But a cloud hides the sun

CJI under RTI

The judgement of the Supreme Court declaring the Chief Justice of India to be under the ambit of the Right to Information Act has quite interesting notes. The decision of the Delhi High Court was appealed by the Supreme Court itself and subsequently upheld by it. The judgement underlines the cardinal principle of transparency — “Sunlight is the best disinfectant” —famously propounded by the US Supreme Court Justice Louise Brandeis.

From the judgement, it is clearly discernible that the verdict is a step towards open justice and weeding out behaviours regarded as unjust and unethical during the appointment process for the higher judiciary. The verdict, delivered unanimously, also made it mandatory for judges of the court to furnish information on their assets whenever asked for.

Although the judgement, while deciding on the issues of public accountability, transparency and privacy, has set a benchmark, there exist various issues that remain unaddressed by the court, primarily because the guidelines are not as clear as they should have been. This again creates a cloud over the issue of subjective judgement of the Public Information Officer and the problems associated with it, thereby hampering the very object of transparency which the judgement sought to address and achieve.

The bench in its judgement recognized that neither the rights emanating from the RTI Act nor those from Article 19(1)(a) of the Constitution are absolute in nature. There has been a great emphasis laid by the bench on the task of disclosing information proportionately and keeping in mind the public interest vis-à-vis the harm to the protected interests.

The court observed that personal information is “entitled to protection from unwarranted invasion of privacy, and conditional access is available when stipulation of larger public interest is satisfied.” Further, Justice Chandrachud, one of the judges on the bench, opined that, “The information officer must employ the principle of proportionality and must ensure that the abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by enforcing the countervailing right.”

Prima facie, the test laid down by the Supreme Court seems to be quite clear, but when applied to practical situations, it brings out the problems. For instance, Section 22 of the Supreme Court Judges Act, 1958, provides for travelling allowance for Supreme Court judges on duty. Suppose an RTI query is filed by any citizen of India seeking information with regards to the travelling allowances reimbursed to a judge along with the reason for the trip. Then, there exist two possibilities, the first being that either the information sought will be furnished by the Central Public Information Officer, and the second being that it would be denied by the officer. Analyzing the second situation as per the observations of the court, mentioned above, it can be seen that a wide leeway has been provided to the officer by the court, by leaving it to the information officer’s whim and fancy to balance the interest and disclose the information if the larger public interest is satisfied.

This becomes a tricky situation when it is known that the concept of ‘public interest’ is generally trotted out along with the other tenets of democracy, like accountability and transparency. It’s very difficult to pin down its exact meaning. The concept of public interest has always been determined contextually, keeping in mind the purpose and scope. Leaving the space for subjectivity to seep in while weighing the public interest clearly becomes problematic when the main objective sought is to reduce arbitrariness and ensure transparency in the higher judiciary. In these situations, the CPIO may grant the said information or may legitimately deny it, given the ambiguity in the judgement and the scope for the exercise of discretion.

There are no clear criteria laid down by the Supreme Court as to what are all the instances that pull the balance in favour of disclosing the information asked for and what is the exact process to go about processing the information sought. Though there are guidelines, which the Supreme Court pointed to, that may be taken into account by the information officer while judging the proportionality, these are merely prescriptive in nature. The verdict coincides with the time-period when Acts like the Official Secrets Act, 1923, are in effect and clearly lay down what all is to be exempted from the public scrutiny, unlike the present judgement with ambiguous guidelines.

The conundrum remains, in the absence of precise guidelines, as to what all factors are to be considered by the CPIO while answering the petition. The information officer now has the ability to sway either way, depending on his discretion, and often times convenience, as the information to be disclosed may be ‘sensitive’ in nature. This leaves the rein completely in the hands of the information officer, and it is up to his whim and fancy how the proportionality is decided. This, in fact, goes against the very basic tenet of law, to be certain and confer the least subjective judgement possible. This certainty in law helps us decide the outcome that is going to follow from a given fact.

In such a scenario, it would be in the interest of the right to information that there exists a clear guideline as to how information could be accessed without leaving all to the discretion of the information officer. This could be achieved if there existed a proper judicial pronouncement or legislative guideline, such as the allowed and exempted documents under the Officials Secrets Act. This would then truly align with the objectives of the RTI Act.

(The writer is a student at the National Law School of India University, Bengaluru)