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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Girish Ramchandra Deshpande Vs. Central Information Commission & Ors. (2013) 1 SCC 212

ashakantasharma

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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005

By Shailesh Gandhi,
Former Central Information Commissioner

Judgment : Girish Ramchandra Deshpande Vs. Central Information Commission & Ors. (2013) 1 SCC 212

The issue before the Court: Whether the information pertaining to a
Public Servant in respect of his service career and also the details of his
assets and liabilities, movable and immovable properties, can be denied
on the ground that the information sought for was qualified to be
personal information as defined in clause (j) of Section 8(1) of the RTI
Act.

The observations of the Court:

12. The petitioner herein sought for copies of all memos, show cause
notices and censure/punishment awarded to the third respondent from
his employer and also details viz. movable and immovable properties
and also the details of his investments, lending and borrowing from
Banks and other financial institutions. Further, he has also sought for
the details of gifts stated to have accepted by the third respondent, his
family members and friends and relatives at the marriage of his son. The
information mostly sought for finds a place in the income tax returns of
the third respondent. The question that has come up for consideration is
whether the above-mentioned information sought for qualifies to be
"personal information" as defined in clause (j) of Section 8(1) of the RTI
Act.

13. We are in agreement with the CIC and the courts below that the
details called for by the petitioner i.e. copies of all memos issued to the
third respondent, show cause notices and orders of censure/punishment
etc. are qualified to be personal information as defined in clause (j) of
Section 8(1) of the RTI Act. The performance of an employee/officer in
an organization is primarily a matter between the employee and the
employer and normally those aspects are governed by the service rules
which fall under the expression "personal information", the disclosure
of which has no relationship to any public activity or public interest. On
the other hand, the disclosure of which would cause unwarranted
invasion of privacy of that individual. Of course, 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.

14. The details disclosed by a person in his income tax returns are
"personal information" which stand exempted from disclosure under
clause (j) of Section 8(1) of the RTI Act, unless involves a larger public
interest and the Central Public Information Officer or the State Public
Information Officer or the Appellate Authority is satisfied that the larger
public interest justifies the disclosure of such information.”

The Court held that: The Apex Court held that copies of all memos,
show cause notices and orders of censure/punishment, assets, income
tax returns, details of gifts received etc. by a public servant are personal
information as defined in clause (j) of Section 8(1) of the RTI Act and
hence exempted and cannot be furnished under RTI Act.

Our analysis of the judgment: The judgement has expanded the scope
of Section 8 (1) (j) far beyond its wording, without any discussion or
interpretation of the law whatsoever. The only justification given for
denial is that the Court agrees with the decision of the CIC. The Court
mentions,” The performance of an employee/officer in an organization
is primarily a matter between the employee and the employer”,
forgetting that the employer is ‘we the people’ who gave ourselves the
constitution.

Section 8 (1) (j) exempts “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 Supreme Court has missed realising that the exemption applies to
personal information only if it has no relationship to any public activity
or is an unwarranted invasion on the privacy of an individual. The court
has not even quoted the important proviso. Effectively the court has read

Section 8(1) (j) as:
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.”
Forty seven words out of the eighty seven words have not been
considered and the important proviso has not even been mentioned in
the judgment. The clear intent of Section 8 (1) (j) is to ensure that if
some record is held by the public authority which has no relationship to
any public activity it is exempted from disclosure. Even if it is a public
record and disclosure would be an unwarranted invasion of the privacy
of an individual, this should not be given. The proviso provides an acid
test and before refusing information under Section 8 (1) (j) a subjective
assessment has to be made whether it would have been denied to
Parliament or State Legislature.

The aforesaid judgment clearly appears to be contrary to the following
two judgements of the Supreme Court:

1. R Rajagopal and Anr. v state of Tamil Nadu (1994), SC
The ratio of this judgement was:
“28. 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 Article 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 interest 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 offense should not
further be subjected to the indignity of her name and the incident being
published in press/media.

(3) There is yet another exception to the Rule in (1) above - indeed, this
is not an exception but an independent rule. In the case of public
officials, it is obvious, right to privacy, or for that matter, the remedy of
action for damages is simply not available with respect to their acts and
conduct relevant to the discharge of their official duties.”

Public record as defined in the Public Records Act is any record held by
any Government office. This judgement at point 2 clearly states that for
information in public records, the right to privacy can be claimed only in
rare cases. This is similar to the proposition in Section 8 (1) (j) which
does not exempt personal information which has relationship to public
activity or interest. It also talks of certain kinds of personal information
not being disclosed which has been covered in the Act by exempting
disclosure of personal information which would be an unwarranted
invasion on the privacy of an individual. At point 3 it categorically
emphasizes that for public officials the right to privacy cannot be
claimed with respect to their acts and conduct relevant to the discharge
of their official duties.

Privacy is to do with matters within a home, a person’s body, sexual
preferences etc as mentioned in the apex court’s earlier decisions in
Kharak Singh and R.Rajagopal cases. This is in line with Article 19 (2)
which mentions placing restrictions on Article 19 (1) (a) in the interest
of ‘decency or morality’. If however it is felt that the information is not
the result of any public activity, or disclosing it would be an
unwarranted invasion on the privacy of an individual, it must be
subjected to the acid test of the proviso: Provided that the information,
which cannot be denied to the Parliament or a State Legislature shall
not be denied to any person.

