Supreme Court pronouncements pronounce ments on RTI Act Act Shailesh Gandhi, former Central Information Commissioner Transparency advocates and RTI users have always given credit to the Supreme Court of India for its outstanding role in recognising the Right to Information as a fundamental right of Citizens. e !elieve !elieve that that the first first landm landmar" ar" pronou pronouncem ncement ent in this this respect respect was made made !y #ustice #ustice $athew in State of %ttar &radesh v. Ra' (arain )*+- / SCC /01 wherein he stated, 2 In 2 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. Their 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 security3 security 3. 4ffectively he signalled that the only !ar on information should !e one which would impact pu!lic security. Repeated pronouncements were made in S& Gupta, Ra'agopal, A5R and other cases reiterating this ideology and principle recognising the right to information as a fundamental right flowing from Article *+ )* )a of the constitution. The RTI Act has codified this right and also listed the e6emptions which are in line with the reasona!le restrictions restrictions permissi!le permissi!le !y Article Article *+ )07 2reasonable reasonable restrictions restrictions on the exercise exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, India, the securi security ty of the State, State, friend friendly ly relati relations ons with with foreig foreign n States States,, public public order, order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. &arliament recognised and codified this fundamental right of citizens in 088- in which it clearly laid out that there would !e ten e6emptions instead of one as pronounced !y #ustice $athew. #ustice Ravindra 9hat of 5elhi :igh Court captured the spirit of the RTI Act in his 'udgement in the Bhagat the Bhagat Singh vs. CIC W W !c" no. #$$%&'( #$$%&'(() () in which he stated7 2$#. *ccess to information, under Section # of the *ct, is the rule and e+emptions under Section Section , the e+cepti e+ception. on. Section Section being being a restri restricti ction on on this this fundam fundament ental al right, right, must must therefore be strictly construed. It should not be interpreted in manner as to shadow the very right itself. -nder Section , e+emption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere e+istence of an investigation process cannot be a ground for refusal of the information the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some
material. material. Sans this consideration, consideration, Section !$"!h" and other such provisions provisions would become the haven for dodging demands for information. $%. * rights based enactment is akin to a welfare measure, like the *ct, should receive a liberal interpretation. The conte+tual background and history of the *ct is such that the e+emptions, outlined in Section , relieving the authorities from the obligation to provide information, constitute restrictions on the e+ercise of the rights provided by it. Therefore, such e+emption provisions have to be construed in their terms there is some authority supporting this view !See /athi 0evi v. 1adha 0evi 2upta '((3 !'" SCC '($ B. 1. 4apoor v. State of Tamil /adu '(($ !)" SCC '#$ and 5. Tulasamma v. Sesha 1eddy $6)) !#" SCC 66". *dopting a different approach would result in narrowing the rights and approving a 7udicially mandated class of restriction on the rights under the *ct, which is unwarranted.8 unwarranted.8 Citizens have had great hopes that the 'udiciary would !e the sentinel in defending this fundamental right and help to hold the government authorities to the strictest test, which would help empower individual citizens to hold their governments accounta!le and reduce ar!itrariness and corruption. RTI has spread very well and empowered citizens there!y deepening Indian democracy. Individual citizens have !ecome the vigilance monitors of government and pu!lic servants !ringing greater transparency and accounta!ility. They have uncovered many scams and e6posed corruption. This is slowly moving the nation from !eing an elective democracy to a meaningful participatory democracy where active citizenship can !e practised. In this !ac"drop, I decided to analyse the 'udgements delivered !y the Supreme Court on the RTI law to see the role played !y the ape6 court in this 'ourney. The author has ta"en the 'udgements from the ;ashada ;ashada we!site we!site which lists si6teen cases at7 http7<
com?content@view>article@id>001@Itemid>* ption>com?content@view>article@id>001@Itemid>*/ /
08* 5ecem!er I am giving my findings !elow7
EArising out of SF& EC EC (o.-0<088 (o.-0<088+ + C9S4 Hs. JUDGMENT 1: (B./-/ BD 08** EArising Aditya 9andopadhyay #udges7 RH Raveendran @ A &atnai"J + August August 08**. )08** )08** 1 SCC /+.
The main issue before the Court: hether an e6amineeKs )Students right to information unde underr the the RTI RTI Act incl includ udes es a righ rightt to insp inspect ect his his eval evaluat uated ed answ answer er !oo" !oo"ss in a pu!l pu!lic ic e6amination or ta"ing certified copies thereof= The e6amining !ody,LC9S4,L had claimed that it held the information in a fiduciary relationship and hence this was e6empt under Section 1 )* )e of the RTI Act. Act. The observations of the Court: &ara *17 2Section 2Section '' of 1TI *ct provides that the provisions of the said *ct will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the 1TI *ct will prevail over the provisions of the bye9laws&rules of the e+amining bodies in regard to e+aminations. *s a result, unless the e+amining body is able to demonstrate that the answer9books fall under the
e+empted category of information described in clause !e" of section !$" of 1TI *ct, the e+amining body will be bound to provide access to an e+aminee to inspect and take copies of his evaluated answer9books, even if such inspection or taking copies is barred under the rules&bye9laws of the e+amining body governing the e+aminations.8 &ara 0. :It cannot therefore be said that the e+amining body is in a fiduciary relationship either with reference to the e+aminee who participates in the e+amination e+ amination and whose answer9 books are evaluated by the e+amining body.8 &ara 0; 0; :The e+amining bodies contend that even if fiduciary relationship does not e+ist with reference to the e+aminee, it e+ists with reference to the e+aminer who evaluates the answer9books. ens. /or should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where )3? of the the staff staff of publ public ic auth author orit ities ies spen spends ds )3? )3? of thei theirr time time in coll collect ectin ing g and and furn furnis ishi hing ng information to applicants instead of discharging their regular duties. : The Court held that: The Court ruled that corrected answer sheets were information which would have to !e provided to students who see" them under RTI. RTI. My analysis of the judgment: The Court ordered the information to !e provided. It held that it was not e6empt since the e6amining !ody did not hold any information in a fiduciary relationship with the e6aminers or e6aminees. %nfortunately, despite the Supreme CourtMs o!servation at para *1 that the provisions of the 1TI *ct will prevail over the provisions of the bye9laws&rules, &u!lic Information Bfficers )&IBs of most Courts refuse to give information in RTI to citizens regarding various matters saying citizens should approach them under Court rules.
