Will the Right to Information Act Become the Right to Denial of Information Act?

One of the best transparency laws promulgated by Parliament is now threatened by judicial decisions and interpretations which are not in consonance with the law and would weaken it. If more importance is given to exemptions and widening the Act’s scope, it would be a sad regression for democracy, writes former Central Information Commissioner SHAILESH GANDHI.

The Supreme Court of India has consistently held from 1975 to 2005 that the Right to Information (RTI) is a fundamental right of citizens. In 2005, Parliament enacted one of the best transparency laws in the world. However, certain decisions and pronouncements of the courts in the last decade could weaken this powerful fundamental right. These should be discussed by RTI users and legal fraternity.

Challenging Information Commission Decisions

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 been stopped from even investigating matters before them. These cases die down as most of the applicants are unable to pursue them effectively in courts for lack of resources.

There is a need for the Court to examine prima facie whether the grounds fall in the writ jurisdiction of a court or any irreparable harm would befall the public authority if a stay is not given.

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.

Stays given by High Court to public authorities preventing disclosure of information must necessarily give reasons for it and how the petition falls in the writ jurisdiction of the court.

In a democracy, citizens are the rulers of the government and are thus, owners of all the information on public records. The law has strong provisions to ensure disclosure of most information and lays down in Section 22 of the RTI Act that its provisions supersede all earlier laws. It stipulates that denial of information can only be based on the provisions of Section 8 or 9. Additionally, the onus to justify denial of information is on the Public Information Officer in any appeal proceedings. Denial of information should be rare.

Supreme Court Judgments

An analysis of judgements of the Supreme Court regarding the RTI Act shows that very few judgments have ordered disclosure of information. A majority of them deny information and expand the scope of the exemptions. Let us take three apex court judgments as an example:

In a democracy, citizens are the rulers of the government and are thus, owners of all the information on public records. The law has strong provisions to ensure disclosure of most information and lays down in Section 22 of the RTI Act that its provisions supersede all earlier laws. 

*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 that in the earlier approach, exemptions were interpreted narrowly since these abridge a fundamental right of citizens.

Another strong statement in the 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.”

Such a severe castigation of citizens exercising a fundamental right was made without any relationship to the case at hand and without any evidence. It would be understandable if it was directed at terrorists.

A study by RAAG Foundation, an NGO, has shown that about 50% of the RTI applications are made as the departments do not discharge their duty under Section 4 of the RTI Act which mandates disclosure of most of the information suo moto as per law. Another 25% seek information about the delay in ration cards, the progress of their application for various services, or complaints of illegal activities for which the government departments should have replied. There is no condemnation of the officers who do not do their duty without extracting bribes. This was an unfortunate admonishing of the citizen without any evidence or basis.

* In Girish Ramchandra Deshpande Vs. Central Information Commission & Ors. (2013), the Court held that copies of all memos, show cause 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 states that these are matters between the employee and the employer, without realising that the employer is a citizen, the master of democracy who provides legitimacy to the government. This judgment appears to have no legal reasoning or principle and is based only on concurring with the denial of information by the Information Commission.

An analysis of judgements of the Supreme Court regarding the RTI Act shows that very few judgments have ordered disclosure of information. A majority of them deny information and expand the scope of the exemptions. 

The R.Rajagopal  judgment of the Supreme Court in 1994 clearly lays down that no claim to privacy can be upheld for personal information on public records by public servants. It appears this judgment was not considered by 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 judgment and no word that the Court was satisfied that this information would not be provided to Parliament or the state legislature.

*The Supreme Court delivered a judgment in Civil Appeal nos.1966-1967 of 2020 on March 4, 2020, which negates an important provision of the RTI Act. To ensure that other laws and constraints could not be used to deny information to the rulers of democracy, Parliament provided a non-obstante clause in Section 22 which states: “The provisions of this 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 this Act.”

 Deviating from the RTI Act

The Supreme Court judgment ruled that court rules which deviate considerably from the RTI Act cannot be held to be inconsistent with the law so long as they have a provision for providing information! It refused to consider the fact that it would result in imposing conditions not sanctioned by the RTI Act. This has the effect of actually dismantling Section 22.

In Appeal No. 6454 of 2011, the Supreme Court said: “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.”

Courts must take an active part in expanding the reach and scope of RTI. They must be conscious of the fact that freedom of speech and publishing information all arise from Article 19 (1)(a) and must be treated at par. The first two have been expanded by courts, whereas in 15 years, the right to information has been constricted by judicial pronouncements.

One of the best transparency laws was promulgated by Parliament but is now threatened by judicial interpretations which are not in consonance with the law. If they interpret the RTI Act giving more importance to exemptions and widening its scope, this great law may become “Right to Denial of Information”. This would be a sad regression for democracy.

Civil society and the legal profession have also not woken up to the fact that if the Right to Information is constricted, freedom of speech and publishing will also be subjected to the same constraints.

The article was originally published in The Leaflet.

(Shailesh Gandhi is a former Central Information Commissioner and an RTI  activist. The views expressed are personal.)