The bureaucracy prefers secrecy, distance and mystification, not fundamentally different from colonial times
1. Good evening Ms. Sucheta Dalal, Shailesh Gandhi, and members of this distinguished gathering. It is a privilege and an honour to be here to speak at the inaugural RTI lecture, organised by the Moneylife Foundation, about “Transparency and Empowerment in Decision Making as Pillars of Healthy Democracy”. I will be speaking about these issues in the context of the RTI Act.
2. Before starting, I want to go back in time for a bit. In 330 B.C., one of the famous great Greek orators of the Classical Age, Aeschines, stood on the marble floors of an Athenian court and spoke of the importance of the public's right to inspect its government's records, “a fine thing, my fellow Athenians, a fine thing is the preservation of public records. For records do not change, and they do not shift sides with traitors, but they grant to you, the people, the opportunity to know whenever you want.”
3. 2000 years later, James Madison, the 4th President of the United States of America, expressed similar views, observing that a "popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy: or perhaps both... . A people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
4. What both these views have in common is the idea that the public’s right to information is the cornerstone of a democracy – a founding ideal that gives priority to transparency over secrecy. Our constitutional framers did not expressly include the right to information in the Indian Constitution, but they imbued the ideals of open government, accountability, and freedom of speech and expression within the Constitution, such that the Supreme Court, could, in later years derive a constitutional right to information from Article 19(1)(a).
B. Understanding the need for a “Right to Information”
5. There are various justifications that underlie the need for a right to information. Roy Peled and Yoram Robin in their excellent article on the “Constitutional Right to Information” published in the Columbia Human Rights Law Review break down the theoretical justifications for such a constitutional right into four prongs.
RTI as integral to a participatory democracy
6. They first speak about the “Political-Democratic” justification. This views the right to information as central to the effective functioning of a participatory and constitutional democracy, since it is a pre-condition to the exercise of other fundamental and constitutional rights such as the right to free speech.
7. Peled and Robin use the example of a 2004 request – for information submitted to the Pentagon for documents related to the 2001-2003 debates over estimate troop levels deployed in Iraq – to demonstrate the centrality of right to information. The released documents revealed that while the military prediction had been that around 5000 soldiers would be stationed in Iraq by the end of 2006, in reality, 1,34,000 American soldiers were still stationed on Iraqi soil in 2006 when the information was disclosed. Thus, the information provided a fulcrum for debate around the need and extent of US troop levels in Iraq, since it demonstrated the contrast in the government prediction and reality. A similar incident transpired in Israel, when on a petition submitted before it, the Israeli High Court ordered the release of hearing protocols on the Winongrad Commission to investigate the conduct of the Second Lebanon War, which played a great part in the formation of public opinion around the management of the war.
8. In the Indian context too, the right to information has been integral in fostering a culture of participatory democracy. No place is this more evident than in the recent Aadhaar debates. RTI activists, journalists, and ordinary citizens have successfully used the RTI Act to get information about the number of enrollment centres that have been blacklisted, about the number of Aadhaar cards that the UIDAI has deactivated or cancelled over the last 7 years, about the number of FIRs that have been filed by the UIDAI under section 47 of the Aadhaar Act, and about the basis for calculating the savings claims. RTI has thus been a treasure trove of information that has allowed us to know that there had been a disclosure of Aadhaar numbers and other personal data by over 210 government websites, which brought out the clear privacy dangers associated with Aadhaar and led to the UIDAI and government taking corrective measures. RTI applications also revealed that 99.97% of Aadhaar numbers were issued to people who already had two existing identification documents, thus questioning the government claim that Aadhaar was necessary in order to give everyone an identity.
