Exemptions from disclosure of information under RTI

The Right to Information Act, 2005 has been probably the most discussed law of the recent times and also has given much more power to the people than any other law. Its basic aim is "to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority"[1]. The same has been hailed as the win of democracy over the hurdles created by the archaic system of rules set in place by the erstwhile rulers of India. No paper which goes into any aspect of the Right to Information Act, 2005 would be complete without acknowledging the efforts of the Mazdoor Kisan Shakthi Sanghatana[2], whose hard work is lauded by one and all. This paper will try and deal with those provisions of this landmark law, which either prevent the information from being received by the seeker or also attempt to analyze the so called hurdles existing in this process by studying the other provisions of Indian Laws. It has been divided into two parts, wherein the first part deals with Exemptions from disclosure of information (as per Sec. 8, Sec. 9 and Sec. 24 of the Right to Information Act, 2005[3]), the second part will make a assessment of the provisions of certain colonial laws such as Official Secrets Act and Civil Services Code of Conduct Rules with respect to its incongruity with the RTI '05.

The practice of excluding information from the public at large has been in subsistence. Many international documents signed by India too endorse this fact. The remarkable ones, deserving a special mention would be Article 12 of the Universal Declaration of Human Rights and also Article 14 of the International Covenant on Civil and Political Rights[4]. This ritual of excluding the public at large from certain information at the sake of the society has been responsible for majority of the debates over RTI '05. Furthermore, the statements given by the Chief Information Officer of India, Wajahat Habibullah, on the redundancy of the Official Secrets Act, 1923[5] and the RTI '05 prevailing over the former act have added more fire to this debate.[6]

Part I
The Right to Information Act provides that certain sensitive information may be withheld from the public, if the public authority in possession of the information thinks that the same is likely to jeopardize either national interests or to violate the trade secrets. These exceptions are found in primarily, in Sec. 8 and Sec. 9 of the RTI '05. However, contrary to the popular conception, Sec. 7(9) is not an exception.[7]

Section 8 lays down certain qualified exemptions, which are subject to the Public Interest Test. Here, the public authority in possession of the information, must consider whether there is greater public interest in disclosing the information or withholding the information (popularly called- balancing the public interest or herein referred to as the Public Interest Test). Surprisingly, the RTI '05 fails to mention anywhere the definition of a 'public authority'. This term is not found defined in any freedom of information law of the world.[8] Public Interest, in such circumstances would hold the key while making the decision of whether the information is to be withheld or disclosed. Public Interest, in the opinion of the Supreme Court of India has been expressed by way of Supreme Court Guidelines for maintaining a Public Interest Litigation, 1998 and also in cases like Janta Dal v. VHS Choudhary[9], S P Gupta v. President of India[10], or State of Gujarat v Mirzapur Moti Kureshi Kasab Jamat [11]

Further discussing the exemptions laid down in Sec. 8 of RTI '05, the deduction that all the qualified exemptions can further be categorized into three:
a. Class Exemptions
Section 8 [1] (b), (e), (f), and (i) contains these exemptions. In these cases, the public authority may not demonstrate any harm, but simply might show that the information is exempted under the above mentioned clauses.

b. Prejudice based Exemptions
The degree of prejudice is not specified, so any level of prejudice might be argued. However, less significant the prejudice is shown to be, the higher the chance of the public interest falling in favour of disclosure of the information in question. Whether prejudice exists is a matter of fact to be decided on a case to case basis. Section 8 [1] (a), (c), (d), (g), (h), and (j) contains these exemptions.

c. Time limited Exemptions
Section 8 [3] imposes time limit on exemptions. Section 8 [1] (b), (d), (e), (f), (g), (h), and (j) are time limited exemptions, which are no longer valid exemptions after 20 years from the date of the record.

All the exemptions that are made by the Public Authority are discretionary and not mandatory. The public authority may take such decisions as a matter of administrative discretion, where they are not prohibited otherwise from doing so.

Sec. 9 of the RTI '05 lays down that any information, whose copyright is not held by the state, cannot be provided by it under any circumstances. This exemption laid down in the RTI '05 is not a qualified exemption, but rather an absolute one. It is primarily intended to prevent misuse of the RTI '05 by the Governmental agencies, especially in matters of infringement of copyright and the like.

