RTI Act Dilutes Governments's Claim Of Privilege, Holds Justice K M Joseph In Rafale Review

Justice K M Joseph's concurring judgment in the Rafale review judgment, which rejected Centre's objections against relying on the documents presented by the petitioners, underscores that after the enactment of Right To Information Act, public have more right to demand disclosure from government even in respect of matters covered by national security and foreign relations."The RTI Act through Section 8(2) has conferred upon the citizens a priceless right by clothing them with the right to demand information even in respect of such matters as security of the country and matters relating to relation with foreign state", Justice Joseph said in the judgment. However, it was clarified that the information cannot be obtained at the mere asking and that "the applicant must establish that withholding of such information produces greater harm than disclosing it".The Attorney General's arguments based on protection under Official Secrets Act 1923(OSA) and privilege under Section 123 of the Indian Evidence Act failed because of the application of RTI Act, particularly Section 8(2), 23 and 24 of it.The Court noted that Section 8(2) said that none of the exemptions under Section 8(1) and the Official Secrets Act will come in way of disclosure of documents if there is overriding public interest."Section 8(2) of the Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub-section(1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows, the harm to the protected interests"."What interestingly Section 8(2) recognises is that there cannot be absolutism even in the matter of certain values which were formerly considered to provide unquestionable foundations for the power to withhold information. Most significantly, Parliament has appreciated that it may be necessary to pit one interest against another and to compare the relative harm and then decide either to disclose or to decline information".Also, Section 22 gives an explicit overriding effect to RTI Act over OSA. Further, the proviso to Section 24 stated that even in respect of intelligence and security organizations, claim of non-disclosure will be available if the information pertains to allegations of corruption and human rights violations."The first proviso to Section 24 indeed marks a paradigm shift, in the perspective of the body polity through its elected representatives that corruption and human rights violations are completely incompatible and hence anathema to the very basic principles of democracy, the rule of law and constitutional morality. The proviso declares that even though information available with intelligence and security organisations are generally outside the purview of the open disclosure regime contemplated under the Act, if the information pertains to allegations of corruption or human rights violations such information is very much available to be sought for under the Act".Tracing the legislative wisdom behind this, Justice Joseph said;"The economic development of a country is closely interconnected with the attainment of highest levels of probity in public life. In some of the poorest countries in the world, poverty is rightfully intricately associated with corruption. In fact, human rights violations are very often the offsprings of corruption. However, the law giver has indeed dealt with corruption and human rights separately".Section 24 of the Act also highlights the importance attached to the unrelenting crusade against corruption and violation of human rights The Court cannot be wholly unaffected by the new regime introduced by Parliament under the RTI Act on the question regarding a claim for privilege,observed the judgment.So, if the RTI Act can compel the disclosure of highly privileged information on the basis of overriding public interest and allegations of corruption , can the Court be prevented from examining the materials? "Could it be said that what an officer under the RTI Act can permit, cannot be allowed by a court and that too superior courts under Section 123 of the Evidence Act", wondered Justice Joseph.When claim of privilege shields criminal prosecution.The judgment also analysed the impact of a claim of privilege on a citizen's right to expose wrong doings on part of government functionaries.In this regard, Justice Joseph distilled the law on the claim of privilege in the following manner, referring to judgments in Raj Narain and S P Gupta cases.Claim of privilege can apply to a class of documents, irrespective of its contentsIt is based on principles of 'candour' and 'frankness' to enable officers to express their views in internal communications without fearClaim of privilege is not intended to protect minsters and government functionaries from criticism, however unreasonable, ill-informed or intemperate they may be. Instead, the objective is to ensure smooth functioning of...

RTI Act Dilutes Governments's Claim Of Privilege, Holds Justice K M Joseph In Rafale Review

Manu Sebastian

Justice Joseph hinted that a claim of privilege may come in way of a citizen's legitimate efforts to gather evidence in a prosecution against government officials for wrong doing.

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