The o!servations made !y Ape6 Court in &ara here ina!ove are wholly uncalled for, and unsu!stantiated. There was no cause for this. It does not !efit the Supreme Court to ma"e such disparaging remar"s in respect of a fundamental right of citizens. There is not a shred of evidence that RTI is @obstructing the national development and integration, or des troying the peace, tran=uillity and harmony amongst amongst its citi>ens.M citi>ens .M To To la!el citizens e6ercising their fundamental right as oppressors and intimidators is unaccepta!le. I concede the statement is rhetorical, !ut such o!servations from the ape6 court are gleefully pic"ed up !y pu!lic officials and Nuoted to cur! the citizenMs fundamental right. RTI has !een recognised !y the Supreme Court as !eing integral to Article *+ )* )a which states that all citizens shall have the right to freedom of speech and e6pression su!'ect only to the restrictions laid out in Article *+ )0 of the constitution. Section 1 )* effectively covers these. If it is argu argued ed that that only only info inform rmati ation on that that is prov proved ed to !e relat related ed to trans transpa pare rency ncy and and accounta!ility and eradication of corruption should !e sought, it can !e argued that the
freed freedom om of e6pr e6press essio ion n to crit critici icise se can can also also !e used used after after it is su!' su!'ec ecte ted d to this this test. test. %nfortunately many &IBs and Information Commissioners are now parroting these lines. As for the charge of RTI not ta"ing up -O of time, I did the following calculation7 9y all accounts accounts the total num!er num!er of RTI applications applications in India is less than *8 million annually. annually. The total num!er of all government employees is over 08 million. Assuming a hour wor"ing day for all employees for 0-8 wor"ing days it would !e seen that there are 8888 million wor"ing hours. 4ven if an average of hours is spent per RTI application *8 million applications would reNuire 8 million hours, which is 8.*O of the total wor"ing hours. This means it would reNuire .0O staff wor"ing for .0O of their time in furnishing information to citizens. This too could !e reduced drastically if computerised wor"ing and automatic updating of information was done as specified in the Act. If Secti Section on / was was prop properl erly y impl implem ement ented ed as envi envisag saged ed in the the law, law, the the num! num!er er of RTI applications would !e less than -8O of the current level. The Supreme Court has not comm commen ented ted on the the lac" lac" of Sect Sectio ion n / comp complia lianc ncee !y all all pu!l pu!lic ic auth author oriti ities es !ut !ut find findss it worthwhile to pass unwarranted and unsu!stantiated strictures against citizens using their fundamental right. An e6tensive study done !y RAAG 0 led !y the scholarly and respected She"har Singh, shows that P around -/O of the RTI applications sought information which should have !een • displayed suo moto !y the pu!lic authorities under their o!ligations under Section /J A!out 08O of the RTI applicants were as"ing f or information which should have !een • provided to them without their ever having to file an application or even without using the RTI Act. These applicants were see"ing ac"nowledgement or response to earlier, often long pending, missives, or see"ing feed!ac" a!out, or an update on an ongoing interaction with the pu!lic authority. The Central Central Secreta Secretaria riatt $anual $anual of Bffice Bffice &roced &rocedure ures, s, )Thirte )Thirteent enth h 4ditio 4dition, n, $inistr $inistry y of &ersonnel, &ersonnel, &u!lic &u!lic Grievances Grievances and &ensions, 5epartment of Administrat Administrative ive Reforms Reforms and &u!lic Grievances. Septem!er, 08*8 mandates that proper replies to all communications from citizens should !e sent within 8 days . Thus only 0O of the applications as"ed for information information that was not reNuired reNuired to !e disclosed disclosed proactively, proactively, either pu!licly pu!licly or privately privately to the applicants. It would have !een appropriate if the Supreme Court had directed pu!lic authorities to do their duty as per the RTI Act instead of castigating citizens using their fundamental right as if they were interlopers or terrorists. JUDGMENT : CIHIF A&&4A A&&4AF F (Bs.*81L*8 (Bs.*81L*811 11 BD 08** 08** )Arising )Arising out of S.F.&)C S.F.&)C (o.01L0+<08*8 (o.01L0+<08*8 #udges7 Asho" umar Ganguly @ Gyan Sudha $israJ *0 5ecem!er 08**J Chief Information Commissioner vs. State of $ anipurJ AIR 08*0 SC 1/
The main issue before before the Court: Court: hether the Information Commissioner can direct the disclosure of information when a complaint is made u
The observations of the Court: !ara "#: $ This Court accepts the argument of the appellant that any other construction would render the provision of Section $6!" of the *ct totally
redundant. 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.8 !ara "%: $ We are of the view that Sections $ and $6 of the *ct serve two different purposes and lay down two different procedures and they provide two different remedies.
The Supreme Court adopted a literal interpretation of the RTI Act and refused to consider whether a purposive interpretation would have served the purpose of the Act !etter. This is in contrast to the Allaha!ad :igh Court 'udgement in A& 00 )$9 of 0881 which said, Q2e are also of the view that the Commission while enNuiring into the complaint under Section *1, can issue necessary directions for supply
JUDGMENT ": CIHIF A&&4AF (B. -* BD 08** EArising out of SF& )C (o.08/8<08** Inst. Bf Chartered Accountants vs. Shauna" : SatyaJ RH Raveendran @ A &atnai" 0 Septem!er 08**J AIR 08** SC
The issue before the Court: )i hether the instructions and solutions to Nuestions )if any given !y ICAI to e6aminers and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore e6empted under section 1)*)d of the RTI Act=
)ii hether providing access to the information sought )that is instructions and solutions to Nuestions issued !y ICAI to e6aminers and moderators would involve an infringement of the
copyright and therefore the reNuest for information is lia!le to !e re'ected under section + of the RTI Act= )iii hether the instructions and solutions to Nuestions are information made availa!le to e6aminers and moderators in their fiduciary capacity and therefore e6empted under section 1)*)e of the RTI Act= Act=
The observations of the Court: The Court first held at para *0 that denial of information could not !e 'ustified under Section 1)* )d. It also held at para * and */ that denial could not !e 'ustified 'ustified under Section Section +. At para * and * it held that the informatio information n is e6empt under Section 1 )* )e7
&ara *: $The The inst instru ructi ction onss and and solu soluti tion onss to =ues =uestio tions ns issue issued d to the the e+ami e+amine ners rs and and modera moderator torss in connec connectio tion n with with evalua evaluatio tion n of answe answerr scripts scripts,, as notice noticed d above, above, is the intelle intellectu ctual al prop property erty of IC*I. IC*I. These These are made availa available ble by IC*I IC*I to the e+amin e+aminers ers and moderators to enable them to evaluate the answer scripts correctly and effectively, in a proper manner, manner, to achieve uniformity and consistency in evaluation, as a large number of evaluators and moderators are engaged by IC*I in connection with the evaluation. The instr instruc uctio tions ns and and solu soluti tion onss to =ues =uesti tion onss are are given given by the the IC*I IC*I to the the e+ami e+amine ners rs and and moderators to be held in confidence. The e+aminers and moderators are re=uired to maintain absolute secrecy and cannot disclose the answer scripts, the evaluation of answer scripts, the instructions instructions of IC*I and the solutions to =uestions =uestions made available by IC*I, to anyone. anyone. The e+aminers and moderators are in the position of agents and IC*I is in the position of principal in regard to such information which IC*I gives to the e+aminers and moderators to achieve uniformity, consistency and e+actness of evaluation of the answer scripts. When anything is given and taken in trust or in confidence, re=uiring or e+pecting secrecy and confidentiality to be maintained in that behalf, it is held by the recipient in a fiduciary relationship.8 &ara *: 2 It should be noted that section !$"!e" uses the words words :information available available to a person in his fiduciary relationship8. relationship8. Significantly section !$"!e" does not use the words words :information available to a public authority in its fiduciary relationship8. The use of the words :person8 shows that the holder of the information in a fiduciary relationship need not only be a public authority as the word person is of much wider import than the word public authority. Therefore the e+emption under section !$"!e" is available not only in regard to information information that is held by a public authority !in this case the e+amining body" in a fiduciary capacity, but also to any information that that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence e+pecting confidentiality to be maintained maintained will be information available to a person in fiduciary relationship. *s a conse=uence, it has to be held that the instructions and solutions to =uestions communicated by the e+amining body to the e+aminers, head9e+aminers and moderators, are information available to such persons in their fiduciary relationship and therefore e+empted from disclosure under .”(appears to be a typing error and should be 8 (1) section !$"!d" of 1TI *ct .”(appears
(e). My analysis analysis of the judgmen judgment: t: ICAI said instructions to e6aminers and model answers cannot !e disclosed since they were e6empt. Commission denied the information !ut the :igh Court accepted the applicantMs right to get the information. The ape6 court ruled out the
applica!ility of Section 1 )* )d and Section +. The Supreme Court then upheld the denial of $odel answers !y the e6amining !ody to the applicant holding it to !e information held !y ICAI in a fiduciary relationship. It is interesting to note that in paras 0 and 0 in the C9S4 case referred earlier the Supreme Court had stated that an e6amining !ody is not in a fiduciary relationship with the e6aminers or e6aminees. If an e6amining !ody is not holding information in a fiduciary relationship with with e6am e6amin iners ers or e6ami e6amine nees es then then for for whom whom is the the ICAI ICAI hold holdin ing g mode modell answ answers ers in a fiduciary relationship= It appears that the Court has held that ICAI holds information in a fiduciary relationship when the information !elongs to it and there is no !eneficiary.
