By Shailesh Gandhi:
From 1975 to 2005, the Supreme Court of India consistently held that the Right to Information (RTI) is a fundamental right of citizens. However, certain decisions and pronouncements of the courts in the last four years could weaken this powerful fundamental right.
These should be discussed by RTI users and the legal fraternity.
The law provides for no appeals against the decisions of the Commission. However, these decisions are being challenged in high courts through writ petitions by many public authorities to deny information to citizens. In most of these cases, a stay is obtained ex parte. At times, commissions have even been stopped from investigating matters before them. These cases die down as most of the applicants are unable to respond effectively in courts for lack of resources.
There is a need for the court to examine prima facie whether the grounds for a stay fall within the writ jurisdiction of a court and whether any irreparable harm would befall the petitioner if a stay is not given, since these continue for many years. The Supreme Court has stated many times that an essential requirement for any judicial, quasi-judicial or administrative order is that reasons must be provided. There are a number of high court orders staying the disclosure of information as per the orders of the information commissions where no reasons are given.
The law has strong provisions to ensure the disclosure of most information. Furthermore, Section 22 lays down that its provisions supersede all previous laws. It further stipulates that the provision of information can only be denied based on the provisions of Section 8 or 9. Additionally, the onus to justify the denial of information is on the public information officer (PIO) in any appeal proceedings.
The denial of information should be rare. An analysis of the judgements of the Supreme Court on the RTI Act shows that out of sixteen judgements, the disclosure of information was ordered only in the judgement mentioned below at number 1. I am giving my comments on three judgements below:
1. In Appeal No. 6454 of 2011 the court held, “Some High Courts have held that Section 8 of RTI Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore Section 8 should be construed strictly, literally and narrowly. This may not be the correct approach.” I feel the earlier approach where exemptions are interpreted narrowly, since these abridge a fundamental right of citizens. Another strong statement in the said judgment is : “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.”
A study by RAAG has shown that about 50% of the RTI applications are made since the departments do not discharge their duty under Section 4 of the RTI Act which mandates the disclosure of most of the information suo moto as per the law. About 25% of the applications seek information about citizens trying to obtain their delayed ration cards, the progress of their application for various services, or for complaints against illegal activities to which the government departments should have replied. There is no condemnation of the officers who, often for not receiving bribes, do not do their duty, but the citizen using his fundamental right is strongly admonished without any evidence or basis.
2. In the Girish Ramchandra Deshpande judgement given in October 2012, the court held that copies of all memos, showcause notices and orders of censure/punishment, assets, income returns, details of gifts received etc. by a public servant are personal information exempted from disclosure as per Section 8(1) (j) of the RTI Act. It further stated that these are matters between the employee and the employer, without realising that the employer is the citizen, the master of the democracy, who provides legitimacy to the government.
This judgement appears to have neither legal reasoning nor a legal principle, and is based on concurring with the denial of information by the information commission. The ratio of the R.Rajagopal judgement given by the Supreme Court in 1994 clearly lays down that no claim to privacy can be claimed for personal information on public records by public servants. It appears this judgement was not presented to the court.
In Section 8 (1) (j), there is a proviso that the information, which cannot be denied to the Parliament or a state legislature, shall not be denied to any person. There is no mention of this proviso in the judgement. Neither was there any word on the court’s satisfaction that this information would not be provided to the Parliament or the state legislatures.
3. A Madras high court judgement on 17 September, 2014, has caused considerable confusion since it said that citizens must give reasons for seeking information. This was in direct violation of Section 6 (2) of the Act which states, “An applicant making request for information shall not be required to give any reason for requesting the information.” The court realised this mistake in a week and withdrew this observation. This judgement not only violated the RTI Act, it was also in violation of Article 19 (1) (a) of the Constitution.
I hope the courts will take an active part in expanding the reach and the scope of RTI. If they interpret the RTI Act, giving more importance to exemptions and widening their scope, this great law may become the ‘Right to Denial of Information’. This would be a sad regression for democracy.
Shailesh Gandhi is an RTI activist and Former Central Information Commissioner.
A version of this article was previously published here.