In a video posted online in August, a Supreme Court judge can be seen scolding a young lawyer for having sought information about a municipal corporation under the Right to Information Act. “What are you going to do with all this information?” the judge asked as he lambastes the lawyer for seeking details of recruitment and budget. The judge called this a “classic case” of misusing the Right to Information Act since the lawyer is an “officer of the court” and added the Supreme Court would impose costs on him.

“It is high time all this is put to an end,” the judge said.

A few months later, the Madras High Court in December ruled that RTI applicants must give reasons for seeking information under the act. A division bench of Justice N Paul Vasanthakumar and Justice K Ravichandrababu said the intention of the law is not for information “to be given like pamphlets to any person unmindful of the object behind seeking such information”, according to The Hindu.

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It is difficult to believe that a citizen can be asked why they sought information from a municipal body. I have heard many public servants ask why a citizen is seeking certain information. Accepting this new norm paves the way for being asked to explain why someone wishes to speak or publish something.

Fundamental rights are human rights recognised by the Constitution. Since the right to information has been accepted as a fundamental right of citizens, under Article 19 (1)(a) guaranteeing freedom of speech and expression, nobody has the right to ask for reasons. Democracy is understood as the “rule of the people, for the people and by the people”. Citizens are sovereigns and therefore seeking what belongs to them: information.

Parliament has made this clear in Section 6(2) of the Right to Information Act: “An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.”

The judiciary had reiterated this position even before the Right to Information Act was passed.

The first clarion call for the right to information came from Supreme Court judge Justice KK Mathew in 1975. Ruling in the Raj Narain case pertaining to alleged electoral malpractice in the election of Indira Gandhi, then the prime minister, the judge emphasised that “there can be but few secrets” in a government of responsibility where all the agents of the public must be responsible for their conduct.

“The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security.”

Parliament codified this right in 2005 by passing the Right to Information Act.

Justice Ravindra Bhat gave a perfect explanation of the Right to Information Act in 2007, stating that “a rights-based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation”.

Tackling the issue of exemptions to the act, he wrote: “The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms…” The judge referred to other judgements that support this view and added that “adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted”.

But the entire approach to citizens’ right to information changed in August 2011 with a Supreme Court ruling in the case of Aditya Bandopadhyay vs CBSE. In paragraph 33 of the judgement, the court said, “Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly.”

In paragraph 37, the court observed that the right to information was a “cherished right” and a formidable tool in the hands of “responsible citizens” to fight corruption and transparency”. It called for the strict implementation of the provisions of the act but said that public interests such as confidentiality of sensitive information and efficient operation of governments were equally important:

“Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.”

The judgement cautioned against the misuse or abuse of the law in becoming “a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens”. The Supreme Court further said:

“Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.”

These observations were used enthusiastically by various public servants to deny information to citizens. In suggesting that the confidentiality of sensitive information should be kept in mind, the judgement introduced an exemption that was not envisaged by Parliament. The law clearly intended to give access to all information held by public authorities, except that mentioned in Section 8 (1) and Section 9. It suggested that right to information queries must meet the standard of “improving transparency and eradication of corruption”.

By also implying that the law could be used to oppress and intimidate honest officials doing their duty, the judgement emboldened public servants to refuse information based on their assessment of what information must be given under the law. There has not been a single recorded case of oppression and intimidation of public officials. At the same time, there have been numerous instances of RTI activists and applicants being murdered, assaulted and threatened.

The Research, Assessment & Advocacy Group has found that about 50% of queries relate to information that should be available suo moto – in this case, provided openly and voluntarily – under Section 4 of the Right to Information Act. Another 25% relate to public servants not responding to complaints and representations by citizens. This indicates that a majority of the right to information queries are a consequence of public authorities not fulfilling their duties.

Unfortunately, despite this situation, the Supreme Court’s observations are being used widely to suggest that this fundamental right should be recognised on a case to case business. A narrative has been created that the right to information is inferior to the right to speak and publish. It also sends the message that right to information activists and applicants are likely to “obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens”.

As to the charge of public servants requiring a disproportionate amount of time to answer queries, one needs to understand that the Right to Information Act expects information to be provided as it exists. Some officials claim that it takes a lot of time to trace information. They must first understand the reason for keeping records, which is primarily for referencing. If records take long to locate, they will not be useful for referencing.

Again, the Right to Information Act is clear that records must be catalogued and indexed, computerised and quickly accessible. It is unfortunate that public authorities do not implement the provisions specifying this in Section 4(1)(a) and (b).

Across the country, the Supreme Court’s observations were quoted enthusiastically and complaints were lodged against RTI activists. In some instances, the police filed first information reports against RTI users while referring to public spirited citizens as extortionists and blackmailers, serving to legitimise assaults on them.

This narrative must be challenged. Citizens and the media need to discuss and defend their fundamental rights. As the freedom to speak and publish have been expanded, the Right to Information Act is being weakened beyond what the law and the Constitution permit.

Shailesh Gandhi is a former Central Information Commissioner.