Author: Shriya Awale, Student at ILS Law College, Pune.
INTRODUCTION
“The real Swaraj will come not by the acquisition of authority by a few, but by the acquisition of capacity by the all to resist authority when abused.”[1] – Mahatma Gandhi
When Mr.Gandhi stated this he may not have imagined that one day India would have to make a law to empower people for something as basic as seeking information about the development of the country.
BACKGROUND
On 12th October 2005, a new era began for the empowerment of the common man in India. The law applies to all except Jammu and Kashmir[2]. The law was passed by Parliament on 15th June 2005. Earlier the information disclosure was regulated by The Official Secrets Act 1923 and other special laws which are now relaxed by the Right to Information Act.
The Right to Information Act has emanated from the Freedom Of Speech And Expression enshrined in Article 19(1) (a) and Right To Life And Personal Liberty under Article 21 of the Constitution. The judiciary treats it as a part of Article 19 (1) (a).
In Bennet Coleman vs. Union of India[3], the court held that the democracy means Government of the people, by the people, and for the people, it is obvious that every citizen must be entitled to participate in the democratic process. Their effective participation can be ensured only if they have sufficient information with them.
THE OBJECT OF THE RTI ACT
The Act has been primarily implemented due to the realization by the Government that transparency and accountability are an intrinsic part of governance. By this rationale, a significant portion of the population must be dissatisfied, hence should be given a chance to submit their RTI queries. The information will enable people to pursue actual ends. The object is to make democracy work for the people in a real sense.
WHAT IS RIGHT TO INFORMATION?
The Right to Information is enumerated in Section 2(j) of the RTI Act. The Section speaks about the right to access information under the control of public authorities and also includes the right to,
- Inspect the work, document, records
- Take notes, extract or certified copies of records
- Take certified material
- Obtain information from disks, floppies, tapes, video cassettes, or in any other electronic mode.
INFORMATION EXEMPTED FROM DISCLOSURE
The Act also enforces non-disclosure of certain information that may be vital to the country’s security and other related information. Only those parts of information requested records which are not exempted from the disclosure and which can be reasonably severed from parts containing exempt information are to be provided to the applicant under the RTI Act.
According to Section 8 of the Act information which prejudicially
- Affect the sovereignty and integrity; security, strategic, economic, scientific interests; relation with a foreign state,
- leads to incitement of offense,
- information is forbidden to be published by courts or tribunal,
- cause breach of privilege of Parliament or State Legislature,
- affect commercial confidence, trade secrets, intellectual property,
- The information available to a person in a fiduciary relationship and
- Information received in the confidence of the foreign government.Etc.
CENTRAL AND STATE COMMISSIONS
The RTI Act provides for the establishment of the Central and State Information Commission as a designated authority to receive and inquire into a complaint from any person.
The CIC (Central Information Commission) consists of a Chief Information Commissioner assisted by the Information Commissioners not more than 10. The general superintendence, direction, and management of the Commission are vested with the Chief Information Commissioner. He also enjoys all the financial and administrative powers except matters relating to the creation of posts, re-appropriation, and writing off losses. They are appointed by the President of India.
The SIC (State Information Commission) consists of a State Chief Information Commissioner and other Information Commissioners, not more than 10. They are appointed by the Governor.[4]
POWERS AND FUNCTIONS OF THE COMMISSION
The powers and functions of the commissions are regulated by Section 18 of the Act.
- The CIC and SIC have to receive complaints.
- The Information Commission has the power to order inquiry if there exist reasonable grounds.
- They have powers of Civil Courts.
- All the records covered by this law must be given to CIC and SIC during inquiry for examination.
- Power to hear appeals.
- The Commission should recommend reforms to the Government.
- The Act mandates the CIC to submit an Annual Report to the Parliament.
RIGHT TO PRIVACY VIS A VIS RIGHT TO INFORMATION
The Universal Declaration of Human Rights 1948 ensures the Right to Privacy and Right to Information under Article 12 [5] provided;
“ No one shall be subjected to arbitrary interference with his privacy, family’ home’ or correspondence, nor attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The Right to Privacy protects and fosters an individual’s personality hence, it is necessary to balance the rights to protect the integrity of an individual. The major question which arose concerning disclosure of information without the consent of that individual violates the right to privacy under article 21 of the constitution. To analyse the aforesaid question, we need to examine whether the information obtained is personal enough to gain protection under the right to privacy which was recognized by the Supreme Court in K.S. Puttaswamy v/s Union of India [6] it specifically struck down Section 57 of the Aadhar Act 2016 which provided the corporate bodies to use Aadhar for establishing identity. The court held: “Apart from authorizing the State, even ‘anybody corporate or person’ is authorized to avail authentication services which can be based on the purported agreement between an individual and such body corporate or person. Even if we presume that the legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of individual biometric and demographic information by the private entities.”
