Summary: In Part I, it was argued that the exceptions under Section 24 were inadequate to meet the requirements of citizens who require the disclosure of information, even when such information does not affect the confidential work performed by organizations like CBI. Consequently, in this part, the author argues that Section 24 violates Article 14, and proposes a new “public interest” standard to evaluate whether organizations must be mandated to disclose information.

I. Subjecting Section 24 to the ‘Reasonable Classification’ Test

The equality code in Article 14 prescribes substantive and not formal equality. Article 14 thus only forbids class legislation and not reasonable classification. Under this doctrine, classification of persons or entities by the government is legally valid if it satisfies the twin tests laid down in State of W.B. v Anwar Ali Sarkar:

• The classification must be based on an intelligible differentia which distinguishes persons that are grouped, from others left out; and
• The differentia must have a ‘rational nexus’ to the object sought to be achieved by the statute

Thus, a reasonable classification must include all persons or entities who are similarly situated with respect to the purpose of the law. Furthermore, a classification may be over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, an over-inclusive classification imposes a burden upon a wider range of individuals than the class at which the law aims. This test has been used multiple times (see here and here) by courts to hold schemes and provisions violative of Article 14 of the Constitution.

Section 24 of the Act functions to create a separate “class” of RTI applications dealing with matters concerning ‘corruption’ and ‘human rights violations’ where information must be disclosed, whilst clubbing all other types of RTI applications in another “class” where non-disclosure is to be the norm. The yardstick or differentia used for this classification appears to be based on the logic that information concerning ‘corruption’ and ‘human rights violations’ is more important than other matters and hence, they warrant disclosure despite the blanket exemption.

The purpose behind Section 24 is to protect and ensure the confidentiality of the sensitivity of the activities undertaken by certain intelligence and security agencies. Thus, the primary “class” of RTI applications that Section 24 seeks to regulate are those which seek information that may prejudicially affect the sovereignty and integrity, the strategic security or the economic interests of India. However, in providing a blanket exemption to Second Schedule organisations, Section 24 dramatically assumes that all work carried out by these organisations is sensitive and hence, no information must be disclosed by them apart from ‘corruption’ and ‘human rights violations’ matters. In doing so, it effectively regulates a wider range of individuals than the class at whom the law aims and is thus, an over-inclusive legislation. As illustrated in the previous section, there are several additional heads of information (wrongful termination, wage disputes, workplace harassment, service-related matters etc.) where disclosure may be warranted depending upon the fact situation.

A potential counter-argument by the State would be that any disclosure by intelligence and security organizations, even of seemingly innocuous information, could inadvertently reveal sensitive details. However, this argument overlooks the possibility of a more carefully tailored approach whereby the court assesses each RTI request on a case-by-case basis. Based on such an inquiry, balancing competing aspects of public interest of disclosure and non-disclosure, the court can even direct a selective disclosure of information, thereby ensuring that sensitive details implicating national security are protected whilst also promoting transparency. For instance, in Dharmendra Kumar Maurya’s case (supra) where the applicant sought information regarding educational requirements for a job post in DRDO, general information about employment policies and job requirements should have been disclosed in the larger public interest to prevent arbitrary or discriminatory practices in recruitment. On the other hand, there also may be a legitimate concern to withhold information (albeit service-related) like specific salaries of officers, special allowances given to personnel in sensitive roles, details of specialized training programs for intelligence officers etc., in the larger public interest of protecting national security. Each case thus, requires a scrutiny into the merits and demerits of disclosure. I shall elaborate further upon the legal basis of such a court inquiry in Section IV of this article. However, Section 24’s blanket provision eliminates the possibility of conducting any such inquiry by excluding all matters in intelligence and security organisations from the ambit of the Act. The classification created by the section has thus, no rational nexus to the object of the law.

Furthermore, in Nagpur Improvement Trust v Vithal Rao, a 6-judge bench of the Supreme Court added a third prong to the test – that the object of the law itself should not be unlawful or discriminatory. This means that if the object of the law itself is to discriminate, then the discrimination cannot be justified on the ground that there is a reasonable classification because it has a rational nexus to the object sought to be achieved. The object of a law, in the words of J. Mathew in Shri Ambica Mills Ltd. (1974), may be either “the elimination of a public mischief or achievement of some public good.”

