India is a democracy and hence the “rule of the people, by the people, for the people” should prevail.
Citizens are the rulers and owners of the nation. They give legitimacy to their elected members who then appoint public servants to service the citizens.
The logical outcome is that all information held by the government is held on behalf of citizens and therefore they should have free access to it.
Many Supreme Court judgements, too, have held that Article 19 (1)(a) of the Constitution, which guarantees the freedom of speech and expression, includes the right to publish and the right to information.
Article 19(2) of the Constitution permits reasonable restrictions on the fundamental right to free speech 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”.
The Right to Information Act mandates in Section 4 that access to all records must be facilitated easily “so that the public have minimum resort to the use of this Act to obtain information”.
The default position laid down by Parliament is that “subject to the provisions of this Act, all citizens shall have the right to information”. Thus, the default mode was that citizens have access to all information except under the 10 exemptions in Section 8(1) of the Right to Information Act.
A gross misreading
In the past few years, one of the exemptions – Section 8 (1)(j) – of the Act, is increasingly being used to deny a large number of right to information applications. This is being done by a gross misreading of this provision.
One of the objectives of the Right to Information Act, clearly mentioned in its preamble, is to “contain corruption”. This objective is being defeated so that the protection of corruption can continue without hindrance. Section 8 (1)(j), exempts “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”.
Such information, however, can be disclosed if 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: provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person”.
Essentially, then, the personal information of a person is exempt from being disclosed if it has no bearing on public activity or interest, and if it is an invasion of privacy. Clearly, the intent of this clause is intended to cover information relating to any natural person.
When claiming this exemption, the official or judge must state if the information is not related to any public activity or interest, or if it is an intrusion of privacy. It must also be stated if there is a larger public interest in disclosing such information, compared to the harm to the protected interest;
It was recognised that these parameters may be difficult to apply, hence a simple acid test was provided: if it was information that cannot be denied to Parliament, it could not be denied to the citizen.
Thus, when anyone claims an exemption under this subsection, they should make a subjective assessment if they would deny this same information to Parliament.
Though Parliament has clearly defined this exemption, many agencies are denying information on the grounds that the information sought is personal and there is no larger public interest in its disclosure.
Another way of looking at this would be the R Rajagopal ratio decided by the Supreme Court in the 1994 case of R Rajagopal vs state of Tamil Nadu: “...Once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.”
The Supreme Court further also creates an exemption. “...In the interests of decency” [Article 19(2) of the Constitution] an exception must be carved out to this rule, viz., a winab who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.”
This is clearly in line with Article 19(2) which permits reasonable restrictions on the exercise of Article 19(1)(a) – freedom of speech expression – in the interests of “decency or morality”. It would be clear that any information which violates decency or morality must be denied to Parliament as well as to citizens.
It appears that Section 8 (1)(j) of the Right to Information Act is in congruence with Article 19(2) of the Constitution and the Supreme Court’s judgement in the case of R Rajagopal vs state of Tamil Nadu.
The provision of larger public interest in the disclosure of information must be satisfied only when the exemption applies. This is a difficult determination. After acknowledging that a protected interest will be harmed, a balancing act has to be done between the harm and the larger public interest.
Most activities in using the right to free speech and right to publish also do not have to satisfy the larger public interest condition.
As a result, most public servants, information commissioners and judges are reading the law as personal information being exempt under Section 8(1)(j) unless its disclosure is deemed to be in the larger public interest.
Thus, what is being ignored is the part of the sub-section on how the personal information must have no relationship to public activity or interest and that its disclosure would be an invasion of privacy. Also struck out is how such information would be denied to Parliament as well.
There is no explanation for dropping the crucial part of the provision. Since the past decade, a significant amount of information is being denied on the mere grounds that it is personal information.
Some examples of information refused are:
1. The total number of Annual Performance Appraisal reports of Indian Administrative Service officers pending presently.
2. The details of the expenditure of the member of legislative assembly funds and beneficiaries of the PM-CARES fund.
3. Bogus caste certificate, education certificates, ghost employees; gross arbitrariness and corruption in selections for jobs and non-conformance to rules and laws.
4. Disregard and inaction of proved corruption charges against officials.
5. File notings and minutes of meetings.
The illegal rejections on account of “personal information” are increasing. It has become so widespread that Information Commissions and courts have also accepted that all information related to a natural person is being exempted.
This is an unconstitutional, illegal amendment to the Right to Information Act and must be resisted.
Whenever Parliament discusses amending the Right to Information Act, citizens protest. But a major amendment is being made to the most important fundamental right of citizens by the repeated curtailing of the law. Citizens must reclaim the Right to Information Act from this illegal action.
Shailesh Gandhi is a Former Central Information Commissioner.