CASE LAWS
In S.P.Gupta v/s Union of India [7], Justice Bhagwati quoted – “Survival of a democratic government is impossible without accountability and the basic postulate of accountability is that people should have information about the working of the Government. The citizen’s right to know the facts, about the administration of the country is one of the important pillars of a democratic state. Hence, the demand for openness in the Government is growing in different parts of the world.” He further built a nexus between the open Government and people’s participation in the functioning of the Government. The demand for openness in the Government is principally based on two reasons. It is widely accepted that Government does not consist merely of people exercising their right to vote once in five years to choose their rulers and once the vote is cast then retiring passively and not taking part or interest in the government. People should not only cast their intelligent and rational vote but should also exercise their sound judgment on the conduct of the Government and the merits of public policies introduced.
Certain rights display a conflicting nature. The RTI Act provides access to information in the hands of the authorities and the Right to Privacy ensures that such access to such personal information would not violate the fundamental rights of the individuals. These rights are conflicting as well as complementary in nature and hence must be harmoniously construed. No right is absolute and hence the rights enshrined in the RTI Act are subject to the larger public interest.
The written application requesting disclosure of information cannot be merely rejected. Article 11 (1) of the Act provides that the state public information officer (SPIO) when receives such application seeking information about the third party which is confidential in such case the officer should send a notice and call upon the third party to record his submissions concerning the same within 5 days and ask him whether such information be disclosed or not. Trade and commercial secrets are protected by law and hence are exempted from being disclosed, such disclosure may be allowed where the question of larger public interest is involved.
In the Pritam Rooj v/s University of Calcutta [8], the Single Judge Bench of Calcutta High Court decided on the issue of disclosure of answer sheet to the examinee. The court protected the right to information of the examinee stating that the examinee has the right to know how his script was assessed same as the examiner who has the right to judge the student’s knowledge. The court held that the examinee has the right to obtain information under the RTI Act and if such a right is denied it will go against the spirit of the constitution. The court further directed the University to immediately proceed to offer inspection of the answer sheet to the petitioner.
In Surupsingh Hrya Naik v/s State of Maharashtra [9], the Bombay High Court interpreted the scope of proviso of section 8(1) where procedural safeguards are laid down concerning disclosure of information. The proviso sets out that the information cannot be denied to Parliament or the State Legislature unless the person opposes the release of such information. In the present case, the MLA was sentenced to 1-month imprisonment for contempt of SC order during his tenure as the minister. The MLA spent 21 days of the term of his sentence in the hospital due to his illness. An individual citizen sought medical reports of the MLA to seek information as to why he is spending most of the duration of his sentence in the hospital and not in jail. The MLA objected to the disclosure of his medical reports stating that it was his personal information and exempted from disclosure under the RTI Act and disclosure of the same will violate his right to privacy. The court held that the proviso of section 8(1) applied only to clause (j) and hence, allowed the disclosure of the medical reports in the larger public interest.
In X v/s Hospital Z [10], the SC discussed the right to privacy of the blood donor’s medical records. The hospital disclosed the record without permission of the donor, that the blood donor was diagnosed with HIV. Due to such disclosure, the lady who was being married to the donor broke off the engagement and the donor faced social trauma. The SC discussed the scope of the right to privacy and held that the medical records are personal information but the doctors of the hospital can make an exception to the rule if non- disclosure endangers the life of the other ie. in the larger public interest. The court further held, the right to privacy with a person’s sexual relations is protected under Article 21 and even the state cannot invade such right unless there is compelling state interest.
In Girish Ramchandra Deshpande v/s Central Information Commissioner [11], Honourable Supreme Court held that the details disclosed by the tax authorities i.e. Income tax returns are part of personal information and hence, are exempted under section 8(1)(j) of the Right to Information Act 2005. The point which was stressed in this case was that there is no mention in any act or regulation concerning the information provided by tax authorities falls in the ambit of personal information and hence be protected. In the data protection bill 2019 introduced by the Parliament in its monsoon session there is no explicit mention of tax information being a part of financial or sensitive personal data. This was a clear omission by the legislators which shows their legislative intent. But prima facie any individual will be construed that it is a clear invasion of privacy of a taxpayer.
Rajesh Ramachandra Kidile v. Maharashtra SIC [12], the information sought was regarding the supply of salary slips of the petitioner and the counsel for the petitioner contended that the said information cannot be disclosed as it is personal information exempted from disclosure and that the salary of a public servant is an issue which lies under the public domain. The Court held that the salary slips contain such details of deductions, remittances made to the bank by way of loan instalments, remittances made to income tax authorities, and other details of contribution to provident funds, etc. constitute personal information and would invade the right to privacy of a person.
