GAUTAM BHATIA

Delhi High Court

Right to Information

RTI

open justice

confidentiality

BY INVITATIONIn 2009, thepassed a landmark judgment holding that the Office of the Chief Justice of India was a “public authority” within the meaning of the(RTI) Act. In layperson’s terms, this meant that the institution of the Supreme Court was bound to provide information about its functioning to citizens, under the provisions of the. The judgment was a significant step forward in the struggle for. For many years, however, the judgment remained stayed by the Supreme Court on appeal. It was finally heard earlier this year.In a unanimous judgment delivered on Wednesday, the Supreme Court upheld the Delhi High Court’s judgment. As a result, information held by the Office of the Chief Justice of India – who is the administrative head of the Supreme Court – is now subject to the provisions of the RTI Act. This is undoubtedly a welcome move. The devil, however, lies in the detail; and on careful reading, one finds that the judgment is hedged in with so many reservations and caveats that its practical impact on openness and transparency is debatable.At the heart of the issue are two provisions of the RTI Act: Sections 8 and 11. Section 8 carves out a series of exceptions to the Right to Information, one of which requires Public Information Officers to balance the right to privacy of the individual whose personal information is sought, against the larger public interest in disclosure. Section 11 deals with the information of third parties (relevant in the present case because information about judges will be held by the Office of the Chief Justice), and requires the application of a similar balancing test. In discussing these provisions, the Supreme Court’s majority opinion articulates a set of indicative principles that – regrettably – have the potential of diluting the holding.Among the majority’s observations, three are particularly troubling. First, the majority holds that the “motive” of the person claiming information is a relevant factor in determining whether sufficient “public interest” exists in disclosure. To start with, this is illogical: there is no connection between the information being in the public interest, and the person who wants it. The most malicious person in the world may seek information that is in the public interest to disclose. Secondly, determining individual motive is a highly subjective enquiry. Practical experience of how the RTI works on the ground has shown that at the first instance, much depends upon the discretion of Public Information Officers. Increasing the scope of that discretion through vague terms such as “motive” is a recipe for abuse.Secondly, the majority judgment undertakes an extensive discussion of the right to privacy. Privacy, however, is contextual. It is accepted around the world, for example, that those occupying public office have a “diminished expectation of privacy” in some respects. Information that might be private in the context of an individual can take on a “public” character in case of a public officer, especially when it touches upon the performance of public duties. There is a similar problem with nuance in the majority related discussion ofin governmental affairs. The majority cites judgments dealing with this need for confidentiality; all those judgments, however, have been delivered in the context of executive functioning, where there are often legitimate imperatives requiring secrecy (for example, trade negotiations or war plans). The judiciary, however, is an institution whose entire legitimacy derives from openness: its judgments – and the reasons for them – are public, so that they can be open to scrutiny. Consequently, it is difficult to see how the issue of “confidentiality in government affairs” is even relevant to this case.Thirdly, without explicitly ruling it out, the majority judgment indicates disapproval towards making public information around the appointment of judges. The judgment cites judicial independence as a factor against disclosure (for example) of deliberations pertaining to judicial appointments – but having said that, does not provide any clear guidance to Public Information Officers about how, exactly, to “balance” judicial independence against the right to information.It is here that the concurring opinion of Chandrachud J repays careful study. Chandrachud J makes the crucial observation that judicial independence is not an end in itself, but is designed to serve other goals: the separation of powers, the rule of law, due process, etc. The pursuit of these goals requires judges to be accountable towards the citizenry, and transparency provides the foundation for accountability. Consequently, he expands the scope of “public interest” beyond simply exposing public misconduct or malfeasance, and includes casting light upon “on the adequate performance of public authorities.” This – naturally – must include issues around judicial appointments. And Chandrachud J bites the bullet, noting that “the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm.”He also makes two more points. First, he sets out a broad definition of public interest, and warns against subjective determination of what does – or does not – constitute public interest; but even more importantly, he sets out a series of factors that cannot become grounds for denying information. These include arguments that disclosure could cause “embarrassment” to the institution, or create “unnecessary debate”. For Chandrachud J, such considerations must ipso facto be ruled out as irrelevant. And secondly, he holds that Public Information Officers must set out the reasons underlying their decision on the “balancing” between privacy and public interest. Thus, it is not simply enough to deny information by stating that privacy overrides public interest; how it does so must also be set out (in other words, accountability through reasoning).Both the majority judgment and Chandrachud J leave these as suggestions – or as standards – that Public Information Officers may consider applying in specific cases before them. The discretion at the first instance, therefore, remains. The exercise of that discretion – this author would respectfully submit – ought to be guided by Chandrachud J.’s concurrence, which is in harmony with the purpose and philosophy of the RTI Act.