Dismantle the walls of secrecy

Recent orders of the Madras High Court have redefined the RTI Act — reducing its scope, expanding its restrictions and creating new grounds for denial of information

October 04, 2014 01:39 am | Updated October 18, 2016 01:41 pm IST

The RTI Act allows for citizens' access to information without anyone asking for it. Picture shows citizens in Karnataka demanding the implementation of the Act. Photo: K. Gopinathan

The RTI Act allows for citizens' access to information without anyone asking for it. Picture shows citizens in Karnataka demanding the implementation of the Act. Photo: K. Gopinathan

The Madras High Court recently took a significant step to rectify its own order in a case dated September 17 by restoring Section 6(2) of the Right to Information (RTI) Act, 2005, to say: “An applicant making a request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.” However, in spite of the court deleting two paragraphs from its earlier judgment in The Public Information Officer, the Registrar (Administration), High Court Madras v. The Central Information Commissioner & B. Bharathi case, contradictions remain to the spirit of the RTI Act as “law.”

The RTI Act allows for citizens’ access to information without anyone asking for it. Section 4 of the Act states that information ought to be provided by public authorities suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act. Further, information which is not exempted and certain information which, even if exempted, can be provided if larger public interest is shown. Only with reference to this that the identity of the individual and the reasons for seeking information become necessary to ascertain whether any larger public interest is involved. It is with regard to this section that the Madras High Court bench’s recent assertion — “furnishing of those information will hinder the regular, smooth and proper functioning of the institution [and] cannot be given unnecessarily warranting scrupulous litigations” — requires further rectification. The court’s assertion is in direct contradiction with the preamble of the RTI Act which states that the RTI is “an Act to provide for setting out the practical regime of right to information.”

Besides this, several walls of secrecy have been erected around access to information by three division bench orders of the Madras High Court which require examining.

No enforceable legal right

In Registrar General v. K. Elango , the court said: “Further we are of considered view that the applicant has no locus standi to seek details sought by him.” What the court’s order implies is that an information seeker under the RTI does not have the right to bring an action, to be heard in court, or to address the court on a matter before it. The September 17 order reiterated this point by asserting that the applicant has no enforceable legal right. If this is how the law is interpreted, then the citizen’s right to information almost stands abolished.

By way of judicial activism a PIL was created earlier to reduce the rigour of the rule of locus standi. A common man will not be in a position to understand why a High Court should reintroduce this rule in the context of RTI. By relaxing locus standi, the previous PIL alleviated the sufferings of the aggrieved party who could not approach courts. In the rectification order of the Madras High Court, only two paragraphs opposing Section 6(2) were removed, but the wall of secrecy through invocation of the rule of locus standi remains.

No file notings

In The Registrar General v. K. Elango judgment, the court says: “Notings, jottings, administrative letters, intricate internal discussions, deliberations etc. of the High Court cannot be brought under Section 2(j) of the RTI.” The RTI Act and several judgements upheld file notings as part of information that could be legitimately accessed. In the September 17 order, the division Bench said: “It will have an adverse impact on the regular, normal and serene functioning of the High Court office on the administrative side.” Para 22 containing approval of this order has been deleted. But the orders in the Elango and Registrar General High Court of Madras v. R.M. Subramanian cases (2013) remain. Thus, public authorities may find a new ground to stonewall RTI questions saying they will affect their “serene” functioning.

Referring to the complaint that file notings were not given, the September 17 order says that such information cannot be denied as held in the Elango case. This paragraph has not been deleted. Thus the wall of no file notings has been resurrected. In Para 25, the judgment says: “Furnishing of those information will certainly impede and hinder the regular, smooth and proper functioning of the institution, unnecessarily warranting scrupulous litigation.” In this para, where the Bench has insisted on revealing reasons and has raised the issue of locus standi of the respondent in seeking information, the rectification effect has to be doubted.

Privacy of High Court

In the Elango case the High Court says: “Information should be denied for the purpose of maintaining utmost confidentiality and secrecy of the delicate functioning of the internal matters of High Courts. Usage of undefined expressions such as “delicate functioning,” “utmost confidentiality,” “secrecy,” and “delicate functioning” in these orders will ensure that the right to access information further shrinks.

The matter is sub judice and is pending before the court. According to Section 8(1)(b), only when there is a specific prohibition by the court can information be denied. Sub judice was not a ground for denial; yet, Para 27 of the judgment states that it is.

The secrecy and privacy of the internal working process may get jeopardised. Besides, the furnishing of the said information would result in the invasion of privacy of the individuals concerned. Privacy is an integral part of the right to life of persons as explained by the judiciary. Can institutions then claim privacy?

The Chief Justice of the High Court can be provided with enough freedom and inbuilt safeguards in exercising his discretionary powers either to furnish the information or not part with it (Para 94 of Registrar General High Court of Madras v. R.M. Subramanian , 2013). This means the office of the Chief Justice of High Court is totally exempted, which was not the intention of the legislation. If the 2013 order operates as law, the question — can judiciary legislate against Parliament — remains.

The courts will always try to find out whether the applicant has sought the information with bona fide intention and whether such information has any relevance for his request. If it is so, each PIO will decide the fate of the RTI based on his understanding of relevance — another iron wall indeed.

The September 17 order used expressions like “not in a position to understand” (Para 29) and “cannot be furnished.” It says: “[The] furnishing of information with regard to the Registrar General which has been acted by the Honourable Chief Justice of Madras High Court cannot be brought under the purview of Section 2(j) of the RTI, as such information pertains to the internal intricate functioning/ administration of the High Court.” It also says: Posting of Registrar General by [the] Chief Justice is in exercise of powers under Article 229 of the Constitution and [the] appellant or any person, including other judges, has no say. Hence information about it cannot be given.” This proves that there is a wall of secrecy built around the process of appointment of the Registrar General; the Supreme Court on the other hand had held that correspondence on appointment of judges should be disclosed.

Finally, Para 30 of the order says RTI cannot be the way to redress grievance. There is no such prohibition in the law. If the mechanism of redressal of grievance is lacking, the citizen will a file complaint and then an RTI to know its status. Why should he not be informed about action on complaint?

The three orders have redefined the RTI Act — reducing its scope, expanding its restrictions, creating new grounds for denial of information and claiming total exemption to its administration. They need to be reviewed so that the walls of secrecy can be demolished.

(Madabhushi Sridhar is Central Information Commissioner.)

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