com/2005/11/new-horizons-of-right-to-information.html .
[2] The expression “persons” is used in this article to include natural as well as artificial entities, i.e. both human agency and corporate entities. It includes PSUs, SEBI, Banks, etc.
[3]  http://legalsolutionsindia.blogspot.com/2005/11/accountability-of-private-persons.html

Regards

Praveen Dalal
 http://www.blogger.com/profile/8339811