Information that cannot be denied to Parliament cannot be denied to you and me… but does it happen?

Information that cannot be denied to Parliament cannot be denied to you and me… but does it happen?   Does this provision in Section 8 wherein, despite exemptions you have the right to information if it is of larger public interest being correctly interpreted by Courts? A study thinks otherwise Notwithstanding Section 8 of the Right to Information (RTI) Act under which you are denied the right to certain information, there is a provision which states that, every citizen has the right to get that information which our elected representatives, have access to. It reads thus, “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” However, it has been observed in an expert study, conducted by the Commonwealth Human Rights Initiative (CHRI) that the judiciary has been inconsistent in application of this provision and therefore “does not provide clarity of interpretation of this crucial provision of the RTI Act.’’ Sometimes, the judiciary applies it to the entire Section 8 (1) which should be the case according to the CHRI’s analysis but many a time in its judgment, the judiciary restricts this provision only to Section 8 (1)(j) which relates to protection of personal information. Such varied interpretation which is diluting the power of this provision says the study, would have adverse repercussions for citizens, if this trend continues in the court of law. Interestingly, even the Department of Personnel and Training (DoPT), Government of India in its guidelines to public authorities, Public Information Officers (PIOs) and First Appellate Authorities (FAAs) at the Central and State level for implementing the RTI Act, directed them to follow this provision by stating that:  “The Act gives the citizens a right to information at par with the Members of Parliament (MPs) and the Members of the State Legislatures (MLAs). According to the Act, information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.’’ However, many PIOs and FAAs continue to decline information and the matter goes to information commissioners who often order disclosure of information. However, petitioners seek legal intervention and it is here that the provision is not used in its true spirit, as per the study. Venkatesh Nayak, Programme Coordinator, Access to Information programme, Commonwealth Human Rights Imitative (CHRI) conducted the study to highlight how the provision is being narrowly used. States Nayak, “In 18 judgments interpreting the provision, this is far from convincing. We have chosen one such issue for analysis where despite the existence of more than 15 judgments, the jurisprudence does not provide clarity of interpretation of this crucial provision of the RTI Act.  Settlement of access disputes in the High Courts has not always conformed to the doctrine of precedent.” Nayak observes that, “Eight High Courts have interpreted the scope and application of the proviso under Section 8(1) varyingly. Starting with the Bombay High Court, in 2007, five High Courts (Bombay, Delhi, Madhya Pradesh, Madras and Patna) have interpreted this proviso in six cases as being applicable only to clause (j) of Section 8(1), namely, the exemption protecting personal information of an individual from disclosure. Three High Courts (Calcutta, Kerala and Punjab and Haryana) have in ten cases interpreted this proviso as applying to all exemption clauses listed in Section 8(1). In at least two High Courts (Bombay and Delhi) single‐judge and Division Benches have held contrary views indicating the lack of crystallisation of judicial precedent, regarding the interpretation of the scope and application of this proviso.’’ Section 8 (of the RTI Act) deals with exemptions to the right to information.  Nayak points out that: •  Sub‐Section (1) lists out the specific exemptions to disclosure –namely, information that an applicant may not claim as a matter of right •  Sub‐Section (2) provides for the disclosure of even exempt information when public interest in disclosure outweighs the harm to the protected interests. • Sub‐Section (3) limits the operation of seven out of the ten exemptions up to 20 years for a given set of records. The exemptions relating to national security, foreign relations with foreign Governments, Parliamentary and Legislative privilege and Cabinet documents apply for an indefinite period of time. •  A proviso is inscribed at the bottom of Section 8(1) which states that… Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” The study highlights several judgments which have interpreted Section 8 (1) in different modes. In most of these cases, the High Courts have upheld the orders of information commissioners but the judgment is not based on a comprehensive look at this provision.  This study aims to provide insight into this discrepancy. Concludes Nayak, “We hope that in an appropriate case the true meaning of the proviso underlying Section 8(1) is interpreted by the courts with due regard to legislative intent and the drafting history of the RTI Act.’’ Following are a few examples: Case 1: A member of the Legislative Assembly (MLA) was sentenced to a month’s imprisonment for committing contempt of Supreme Court’s orders during his tenure as Minister in the Government of Maharashtra. He spent 21 days of his jail term in a hospital in Mumbai under the pretext of being treated for various illnesses. A citizen sought medical reports of his treatment, under RTI, in order to ascertain why the MLA had spent most of the duration of his sentence in an air‐conditioned hospital. The Petitioner objected to the disclosure of his medical records claiming that such action would cause invasion of his right to privacy. The matter escalated to the State Information Commission which ordered disclosure in the larger public interest. The Petitioner (the MLA) challenged the order of disclosure on various grounds including the right to privacy and the requirement of confidentiality of patient‐related information under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002. A two‐judge Bench of the Bombay High Court upheld the order of disclosure of the Petitioner’s medical records in the larger public interest. (Mr Surupsingh Hrya Naik v/s State of Maharashtra Through Additional Secretary, General Administration Deptt. And Others, Bombay High Court [Writ Petition No. 1750 of 2007] decision date: 23/03/2007) CHRI’s analysis: “The Court relied upon the judgement of a single‐judge Bench in an earlier dispute relating to access to information under the Goa Right to Information Act, 1997 (Goa RTI Act) to hold that the proviso underlying Section 8(1) applied only to clause (j)… The main cause in the Surupsingh Naik case was about an individual’s right to privacy in relation to his medical records. In our opinion inquiring into Parliament’s intent behind placing the proviso under Section 8(1) in the light of the Court’s earlier pronouncement was necessary before determining its scope and application. Instead the ratio of the Court in the Panaji Municipal Council case was applied mechanically without regard to the reasoning that informed it. In view of this glaring contradiction the Court’s reading of the import and application of the proviso underlying Section 8(1)(j) of the RTI Act, deserves to be reviewed.’’ Case 2: An Applicant sought information about the appointment, posting, transfer and promotion of clerical staff employed by the Canara Bank (the Bank) in Ernakulam district of Kerala during the period 2002‐2006. The Bank denied access on various grounds. When the matter escalated to the Central Information Commission (CIC), it ordered that the information be disclosed. The Bank challenged this order before the Kerala High Court claiming the protection of Section 8(1)(e)‐ when information is available to a person in his fiduciary relationship‐ and Section 8(1)(j)‐ when disclosure of personal information has no relationship to any public activity or interest or if disclosure would cause unwarranted invasion of the privacy of the individual. A single‐judge Bench of the Court rejected both contentions and upheld the order of the Central Information Commission. (Canara Bank vs the Central Information Commissioner and Another, Kerala High Court [Writ Petition (Civil) 9988 of 2007, decision date: 11/07/2007]7 2.1) CHRI’s analysis: The Court independently held that the proviso applied to the whole of Section 8(1) and not merely to clause (j) of that Section. More importantly, the proviso to the section qualifies the section by stating that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Case 3: A student sought access to his answer sheets in a Bachelor’s Degree examination conducted by the University of Calcutta. The PIO rejected the request without invoking any of the exemptions provided in Section 8 of the RTI Act. He merely stated, in an undated letter, that the University had taken a decision not to permit inspection of evaluated answer scripts under the RTI Act. The matter escalated to the High Court where the University cited a decision of the CIC which had ruled in an earlier case that where Boards and Universities conducting public examinations had evolved a robust system of evaluation and, if, by their own rules, prohibited disclosure of evaluated answer‐sheets or where such disclosure would result in rendering the system unworkable in practice, a citizen could not seek disclosure of the answer‐sheets. The University also contended that answer scripts did not fall within the definition of information under Section 2(f) of the RTI Act and that disclosure of the evaluated answer scripts would endanger the lives of the examiners. The University contended further that the Supreme Court had in earlier decisions refused to order disclosure of such documents, so Section 8(1)(b) of the RTI Act would apply. A single‐judge Bench of the Court rejected these contentions in a well reasoned judgement and ordered the evaluated answer sheets to be disclosed. (Pritam Rooj vs University of Calcutta, Calcutta High Court [Writ Petition No. 22176 of 2007], decision date: 28/03/2008.) CHRI’s Analysis: …The Court also took notice of the need for protecting the privacy of individuals. However the Court held that the proviso underlying Section 8(1) applied to the whole of that Section…The proviso at the foot of Clause (j) appears to cover the entirety of Section 8(1), notwithstanding the view taken by the Division Bench of the Bombay High Court. The manner in which the exceptions to the rule have been carved out in Section 8 and the proviso which appears to govern all the cases covered by Section 8(1) of the said Act, makes the exemption section exhaustive. [emphasis supplied]…That the Court rejected the finding of a larger Bench of another High Court without supplying a reasoned justification is problematic, particularly when both parties had used the ratio to support their contention.. In case you would like to have the full report, please contact: Venkatesh Nayak Programme Coordinator, Access to Information Programme Commonwealth Human Rights Initiative B-117, First Floor, Sarvodaya Enclave New Delhi- 110 017, INDIA Tel: +91-11-43180215/ 43180201 Fax: +91-11-26864688 Skype: venkatesh.nayak@skype.com Alternate Email: nayak.venkatesh@gmail.com Website: www.humanrightsinitiative.org

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