To be, or not to be, that is the question:
Whether ’tis nobler in the mind to suffer
the slings and arrows of outrageous (RTI applications) fortune,
or to take arms against a sea of (information requesters) troubles
and by opposing end (their right to know) them.”
(with apologies to Shakespeare for a poor parody of his creative genius and Hamlet- the brooding Prince of Denmark)
Unlike his contrarian predecessor, the present Chief Justice of India, Ranjan Gogoi has, in concert with four brother Justices, declared his august office, covered by the RTI Act. In its 15th year of implementation, this unanimous opinion of the Constitution Bench (CB) strengthens the transparency law in many ways and paves the way for bringing another constitutional authority, namely, the Governor of a State under its compass. That question of law opened up twelve years ago through an RTI application penned by a former Union Defence Minister when he was the Leader of Opposition in Goa. Although the appeal case itself has been dismissed and the applicant is no longer with us, the Apex Court is yet to constitute another Bench to answer this important question of law.
In the latest case that the CB has decided, the RTI applicant Subhash Chandra Agarwal’s, the wait was not any less protracted. Three of his RTI applications, which formed the subject matter of the dispute are more than a decade old. Curiously, two of them have been referred back to the Apex Court’s Public Information Officer (PIO) for making a decision in accordance with the expansive procedures laid down by the law and the principles of interpretation explained by the Bench collectively and by Justices Ramana and Chandrachud, individually. Whether or not the information continues to have any currency, the RTI applicant will have to tell us. Will he move the Courts again this time on questions of fact, if the PIO rejects the requests after following due process, is a moot question. The struggle for transparency even in the judicial realm is not any easier than it is in the executive sphere, going by the experiences of millions of private citizens.
Leaving the facts of the three cases aside, the common and individual opinions penned by the Justices clarify several interpretational matters for the benefit of both the seekers and holders of information. However, in some respects, they also pose serious challenges to the already well-established understanding of the interplay between the right of access to information and the grounds for rejection of such access. In a couple of places, lay readers are likely to end up in confusion about the seeming divergence of views between the common opinion and the individual opinions of the Justices. In this piece, I hope to illustrate these issues in brief in order to encourage the readers to negotiate the 250-page long judgement to make their own determination about the import of this judicial milestone of sorts.
Let us start with the many positives for which the judgement deserves unqualified appreciation. First, despite not intending it to be so, because the facts of the cases related to accessing information from a State institution, the explication of Section 2(f) is a very welcome jurisprudential development. While the first limb of the definition of ‘information’ brings within its scope a wealth of forms in which information may be held by a public authority, such as samples and models of materials used, in addition to conventional records, logbooks, reports, written opinion and advice, electronic data and emails, it also includes information that a public authority may access from any private body under the provisions of any other existing law.
The CB’s conjunctive interpretation of the term ‘information” and “right to information” which is “under the control” of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority of course, and furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.
Second, both the common and individual opinions of Justice Chandrachud contain a very detailed discussion of how to interpret “public interest” in the context of disclosure of information which is rejected by a PIO by invoking one or more grounds listed in Section 8(1) of the Act. Readers familiar with the RTI Act will recall, ten clauses in Section 8(1) contain more than 30 grounds on which information sought by an RTI applicant may be legitimately refused. However, these exemptions are subject to a later clause that requires even such information to be made public if by so doing the larger public interest will be served better.
Justice Chandrachud’s opinion, in particular, builds upon the gold standard of interpretation of how to balance competing for public interests favouring transparency and continued confidentiality that Justice P. N. Bhagwati (as he then was) developed in S. P. Gupta vs President of India & Ors. in 1981. Not only is this portion of Justice Bhagwati’s opinion highlighted for the benefit of the reader, a non-exhaustive list of factors that must be taken into consideration while performing such a balancing test is also underscored. Factors such as likelihood of disclosure causing embarrassment to the Government – a criterion that continues to guide the labelling of official records as “secret” or confidential” within the Government, or the RTI applicant’s likelihood of misunderstanding or misinterpreting the contents of a record or the high seniority of the author of an official record are all irrelevant considerations for the purpose of applying the “public interest test”.