JUDGMENT &: CIHIF A&&4AF (B. -* BD 08** EArising out of SF& )C (o.08/8<08** hanapuram Gandaiah vs. Administrative Administrative BfficerJ .G. 9AFARIS:(A(, C#I, A(5 5R. 9.S. C:A%:A(, #.J 04.01.2010; AIR 2010 SC 615 The issue issue befor beforee the Court: Court: The scope of the definition of 2Information3 contained in section 0)f of the RTI RTI Act. The observations of the Court: !ara !ara #' -nder -nder the 1TI *ct *ct Dinfor Dinformat mation ionDD is define defined d under under Section Section '!f" '!f" which which provid provides es77 informationD means any material in any form, including records, documents, memos, e9 mails, mails, opinio opinions, ns, advice advices, s, press press relea releases, ses, circu circular lars, s, orde orders, rs, logboo logbooks, ks, contra contracts, cts, repor report, t, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
This This defi defini niti tion on show showss that that an appl applica icant nt unde underr Sect Sectio ion n E of the the 1TI 1TI *ct *ct can can get get any any information which is already in e+istence and accessible to the public authority under law.
none e6isted. The Court held that: (o information could !e given, as none My analys analysis is of the judgmen judgment: t: In my opinion denial was 'ustified since no information e6isted. JUDGMENT (: CIHIF A&&4AF A&&4AF (B. *88// *88// BD 08*8 ARISI(G ARISI(G B%T BD S&4CIAF S&4CIAF F4AH4 &4TITIB( )C (B. 01-- BD 088+J C&IB, Supreme Court vs Su!hash Chandra
AgrawalJ AgrawalJ 9. Sudarshan Reddy @ Surinder Surinder Singh (i''ar 0 (ovem!er (ovem!er 08*8J Constitution Constitution 9ench to !e formed The issue before the Court: hereas the information sought pertains to the Appointment of #udges in the Ape6 Court itself, the court framed the following issues to !e addressed,
*. hether the concept of independence of 'udiciary reNuires and demands the prohi!ition of furnis furnishin hing g of the inform informatio ation n sought sought== heth hether er the inform informati ation on sought sought for amount amountss to interference in the functioning of the 'udiciary= 0. hether the information sought for cannot !e furnished to avoid any erosion in the credi!ility of the decisions and to ensure a free and fran" e6pression of honest opinion !y all the constitutional functionaries, which is essential for effective consultation and for ta"ing the right decision= . hether the information sought for is e6empt under Section 1)*)' of the Right to Information Act= The observations of the Court: . The respondent Subhash Chandra *garwal re=uested the CI<, Supreme Court of &ara 7 . India to arrange to send him a copy of :complete file&s !only as available in Supreme Supreme Court" inclusive of copies of complete correspondence e+changed between concerned constitutional authorities with file fil e notings relating to said appointment of Gr. Fustice H 0attu, Gr. Fustice *4 2anguly and Gr. Gr. Fustice Fustice 1G odha superseding seniority of Gr. Gr. Fustice Shah, Gr. Gr. Fustice *4 atnaik and Gr. Gr. Fustice 54 2upta as allegedly ob7ected to rime GinisterAs
&ara *07 “ The The case on hand raises important =uestions of constitutional importance relating to the the posit positio ion n of Hon Honbl blee the the Chie Chieff Fust Fustice ice of Indi India a unde underr the the Cons Consti titu tuti tion on and and the the independence of the Fudiciary in the scheme of the Constitution on the one hand and on the other, fundamental right to freedom of speech and e+pression. 1ight to information is an integral part of the fundamental right to freedom of speech and e+pression guaranteed by the Constitution. 1ight to Information *ct merely recogni>es the constitutional right of citi>ens to freedom of speech and e+pression. Independence of Fudiciary forms part of basic structure of the Constitution of India. The independence of Fudiciary and the fundamental right to free speech and e+pression are are of a great great value and both of them are are re=uired re=uired to be balanced.8 balanced.8 The Court held that: Registry to place this matter !efore :onK!le the Chief #ustice of India for constitution of a 9ench of appropriate strength. My analys analysis is of the judgmen judgment: t: The CIC, single 'udge of 5elhi :igh Court and division !ench of 5elhi :igh Court had given rulings against the &IB of the Supreme Court and ordered information to !e provided. The Supreme Court violating a !asic principle of natural 'ustice,L that no!ody can !e 'udge in his own cause,L stayed these 'udgements in a writ !efore itself. It has held that a Constitution !ench will hear this matter. Dor the last four years it has not !een heard. (o great harm would have come to the Supreme Court if it had displayed the wisdom of gracefully accepting the verdict of the CIC and the :igh Court and avoided ma"ing itself a 'udge in its own cause, who then does not decide the matter. It is unfortunate that the Supreme Court has not considered this matter to !e important enough to !e decided. 5espite a lapse of five years the constitution !ench has not !een constituted.
JUDGMENT #: RIT &4TITIB( &4TITIB( )CIHIF (B. 0*8 of 08*0J (amit Sharma vs. vs. %nion of IndiaJ Swatanter umar @ A &atnai" * Septem!er 08*0J 08*0J
of Sections *0)-, *0), *-)- and The issue before the Court: The Constitutional validity of Sections *-) of RTI Act, were challenged, which deals with the appointment and Nualifications of Information Commissioners. My analysis of the judgment: Butcome7 The Court ruled that all Information Commissions must sit in !enches of two, one of whom should !e a retired 'udge and there should !e transparency in the selection of Commissioners. This 'udgement would have resulted in the effective disposal rates of all Commissions !eing reduced to less than -8O and possi!ly made it difficult for citizens to approach approach Commissions Commissions without without lawyers. lawyers. Its immediate immediate impact was that many Commission Commissionss stopped wor"ing and !ac"logs which were already high !ecame unmanagea!le.
:ow this petition was decided7 Ta"en from 5B&TMs affidavit for review. &reliminary :earing
**<<08*0 **<<08*0
no respondent
Fisted @ &art heard
*1<<08*0
no respondent
5B&T learnt on *1< a!out the petition and !riefed Add. Solicitor General ASG as"ed for time on *+< to file a counter affidavit. Court said this was not necessary necessar y and ASG should give his arguments. ASG gave his arguments and 'udgement 'udgement reserved on *+<<08*0 5B&T filed written su!missions
**<8+<08*0 **<8+<08*0
CourtMs *8 page 'udgement allowing writ
*<8+<08*0
5B&TMs anguished statement in the review petition7 2 T . J<1 TH*T this HonAble Court, in the impugned 7udgment, has neither considered the oral arguments of the etitioner herein, nor the Written Written Submissions Submissions filed by the etitioner etitioner on $$.(6.' $$.(6.'($', ($', putting putting forth the case of the etitioner. The impugned 7udgment, at no place, records the submissions made by the counsel for the etitioner when the matter was heard.8 The respondent, %nion of India,Lin the petition is mentioned only once in the *8 page 'udgement,L in the title. The entire 'udgement reads as if there is only a petitioner and the Court The 'udgement disrupted the wor"ing of some Information Commissions. If implemented it would have dropped the disposal disposal rate to less than -8O since two Commissioners would have have to sit together, one of whom would have to !e a retired 'udge. Generally retired 'udges insist on lawyers arguing matters !efore them, whereas currently less than *O of the appellants have a lawyer. This would have discouraged most ordinary citizens from approaching the Commission. It appears to have !een given without regard to the law. If it had not !een reviewed it would have damaged RTI permanently.
Judgement %7 (amit Sharma stayed * April 08*
Bn a review !eing sought !y the %nion of India, with Ra'asthan Govt., C:RI, Aruna Roy and the author !eing interveners the Court stayed the o!'ectiona!le parts. Judgement ) : (amit Sharma
A &atnai" @ S Si"ri Septem!er 08* 4arlier order order partly withdrawn. withdrawn. The main o!'ectiona! o!'ectiona!le le parts of the 'udgement 'udgement which had !een given were withdrawn.
JUDGMENT *: Special Feave &etition )Civil (o. 0/ of 08*0J Girish Ramchandra 5eshpand Hersus Cen. Information Commr. @ BrsJ S Radha"rishnan @ 5ipa" $israJ Bcto!er 08*0J )08* * SCC 0*0
The issue issue befor beforee the Court: Court: hether the information pertaining to a &u!lic Servant in respect of his service career and also the details of his assets and lia!ilities, mova!le and immova!le properties, can !e denied on the ground that the information sought for was Nualified to !e personal information as defined in clause )' of Section 1)* of the RTI Act. The observations of the Court: 2$'. The petitioner herein sought for copies of all memos, show cause notices and censure&punishment awarded awarded to the third respondent from his employer and also details vi>. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Jurther, 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 ta+ returns of the third th ird respondent. The =uestion that has come come up for consid considera eratio tion n is whethe whetherr the above9m above9ment ention ioned ed inform informatio ation n sought sought for =ualifies to be Dpersonal informationD as defined in clause !7" of Section !$" of the 1TI *ct.
$#. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure&punishment et c. are =ualified to be personal information as defined in clause !7" of Section !$" of the 1TI *ct. The performance of an employee&officer in an organi>ation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the e+pression Dpersonal informationD, the disclosure of which has no relationship to any public activity or public interest.
The Court held that: The Ape6 Court has held that copies of all memos, show cause notices and orders of censure
rovided that the information, which cannot be denied to the arliament or a State egislature shall not be denied to any person.8 The Supreme Court has missed realising that the e6emption e6emption applies to personal personal information information only if it has no relationship to any pu!lic activity or is an unwarranted invasion on the privacy of an individual. The court has not even Nuoted the important proviso. 4ffectively the court has read Section 1)* )' as7 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 the indi indivi vidu dual al unle unless ss the the Cent Centra rall ubl ublic ic Info Inform rmat atio ion n
!$" the right to privacy is implicit in the right to life and liberty guaranteed to the citi>ens of this country by *rticle '$. It is a Dright to be let alone.D * citi>en has a right to safeguard the privacy of his own, his family, marriage, procreation, procreation, motherhood, child bearing and
education among other matters. /one can publish anything concerning the above matters without without his consent consent 9 whether whether truthful truthful or otherwise otherwise and whether whether laudatory laudatory or critical. 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 osition may, however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. !'" The rule rule afore aforesai said d is sub7ect sub7ect to the e+cepti e+ception, on, that that any public publicatio ation n concern concerning ing the aforesaid aspects becomes unob7ectionable if such publication is based upon public records including Court records. records. This is for the reason that once a matter becomes a matter of public recor record, d, the right right to privacy privacy no longer longer subsist subsistss and it become becomess a legitim legitimate ate sub7ect sub7ect for comment by press and media among others. We are, however, of the opinion that in the interest of decency !*rticle $6!'"" an e+ception must be carved out to this rule, vi>., a female who is the victim of a se+ual assault, kidnap, abduction or a like offense should not further be sub7ected to the indignity of her name and the the incident being published in press&media. press&media. !#" There is yet another another e+ception to the 1ule in !$" above above 9 indeed, indeed, this is not an e+ception e+ception 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.8 &u!lic record as defined in the &u!lic Records Act is any record held !y any Government office. This 'udgement at point 0 clearly states that for information in pu!lic records, the right to privacy can !e claimed only in rare cases. This is similar to the proposition in Section 1 )* )' which does not e6empt e6empt personal personal information information which has relationship relationship to pu!lic activity activity or interest. It also tal"s of certain "inds of personal information not !eing disclosed which has !een covered in the Act !y ! y e6empting disclosure of personal information which would !e an unwarranted invasion on the privacy of an individual. At point it categorically emphasizes that for pu!lic officials the right to privacy cannot !e claimed with respect to their acts and conduct relevant to the discharge of their official duties. The Girish 5eshpande 'udgement is clearly contrary to the earlier 'udgement, since it accepts the claim of privacy for &u!lic servants for matters relating to pu!lic activity which are on &u!lic records. Appeal *1 of 088* has clearly . The Supreme Court 'udgement in the A5R<&%CF Civil Appeal laid down that citizens have a right to "now a!out the assets of those who want to !e &u!lic servants )stand for elections. It should !e o!vious that if citizens have a right to "now a!out the assets of those who want to !ecome &u!lic servants, their right to get information information a!out those who are &u!lic servants cannot !e lesser. This would !e tantamount to arguing that a prospective groom must declare certain matters to his wifeLtoL!e, !ut after marriage the same information need not !e disclosed hen Nuoting Section 1 )* )' the Court has forgotten to mention the important proviso to this Section which stipulates, Q&rovided Q&rovided that the information, information, which cannot cannot !e denied denied to the &arliament or a State Fegislature shall not !e denied to any person.M The Supreme Court did not mention this in its 'udgement when Nuoting this section and has not considered it. If this proviso was Nuoted the Court would have had to record that in its opinion the said information would !e denied to &arliament. 9ihar Government, Gu'arat government, $unicipal Corporation of $um!ai and many others have displayed the assets of all its officials on its we!site. The decision of the Supreme Court will reverse the transparency march and constrict Right to Information. It appears that the Court has not ta"en into account the two earlier 'udgements mentioned a!ove, and the important proviso to Section 1 )* )' and hence the decision in Shirish 5eshpandeMs case may