9. RTI also helped in revealing the truth behind the functioning of the Jan Dhan Yojna, the government’s flagship scheme under which the unbanked get bank accounts. Indian Express sent RTI queries to more than 30 national and regional banks to report on a story about how bank officials were quietly making one-rupee deposits, some from their own allowances and some from money kept aside for office maintenance, with a view to reduce their branch’s tally of zero-balance accounts. RTI information revealed that 18 public sector banks and their 16 regional rural subsidiaries held 1.05 crore Jan Dhan accounts with deposits of Re 1. This led to a great public debate about such practices, zero balance accounts, and the efficacy of the Jan Dhan Yojna itself, and our democracy was only richer for it.
10. Just as democracy can be served by providing a right to information, it can also be hampered when there are obstructions to granting such a right. For instance, the Henderson Brooks-Bhagat Report, an inquiry into the Indo-China War of 1962 (and presumably the failures within the Establishment to prevent or respond to the war), has remained secret for the last 50 years, leaving the public in the dark about the mistakes that led to the disastrous war effort.
RTI as a foundational right to exercise other rights
11. A related justification for the constitutional elevation of the right to information is the “Instrumental” justification, which views this right as a necessary pre-requisite to allow citizens to exercise their other constitutional rights. This view focuses on reducing the dependence of the citizens on the State and enabling them to effectively exercise their right. Thus, just as the right to education creates a more informed citizenry, the right to information under such a view is important to allow them to hold the government to account.
12. When a public agency stores information touching upon an individual’s rights or duties, the only protection that the citizen has, is through a guaranteed right to information. Such a right, serves as a foundational human right, upon which the enjoyment of other rights depends. It also helps equal the power and information imbalance between the citizen and the State: the State provides citizens with a plethora of services, but also has the power of law enforcement and coercion to require compliance with certain duties. A right to information will help empower citizens against the excesses of the State, and bring about improvement in State functioning.
13. The importance of access to information has particular resonance in developing countries, where it plays a key role in growth and development. This was recognized by the UNDP as far back in 1997 in its Human Development Report, which focused on how poverty limits human choices and opportunities and is represented by a lack of political freedom and inability to participate in decision-making. The UNDP thus emphasised the need to empower the ordinary person to ensure their participation in the processes that affect daily life. A strategy for poverty reduction, after all, must focus not only on what needs to be done, but also on how to ensure that the action is to be taken. This requires fundamental reforms like promoting political participation by all, ensuring accountability and transparency in government, preventing the criminalisation of politics, promoting free flow of information, and freedom of the press, while ensuring a strong role of community grounds and NGOs in policy making.
14. This is particularly important in a transition or young democracy like India, where uninformed people find it difficult to fully participate in the political process. Empowerment happens when people are given access to information and are able to understand how best to use that information in the political and legal sphere, or to organise themselves for collective action to influence decisions that are being made about their lives. Access to information is one such key, with which poor people can begin to organise themselves for collective action to influence the decisions affecting their lives.
Information as property
15. The third view is one of “Proprietary” justification, that the information holdings of the government are a national resource, which are collected or created for the public benefit or in the exercise of their official duties, using public money. Under this view, the Government and its vast bureaucracy is, in a sense, a ‘public trustee’ of such information on behalf of its citizens and residents.
16. The government does not create information for its own use and benefit; this information is generated for purposes related to the legitimate discharge of duties of office and for the service of the public. Yet, there has been a prevalent culture of unnecessary secrecy in our system, with the bureaucracy preferring secrecy, distance and mystification, not fundamentally different from colonial times.
17. Edumund Burke also recognized this, and that is why he famously said, “All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.”
RTI as promoting transparency and open government
18. The fourth, and perhaps, the most resonant justification for India, is the “Oversight” justification which requires governments to create mechanisms by which citizens can hold its actions to account. This view is underpinned by the recognition of the importance of transparency and accountability in a democratic government and is thus, strongly linked to the “Instrumental” justification for the right to information.
19. The purpose of access to information is to redress the imbalance of power between the citizens and the State, and to promote efficient and transparent governance. Open government laws are not merely for the satisfaction of citizen’s curiosity. There is an inseparable connection between a citizen’s interest in how the country is governed and a right of access to records of the government, which go a long way in disclosing inefficiency, arbitrariness and corruption.
