NOTE: From an email received from Advocate Mr Sundeep Jalan
The literal interpretation of section 8(1)(j) of the Right to Information Act, 2005
The Guide to explore the Article
2.Coming to the interpretation
3.An uncaring and delightful misreading of the Girish Ramchandra Deshpande judgment of the Apex court
4.The law of Precedents
5.What constitute (a) Public Interest (b) Privacy © disclosure of info on the ground of furnishing of info to the Parliament / State Legislature
6.How and in what manner the Application under RTI be attended with by the concerned PIO and the mandate of section 11
The RTI Act, codifies the citizens’ fundamental right to information. It was enacted with the spirit of ensuring transparency in the administration of the nation.
Section 3 mandates that “Subject to the provisions of this Act, all citizens shall have the right to information”.
Section 7 (1) emphatically voices that the Public Information officer (PIO) must either supply the information, or refuse it on the basis of grounds for exemptions contained in Sections 8 or 9.
According to the RTI Act, information may be refused from disclosure, in accordance with the provisions contained in Sections 8 and 9 of the Act only, and no other provision of the RTI Act can be invoked, to deny to the access to the information, by a public authority, except the information which have been further exempted from disclosur, as per Section 24 of the RTI Act; and section 22 of the Act expressly declares that the Provisions of this Act shall have effect notwithstanding anything contained in official secrets Act or any other Act. The said declaration assumes greatest significance, for, the disclosure or non disclosure of the information requested would now be tested, only, at the touchstone of the exceptions spelled out in section 8 and 9 of the Act.
The Preamble and the Statement of objects of the RTI Act, 2005, gives a vital clue that the said Act was enacted with the spirit of ensuring transparency in the administration of the nation; and therefore before embarking upon the literal interpretation of section 8(1)(j) of the said Act, it is necessary to look into the specific words employed in the preamble of the Act. The Preamble and the Statements of objects and Reasons runs as follows –
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:
Coming to the interpretation
SECTION 8: Exemption from disclosure of information: (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,(j) information which relates to personal information the disclosure of which has no 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 :
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
The literal interpretation of the mandate of sections 8(1)(j) and 8(2) –
To qualify for the exemption from disclosure, two ingredients should exist, and under two circumstances, the information requested may be denied –
(a) Where the Information requested is (a) a personal information; and (b) the Nature of info requested has apparently no relationship to any public activity or interest;
(b) Where the Info requested is (a) personal information; and (b) the disclosure of information would cause unwarranted invasion of privacy of the individual concerned.
However, information requested may be disclosed in the following seven circumstances –
a)Where the Information requested is although a personal information, but it has related to a public activity;
b)Where the Information requested is although a personal information, but it has relationship to a public interest;
c)Where the Information requested is although a personal information, but the disclosure of info may not cause unwarranted invasion to the privacy of the concerned individual;
d)Where the Info requested is although a personal information; and Nature of info requested has apparently no relationship to any public activity or public interest; but where the LARGER PUBLIC INTEREST justifies the disclosure of such information;
e)Where the Info requested is although a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the concerned individual, but where the LARGER PUBLIC INTEREST justifies the disclosure of such information;
f)Where the Info requested is although a personal information; and the nature of info requested has apparently no relationship to any public activity or interest; and the Info requested is a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the individual; and where there is apparently no LARGER PUBLIC INTEREST in the disclosure of the Info, YET, where the information requested, can be furnished to the Parliament or to a State Legislature, on their asking [Proviso to S.8(1)], the same can be furnished to the citizen;
g)Where the Info requested is although a personal information; and the nature of info requested has apparently no relationship to any public activity or interest; and the Info requested is a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the individual; and where there is apparently no LARGER PUBLIC INTEREST in the disclosure of the Info; YET, the Info may be disclosed where the disclosure of information in the public interest outweighs the harm claimed by the third party or by any other individual claiming prejudice by reason of such disclosure [s.8(2)];
An uncaring and delightful misreading of the Girish Ramchandra Deshpande judgment of the Apex court
After the passing of the judgment (03.10.2012) by Apex court in the case of Girish Ramchandra Deshpande, every PIO is denying the information requested, of the Service records, Assets and Liabilities / Income Tax Returns of a Public Servant / Ministers / MPs, whilst invoking the said ruling of the Apex Court [(2013) 1 SCC 212].
The PIOs are entertaining the belief that the Apex Court, in their Ruling in Girish Ramchandra Deshpande, have put complete embargo on the disclosure of the Income Tax Returns of public servants. This is completely misreading of the said ruling.
