Thankfully, RTI is alive and kicking

It is a victory of the Right to Information Act, which was enacted on October 12, 2005. After the Constitution of India, 1950, it was the first-ever accountability law for information and transparency 21 years ago.

The withdrawal by the Tamil Nadu Government of its September 21 Government Order exempting the Public (Law and Order) Department from the Right to Information Act, 2005, established democratic accountability.

It is not only about Jantar Mantar agitations in Delhi; they are across India. This article is not dealing with the way the Government is working. (Generally, Jantar Mantar translates, quite literally, to the “instrument used for calculation”, but the transition from its literal, historical definition to its contemporary satirical interpretation highlights how the youth-led movement has reframed the space.)

As witnessed now, it is significant because the department deals with communal and caste clashes, police firing, custodial deaths, police torture, preventive detention, public protests, and reports submitted to the government about law-and-order incidents. These are not mere matters of administrative convenience. They concern the exercise of coercive state power, the protection of fundamental rights and the accountability of public authorities.

October 12 reminds us that the right to information cannot be protected merely by celebrating the enactment of a progressive law. It must also be defended against administrative orders that seek to place public institutions beyond public scrutiny. Government and the police administration, with force and violence, men and women equally, including lady police, must be taught accountability. Each ‘act’ or atrocious act is a crime and tort, for which one should be compensated at the cost of the public treasury, and a significant part of compensation should be individually liable to be paid by those officers and police public servants. After all, they are servants of the public.

There is an essential distinction between protecting genuinely sensitive intelligence and security information and exempting an entire government department simply because some of its files concern law and order. The former may be justified by law, but the latter demands rigorous scrutiny under the statute and the Constitution.

The Supreme Court has now reinforced the importance of that distinction in its June decision concerning the Madhya Pradesh Special Police Establishment. The judgment offers a timely legal foundation for examining the Tamil Nadu controversy and the wider problem of state governments using Section 24(4) to expand RTI exemptions beyond the limits Parliament prescribed.

Information is indispensable to democracy: Every teacher of our Constitution should necessarily talk about Article 19(1)(a), which is expected to guarantee freedom of speech and expression, which includes an agitation for protection of the rule of law. The apex court has repeatedly recognised that this freedom includes a citizen’s right to receive information necessary to participate meaningfully in accountability and to be liable for any injury. Because we are in a democratic government.

Three judgments that are RTI’s strength:

There are three significant cases, State of Uttar Pradesh v. Raj Narain (1975), wherein the Supreme Court recognised the public’s right to know about public acts of public officials, subject to legitimate restrictions. In the second great judgment, S P Gupta v. Union of India (1981), the Court emphasised the importance of openness in government and the public interest in disclosure. In People’s Union for Civil Liberties v. Union of India (2003), it reaffirmed the constitutional importance of the voter’s right to know relevant information about electoral candidates. The right to vote, its existence or doubt of it, is itself in ‘controversy’, threatening the Constitution and citizenship. If the CEC exercises the power to remove crores of voters from lists, it is not called an ‘election’; it’s a sham.

The RTI Act translated these constitutional principles into an enforceable statutory framework. Its preamble expressly recognises that democracy requires an informed citizenry and transparency of information, while also acknowledging the need to preserve confidentiality in genuinely sensitive matters.

Section 3 confers the right to information on citizens. Section 4 imposes proactive disclosure obligations on public authorities. Sections 6 and 7 establish the application and response mechanisms. Sections 8 and 9 provide specific exemptions, while Section 10 permits disclosure of the non-exempt portions of a record.

National security and law of order:

These provisions establish an important principle: the starting point is disclosure, and any refusal must find legal justification in an applicable exemption. The right is not absolute. National security, privacy, the integrity of investigations and other legally protected interests can justify withholding information. But a government cannot simply declare an entire field of administration secret and thereby displace the statutory framework Parliament enacted.

Section 24(4): What can a state government exempt?

Section 24(4) is the crucial provision in the Tamil Nadu controversy. It allows a state government, by notification in the Official Gazette, to specify intelligence and security organisations established by that government to which the RTI Act will not apply.

The statutory language is significant. It refers to “intelligence and security organisations”, not every department that deals with public order, police administration or politically sensitive matters.

The section also contains two important safeguards:

The precise wording matters because an exemption under Section 24(4) is not a general licence to classify inconvenient information as secret. It must be exercised within the authority conferred by Parliament.

The Public (Law and Order) Department described in the news report performs a much wider range of functions than intelligence gathering. Its work includes examination of reports concerning police firing, custodial deaths and torture; action on communal and caste clashes; detention under preventive-detention laws; responses to parliamentary questions; and consideration of protests and political agitations.

Some records held by such a department may genuinely reveal confidential intelligence, operational plans or information whose disclosure could endanger individuals. But many others concern completed administrative decisions, expenditure, the implementation of government policy, official inquiries and the treatment of citizens by public officials.

The fact that a department deals with law and order cannot, by itself, make all these records intelligence or security information.

That is the central legal objection to a blanket exemption. The question must be whether the body qualifies as an intelligence or security organisation within Section 24(4), and whether the particular information can lawfully be withheld. The statutory test cannot be replaced by the broad administrative label of “sensitivity.”

A particularly relevant precedent is V. Vidya v. The State Chief Commissioner, Tamil Nadu Information Commission, W P No 21847 of 2014, decided by Justice Anita Sumanth on March 28, 2023. The case concerned a woman’s request for a report prepared by the Special Branch Criminal Investigation Department (SBCID). She alleged that police officials had acted improperly against her and sought the report of an inquiry into her complaints. The State argued that the report was protected because the Special Branch was an exempt organisation under Section 24(4). The High Court rejected the argument that the exemption was absolute and unfettered. Justice Sumanth explained the statutory balance in these terms:

The Court also stressed that statutory interpretation must remain faithful to the purpose of the law, even when security concerns are raised. At paragraph 39, it observed that there was a constitutional duty to interpret the statute in accordance with its specific terms, objects and purpose. Before this judgment, the transparency in Tamil Nadu was in senile.

This judgment is especially important for its treatment of allegations of corruption and human-rights violations. The Madras HC held that the allegations need not already have been conclusively proved before the exception to Section 24(4) could be considered. The allegations must have some basis and cannot be arbitrary or random, but the government cannot insist that a citizen first establish the entire case before obtaining information that could help substantiate it. At paragraph 35, the Court explained:

“Hence even an allegation of corruption or human rights violation would suffice though the allegations cannot be random or arbitrary to attract the exception.”

The Court further emphasised the statutory safeguard of approval by the State Information Commission and the 45-day period prescribed by Section 24(4).

Most importantly, the Court did not stop at a general declaration. It allowed the writ petition and directed the Public Information Officer of the Special Branch CID to supply the requested report within four weeks. It concluded that the State Information Commission had erred in treating the exemption as absolute. All of India must thank the Madras HC for keeping RTI alive and kicking. RTI Zindabad!

ABOUT THE AUTHOR

Prof Madabhushi Sridhar Acharyulu

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