Exceptions to The Right To Information | RTI Exceptions I By Rajul Jain

This article ‘RTI Exceptions I’ attempts to dilate on the exceptions to the ‘right to know’ as provided for in the Right to Information Act, 2005 (hereinafter referred as the 2005 Act) and how the same evolved with public debate to be crystallized in their present form.

I. Brief background

Judicial precedents serve a very important role in shaping and interpreting the law in any country and it is interesting to note the role played by the judiciary in India in the context of the citizen’s right to know, even when the same was not particularly the point under consideration.

In this context, it was perhaps, in the matter of State of Uttar Pradesh v. Raj Narain[1], way back in 1975 for the first time, when the Apex Court made lasting remarks on the need for transparency in a democratic country. While noting that the right to know is a derivative of the concept of freedom of speech, though not absolute, the Court held that any claims of secrecy not on grounds of public security should be met with circumspection.

Similarly, in S.P Gupta v. UoI[2] a 7 judge bench of the Supreme Court while observing that there can be little doubt that’ exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration held that disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. Thus, it can be seen that the Court itself highlighted the contours of reasonable exceptions.

In the more recent judgments[3] and particularly in People’s Union for Civil Liberties and Ors. v. Union of India (UOI) and Ors.[4], wherein the right to know was recognized as a fundamental right and said to be an indisputable facet of freedom of speech and expression as provided for in Article 19(1) (a), the Hon’ble Court went on to analyse the ambit of this right.

It was observed that every right – legal or moral – carries with it a corresponding obligation and the Court made an attempt to broadly lay out the exemptions/exceptions indicated in broad terms that may be applicable under various laws entitling the government to withhold information relating to the following matters:

1. International relations;
2. National Security (including defence) and public safety;
3. Investigation, detection and prevention of crime;
4. Internal deliberations of the government;
5. Information received in confidence from a source outside the government;
6. Information, which, if disclosed, would violate the privacy of individual;
7. Information of an economic nature, (including Trade Secrets) which, if disclosed, would confer an unfair advance on some person or concern, or, subject some person or government to an unfair disadvantage;
8. Information which is subject to a claim of legal professional privilege, e.g., communication between a legal adviser and the client; between a physician and the patient;
9. Information about scientific discoveries.

In the same line of reasoning, it was further held that “A reasonable restriction on the exercise of the right is always permissible in the interest of the security of the State.”

Therefore, it is evident from the foregoing discussion that various judicial pronouncement which recognized the right to know as an important facet of the fundamental right to speech and expression was also quick to add riders to the exercise of the said right, which was in order to ensure that the right to know is not misused.

It is pertinent to note at this juncture that in the report submitted in March 2002 by the National Commission to Review the Working of the Constitution[5], a recommendation was made to expressly include the freedom to seek, receive and impart information in Article 19(1) (a) with a corresponding amendment to Article 19(2) by adding a further restriction on disclosure of information received in confidence except if required in the public interest.

The above recommendation added another dimension to the restrictions applicable to the right to know. Since the requirement of “information received in confidence” did not figure in the text of Article 19(2), a constitutional amendment was suggested.

Even though the said constitutional amendment was never effected, we may note at this instance only, that the said recommendation seems to be embodied by giving it various shades in the exceptions under 2005 Act in the form of Section 8(1)(e), (f) and (g).

II. Shaping the Right to Information Act, 2005

The Right to Information Act, as it exists today underwent scrutiny and debate with various stakeholders highlighting their concerns on the scope and ambit of the same. The challenge for the legislature was to carve out exceptions, which not only conformed to the constitutional mandate under Article 19(2) and the judicial pronouncements which underlined the scope of the same but also adequately empowered the state to protect against unwarranted disclosures of sensitive information.

To add perspective to this discussion on placing restrictions on the right to know, it is apposite to look at the language of Article 19(2), as follows,

“Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Therefore, the task remained to shape these broad terms provided for by the Constitution makers to suit the prevailing needs as well as meet public scrutiny.