From the perusal of Para 1 of the said judgment, it would reveal that the Hon’ble Court have not posed any question of law to itself. Therefore, as such the Hon’ble Court had no intention to interpret the mandate of section 8(1)(j);
From the perusal of Para 10, it would reveal that proviso to section 8(1)(j) is not stated therein. Therefore, it can safely be argued that the said judgment was passed in ignorance of the said proviso.
In Para 12 of the said judgment, the Hon’ble Court have inter alia, stated that –
- §the info requested is a personal information;
- §the performance of an employee/officer is primarily a matter between the employee and the employer, which are governed by the service rules,
- §which has no relationship to any public activity or public interest;
- §the disclosure of which would cause unwarranted invasion of privacy of that individual.
- §The Court have expressly observed to say that, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
In the said ruling, the Apex Court have held that “Income Tax returns are a personal information”; and thereafter, the Apex Court refused to direct the disclosure of information, on the premise of the factual matrix of the said case, that is to say, the Hon’ble Apex court refused on the premise of (a) the absence of element of public activity and public interest having regard to the nature of information sought; (b) unwarranted breach of privacy of the individual concerned having regard to the nature of information sought; © the Petitioner therein has not succeeded in establishing that the information sought for, is for the larger public interest.
I say that it is of fundamental importance to understand that every request for information is a peculiar case in itself; and the expression “Public interest” is not capable of precise definition, and no hard and fast rules can be laid down as what constitutes Public interest. Its ascertainment would always depend on the nature of information requested and facts and circumstances of each case.
In the said case, the Apex Court have not laid down any law in respect of purport and ambit of section 8(1)(j) of the RTI Act, 2005, and therefore, the said ruling has no precedent value as such; and the said ruling is confined to the facts of the said case and therefore has no precedent value as such.
The law of Precedents
i)I now crave leave to state some of the law of precedents, which has immediate bearing on the instant case.
Article 141. Law declared by Supreme Court to be binding on all courts.— The law declared by the Supreme Court shall be binding on all courts within the territory of India.
a)Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent.
b)What is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.
c)It is not everything said by a judge while giving judgment, constitutes a precedent. The enunciation of the reason or principle on which a question before the court has been decided, is alone binding as a precedent.
d)A judgment should be understood in the light of the facts of that case, and no more should be read into it than what it actually says.
e)Every judgment to qualify to be a precedent should invariably answer an issue of law; and a decision is available as a precedent only if it decides a question of law.
f)The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided
g)It is well settled that a decision of the Apex Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of the Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141.
h)The expression “declared” in Article 141 of the Constitution is wider than the words “found or made”. To declare is to announce opinion. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law.
In its recent ruling the Apex Court (2012) 3 SCC 387 said –
Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.
28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.
28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.
What constitute (a) Public Interest (b) Privacy © disclosure of info on the ground of furnishing of info to the Parliament / State Legislature ?
The keen observations of the Apex Court in the case of ADR /PUCL case [(2002) 5 SCC 294, [Relevant Paras 1, 2, 10, 30, 31, 32, 33, 34, 36, 39, 40, 48]; and Para 7 of the Bombay High Court Ruling (Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009, delivered by Justice C.L. Pangarkar, dated 20.01.2009), supplement the argument, of the existence of the element of “Public Interest” and “Larger Public Interest”, in the disclosure of Info, including of Income Tax Returns of Public Servants / MPs / Ministers etc.
The keen observations of the Apex Court in the case of Rajagopal case [(1996) 6 SCC 632 [Relevant Paras 1, 9, 18, 26] and in the case of ADR /PUCL case [(2002) 5 SCC 294 [Relevant Para 41]; and Para 8 of the Bombay High Court Ruling stated hereinbefore, supplement the argument, of the absence of the element of “Privacy” in the disclosure of Information, including of Income Tax Returns of Public Servants / MPs / Ministers etc.
The Para 8 of the Ruling of the Bombay High Court, referred hereinbefore, dealt with the proviso to section 8(1)(j) which dealt with the proposition that the disclosure of information on the ground of furnishing of information to the Parliament / State Legislature.
The observations of the Apex Court in the ADR /PUCL case [(2002) 5 SCC 294 [Relevant Para 42, 43, 44, 48] fortifies the proposition that “No further purported harm could accrue to the Public Servant / MPs / Ministers etc.”, in the disclosure of Information, including of Income Tax Returns of Public Servants / MPs / Ministers etc.
All the relevant Paras referred hereinbefore of the concerned Apex court and Bombay High court rulings are reproduced at the end of this write up.
Now, I take some liberty to divert from the main issue and seeks to articulate an incidental issue, that is to say, how and in what manner the Application under RTI be attended with by the concerned PIO and the mandate of section 11.
Whenever any PIO is in receipt of an Application u/s 6 of the Act, seeking information, the said PIO is, at the outset, expected to consider if the information requested, is exempted as per the provisions of Sections 8 and/or 9 of the RTI Act. If the PIO comes to the conclusion that the information requested is not exempted u/s 8 and/or 9, the PIO may disclose the information.
However, where the PIO intends to disclose the information, but where the information requested, has been supplied by a third party and is treated as confidential by the said third party, the PIO is obliged to intimate to the concerned third party of his intention to disclose the information.
If the third party objects to the disclosure of the information, the PIO is to keep it in his mind his objections while taking a decision about disclosure of the information requested.
The PIO is not obliged to accept every objection which has been raised by the concerned third party, and PIO is obliged to keep in view such objections of the third party; and these objections have to be tested at the mandate of sections 8 and / or 9 of the RTI Act. In other words, every objection raised by the third party has to be tested at the touchstone of the provisions of sections 8 and/or 9 of the RTI Act.
The PIO may then decide to deny the information requested only if he is convinced about the objections of the third party justifying that the information sought is exempted as per the provisions of Section 8 and/or 9 of the RTI Act.
The RTI Act does not give veto power to the third party, but provides the third party with an opportunity to raise his legitimate objections; and in case the PIO decides to disclose the information despite the objections, the concerned third party may prefer an Appeal against the decision of the said PIO, as per the provisions of Section 11 (2) to 11 (4). These express provisions 11(2) to 11(4) makes it clear that the third party is not rendered remediless, in cases where PIO disagrees with the third party’s objection in disclosure of information.
The expression “Where PIO intends to disclose information..” is guiding force to deal with the Application. Further, the nature of objections, if any, of the third party have to be justified in terms of the exemptions under Sections 8 and/or 9.
Section 11(3) contemplates “decision” about the disclosure or non- disclosure of information requested; and the PIO is obliged to inform the concerned third party about his said decision. It may be noted that this sub-section (3) contemplates only “decision” to disclose or not, and not the actual disclosure. And therefore, there are adequate safeguards in the Act to protect the interests of the third parties, who may prefer an Appeal, if their legitimate objections are ignored by the concerned PIO.
The reading of section 7(1) of the RTI Act, 2005, clearly suggests that information requested can be denied only u/ss 8 and / or 9 of the Act.
I further say that while deciding any Application / Appeal received u/s 6, 19(1) or 19(3) of the Act, the main issue before the PIO / 1st Appellate Authority (FAA) and Commission is “Having regard to the nature of information requested, and the grounds advanced by the Applicant / Appellant, if any, whether information can be furnished, at the touchstone of sections 8 and/or 9”.
Therefore, hile dealing with RTI Applications involving the purported applicability of section 8(1)(j), while granting or refusing the disclosure of the information, the issue is always of “subjective satisfaction” of the concerned PIO / FAA and the Commission, and each of the concerned authority has every right to reach appropriate conclusion, provided it records reasons for its said “subjective satisfaction”.
While dealing with the cases of personal information or cases of third party information, the concerned PIO, FAA and the Commissions are obliged to take independent decision, while taking into consideration the larger public interest involved in the disclosure of the information and the nature of the objection raised by the third party.
The said authorities are obliged to deal with the grounds, if any, furnished by the concerned Applicant / Appellant, and shall record their “satisfaction”, in the form of reasons, for rejection or for allowing the furnishing of information.
The concerned authorities cannot merely reject the Application, based on the objection raised by the third party, or reject the Application / Appeal, by merely stating that no larger public interest is involved in the disclosure of information requested.
Every request for information is a peculiar case in itself; and the expression “Public interest” is not capable of precise definition, and no hard and fast rules can be laid down as what constitutes Public interest. Its ascertainment would always depend on the nature of information requested.
Whereas I have tried to articulate the mandate of section 8(1)(j) hereinbefore, every Application / Appeal may accordingly deserves to be decided while applying the mandate of law to the facts and circumstances bearing each of the concerned Application / Appeal.
The observations in ADR /PUCL case [(2002) 5 SCC 294]
Para 1: Short but important question involved in these matters is _ in a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates?
