The Cabinet has reportedly approved far reaching amendments to the Right to Information Act 2005, which among other things seeks to restrict access to "file notings" and allow access to only "substantial notings relating to social and developmental issues". File notings are the recording of the views and reasons by various officials for or against any proposed decision.

It is settled that the 'right to information', implicit under Art. 19 (1) (a) is untrammeled constitutional guarantee, subject only to the 'reasonable restrictions' validly imposed by legislation under Art. 19 (2) which allows reasonable restrictions on the right in the interest of "the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation and incitement to an offence". Any restriction imposed on the people's 'right to information' by the RTI Act must fall within the ambit of Art. 19 (2). Section 8 of the RTI Act already allows restriction of the right to information in the interest of all the factors mentioned in Article 19(2).

The Scheme in Art. 19 (2) does not permit an omnibus restriction, permitting the 'right to information' only under a few specified heads. This is the first infirmity in the proposed amendment. Apart from this, there is a greater substantive infirmity in the restriction proposed to disclosure of the 'file notings' generally.

It is well settled that all State actions must conform to the rule of non-arbitrariness to satisfy the requirement of Art. 14. It follows that all decisions must be based on a discernible principle, and cogent reasons. A reasoned order/decision is the assurance against nepotism, arbitrariness and corruption. Reasons provide an internal check against arbitrariness in the decision making process. Mere information of the decision without disclosure of the reasons for it and the decision making process is not enough to permit scrutiny of the decision made, which even otherwise may become known. The very purpose of the 'right to information' would be frustrated without the knowledge of the 'reasons' for the decision, emerging from the 'file notings'. Except for information which can, or needs to be withheld in the interests of the specified heads under Art. 19 (2), there is no reason or authority to permit exclusion of the remaining information in the form of 'file notings' or otherwise.

The stated apprehension that disclosure of all 'file notings' would deter the honest persons involved in the process from expressing their candid opinion is misconceived. The fact is the opposite. The assurance of public scrutiny or transparency in government business will motivate the honest to be frank and candid in the expression of their views in writing. At the same time it will deter others from not acting honestly for fear of exposure.

Transparency or openness is an accepted principle of democracy and good governance. A distinguished American Judge, Louis Brandeis had said: "Sunlight is the best disinfectant, and electricity is the best policeman". The 'Seven Principles of Public Life' indicated in the Lord Nolan Committee's Report on Standards in Public Life, include: Objectivity, Accountability and Openness.

After all, public power is derived from 'We the People of India...'. Its exercise must be subject to legitimate scrutiny by the People, who are the source of that power. The people have a participatory role in a Republican democracy as they are "the keepers of the Constitution". In such circumstances there is no justification for such an amendment to the RTI Act which seeks to unreasonably and unconstitutionally restrict the people's right to know what their public servants are doing on their behalf.

Justice J.S Verma (Ex Chief Justice of India and Ex Chairman National HR Commission)
Justice V. R. Krishna Iyer (Former Judge of the Supreme Court of India)
Justice P. B. Sawant (Former Judge of the Supreme Court of India)