Right of information has not been enumerated as a fundamental right under Part III of the Constitution. It emanates as a fundamental right from the " speech and expression" as contained in Article 19 (1)(g) of the Constitution of India. Right of information is indisputably a fundamental right. These rights have been set out in broad terms leaving scope for their expansion and adaption , through interpretation, to the changing needs and evolving notions of a free society.
Every right-legal or moral - carries with it corresponding obligation. It is subject to several exemptions/exceptions which entitle the Government to withhold information. A balance is to be maintained between the public's right to know and the Government's right to conceal. Government can withhold information in public interest but at the same time , it can not be allowed to retain something in the guise of public interest. The Government has to be bonafide and genuine in its endeavour to retain information. Here comes the role of the Courts as the Custodians of the Rule of Law and to see if the required balance between the peoples' right to know and the Government's right to withhold information.
Generally , the exemptions / exceptions under the laws of the land entitle the Government to withhold information relating to the following matters:
(i) International relations
(ii)National Security ( including defence) and public safety:
(iii)Investigation, detection and prevention of crime;
(iv)Internal deliberations of the Government;
(v)Information received in confidence from a source outside the Government;
(vi)Information , which if disclosed, would violate the privacy of individual;
(vii)Information of an economic nature, ( including Trade Secrets ) which, if disclosed , would confer an unfair advantage on some person or government to an unfair advantage;
(viii)information , which is subject to a claim of legal professional privelege, e.g;communication between a legal advisor and the client; between a physician and the patient;
(ix)Information about scientific disclosure.
A Statute carries with it a presumption of constitutionality .. Such a presumption extends also in relation to a law, which has been enacted for imposing reasonable restrictions on the fundamental rights. A reasonable restriction on the exercise of the fundamental right is always permissible in the interest of the security of the State .If a reasonable restriction was imposed in the interest of the State by reason of a valid piece of legislation, the Court normally would respect the legislative policy behind the same. A further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily.
The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fide , dishonesty or corrupt practice. The order can be set aside if it is ultra vires the powers conferred upon the authority and there were no grounds for passing the orders. The claim of immunity and privilege of the State has to be based on public interest. When any claim of privilege is nade by the State in respect of any document the question whether the document belongs to the privileged class has first to be decided by the Court. Though Section 123 of the Indian Evidence Act.,1872 is silent as regards the instrumentality of deciding the issue of whether the document is one that relates to any affiars of State . But the clue as regards the supremacy of the Court in such matters is found in section 162 of the Indian Evidence Act. It only empowers the Court to inspect the document unless it refers to matters of State , or take other evidence to enable it to determine on its admissibility