Shailesh Gandhi

| @ | October 7,2019

[dropcap]T[/dropcap]HERE are numerous Supreme Court judgments starting from 1975 which have recognized that Right to Information is a fundamental right of citizens under Article 19 (1)(a).These judgments and the RTI movement by citizens culminated in a codification of this right in the RTI Act of 2005.

The only permissible restrictions to the rights under Article 19 (1)(a) have been provided in Article 19 (2) which permits reasonable restrictions in 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.”  At this stage it is worth remembering that the right to free speech, publishing and information also arise from Article 19 (1)(a). Hence the reasonable restrictions for all three are limited by Article 19 (2) and should be the same. The RTI Act provided for exemption to disclosure of such information in Section 8, and specifically mandated that denial of information could be only permitted by the exemptions of Section 8 and 9 (infringement of copyright).

The RTI Act has become a very useful tool empowering citizens and is spreading widely across the urban and rural landscape. This has the potential of making India a truly participatory democracy in which citizens can monitor the government and get accountability from it. This has raised a hope for better governance and a curb on corruption. However, in the last few years an increased awareness of privacy has created some confusion which needs to be understood and resolved so that the fundamental rights of citizens are strengthened.

Right to Information primarily gives citizens an access to records in the government. The government has no right to intrude on the privacy of individuals and therefore information about them which it routinely collects should generally not be of a nature which intrudes on the privacy of an individual. This position was reflected in the R. Rajagopal judgment  of the Supreme Court which ruled that the claim for privacy could not be sustained for public records unless it violates decency or morality. This was in line with the permissible restrictions under Article 19 (2). It also gave some areas which may be considered as the domains of privacy. Section 8 (1)(j) of the RTI Act which deals with exempting information on this count is also in line with this judgment and the constitution. It exempts from disclosure:

“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 PIO 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.”

Parliament was aware that it may be difficult for most PIOs and other adjudicators including judges to make a decision on what constitutes public activity and what should be considered unwarranted invasion of the privacy of an individual. Therefore, it gave an acid test to them with the proviso:   Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

It clearly means that whoever denies information based on this section should make a subjective assessment whether he would deny the information to Parliament or State Legislature. Government officials were used to providing information to legislature but they should not provide any information which violates the privacy of an individual.

In 2012, the Supreme Court gave a ruling in the Girish Ramachandra Deshpande case dealing with denial of information, stating that all personal information was exempt under Section 8 (1)(j). It did not take cognizance of the complete words of the section, or the proviso, nor to Article 19 (2) or the R. Rajagopal judgment. Effectively it implied all personal information could be treated as information relating to privacy. Though it has no reasoning nor a ratioit has been treated as a precedent laying down the law in two subsequent judgment of the Apex Court.

In 2017 the Puttaswami judgement of the constitution bench ruled that privacy is a fundamental right. However, it did not give the contours of what constitutes privacy. It stated that this would be decided on a case to case basis. The consequence is that a lot of information is being denied on the grounds that it is information relating to a person. There are numerous instances of corruption being exposed by getting lists of beneficiaries. This is now being denied. A number of fake degrees, experience certificates, caste certificates, corrupt officials being favoured, et al which were slowly curbing wrong actions are being denied. Even details of the expenditure from MLA funds are being denied on the grounds that it relates to a person!

There is a need to discuss this aspect and arrive at legal certainty on the interaction of these two rights. In the absence of legal certainty, it will only create confusion and lead to unnecessary litigation. The apparent contradiction in two fundamental rights must be made resolved so that citizens and public servants across the nation are able to work in a fair manner in consonance with the law and the constitution.

(The author is a former Central Information Commissioner. The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of The Leaflet.)

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