!e per incuriam. incuriam. 9esides there does not appear to any @ratio decidendiA in in this 'udgement. :enc :encee this this 'udg 'udgem emen entt cann cannot ot !e a prec preced eden ent. t. %nfo %nfort rtun unate ately ly it has has resu result lted ed in most most information a!out pu!lic officials !eing denied, and conseNuently the ar!itrary favours to pu!lic servants and their corruption has !een o!scured from the eyes of the pu!lic. The $aharashtra government has issued a circular !ased on this 'udgement. It is worth recording that the main ground for the 'udgement is agreement with the CIC decision. A perusal of the CIC decision also does not display any proper reasoning !ut is !ased on an earlier decision !y a !ench of the Commission. The !ench decision which was relied on !y CIC, did not even relate to information a!out a pu!lic servant Su!seNuent to this 'udgment atleast si6 :igh Court 'udgments and one !y the Supreme Court have declared that Qpersonal informationM cannot !e given, unless a larger pu!lic interest is shown. out of SF&)C (o.-0+ of JUDGMENT 10: CIHIF A&&4AF (B. +8+- BD 08*0 )Arising out 088+J $anohar s
The issue before the Court: It was a case where disciplinary action had !een recommended against the &IB under Section 08 )0 of the Act. The observations of the Court: 2**. The impugned orders do not ta"e the !asic facts of the case into consideration that after a short duration the appellant was transferred from the post in Nuestion and had acted upon the application see"ing information within the prescri!ed time. Thus, no default, much less a negligence, was attri!uta!le to the appellant.
*0. 5espite service, no!ody appeared on !ehalf of the State Information Commission. The State filed no counter affidavit.3 The Court held that: The CommissionMs order was Nuashed. My analysis of the judgment: The Supreme Court has loo"ed at the factual matri6 to overturn the decision of the Commission and the :igh Court to Nuash the order of the Commission. Can this !e a legitimate e6ercise in a writ= The seven 'udge !ench of the Supreme Court Cour t in :ari Hishnu Hishnu amath v. Ahmad IshaNue *+--LIS *+--LI S **8/ **8/ 7 ))S AIR AIR *+-- SC 0 has laid down, 2 ) The court issuing a writ of certiorari acts in e6ercise of a supervisory and not appellate 'urisdiction. Bne conseNuence of this is that the court will not review findings of fact reached !y the inferior court or tri!unal, even if they !e erroneous.3 The Supreme CourtMs 'udgement is !ased on its assessment of the facts of the matter. Is it consistent with the decision in :ari Hishnu amath= The RTI RTI Act does not have any provision for an appeal !eyond the the Commission. The Court in its writ 'urisdiction appears to have acted in a manner not in consonance with the limits for writs laid down in :ari Hishnu amath.
Again in this matter there is no respondentMs r espondentMs argument argument were mentioned.. +8-0 BD 08*0 )Arising out of SF& )C JUDGMENT 11: CIHIF A&&4AF (B. (o.080* of 08**J 08**J 9ihar &u!lic Service Commission vs. Saiyed :ussain A!!as RizviJ Swatanter umar @ Sudhansu #yoti # yoti * 5ecem!er 08*0J #T 08*0 )*0 SC --0
The main issue before before the Court Court:: The applicant had as"ed for names and addresses of interviewers in an interview !oard selecting candidates for 9ihar government 'o!s.
The Court held that: the Commission is not !ound to disclose the information as"ed for !y the applicant under uery (o.* of the application. My analysis of the judgment: The applicant had in 0881 sought the names and addresses of persons who had conducted interviews for 9ihar &u!lic Service Commission )9&SC in 0880. This was denied claiming e6emption on grounds of Section 1 )* )'. The State Commission had upheld the denial and the matter was finally contested in the 5ivision 9ench of the :igh Court. The 5ivision 9ench upheld the contention of the applicant and ordered the names of the interviewers to !e provided.
Commonwealth :uman Rights Initiative )C:RI has done a very detailed and wellLargued analysis/ of this matter from which some parts are !eing reproduced !elow7 20.* The Special Feave &etition )SF& was admitted in $arch, 08*0 and a two ‐ 'udge !ench of the Supreme Court )the Court comprising of #ustice A &atnai" and #ustice Swatanter umar decided the matter within nine months. The Court allowed the appeal and set aside the 'udgement of the 5ivision 9ench. riting the 'udgement for the Court, #ustice Swatanter umar held that 9&SC was not !ound to disclose any information !eyond what was provided already. A summary of the CourtMs reasoning is provided !elow7 )i 9&SC had relied heavily on Section 1 )* )' of the RTI Act while re'ecting the reNuest for names and addresses and also during the proceedings !efore the 9ihar State Information Commission and the &atna :igh Court. *Though 9&SC claimed the protection of Section 1 )* )' in its petition, it did not press this point during the hearings !efore the Court. Therefore the Court did not go into the correctness of the 5ivision 9enchMs 'udgement a!out this line of reas oning. )ii 9&SC changed trac" and claimed that the names and addresses of the su!'ect e6perts e6perts could not !e disclosed disclosed as it was entitled to the protection protection of !oth Section 1 )* )e and Section 1 )* )g of the RTI Act. The Court re'ected the claim to Section 1 )* )e in light of the principles governing a fiduciary relationship recognised !y the Court in an earlier RTI ‐related matter. The Court ruled that there was no fiduciary relationship !etween 9&SC and the interviewers )su!'ect e6perts or the candidates interviewed. )iii The Court upheld 9&SCMs claim of Section 1 )* )g of the RTI Act Act !y lin"ing it to Article 0* of the Constitution which guarantees protection for life and li!erty of a person. It reasoned that the mem!ers of the 9oard are li"ely to !e e6posed to danger to their lives or physical physical safety if their names and addresses addresses are disclosed. disclosed. :The 14 http://www.humanrightsinitiative.rg/
disclosure of names and addresses of the members of the interview Board would e+ facie endanger their lives or physical safety. The possibility of a failed candidate attempting to take revenge from such persons cannot be ruled out,8 the out,8 the Court held. )iv The Court gave two more reasons for re'ecting the reNuest for names and addresses. Dirst, it held that the disclosure of names and addresses of e6aminers would hamper effective performance and the discharge of their duties. Second, it held that disclosure would serve no fruitful much less any pu!lic purpose. The 5ivision 9ench of the :igh Court had earlier re'ected the contention of the &IB a!out applica!ility of Section 1 )* )g !y stating7 2$#. K 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 interviewK $%. To make make a compar compariso ison n with with the court&7 court&7udi udicia ciall proc proceed eeding ings, s, vis‐L‐vis vis an interview Court proceeding is open and the names of the Fudges who are hearing the matter are ‐known to all the parties. When court proceedings can be held in broad daylight and the names of the 7udges are known to all the parties, why not the names of interviewers be disclosed to the applicant.8 As nothing in the 9&SC 'udgement indicates that the Court weighed and measured this line of reasoning of the 5ivision 9ench, !efore dismissing it, in our hum!le opinion, it is difficult to accept the rationale for re'ection. )iii Third, the 5ivision 9ench clearly pointed out that denying information a!out interviewers could defeat the very purpose of the Act in the following manner7 :$#. KIt 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 ob7ects, the preamble, and the legislative intent of the *ct. We cannot countenance such an obstruction to such a laudable *ct which is intended to bring about transparency in governance, and root out corruption, in this country. country. The Fudgment of the Supreme Supreme Court in the case of *.4. 4raipak 4raipak and others others vs.-ni vs.-nion on of India India and others others !*.I.1 !*.I.1.. $6)( $6)( S.C. S.C. $3(" $3(" is an appro appropri priate ate e+ample to show that one of the members of the Board was himself a candidate for promotion from from the State cadre to the Central cadre of Indian Jorest Service. Ser vice. If we prohibit the information which the applicant is seeking to obtain, the misdeed as had taken place in *.4. 4raipak vs. -nion of India !supra", may not be set at naught.8
