20 years of RTI Act: Is India’s sunshine act in sunset mode?

At its heart, the Right to Information Act is founded on the principle that in a democracy — defined as “rule of the people for the people by the people” — all information held by the government belongs to the citizens. The government acts as a custodian of this information on behalf of the populace. Citizens legitimise their representatives by electing them, who in turn legitimise the bureaucracy.

Therefore, the default mode under RTI is that all information must be shared with citizens. Citizens took to it with enthusiasm since this empowered them to monitor their government and get accountability.

Active citizens trained and helped others to use it effectively. The law lists 10 specific exemptions in Section 8 (1). If information does not fall within this it must be provided. 

Twenty years later, this sunshine law appears to be going into the sunset mode. There are many reasons for this decline. Some of them are poor choice of Information Commissioners, and enormous delays in disposing appeals. But the biggest damage to the law was by one Supreme Court judgment: Girish Ramchandra Deshpande v Central Information Commission & Ors (2012). 

Girish Deshpande had sought details and copies of memos, showcause notices and censure / punishment awarded to a public servant. He had also demanded details of assets and gifts received by this public servant. The court ruled that this information would not be given since it was personal information exempted under Section 8 (1) (j) of the RTI Act. The section 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.”

The court agreed with the contention that the information was exempted under Section 8 (1) (j) with the words: ‘13. We are in agreement with the Central Information Commission and the courts below that the details called for by the petitioner, ie 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.

The performance of an employee / officer in an organisation 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. 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.’

There was no determination of whether it was part of public activity or unwarranted invasion on privacy. The court held that these matters were between the employer and employee without noting that the employers are the citizens. Equally significant it did not deal with the proviso and declare that such information would be denied to parliament. In fact when quoting the section it did not even mention the proviso. Consequently many authorities started using this judgment when they wanted to deny information. Most of the information relates to persons and can be called personal. Parliament had crafted the proviso very carefully. 

This was meant as an acid test to ensure that denial if information was limited to the boundaries set by Article 19 (2) which permits reasonable restrictions on the fundamental right under Article 19 (1) (a). Article 19 (2) permits reasonable restrictions in the interest of “of sovereignty and integrity of India, security of the State, friendly relations with foreign nations, public order, decency or morality, contempt of court, defamation, incitement to an offense, or the sovereignty and integrity of Parliament.”  The only words relating to privacy are decency and morality.

Since parliament recognised the difficulty in defining privacy it provided a simple test in the proviso. If disclosure of some information violates decency or morality, it should not be given to parliament. Incidentally, the Puttaswami judgment which declared privacy as a fundamental right did not give a simple way to identify what constituted privacy. It said, “In the ultimate analysis, the fundamental right of privacy, which has so many developing facets, can only be developed on a case to case basis.“ The Girish Deshpande judgement legitimised denial of information if it could be linked to a person.

Across the country information about MLA funds expenditure, officer’s leave, caste certificates, file notings, educational degrees, beneficiaries of subsidies and much more are being denied. Many public information officers (PIO) are denying information which may have the name of a person claiming it is personal information and hence exempt. My RTI seeking the number of IAS officers whose Annual Confidential reports had not been received for over four years was denied by the PIO of DOPT since it sought information relating to persons! The Girish Deshpande judgment was referred to as a precedent in many Supreme Court and High Court judgments. 

It is interesting to note that in the Association for Democratic Reforms and the People's Union for Civil Liberties judgement the apex court had held that citizens had a right to know the assets of those who wanted to become public servants, the Girish Deshpande judgment laid down that citizens had no right to know about the assets of those who are public servants! Many authorities are demanding that citizens explain the public interest in the disclosure. They fail to realise that this is a fundamental right. However, many  officers and commissioners often gave information if it was not covered by the exemption as laid down by parliament.

The government has realised the flaw in the Girish Deshpande judgment and has used the device of the Digital Personal Data Protection (DPDP) to amend the RTI Act’s Section 8(1) (j) by retaining only the first six words. Digital Personal Data Protection (DPDP) Act amends Section 8 (1) (j) of the RTI Act by drastically altering Section 8 (1) (j) by reducing its length from 87 words to a mere six. This significant abbreviation, -reducing Section 8 (1) (j) to exempt- ‘information which relates to personal information’ - makes it easy for most information to be denied. This is also a tacit admission that all personal information is not exempt as per the present law. 

There is another surprise in the DPDP Act. Person is understood by most people to refer to human beings. DPDP Act’s definition is expansive and includes a "Hindu undivided family, a firm, a company, [and] any association of individuals and the State”. Thus information relating to the state could also be denied and called personal.  

We started this journey with one of the best laws in the world. Active citizens educated and helped others to use the law for personal and public good. It appeared that the objective of the law to empower citizens and curb corruption would be achieved. India would become not only the biggest democracy, but also the best. 

Citizens and media need to discuss these threats and create public opinion to safeguard their Right To Information and their democracy. 

Shailesh Gandhi is the former Central Information Commissioner. Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth.