Government Privileges In Legal Proceedings: Admin Law Notes

Government Privileges In Legal Proceedings: Admin Law Notes- Prolawctor

Government Privileges In Legal Proceedings: Government openness is a sure technique to minimize administrative faults. As light is a guarantee against theft, so governmental openness is a guarantee against administrative misconduct. Openness in government is gaining lot of foothold in recent years. It is a topic of growing importance in administrative law. The goal of open government is being pursued by U.S.A, Aaustralia Newzealand and other liberal democracies of the world. Openness in government is bound to act as a powerful check on the abuse of power by the government. The objective of openness in government is ensured by giving access to by the individual to governmental information so that governmental activity is not shrouded in mistery and secrecy. American Constitution, the oldest written constitution of the world, does not contain specific right to information. However, the US Supreme Court has read this right into the First amendment of the Constitution and granted access to information where there is a tradition of openness to information in question and where access contributes to the functioning of the particular process involved.

Administrative Procedure Act, 1946 (APA) was the first enactment, which provided a limited access to executive information. The Act was vague in language and provided many escape clauses. Taking these deficiencies into consideration the Congress in 1966 passed Freedom of Information Act, 1966, which gives every citizen a legally enforceable right of access to government files and documents, which the administrators may be tempted to keep confidential. If any person is denied this right, he can seek injunctive relief from the court.

  1. Information specifically required by executive order to be kept secret in the interests of national defense or foreign policy.
  2. Information related solely to internal personal use of the agency
  3. Information specifically exempted from disclosure by statute.
  4. Information relating to trade, commercial or financial secrets.
  5. Information relating to inter-agency on intra-agency memorandums or letters.
  6. Information relating to personal medical files.
  7. Information complied for law enforcement agencies except to the extent available by law to a party other than the agency.

After investigating the operation of this Act, Congress in 1974 amended it. Amendments provided:

  • For disclosure of “any reasonably segregably portion” of otherwise exempted records;
  • For mandatory time limit of 10 to 30 days for responding to information requests;
  • For rationalized procedure for obtaining information, appeal and cost. Statistics show that maximum (80%) use of this act is being made by business executives their lawyers an editors, authors, reporters and broadcasters whose job is to inform the people have made very little use of this Act.

The judiciary In USA shares the same concern of the Congress, which is reflected in the Freedom of Information Act, 1966. Justice Douglas observed: “Secrecy in government is fundamentally antidemocratic, perpetuating bureaucratic errors. Open discussing based on full information debate on public issues is vital to our national health.” In order to provide access to Federal government meetings, the Congress passed Sunshine Act, 1977

In England the thrust of the legislations on ‘information’ but secrecy the present law is contained in the Official secrets acts, 1911, 1920 and 1939. Keeping in view the desirability of openness of
governmental affairs in a democratic society, the Franks Committee recommended a repeal Section 2 of the 1911 Act and its replacement by the Official information Act.

The proposals restricted criminal sanctions to defined areas of major importance: wrongful disclosures of (i) information of major national importance in the fields of defense security foreign relations, currency and reserves, (ii) cabinet documents, and (iii) information facilitating criminal activity or violating the confidentiality of information supplied to the government by or about individuals, and these of information for private gains.

In 1993, the government in England published a white paper on ‘open government’ and proposed a voluntary code of practice of providing information. This code is voluntary and thus cannot be equated to statutory law on access to information.

The local government (Access to Information) Act, 1985 is the only statutory law providing legal right to information against local’s governors. The Act provides for greater public access to meetings and documents of the major local councils. However, this Act leaves much to the discretion of the councils and mentions at least fifteen categories of exempted information. Individual seeking information has no adequate legal redress. It is certainly strange that a democratic country should be so secretive. It appears that this situation cannot last long because of mounting popular pressure and citizens charter.

The Official Secrets Act, 1923 in India makes all disclosures and use of official information a
criminal offence unless expressly authorized. Courts in India and England have rejected the concept of conclusive right of the government to withhold a document. But still there is too much secrecy, which is the main cause of administrative faults. India Constitution does not specifically provide for the right to information as a fundamental right though the constitutional philosophy amply supports it. In the same manner arts. 19 (a) freedom of thought and expression and 21 right to life and personal liberty would become redundant if information is not freely available Art. 39(a), (b), (c) of the Constitution make provision for adequate means of livelihood, equitable distribution of material esources of the community to check concentration of wealth and means of production. As today information is wealth, hence, need for its equal distribution cannot be over emphasized. Taking a cue from this Constitutional philosophy, the

Supreme Court of India found a habitat for freedom of information in Arts. 19(a) and 21 of the Constitution. It is heartening to note that the highest Bench in India while recognizing the efficacy of the ‘right to know’ which is a sine qua not of a really effective participatory democracy raised the simple ‘right to know’ to the status of a fundamental right.
In S. P. Gupta v. Union of India, the court held that the right to know is implicit in the right of free speech and expression guaranteed under the Constitution in Article 19 (1) (a). The right to know is also implicit in Article 19(1)(a) as a corollary to a free press, which is included in free speech and expression as a fundamental right. The Court decided that the right to free speech and expression includes

  • Right to propagate one’s views, ideas and their circulation
  • Right to seek, receive and impart information and ideas
  • Right to inform and be informed
  • Right to know
  • Right to reply and
  • Right to commercial speech and commercial information.

