In November 2012, Shailesh Gandhi, a right-to-information activist and former information commissioner, filed an RTI request with the Maharashtra income tax department. He was seeking the income-tax returns and balance sheets of Ajit Pawar, a former deputy chief minister of Maharashtra. A series of public authorities dismissed his petition and subsequent appeals—the public information officer, the first appellate authority, the central information commission (CIC), the Bombay High Court, and finally the Supreme Court, which dismissed his special leave petition in 2015.
The information officers and the courts denied Gandhi’s request citing a 2012 Supreme Court order dismissing a similar special leave petition in the case of Girish R Deshpande vs Central Information Commissioner. The Supreme Court order, passed by a division bench of Dipak Misra and KS Radhakrishnan, states that income tax returns, assets, liabilities, official orders and performance records of public officers are personal information and can be exempted under Section 8(1)(j) of the RTI Act of 2005. The provision exempts from disclosure any personal information that does not serve a larger public interest, or when it can result in the invasion of a person’s privacy. But the broad interpretation of this clause has weakened the RTI Act, allowing authorities to withhold information and protect public officials from public scrutiny.
In August 2013, the department of personnel and training, or DoPT—the nodal agency that implements the RTI act—issued an office memorandum stating that complaints against officials and the action taken against them comes under the category of personal information and is therefore exempt from disclosure under the RTI act. “This office memorandum is the single most problem faced by every information commissioner in the country,” Sridhar Acharyulu, a former central information commissioner, said. “The CIC can’t even take action against information officers for denying information because they are quoting the DoPT order. If the government is sincere about implementing transparency in public offices, the office memorandum should be withdrawn.”
The DoPT memorandum drew primarily on the Desphande order. According to Acharyulu, Gandhi’s request is only one among lakhs of RTI requests and thousands of appeals that have been similarly rejected citing the Deshpande order. Yet, legal experts, former information commissioners and RTI activists I spoke to said that the order violates the RTI act and goes against the guarantee of information derived from Article 19 of the constitution.
“Today, if there are 20 RTI second appeals, 10-12 are rejected by quoting the Girish Deshpande judgement,” Acharyulu said. “This is a very difficult situation for the commission. If information officers do not want to give information they can easily cite 8(1)(j) as interpreted by the Deshpande order.”
Section 8 of the RTI act lists ten exemptions to information disclosure. It includes anything that may compromise national security, breach the privilege of parliament or state legislatures, or impede investigation or prosecution of offenders. The tenth clause, Section 8(1)(j), refers to invasion of privacy and reads as follows:
(j) information which relates to personal information the disclosure of which has not 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: