How Supreme Court has not upheld the spirit of RTI Act over the years

Supreme Court’s latest instruction to RBI is seen as a U-turn from 4 years ago. But this isn’t the only time the court seems to have changed its stance on RTI.

The Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: Four years ago, the Supreme Court told the Reserve Bank of India (RBI) that it must release all information sought under the Right to Information Act, in the interest of transparency and accountability.

But last week, the court seemingly diluted its own order, and asked the RBI to not make banks’ inspection reports, risk assessment reports and financial inspection reports public.

With the RBI being a repository of crucial information on non-performing assets, loan defaulters, etc., the judgment is being seen as a problematic U-turn of sorts.

“The Supreme Court itself came up with a very clear, lucid judgment on how the RBI should release information in public interest, so this interim stay allowing withholding of information is problematic and dangerous,” said RTI activist Anjali Bharadwaj.

However, this is not the only time when the judiciary seems to have failed to uphold the spirit of the RTI Act in the last few years. At a time when the government has controversially amended key provisions of the RTI Act, which gave considerable autonomy to the information commissioners, RTI activists and former information commissioners argue that the courts too seem to be attacking its spirit.

The judgment that brought CJI office under RTI

Earlier this month, Chief Justice of India S.A. Bobde observed that the extensive use of the RTI Act has created “a sense of paralysis and fear” in the government, precluding those in the government from taking decisions. Underscoring the “abuse” of the Act, the CJI said there is a need to lay down guidelines on its use, since the RTI was not an “unrivalled” right.

Before that, in November, while the Supreme Court brought the Chief Justice’s office under the ambit of the RTI Act, the judgment was criticised for “expanding the power, length and depth of exceptions under Section 8 of the act”. 

Paragraph 59 of the judgment read: “Reading of the aforesaid judicial precedents… would indicate that personal records, including name, address, physical, mental and psychological status… are all treated as personal information. Similarly, professional records, including… evaluation reports, disciplinary proceedings, etc. are all personal information. Medical records… information relating to assets, liabilities, income tax returns… are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive.”

Former chief information commissioner Wajahat Habibullah said of the judgment: “What is excluded from the RTI Act is already specified in Section 8 of the Act… Anything other than that is an exercise in imagination. If the SC brought the CJI office under the scope of the RTI Act, it was an exception to other SC rulings on the RTI.”

In the same judgment, the court made observations that were viewed as “unfortunate” and “shocking” by RTI activists.

In a concurring judgment, Justice N.V. Ramana said the RTI “cannot be allowed to run to its absolute”.

“We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary,” he said.

Prior instances

This was not the first time the Supreme Court highlighted the purported perils of the RTI.

In the Girish Ramchandra Deshpande v. Central Information Commissioner case, the Supreme Court said in 2012 that information on records of public servants cannot be revealed unless a larger public interest is demonstrated.

Former information commissioner Sridhar Acharyulu argued in an article that until now, this judgment was used extensively by the government to deny information under the RTI.

In the Canara Bank v. C.S. Shyam case, the court ruled that information about individual bank employees, which were personal in nature and devoid of any public interest, would be exempted under the RTI Act.

Times the court batted for RTI

There is a stark contrast between the top court’s recent observation and its judgments and observations declaring the right to information as a fundamental right in any democracy before the Act was even formulated.

“Before the law came, the SC played a critical role in the right to information by upholding it as a fundamental right,” said Bharadwaj. “But since the right has been enacted, the courts interpretations have become increasingly restrictive.”

In the 1982 S.P. Gupta v. President of India judgment, the court had said the “disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands”.

Seven years later, in the Reliance Petrochemicals v Proprietors of Indian Express case, the court said the right was a facet of the fundamental right to life.

Battle between RTI and right to privacy

Over the years, courts have consistently sought to draw a clear distinction between the right to information and the right to privacy.

In 2015, for example, the Supreme Court ruled that the medical expenses of judges cannot be declared under the RTI, since there should be “some respect for privacy”.

“Today, he is asking information for medical expenses. Tomorrow, he will ask what are the medicines purchased by the judges. When there will be a list of medicines he can make out what type of ailment the judge is suffering from. It starts like this. Where does this stop?” a bench headed by former CJI H.L. Dattu had said.

In 2012, the top court had ruled that the names of interviewers to select candidates for government jobs could not be revealed, since it could endanger their lives.

“There are many such small cases when the SC has not upheld the spirit of the RTI, and broadened the scope of exceptions,” said an RTI activist who did not want to be named. “They don’t get much attention but act as precedents for the government to deny more information.”

However, an advocate-on-record familiar with the RTI Act said privacy has become a fundamental right only recently, and thus it is now incumbent upon courts to balance the two fundamental rights.

“What is read as an onslaught on the RTI is more often than not an attempt by the court to balance another fundamental right i.e. the right to privacy,” the advocate said.