Sunita Jain v. Pawan Kumar Jain [13], and Sunita Jain v. BSNL [14], the appellant wife applied that respondent to submit his payslip for determination of maintenance amount. The question that arose was whether the information is exempted under act sec 8 (1) (j). The court held that it is important to understand that the appellant and the respondents are husband and wife and hence the law laid down in Girish Ramchandra Deshpande v/s Central Information Commissioner does not apply to this case and hence allowed the disclosure of information concerning the salary of the husband to the wife.
RECENT DEVELOPMENTS
In Saket S. Gokhale vs Union of India through Secretary [15], the petitioner had applied under the RTI Act to Ministry of Youth and Sports Affairs, Government of India seeking details regarding campaign launched. The petitioner received threatening calls and messages on his phone. A mob gathered outside his house chanting slogans. The Petitioner came to know that the Ministry of Information and Broadcasting uploaded the application filed by him on its website with his details including address and phone information. The personal details were available on the internet. Though the Ministry stated that the details were removed they were still visible and were in the public domain and open to antisocial elements who threatened him causing harassment and trauma. The Court held that uploading personal details of the applicant are not only unnecessary, but it may also make some of the applicants vulnerable to unscrupulous elements. The Court also ordered the Respondent to deposit the cost of petition quantified 25 lakhs as damages.
In Rahmat Bano v. CPIO [16], The Central Information Commission decided on the question that whether the income tax returns and gross income can be disclosed to the appellant who is the wife of the respondent. The court referring to various judgments held that the information can be disclosed to the wife as she has the right to know about the remuneration of her husband and the case is different from Girish Despande. The tax returns information though personal information [17] can be disclosed to the wife. In both these cases, the Courts referred to Rajesh Ramachandra Kidile v. Maharashtra SIC, Sunita Jain v. Pawan Kumar Jain and Sunita Jain v. BSNL, Girish Ramchandra Deshpande v. Central Information Commission.
In Vihar Durve vs CPIO SBI Mumbai [18], the appellant applied under the RTI Act before CPIO, SBI requesting disclosure of names of the donors and the donees of the Electoral Bonds from the books of accounts of the bank. The CPIO replied that some of the information was not available at the bank, some were exempted from disclosure under Section 8 of the Act, some information was not covered under the definition of information [19], and that the information relating to the electoral bonds issued by various political parties sought by the appellant was held by the bank in a fiduciary relationship and hence was denied to the appellant. The respondent further referred to the Electoral Bond Scheme 2018 and as per clause 7 (4) of the said scheme, the information furnished by the buyer shall be treated as confidential by the authorized bank and shall not be disclosed to any authority. The Commission reiterated the same view as that of the respondent that the disclosure of the names of the donor and the donee of the electoral bonds from books of account is in contravention to Section 8 (1) (e) and (j) and no public interest is overriding the Right to Privacy of the donor and donee.
CHALLENGES
- Certain laws are contrary to the Right to Know in the country and there is a need to amend these laws. E.g. Sections 123, 124, 162 of the Evidence Law and Section 5 of The Official Secrets Act.
- The awareness about the RTI Act is still low in the country. The people yet are not aware about their right to acquire information.
CONCLUSION
The Courts and Commission have always tried to maintain a balance between both the rights and tried to apply them harmoniously.
REFERENCES
1 https://thewire.in/books/reading-gandhi-excerpt
2 Jammu and Kashmir, Right to Information Act 2009
3 Bennet Coleman v/s Union of India, AIR 1973 SC 106
4 Section 12 and Section 15, The RTI Act 2005
5 https://www.un.org/chinese/center/chbus/events/hurights/english.htm
6 Puttaswamy v/s Union of India, (2019) 1 SCC 1
7 S. P. Gupta v/s Union of India, AIR 1982 SC 149
8 Pritam Rooj v/s University of Calcutta, AIR 2008 Cal 118
9 Surupsingh Hrya Naik v/s State of Maharashtra, AIR 2007 Bom 121
10 X v/s Hospital Z, (1998) 8 SCC 296
11 Girish Ramchandra Deshpande v/s Central Information Commissioner, (2013) 1 SCC 212
12 Rajesh Ramachandra Kidile v. Maharashtra SIC, WP No. 1766 of 2016, dated 22-10-2018
13 Sunita Jain v. Pawan Kumar Jain, 2018 SCC OnLine MP 373
14 Sunita Jain v. BSNL, WA No. 170 of 2015, decided on 15-05-2018
15 Saket S. Gokhale vs Union Of India through Secretary, 2020 SCC OnLine Bom 2313
16 Rahmat Bano v. CPIO, 2020 SCC OnLine CIC 1119
17 Section 8 (1) (j) of The RTI Act 2005.
18 Vihar Durve vs CPIO SBI Mumbai18, Second Appeal No. CIC/SBIND/A/2018/167835
19 Section 2(f) of The RTI Act 2005.