Dear Friend,
From: shailesh gandhi <shaileshgan@gmail.com>
Date: Sun, Oct 7, 2012 at 12:49 PM
Subject:
To:
The recently retired Chief Justice Mr. Kapadia said that RTI had become too much and there should be a limit to it. I think there is a pattern emerging which shows that the Supreme Court is having second thoughts about transparency.
I. SC Justices Asok Kumar Ganguly & Gyan Sudha Misra:
Civil Appeal nos. 10787-10788 of 2011 No information can be provided when dealing with a complaint under Section 18
Contrast with Allahbad HC judgement in AP 3262 (MB) of 2008 where Justices Pradeep Kant and Narayan Shukla said in their judgement "We are also of the view that the Commission while enquiring into the complaint under Section 18, can issue necessary directions for supply/disclosure of the information asked for, in case the Commission is satisfied that the information has been wrongly withheld or has not been
completely given or incorrect information has been given etc.., which
information otherwise is liable to be supplied under the provisions of the Act."
II. Answersheets SC Appeal no. 6454 of 2011
Justices Raveendran and A.K.Patnaik on 9 August 2011:
Pg.23
(ii) Exemption of the several categories of information enumerated in
section 8(1) of the Act which no public authority is under an
obligation to give to any citizen, notwithstanding anything contained
in the Act [however, in regard to the information exempted under
clauses (d) and (e), the competent authority, and in regard to the
information excluded under clause (j), Central Public Information
Officer/State Public Information Officer/the Appellate Authority, may
direct disclosure of information, if larger public interest warrants or
justifies the disclosure].
No mention of Section 8 (2) & (3).
Pg. 34
Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conduct or acts are found to be prejudicial to the employer.
Is information requested from employees of Govt. departments or is it ordered to be given?
Pg. 49
33. Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice,
does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.
34. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.
III. WP 210 of 2012 - Appointment of retired judges as 50% of Information Commissioners made compulsory and two member benches in Commissions ordered by Justices Swatanter Kumar and A.K.Patnaik on 13 September 2012. Significant part of the judgement is devoted to protecting privacy and third party interests.
IV. SLP no. 27734 of 2012 Justices K.S.Radhakrishnan and Dipak Misra on 3 October 2012 lays down that performance of govt. employees, IT returns, assets of Public servants exempt under RTI.
Compare this with the ADR judgement which said Citizens have a right to know about the assets of those who want to be Public servants.
I feel the primacy given to a Citizen's fundamental right is being reduced steadily. Citizens need to be vigilant about safeguarding it.
shailesh
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Surendera M. Bhanot
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