Section 24 of the RTI '05 dictates that the intelligence and security organisations cannot fall under the purview of this act. It also makes a statement to the effect that any information given by such agencies to the Government too would be outside the scope of the applicability of this act. These organizations are sought to be mentioned in Second Schedule of the RTI '05, which has a comprehensive list of 18 different organizations. However, the Section also lays down a proviso to prevent the basic aim of the act from being violated by declaring that allegations of corruptions and violations of human rights cannot be excluded under this act. Therefore, this section can be said to be the quintessence of the spirit of democracy as it provides for information to the public, but at the same time, puts a reasonable limit in place over the same.

Under powers conferred by Section 24 (4) of the RTI '05, the only notification till date has come from the Office of Governor of State of Tamil Nadu, dated 14 - 10 - 2005, and it reads to exclude many of the Correcting Agencies of the State like Cyber Crime Cell, Idol Wing, Police Radio branch, Costal Security Group, Finger prints bureau, etc.

Part II
The OSA '23 came into the news when the Government of India, through the CBI[12] decided to proceed in action against a former RAW[13] Official V K Singh for not following the guidelines under the same act (in 2007)[14]. In fact, the folly of the CBI in that particular matter came to the fore almost immediately as a simple study of the provisions of law reviled that by exposing corruption in RAW, no violation had been committed by the official. Further, the same act had already been given the status of being "incongruous with the regime of democracy" by the Administrative Reforms Commission[15] in 2006 itself.[16] The ARC had in fact suggested to the Prime Minister in his report that suitable security measures could be implemented in the National Security Act, and the OSA '23 could be scrapped altogether. Although the most popular case on the conflict between OSA '23 and the RTI '05 would undoubtedly be Iftikhar Gilani case[17] wherein the journalist was falsely implicated of having classified information despite of the same being freely available to public at large.

This case was the pioneer in setting up the incongruence between the OSA '23 and the RTI '05. Despite of various petitions to the President Of India, from the Members of Parliament, Reporters of various media, etc, till date no decision has been taken despite the victimization of various such prominent and intelligent officials.

Technically speaking, the OSA '23 is India's anti - espionage act which was acquired from the British. It states clearly that any action which involves helping an enemy state against India. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area. According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy. The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act. However, in the OSA clause 6, information from any governmental office is considered official information; hence it can be used to override freedom of information requests. This has drawn harsh criticism.[18] In fact, the Chief Information Officer of the Government of India, has pondered aloud over this issue by taking a stand against the Government of India, especially the CBI. In his view, India being a democracy, public is the government and hence there cannot be any protection offered by the OSA '23 to the Government from the public at large. He further elaborates the law point by discussing the core of Section 8 (d), (e) and (j), wherein the Information Officer on being satisfied that "public interest in disclosure outweighs the harm to the protected interests" can issue even information held as secret under OSA '05.

However, there have been Constitutional Law experts from other countries who have expressed their opinion on such type of conflict. In view of J. Duncan and M. Derrett,[19] although such an inconsistency is inevitable, there can be a action taken up by the judiciary on the issue and the matter can be resolved on a prompt action basis. Otherwise, there might be more and more cases wherein, the authorities will be at a loss to take decisions in favour of the public, thus rendering the law laid down for their benefit as an ineffective statue.[20]

Similarly, there are many who argue and view the Right to Information as a constitutional right, by way of judicial amendment.[21] Discussing the scope of the notion of "judicial amendment[22]" it is worth noting that Justice Krishna Iyer along with Justice Tulzapurkar in the case of Nandani Satpathy v. Dani (P.L.) and anr.[23], have introduced the concept of 'judicial amendment' and hence, the same is an acceptable proposition in the Indian Law. Moreover, it is also observed that in the US / Canadian Law, amendment of the Constitution by the Judiciary is not only acceptable, but also commended upon if worth its weight. Similarly, though the world's biggest democracy does not have any statue on the provisions for sexual harassment of women at workplace, the guidelines laid down in the ground-breaking judgment of Vishakha v/s State of Rajasthan [24] have been accepted and implemented, hence, the same concept of 'judicial amendment' finds its place in the Indian jurisprudence as well.