The 5ivision 9ench was clearly referring to potential conflicts of interests that may !e identified if the names of the interviewers were disclosed. If not, they would remain hidden under a cloa" of secrecy. It is respectfully su!mitted that instead of weighing and measuring this line of reasoning which is !ased on a very real case ad'u ad'udi dicat cated ed !y the the Cour Courtt earl earlier ier )amou )amount ntin ing g to mater material ial fact factss 'usti 'ustify fyin ing g the the disclosure of names, the Court has re'ected it !y holding that preventing !ias in the selection process cannot !e a ground for denying 9&SC the protection of Section 1 )* )* )g. )g. In our our hum! hum!le le opin opinio ion n the the Cour Courtt has has not not adeN adeNua uatel tely y appr appreci eciat ated ed the the reasoning of the 5ivision 9ench which !y ordering disclosure sought to uphold the very pu!lic interests mentioned in the &ream!le &rea m!le of the RTI Act, viz., Q!ringing a!out transparency in governanceM and Qcontaining corruptionM. )iv Dourth, nowhere in its 'udgement does the Court recognise that the 5ivision 9ench had refused to order disclosure of the addresses of the interviewers.3 It sounds highly impro!a!le that a candidate, who was not selected in an interview in 0880, would see" the names of the interviewers in 0881 and pursue the matter in the Supreme Court to with the intention of physically harming the interviewers. Imagination is !eing stretched too far if it is assumed that the unsuccessful candidate would harm the interviewers after *8 years. The 5ivision 9ench of the :igh Court had come to a very reasona!le conclusion that most pro!a!ly the attempt was to e6pose nepotism in the selection process. The Supreme Court ruling has led to a situation where the denial of information under Section 1 )* )g has !een done !y thin"ing of remote highly unli"ely situations to deny information. A &IB has to merely imagine the possi!ility of some li"ely harm to deny information. A mere apprehension that some interest may !e affected has !een du!!ed to !e adeN adeNuat uatee to deny deny info inform rmati ation on.. This This decis decisio ion n ma"e ma"ess it diff diffic icul ultt for for citize citizens ns to e6po e6pose se corruption and favouritism. 9esides it opens the possi!ility to imagine new ways to deny information !y con'uring even a highly impro!a!le harm.
$any :igh Court decisions including the 9hagat Singh case Nuoted earlier stated that the harm to a protected interest must !e a reasona!le possi!ility, not a distant pro!a!ility. This approach of the ape6 court of thin"ing of a remote possi!ility to apply the e6emption is !ecoming a haven for denying information to the citizens.
SC*0 CIHIF A&&4AF (B. 11 BD 08* )arising out of SF&)C(o.008+ of 08*0 R #ain vs. %nion of IndiaJ IndiaJ GS Singhvi @ Sudhansu Sudhansu #yoti * April, April, 08*J #T 08* 08* )*8 SC /8
The issue before the Court: The information reNuested was inspection of adverse confidential remar"s against QintegrityM of a mem!er of Tri!unal and follow up actions ta"en on issue of integrity. 46emption was claimed on the !asis of Section 1 )* )'. The Court held that: Inter alia relying upon the ruling made in Girish Ramchandra 5eshpande case, the information is e6empted from disclosure under Section 1 )* )'. read with section ** of the th e RTI Act. Act. &ara *8K. *8K. -nder Section $$!$", if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central ublic Information
&rovided that e6cept in the case of trade or commercial secrets protected !y law, disclosure may !e allowed if the pu!lic interest in disclosure outweighs in importance any possi!lte harm or in'ury to the interests of such third party.3 The Supreme Court appears appears to have given an interpretation interpretation to Section ** which does not appear to !e 'ustified !y the provisions of the Act. Section )* Su!'ect to the proviso to su!Lsection ) ' of section - or the proviso to su!Lsection )# )# of section , the Central &u!lic Information Bfficer or State &u!lic Information Bfficer, as the case may !e, on receipt of a reNuest undersection shall, as e6peditiously as possi!le, and in any case within thirty days of the receipt of the reNuest, either provide the information on payment of such fee as may !e prescri!ed or re'ect the reNuest for any of the reasons specified in sections 1 and +73 Thus it is clear that only Section 1 or + can !e used to deny information. Section ) states7
29efore ta"ing any decision under su!Lsection )$ ) $, the Central &u!lic Information Bffi Bffice cerr or Stat Statee &u!l &u!lic ic Info Inform rmati ation on Bffi Bfficer cer,, as the the case case may !e, !e, shal shalll ta"e ta"e into into consideration the representation made !y a third party under section **.3
Section ** is not an e6emption !ut only a procedural provision to safeguard the interests of the third party. The CourtMs statement a!ove implies that if third party o!'ects to the disclosure of information, it can only !e given if there is a larger pu!lic interest in disclosure. 5enial of information in RTI can only !e done under Section 1 or + as clearly mentioned mentioned in Section )*. In Section 1 )* the need to show a larger larger pu!lic interest arises only when an e6emption under Section 1 )* applies. The Act states that when a &IB &IB Qintends to discloseM information regarding third party he shall intimate the third party. It also states that Qsu!mission of the third party shall !e "ept in view while ta"ing a decision a!out disclosure of informationM. The &IB can only deny information information as per the the provisions provisions of the e6emptions e6emptions of Section Section 1 )* or +. The RTI Act does does not not give give veto veto powe powerr to the the thir third d part party y, !ut !ut prov provid ides es it with with an opportunity opportunity to raise his legitimate o!'ections, o!'ections, and in case the &IB decides decides to disclose the information despite the o!'ections, the concerned third party may prefer an Appeal against the decision of the &IB, as per the provisions of Section ** )0 to ** )/. These e6press provisions **)0 to **)/ ma"es it clear that the third party is not rendered rendered remediless, in cases where &IB disagrees disagrees with the third partyMs partyMs o!'ection in disclosure of information. Section )* of the RTI Act clearly states that denial of information can only !e !ased on Section 1 or +, provisions of this Act, all citizens shall have the right to information information and Section states that QSu!'ect QSu!'ect to the provisions of this Act, all citizens shall have the Right to Information.M Thus the denial of any information can only !e on the !asis of the RTI Act where only Section 1 and + detail the information which can !e denied. The Court has raised the procedure of Section ** to that of an e6emption of Section 1 )*. This is a erroneous reading of Section **. Information denied, partly depending on Girish 5eshpande 'udgement where there was no ratio no ratio decidendi, and a flawed interpretation of Section **
JUDGMENT 1": &etitio &etition)s n)s for Speci Special al Feave Feave to to Appe Appeal al )Civil )Civil. .... .....< ..<08* 08* CC CC *1-<08*J arnata"a Information Commissioner vs. &IB ):CJ GS Singhvi @ :F Go"hale *1 #anuary 08*J
bout the 2ase: A RTI RTI applicant reNuested the arnata"a :igh Court for certified certif ied copies of some information
The CommissionMs order was challenged !y the &IB in the arnata"a :igh Court which named the applicant as a respondent in the case and Nuashed the CommissionMs order.
