Transparency activists have always applauded and given credit to the Supreme Court of India for its outstanding role in recognising the fact that the Right to Information to government information is a fundamental right of its citizens under Article 19 (1)(a) of the Constitution of India.
The first landmark pronouncement in this respect was made by Justice Mathew in State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428 wherein he stated, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security”.
Effectively, the apex court signalled that the only bar on information should be one which would impact public security. Repeated pronouncements were made in SP Gupta, Rajagopal, ADR, Dinesh Trivedi and other landmark cases reiterating the ideology and principle, recognising the right to information as a fundamental right flowing from Article 19(1)(a) of the Constitution of India. The Right to Information Act, 2005 hereinafter referred to as “RTI Act” has codified this right and also listed certain areas for which the information may be denied; and these exempted areas were on the same lines as that spelled out in Article 19(2) of the Constitution of India. Article 19 of the Constitution states:
Article 19: Protection of certain rights regarding freedom of speech, etc
(1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions, co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; 12 [and];
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in subclause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests 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 or incitement to an offence.
The Parliament of India recognized and codified this fundamental right of citizens in the year 2005 in which it clearly laid out that there would be 10 exemptions instead of one as pronounced by Justice Mathew in Raj Narain case stated hereinabove. Justice Ravindra Bhat of Delhi High Court, impressively, captured the spirit of the RTI Act in his judgment in the Bhagat Singh v. CIC WP (c) No. 3114/2007 on 3 December 2007, when he stated:
“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must, therefore, be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.
A rights-based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view (See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.”
The RTI Act categorically states that the only reason for denial of information are given in sections 8 and 9 which are given at the end of this paper.
Citizens have had great hope that the judiciary would be the sentinel in defending this fundamental right and would help to hold the government authorities to the strictest test, which would help to empower individual citizens to hold their governments accountable and reduce arbitrariness and corruption which is omnipresent in the Indian social atmosphere.
RTI has spread very well and empowered citizens, thereby, deepening roots of Indian democracy. Individual citizens have become the vigilance monitors of government and public servants by bringing greater transparency and accountability. They have uncovered many scams and exposed corruption. This is slowly moving the nation from being an elective democracy to a meaningful participatory democracy where active citizenship can be practised.
In this backdrop, I am analysing the role played by the Supreme Court in this journey of transparency after the advent of the RTI Act by analysing seven judgments on the RTI Act by the Supreme Court.
Right to free speech, publishing and information all arise from Article19(1)(a) of the Constitution. The first two have been growing in a healthy manner. Right to Information really became recognised across the nation only in 2005 and grew in a very healthy manner for the first few years. I decided to look at the Supreme Court judgments on RTI. I analysed 20 judgments and am presenting my analysis of five of them.
Judgment 1: CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497
The main issue before the court: Whether an examinee's (Students’) right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination and taking certified copies of the same. The examining body, CBSE, had claimed that it held the information in a fiduciary relationship and hence this was exempt under Section 8 (1)(e) of the RTI Act.
The observations of the Court: Para 18: “Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations.”
Para 23. “It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body.”
Para 26: “The examining bodies contend that even if fiduciary relationship does not exist with reference to the examinee, it exists with reference to the examiner who evaluates the answer-books. On a careful examination we find that this contention has no merit…..Therefore it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner.”
Para 37. “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.”
The court held that: The court ruled that corrected answer sheets were information which should be provided to students who seek them under RTI.
Analysis of the judgment: The court ordered the information to be provided. It held that it was not exempt since the examining body did not hold any information in a fiduciary relationship with the examiners or examinees. Unfortunately, despite the Supreme court’s observation at para 18 that the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules, Public Information Officers (PIOs) of most courts refuse to give information in RTI to citizens regarding various matters saying citizens should approach them under relevant court rules. They erroneously hold that the court rules overrule the RTI Act!
The observations made by the apex court in para 37 hereinabove are unsubstantiated and wholly uncalled for. There was no cause or reason for those observations. It is unfortunate that the Supreme Court made such disparaging remarks in respect of a fundamental right of citizens. There is not a shred of evidence that RTI is ‘obstructing the national development and integration, or destroying the peace, tranquillity and harmony amongst its citizens’. To label citizens exercising their fundamental right as oppressors and intimidators is unacceptable. These observations from the apex court have been gleefully picked up by public officials and quoted to curb the citizen’s fundamental right. RTI has been recognised by the Supreme Court as being integral to Article 19(1)(a) which states that all citizens shall have the right to freedom of speech and expression subject only to the restrictions laid out in Article 19 (2) of the Constitution. Section 8(1) effectively covers these and goes a little beyond. These remarks cannot be explained by any facts and run contrary to all the earlier judgments on Right to Information.
