Since the mid-1980s, when the Supreme Court opened its door to public interest cases, the activist groups have become increasingly vocal in demanding information from the executive. A specific law on right to information, making it a part of the right to freedom of speech and expression, as in Article 19(1)(a) of the Constitution, is on the anvil. But it will be wrong for the activists to expect that the time is ripe, or near-ripe, to ignore the reasonable restriction that the state may impose on the outflow of information on matters that it describes as sensitive.

The limitation of the Constitutional provisions in forcing the state to part with sensitive information was evident in the Supreme Court’s order, earlier this month, on a petition by People’s Union for Civil Liberties and some others. Relying on reports appearing in newspapers and magazines about alleged safety violations and defects in various nuclear installations, the petitioners invoked the right to information to access further details. On the other hand, the Atomic Energy Regulatory Board (AERB) had taken the plea of privilege to safeguard its reports on safety defects and weaknesses of the installations, which, it claimed, had been classified as ‘secret’. The petitioners contended that Section 18 of the Atomic Energy Act, 1962, under which the Union Government had chosen to protect the information, was itself invalid as its power to notify any information as secret was devoid of a guideline and, therefore, discretionary. After the original petition had been dismissed in high court, the petitioners came to the Supreme Court where a bench comprising Chief Justice V.. Khare and Justice S.B. Sinha dismissed the appeal. The question is: the state of nuclear installations may be a state secret, but hasn’t the citizen a right to demand information about it in what he considers to be public interest? When the Chernobyl catastrophe happened, wasn’t there an outcry in the world that its root cause was the lack of transparency in the erstwhile USSR?

The appellants in this case cited a report by former AERB Chairman Dr A. Gopalakrishnan in which serious concern was purportedly expressed about safety of the nuclear installations. It was claimed that the report disclosed that serious accidents had occurred in the supposedly “safe” nuclear plants like Narora Atomic Power Plant in Uttar Pradesh and Kaiga Atomic Power Plant in Karnataka. It was in the context of these reports, appearing in several publications, that the appellants demanded the details reportedly contained in a report prepared by the AERB in November 1995 documenting 130 instances of safety defects and weaknesses of the plants. The Union Government, in its counter-affidavit, produced most of the material on the subject available in the public domain, including a press release in 1996 by the AERB which stated: “In the judgment of the Board, there is at the moment no shortcoming existing which can lead to any nuclear disaster or Chernobyl-type catastrophe in any of these (Indian) installations.” But the Board put an unexpected twist in its case when it invoked a notification of 1975, incorporated since then in Section 18 of the Atomic Energy Act, and claimed privilege in relation to the report. It said the report was a “secret” as it involved the nuclear installations with several sensitive facilities for activities of a highly classified nature (the claim seems justified, in retrospect, in the context of the Pokhran-ll blasts in 1998).

Senior counsel Prashant Bhushan, who appeared on behalf of the appellants, argued that the right to information was integral to the fundamental right of freedom and expression in Art. 19(1)(a). Besides, as Bhushan argued, provisions in Section 18 of the Act were not valid law amounting to reasonable restriction on the fundamental right of information. He submitted that information about design and other details of the Indian nuclear plants were available on the Internet, and thus it was unreasonable to withhold other information of identical strategic significance on the “specious plea of likelihood of sabotage”.

However, Soli Sorabjee, the attorney-general representing the government, pointed out that, on the basis of the affidavits filed before the high court, it would appear that hardly any nuclear accident had occurred in India. Further, Sorabjee argued that the right to information could not be exercised in abstract and must be examined in its context. “A matter which is sensitive by its very character cannot be subject matter of a right to information.”

The court, in holding that there are no merits in the appeals, and in dismissing them, gave a poignant insight, for the first time perhaps, into the areas where the state is entitled to keep information out of bounds for the general public. It could be:

• International relations

• National security (including defence) and public safety

• Investigation, detection and prevention of crime

• Internal deliberations of the government

• Information received in confidence from a source outside the government

• Information of an economic nature which, if disclosed, could confer an unfair advantage on some persons, or concerns

• Information subject to professional privilege, like communication between a legal adviser and his client; and

• Information about scientific discoveries.

That’s a tough call on the civil rights activist planning his strategy of exercising the Constitutional right to expose the murky details of public affairs. If investigation of a crime is to remain behind the state-imposed curtain, there will be little scope for the public to get information on, say, the progress of inquiry into the Tehelka episode, beyond what the government-appointed commission of inquiry offers, or what the public prosecutor puts forward, if at all, in a court of law. Again, public safety may be a convenient ploy to withhold information on lack of preparedness against a variety of calamities, including earthquake.

The National Commission to Review the Working of the Constitution has, in its report, recommended the addition to Art. 19(1) (a) of a clause on the freedom to “seek, receive and impart information”. But the recommendation also binds the freedom in newer reasonable restrictions. The privilege claimed by the nuclear regulator, which the court has upheld, is, as it seems, not unique to a single high-tech department of the administration. If the state is unwilling to part with information, the law is quite helpless.