One of the best transparent laws that Parliament had passed and implemented is now under the threat of judicial interpretations, which are interpretations that do not conform to this law.
The Supreme Court of India from 1975 to 2005 has consistently held that the Right to Information (RTI) is a fundamental right of citizens. In 2005, Parliament enacted one of the world's best transparency laws. However, some decisions given by the courts in the last decade and its interpretations are likely to weaken this powerful fundamental right. Those who use RTI and the legal fraternity should discuss it.
Challenging the decisions of the Information Commission
According to the law, no one can appeal against the decisions of the Commission. However, these decisions are being challenged in the High Courts through writ petitions against several public authorities in the case of denial of information to citizens. In most of these cases, the X-party stay is found.
Many a times it is stopped to investigate the cases before the Commission. Most such cases die because most applicants are unable to advocate them effectively in the courts due to lack of resources.
The court should first of all investigate whether the matter falls within the jurisdiction of the court and if the stay is not granted, there may be an irreparable loss to the public authority.
The Supreme Court has said many times that any judicial, quasi-judicial or administrative order should state the reasons behind the case.
While giving orders prohibiting the giving of information to public officials, the High Court should also explain the reasons behind the stay and also how the petition comes under the jurisdiction of the court.
In a democracy, citizens are the rulers of government and, thus, also own public records of all information. The law has strong provisions for providing most information without any restriction and Section 22 of the RTI Act states that its provisions are above other earlier laws. It stipulates that non-submission of information can only be based on the provisions of Section 8 or 9. Further, the justification or right to reject information in any appeal proceeding rests only with the Public Information Officer. A case of denial of information should be rare.
Supreme Court Judgments
An analysis of the decisions of the Supreme Court regarding the RTI Act reveals that there are very few decisions in which information has been ordered. While majority decisions are given for refusal to provide information and they also extend the scope of decision waiver. For this example, we take three decisions of the top court:
In a democracy, citizens are the rulers of government and, thus, also own public records of all information. The law has strong provisions for providing most information without any restriction and Section 22 of the RTI Act states that its provisions are above other earlier laws.
* In Appeal No. 6454 of 2011, the Court stated that: "Some High Courts have held that Section 8 of the RTI Act is as an exception to Section 3 which empowers citizens with the right to information, which is expressive. Is taken from liberty; and therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct method. " I think in the earlier view, exemptions were interpreted in a narrow way because they trump fundamental rights of citizens.
Another strong statement in the judgment is as follows:
"Indiscriminate and impractical demand or directions under the RTI Act for the demand for all and miscellaneous information (unrelated to transparency and accountability in the functioning of public authorities and indiscriminate and impractical demand or directions under the RTI Act for the elimination of corruption) This will be against the objective of the authority as it will adversely affect the efficiency of administration and as a result the executive will be engaged in non-productive tasks of collecting and presenting information. The Act should not be allowed to be misused or misused, nor should it be a tool to hinder national development and integration, or to destroy peace and harmony among citizens. Nor should it be allowed to turn into a tool of harassment or intimidation of honest officers who try to perform their duty. The nation does not want a scenario where 75 per cent of public authority employees spend 75 per cent of their time in collecting and presenting information for applicants rather than performing their regular duties. ”
Such charges were leveled against the citizens exercising the fundamental right, without any case connection and without any evidence. It would have been understandable if it had been directed at the terrorists.
A study by an NGO, the RAAG Foundation, shows that only about 50 percent of RTI applications are made as departments do not discharge their duties under Section 4 of the RTI Act, which according to the law allows most information to be given . Another 25 per cent of RTIs seek information about delays in issuing ration cards, progress made in applications for various government services or complaints of illegal activities to which government departments have to respond. There has been no condemnation of those officers who do not do their work without bribes. It was an unfortunate blasphemy over a citizen without any evidence or basis.
* In the case of Girish Ramchandra Deshpande v. Central Information Commission and others (2013), the Court stated that the details of mimos / memorandum, show cause notice and suspension / punishment, orders, assets, income statement, gifts received by a public servant. Copies etc. are personal information, whose exemption for not giving information is given under Section 8 (1) (j) RTI Act.
The judgment further states that these are matters between the employee and the employer, without realizing that the employer is a citizen, he is the master of democracy that gives legitimacy to the government. There is no legal logic or principle in this decision and it is based only on information not given by the Information Commission.
An analysis of the decisions of the Supreme Court regarding the RTI Act reveals that there are very few decisions in which information has been ordered. While most decisions refuse to provide information and expand the scope of the exemption.
The judgment given by R. Rajagopal of the Supreme Court in 1994 makes it clear that no claims of confidentiality can be made by public officials in the matter of personal information on public records. The Court does not appear to have considered this decision.
Section 8 (1) (j) has a provision that "according to which any information which cannot be denied to the Parliament or State Legislature" cannot also be denied to a person. There is no mention of this provision in the judgment nor any word that the court is satisfied that this information will not be provided to the Parliament or the state legislature.
* The Supreme Court gave a decision on 4 March 2020 in a Civil Appeal No 1.1666667 / 2020, which ignores an important provision of the RTI Act. According to which it ensures that other laws and impediments cannot be used in the case of the rulers of democracy i.e. refusal to give information to the public, Parliament has provided a non-restrictive clause in section 22 which states Is: "Notwithstanding the provisions of this Act, it shall remain in force despite some inconsistent effect contained in the Official Secrets Act, 1923 and no other statute which is applicable or has any effect on any instrument other than this statute shall be effective."
RTI act misled
The Supreme Court judgment stated that court rules which deviate substantially from the RTI Act cannot be held inconsistent with the law unless they have a provision to give information! It refused to consider the fact that this would result in the imposition of conditions accepted by the RTI Act. It is actually stated to have effect to abolish Section 22.
In Appeal No. 6454 of 2011, the Supreme Court states that: "The Act should not be allowed to be misused or maliciously used, nor to be a tool to obstruct national development and integration, or to destroy peace and harmony among its citizens." Nor should it be allowed to turn into a tool of harassment or intimidation of honest officers who try to perform their duties. "
Courts should take an active part in expanding the reach and scope of RTI. They should be conscious of the fact that freedom of expression and information of publication all originate from Article 19 (1) (a) and should be treated as equal. The first two have been expanded by the courts, while judicial decisions have limited the right to information in the last 15 years.
One of the best laws on transparency that Parliament had passed and implemented is now under threat from judicial interpretations that do not conform to the objective of this law. If they interpret the RTI Act as exempt and giving more importance to expanding its scope, then this great statute, which is called the "Right to Information, can become the law of not giving information". This would be a sad result for democracy.
Civil society and the legal profession are not yet conscious of the fact that if the right to information is obstructed, then freedom of expression and publication will have to face similar obstacles.
This article Has been published in (Shailesh Gandhi is a former Central Information Commissioner and also an RTI activist. The views expressed are personal.)
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