As for the accusation of RTI taking up 75% of time, I did the following calculation: By all accounts, the total number of RTI applications in India is less than 10 million annually. The total number of all government employees is over 20 million. Assuming a 6-hour working day for all employees for 250 working days, it would be seen that there are 30,000 million working hours. Even if an average of 3 hours is spent per RTI application, 10 million applications would require 30 million hours, which is 0.1% of the total working hours. This means it would require 3.2% staff working for 3.2% of their time in furnishing information to citizens. This too could be reduced drastically if computerised working and automatic updating of information was done as specified in Section 4 of the RTI Act.
If Section 4 of the Act is implemented as envisaged in the law, the number of RTI applications would be less than 50% of the current level. The Supreme Court did not comment on the lack of Section 4 compliance by all public authorities but decided to pass unwarranted and unsubstantiated strictures against citizens using their fundamental right.
An extensive study done by Right to Information Assessment and Analysis Group [RAAG] led by the scholarly and respected Shekhar Singh, shows that:
The Central Secretariat Manual of Office Procedures (Thirteenth Edition, Ministry of Personnel, Public Grievances and Pensions, Department of Administrative Reforms and Public Grievances, September, 2010) mandates that proper replies to all communications from citizens should be sent within 30 days. Thus, only 26% of the applications asked for information that was not required to be disclosed proactively, either publicly or privately to the applicants. It would have been appropriate if the Supreme Court had directed public authorities to do their duty as per the RTI Act instead of castigating citizens using their fundamental right as if they were interlopers or terrorists.
Judgment 2: Girish Ramchandra Deshpande v. Central Information Commission & Ors. (2013) 1 SCC 212
The issue before the court: Whether the information pertaining to a public servant in respect of his service career and also the details of his assets and liabilities, movable and immovable properties, can be denied on the ground that the information sought for was qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act.
The observations of the court:“12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act.
13.We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
The court held that: The apex court held that copies of all memos, show cause notices and orders of censure/punishment, assets, income tax returns, details of gifts received etc. by a public servant are personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted and cannot be furnished under RTI Act.
Analysis of the judgment: The judgment has expanded the scope of Section 8(1)(j) far beyond its wording, without any discussion or interpretation of the law whatsoever. The only justification given for denial is that the court agrees with the decision of the CIC. The court mentions “[t]he performance of an employee/officer in an organization is primarily a matter between the employee and the employer”, forgetting that the employer is ‘we, the people’ who gave ourselves the Constitution.
Section 8(1)(j) exempts “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
The Supreme Court has missed realising that the exemption applies to personal information only if it has no relationship to any public activity or is an unwarranted invasion on the privacy of an individual. Further, the court has not even quoted the important proviso requiring that information can be denied only if it would be denied to parliament. Effectively the court has read Section 8(1) (j) as:
information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Forty-seven words out of the 87 words have not been considered and the important proviso has not even been mentioned in the judgment. The clear intent of Section 8(1)(j) is to ensure that if some record is held by the public authority which has no relationship to any public activity it is exempted from disclosure. Even if it is a public record and disclosure would be an unwarranted invasion of the privacy of an individual, this should not be given. The proviso provides an acid test and before refusing information under Section 8(1)(j) a subjective assessment has to be made whether the adjudicator denying the information would deny it to Parliament or State Legislature.Further this judgment clearly appears to be contrary to the following two judgments of the Supreme Court:
The ratio of this judgment was:“28. We may now summarise the broad principles flowing from the above discussion:(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being published in press/media.
(3) There is yet another exception to the Rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”
Public record as defined in the Public Records Act is any record held by any government office. This judgment at point 2 clearly states that for information in public records, the right to privacy can be claimed only in rare cases. This is similar to the proposition in Section 8(1)(j) which does not exempt personal information which has relationship to public activity or interest. It also talks of certain kinds of personal information not being disclosed which has been covered in the Act by exempting disclosure of personal information which would be an unwarranted invasion on the privacy of an individual. At point 3, it categorically emphasizes that for public officials the right to privacy cannot be claimed with respect to their acts and conduct relevant to the discharge of their official duties.