20. Bureaucratic apathy and lack of transparency are the root causes of corruption inherent within the state machinery, which are only seriously challenged when there is a statutory right to seek information. Such a right should have simplified rules of procedure, along with a focus on pro-active dissemination of relevant information amongst public.
21. In the UK, the freedom of information battle resulted in revelations that led to the MPs’ Expenses Scandal. The release of records pertaining to the expenses claims made by MPs resulted in an intense public debate and outrage over the abuse of power, when information came to light, for instance, that some British elected representatives claimed reimbursement for private expenses such as pay per view pornography and dog food. More importantly, it also led to reforms.
22. The effectiveness of the RTI in the Indian context in serving as a tool to combat corruption, cannot be emphasised enough. In India, the State exercises control in varying degrees in every aspect of public life, which means that the common person faces corruption in every walk of life. Citizens have to constantly deal with harassment at the hands of government institutions – either indifference and apathy (resulting in inordinate delays), or straight up stonewalling and resistant behaviour.
23. Thus, the coming into force of the RTI Act has been true game changer in changing the mai-baap culture that had pervaded Indian polity and bureaucratic life. It is now regarded as indispensable in fighting government inefficiency and corruption, since it provides statutory backing for the idea of audits, reviews, and examination of government conduct, and holding it to high standards of probity and justice. With the contribution of many RTI activists, ordinary citizens, PIOs, and Information Commissioners, over the last 15 years, RTI Act has helped unearth the Adarsh Housing society scam, the 2G scam, the CWG Diversion of Funds scam, the Indian Red Cross Society scam (of how public officials in the Indian Red Cross Society were squandering money meant for the Kargil war relief and natural disaster rehabilitation efforts) etc.
24. The need for openness in the government was also recognized by Justice Mathew of the Supreme Court of India in State of U.P. v. Raj Narain, AIR 1975 SC 865, para 74 as under:
“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of the country have a right to know everything that is done in a public way, by their public functionaries.”
25. Unsurprisingly, these ideas of transparency and accountability are not restricted to classically commonwealth countries only. The French came up with the term ‘transparence administrative’, which means “open government” or “administrative openness”. The former USSR too, used ‘glasnost’ for the principle “that every citizen has the inalienable right to obtain exhaustive and authentic information on any question of public life that is not a state or military secret”. Such openness and transparency in government helps root out corruption and inefficiency, and is only secured by access, and right to information
RTI as fostering citizen-State interaction
26. To Peled and Robin’s four justifications for the right to information, a fifth justification could be added – that of promoting a “Citizen-Government” partnership, where use of such a right has instilled a wider sense of ownership amongst the citizens in the development activities of the State, whether at a national or a decentralised level. Granting citizens the right to information permanently changes the nature of relationship between the citizen and the State, especially if it ends up encouraging active citizen participation.
27. Justice Bhagwati, articulated a version of such a justification in S.P. Gupta v. Union of India, 1981 (Supp) 87, para 65, where he endorsed a continuous process of government in the following words:
“This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does not remain a sporadic exercise in voting but becomes a continuous process of government – an attitude and habit of mind…”
C. Enactment of the RTI Act
28. Despite several judicial declarations holding that the right to information was a constitutional right, it was not enough to make it a reality for most people. An enabling legislation that defined the scope of the right and provided for a dedicated enforcement mechanism was needed to realize it practically. The right to information received its first mass impetus as a result of the powerful grassroots struggle of the rural poor for the right to information, to combat rampant corruption in the famine relief works. This struggle was led by a people’s organization, the Mazdoor Kisaan Shakti Sangathan. The reverberations of this struggle led to a nationwide demand for a law to guarantee the right to information to every citizen.
29. After over a decade of struggle, a meaningful right to information was realized only when the Parliament enacted the Right to Information Act, 2005. The RTI Act is perhaps the biggest contribution of our legislature towards promoting greater accountability in independent India. If information is power, then the RTI Act has been a veritable Brahmastra in the hands of Indian public. People have exercised the RTI seeking transparency and accountability in diverse sectors such as PDS, MGNREGA, public health, education, social security, environment, fisheries, nuclear installations, stock markets, sports, urban development etc. It is important to note that although the RTI was enacted during UPA’s regime, there have always been government attempts at diluting its rigor.
D. The Right to Information and the Polity
30. Transparency and accountability will only become a reality in India when there is genuine reform, and disclosure of information. However, the Executive has traditionally been resistant to the successful operationalization of the RTI Act.
Myths about RTI ‘misuse’
31. Political parties have sought to combat the RTI by making repeated allegations about misuse and vexatious RTI applications being filed. There is an apprehension that RTI was primarily being used by public servants (seeking information about their service matters) and the urban elite. However, a 2014 RaaG study found that 14% of RTI applicants lived in rural areas, 58% in towns or cities and 29% in metropolitan centres. Thus, if an estimated 49 lakh RTIs were filed in India in 2011-12, over 5 lakh would have been from rural areas.
32. Another criticism levelled against the RTI Act is that the number of frivolous applications was being used to overwhelm government departments. However, while such a feeling may have become part of popular culture (through its repeated dissemination in the media), the PMO itself acknowledged in response to RTIs, that it had no actual evidence of misuse. Conversely, two national studies done by RaaG in 2008 and 2014 statistically proved that there were negligible numbers of vexatious and frivolous applications (less than 1%) and 67% of RTIs filed were seeking information that should already have been in the public domain, if there had been proactive disclosure of information under Section 4 of the RTI Act.
The lack of implementation of the RTI Act
33. Section 4 is one of the most critical sections of the RTI Act. It requires the government to proactively disclose information on a range of issues and is the future direction of the transparency law. Unfortunately, there has been no systematic effort by the government to improve the implementation of proactive disclosures: research has shown that nearly 70% of all RTI applications ask for information that should have been proactively disclosed. In 2015, the Prime Minister had drawn the link between the RTI Act and good governance at the CIC convention, requiring public authorities to analyse the RTI applications received by them to identify weaknesses in the functioning of the public authority. However, it appears that there has been no action on the suggestions of the Prime Minister.
34. This is unfortunate since the government should be moving towards a system where all information, save what is exempt under Section 8, is proactively available to citizens. In fact, the hallmark of a democracy is that citizens have the right to question the government on its actions. This is possible only if proper information about government decisions and policies is provided to people. The trend of making claims and taking policy decisions without adequate information is very dangerous. We have seen that several recent claims of the government have not withstood fact-checking and interrogation through RTI and media.
35. Most worrying is the recent trend to not maintain proper records. Lack of record maintenance prevents public scrutiny and accountability of government actions. Media reports indicate that government is using WhatsApp to communicate information so as to evade public accountability.
36. The RTI is also trying to be weakened through the creation of vacancies and arrears. Thus, most states and, currently, the Central Information Commission also, do not have a full complement of commissioners. In some states like Andhra Pradesh, there is no functional information commission at all. Even the Telenagana Commission was set up only a few months back on the directions of the High Court. Similarly, the Maharashtra State Information Commission is without a chief and there are 3 vacancies in the Central Information Commission which have not been filled. The story of apathy and deliberate inaction is similar in various other State Commissions, including in Sikkim, Rajasthan, Madhya Pradesh.
37. This vacancy in posts is compounded by a lack of transparency in the appointments that are being made to the Central/State Information Commissions. The Supreme Court, in Union of India vs Namit Sharma, laid down the beginnings of a transparent process, and directed that the qualifications and experience of selected candidates must be made public. However, even this bare minimum requirement for transparent selection has not been followed by many states, with appointments in Kerala, Gujarat, and Andhra Pradesh being struck down for lack of transparency.
38. It is one of the greatest ironies that the appointment procedure for the Chief/State Information Commissioner is not transparent. In fact, it represents another instance of complete failure to implement the provisions of the Act, even though this is one of the few laws that is used very frequently by the people.
Non-operationalisation of the Whistle Blower’s Protection Act and the Lokpal Act
39. The Whistle Blowers Protection Act was passed by Parliament in February 2014 after a sustained campaign by activists and families of slain whistle blowers. Despite the passage of more than three years since the law was approved by Parliament, whistle blowers continue to pay a heavy price for exposing corruption and wrongdoing, as the government has still not operationalised the Act. Instead, it moved an amendment bill in May 2015, which seeks to severely dilute the Act.
40. The amendment bill seeks to remove safeguards available to whistle blowers from prosecution under the Official Secrets Act and also introduces wide-ranging exclusions by stating that disclosures should not contain information which would prejudicially affect the sovereignty, integrity, security, strategic, scientific or economic interests of the State.
41. The non-operationalisation of the Whistle Blowers Act is also accompanied by the non-operationalisation Lokpal & Lokayuktas Act.
42. While there is perceived incorruptibility around the Prime Minister, that itself is no reason to discard or dilute existing laws promoting proactive oversight and audit of government actions, especially since the problem of corruption and opacity in the functioning of the lower levels of government remain.
Political parties and the RTI Act
43. Political parties have historically been resistant to being placed under the RTI Act, on the ground that they are not “public authority” and that “revealing names of their donors might endanger the donors` lives” and that “it would impact the parties’ decision-making process”. I am of the firm view that placing political parties under the ambit of the RTI Act will open politics to public scrutiny, regulate political party funding and clean up our electoral ecosystem. This is especially important given the incentive structures underlying the financial model of politics in India.
44. Notably, just last week on 06.02.2018, the Supreme Court in its decision in Lok Prahari v Union of India ruled that election candidates must disclose not only their sources of income, but also the source of income of their respective associates (spouses/dependants). The Court cited its previous decision in UOI v ADR, (2002) 5 SCC 294 which held the importance of information of prospective candidates, including their assets and liabilities, criminal antecedents, and educational qualifications. Notably, in PUCL v UOI, (2003) 4 SCC 399, the Court also recorded that s. 33A of the Representation of People Act fails to ensure complete compliance with the directions issued by the Court in ADR case.
E. The Right to Information and the Judiciary
45. Different countries have engaged with the issue of right to information distinctly, as will be elaborated below.
A comparative perspective
46. The UK Supreme Court in 2014, in Kennedy v The Charity Commissioner, (2014) UKSC 10 recognised a common law right to access to information. This case concerned an appeal lodged by a journalist, one Mr. Kennedy against the rejection of his request for information regarding three inquiries conducted by the Charity Commission in respect of the sanctions imposed on Iraq following the first Gulf War. The Commission cited Section 32(2) of the UK Freedom of Information Act, while rejecting Mr. Kennedy’s request, on the ground that the information sought for – pertaining to an inquiry – was covered by an absolute exemption from disclosure.
47. The majority in the UK Supreme Court held that section 32(2) of the Act did indeed contain such an absolute exemption. Thus, it ruled that Mr. Kennedy’s case is not entitled to succeed on the claims he has pursued by reference to section 32 of the FOIA, but that was not because of any conclusion that he has no right to the disclosure sought. The majority thus recognised a common law right for such information outside the ambit of the FOIA, noting that the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. The Court reiterated that given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest.
48. The Inter-American Court of Human Rights has in its jurisprudence, also interpreted article 13(1) as conferring a positive right to receive and a positive duty to impart information: Reyes v Chile (2006) IACHR, 19 September 2006, while the Israeli Supreme Court also reached a similar decision.
49. In contrast, the US Supreme Court in Houchins v KQED, Inc., 438 US 1 (1978), at 15-16 held that “there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy . . . .
The Constitution itself is neither a Freedom of information Act nor an Official Secrets Act” Justice Stevens, in a powerful dissent, noted that “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” It would be an even more barren market-place that had willing buyers and sellers and no meaningful information to exchange.”
The Indian perspective: A Mixed Record
50. I have already elaborated on various judicial pronouncements of the Indian Supreme Court, particularly in SP Gupta and Raj Narain on issues pertaining to the importance of information.
51. As is clear, Indian law is well settled in its recognition of a constitutional and statutory basis of the right to information. Unfortunately, however, the record of the Indian judiciary in guaranteeing that right is mixed. For every pronouncement such as SP Gupta and Raj Narain, there is judicial decision by evasion. This is best illustrated by the fact that the appeal filed by the Supreme Court to itself against the 2009 decision of the Delhi High Court in Subhash Chandra Aggarwal, is still pending in the Supreme Court, even after 9 years. Meanwhile the effect of the High Court judgment has been nullified.
52. At the heart of the Subhash Chandra Aggarwal dispute lie two resolutions: the first, dt. 07.05.1997 of the Full Court of the Supreme Court, and the second being the Restatement of Values of Judicial Life (Code of Conduct), which were adopted unanimously at the Chief Justices Conferences of all High Courts convened in the Supreme Court on 03/04.12.1999. The 1997 Resolution represented the Judges’ commitment to declare their assets (in the form of real estate or investment) held in their own name, or in the name of their spouse or dependents. The 1999 Resolution, on the other hand, looked at the in-house code of conduct mechanism regulating the conduct of Judges.
53. Subhash Chandra Aggarwal came to the Delhi High Court with a simple prayer – it was not to direct the asset declaration to be put up on the website, but merely for the supply of information concerning declaration of personal assets by the Judges of the Supreme Court. However, the Registrar of the Supreme Court argued that the 1997 Resolution was not “rules”, and was not binding, with compliance being a matter of choice
54. In this context, the Delhi High Court extended the ambit of the RTI to the Chief Justice of India. It held that the right to information can no longer be exclusively treated as being situated in Art. 19(1)(a) of the Constitution, and broadened its ambit as a constitutional concept by also situating the same within Art. 14 and Art. 21 of the Constitution.
55. It is important to understand that the RTI Act, as originally enacted, does not provide for any exemption to the Chief Justice or any judge of the Supreme Court from its application. For the Judiciary to meaningfully be referred to as the “First amongst the equals”, it must walk the talk by leading from the frontlines on transparency and openness. In fact, the Court’s resistant to embracing RTI is also reflected in its hesitation towards bringing in transparency to the collegium system for judicial appointments and allotment of important cases.
56. The Supreme Court has recently resolved, vide Resolution dt. 03.10.2017, to improve the transparency in the collegium system:
“…indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and 2 elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different”
57. While this is a welcome method, especially in respect of the positive reasons for elevation, it is also inadequate to address transparency and other concerns. Unless the public knows the criteria for selection of a judge, merely making the final decision public would not serve the purpose. We must know the parameters for a person’s selection or rejection for judgeship and the person whose name is being considered must be made public so that the collegium can get feedback on the same. Nor is it clear what purpose will be served by communicating the reasons for rejection, if they simply cite “intelligence reports”.
58. Similarly, the Supreme Court has moved to increase the transparency in the process of designation of Senior Counsels, and after the infamous press conference, has also now allocated a roster to different courts. Such moves will hopefully reinvigorate the debate around transparency and right to information, and ultimately positively impact the discourse around RTI in India.
RTI and privacy
59. Section 8(1)(j) of the RTI Act provides an exception to the disclosure of information “which relates to personal information… which has no relationship to any public activity or interest, or which would cause an unwarranted invasion of privacy.”
60. The problem arises because the RTI Act does not define the term “privacy” or “public activity” or “unwarranted invasion”, thus giving wide leeway to PIOs to reject genuine RTI requests on such grounds. For instance, in Bihar Public Service Commission v Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61, the Court dealt with the provisions of Section 8(1)(g) of the Right to Information Act, 2005. A person claiming to be a public-spirited citizen sought information under the statute from the Bihar Public Service Commission on a range of matters relating to interviews conducted by it on two days. The commission disclosed the information save and except for the names of the interview board. The High Court directed disclosure, but the Supreme Court overturned the judgment of the High Court citing the need to balance the public and private interests in privacy.
