The Supreme Court verdict on February 15 striking down the electoral bonds scheme clearly favours the right of the public to be informed. It recognises that in a democracy, citizens have a right to information held by the government.
The court has ordered the Election Commission to disclose details about the purchase of electoral bonds by March 13. If the order is indeed implemented, celebrations are due.
Some doubts remain, though I hope to be proven wrong.
The government is likely to find a way to avoid implementing this order. At the very least, it is unlikely to part with this information before May 15, which is by when the 2024 Lok Sabha election results are likely to be declared.
Is it possible that the Supreme Court’s order will not be implemented? I am aware of at least one similar instance.
In 2011, while deciding on the second appeals of Right to information petitions as information commissioner, I had ordered the Reserve Bank of India to disclose information to citizens such as loan defaulter lists, audit reports of banks and inspection reports. The Reserve Bank of India obtained stay orders on these.
In December 2015, the Supreme Court upheld my decision. It said that the information commissioner had considered the information sought and passed orders that “do not suffer from any error of law, irrationality or arbitrariness”. The court concluded that the information commissioner’s orders were passed with “valid reasons” and therefore “need no interference by this court”.
But even till date, the information ordered by the Supreme Court has not been provided. Legal challenges have been made and the story continues before a Supreme Court bench.
In 2019, while hearing a contempt petition about the order not being implemented, the Supreme Court said that the respondents were “duty-bound to furnish all information relating to inspection reports and other material”.
It exempted disclosure of material that had already been held as information that could have a bearing on security. “Any further violation shall be viewed seriously by this court,” said the judgement. But the matter is still being contested in the Supreme Court.
In the electoral bonds case, another significant aspect is the fact that the Supreme Court has asked for the data of the past seven years to be made public.
But the electoral bonds scheme was created through a law framed by Parliament with the guarantee that a person’s name would not be disclosed while giving money to a political party. Can this promise be violated after seven years? Is it right to issue such a decision after seven years?
There are likely to be citizens and corporations who bought these bonds on the assurance that their identities would not be revealed. Under these circumstances, it can be claimed that the information was given in a fiduciary relationship of trust and confidence. Should the country not trust and act according to a law passed by Parliament?
This decision should have been taken in two months.
Another aspect is that the Supreme Court has issued orders that are ambiguous in terms of what is personal information and what is an intrusion on privacy. Supreme Court judgements in the past have said that the disclosure of all personal information can be refused. It is not clear how things will unfold but the government is likely to challenge the verdict on the grounds of privacy.
The Right to Information Act recognises that the default mode is that all information belongs to the citizens. Only information that falls under the exemptions outlined in Section 8 (1) can be denied.
Section 8(1)(j) of the Right to Information act guarantees that if information is personal, is not a part of any public activity and does not intrude upon privacy, it should be given to citizens.
Since it is difficult to judge what constitutes privacy, the law says that information that shall not be denied to parliament cannot be denied to any person. This is an important proviso to the law that makes the work of a public information officer feasible. If an official wishes to claim exemption under this, they must declare that they would not give this information to parliament or a state legislature.
An official can do this if the disclosure violates decency or morality – as laid down in Article 19 (2) of the Constitution regarding reasonable restrictions on the fundamental right to free speech.
Many Supreme Court judgements have declared that all personal information can claim this exemption without following the conditions mentioned in the law. This has the effect of constricting the fundamental right without adhering to the words of the law. Had the Supreme Court ruled on the validity of electoral bonds earlier, this conundrum would have been avoided.
The real solution lies in ensuring that cases are decided in less than six months. This can be done if all sanctioned judicial positions are filled. Until then, let us live on hope, instead of by the rule of law.
Shailesh Gandhi is a former Central Information Commissioner.
Also read: Flaw in Supreme Court’s electoral bonds verdict leaves room for another similar scheme to be floated