The
Leaflet: National: Tuesday, October 08, 2019
THERE
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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