61. While the Puttaswamy judgment has clarified that the right to privacy is a fundamental, constitutional right, inherent in Articles 14, 19, 21 and other Articles, it did not have occasion to define the scope and contours of the right to privacy. In fact, the judgment has created some uncertainty about how the right to privacy will now interact with the right to access information, especially when it concerns sensitive topics such as the degree of the Prime Minister or the assets and liabilities of public servants, or their performance evaluation reports. It is important to note that information regarding the names of all students who graduated from college, is readily provided by prominent foreign universities.
62. Notably, privacy has been, and continues to be, used to deny RTI requests. Thus, in Girish Ramachandra Deshpande v CIC, (2013), the Supreme Court upheld the denial of information regarding a public servant’s emoluments and assets, including the gifts received by him by citing s. 8(1)(j) of the Act.
63. It is nonetheless important to remember that the privacy claims of pubic authorities and public functionaries are distinctly different from the privacy expectations of private individuals. This is because, it is well recognised, through a series of judgments, that public officials by virtue of their position, have a lower claim to privacy, since they are exercising their functions as trustees.
64. Furthermore, Puttaswamy was concerned with privacy as a a shield against intrusive State action, and not how it could be used as a sword to limit the amplitude of other rights, such as the right to information, as exists qua the citizen and a functionary of the State.
65. The Aadhaar Act further compounds problems, especially when we consider the right to information concerning one self. While the RTI Act regulates the citizen’s right to information regarding third party public authorities, the Aadhaar Act is concerned with the right to access information about one self. Shockingly, the proviso to sec. 28(5) of the Aadhaar Act has made it clear that an Aadhaar number holder does not have the right to access core biometric information about themselves – what this means is that while the State has access to my fingerprint and iris scan in their Central Identity Database Repository, I, myself, am prohibited from accessing this information!!!
F. RTI Act: Enactment and Challenges
Attack on Free Speech
66. I have already elaborated on how the exercise of access to information is a sine qua non for the free exercise of speech and other constitutional entitlements.
67. However, free speech is under attack. Today, we are living in a world where we are told what we can and cannot eat, what we can and cannot see, and what we can and cannot speak about. Dissent, especially in the university space and in popular culture, is being curbed. We have journalists who are shot dead at point blank rage, merely for the views they hold and propagate. We have movie producers and directors who are forced to make edits in their scenes and issue disclaimers, despite CBFC clearance, so as to not offend the sentiments of a single community. Think of the controversies surrounding Padmavat, Lipstick under the Burkha, S Durga, or Jolly LLB, and you will realise that we are living in an increasingly intolerant society.
68. More importantly, in this age of mass-communication and digital media, the media assumes an even greater importance in playing the role of the opposition and checking facts. In fact, no other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction on free speech. Media have become propaganda machine, if not anything else.
69. It is thus not an exaggeration to state that our institutions are under attack today and there is a concerted attempt to destroy any independent thought. Think of the weakened Election Commission or the Central Vigilance Commissioner’s office, once beacons of independence. Today, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national”, with a view to intimidate and browbeat voices of dissent and criticism, especially through severe online harassment, trolling and abuse.
70. We are today living in the age of propaganda, and proactive false information, and half truths. The media coverage, or rather black out, of certain press conferences, and distorting headlines with a pro-government bias, is an attempt to spread disinformation. The right to freedom of speech and expression is under attack. Unless, we as ordinary citizens do not rise up and demand accountability from the government, there will be no change in the situation.
(This is the speech given by Justice AP Shah, former Chief Justice of Delhi and Madras High Courts, at Moneylife Foundation’s RTI Centre organised Inaugural RTI Lecture at Pune on 3 March 2018.)