Supreme Court Ruling Comes in Handy to Constrict the Fundamental Right to Information 

An apex court judgement is being taken as a precedent to deny information conveniently categorised as personal. This conceals corruption and protects people who have submitted false bills or certificates. It also ensures that fictitious beneficiaries of various schemes cannot be caught. The RTI Act's objective of curbing corruption is thus being defeated, argues SHAILESH GANDHI, former Central Information Commissioner

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The use of the Right to Information (RTI) Act and its propagation is gathering pace because of the desire among citizens for accountable governance. The Act has by and large empowered individual citizens to translate the promise of 'democracy of the people, by the people, for the people' into a reality.

The law framed by Parliament has codified this fundamental right of citizens effectively.  When framing it cognisance was taken of various landmark decisions of the Supreme Court on this subject. It is a simple, easy to understand statute. One of its objectives, mentioned in its preamble, is to contain corruption.

Amendment sans Parliament's Sanction

However, there are some decisions of Information Commissions and courts that are constricting this right of citizens which is neither sanctioned by the Constitution or the law.

A case in point is the Supreme Court's judgement in Girish Ramchandra Deshpande v Central Information Commissioner & Ors 2012. It has resulted in an effective amendment of the law without Parliamentary sanction. The denial of information, in this case, has been justified on basis of Section 8 (1) (j) of the RTI Act which allows denial for:

"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 Section 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) in the Constitution as 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."

Judgments and Setting Precedents

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.) 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 verdict in the Girish Ramchandra Deshpande judgment 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. I will seek to show that the impugned judgment 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 apex court judgment states:

• The petitioner herein sought 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 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 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 qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act.
• 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 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."

Personal Information and Privacy

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:

1. 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
2. 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 public activity. Generally, most of the information in public records arises from public activity. Applying for a job, or ration card are examples of public activity. However, there may be some personal information that may be with public authorities which is not a consequence of public activity, eg. medical records when taking treatment from a government hospital, or transactions with a public sector bank. Similarly, a public authority may come into possession of some information during a raid or seizure or as a consequence of phone tapping, which may have no relationship to any public activity.

Even if the information has not arisen by a public activity, it could still be exempt if disclosing it would be an unwarranted invasion of 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 permits placing reasonable 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 of 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 that 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:  If they come to the subjective assessment, that they would not provide the information to MPs and MLAs they can deny it to the citizen. If disclosure of personal information is likely to violate 'decency or morality' it should not be provided to Parliament and hence can be denied to citizens as well.

Another perspective is that personal information is to be denied to citizens based on the presumption that disclosure would cause serious 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 legislature will be in the public domain. The first draft of the RTI Bill which had been presented to Parliament in December 2004 had the proviso 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 Public Information Officer (PIO)/ First Appellate Authority (FAA)/Commissioner or Judge denying the information must give his subjective assessment that he would deny the information 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.

The Supreme Court 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 is hence exempted. 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 that 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 basis of the exemptions in the law. The court has denied information by reading Section 8 (1) (j) as exempting on (please take particular note of the words struck out below):

"information which relates to personal information 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."

This is not in consonance with the RTI Act, ratio decidendi of earlier Supreme Court judgment in the R. Rajagopal case, or Article 19 (2) of the Constitution. There are no words in the judgment, — or the CIC decision which it has accepted,– discussing whether the disclosure has any relationship to public activity, or if disclosure would be an unwarranted invasion of privacy. The words which have been struck out in the above quote 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 earlier 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!

Not a precedent

The Girish Ramchandra Deshpande judgment should not be treated as a precedent which must be followed for the following reasons:

1. It is devoid of any detailed reasoning and does not lay down a ratio.
2. It does not analyse whether a record of the public servant's work and assets is information which is a public activity or not. RTI Act only deals with the public records with the government. The judgment when stating that certain matters are between the employee and the employer misses the fact that the employer of a public servant is the 'people of India'.
3. It has completely forgotten the proviso to Section 8 (1) (j) which requires subjecting a proposed denial to the acid test.
4. It has not considered the clear ratio of the Rajagopal judgment or the ADR/PUCL judgment and hence is per incuriam. It also violates Article 19 (2) of the Constitution. The Rajagopal judgment clearly lays down that except for what violates decency or morality, the claim for privacy cannot be sustained for public records.
5. This has become 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 Customs Excise and Service Tax Appellate Tribunal CESTAT). The verdict referred to the Girish Deshpande judgment enthusiastically and held it as a precedent.  Subsequently in Canara Bank Versus CS 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 judgment.  In Chief Public Information Officer (CPIO), Supreme Court vs. Subhash Chandra Agrawal civil appeal no. 10004, again the Girish Deshpande judgment has been mentioned approvingly.  Effectively the law has been amended and most information which can be called personal is being denied. This conceals corruption, protects people who have submitted false bills or certificates. It also ensures that fictitious beneficiaries of various schemes cannot be caught. The law's objective of curbing corruption is being defeated.
6. Across the country information about MLA funds expenditure, officer's leave, caste certificates, file notings, educational degrees, beneficiaries of subsidies and much more are being denied. Many PIOs are denying information that may have the name of a person claiming it is personal information. This has become a convenient tool to deny 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. Commissioners must discuss this and it must be recognized 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. RajagopaI and ADR judgments. However, the Girish Ramchandra Deshpande judgment has been treated as a precedent in three subsequent Supreme Court judgments and is being used to deny information which the PIO does not wish to part with.  Effectively the law has been amended and most information which can be called personal is being denied.

The RTI Act is being subverted and illegally converted into a 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 citizen's fundamental rights and would greatly curb its power to get accountability and curb corruption. There is a great need for lawyers, judges and RTI practitioners to discuss this denial of fundamental rights which appears to be a constriction of citizen's fundamental right under Article 19 (1)(a).

(Shailesh Gandhi is a former Central Information Commissioner. The views are personal.)