Gandhiji had said: ‘Real Swaraj will come,
not by the acquisition of authority by a few, but by the acquisition of the
capacity by all to resist authority when it is abused. In other words, Swaraj
is to be attained by educating the masses to a sense of their capacity to
regulate and control authority.’ (Young India, 29-1-1925, p. 41.)
This Swaraj eluded India all these years
despite a very well drafted Constitution and a reasonably fair system of
elections. The average Indian citizen owns the government but did not get the
respect due to him. His simple demand for information of how and why the
government which governed in his name took actions was denied to him despite it
being recognised as a fundamental right under Article 19(1)(a) of the
Constitution. This was formally codified in the Right to Information Act, 2005
which is one of the progressive transparency laws in the world.
The biggest gain has been in empowering
individual citizens to translate the promise of ‘Democracy of the people, by
the people, for the people’ into a living reality. The law as framed by
Parliament has outstandingly codified this fundamental right of citizens. When
framing the law cognisance had been taken of various landmark decisions of the
Supreme Court on the subject. One of the objectives of this law mentioned in its
preamble is to contain corruption. It is a simple, easy to understand statute,
which common people can understand. However, there are some decisions of
information commissions and courts which are constricting this fundamental
right of citizens which is sanctioned neither by the Constitution nor by the
law. This article is an effort to highlight one such instance, the Girish
Ramchandra Deshpande judgement, which is resulting in an effective
illegal amendment of the law without Parliamentary sanction. The denial of
information has been justified on the basis of section 8(1)(j) which allows
denial of information, when:
(j) 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 RTI Act mandates that all citizens have
the right to information subject to the provisions of the Act. Section 7(1)
clearly states that information can only be refused for the reasons specified
in sections 8 and 9. Section 22 of the Act ensures that no prior laws or rules
can be used to deny information. I would also draw attention to the fact that
the reasonable restrictions which may be placed on the freedom of expression
under Article 19(1)(a) have been mentioned in Article 19(2) of the Constitution
as those 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.’
It is worth remembering two judgements of
the Supreme Court. A five-judge bench has ruled in P. Ramachandra Rao vs.
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.) vs. 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 Supreme Court’s judgement in the
Girish Ramchandra Deshpande1 case is being treated as the law
throughout the country and I will argue that this has the effect of amending
section 8(1)(j) without legitimacy. This article
will seek to show that the impugned judgement does not lay down the law and is
being wrongly used to constrict the citizen’s fundamental right to information.
Girish Ramchandra Deshpande had sought
copies of memos, show cause notices and censure / punishment awarded to a
public servant. He had also demanded details of assets and gifts received by
him. Since the Central Information Commission gave an adverse ruling he finally
went to the Supreme Court. The main part of the judgement states:
‘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 organisation 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 or 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.
__________________________________
1 Special Leave Petition (Civil) No. 27734 of
2012; Girish Ramchandra Deshpande Versus Cen. Information Commr. & Ors;
K.S. Radhakrishnan & Dipak Misra; 3rd October, 2012; (2013) 1
SCC 212
14. The details disclosed by a person in
his income tax returns are “personal information” which stand exempted from
disclosure under clause (j) of section 8(1) of the RTI Act, unless involves a
larger public interest and the Central Public Information Officer or the State
Public Information Officer or the Appellate Authority is satisfied that the
larger public interest justifies the disclosure of such information.’
A careful reading of the RTI Act shows that
personal information held by a public authority may be denied under section
8(1)(j) under the following two circumstances:
(i) Where the information requested is
personal information and the nature of the information requested is such that
it has apparently no relationship to any public activity or interest; or
(ii) Where the
information requested is personal information and the disclosure of the said
information would cause unwarranted invasion of the privacy of the individual.
If the information is personal
information, it must be seen whether the information came to the public
authority as a consequence of a public activity.
Generally, most of the information in public records arises from a public
activity. Applying for a job or ration card are examples of public activity.
However, there may be some personal information which may be with public
authorities which is not a consequence of a public activity, e.g., medical
records or transactions with a public sector bank. Similarly, a public
authority may come into possession of some information during a raid or seizure
which may have no relationship to any public activity.
Even if the information has arisen by a
public activity it could still be exempt if disclosing it would be an
unwarranted invasion on the privacy of an individual. 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 mentions placing restrictions
on Article 19(1)(a) in the interest of ‘decency or morality’. If, however, 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 deny 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 the legislature it means the
likely harm is not very serious, since what is given to the legislature will be
in public domain. It is worth remembering that the first draft of the bill
which had been 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 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
that he would deny it to Parliament or State Legislature if sought.
It is worth noting that in the Privacy Bill,
2014 it was proposed that sensitive personal data should be defined as personal
data relating to:
‘(a) physical and mental health, including
medical history, (b) biometric, bodily or genetic information, (c) criminal
convictions, (d) password, (e) banking credit and financial data, (f) narco
analysis or polygraph test data, (g) sexual orientation. Provided that any
information that is freely available or accessible in public domain or to be
furnished under the Right to Information Act, 2005 or any other law for time being
in force shall not be regarded as sensitive personal data for the purposes of
this Act’.
