BTvIn:
National: Tuesday, 05 January 2016.
The Supreme
Court in a recent decision in the Case of RBI versus Jayantilal N Mistry has
rejected the attempts of the Central Bank not to disclose information under the
RTI Act about bank defaulters, fraudsters, illegal banking practices etc. We will come to the details of the decision
in a while. However, it is important to discuss the philosophical and political
contours of this issue.
The context
in which Foucoult uses the concept of “Power” and “Knowledge” is more complex
than the context in which “Power” and “Information” have been used in this
article. However, Foucoult’s argument that the formation of knowledge and the
increase of power regularly reinforce one another in a circular process can
still guide us in understanding some of the important political, business and other
conflicts in the near future. These conflicts will be fought with, among other
things, the tools of control, use and dissemination of information. When I use
important political conflicts, I do not mean only the noora kushti (fake
wrangling) such as between the Congress and the BJP. For me, important
political, business conflicts also include the assertion of political
sovereignty or financial agency by the last human.
Historically,
the monarch, the ruler was the sovereign. During the course of the last few
hundred years, the sovereignty (at least political sovereignty) has shifted to
the common man in liberal democracies like ours. However, like many other
things for us, this has happened more in theory and less in practice.
Sarkar is
still in many ways Mai Baap Sarkar for us. The maze of sarkari files have been
like a chkravyuh for the common man. It is difficult to enter that labyrinth.
It is even more difficult to come out of it unharmed. The knowledge of this
chkravyuh and the ability to deal with it may decide who has the power and who
does not.
Prior to
2005, some judgments of the Supreme Court had held that Freedom of Speech under
Article 19 of the Constitution included the Right to Information. However, for
ordinary citizens the said declaration of law largely remained on paper till
the enactment of the Right to Information Act in 2005. The RTI Act set up the
mechanism for the exercise of the right to information. Certain exemptions from
the Right to Information were also laid out in Sections 8, 9 and 11 of the Act.
As mentioned
earlier, certain citizens had demanded informations about bank defaulters,
fraudsters, illegal banking practices etc from the RBI.The RBI resisted sharing
the information basing its case on the exemptions under sub-sections
8(1)(a)(d)(e) of the RTI Act. These sub-sections provide that public
authorities could deny sharing information on the grounds such as prejudicial
effect on the sovereignty and integrity of India, the economic interests of the
state; information being in the nature of
commercial confidence, the disclosure of which would harm the
competitive position of a third party etc.
For some
time, different public authorities have tried to argue wider scope of these
exemptions to deny information to the citizens. The Supreme Court in the Case
of RBI Versus Jayantilal N Mistry has narrowed down the scope of these
exemptions and directed disclosure of information. The most interesting
exercise in this Judgment was developing the use of the sovereignty of the
people in the RTI cases.
While
rejecting the argument of the RBI that disclosure would harm the economic
interest of the country, the Supreme Court held that if the people, who are
sovereign, are made aware of irregularities committed by the banks then the
country’s economic security would not be endangered.
The Supreme
Court also held that it was incorrect to contend that only the information
related to public authorities was to be provided. It was held that information
which has been obtained by the public authorities from private bodies should
also be provided. This will be a very interesting issue under the RTI in the
future. As the power of large private corporations grow so will the demand for
the information from them. What will trouble us is how to balance these just
demands with the claims of privacy of ordinary citizens.
While noting
that no Right including Right to Information is absolute and certain
restrictions may be required, the Supreme Court concluded:
“Economic
interest of the nation …… … includes as an objective economic empowerment of
its citizens. …..the tool to attain this goal is to make information available
to people. Because an informed citizen has the capacity to reasoned action and
also to evaluate the actions of the legislature and executives, which is very
important in a participative democracy and this will serve the nation’s
interest better which as stated above also includes its economic interests.
The Supreme
Court Judgment does not quote Foucault. However Foucault’s assertion that
Knowledge and Power are integrated will have an impact on RTI jurisprudence as
it develops further in future.
(The writer
is a Supreme Court lawyer.)
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