The Wire

By:  Venkatesh Nayak and B.K. Chandrashekar

It is not clear at all as to how precisely would the individual’s – in this case PM Modi's – privacy would be violated by unravelling details of his qualifications.

 The recent judgement of the High Court of Gujarat (Gujarat University vs M S Acharyulu & Ors) striking down the order of the Central Information Commission (CIC) of April 29, 2016, directing the Gujarat University to disclose details of the education qualifications of Prime Minister Narendra Modi has – wittingly or otherwise – diluted the Right to Information Act (RTI Act). No doubt, the CIC’s order ought to have been the culmination of the due process laid down by the RTI Act, 2005.

When the Solicitor General of India, Tushar Mehta, informed the high court on the date of the last hearing that the university had no objection to disclosure and had in fact published the requisite information upon the CIC’s direction in 2016, the court ought to have closed the matter as being infructuous. Instead, the court ventured into the territory of examining the correctness of the CIC’s decision, struck down the order and also imposed costs on Delhi chief minister Arvind Kejriwal. With respect, this was entirely unwarranted and gave an opportunity for observers to call it a case of judicial overreach.

Second, the ruling that documents relating to the educational qualifications of a student are held by the university in a fiduciary capacity is not supported by the ratio decidendi of the Supreme Court in the case of Aditya Bandopadhyaya vs Central Board of Secondary Education (2011) 8 SCC 497. The Supreme Court clearly ruled that examination boards such as the CBSE perform public and statutory duties and the claim of fiduciary capacity does not arise when describing the nature of the relationship between such bodies and the examinees they serve.

While the high court correctly held that educational qualifications of an individual are ‘personal information’, that criterion alone does not qualify for the protections listed in the RTI Act [Section 8(1)(j)]. The refusal to disclose information to an RTI applicant, under this section, is permitted only if it has no relationship to any ‘public activity’ or of any ‘public interest’. Nor should it have the effect of causing unwarranted ‘invasion of the privacy’ of an individual.

The establishment of public universities with state funding, selection of students for admission, conduct of examination and announcement of results are all ‘public activities’ and ought to be transparent. These parameters do not figure in the Gujarat high court’s judgment. The ten exemptions under Section 8(1)(j) of the RTI Act prescribe the ‘harm test’ that should guide the information dispensing authorities to decide whether disclosure is justified on two grounds, namely:

a. Examine the result or outcome of information disclosure; and

b. Ensure that entire classes of information are not blocked from public scrutiny through the abuse of the exemption.

The very existence of harm tests implies that all information is presumed to be amenable to disclosure unless it can be shown that one or the other kind of harm will be caused by disclosure. Only when the harm test is satisfied should the information be denied. Indeed, it is not clear at all as to how precisely would the individual’s – in this case PM Modi’s – privacy would be violated by unravelling details of his qualifications.

A more worrying part of the high court’s order is that – by clear implication – a new class of information will hereafter be protected from disclosure, thus diluting the very objective of the RTI Act. Read More