Law Optional (CLD - RTI - Emerging Trends) by Rajnish Jindal

Model Answer

Question #1. Discuss the interplay between the right to privacy and the right to information in India, highlighting their significance in democratic governance. 10 marks (150 words)

The right to information (RTI) and the right to privacy (RTP) are two important rights upheld by the Supreme Court of India. For the most part, they are two sides of the same coin. They complement each other in giving Indian citizens the rights they value highly and holding the government accountable to the people. Many presume that when citizens invoke the RTI, then government bodies can seek shelter under the RTP.

Right to Information Act, 2005 in India, empowered citizens to access government information, exposing delays, flaws in welfare schemes, and decision-making insights for 18 years now.The RTI Act was enacted in 2005. However, since 1975, in multiple judgements, the Supreme Court has recognized the right to information as a fundamental right of citizens under Article 19(1)(a) of the Constitution on our freedom of speech and expression. This has been read together with Articles 14, 19 and 21 to guarantee our right to equality, right to freedom of speech and expression, and our right to life and liberty, respectively. Right to Information empowers every citizen to seek any information from the Government, inspect any Government documents and seek certified photocopies thereof. Right to Information also empowers citizens to official inspect any Government work or to take the sample of material used in any work.It was those judgements, together with the RTI movements by citizens that culminated in the RTI Act of 2005. This was an Act of Parliament that set forth a practical regime and framework to grant citizens this right and replaced the erstwhile Freedom of Information Act, 2002.

Right to Information Act 2005 mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities, PIOs etc.

Objective: The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed.The Act is a big step towards making the citizens informed about the activities of the Government.

Constitutional Provisions related to RTI:

• Article 19(1) (a): This article guarantees the fundamental right to freedom of speech and expression, which includes the right to seek and receive information. It forms the constitutional basis for the right to information.
• Article 21: The right to life and personal liberty under Article 21 has been interpreted by the courts to include the right to information. Access to information is seen as essential for the meaningful exercise of one's rights and liberties.
• Article 12: While not directly related to RTI, Article 12 defines the term "State" for the purposes of fundamental rights. Public authorities and government agencies are considered "State" under this article, and they are subject to the constitutional principles of transparency and accountability.
• Article 51A: Part of the Fundamental Duties, Article 51A (h) places a duty on every citizen to develop a scientific temper, humanism, and the spirit of inquiry and reform, which align with the objectives of the RTI Act in promoting informed citizenry.

On the other side, the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution in in K.S. Puttaswamyv. Union of India by the Supreme Court.

RTI vs. RTP:The actual challenge is when both these rights are at crossroad and enforcement of any one would lead to other being overridden. Thus, the RTI Act, 2005 paves the way for right to privacy by restricting the disclosure of the information which interferes with the privacy of any individual unless it is required for greater public good as per S. 8(1)(j) of the Right to Information Act, 2005.

The government stores a lot of personal information on individuals. This ranges from income tax returns and driving licence details to census data and medical information. When an application is made under the RTI Act for disclosure of some information on an identifiable individual, there is a conflict between the RTI and the RTP.

Personal information can be denied if it infringes an individual’s privacy. A good example is our medical records. Such information, the disclosure of which would invade someone’s privacy, is exempt from the RTI requirements. According to section 8(1)(j) of the RTI Act, if the information is personal and would cause an unwarranted invasion of privacy and serves no public interest, then it cannot be disclosed, unless the central public information officer or the state public information officer, or any other appellate authority, is of the opinion that the disclosure of this information would serve a larger public interest.

In Girish Ramchandra Deshpande v. Central Information Commission (2013), the issue before the Supreme Court was whether the Central Information Commission (CIC) can deny the information pertaining to the personal matters of a public servant, pertaining to his service career and the details of his assets, liabilities, movable and immovable properties on the basis of exception mentioned in Section 8(1)(j) of the RTI Act, 2005.

Section 8(1)(j) of the  RTI  Act, 2005 provides that Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen 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 Parliament or a State Legislature shall not be denied to any person.

The Court while expanding the scope of Section 8(1)(j) of the Act in the aforementioned case held that the documents pertaining to the public servant including his employment letter, assets, income tax return, details of gift received, orders of censure/punishment are exempted from being disclose by the virtue of Section 8(1)(j) and qualifies to be personal information. It further observed that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and these aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which would cause unwarranted invasion of privacy of that individual.

Further, the Supreme Court in R.K Jain v. Union of India (2013), wherein the appellant sought copies of all note sheets and correspondence pages as contained in an Annual Confidential Report (ACR) and any follow-up action pertaining integrity of a public servant was denied on the basis of Section 8(1)(j) of the RTI Act.

Again, in Canara Bank v. C.S. Shyam (2018), the Supreme Court again reiterated its position wherein the information sought was of personal information of an employee of Canara Bank. The court while affirming the position of Girish Deshpande case as well as R.K. Jain case held that personal information is outside the ambit of the RTI and that there was no public interest having larger good involved in respect of personal information being sought.

Conclusion:To conclude, right to privacy is not an absolute right and has to be placed in the context of other rights and values depending upon the facts of the case. And we see the beam balance swaying on either side when right to privacy and other rights are involved as we researched in the foregoing.Thus, it can be said that Right to Information and Right to Privacy are not completely irreconcilable, but can work in harmony with each other.

