Critical Analysis of Supreme Court Judgements on the RTI Act, 2005
By Shailesh Gandhi,
Former Central Information Commissioner
Judgment : R.K. Jain Vs. Union of India JT 2013 (10) SC 430
The issue before the Court: The information requested was inspection
of adverse confidential remarks against ‘integrity’ of a member of
Tribunal and follow up actions taken on issue of integrity. Exemption
was claimed on the basis of Section 8 (1) (j).
The Court held that: Inter alia relying upon the ruling made in Girish
Ramchandra Deshpande case, the information is exempted from
disclosure under Section 8 (1) (j). read with section 11 of the RTI Act.
Para 13”…. Under Section 11(1), if the information relates to or has
been supplied by a third party and has been treated as confidential by
the third party, and if the Central Public Information Officer or a State
Public Information Officer intends to disclose any such information or
record on a request made under the Act, in such case after written
notice to the third party of the request, the Officer may disclose the
information, if the third party agrees to such request or if the public
interest in disclosure outweighs in importance any possible harm or
injury to the interests of such third party.”
Our analysis of the judgment: Section 11 (1) is quoted hereunder:
SECTION 11: Third-party information: (1) “Where a Central Public
Information Officer or a State Public Information Officer, as the case
may be, intends to disclose any information or record, or part thereof on
a request made under this Act, which relates to or has been supplied by a
third party and has been treated as confidential by that third party, the
Central Public Information Officer or State Public Information Officer,
as the case may be, shall, within five days from the receipt of the
request, give a written notice to such third party of the request and of the
fact that the Central Public Information Officer or State Public
Information Officer, as the case may be, intends to disclose the
information or record, or part thereof, and invite the third party to make
a submission in writing or orally, regarding whether the information
should be disclosed, and such submission of the third party shall be kept
in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected
by law, disclosure may be allowed if the public interest in disclosure
outweighs in importance any possible harm or injury to the interests of
such third party.” (emphasis supplied by us)
The Supreme Court appears to have given an interpretation to Section
11 which does not appear to be justified by the words of the Act.
Section 11 is not an exemption but only a procedural provision to
safeguard the interests of the third party. The Court’s statement above
implies that if third party objects to the disclosure of information, it can
only be given if there is a larger public interest in disclosure.
It may clearly be understood that denial of information in RTI Act can
only be done under Section 8 or 9 as clearly mentioned in Section 7 (1).
In Section 8 (1) the need to show a larger public interest arises only
when an exemption under Section 8 (1) applies. The Act states that
when a PIO ‘intends to disclose’ information regarding third party
which third party has treated as confidential, he shall intimate the third
party that he intends to disclose the information. The PIO can only
decide to disclose the information if he comes to the conclusion that it is
The law states that ‘submission of the third party shall be kept in view
while taking a decision about disclosure of information’. The PIO can
only deny information as per the provisions of the exemptions of
Section 8 (1) or 9. The RTI Act does not give veto power to the third
party, but provides it with an opportunity to raise his legitimate
objections, and if the PIO is convinced that the information is exempt,
he may change his earlier decision to disclose by denying the
information as per the provision of Section 8 (1) or Section 9.
In case the PIO does not agree that the information is exempt, he should
decide to disclose the information and reject the third party’s objection.
In such an event the concerned third party may prefer an Appeal against
the decision of the PIO, as per the provisions of Section 11 (2) to 11 (4).
These express provisions 11(2) to 11(4) make 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. Section 7 (1) of the RTI
Act clearly states that denial of information can only be based on
Section 8 or 9. Section 3 states that ‘Subject to the provisions of this
Act, all citizens shall have the Right to Information.’ Thus the denial of
any information can only be on the basis of the RTI Act where only
Section 8 and 9 detail the information which can be denied. The Court
has raised the procedure of Section 11 to that of an exemption of Section
8 (1). This judgement is an erroneous reading of Section 11.
Information was denied, partly depending on Girish Deshpande
judgement where there was no ratio decidendi, and a flawed
interpretation of Section 11. It also does not address the earlier R.