In the context of Section 24, conceding that the first two prongs are being met, Section 24 still does not pass the threshold of the test because the object of the section itself runs inimical to the over-arching goal of the RTI Act and undermines fundamental democratic principles of transparency and accountability. The classification made in Section 24 neither eliminates public mischief nor achieves some public good. Instead, it is discriminatory as it advances public mischief by blanketly excluding legitimate disclosure claims of citizens, especially those filed by employees of the exempted organizations regarding service-related matters, from the ambit of the Act. In the landmark case of Raj Narain (1975), the SC noted the executive’s primacy in deciding upon the disclosure of matters which could prejudice national security, whose exclusion from the right to information may be necessary. In the same breath, it also sounded a word of caution that the executive alone is not responsible for public interest and that courts, if the situation warrants, can overrule the objection of the executive if it serves the larger public interest. While the protection of national security is a legitimate concern which may warrant special protection to certain select organisations, the blanket exemption provided by Section 24 is overly-broad as it completely thwarts the ability of the court to balance the competing aspects of national security as public interest against principles of transparency and accountability.

Therefore, I submit that Section 24 is violative of the equality code of Article 14 of the Indian Constitution and is liable to be struck down.

A more appropriate method of dealing with RTI applications issued against intelligence and security organisations flows from the Preamble of the Act itself. The Preamble to the Act indicates that its primary purpose is to harmonise the conflicting interests of the government to preserve the confidentiality of sensitive information whilst also ensuring the right of citizens to know the functioning of the government. In the following section, I present an alternative approach of dealing with RTI applications against intelligence and security organisations – based on the ‘public interest’ standard – which also aligns with the Act’s overarching objective.

II. The ‘Public Interest’ Standard 

The test of ‘public interest,’ as set out in the landmark case Conway v Rimmer, entails weighing two competing aspects of public interest –

• Harm must not be done to the nation or public service by the disclosure of information; and
• Administration of justice must not be frustrated by the withholding of certain information which must be available in the public domain.

The essence of the RTI Act, as gathered from its Preamble, is exactly this exercise – balancing these two conflicting interests. Section 8 of the Act conforms to this principle of ‘public interest’. Section 8(2) posits that the exemptions under Section 8(1) must be judged at the touchstone of public interest. It thus, recognises that there must not be absolutism even in the matter of certain values which are normally considered to provide unquestionable grounds for the power to withhold information. Privilege claims by public authorities under Section 123 of the Indian Evidence Act, which deals with non-disclosure of information relating to unpublished official records, have also been rejected by courts based on the ‘public interest’ standard.

Applying this standard to RTI applications issued against security and intelligence agencies would mean that the courts would have to perform a balancing exercise on a case-by-case basis and after weighing one competing aspect of public interest against the other, decide where the balance lies. If the court concludes that, on the merits of the case, the disclosure of information would cause greater injury to public interest than its non-disclosure, the court would reject the RTI application. But if, on the other hand, the court finds that the balance lies the other way, the court would order the disclosure of information. This would mean that matters apart from ‘corruption’ and ‘human rights violations’ in intelligence and security organisations would now be liable to be disclosed through RTIs, thus broadening the horizon of accessing justice under the Act. Additional heads of information outlined in Section II would now have to be disclosed, subject to the ‘public interest’ test.

III. Conclusion                                                                                                                            

In conclusion, the recent judicial scrutiny of Section 24 of the Right to Information Act serves as a pivotal moment in redefining the scope of exemptions for organizations listed in the Second Schedule. A more balanced approach, as suggested, not only rectifies the current miscarriage of justice but also aligns with the Act’s overarching objective—to harmonize government confidentiality with citizens’ right to know. By embracing the alternative perspective, the legal landscape can better accommodate the principles of transparency, accountability, and justice that are intrinsic to a thriving democracy.

Samik Basu is a first-year student at NLSIU. 

[Ed Note: This article has been edited by Saranya Ravindran and published by Harshitha Adari from the student editorial board.]