The Department of Personnel and Training which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, First Appellate Authorities and Information Commissions. This will go a long way in shedding ossified practices of denying access to information on such frivolous grounds.
Third, the common opinion consigns to the dustbin of history, the penchant of public authorities and even many an Information Commissioner to refuse to treat an individual’s quest for justice by seeking information, as a matter of “public interest”. All five Justices have agreed that public interest has “no relationship with the number of individuals adversely affected by disclosure or the number of individuals wanting such disclosure. The decision will vary depending upon how the public interests in maintaining the exemptions will be balanced with those favouring disclosure depending upon the facts and circumstances of every case.
Some readers might scorn at this ‘case-to-case’ approach as it lends no fixity to the concept of “public interest” but that indeed is the inherent strength of the method. It is not based on treating an entire class of information as being exempt for all time to come. What matters ultimately is the effect of disclosure- the facts and circumstances of each case- will it harm a public interest already listed in the exemptions or be beneficial to the public interest or remain neutral. Only the first effect requires continued confidentiality. The common and individual opinion of Justice Chandrachud provides very useful guidance to public authorities in this regard, if only they were to read it intently.
Now moving on to the challenges and confusion that the judgement poses to the implementation of the RTI Act. Much has already been said and will continue to be said about the interface between the fundamental rights to privacy and to access information from public authorities- both being judicial discoveries as Part III of the Constitution does not make a reference to them at all. The CB has itself hoped that some of the tensions in the interplay of these two rights are likely to be resolved with the enactment of the long-pending personal data protection law. So also with the clarification of the conditions in which fiduciary relationships arise and become a brake on the drive for greater transparency. We will not dwell on these topics in any detail.
Perhaps the most deleterious impact of the common opinion on the RTI regime may be said to be the inclusion of “motive” of the RTI applicant as a relevant factor while administering the public interest test. The CB recognizes that the purpose of the information seeker will have no relevance while making a decision on an RTI application but it will be a relevant factor while applying the public interest test to decide whether exempt information may be disclosed (para #79). This despite the CB recognising the existence of a bar on compelling an RTI applicant to disclose her or his motive while seeking information under Section 6(2).
Strangely, nowhere in the common or the individual opinions is Section 19(5) of the RTI Act even mentioned. Under this provision, the burden of proving why the requested information must remain exempt is on the PIO. The RTI Act does not place a corresponding obligation on the RTI appellant to explain motives for demanding access to information at any stage of the internal and external appeals. It is not clear whether this matter was brought to the notice of the Justices at all in the pleadings and written submissions.
This significant and embarrassing lapse is likely to embolden public authorities and Information Commissions to insist on a declaration of the purpose of seeking not just exempt information but eventually all information. It is very well known that decisions of PIOs and appellate authorities, not to mention several Information Commissioners, often raise this point when their obvious intent is to prevent disclosure of the requested information.
Second, the common opinion divests the PIO of the power coupled with a duty to direct disclosure of exempt information on grounds of public interest under Section 8(2) of the RTI Act. Instead, the CB has declared that this is a “discretionary power” exclusively vested with the “public authority” which the PIO represents (para #27). It is respectfully submitted, this interpretation creates two problems.
First, under Section 8(1)(j) of the RTI Act, the PIO is clearly vested with the power of making a decision to disclose personal information of an individual other than the RTI applicant (after following due procedure of third party interests are attracted as per the terms of Section 11 of the Act). That power coupled with duty cannot be taken away through judicial pronouncement unless the Court wants to supplant legislative intent, which it has always abhorred and avoided.