It is interesting to note that the 2005 Act was preceded by a draft bill titled Freedom of information Bill, 2000 which though passed by the Parliament and even assented to by the President, was never notified in the official gazette. As such Freedom of Information Act, 2002 was never enforced.

The contents of the said Bill/Act are noteworthy, so far as the exceptions are concerned, a discussion on the same can be found in the 78^th Report of Department-Related Parliamentary Standing Committee On Home Affairs on Freedom of information Bill, 2000[6]. In fact, the 2002 Act forms an important yardstick to test the nature of the exemptions as incorporated in the 2005 Act and the transition of the same. In this context, it is pertinent to note the provisions of the exemption clause in the Freedom of Information Act, which followed,

“8. (1) Notwithstanding anything hereinbefore contained, the following information not being information relating to any matter referred to in sub-section (2), shall be exempted from disclosure, namely:-

1. information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security of the State, strategic scientific or economic interest of India or conduct of international relations;
2. information, the disclosure of which would prejudicially affect public safety and order, detection and investigation of an offence or which may lead to an incitement to commit an offence or prejudicially affect fair trial or adjudication of a pending case.
3. information, the disclosure of which would prejudicially affect the conduct of Centre-State relations, including information exchanged in confidence between the Central and State Governments or any of their authorities or agencies;
4. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;
5. minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation;
6. trade or commercial secrets protected by law or information, the disclosure of which would prejudicially affect the legitimate economic and commercial interests or the competitive position of a public authority; or would cause unfair gain or loss to any person; and
7. information, the disclosure of which may result in the breach of privileges or Parliament or the legislature of a State, or contravention of a lawful order of a court.

(2) Any information relating to any occurrence, event or matter which has taken place occurred or happened twenty-five years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty-five years has to be computed, the decision of the Central Government shall be final.[7]”

Several comments were received on the exemption clause, broadly summarized as follows[8]:

1. The provisions being loosely worded and vague would enable the authorities to deny large amounts of information;
2. Inclusion of the term ‘secretaries’ widens the scope of exclusion and puts at par the Cabinet Secretaries with the deliberations of the Cabinet and Cabinet Committees;
3. Section 8(1)(c) does not appear to be covered by Article 19(2) and would thus, result in violation of Article 19(1)(a);
4. On a similar note it was felt that if Section 8(1) (e) would be construed to mean that the minutes or records of advice etc. mentioned therein will not be covered by any of the exceptions mentioned in Article 19(2) or any other Constitutional Provision. It will also be contrary to the substance of the law laid down in S.P Gupta’s case[9];
5. Language pertaining to Centre-state relationship is very wide and would lead to misuse
   [10]; and
6. The period of 25 years was deemed to be too long placing unnecessary fetters[11].

The above objections were responded to by the government primarily on the lines that similar exemptions are applicable under the law prevalent in Australia, New Zealand, Ireland, Netherlands, the USA, France and Canada and thus, the position taken in the Indian draft statute is not an exception.

It emerges from a perusal of the provision and the broad objections received thereto that the exemption clause suffered from various lacunae and it was felt that it required drastic changes at least to the extent it raised the concerns of being outside the scope of Article 19(2). However, the said clause was accepted by the Parliamentary Committee without any amendments and became a part of the Freedom of Information Act, 2002.

Apart from the above exemption clause, clause 9 (information sought being voluminous and too general or already in public domain etc.), clause 11 (third party information) and clause 16 (blanket exemption for the applicability of the act to certain organizations) were other clauses which sought to restrict the right of information.

The aforesaid 2002 Act was not enforced and the Government assigned the National Advisory Council (NAC) to suggest constructive changes to the Freedom of Information Act, 2002, which after taking inputs from various stakeholders suggested 35 amendments, including but not limited to ensuring maximum disclosure and minimum exceptions consistent with constitutional provisions. In view of the extensive changes suggested by the NAC, the 2002 Act was decided to be repealed for an improvised statute[12].

It is glaring fact that the suggestions and recommendations made by various stakeholders during the discussion conducted in respect of Freedom of information Bill were actually adopted later and became a part of the Right to Information Act, 2005.