The Commission challenged this order !efore the Supreme Court and the petition was filed !y an Information Commissioner. The Court too" offense to the petition !eing file filed d !y an Info Inform rmat atio ion n Com Commiss missio ione nerr and said said that that the the Com Commiss missio ion n and and Commissioner have no locus standi and standi and were wasting pu!lic money !y challenging the order. In a harsh snu! it imposed a cost of Rs. *88888 on the Commission. My analysis of the judgement: It is worth mentioning that the Supreme Court itself had accepted the Chief Information Commissioner )$anipur as the petitioner in Civil Appea Appeall no. no. *80 *80.. $any $any :igh :igh Court Courtss name name the Comm Commis issi sion on as party party in many many petitions challenging their decision. The important matter of Section 00 which gives an overriding effect to the RTI Act, was not addressed at all. This harsh snu! !y the Supreme Court has silenced the Information Commissions into not Nuestioning the Courts, !ut !ecoming intellectually su!servient to them.
:the pro provisi vision onss of this this 1TI 1TI *ct *ct shal shalll have have effe effect ct ii, ii, .e .e2t 2tio ion n states that :the notwithstanding anything inconsistent therewith contained in the
Judgment 1&: CIHIF A&&4AF (Bs. +808, +80+ @ +80 BD 08* )Arising out of SF& )C (o.0/0+* of 08*0, *+ and *+ of 08*J Thalappalam Ser. Coop. 9an" vs. State of eralaJ S Radha"rishnan @ A Si"ri Bcto!er, 08*J The issu The issuee be befo fore re the the Cour Court: t: hether a coLoperative society will fall within the definition of pu!lic Authority under Section 0)h of the RTI Act and !e !ound !y the o!ligations to provide information sought for !y a citizen under the RTI Act.
The observations of the Court: &ara . 2We 2We often use the e+pressions :=uestions of law8 and :substantial =uestions of law8 and e+plain that any =uestion of law affecting the right of parties would not by itself be a substantial =uestion of law. In Black's Law Dictionar!"t# Dictionar!"t# $dn.% $dn.% , the word substantial is defined as of real worth and importance of considerable value valuable. Belonging to substance actually e+isting real; not seeming or imaginary not illusive solid true veritable. Something worthwhile as distinguished from something without value or merely nominal. Synonymous with material. The word substantially has been defined to mean essentially without material =ualification in the main in substance materially. In the Shorter <+ford Mnglish 0ictionary !3th Mdn.", the word substantial means of ample or considerable amount of si>e si>eable, fairly large having solid worth or value, of real significance sold weighty important, worthwhile of an act, measure etc. having force or effect, effective, thorough. The word substantially has been defined to mean in substance as a substantial subst antial thing or being essentially, essential ly, intrinsically. intrinsically. Therefore the word substantial is not synonymous with dominant or ma7ority. It is closer to material or important or of considerable value. Substantially is closer to essentially. Both words can signify varying degrees depending on the conte+t.
&ara 1. 2 Gerely providing subsidiaries, grants, e+emptions, privileges etc., as such, cannot be said to be providing funding to a substantial e+tent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to e+ist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector sector like depos deposit it guar guarant antee ee sche scheme me,, schem schemee of assis assistan tance ce from from /*B* /*B*10 10 etc. etc.,, but those those facilities or assistance cannot be termed as :substantially financed8 by the State 2overnment to bring the body within the fold of :public authority8 under Section '!h" !d"!i" of the *ct.8
The Court held that: Cooperative Societies registered under the erala CoLoperative Societies Act will not fall within the definition of pu!lic Authority as defined under Section 0)h of the RTI Act unless they are su!stantially financed. No 3nformation 4rovided'
My analysis analysis of the judgment: judgment: The Court ruled that Cooperative Societies are not &u!lic authorities covered in RTI RTI unless they are su!stantially financed. It defined defined the word su!stantial finance thus7
The Court after loo"ing at the various dictionary meaningsLQmaterialM, QimportantM, Qof considera!le valueM, Qnot illusiveM decided that it means essential only, when it says, Substantially Substantially is closer to essentially essentially Thus even if a (GB or private !ody receives *88 crores annually it may not !e deemed to !e su!stantially financed if its total !udget is around -88 crores and it argues that the amount from the Government is not no t essential for its wor"ing. The Court did not choose the words Qmaterial, important, of considera!le value, not illusiveM which would have e6panded the scope s cope of the Act.
Judgment 1(: CIHIF A&&4AF (Bs. 0, , / @ - of 08* )Arising )Arising out of SF& SF& )C )C (o.* (o.*1 18, 8,*1 *1*, *,* *10 10 @ *1 *1 of 08*0 08*0JJ %nion %nion &u!li &u!licc Serv Servic icee Commission Commission vs. Gourhari Gourhari amilaJ amilaJ G. S. S. Singhvi Singhvi and and H. H. Gopala Gowda August August 08* 3ssue before the Court: The applicant had sought the following information for an e6amination conducted !y %&SC which had !een denied.