Privacy is to do with matters within a home, a person’s body, sexual preferences etc., as mentioned in the apex court’s earlier decisions in Kharak Singh and R Rajagopal cases. This is in line with Article 19(2) which envisages placing reasonable restrictions affecting “the interests 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 or incitement to an offence.” The only words relating to personal information in Article 19(2) on which reasonable restrictions may be imposed could be ‘decency or morality’. Hence, if it is felt that the information is not the result of any public activity, or disclosing it would be an unwarranted invasion on the privacy of an individual, it must be subjected to the acid test of the proviso: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1)(j). Public servants have been used to answering questions raised in Parliament and the Legislature. It is difficult for them to develop the attitude of answering demands for information from citizens. Hence before denying personal information, the law has given an acid test: Would they would give this information to the elected representatives. If they come to the subjective assessment, that they would provide the information to MPs and MLAs they will have to provide it to citizens, since the MPs and MLAs derive legitimacy from the citizens.
Another perspective is that personal information is to be denied to citizens based on the presumption that disclosure would cause harm to some interest of an individual. If however the information can be given to legislature it means the likely harm is not much of a threat since what is given to legislature will be in public domain. It is worth remembering that the first draft of the Bill which was presented to the Parliament in December 2004 had the provision as Section 8(2) and stated: (2) Information which cannot be denied to Parliament or Legislature of a State, as the case may be, shall not be denied to any person. In the final draft passed by parliament in May 2005, this section was put as a proviso only for section 8 (1) (j). Thus it was a conscious choice of the Parliament to have this as a proviso only for Section 8(1)(j). It is necessary that when information is denied based on the provision of Section 8(1)(j), the person denying the information must give his subjective assessment whether it would be denied to Parliament or State legislature if sought.
The Girish Deshpande judgment is clearly contrary to the earlier judgment, since it accepts the claim of privacy for public servants for matters relating to public activity which are on public records.
When quoting Section 8(1)(j), the court has forgotten to mention the important proviso to this Section which stipulates, “Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” The Supreme Court did not even mention this in its judgment when quoting Section 8(1)(j) and has not considered it. If this proviso was quoted, the court would have had to record that in its opinion the said information would be denied to Parliament. The court forgot its ruling in Civil Appeal Nos.10787-10788 of 2011 (Arising out of SLP(C) at para 36: “It is one of the well-known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.”) The proviso has not been mentioned in the judgment.
The Bihar government, Gujarat government, Municipal Corporation of Mumbai and many others had displayed the assets of all the officials on their website. This decision of the Supreme Court has reversed the transparency march and constricted Right to Information in a manner which cannot be justified by the law or the Constitution. It appears that the court has not taken into account the two earlier judgments mentioned above, and the important proviso to Section 8(1)(j) and hence the decision in Girish Deshpande’s case may be per incuriam.
Besides, there does not appear to any ‘ratio decidendi’ in this judgment, that is to say, the judgment does not spell out any reason for the conclusion it reached. Hence this judgment cannot be a precedent. Unfortunately, this judgment has resulted in most information about public officials being denied including that regarding their work.
Consequently, arbitrary favours by public servants and their corruption have been obscured from the eyes of the public. Cases of public servants with forged certificates, caste and income certificates are all being hidden. The Maharashtra government has issued a circular based on this judgment in which it instructs that all personal information of public servants must be refused because of the Girish Deshpande judgment. It is worth recording that the main ground for the judgment is agreement with the CIC decision. A perusal of the CIC decision also does not display any proper reasoning but is based on an earlier decision by a bench of the Commission. The bench decision which was relied on by the CIC did not even relate to information about a public servant! Besides the said CIC decision in the matter of Milap Choraria v. CBDT did not analyse Section 8(1)(j) fully, and grossly misinterpreted Section 11. Many high court judgments and one by the Supreme Court have declared that ‘personal information’ cannot be given, unless a larger public interest is shown. It has become very popular with PIOs, first appellate authorities and Information Commissioners to deny most information relating to public servants. In my opinion, this judgment is not in consonance with the law and earlier Supreme Court judgments. It has created an exemption not in the law. This results in a constriction of the citizen’s fundamental right and the law’s objective of curbing corruption and wrongdoings is defeated.
It is worth remembering two judgments of the Supreme Court. A five-judge bench has ruled in P Ramachandra Rao v. State of Karnataka case no. appeal (crl.) 535: “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.”
In Rajiv Singh Dalal (Dr.) v. Chaudhari Devilal University, Sirsa, and Another (2008), the Supreme Court, after referring to its earlier decisions, has observed as follows. "The decision of a Court is a precedent, if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a precedent."
The Girish Ramchandra Deshpande appears to have no ratio, nor does it lay down any principle with reasons. It has not considered the R Rajagopal and ADR/PUCL judgments. Hence, it should not BE considered as a precedent. But it has become the law and has been relied on in two latter judgments. This violates the RTI Act and is constricting the citizen’s fundamental right far beyond what even the constitution permits.
