The Supreme Court’s Misstep: How the Deshpande Case Fuels Information Denial Under RTI Act

Shailesh Gandhi

The denial of information is increasing regularly and a fundamental right is being constricted illegally. It is hoped that citizens and the legal fraternity realise the gravity of the issue.

WHO is authorized to make or amend the law? A five-judge Constitution bench of the Supreme Court had ruled in P. Ramachandra Rao vs. State of Karnataka (2002): “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.” In Rajbir Singh Dalal vs. Chaudhari Devi Lal University, Sirsa & Anr. (2008), the Supreme Court, after referring to its earlier decisions, had observed as follows: “The decision of a Court is a precedent, if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons do not amount to a precedent.”

To me, it appears that the fundamental right to information is being amended and seriously constricted without legitimacy, and the nation is quietly allowing it to happen with no discussion. Many constitutional experts and Supreme Court judgments have established that Article 19(1)(a) of the Constitution covers the fundamental right to free speech, the right to publish and the right to information. The Right to Information [RTI] Act, 2005 codified this right.

It appears that the fundamental right to information is being amended and seriously constricted without legitimacy, and the nation is quietly allowing it to happen with no discussion.

Since democracy is rule ‘of the people, by the people and for the people’, citizens own the government and everything that belongs to it. They provide legitimacy to their elected representatives to run the government by employing public servants.

The RTI Act effectively recognizes the sovereignty of the Indian citizen and her ownership over all the information held by her government on her behalf. It therefore accepts that the default mode should be that all information must be shared with her. Barring ten exemptions outlined in Section 8(1) of the Act, all information must be disclosed to the citizen.

It is worth noting that most of the exemptions are in line with Article 19(2) of our Constitution, which permits reasonable restrictions on the freedom under Article 19(1)(a) 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.”

Misuse of Section 8(1)(j) under the garb of ‘personal information’

According to a study by the Commonwealth Human Rights Initiative, out of the ten exemptions in section 8(1), section 8(1)(j) is invoked in over 35 per cent of the cases. 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:

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

Across the nation many Public Information Officers [PIOs], First Appellate Authorities, Information Commissions and judges are denying information claiming exemption under section 8(1)(j) on the grounds that it is ‘personal information’, since some person’s name is in it. This is completely wrong and a gross misuse of the exemption provision.

A careful reading of this subsection shows that if the information is ‘personal’, it may be exempt under section 8(1)(j) provided :

  1. the disclosure has no relationship to any public activity or interest, or/and
  2. would cause unwarranted invasion of the privacy of the individual,
  3. unless there is a larger public interest in disclosure.

In most cases, it is a difficult task to establish a larger public interest. It is unlikely that PIOs or First Appellate Authorities would determine information to be exempt, and then disclose the information on the basis of larger public interest. Even at the level of Information Commissioners, this is quite rare and will not occur in more than five per cent of the cases.

According to the law, whoever decides to deny information on the basis of section 8(1)(j) must first come to a conclusion that the information is personal and the disclosure has no relationship to any public activity or interest. In most cases, the information which is sought is of a public record which is the outcome of a public activity.

Next, they must decide whether disclosure would be an unwarranted invasion of the privacy of an individual. This is a difficult decision to take, since there are a variety of views on what constitutes ‘privacy’. The Supreme Court’s landmark Puttaswamy judgment of 2017 does not offer clear guidance on this subject.

The Parliament realized this difficulty in deciding about public activity and privacy, and hence provided an acid test of the proviso to be applied before denying information:
“Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

The words were carefully crafted. This can only have one meaning: The person claiming or upholding the denial of information claiming exemption under section 8(1)(j) would have to make a subjective assessment and declare that they would deny the information to Parliament or a State Legislature too.

Without such a declaration, a claim of exemption under section 8(1)(j) would not be valid in law. It would be legitimate to do this if disclosure violated ‘decency or morality’. Unfortunately, most denials of information claiming exemption under this subsection completely forget this essential requirement.

The problem with Girish Ramchandra Deshpande

This trend has become popular after the judgment in Girish Ramchandra Deshpande vs. Central Information Commr. & Ors. (2012) by the Supreme Court.

The person claiming or upholding the denial of information claiming exemption under section 8(1)(j) has to make a subjective assessment and declare that they would deny the information to Parliament or a State Legislature too.

Without such a declaration, a claim of exemption under section 8(1)(j) would not be valid in law. It would be legitimate to do this if disclosure violated ‘decency or morality’. Unfortunately, most denials of information claiming exemption under this subsection completely forget this essential requirement.