/. :ow many years of e6perienc e6periencee in the relevant relevant field field )Analytic )Analytical al methods methods and rese resear arch ch in the fiel field d of 9all 9allist istic ics s ment mention ioned ed in the adver advertis tisem emen entt have have !een !een considered for the short listing of the candidates for the interview held for the date on *..08*8= -. indly provide the certified 6ero6 copies of e6perience certificates of all the candidates candidates called for the interview on *..08*8 *..08*8 who have claimed the e6perience in the relevant field as per records availa!le in the %&SC and as mentioned !y the cand candid idat ates es at Sl.( Sl.(o. o.*8) *8)9 9 of &art &artLI LI of their their appli applica cati tion on who who are are calle called d for for the the interview held on *..08*8. The CIC decided in favour of disclosure and as"ed %&SC to disclose the information. %&SC challenged this order and the single 'udge and the division !ench of the :igh Court dismissed %&SCMs petition. The observations of the Court: uoting from C9S4 case 7 $3t 2annot therefore be said that the e5amining body is in a fidu2iary relationshi4 relationshi4 either /ith referen2e to the e5aminee /ho 4arti2i4ates in the e5amination and /hose ans/er boo6s are evaluated by the e5amining body'
e may may ne6t ne6t consi consider der wheth whether er an e6am e6amin ining ing !ody !ody would would !e entit entitle led d to clai claim m e6emption under Section 1)*)e of the RTI Act, Act, even assuming that it is in a fiduciary relationship with the e6aminee. That section provides that notwithstanding anything contained in the Act, there shall !e no o!ligation to give any citizen information availa!le to a person in his fiduciary relationship. This would only mean that even if
the relationship is fiduciary, the e6emption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no Nuestion of the fiduciary withholding information relating to the !eneficiary, from the !eneficiary himself. Bne of the duties of the fiduciary is to ma"e thorough disclosure of all the relevant facts of all transactions !etween them to the !eneficiary, in a fiduciary relationship. 9y that logic, the e6amining !ody, if it is in a fiduciary relationship with an e6aminee, will !e lia!le to ma"e a full disclosure of the evaluated answer !oo"s to the e6aminee and at the same time, owe a duty to the e6aminee not to disclose the answer !oo"s to anyone else. If A entrusts a document or an article to 9 to !e processed, on completion of processing, 9 is not e6pected to give the document or article to anyone else !ut is !ound to give the same to A who entrusted the document or article to 9 for processing. Therefore, if a relationship of fiduciary and !eneficiary is assumed !etween the e6amining !ody and the e6aminee with reference to the answer !oo", Section 1)*)e would operate as an e6emption to prevent access to any third party and will not operate as a !ar for the very person who wrote the answer !oo", see"ing inspection or disclosure of it.3 )emphasis supplied
The Court held that:
9y applying the ratio of the aforesaid 'udgment, we hold that the CIC committed a serious illegality !y directing the Commission to disclose the information sought !y the respondent at point (os. / and - and the :igh Court committed an error !y approving his order. My analysis of the judgment: 3n 4ara " in the C7.E judgement the .u4reme Court had held: 2It cannot therefore !e said that the e6amining !ody is in a fiduciary relationship either with reference to the e6aminee who participates in the e6amination and whose answerL!oo"s are evaluated !y the e6amining !ody.3
In the C9S4 'udgement 'udgement the Supreme Court had clearly come to the conclusion conclusion that it cann cannot ot !e said said that that the the e6ami e6aminin ning g !ody !ody is in a fidu fiducia ciary ry rela relatio tionsh nship ip with with the e6aminee. After this the Court had assumed that even if an assumption were made that there is fiduciary fiduciary relationship, relationship, certain certain outcomes would flow. flow. It is not clear why the court made such an assumption. 9ut in this case the assumption appears to have !een treated as the ratio and the decision has !een given on that !asis
Judgment 1#: CIHIF A&&4AF (Bs. +808, +80+ @ +80 BD 08* )Arising out of SF& )C (o.0/0+* of 08*0, *+ and *+ of 08*J Thalappalam Ser. Coop. 9an" vs. State of eralaJ S Radha"rishnan @ A Si"ri Bcto!er, 08*J
This relates to a challenge to the appointment of the State Information Commissioners in Tamilnadu. The case was remanded to the :igh Court and does not have any significance in terms of interpreting the Act or disclosing or denial of information.
The a!ove analysis shows that in only one case did the Supreme Supreme Court rule in favour of a RTI applicant. In this case also the Court has made e6tremely strong comments almost condemning condemning the use of RTI RTI !y citizens. citizens. Citizens e6pect the Supreme Supreme Court to !e sentinel !e sentinel on the =ui vive defending vive defending and e6panding their fundamental rights. Some of the statements Nuoted a!ove seem to at great variance with what the Supreme Court said in S.&.Gupta )AIR *+10 SC */+ 2UThe concept of an open government is the direct emanation from the right to "now which seems to !e implicit in the right of free speech and e6pression guaranteed under Article *+)*)a. Therefore, disclosure of information information in regard regard to the functioning of Government must !e the rule and secrecy an e6cept e6ception ion 'ustifi 'ustified ed only where the stricte strictest st reNuir reNuireme ement nt of pu!lic pu!lic intere interest st so demands. demands. The approach of the court must !e to attenuate attenuate the area of secrecy secrecy as much as possi!le consistently with the reNuirement of pu!lic interest, !earing in mind all the time that disclosure also serves an important aspect of pu!lic interestU3 It is difficult to !elieve that the Supreme Court which earlier held that denial of information should !e an Qe6ception 'ustified only where the strictest reNuirement of pu!lic interest demandsM )which are now covered under Section 1 is now 'ustifying denial of information unless a pu!lic interest is shown hereas the law clearly states that a citizen needs to give no reasons for see"ing information, the ape6 CourtMs 'udgements suggest that there should !e a demonstra!le reason for o!taining information. There are two other aspects of 'udicial functioning to which I would draw attention7 *. uit uitee ofte often n on impo import rtan antt matt matter erss if an Info Inform rmat atio ion n Comm Commis issi sion on orde orders rs disclosure of information, pu!lic authorities o!tain a e6Lparte stay. &arliament has categorically stated that no appeals can !e entertained, and many of the stays are o!tained !y merely calling !latant appeals as writs. $any of these stays are given without any mention of any reason, violating the Supreme Courts orders orders of an essential essential reNuirement reNuirement for any 'udicial order. order. Courts have ordere ordered d reduct reduction ion in penalt penalties ies,, stopped stopped Commis Commission sioners ers from from conduc conductin ting g enNuiries, gone into facts to overrule Commissions. 4ven when Article 00 ) of the Constitution is invo"ed, Courts refuse to a!ide !y it.
0. $ost $ost appl applic ican ants ts cann cannot ot purs pursue ue the the Cour Courtt case casess and and henc hencee once once a stay stay is o!tained the matter languishes. Citizen empowerment and democratic awareness is growing rapidly in India. Bne of the important tools in this 'ourney has !een the Right To Information. The government has made four attempts to ma"e amendments amendments to the Act and had to retract retract in the face of adverse pu!lic opinion. This right now faces danger from two sources7 *. Informa Information tion Commis Commission sioners ersLL most of whom are select selected ed in an act of politic political al patronage,L without any process,L have no passion for transparency. 9esides most Commissions are not delivering decisions to citizens in any timeL!ound manner and often display a casual approach to their wor". 0. The The Supr Suprem emee Cour Courtt of Indi Indiaa !y its its 'udi 'udici cial al inte interp rpre reta tati tion onss appe appear arss to !e constricting the scope of the Act and does not appear to !e considering the great value this has for the nation. #udicial interpretations as seen a!ove will emasculate the law and curtail citizenMs fundamental right. There should !e wide discussions of these 'udgements so that this important right does not get constricted !y interpretation. At sta"e is the nationMs democracy. democracy.