Judgment 3: Karnataka Information Commissioner v. PIO (HC)
About the case: A RTI applicant requested the Karnataka High Court for certified copies of some information/documents regarding guidelines and rules pertaining to scrutiny and classification of writ petitions and the procedure followed by the Karnataka High Court in respect of Writ Petition Nos. 26657 of 2004 and 17935 of 2006. The PIO refused the information on the grounds that the applicant should seek the information under the Karnataka High Court rules. When the matter went to the State Information Commission, it disagreed with the PIO and ordered the information to be provided under the RTI Act.
The commission’s order was challenged by the PIO in the Karnataka High Court which named the applicant as a respondent in the case and the Karnataka High Court set aside the commission’s order.
The commission challenged this order before the Supreme Court and the petition was filed by an Information Commissioner. The court took offense to the petition being filed by an Information Commissioner, and said the commission and Commissioner have no locus standi and were wasting public money by challenging the order. In a harsh snub, it imposed a cost of Rs. 1,00,000 on the commission.
Analysis of the judgment: It is worth mentioning that the Supreme Court itself had accepted the Chief Information Commissioner (Manipur) in one judgment as the petitioner. Many high courts name the commission as party in many petitions which challenge the decision of an Information Commission. Hence the Supreme Court taking umbrage at the commission approaching it as a petitioner does not appear to be correct. More importantly, the important matter of Section 22 which gives an overriding effect to the RTI Act, was not addressed at all, and was brushed aside. This harsh snub by the Supreme Court has silenced the Information Commissions into not questioning the Courts, but becoming intellectually subservient to them. If the apex court snubs statutory authorities in such a manner it harms the rule of law, since such authorities suffer loss of respect which they require to enforce the law.
Section 22 states that “the provisions of this RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act”. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non-obstante clause in Section 22 of the RTI Act was to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws and rules adopted by public authorities to deny information. This section simplifies the process of implementing the right to information both for citizens as well as the PIO. Citizens may seek to enforce their fundamental right to information by invoking the provisions of the RTI Act if they desire to. By its order in the case of the Karnataka Commission, the Supreme Court, without addressing the provision of Section 22, sanctified and legitimized denial of information under Right to Information, if any public authority claims there are any other rules for giving information. This ruling has neutralised Section 22 of the RTI Act without any proper reasoning or discussion.
Besides it appears to be contrary to the Supreme Court’s pronouncement at para 18 in the CBSE v. Aditya Bandopadhyay case quoted above where it had held, “Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations.” Surely the rules of the court cannot be treated differently.
Judgment 4: RK Jain v. Union of India JT 2013 (10) SC 430
The issue before the court: The information requested was inspection of adverse confidential remarks against ‘integrity’ of a member of tribunal and follow-up actions taken on issue of integrity. The exemption was claimed on the basis of Section 8(1)(j).
The court held that: Inter alia relying upon the ruling made in Girish Ramchandra Deshpande case, the information is exempted from disclosure under Section 8(1)(j) read with Section 11 of the RTI Act.
Para 13: “…Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in such case after written notice to the third party of the request, the Officer may disclose the information, if the third party agrees to such request or if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.”
Analysis of the judgment: Section 11 (1) is quoted hereunder:
SECTION 11: Third-party information: (1) “Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.” (emphasis supplied by us)
The Supreme Court has given an interpretation to Section 11 which does not appear to be justified by the words of the Act.
Section 11 is not an exemption but only a procedural provision to safeguard the interests of the third party. The court’s statement above implies that if third party objects to the disclosure of information, it can only be given if there is a larger public interest in disclosure.
It may clearly be understood that denial of information in RTI Act can only be done under Section 8 or 9 as clearly mentioned in Section 7(1).
In Section 8, the need to show a larger public interest arises only when an exemption under Section 8(1) applies. The Act states that when a PIO ‘intends to disclose’ information regarding third party which third party has treated as confidential, he shall intimate the third party that he intends to disclose the information. The PIO can only ‘intend to disclose the information’ if he comes to the conclusion that it is not exempt.
The law states that ‘submission of the third party shall be kept in view while taking a decision about disclosure of information’. The PIO can only deny information as per the provisions of the exemptions of Section 8(1) or 9. The RTI Act does not give veto power to the third party. In fact, it provides for an appeal by the third party against PIO’s or first appellate authority’s decision in Section 11(2), (3) and (4) to raise his legitimate objections, and if the PIO is convinced that the information is exempt, he may change his earlier decision to disclose by denying the information as per the provision of Section 8(1) or Section 9.
