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Insights into Editorial: Privacy in the age of sunshine laws
A Constitution Bench of the Supreme Court has finally concluded hearing a crucial appeal (after being nine years in cold storage) under the Right to Information Act (RTI), 2005.
One of the three crucial questions raised in this case pertains to whether judges are required to publicly disclose their assets under the RTI Act in light of Section 8(1)(j).
Participation, transparency, legitimacy and responsiveness form the pillars of good governance.
The concept of good governance was applied in India through the passing of Right to Information (RTI) Act, 2005, 73rd and 74th constitutional amendment.
Right to Information Act, 2005 forms a basic requisite of good governance and the Act has played and is still playing a major role in bringing good governance by making our system transparent and accountable.
Section 8(1)(j) of RTI, Act:
This provision prohibits the sharing of personal information that has no nexus to public activity or which amounts to an unwarranted invasion of privacy unless the larger public interest justifies such a disclosure.
RTI is not absolute, it is balanced out with right to privacy of public servant and with necessarily check on disclosure of such information which can cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest.
However, the RTI Act left this power of sharing of personal information to Public Information Officer (PIO) to cancel request on this ground on its discretion with very limited accountability.
Origin of the Present case:
The case has its origins in an RTI application filed in 2007, in which the Public Information Officer of the Supreme Court was asked by RTI activist, Subhash Agrawal whether the judges of the Supreme Court had complied with the terms of a resolution adopted in 1997.
Through that resolution all judges had committed to disclose information about their assets and liabilities to the Chief Justice of India.
The resolution had specifically mandated that the information would remain confidential.
In 2005, Parliament passed the RTI Act, creating legal right to demand information held by public authorities, which arguably also includes the CJI.
The PIO sought to invoke, among other Sections, Section 8(1)(j) of the RTI Act to deny the information.
Case of Political Representatives in disclosing their assets and sources of income:
Supreme Court rubbished the privacy claims of the political class to disclose their assets:
The five judges hearing the matter now and by them to assert the fundamental right to privacy as the basis for not disclosing assets to the public would necessarily require an implied overruling of landmark judgments.
In PUCL (2003) and Lok Prahari v. Union of India (2018), in which smaller benches of the court rubbished the privacy claims of the political class while forcing them to publicly disclose not just their assets but also the sources of their income.
The final ruling of the Constitution Bench will also impact the contentious Section 44 of the Lokpal Act, 2013, which requires all public servants (this includes judges) to disclose their assets but is silent on whether the disclosure should be to the competent authority or the general public.
This provision has already been the subject of an amendment in 2016.
However, there are some arguments against for disclosure of asset by Judges:
Public disclosure of political class is done with the view of the right to freedom of expression of voters under Article 19 to express their choice of vote.
On the other hand, judiciary and public servant are not directly accountable to public but accountable to Constitution and Laws by Parliament.
Already Resolution adopted in 1997: Judges of the Supreme Court had complied with the terms of a resolution adopted in 1997, in which all judges had committed to disclosing information about their assets and liabilities to the Chief Justice of India (CJI) well before the enactment of RTI.
SC held that there is no question on the integrity and neutrality of the CJI. Hence transparency must not be seen as panache, it must be balanced with trust, privacy and national interest.
In Girish Ramchandra Deshpande v. Central Information Commissioner, 2012, the Supreme Court ruled that the assets of the bureaucrat could not be revealed to an applicant under the RTI Act unless there was a showing of a larger public interest.
Hence there is no blanket ban, if the person seeking such information could demonstrate a “larger public interest” such as wrongdoing or impropriety on the part of the public official, the information could be disclosed.
What the RTI Act has managed to achieve in the last decade is to unleash a silent citizen’s movement for government accountability across the country.
The RAAG report found that on an average, 4-5 million applications are filed under the Act every year. But this has not been without its negative consequences.
The foundation of RTI is being true to power. If the purpose is to seek truth in exercise of all power then the question is not about all kind’s information has to be put in public domain.
It would then be only a matter of time before politicians and their spouses seek the overturning of the PUCL and Lok Prahari judgments, thereby turning back the clock on electoral transparency.
Complete information in public domain does not mean good governance. It is also about the mindset and approach towards transparency.