Question #2. Critically evaluate the role of Right to Information Act, 2005 in bringing transparency andaccountability in the working of every public authority and the citizens' right to secure the access to information. 15 marks (250 words)

2023 marked 18 years of the implementation of the RTI Act, which empowers people to question the Government.The Right to Information Act,simply known as RTI, is a revolutionary Act that aims to promote transparency in government institutions in India.The Act came into existence in 2005, after sustained efforts of anti-corruption activists.The basic objective of the Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.

Why is RTI empowering legislation for people?

• Obligation on the government to respond to them in a time-bound manner
• To get the information to hold the government accountable.
• Balance of power in favour of those governed.

Enacting the RTI Act in India was a landmark decision for several reasons:

• Fundamental Right to Information: The RTI Act recognized and reaffirmed the citizens' fundamental right to information. It provided a legal framework to access information held by public authorities, thereby empowering individuals to exercise their right to know and be informed about government activities.
• Strengthening Democracy: The RTI Act played a crucial role in strengthening democracy in India. It promoted transparency, accountability, and citizen participation by ensuring that citizens have the means to hold public authorities accountable for their actions. It facilitated informed decision-making and enabled citizens to actively engage in the democratic process.
• Curbing Corruption and Promoting Good Governance: The RTI Act acted as a significant tool in curbing corruption and promoting good governance. By providing access to information, it increased transparency in government operations and exposed instances of corruption and maladministration. It empowered citizens to demand accountability and seek redressal for any wrongdoing.
• Enhancing Efficiency and Effectiveness: The RTI Act had a positive impact on the efficiency and effectiveness of government processes. The availability of information through the act reduced bureaucratic delays, improved service delivery, and promoted better decision-making by public officials. It encouraged a culture of responsiveness and professionalism within government organizations.
• Empowering Marginalized Sections of Society: The RTI Act had a particularly empowering effect on marginalized sections of society. It provided them with a mechanism to access information, claim their entitlements, and fight against discrimination or neglect. It helped bridge the information gap and empowered individuals and communities to actively participate in matters affecting their lives.
• Setting a Global Example: The RTI Act in India served as a model for other countries seeking to implement similar legislation. Its success in promoting transparency, accountability, and citizen empowerment inspired many nations to enact their own Right to Information laws, contributing to the global transparency movement.

RTI Act fulfilling its purpose: It has fulfilled its purpose to some extent:

• The majority of the RTI applications are filed by people who are asking about their basic rights and entitlements.
• It enabled exposure to big-ticket scams such as the Adarsh, Commonwealth Games and Vyapam scams.
• It has also made it possible to expose human rights violations, and then force accountability in those cases as well.
• The Act is still effective despite the widespread attempts to dilute its efficacy

What are the challenges faced by the RTI Act?

• Resistance by bureaucracy: The public information officers these days use excuses like this division does not have the information.
• Resistance to sharing of information: Within the government, asking for information is not encouraged.
• Vacancies: Huge vacancies in information commissions means that appeals and complaints keep pending.A huge backlog of second appeals, lengthy wait time for hearings, hesitancy in posting penalties and increasing opacity in the working of the commissions have led SNS to this conclusion. The commissions have been plagued with vacancies, poor choice of commissioners, untrained staff and a non-cooperative set of public information officers (PIOs). The sufferers, however, are the applicants.
• Apart from the PIOs’ general inexperience and unprofessionalism, comes the threat to some RTI activists who seek information to expose corruption. According to the Commonwealth Human Rights Initiative (CHRI), across India, 99 RTI activists have lost their lives, 180 assaulted and 187 were threatened since 2006. While RTI is lauded in public, it faces fierce opposition from many within the bureaucracy and the lawmakers, the two key stakeholders of the RTI regime.
• 2,20,382 appeals and complaints were registered between July 1, 2022 and June 30, 2023 by 28 information commissions for which relevant information was available. During the same time period, 2,14,698 cases were disposed by 29 commissions. The number of appeals and complaints pending on June 30, 2023 in the 27 information commissions, from which data was obtained, stood at 3,21,537.
• As per the report of SatarkNagrikSangathan (NGO), using data on the backlog of cases in ICs and their monthly rate of disposal for the period under review, the time it would take to dispose an appeal/complaint filed with an IC on July 1, 2023 was computed in a range of less than a month (Sikkim) to 24 years in case of West Bengal.

Conclusion: The RTI Act is a sunshine legislation aimed at eradicating corruption and promoting transparency. The success stories range from highlighting scams worth crores to ensuring attendance of the sweepers in cities to identifying lost postal orders etc. The areas of corruption/ inefficiencies were known earlier in the Government, but citizens could not take recourse. However with the advent of the RTI Act, citizens have found a tool to bring in transparency and accountability at all levels of Governance. In particular, the RTI Act has a much higher impact on the quality of life of the poor and marginalised section of the society. The Indian information law, rated as one of the strongest in the world, needs to be bolstered by raising awareness amongst the people and organising rigorous training of government officials. A strong political system is a must for the RTI regime to flourish. It is imperative to ensure freedom of the press and democratic institutions, punish errant officials and maintain complete autonomy of the information commissions, in the interest of the people and the nation at large. As India emerges as a global power, the implementation of legislation like the RTI Act will be under the constant scrutiny of the comity of nations.