Based upon this concept and the decision of the Hon'ble Supreme Court in Peoples Union for Civil Liberties v. Union of India[25] by observing that Right of information is a facet of the freedom of 'speech and expression' as contained in Article 19(1)(a) of the Constitution of India, as reiterated by the Court, we can conclude that the purview of Art. 19 (1)(a) read with Art. 21 is wide enough to include the Right to information, and thus, the same is indisputably a fundamental right.[26] The supporters of this view point out that even the "basic structure" test laid down in Keshavanada Bharti Case[27] is satisfied, if the amendment of Right to Information as a fundamental right is made as the same works in strengthening the democracy of the country without derogating the basic features of the Constitution like judicial review, democracy or Rule of Law. The OSA '23 is incongruous with the provisions of the RTI '05 as it violates a fundamental right granted under Part III of the Constitution.

Considering the Right to Information as a constitutionally granted fundamental right, we can also declare that the OSA '23 is thus, arbitrary with the basic fundamental principles laid down in the Constitution of India and hence should be struck down, by the judiciary. However, if it is not stuck down, the same will not be operative by the rule of 'doctrine of eclipse'[28], Speaking from the orthodox point of view, the doctrine of eclipse applies where a pre -constitutional law under the provisions of the Government of India Act, 1935 and became invalid on the coming of the Constitution of India.[29]

On operation of the Constitution, a shadow falls on because it is inconsistent with the Constitution. The act is eclipsed.[30] The case is very much as was observed by the Supreme Court in Bhikaji Narain Dhakras v. M.P.[31], wherein, the Court while interpreting Article 13 of the Indian Constitution relied upon the theory of eclipse and observed that the impugned unconstitutional existing law is eclipsed for the time being by the fundamental right but is revived as soon as the constitutional fetter is removed. However, the same is to be made applicable even to pre-constitutional law in the broad outlook of post constitutional amendment, if the same is implemented as suggested by various critics.

Endnotes
[1] Right to Information Act, 2005, Bare Text
[2] MKSS, was instrumental in drawing the attention of the public to demand for a Right to Information, especially in Rajasthan, where its base is very strong.
[3] Herein after mentioned as RTI '05
[4] India is a signatory to the above mentioned convention
[5] Herein after mentioned as OSA '23
[6] Ritu Sarin, "The RTI debate catches on ...", Times of India, 17 May 2006, Mumbai Edition
[7] By virtue of the decision of the CIC Sarbajit Roy v D.D.A.,Decision, No.10/1/2005-CIC,Dt.25.02.2006
[8] Srinivas Madhav, "The Right to Information and Public Interest - A Primer", RTI Manual, March 2007
[9] [1992] 4 SCC 305
[10] AIR 1982 SC 149
[11] AIR 2006 SC 212
[12] Central Bureau of Investigation
[13] Research and Analysis Wing of India
[14] Times of India, Ex-RAW official questions relevance of Official Secrets Act, 28 Sep 2007
[15] Herein after mentioned as ARC
[16] Times of India, Scrap Official Secrets Act: Reforms panel, 9 Jun 2006
[17] Taken from various news reports and Iftikhar Gilani's book - My Days in Prison,
[18] As quoted by en.wikipedia.org
[19] Studies in Law: An Anthology of Essays in Municipal and International Law. Edited by V. V. Deshpande. [Bombay: Asia Publishing House. 1961. 524 pp]
[20] International and Comparative Law Quarterly, Vol. 11, No. 2 (Apr., 1962), pp. 629-631
[21] St. of U.P v. Raj Narain - Right to know as inherent part of fundamental right under Art. 19 (1) [a] and Art. 21
[22] There are two methods of amending the Constitution - (1) Parliamentary Amendment and (2) Amendment by the judiciary in the wake of its powers of interpretation.
[23] 1978 AIR 1025 : 1978 SCR (3) 608 : 1978 SCC (2) 424
[24] 1997 AIR SCW 3043
[25] (1997) 1 SCC 301
[26] As rightfully pointed out by Vienaya Ganesan in her article "Should Right to Information Have Been Granted as a Fundamental Right?"
[27] AIR 1973 SC 1461
[28] India in 1975: Democracy in Eclipse, Norman D. Palmer, Asian Survey, Vol. 16, No. 2, A Survey of Asia in 1975: Part II (Feb., 1976), pp. 95-110, University of California Press, copyright - JSTOR
[29] Human Rights - Comparative and International Perspective, Joan Church, Christian Schulze, Hennie Strydom, Unisa Press, 2007 (with special reference to India)
[30] Introduction to Constitution of India - Brij Kishore
[31] AIR 1955 SC 781

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