Second, the only clear finding on a question of fact in the entire case is the determination that the Supreme Court as established under Article 124 of the Constitution is one “public authority” and the CJI’s office is part of the same public authority. So if the “public authority” is an institution, who, then in such an institution as well as in other similarly labelled institutions will wield the power to determine whether exempt information will be disclosed under the terms of Section 8(2) of the Act? The common and individual opinions are silent on this point.
Next, the explication in both the common and individual opinions of the manner in which competing public interests must be harmonized and the factors that will be relevant or irrelevant for the purpose of determining public interest in favour of disclosure or otherwise, clearly indicates that it is in the nature of a quasi-judicial function. Where is the scope for applying any “discretion” in matters where the competing public interests must be balanced? It is respectfully submitted that “discretion” will only colour the entire exercise with arbitrariness.
Third, with the deepest respect to the wisdom of the Justices, it must be pointed out that the common and individual opinions betray a contradictory approach with regard to the manner of application of exemptions. This point cannot be illustrated without delving a bit into the jurisprudential development around the manner of invoking of exemptions. If memory serves us right, the earliest explanation of how exemptions must be invoked is found in Justice Ravindra Bhat’s opinion in Bhagat Singh vs Chief Information Commissioner & Ors., of 2007 when he served in the Delhi High Court. In that judgement, Justice Bhat (now elevated to the Apex Court) pointed out that exemptions listed in Section 8(1) of the Act, being exceptions to the general rule of transparency contained in Section 3 must be construed strictly.
In several other matters decided by the High Courts of Kerala, Madras and Calcutta, this interpretational rule was accepted. However, the Apex Court overturned that position in 2011 while deciding Central Board of Secondary Education & Anr. vs Aditya Bandopadhyaya and Ors., (see slide 35 at this weblink). The Court said that the exemptions must not be treated as “fetters on the right to information”, instead a harmonious approach must be adopted to balance these competing public interests. This position reiterated in ICAI vs Shaunak H. Satya delivered the same year and subsequent judgements of the Apex Court is also appreciated and explained in the common opinion of the CB. However, the individual opinion of Justice Ramana contains a discordant note as it gives currency to the approach several High Courts adopted between 2007 and 2011.
After lending his name to the common opinion, at para #23 of his individual opinion, Justice Ramana writes as follows:
“There is no doubt it is now well settled that exemption clauses need to be construed strictly. They need to be given appropriate meaning in terms of the intention of the legislature.”
In our humble opinion, this is also an area that needs some curative action from the Apex Court to avoid the embarrassment of contrary opinion being presented by a Justice at two different places on the same issue.
Fourth, both the common opinion (para #26) and the individual opinion of Justice Chandrachud (para #75) treat seven of the ten exemptions listed in Section 8(1) of the RTI Act as “absolute” in character where the PIO is barred from disclosing such information even if the larger public interest in disclosure outweighs the harm caused to the protected interests. Three exemptions relating to commercial confidence, trade secrets and intellectual property, information covered by a fiduciary relationship and the last clause which protects personal privacy are not absolute in so far as they are tempered specifically by public interest override clauses. In our humble opinion this characterization is not in accordance with legislative design and intent.
Most of the blame for this confusion must lie with the draftspersons and we the advocates of transparency who pushed Parliament to legislate without cleaning up the initial draft. The RTI Bill tabled in Parliament did not contain an omnibus public interest clause which now exists as Section 8(2) in the Act. Instead, Section 8(2) in the original Bill contained what is now a proviso underneath Section 8(1) which contains the noble principle that information which cannot be denied to Parliament or a State Legislature cannot be denied to any citizen. Only clauses under Sections 8(1)(d), 8(1)(e) and 8(1)(j) whose contents are explained at the beginning of this paragraph were subjected to a public interest override clause.