Furthermore, by narrowly interpreting the privilege of the government to withhold documents under Section 123 of the Evidenced Act, the Court has widened the scope for getting information from government file. In the same manner by narrowly interpreting the exclusionary rule of art. 72 (2) of the Constitution, the Court ruled that the Court could examine the material on which cabinet advice to the President is based. However, this judicial creativity is no substitute for a constitutional or a statutory right to information. With the judicial support, the right to information has now become a cause of public action and there is a strong demand for a formal law on freedom of information. States of Goa, Tamil Nadu and Rajasthan have, since 1997, enacted laws ensuring public access to information, although with various restraints and exemptions. There is a pressure on the Central Governments also to enact law-granting right to information.
Various drafts were submitted from consideration by empowered bodies like the Press Council of

India and by independent citizens’ groups. but the Freedom of Information Bill, which has finally
reached Parliament in 1999, has disappointed almost all who campaigned for its introduction.

This Press Council of India Bill, 1996 had provided three exemptions, which included:

  • Information, disclosure of which will have prejudicial effect on sovereignty and integrity of India, security of State and friendly relations with foreign states, public order, investigation of an offence which leads to incitement to an offence;
  • Information which has no relationship to any public activity and would constitute a clear and unwarranted invasion of personal privacy;
  • Trade and commercial secrets protected by law.

However, the information, which cannot be denied to Parliament or State Legislator, shall not be denied to any citizen. Present government bill tightens all these exemptions while adding several more. One such exemption is in respect of cabinet papers, including records of deliberations of Council of Ministers, Secretaries and other officers. This would make the conduct of all officers of stat immune from public scrutiny. Another exemption relates to the legal advice, opinion or recommendations made by an executive decision or policy formulation this confers too far-reaching immunity on officials. However, in one respect the bill marks a definitive advance over the initial draft in doing away with the exemption on information connected to the management of personnel of public authorities. This makes information available relating to recruitment process on public agencies, which is often riddled with corruption and nepotism. The bill is highly inadequate in respect of credible process of appeal and penalties for denial of information. The jurisdiction f the courts has been ruled out since the bill makes provision for an administrative appeal only. The officers who would deal with the requests for information are totally unencumbered by the prospects of any penalty for willful denial of any access. Nevertheless, in spite of these limitations, the proposed Bill is a right step in the right direction.

Right to know also has another dimension. The Bhopal gas tragedy and its disaster syndrome could have been avoided had the people known about the medical repercussions and environmental hazards of the deadly gas leaked from the Union Carbide chemical plant at Bhopal.

In India bureaucrats place serious difficulties in the way of the public’s legitimate access to information. The reason for this can be found in colonial heritage.

Today in India secrecy prevails not only in every segment of governmental administration but also in public bodies. Statutory or non-statutory. There is a feeling everywhere that it pays to play safe. Even routine reports on social issues continue to be treated as confidential long after the you are submitted. What is given out is dependent on the whims of a minister or a bureaucrat. The result is that there is no debate on important matters and no feedback to the government on the reaction of the people. The stronger the efforts at secrecy, the greater the chance of abuse of authority by functionaries. There is need for administrative secrecy in certain cases. No one wants classified documental concerning national defiance and foreign policy to be made public till after the usual period of 35 years is over. Secrecy may also be claimed for other matters enumerated in the Freedom of Information Act, 1966. But the claims of secrecy, generally by the government and public bodies, may play havoc with the survival of democracy in India. Some legislation, therefore, is necessary which recognizes the right to know, makes rules fro the proper ‘classification of information’ and makes the government responsible to justify secrecy. This will not only strengthen the concept of open government, but also introduce accountability in the system of government., Outside the government, there is no justification for secrecy in public undertakings except within a very limited area of economic espionage. Sometime there appears to be a conflict between the right to know and the right to privacy of public figures through whom the machinery of government moves. Our experience in India suggests that a public figure should not be allowed protection against exposure of his private life, which has some relevance to the public duties on the plea that he has a right to privacy. Right to privacy should not be allowed as a pretext to suppress information.


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