Ironic HC Order Makes Even Voter’s List Illegal: Shailesh Gandhi

The recent Bombay High Court order in the Saket Gokhale case asking the Government to hide his name and postal address, amongst others, has far-reaching impact and could wipe away the concept of transparency and accountability, says former Central Information Commissioner,  Shailesh Gandhi, in an interview with The Leaflet.

——-

AS the Bombay High Court asked the Ministry of Information and Broadcasting (MIB) to remove the name, postal address and other contact details of all the applicants it had put on its website, there was a flurry of reactions among RTI activists. Shailesh Gandhi, the former Central Information Commissioner, said that it was “unfortunate” that the issue was misrepresented before the Bombay High Court and “ironic” the way it dealt with it.

It is unfortunate because facts were not put before the court the way they stood and misinterpretations made by the Department of Personnel and Training (DoPT), the nodal agency to implement the RTI Act in India.

It is ironic because it gives away the very information the court asked the public authority to hide from their website and information that can be procured through many other means – including the telephone directory that was the go-to book until not many years ago. But the biggest concern, says Gandhi, is that it sets to wipe away the concept of transparency and accountability brought in by the Sunshine Law.

According to Gandhi, among the orders that are grossly misused, this one will go a step further and make many actions of government and public authorities “Illegal” for putting information in the public domain.

“Voter’s list” is one such that provides all such information that the court has asked the Ministry of Information and Broadcasting to hide but is widely available.

Ghost employees, out of turn selection, action taken on officers, their promotions, and transfers will not be exposed because the order will effectively ensure that all names and addresses are out of the Jansoochna portals and government websites. The order, he says, effectively draws curtains on transparency and accountability through suo motu disclosure.

The suo motu disclosure system curbs corruption, and allegations of misuse of information, which the Act said should become the norm so that applications are not filed.

Excerpts of the interview with Shailesh Gandhi:

Q 1. You have raised alarm over the recent Bombay High Court order on the Saket Gokhale case calling it “ironic” with the potential to cause a lot of harm to transparency and accountability.

A 1. The Bombay HC order in Saket Gokhale’s case is totally ironic. While on one hand, the HC has asked the name and postal addresses of the petitioner should be hidden by public authorities, it gives away the very same details in its order. The bigger danger this order has is that tomorrow names and addresses that are part of the public record over a period of time will be denied that will hamper transparency. The HC order assumes that all information related to a natural person is exempt. Personal information that is part of public records can only be denied if it fits the exemptions clauses of the RTI Act according to me. At this rate, no name and postal address will be given under suo motu disclosure of the RTI Act. Details of beneficiaries, transparency achieved through Section 4 (clause related to suo motu disclosure) will all go away.

Many categories of information will become meaningless if details of addresses and names are not provided. This would be an effective amendment to the RTI Act. The order effectively makes even the Voters List illegal which is available publicly including websites.

How will we get to know if there are ghost employees or beneficiaries unless you have these details? Government and RTI activists have been saying that all such information should be on websites. If names and addresses are removed, you are effectively making everyone and everything anonymous.

Q 2. How does beneficiary detail get excluded in the first place and be clubbed with this? This is with respect to suo motu disclosure in the case of RTI applications. An applicant is not a beneficiary.

A 2. The impact may not be visible tomorrow but over a period of time it will because that is what the order of the High Court does in Saket Gokhale’s case. The Girish Ramchandra Deshpande judgement is misused and has become a tool to deny information without even application of mind as more and more officers are getting to know of it. With this order, slowly all this information will not be given and RTI will have no meaning 10 years down the line.

The Girish Ramchandra Deshpande judgment, briefly put, turned down information requests that sought details of an officer like salary, tax, performance, income tax among others. The order said that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest)

Q 3. But, the Girish Deshpande order has not impacted Jansoochana portals and information continues to be given suo motu.

A 3. The Girish Deshpande judgement never brought things down to names and addresses not to be given or hidden from websites though it is about personal information. Your name is personal, your age is personal and everything that relates to a natural person is personal. The Bombay HC order says authorities should not display names and addresses. And the issue is not just about beneficiaries here.  Effectively ration card holders, job applications where people get selected out of turn, under trial prisoners who have completed half of the sentence they were charged for but languish in jails, officers who are transferred on the whims and fancies of government – the ramifications are enormous and I cannot think of all possibilities. All these are at present being asked to be put in the public domain so that there is transparency. Tomorrow there could be noise over why such details are there in the public domain even after this HC order and everything would be hit.

As of now, a lot of denials are coming through Section 8 (1) (j)** after RTI applications are filed. These denials are limited to when RTI applications are filed. This judgement now covers the suo motu disclosure part also. The Act said that it should be a constant endeavour of public authorities to give information from time to time so that people do not have to resort to filing RTIs.

Q 4. It is still your assumption.

