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Supreme Court and RTI

Supreme Court and RTI. Shailesh Gandhi. Constitutional position of RTI. Article 19: Protection of certain rights regarding freedom of speech, etc (1) All citizens shall have the right- (a) to freedom of speech and expression;

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Supreme Court and RTI

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  1. Supreme Court and RTI Shailesh Gandhi

  2. Constitutional position of RTI • Article 19: Protection of certain rights regarding freedom of speech, etc • (1) All citizens shall have the right- • (a) to freedom of speech and expression; • 19 (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 • Section 7 (1) of the RTI Act categorically states that the only reason for denial of information are given in sections 8 and 9

  3. CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497.9 August 2011 • Para 37. “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. “ • Consequence: Licence to call RTI applicants oppressors, misusers, obstructing and hindering the nation’s progress, integration, peace and harmony. It follows that they could be condemned and attacked verbally. This has led to justification of physical attacks of RTI users.

  4. Girish Ramchandra Deshpande Vs. CIC (2013) 1 SCC 2123 October 2012 • The Apex Court held that copies of all memos, show cause notices and orders of censure/punishment, assets, income tax returns, details of gifts received etc. by a public servant are personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted and cannot be furnished under RTI Act. • 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.” • Has been read by the Court 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 like a major amendment to the law, which only parliament is authorized to do. It is a constriction of RTI beyond what is permitted by law or Constitution.

  5. R Rajagopal and Anr. v state of Tamil Nadu (1994), SC Ratio Decidendi : “28. 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.” The ADR-PUCL case

  6. R.K. Jain Vs. Union of India JT 2013 (10) SC 43016 April, 2013 • The Court held that: Relying upon the ruling made in Girish Ramchandra Deshpande case, the information is exempted from disclosure under Section 8 (1) (j). read with section 11 of the RTI Act. •  Para 13”…. Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in such case after written notice to the third party of the request, the Officer may disclose the information, if the third party agrees to such request or if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.” • Section 11(1) “Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information.

  7. Canara Bank Versus CS Shyam and ors. Civil appeal no. 22 of 2009 31 August 2017 • Issue before the Court: Information regarding transfer and posting of the entire clerical staff from 01.01.2002 to 31.07.2006 in all the branches of Canara Bank. This information was in relation to the details of individual employees such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. • Judgement para 12“ In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, it may not be necessary to re-examine any legal issue urged in this appeal.” • Para 14: “In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act.” • Effectively all personal information may be barred. Wherever a person’s name is mentioned information may be denied, effectively making it very easy to deny information in most cases.

  8. UPSC vs. Angesh Kumar20 February 2018 • “62. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the Governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act, that is, Section 8 of the Freedom to Information Act, 2002. The courts and Information Commissions enforcing the provisions of the RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting Section 8 and the other provisions of the Act.” • This is reproduction of para 34 in CBSE. The Court appears to imply that the law need not be read strictly and adjudicators have to arrive at their own way and ‘harmonise’ the law. • “Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing.” • This means that the CBSE ruling on disclosure applies only to that board and other examination boards could contest disclosure of answersheets !

  9. Bizzare Examples by Public authorities: • 1. DOPT • I want the following information:1) Total number of Annual Performance Appraisal reports (APAR) of these officersPending presently for over one year, two years, three years and four years. • Rejected based on Section 8 (1) (j) ! Girish Deshpande quoted. • 2. Thane Municipal Corporation • There are reports that the Thane Municipal Commissioner has sent a letter/complaint to the Police about RTI users being blackmailers/extortionists and asking for investigation/action against them. I want a copy of the letter. • Rejected claiming exemption by Section 8 (1) (j)

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