Para 2 Petitioner has also referred Para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows:-
"6.2 Like the Director CBI, the DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrats/Government functionaries at the local levels, politicians, media persons and strategically located individuals in the non State sector. Some of these Syndicates also have international linkages, including the foreign intelligence agencies. In this context the DIB have given the following examples _
(i) In certain States like Bihar, Haryana and UP, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the year get themselves elected to local bodies State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people;
(ii) The big smuggling Syndicates having international linkages have spread into and infected the various economic and financial activities, including havala transactions, circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre of the country. These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of Investigating and Prosecuting agencies extremely difficult; even the members of the Judicial system have not escaped the embrace of the Mafia;
(iii) Certain elements of the Mafia have shifted to narcotics, drugs and weapon smuggling and established narco-terrorism networks specially in the States of J and K, Punjab, Gujarat and Maharashtra. The cost of contesting elections has thrown the politician into the lap of these elements and led to a grave compromise by officials of the preventive/detective systems. The virus has spread to almost all the centres in the country, the coastal and the border States have been particularly affected;
(iv) The Bombay bomb blast case and the communal riots in Surat and Ahmedabad have demonstrated how the India underworld has been exploited by the Pak ISI and the latter's network in UAE to cause sabotage subversion and communal tension in various parts of the country. The investigations into the Bombay bomb blast cases have revealed expensive linkages of the underworld in the various governmental agencies, political circles, business sector and the film world".
Para 10: Mr. K.K. Venugopal, learned senior counsel appearing on behalf of Election Commission exhaustively referred to the counter affidavit filed on behalf of Election Commission. At this stage, we would refer to some part from the said affidavit. It is stated that issue of persons with criminal background' contesting election has been engaging the attention of the Election Commission of India for quite some time; even Parliament in the debates on 50 years of independence and the resolution passed in its special Session in August, 1997 had shown a great concern about the increasing criminalisation of politics; it is widely believed that there is criminal nexus between the political parties and anti-social elements which is leading to criminalisation of politics; the criminals themselves are now joining election fray and often even getting elected in the process. Some of them have even adorned ministerial berths and, thus, law breakers have become law makers.
Para 30: Now we would refer to various decisions of this Court dealing with citizens' right to know which is derived from the concept of 'freedom of speech and expression'. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MP or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process. The decision making process of a voter would include his right to know about public functionaries who are required to be elected by him.
Para 31: In State of Uttar Pradesh V/s. Raj Narain and others (1975) 4 SCC 428), the Constitution Bench considered a question _ whether privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what has been described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The Court observed that "the right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. The Court pertinently observed as under :
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. - They are entitled to know the particulars of every public transaction in all its bearing..."
Para 32: In Indian Express Newspapers (Bombay) Private Ltd, and Others etc. V/s. Union of India and others [(1985) 1 SCC 641], this Court dealt with the validity of customs duty on the newsprint in context of Art. 19(1)(a). The Court observed (in para 32) thus:
"The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic country cannot make responsible judgments... "
Para 33: The Court further referred (in para 35) the following observations made by this Court in Romesh Thappar V/s. State of Madras (1950 SCR 594) :
"...(The freedom) lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse... (But) "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits".
Again in paragraph 68, the Court observed :-
"....The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves." (Per Lord Simon of Glaisdale in Attorney -General V/s. Times Newspapers Ltd. (1973) 3 All ER 54). Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (1) it helps an individual to attain self -fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision -making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration...."
Para 34: From the afore-quoted paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a discharge by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes.
Para 36: Thereafter, the Court summarised the law on the freedom of speech and expression under Art. 19(1)(a) as restricted by Art. 19(2) thus:_
"The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self -fulfilment. It enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts... "
Para 37: The Court thereafter (in paragraph 82) held :-
"True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 1/2 per cent of the population has an access to the print media which is not subject to pre-censorship."
The Court also observed -"a successful democracy posits an 'aware' citizenry."
Para 39-40: In the case of Dinesh Trivedi, M.P. and Others V/s. Union of India and Others [(1997) 4 SCC 306], the Court dealt with a petition for disclosure of a report submitted by a Committee established by the Union of India on 9/07/1993 which was chaired by erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be popularly known as Vohra Committee.
In the said case, the Court dealt with citizen's rights to freedom of information and observed "in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare". The Court also observed "democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant".
Para 41: Mr. Ashwini Kumar, learned senior counsel appearing on behalf of the intervenor submitted that the aforesaid observations are with regard to citizen's right to know about the affairs of the Government, but this would not mean that citizens have a right to know the personal affairs of MPs or MLAs. In our view, this submission is totally misconceived. There is no question of knowing personal affairs of MPs or MLAs. The limited information is - whether the person who is contesting election is involved in any criminal case and if involved what is the result? Further there are widespread allegations of corruption against the person holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected. This information could be easily gathered only if prior to election, the assets of such person are disclosed. For this purpose, learned counsel Mr. Murlidhar referred to the practice followed in the United States and the form which is required to be filled in by a candidate for Senate which provides that such candidate is required to disclose all his assets and that of his spouse and dependants. The form is required to be re-filled every year. Penalties are also prescribed which include removable from ballot.
