Live Law: Delhi: Saturday, 05 September 2015.
This
judgement (Girish Ramchandra Deshpand vs. Cen. Information Commr. & Ors –
(2013) 1 SCC 212) is being read as a
precedent to be followed by public information officers, Information
Commissions and courts across the country and is constricting the citizen’s
Right to Information significantly.
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 has 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.
My analysis
of the judgment: The judgement has expanded the scope of Section 8 (1) (j)
without any discussion or interpretation of the law. The only justification is
that it 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. Besides the Court should have applied
the acid test of whether the information would have been denied to Parliament.
It also 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. 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.
It has almost implied that all personal information is exempt under Section 8
(1) (j) even if it is concerned with a public activity and is not an
unwarranted invasion on the privacy of an individual. The wording of the law
requires public interest to be established only when the information has no
relationship to any public activity and disclosure would cause an unwarranted
invasion on the privacy. Since unwarranted invasion on privacy and public
activity have not been specifically defined in the RTI Act the interpretation
given in R. Rajagopal stands.
2.The Supreme Court judgement in the ADR/PUCL
Civil Appeal 7178 of 2001 has 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 information need not be disclosed!
Since there
is no discussion or reasons showing how the court had arrived at its
conclusion, it may not be setting out the law, and should then not be treated
as a precedent.
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 mention this in its judgement when quoting
this section 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. This proviso is
extremely important and effectively reflects the ratio of the ADR judgement. If
disclosure of any information is an unwarranted invasion on the privacy an
individual it should not be released to Parliament, since such a disclosure
would harm the legitimate right to privacy of an individual. If however the
person deciding on giving the information feels he would give it to Parliament,
there can be no justification for denying it to a citizen. Based on this
judgement much information about the educational qualifications, copies of
degrees, marks obtained in job selection, amounts spent on medical expenses by
public servants and much other information is being denied. This has
effectively amended the RTI Act without any arguments justifying this
constriction of a fundamental right. Based on these conclusions it appears that
the Girish Deshpande judgement may be
‘per incuriam’ . However this is becoming the law of the land presently.
If citizen’s
fundamental rights are constricted by any authority, they must defend
them. We made the government withdraw
its attempt to amend the RTI Act thrice. Should we now allow its constriction
by judicial misinterpretation? I suggest citizens and civil society
organisations across the country discuss this judgment and decide if they feel
their fundamental right is being constricted in this judgment which could
reduce their chances of curbing corruption and getting accountability. If they
feel this is happening they could send letters to DOPT and the Supreme Court
raising these concerns.
(Shailesh
Gandhi, former Central Information Commissioner.)
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