On November 13, a five-judge Constitution Bench of the Supreme Court passed its order in the Subhash Agarwal matter, bringing a closure to cases pending resolution for nearly 10 years. Has Subhash Agarwal got the information he had sought from the Supreme Court? Not yet. Will he get it soon? Not very likely, certainly not the entire information he wanted. The five-judge Supreme Court bench recently disposed of the civil appeals its own registry had filed before it. In the process, the bench, in a dissertation length order, has delved deep into the concepts of fiduciary relationship, public interest, privacy, confidentiality and independence of judiciary and, in conclusion, cast an onerous duty on its Central Public Information Officer to decide on disclosure of the information taking into account the observations of the court.
Everyone knows that a lot of information held by public authorities about the appointment, performance, conduct, complaints and inquiries against public servants, is personal in nature and the CPIO has to refer to the principles laid down in this order to decide if the information should be disclosed or not. In case the information relates to courts or judges, his problem is further compounded for he has also to consider the impact of disclosure on the independence of the judiciary. This calls for great judicial acumen, rarely to be expected from the level of officers who become CPIOs. Most CPIOs would choose to steer clear and refuse disclosure by invoking Section 8(1)(j) of the RTI Act and leave the information seekers to appeal against their orders. In fact, even before this order, information officers have been routinely denying such information on this precise ground.
For decades now, candidates seeking election to legislatures declare their personal details, including their criminal past, if any, through affidavits as per the ruling of the Supreme Court. This invasion into the privacy of candidates has been justified on the ground that voters have a right to know who they are electing since these people would make laws and some of them will hold executive offices. Similar information, however, cannot be sought or obtained about the members of the executive or judiciary under the RTI without first proving that such information would be in the larger public interest or has a relation with public interest or activity, or would not impinge on the independence of the judges.
The RTI has entered the 15th year of its existence. It met its first major challenge when the central government refused to disclose the file noting. The CIC held that file noting was also information and must be disclosed and the government at the highest level relented. The second challenge came when Subhash Agarwal sought information from the Supreme Court regarding collegium proceedings, personal assets of judges and alleged executive pressure on a high court judge. This information was denied on the ground that it was held by the CJI who was not a public authority and hence outside the RTI. Agarwal approached the CIC which ruled in his favour. The Supreme Court Registry challenged the CIC’s order in Delhi High Court which, too, ordered in Agarwal’s favour. The registry appealed in the Supreme Court which after 10 long years has finally decided that the CJI is a public authority and comes under the RTI Act.
The third major challenge came when the CIC order bringing political parties under the RTI was summarily disobeyed and it could do nothing. I understand that some citizens had approached the Supreme Court but the court is yet to pass any order. The public authorities have progressively realised the helplessness of the information commissions in enforcing their own orders as the RTI Act has not conferred contempt powers on the commissions. They have also realised that one sure way of blocking the orders of the information commissions is to go to the high courts or the Supreme Court and get a stay; the natural delay in those courts would kill the information.
The relationship of the RTI with the judiciary has been fraught from the beginning. Since the RTI Act conferred powers on the chief justice of the Supreme Court of India and the chief justices of high courts of states for carrying out its provisions, all these courts framed their own rules. While the Supreme Court adopted the RTI-friendly rules of the central government for itself, several high courts framed extremely unfriendly rules, making it almost impossible to get any information. For example, the Allahabad High Court had wanted the citizen to deposit Rs 500 for each piece of information sought as against the Rs 10 fixed by the Supreme Court for seeking any number of them. There were many restrictions, some which were not even contemplated in the RTI Act. Over the years, the courts have softened those rules but even now they continue to be restrictive, preventing easy disclosure of information.
The RTI Act makes the information commissions the final appellate authorities in their respective jurisdictions. But that does not stop public authorities, government entities, from going to the high courts and the Supreme Court in writs. Some orders passed by the central information commission did reach the Supreme Court eventually. In most such cases, the interpretation of the exemption provisions by the court reinforced not the right of the citizens to get information from the government but the resolve of the public authorities not to disclose uncomfortable information. In the Girish Deshpande case, the Supreme Court ruled that the relationship between the government and its employees was a personal one and hence no information about a government employee could be disclosed unless the information seeker could prove that it was in public interest. Under this interpretation of Section 8(1)(j) of the RTI Act, even information about disciplinary proceedings against a government employee, irrespective of how serious the allegations against him might be, could not be disclosed by the information officer without putting it to the public interest test. This order has become very popular among information officers and many RTI applications are being rejected by citing it.
For citizens seeking information, there are many such orders passed by the high courts and the Supreme Court which have directly or indirectly shrunk their right and strengthened the hands of the government. The present order is likely to be used by information officers to block disclosure of all such information of a personal nature. One wished that the court had spelt out more clearly those items of personal information, of the executive or the judiciary, which the CPIOs could disclose without adjudication of its benefits for the general public.
This article first appeared in the print edition on November 22, 2019 under the title ‘Not so fast’. The writer is a former chief information commissioner.
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