Para 42: Learned counsel Mrs. Kamini Jaiswal referred to All India Service (Conduct) Rules, 1968 and pointed out that a member of All India Service is required to disclose his/her assets including that of spouse and the dependant children. She referred to Rule 16 of the said Rules, which provides for declaration of movable, immovable and valuable property by a person who becomes Member of the Service. Relevant part of Rule 16 is as under:
"16. (1) Every person shall, where such person is a member of the Service at the commencement of these rules, before such date after such commencement as may be specifieded by the Government in this behalf, or, where such person becomes a member of the Service after commencement, on his first appointment to the Service submits a return of his assets and liabilities in such form as may be prescribed by the Government giving the full particulars regarding: -
(a) the immovable property owned by him, or inherited or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person.
(b) shares, debentures, postal Cumulative Time Deposits and cash including bank deposits inherited by him or similarly owned, acquired or held by him;
© other movable property inherited by him or similarly owned, acquired or held by him; and
(d) debts and other liabilities incurred by him directly or indirectly"
Para 43: Such officer is also required to submit an annual return giving full particulars regarding the immovable and movable property inherited by him or owned or acquired or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person.
Para 44: It is also submitted that even the Gazetted Officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V. Narasimha Rao. V/s. State (CBI/SPE) [(1998) 4 SCC 626], the Court inter alia considered whether Member of Parliament is a public servant? The Court [in para 162] held thus:
"A public servant is "any person who holds an office by virtue of which he is authorised or required to perform and public duty". Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest". In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest lawmaking bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the State shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest... "
Para 48: The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Art. 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein, information on the following aspects in relation to his/her candidature:-
(1) Whether the candidate is convicted / acquitted / discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine?
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate.
The observations in Rajagopal case [(1996) 6 SCC 632]
Para 1: This petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also raises the question as to the parameters of the right of the press to criticise and comment on the acts and conduct of public officials.
Para 9: A more elaborate appraisal of this right took place in a later decision in Gobind V/s. State of M.P wherein Mathew, J. speaking for himself, Krishna lyer and Goswami, JJ. traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme court in two of a its well-known decisions in Griswold V/s. Connecticut and Roe V/s. Wade. After referring to Kharak Singh and the said American decisions, the learned Judge stated the law in the following words:
Any right to privacy must encompass and protect the persona] intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.
Para 18: The principle of the said decision (New York Times versus Sullivan) has been held applicable to "public figures" as well. This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held as a class the public figures have, as the public officials, have, access to mass media communication both to influence the policy and to counter criticism of their views and activities, On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events.
Para 26: We may now summarise the broad principles flowing from the above discussion:
(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/ media.
The observations made by Bombay High Court in the case of Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009, delivered by Justice C.L. Pangarkar, dated 20.01.2009
Para 7 The first thing that needs to be taken into consideration is that the petitioner is a public servant. When one becomes a public servant, he in strict sense becomes a public servant and as such, every member of public, gets a right to know about his working, his honesty, integrity and devotion to duty. In fact, nothing remains personal while as far as the discharging of duty. A public servant continues to be a public servant for all 24 hours. Therefore, any conduct/ misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public, demands an information as to how many leaves were availed by the public servant, such information though personal, has to be supplied and there is no question of privacy at all. Such supply of information, at the most, may disclose how sincere or insincere the public servant is in discharge of his duty and the public has a right to know.
Para 8: The next question is whether the applicant should be supplied the copies of the application at all. It was contended that the copies of the application should not be supplied for, they may contain the nature of the ailment and the applicant has no right to know about the ailment of the petitioner or his family. To my mind, what cannot be supplied, is a medical record maintained by the family physician or a private hospital. To that extent, it is his right of privacy, it certainly, cannot be invaded. The application for leave is not a medical record at all. It, at the most, may contain ground on which leave was sought. It was contended that under Sec.8 (1) (j), the information cannot be supplied. In this regard, it would be necessary to read proviso to that section. If the proviso is read, it is obvious that every citizen is entitled to have that information which the Parliament can have. It is not shown to me as to why the information as is sought, cannot be supplied to the Parliament. In fact, the Parliament has a right to know the ground for which a public servant has taken leave since his salary is paid from the public exchequer. In the circumstances, I do not find that the Information Commission committed any error in directing such information to be supplied. There is no substance in the writ petition. It is dismissed.