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Asha Kanta Sharma

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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Bihar Public Service Commission Vs. Saiyad Hussain Abbas Rizvi JT 2012 (12) SC 552

ashakantasharma

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

By Shailesh Gandhi,
Former Central Information Commissioner

Judgment : Bihar Public Service Commission Vs. Saiyad Hussain Abbas Rizvi JT 2012 (12) SC 552


The main issue before the Court: The applicant had asked for names
and addresses of interviewers in an interview board selecting candidates
for Bihar government jobs.

The Court held that: the Commission is not bound to disclose the
information asked for by the applicant under Query No.1 of the
application.

Our analysis of the judgment: The applicant had in 2008 sought the
names and addresses of persons who had conducted interviews for Bihar
Public Service Commission (BPSC) in 2002. This was denied claiming
exemption on grounds of Section 8 (1) (j). The State Commission had
upheld the denial and the matter was finally contested in the Division
Bench of the High Court. The Division Bench upheld the contention of
the applicant and ordered the names of the interviewers to be provided.
Commonwealth Human Rights Initiative (CHRI) has done a very
detailed and well-argued analysis4 of this matter from which some parts
are being reproduced below:

“2.1 The Special Leave Petition (SLP) was admitted in March, 2012 and
a two‐judge bench of the Supreme Court (the Court) comprising of
Justice A K Patnaik and Justice Swatanter Kumar decided the matter
within nine months. The Court allowed the appeal and set aside the
judgement of the Division Bench. Writing the judgement for the Court,
Justice Swatanter Kumar held that BPSC was not bound to disclose any
information beyond what was provided already.

A summary of the Court’s reasoning is provided below:

(i) BPSC had relied heavily on Section 8 (1) (j) of the RTI Act while
rejecting the request for names and addresses and also during the
proceedings before the Bihar State Information Commission and the
Patna High Court. 1Though BPSC claimed the protection of Section 8
(1) (j) in its petition, it did not press this point during the hearings before
the Court. Therefore the Court did not go into the correctness of the
Division Bench’s judgement about this line of reasoning.

(ii) BPSC changed track and claimed that the names and addresses of
the subject experts could not be disclosed as it was entitled to the
protection of both Section 8 (1) (e) and Section 8 (1) (g) of the RTI Act.
The Court rejected the claim to Section 8 (1) (e) in light of the principles
governing a fiduciary relationship recognised by the Court in an earlier
RTI‐related matter. The Court ruled that there was no fiduciary
relationship between BPSC and the interviewers (subject experts) or the
candidates interviewed.

(iii) The Court upheld BPSC’s claim of Section 8 (1) (g) of the RTI Act
by linking it to Article 21 of the Constitution which guarantees
protection for life and liberty of a person. It reasoned that the members
of the Board are likely to be exposed to danger to their lives or physical
safety if their names and addresses are disclosed. “The disclosure of
names and addresses of the members of the interview Board would ex
facie endanger their lives or physical safety. The possibility of a failed
candidate attempting to take revenge from such persons cannot be ruled
out,” the Court held.

(iv) The Court gave two more reasons for rejecting the request for
names and addresses.

First, it held that the disclosure of names and
addresses of examiners would hamper effective performance and the
discharge of their duties.

Second, it held that disclosure would serve no
fruitful much less any public purpose. The Division Bench of the High
Court had earlier rejected the contention of the PIO about applicability
of Section 8 (1) (g) by stating:

“13. … In the present case, the names of the interviewers cannot be
denied for various reasons. The interviewers are visible to the
candidates while the interview is being held. They have public egress
and ingress to the venue of the interview…

14. To make a comparison with the court/judicial proceedings, vis‐à‐vis
an interview; Court proceeding is open and the names of the Judges
who are hearing the matter are ‐known to all the parties. When court
proceedings can be held in broad daylight and the names of the judges
are known to all the parties, why not the names of interviewers be
disclosed to the applicant.”

As nothing in the BPSC judgement indicates that the Court weighed and
measured this line of reasoning of the Division Bench, before dismissing
it, in our humble opinion, it is difficult to accept the rationale for
rejection.

(iii) Third, the Division Bench clearly pointed out that denying
information about interviewers could defeat the very purpose of the Act
in the following manner:

“13. …It is a possible situation that the applicant may have reasons for
suspicion that a particular interviewer was on the interview board and
his close relation was appearing. Such determination cannot be made
unless the names of the interviewer and the candidate who appeared are
disclosed. If he denies this information, it would be defeating the aims
and objects, the preamble, and the legislative intent of the Act. We
cannot countenance such an obstruction to such a laudable Act which is
intended to bring about transparency in governance, and root out
corruption, in this country. The Judgment of the Supreme Court in the
case of A.K. Kraipak and others vs.Union of India and others (A.I.R.
1970 S.C. 150) is an appropriate example to show that one of the
members of the Board was himself a candidate for promotion from the
State cadre to the Central cadre of Indian Forest Service. If we prohibit
the information which the applicant is seeking to obtain, the misdeed as
had taken place in A.K. Kraipak vs. Union of India (supra), may not be
set at naught.”

The Division Bench was clearly referring to potential conflicts of
interests that may be identified if the names of the interviewers were
disclosed. If not, they would remain hidden under a cloak of secrecy. It
is respectfully submitted that instead of weighing and measuring this
line of reasoning which is based on a very real case adjudicated by the
Court earlier (amounting to material facts justifying the disclosure of
names), the Court has rejected it by holding that preventing bias in the
selection process cannot be a ground for denying BPSC the protection of
Section 8 (1) (g). In our humble opinion the Court has not adequately
appreciated the reasoning of the Division Bench which by ordering
disclosure sought to uphold the very public interests mentioned in the
Preamble of the RTI Act, viz., ‘bringing about transparency in
governance’ and ‘containing corruption’.

(iv) Fourth, nowhere in its judgement does the Court recognise that the
Division Bench had refused to order disclosure of the addresses of the
interviewers.”

It sounds highly improbable that a candidate, who was not selected in an
interview in 2002, would seek the names of the interviewers in 2008 and
pursue the matter in the Supreme Court with the intention of physically
harming the interviewers. Imagination is being stretched too far if it is
assumed that the unsuccessful candidate would harm the interviewers
after 6 years. The Division Bench of the High Court had come to a very
reasonable conclusion that most probably the attempt was to expose
nepotism in the selection process. The Supreme Court ruling has led to a
situation where the denial of information under Section 8 (1) (g) has
been done by thinking of a remote highly unlikely probability to deny
information. A PIO has to merely imagine the probability of some likely
harm to deny information. A mere apprehension that some interest may
be affected has been dubbed to be adequate to deny information. This
decision makes it difficult for citizens to expose corruption and
favouritism. Besides it opens the possibility to imagine new ways to
deny information by conjuring even a highly improbable harm.
Many High Court decisions including the Bhagat Singh case quoted
earlier stated that the harm to a protected interest must be a reasonable
possibility, not a distant probability. This approach of the apex court of
thinking of a remote possibility to apply the exemption is becoming a
haven for denying information to the citizens.
 

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



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