The proviso is meant as a test which must be applied before denying
information claiming exemption under Section 8 (1) (j). Public servants
have been used to answering questions raised in Parliament and the
Legislature. It is difficult for them to develop the attitude of answering
demands for information from citizens. Hence before denying personal
information, the law has given an acid test: Would they would give this
information to the elected representatives. If they come to the subjective
assessment, that they would provide the information to MPs and MLAs
they will have to provide it to citizens, since the MPs and MLAs derive
legitimacy from the citizens.

Another perspective is that personal information is to be denied to
citizens based on the presumption that disclosure would cause harm to
some interest of an individual. If however the information can be given
to legislature it means the likely harm is not much of a threat since what
is given to legislature will be in public domain. It is worth remembering
that the first draft of the bill which had been presented to the parliament
in December 2004 had the provision as Section 8 (2) and stated: (2)
Information which cannot be denied to Parliament or Legislature of a
State, as the case may be, shall not be denied to any person. In the final
draft passed by parliament in May 2005, this section was put as a
proviso only for section 8 (1) (j). Thus it was a conscious choice of
parliament to have this as a proviso only for Section 8 (1) (j). It is
necessary that when information is denied based on the provision of
Section 8 (1) (j), the person denying the information must give his
subjective assessment whether it would be denied to Parliament or State
legislature if sought.

The Girish Deshpande judgement is clearly contrary to the earlier
judgement, since it accepts the claim of privacy for Public servants for
matters relating to public activity which are on Public records.

2. The Supreme Court judgement in the ADR/PUCL case [(2002) 5
SCC 294]
had clearly laid down that citizens have a right to know about
the assets of those who want to be Public servants (stand for elections).
It should be obvious that if citizens have a right to know about the assets
of those who want to become Public servants, their right to get
information about those who are Public servants cannot be lesser. This
would be tantamount to arguing that a prospective groom must declare
certain matters to his wife-to-be, but after marriage the same category of
information need not be disclosed!

When quoting Section 8 (1) (j) the Court has forgotten to mention the
important proviso to this Section which stipulates, ‘Provided that the
information, which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.’ The Supreme Court did
not even mention this in its judgement when quoting section 8 (1) (j)
and has not considered it. If this proviso was quoted the Court would
have had to record that in its opinion the said information would be
denied to Parliament. The Court forgot its ruling in CIVIL APPEAL
NOs.10787-10788 OF 2011 (Arising out of S.L.P(C) (judgement 2
above) at para 36: “ It is one of the well known canons of interpretation
that no statute should be interpreted in such a manner as to render a part
of it redundant or surplusage.”

Bihar Government, Gujarat government, Municipal Corporation of
Mumbai and many others had displayed the assets of all the officials on
their website. The decision of the Supreme Court will reverse the
transparency march and constrict Right to Information. It appears that
the Court has not taken into account the two earlier judgements
mentioned above, and the important proviso to Section 8 (1) (j) and
hence the decision in Girish Deshpande’s case may be per incuriam.
Besides, there does not appear to any ‘ratio decidendi’ in this
judgement, that is to say, the judgment does not spells out any reason for
the conclusion it reached. Hence this judgement cannot be a precedent.
Unfortunately this judgment has resulted in most information about
public officials being denied including that regarding their work.
Consequently arbitrary favours by Public servants and their corruption
has been obscured from the eyes of the public. Maharashtra government
has issued a circular based on this judgement in which it instructs that
all personal information of public servants must be refused because of
the Girish Deshpande judgement. It is worth recording that the main
ground for the judgement is agreement with the CIC decision. A perusal
of the CIC decision also does not display any proper reasoning but is
based on an earlier decision by a bench of the Commission. The bench
decision which was relied on by CIC, did not even relate to information
about a public servant! Besides the said CIC decision in the matter of
Milap Choraria vs. CBDT did not analyse Section 8 (1) (j) fully, and
grossly misinterpreted Section 11. Many High Court judgments and one
by the Supreme Court have declared that ‘personal information’ cannot
be given, unless a larger public interest is shown. It has become very
popular with PIOs, First appellate authorities and Information
Commissioner’s to deny most information relating to public servants. In
the opinion of the Authors this judgment is not in consonance with the
law and earlier Supreme Court judgments. It has created a exemption
not in the law. This results in a constriction of the citizen’s fundamental
right and the law’s objective of curbing corruption and wrong doings is
defeated.

It is worth remembering two judgments of the Supreme Court. A five
judge bench has ruled in P. Ramachandra Rao v. State of Karnataka case
no. appeal (crl.) 535.: “Courts can declare the law, they can interpret the
law, they can remove obvious lacunae and fill the gaps but they cannot
entrench upon in the field of legislation properly meant for the
legislature”

In Rajiv Singh Dalal (Dr.) Vs. Chaudhari Devilal University, Sirsa and
another (2008), the Supreme Court, after referring to its earlier
decisions, has observed as follows. "The decision of a Court is a
precedent, if it lays down some principle of law supported by reasons.
Mere casual observations or directions without laying down any
principle of law and without giving reasons does not amount to a
precedent."

The Girish Ramchandra Deshpande appears to have no ratio, nor does it
lay down any principle with reasons. It has not considered the R.
Rajagopal and ADR/PUCL judgments. Hence it should not considered
as a precedent. But it has become the law, since everyone in power finds
it convenient. This violates the RTI Act and is constricting the cit
 

satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf



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