In case, the PIO does not agree that the information is exempt, he should decide to disclose the information and reject the third party’s objection. In such an event, the third party concerned can prefer an appeal against the decision of the PIO, as per the provisions of Section 11(2) to 11(4). These express provisions 11(2) to 11(4) make it clear that the third party is not rendered remediless, in cases where PIO disagrees with the third party’s objection in disclosure of information. Section 7(1) of the RTI Act clearly states that denial of information can only be based on Section 8 or 9. Section 3 states that ‘Subject to the provisions of this Act, all citizens shall have the Right to Information.’ Thus, the denial of any information can only be on the basis of the RTI Act, where only Section 8 and 9 detail the information which can be denied. The court has raised the procedure of Section 11 to that of an exemption of Section 8(1). This judgment is an erroneous reading of Section 11 information was denied, partly depending on Girish Deshpande judgment where there was no ratio decidendi, and a flawed interpretation of Section 11. It should have noticed that the Girish Deshpande judgment was a dismissal of an SLP and, therefore, had no reasons, which is alright in the case of dismissal of an SLP. Hence it could not be taken as laying down the law. It also does not address the earlier R Rajagopal judgment.
Judgment No. 5 – Canara Bank v. CS Shyam and Ors. Civil appeal No. 22 of 2009
Issue before the court: Information regarding transfer and posting of the entire clerical staff from 01.01.2002 to 31.07.2006 in all the branches of Canara Bank. This information was in relation to the personal details of individual employees such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the branch where he/she is posted, the authorities who issued the transfer orders etc.
The observations of the court:
“12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner &Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, it may not be necessary to re-examine any legal
issue urged in this appeal.
13) In Girish Ramchandra Deshpande's case (supra), the petitioner therein (Girish) had sought some personal information of one employee working in Sub Regional Office (provident fund) Akola. All the authorities, exercising their respective powers under the Act, declined the prayer for furnishing the information sought by the petitioner. The High Court in writ petition filed by the petitioner upheld the orders. Aggrieved by all the order, he filed special leave to appeal in this Court. Their Lordships dismissed the appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act.”
The court held that: The Supreme Court disagreed with the order of the Central Information Commission and the Kerala High Court. It did not give any reasons but effectively ruled that in the light of the Girish Deshpande judgment it ruled against information being given. It has truncated Section 8(1)(j) and ruled that all personal information of public servants, including details of transfers, is covered by Section 8(1)(j)! This is a truncated reading of the Section 8(1)(j) and cannot be justified.
Analysis: No reasoning has been given and the Girish Deshpande judgment in an SLP has been wrongly assumed to lay down the law. Without any reasoned judgment the law has been amended and the citizen’s fundamental right to information has been curtailed.
In the CBSE case, the court has made extremely strong comments almost condemning the use of RTI by citizens. Citizens expect the Supreme Court to be the sentinel on the qui vive defending and expanding their fundamental rights.
Some of the statements quoted above seem to be at great variance with what the Supreme Court said in SP Gupta (AIR 1982 SC 149): “…The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest…”
It is difficult to believe that the Supreme Court which earlier held that denial of information should be an ‘exception justified only where the strictest requirements of public interest demands’ (SP Gupta v. Union of India (which are now covered under Section 8)) is now justifying denial of information unless a public interest is shown! Whereas the law clearly states that a citizen needs to give no reasons for seeking information, the apex court’s judgments suggest that there should be a demonstrable reason for obtaining information.
It is also worth noting that it appears that with the Girish Deshpande judgment, Section 8(1)(j) has been interpreted in a manner not in consonance with its words. Though it has no ratio or reasoning, it is becoming the standard for rejecting information.
Citizen empowerment and democratic awareness is growing rapidly in India. One of the important tools in this journey has been the Right to Information. The government has made three attempts to make amendments to the Act and had to retract in the face of adverse public opinion. This right now faces serious danger from two sources:
There are many instances where PIOs are rejecting requests for information on a ground that some person’s name is in it! It appears to me that the law which ranks amongst the top five transparency laws in the world is being weakened by wrong interpretation. There should be wide discussions of these judgments so that this important right does not get constricted by gross misinterpretation. At stake is the nation’s democracy. The right to information is as important as the freedom to speech and expression. The latter has grown since independence, whereas the former is facing a serious threat of amendment and curtailment without the sanction of law.
Judgment 1: CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497
Judgment 2: Girish Ramchandra Deshpande v. Central Information Commission &Ors. (2013) 1 SCC 212
Judgment 3: Karnataka Information Commissioner v. PIO (HC) Unreported Judgment
Judgment 5: Canara Bank v. CS Shyam and Ors. Civil Appeal No. 22 of 2009
Mr. Shailesh Gandhi is a Former Central Information Commissioner and Mr Sandeep Jalan is an advocate.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]