The omnibus public interest override clause was inserted as Section 8(2) upon the recommendation of the Parliamentary Committee which vetted the Bill with copious inputs from civil society advocates, lawyers and academics. Due to the rushed passage of the final version of the Bill (on the last days of the Session of both Houses of Parliament), the draft was perhaps not cleaned up (the hard copy of the gazette notification of the Act contains at least two typographical errors even now). So the public interest override element stays in the three exemption clauses in addition to the omnibus clause as part of the law and is the source of this confusion.
However, a basic principle of interpretation of the law is that Parliament intended for every word and formulation to exist in the manner it is crafted and visible in the final text adopted and notified after Presidential assent. So the doctrine of harmonious construction comes to play to resolve any conflict between two or more provisions oflaw. It is respectfully submitted that characterising seven out of ten exemptions clauses as being “absolute” does not amount to harmonious construction but amounts to doing injustice to legislative intent. We hold this view for multiple reasons. First, if Parliament had intended for these exemptions to be absolute then the opening limb of Section 8(1) would have read- “The following information shall not be provided or disseminated” in the manner of Section 3(3) of Nepal’s Right to Information Act enacted in 2007. Several other countries place such a prohibition which can be realistically termed “absolute”.
The Indian RTI Act, however, takes a different approach. The opening limb reads” Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen…” In our humble opinion, this implies- a citizen cannot reasonably expect to get information covered by these exemptions as a matter of right- a principle which the common opinion also recognizes. However, that does not turn seven of these clauses into absolute exclusions.
First, Section 8(2) provides the exception to these exemptions- so they cannot be termed exclusions at all.
Second, Section 8(3) prohibits the invoking of seven out of ten exemptions for information that is more than 20 years old. This 20-year rule applies to five of the seven exemption clauses which the common opinion characterizes as absolute. So here again the characterization of these exemptions as absolute is not sustainable in our humble opinion.
Strangely, this important provision does not merit even a mention in either the common or the individual opinions of the Justices. Unless these confusions are cleared up through a curative petition, public authorities are likely to misuse this portion of the judgement to deny access to more and more information which was not the intent of Parliament in the first place.
Last, but without putting too much emphasis on it as it is most likely to be the handiwork of a negligent law clerk which went unnoticed, Justice Chandrachud’s opinion contains a howler. The seminal paragraph where the citizens’ right to know was discovered for the first time by another 5-Member Constitution Bench in State of U.P. vs Raj Narain, was authored by Justice K. K. Mathew and not the then Chief Justice of India, Justice A. N. Ray as attributed in this opinion.
However, it must be acknowledged that despite the cautious manner in which the common opinion seeks to strike a balance between citizen’s access to information about how judges are appointed (a point which has been remanded back to the PIO for afresh decision) and the need for ensuring the independence of the judiciary and preventing possible attacks on the reputation of candidates for judgeship in the constitutional courts, Justice Chandrachud mentions a non-exhaustive list of essential norms in regard to judicial appointments in his opinion.
Will the PIO reveal the norms that went into the elevation of certain judges over and above others, now that the RTI application has been remanded to him for fresh consideration remains to be seen. What objections will the individuals so elevated will pose to making this information transparent also becomes a matter of immense public interest? How effectively will the PIO apply the tests and the interpretative tools laid down by the common and the individual opinions remains to be seen as well?
At the other end of the spectrum of this creative tension characterizing the adjudication undertaken by the CB is the anxiety expressed by Justice Ramana that RTI could become a potential tool of surveillance to scuttle the effective functioning of the judiciary.
With the deepest respect and in all humility it is submitted that RTI cannot be equated with the tools that empower the government to conduct surveillance over anybody- citizens and high public functionaries alike. The latter is abhorrent to human dignity and a violation of basic human rights and freedoms when attempted in an illegal and illegitimate manner.
The RTI Act contains adequate safeguards as noted by the Hon’ble Justices themselves that have convincingly until now and will in the future prevent disclosure of information that should legitimately remain under wraps. If not, these three cases would not have reached the Supreme Court’s high table of justice.
(Venkatesh Nayak is Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi. Views are personal.)
First published in https://theleaflet.in/