A 4. The question here is on what basis the name and postal addresses that are now public records are not given. Give me a legal argument about why it should not be given? It is not about “this is what I feel like”. Where is it written that at some places it can be given and at some others, it cannot be given? It is part of the public record, which is with the government. Such information is exempt only as per the clauses of the RTI Act.

Based on this judgement, it cannot be given. Personal details cannot be given or put up on websites. Jan Soochna portals today suo motu disclose names and addresses of beneficiaries, their account details, and even the ration details. Ration details that people get is very personal as it states how much food is given. But it is also important for transparency.

There are many other ways to get the names and addresses of people. There is a general awareness of people who become activists or popular. Even a mere request on a Whatsapp group or through word of mouth can get you their details. One should understand that such information is given by applicants on their own while filing RTI applications.

Above all, why should name and postal address that is a public record not be provided? This order is based on a flawed interpretation of the Calcutta High Court judgement.

Q 5. And what is that?

A 5. There was a misrepresentation of the Calcutta High Court order by the Department of Personnel and Training (DoPT), the nodal body to look after the implementation of the RTI Act. Since the Bombay High Court has mainly relied on the Office Memorandum issued by the DoPT, its own order is flawed.

In the Calcutta High Court case, the RTI applicant had said that he had wanted to give only his post box number instead of postal address. The court accepted this contention and stated that if for any reason the public authority insisted on knowing his address, then it would be their duty to hide such information.

The DoPT misinterpreted the Calcutta High Court order and passed a sweeping memorandum stating that all personal details will have to be hidden from all applicants. The Calcutta High Court said the post box number is sufficient to contact the activist in view of threats by vested interests. If it had any doubts, the public authority could ask for a full postal address. Various information commissions, in their orders, give names and addresses of applicants.

Q 6. The argument is that there could be a threat to people’s life.  While talking to us, Saket Gokhale had said that there could be an opt-in where the applicant’s consent can be taken to put such details on the website. What do you think of such an option? Applicants have the right to say no to provide their information.

A 6. There was a case I decided as Central Information Commissioner where someone wanted copies of RTI appeals made by Subhash Chandra Agarwal, a prominent RTI activist based in Delhi. He objected to giving away copies of his appeals. Since the person did not get it, the matter reached me when I was the information commissioner. I told Mr. Agarwal information can be denied only on the basis of exemptions under the RTI Act and I could see no exemption applying. In his case, my order was that his RTI appeals should be disclosed.

Even in the case of Saket Gokhale, it is his assumption that they got his details from the Ministry of Information and Broadcasting website just because he did a Google search. They could have got his information from anywhere. It is easy to get details of people who are active. The court also notes that Saket is a former journalist who now takes up social and public causes. In such scenarios, his contacts would be known to many people. You ask people around and you get their details. Today, even on Whatsapp groups you ask for such information and you get it if you are remotely well connected or organised. The whole premise is flawed.

Q 7. In the larger public interest, information can be disclosed if there is corruption.

A 7. The philosophy of the RTI Act is that most information should be available suo motu. What people do not confront is that the public information officer (PIO) will never give information in larger public interest after admitting it is exempt. It is easy to say it is not exempt and also in the larger public interest for a Commissioner. That is easy to do. That is done because if the matter goes to a court, and the court disagrees with the Commission saying “exemption is applicable”, it will also have to justify that there is no larger public interest to disclose information.

In most cases, it is extremely difficult to explain the larger public interest. If I suspect corruption, how do I prove it? Either you have to accept my allegation. That would be unfair or be wrong in fact. Just because I am a Commissioner and somebody made an allegation – a public servant is corrupt, so should I say it is in the larger public interest? That will be a completely untenable position. Indian law says very little personal information must be denied. 

But that is not happening and increasingly information is being denied under Section 8 (1) (j) citing the Girish Deshpande order. Lots of other judgements also have said that as per Girish Deshpande, it should not be given. But why am I worried about this? I am worried because this closes the door to even suo moto disclosure. That is why it is still more dangerous. Another thing is that RTI applications and responses should be put up on websites with searchable words. If somebody wants information of the same type, he will get it.

Frivolous applicants would get exposed and the conduct of all parties including PIOs, FAAs and Commissioners would be open to public scrutiny. It would also act as a check against them. Earlier information was not searchable so no one was looking at it. The search should be possible with the PIO’s name or applicant’s name or topic or subject matter of RTI for easy search. This order closes even that door completely on all this.

There was a case of doctors with fake degrees in government hospitals. If such information is available online, then it will be a curb on such malpractice.

In the past, many commission orders have directed such information to be put online. Suo motu information exposes a lot of things and puts a curb on even allegations of harassment and misuse of RTI which are levelled.

This judgement will draw a curtain on suo motu disclosure and transparency.

The article was originally published in The Leaflet.

(Ashutosh M. Shukla is an independent journalist based out of Mumbai. He has been writing on RTI and transparency-related issues among others. The views are personal.)