Last week, the Supreme Court opened up the Office of the Chief Justice of India to the Right to Information (RTI) Act, 2005. In a unanimous judgment authored by Justice Sanjiv Khanna, the Court held that the need for judicial independence does not place an absolute bar on information disclosure. Can we expect this to usher in a new era of transparency and accountability? –The answer to this is uncertain at present, as the judgment suffers from a lack of clarity, which may stand in the way of greater transparency. In particular, there is ambiguity over who decides whether information is exempted from disclosure under the RTI Act.

 

Before proceeding, it is important to note that the Court has not delineated what types of RTI requests will universally be allowed. Rather, the Court will resolve RTI requests on a case-by-case basis via its Central Public Information Officer (CPIO). In deliberating upon requests, CPIOs will be tasked with balancing the right to information with the rights to privacy and confidentiality. Under Sections 8(1) and 11 of the RTI Act, certain types of information are exempted from public disclosure. For example, under Section 8(1)(j) ‘personal information’ cannot be disclosed. However, such exemptions are not absolute. They are subject to ‘the larger public interest’. If disclosing personal information is found to be in the interest of the public, then it may be disclosed.

 

An immediate concern that arises is whether CPIOs are adequately equipped to assess what is in the larger public interest. While the judgment does provide guidelines, they require a high degree of judicial expertise as they entail constitutional interpretation. In particular, they require CPIOs to weigh competing fundamental rights claims against each other. For example, when deciding whether to restrict the fundamental right to privacy for the sake of the larger public interest, the CPIO must apply the test of proportionality laid out in K.S. Puttaswamy. Is it reasonable to expect a quasi-judicial officer to apply this test?

 

But perhaps it does not matter whether CPIOs have adequate training for constitutional interpretation. As prominent RTI activist Venkatesh Nayak pointed out in his recent piece in The Leaflet, the judgment places the discretionary power to disclose information with the Supreme Court. More specifically, if any of the exemption clauses under Section 8(1) are applicable, the discretionary power to disclose information rests with the ‘public authority’ under Section 8(2) – in this instance, the Supreme Court. Nayak emphasises that it is not clear who within in the Supreme Court will make such decisions. Evidently, public authorities will have to draft rules to fill this lacuna.

 

But if public authorities control disclosure, how are we to interpret Sections 8(1)(j) of the RTI Act, that explicitly rests the power to decide whether disclosure is warranted with the CPIO? Perhaps we must conclude that the CPIO simply reasons about what is in the larger public interest and makes a recommendation. Ultimate discretion to order disclosure rests with the public authority. This, though, seems arbitrary. Consider that Justice Chandrachud in his concurring opinion emphasised that that Information Officers must ‘record detailed reasons’ for or against public disclosure. He stressed, ‘the requirement to record reasons is a principle of natural justice and a check against the arbitrary exercise of power’ (para. 108). If public authorities enjoy ultimate discretionary power to order disclosure, they can supersede this reason-giving process. In effect, the Court could simply ignore the CPIO’s reasoned out decision.

 

This potential conflict between CPIO and public authority is exacerbated when one considers who receives RTI requests on behalf of the Court. After all, the Court’s discretionary power to decide if an exemption applies, only comes into effect if an exemption is first attracted. The question becomes who decides whether an exemption provision is attracted. The CPIO appears to decide. Citizens must file RTI requests to the CPIO. So if the CPIO does not think an exemption provision is attracted, then the CPIO may never bring the request before a relevant officer of the public authority. The Court’s judgment appears to agree with this: ‘the PIO comes to the conclusion that any of the exemption clauses is applicable’ (para. 27). This creates the possibility that the CPIO could mistakenly disclose information, which the public authority later finds should have been exempted. Inherently, this creates a conflict between who has the authority to adjudicate over exemptions.

 

Hence, while the judgment has clarified the scope of the RTI Act with respect to the Chief Justice’s Office, it has also introduced new confusions. On the one hand, it allows the Court to apply its discretion in deciding what is in the larger public interest. At the same time, it requires CPIOs to engage in reasoned constitutional interpretation, while divesting them of the power to disclose information. To clarify how RTI exemptions are to be dealt with, the Court should produce a clear set of rules to address how RTI requests are processed, in particular with respect to Section 8(1) of the Act. Else, inconsistent RTI disclosures may follow suit.