SC ruling does more harm than good

IN PERSPECTIVE

On November 13, the Constitution Bench of the Supreme Court gave a judgment on the applicability of the Right to Information (RTI) Act to the top court. It has been hailed as a landmark judgment by most people based on the understanding that it was only about accepting that RTI applies to the office of the Chief Justice of India (CJI). There were actually three petitions which were decided.

Subhash Chandra Agarwal, an RTI activist, had sought the following information in 2007 and 2009: 1) there was a resolution passed in a conference of Supreme Court judges in 1997 that “every Judge should make a declaration of all his/her assets in the form of real estate or investment.” Agarwal asked whether such declarations had been filed; 2) a copy of the complete correspondence with the Chief Justice of India in which a Union minister had allegedly approached Justice R Raghupathi of the Madras High Court to influence his judicial decisions; and 3) copies of the complete correspondence exchanged between the constitutional authorities concerned, with file notings, relating to the appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM Lodha superseding the seniority of Justice AP Shah, Justice AK Patnaik and Justice VK Gupta, which was allegedly objected to by the then prime minister.

In all three matters, the Public Information Officer of the Supreme Court had refused to give information on the ground that it was with the CJI who was not required to provide information under RTI. It has always been accepted that the Supreme Court is a public authority covered by RTI, but it was claimed that the office of the CJI held these records and could not be subjected to RTI. Neither the prime minister’s nor the President’s office has ever made such a plea! The CIC ruled in all three matters that the refusal was not as per the law and the High Court agreed.

The Supreme Court judgment accepts that the CJI is covered under RTI but does not order information on points 2 and 3 to be given! The court has made many comments expanding the scope of exemptions.

Section 8(1)(j) exempts: “Information which relates to 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, unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information” and “Provided that the information, which cannot be denied to Parliament or a State Legislature shall not be denied to any person.”

This clearly means that personal information can be denied only if: One, it has no relation to public activity or interest; or two, it would cause unwarranted invasion of the privacy of the individual; and three, it would be denied to Parliament.

This proviso requires that whoever claims exemption under this clause must make a statement that he would not give the information to Parliament. The judgment completely neglects this!

Constraint on this fundamental right can only be justified by Article 19(2), which states that reasonable restrictions may be placed 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 only words which will apply to privacy are ‘decency or morality’.

It is clear that if disclosure of any information would violate ‘decency or morality’, it should be denied to Parliament and to the citizen. The current judgment does not deal with the R Rajagopal judgment of the Supreme Court which declared a clear ratio that on matters of public records, no claim for privacy would sustain unless it was violative of ‘decency or morality.

The present judgment specifically mentions that marks obtained, grades and answer sheets, professional records, qualification, performance, evaluation reports, ACRs, disciplinary proceedings, assets, liabilities, income tax returns, details of investments, lending and borrowing, and many more are exempt.

There are many dishonest practices of false certificates, false declarations, ghost beneficiaries, and the selection, promotion and encouragement of undeserving candidates and officers, and the like. According to this judgment, information on these will be denied.

It is interesting to note that in the ADR, PUCL cases, the Supreme Court had ruled that citizens have a right to know about the assets of those who want to be public servants. Now, it rules that citizens do not have the right to know about the assets of those who are public servants!

The Supreme Court has given a meaning to the exemption that widens its scope far beyond what is stated in the law and the Constitution.

The law has, in effect, been amended by the Supreme Court and our fundamental right to information abridged. This weakens the law far more than the amendments made to the law by the government.

(The writer is a former Central Information Commissioner)