Only if a reasoned conclusion is reached
that the information has no relationship to any public activity or that
disclosure would be an unwarranted invasion on the privacy of an individual, a
subjective assessment has to be made whether it would be given to Parliament or
State Legislature. If it is felt that it would not be given, then an assessment
has to be made under section 8(2) whether there is a larger public interest in
disclosure than the harm to the protected interest. If no exemption applies,
there is no requirement of showing a larger public interest.
In the impugned judgement, an RTI request
for copies of all memos, show cause notices, orders of censure / punishment,
assets, income tax returns, details of gifts received, etc. of a public servant
was denied. The Court has ruled without giving any legal arguments merely by
saying that this is personal information as defined in clause (j) of section
8(1) of the RTI Act and hence exempted. It must be noted that the law does not
exempt all personal information. The only reason ascribed in this decision is
that the Court agrees with the Central Information Commission’s decision. Such
a decision does not form a precedent which must be followed. It cannot be
justified by Article 19(2) of the Constitution or by the complete provision of
section 8(1)(j). As per the RTI Act denial of information can only be on the
basis of the exemptions in the law. The Court has denied information by reading
section 8(1)(j) as exempting:
‘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.”
There are no words in the judgement, or the
CIC decision which it has accepted, discussing whether the disclosure has any
relationship to a public activity, or if disclosure would be an unwarranted
invasion on the privacy. The words which have been struck above have not been
considered at all and information was denied merely on the basis that it was
personal information. Worse still, the proviso ‘Provided that the
information…..’ (underlined above) has not even been mentioned and while
quoting section 8(1)(j) the proviso has been missed. Effectively, only 40 of
the 87 words in this section were considered.
The Supreme Court judgement in the ADR
/ PUCL Civil Appeal 7178 of 2001 has laid down that
citizens have a right to know about the assets of those who want to be public
servants (stand for elections). It should be obvious that if citizens have a
right to know about the assets of those who want to become public servants,
their right to get information about those who are public servants
cannot be lesser. This would be tantamount to arguing that a prospective groom
must declare certain matters to his wife-to-be, but after marriage the same
information need not be disclosed!
The Girish Ramchandra Deshpande
judgement should not be treated as a precedent for the following reasons:
(i) It is devoid of any detailed reasoning and
does not lay down a ratio;
(ii) It does not analyse whether a public servant’s
work and assets is information which is a public activity or not. The judgement
when stating that certain matters are between the employee and the employer
misses the fact that the employer is the ‘people of India’;
(iii) It has completely forgotten the proviso to
section 8(1)(j) which requires subjecting a proposed denial to this acid test;
(iv) It has not considered the clear ratio of the Rajagopal
judgement or the ADR / PUCL judgement
(v) This became the most commonly used exemption.
In R.K. Jain vs. Union of India JT 2013 (10) SC 430 this was
reiterated when denying information about the comments on the integrity of an
official by the Chairman of CESTAT. This referred to the Girish Deshpande
judgement enthusiastically and held it as a precedent. Subsequently, in Canara
Bank vs. C.S. Shyam, civil appeal No. 22 of 2009 the
Supreme Court refused names and details of officials transferred holding this
as personal information and quoting the Girish Deshpande judgement.
Effectively, the law has been amended and most information which relates to a
natural person, and can be called personal, is being denied. This conceals
corruption, protects people who have submitted false bills or certificates. It
is also helpful to ensure that fictitious beneficiaries of various schemes
cannot be caught. The law’s objective of curbing corruption is being defeated;
(vi) Across the
country, information about MLA funds expenditure, officers’ leave, caste
certificates, file notings, educational degrees, beneficiaries of subsidies and
much more are being denied. Many PIOs are denying information which may have
the name of a person claiming it is personal information.
A major provision of the RTI Act has been
amended by a judicial pronouncement which appears to be flawed. It is also
violating Article 19(2) of the Constitution. A major tool of citizens to bring
the shenanigans, arbitrary and corrupt acts of public servants has been
affected adversely without a proper reasoning. Commissioners and the legal
profession must discuss this and it must be recognised that Girish
Ramchandra Deshpande does not lay down the law on section
8(1)(j) of the RTI Act and is contrary to the ratio of the R. Rajagopal
and ADR judgements. However, the Girish Ramchandra
Deshpande judgement has been treated as a precedent in two subsequent
Supreme Court judgements and is being used to deny most information which can
be related to a natural person. This has become the most commonly used
exemption.
PIOs and
Information Commissioners are using this widely to deny all information which
relates to any person and the Right To Information Act is being subverted and
illegally converted into Right to Denial of Information. Section 8(1)(j) is
being converted into an omnibus exemption which can be used to deny most
information. This will
be a very unfortunate regression for citizens’ fundamental right and would
greatly curb their power to get accountability and curb corruption.
The nation must
discuss this illegal and unconstitutional curtailment of our fundamental right
and create a strong public opinion for its restoration.