This highlights how the said statute was chiselled to adapt to the judicial standards and meet the constitutional standards. It also throws light on how the earlier omnibus provision, which would have defeated the very purpose of the right to know, was watered down to bring it to the present form.

The following suggestions made qua the Freedom to Information Bill, find a place in the exemption clause under the 2005 Act may be noted:-

1. The broad-based phrase ‘breach of privilege’ should be substituted by ‘breach of parliamentary privilege’[13];
2. All information that cannot be denied to the members of the parliament/legislature should not be denied to the public[14];
3. Reduction in the term of 25 years under clause 8(2) above 15 years
   [15].

Now it is ripe to look at the exemption provision under 2005 Act, which is as follows:-

“8. Exemption from disclosure of information.—

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—

1. information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
2. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
3. information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
4. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
5. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
6. information received in confidence from foreign government;
7. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
8. information which would impede the process of investigation or apprehension or prosecution of offenders;
9. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub‑section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub‑section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.”

Therefore, it is clear that section 8 under 2005 Act is a significant improvement towards ensuring that the right to know is preserved in its true sense and especially in comparison to the exemption clause under the 2002 Act, which came to be repealed.

By inserting the phrase ‘public interest’ a much-needed balance has been struck. Now, the quasi-judicial and judicial fora are entitled to examine the cases with the lens of whether the disclosure of information, even if covered by any of the exception clauses under section 8, would serve the larger public interest by throwing light on miss-doings of administrative bodies. The said exception has to be objectively determined since it would interfere with the ‘protected interest’.

Further, in the 2005 Act, Section 9 deals with refusal of information where the same may involve an infringement of copyright subsisting in a person other than the State; Section 11 provides an additional procedure to be followed as an exception to the general rule where the information sought belongs to a third party and is considered as confidential by that third party; and under Section 24 exemption relating to information with intelligence and security agencies barring cases of corruption and human rights violation subject to a further requirement of approval to the disclosure of information by the Central/State Information Commission.

The improvement in Section 24, under the 2005 Act, is also a marked difference from the 2002 Act which sought to provide an absolute exemption in favour of a certain class of government bodies.

The window that has been built in by the use of the terms ‘corruption’ and ‘human rights violation’, is a much-needed reprieve to ensure that the protection granted would not encourage its misuse to perpetrate a culture of secrecy which is not answerable even for use of public funds or actions which affect the citizens in the most fundamental manner by affecting their human rights.

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By – Rajul Jain

The Author is an Advocate practicing before various courts in Delhi. The present article is part one of two-part series on Exceptions to Right to Information.

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[1] [1975] 3 SCR 333

[2] AIR 1982 SC 149

[3]Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Ors. AIR 1995 SC 1236; Dinesh Trivedi, MP & Ors. v. Union of India & Ors.,(1997) 4 SCC 306; People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India AIR 2004 SC 1442

[4] AIR 2003 SC 2363

[5] Chapter 3, page 8

[6] Presented To Rajya Sabha On 25^th July 2001 and laid on the table of Lok Sabha On 25^th July 2001

[7] Freedom of information Bill

[8] Supra

[9] Comments by Justice P.B Sawant on the exemption clause in the 78^th Department-Related Parliamentary Standing Committee On Home Affairs on Freedom of information Bill, 2000

[10] Comments by A.G Noorani, Senior Advocate in the 78^th Report

[11] Comments of Shri. Madhav Godbole in the 78^th Report

[12]Department Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice Third Report On The Right To Information Bill, 2004 (Presented To The Rajya Sabha On 21^st March 2005 and laid On the table of the Lok Sabha On 21^st March 2005)

[13] The said suggestion has been incorporated as section 8(1)(c) of the 2005 Act

[14] The said suggestion has become a part of section 8 as the first proviso to it

[15] The suggestion has been partially accepted as section 8(3) of the 2005 Act prescribes a period of 20 years

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1. All You Need To Know About RTI In India
2. Right to Information: The Procedure for Filing an RTI Request