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The Bench

On November 13, 2019, a five-judge constitution bench of the Supreme Court comprising the Chief Justice of India (CJI) Ranjan Gogoi (as he then was), Justices N.V. Ramana, D.Y. Chandrachud, Deepak Gupta and Sanjiv Khanna, delivered the judgment on the applicability of the Right to Information (RTI) Act, 2005 on the office of the Chief Justice of India.

Holding

The decision affirmed that the office of the CJI is a ‘public authority’ under Section 2(h) RTI Act and thus liable to furnish information under the RTI Act. However, after making this overt observation the Apex court went into a very detailed explanation that the ‘exception’ under Section 8 (1) (j) RTI Act shall cover all personal information. The bench widened the scope of personal information covered under Section 8 (1) (j) RTI Act by ruling that in the absence of a larger public interest, all personal information can be denied.

Per Section 8 (1) (j) RTI Act there are two kinds of information that can be denied to the public

  1. Any information having no relation to the activities or interest of the public at large, or
  2. Information causing an unwarranted breach of privacy of any individual

Parliament and State Legislature Denial Exception

As per the Stroud’s Judicial Dictionary, Public Interest is a matter in which a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected while public activity refers to any activity or condition which is not private in nature. Initially, it was difficult for the people and even the Public Information officers to understand what a ‘public activity’ is and what shall amount to an ‘invasion of privacy’. Hence, in order to clarify this doubt, the legislature provided a specific proviso for this doubt saying that

“Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

The lawmakers were aware of the fact that government agencies are habituated to giving information to the Parliament or the State Legislatures, therefore they provided this acid test. However, it is interesting to note that the proviso does not say that information given to the Parliament shall be given to the citizens. Instead, it is worded negatively and notes that any information can be denied to the people provided it is denied to the Parliament. Hence, by this logic, the Public Information Officer can deny any information to the people by simply making a statement that it is denied to the Parliament. Without a clear explanation on this issue and by applying the literal rule of interpretation; it seems that the denial of any information in this manner shall be lawful. Unfortunately, the judgment did not provide any clarification on this proviso at all.

Public Interest as an Unnecessary Pre-Condition

Moreover, after holding that disclosure of information should only be allowed if there is a compelling public interest the decision goes on to give a long explanation of what constitutes public interest. Since Art. 19(1) (a) of the Constitution can be effectively argued to be the grund norm from which right to free speech, right to publish and even right to information emanates, arguably; the constraints applied on any one of these rights should be at par with the other. Consequently, just as there is no need to show public interest in order to speak or publish something, similarly the same should not be considered as a precondition to seeking information.

Inapplicability of the Puttaswamy Test

Furthermore, the observation made by the majority that the right to privacy must be “balanced” against the “public interest” through an application of the proportionality standard, drawn from KS Puttaswamy v. Union of India, (2017) 10 SCC 1 is also problematic given the fact that the proportionality standard developed in Puttaswamy is available against the state. However, in the present matter, the balancing is not between State goals and the right to privacy. Rather, it is between two contesting rights; namely the right to privacy and the right to information (which, in social terms, becomes the “public interest” in disclosure of information). J. Chandrachud has tried to address this issue in his concurring opinion by stating that the application of the proportionality doctrine is apter in situations where only one convention right is in question. However, the mere invocation of this doctrine, in the absence of any clearer yardstick for its applicability can result in its arbitrary application and ad hoc “balancing of interests” by Public Information Officers.

The RTI Act was drafted to curb corruption and effectuate transparency in the public authorities by empowering citizens to check their (public authorities) actions and make them liable for their corrupt and arbitrary acts. However, in light of the aforementioned deficiencies, it wouldn’t be an extrapolation to say that the present judgment shall not only act as a constraint upon the fundamental right of the citizens but shall also undermine the power of RTI.

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