The petitioner Deshpande had sought copies of memos, show cause notices and censure/punishment awarded to a public servant. He had also demanded details of assets and gifts received by this public servant. Since the Central Information Commission gave an adverse ruling, he finally went to the Supreme Court. The Supreme Court’s judgment in response to Deshpande’s special leave petition states:

“12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions.

Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be “personal information” as defined in clause (j) of Section 8(1) of the RTI Act.

  1. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act.
  2. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest.
  3. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
  4. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.”

This should not be a legal precedent since there is no reasoning furnished on the basis of which the court came to the conclusion that the information was covered by the said clause. There is no discussion on the proviso and no declaration that the court would order denial of the information to parliament. In fact, when quoting the law, the proviso has been forgotten. Unfortunately, this judgment has been accepted as a precedent in subsequent Supreme Court judgments.

Girish Ramchandra Deshpande does not follow the clear ratio decidendi of R. Rajagopal v. State of Tamil Nadu (1994) which after giving elaborate reasons, stated:

“We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone.” A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.

None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages Position may, however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article 19(2)) an exception must be carved out to this rule, viz, a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being published in press/media.

(3) There is yet another exception to the Rule in (1) above – indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”

Current flawed reading of Section 8(1)(j)

Girish Ramchandra Deshpande does not follow the ratio of R. Rajagopal, nor does it give any reasoning as per the law, and hence should not be treated as a legal precedent. Most information can be called ‘personal’ since it relates to a natural person. Most public authorities now deny any uncomfortable information by labelling it ‘personal’. The provision of section 8(1)(j) is now being read as:

‘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:

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

This is tantamount to an amendment in the law and seriously affects the cherished fundamental right of citizens.

Presently, some of the information often being denied under section 8(1)(j) is as follows:

  1. Allocation of subsidized plots to politicians, officers and judges.
  2. Beneficiaries of various subsidies and other welfare schemes: There are many ghost beneficiaries.
  3. Educational, caste, income certificates of people: There are instances where applications under the RTI Act have uncovered fake education certificates even of doctors working in government hospitals.
  4. Marks obtained in competitive exams: In many cases, people with higher marks have not been chosen.
  5. Official Foreign visits.
  6. Details regarding a public servant: memos, show cause notices, censure/punishment awarded, details of movable and immovable properties, details of investments, lending and borrowing from Banks and other financial institutions, and gifts received.
  7. Details of expenditure related to MLAs’ [Members of Legislative Assembly] funds, on the ground that it is personal information relating to the MLA.
  8. File notings.

Girish Ramchandra Deshpande does not follow the ratio of R. Rajagopal, nor does it give any reasoning as per the law, and hence should not be treated as a legal precedent.

A major provision of the RTI Act has been amended by a judicial pronouncement which appears to be flawed. It is also violative of Article 19(2) of the Constitution. A major tool of citizens to bring the shenanigans, and arbitrary and corrupt acts of public servants has been affected adversely without proper reasoning. The objective in the law’s preamble to curb corruption is being defeated.

Commissioners and citizens must discuss this, and it must be recognized that Girish Ramchandra Deshpande does not lay down the law on section 8(1) (j) of the RTI Act, and is contrary to the ratio of the R. Rajagopal and Association for Democratic Reforms judgments. However, Girish Ramchandra Deshpande has been treated as a precedent in subsequent Supreme Court judgments and is now being used widely to deny information which the PIO does not wish to part with.

A major provision of the RTI Act has been amended by a judicial pronouncement which appears to be flawed. It is also violative of Article 19(2) of the Constitution. A major tool of citizens to bring the shenanigans, and arbitrary and corrupt acts of public servants has been affected adversely without proper reasoning.

Effectively, the law has been amended and most information which can be called personal is being denied. This conceals corruption, protects people who have submitted false bills or certificates, and makes it impossible to get accountability and arbitrariness in governance. The law’s objective of curbing corruption is being defeated. This is also contrary to Section 4(1)(b)(xii) of the RTI Act, which requires details of beneficiaries to be shared suo moto. It is respectfully submitted that the decision is not in consonance with the law passed by parliament and the Constitution.

Shailesh Gandhi is a former Central Information Commissioner.

The article was first published in The Leaflet as How the Supreme Court’s flawed judgment in Girish Ramchandra Deshpande case has led to denial of information under Section 8(1)(j) of the RTI Act on April 29,2022.

Disclaimer: All views expressed in the article belong solely to the author and not necessarily to the organization.

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Acknowledgment: This article was posted by Nadiya Murshed, a research intern at IMPRI.