Moneylife: Pune: Saturday,
08 August 2020.
Last
fortnight, on a Bangalore based RTI applicant’s second hearing appeal for
seeking income tax details of her estranged husband, chief information
commissioner (CIC) Neeraj Kumar Gupta upheld the public information officer’s
(PIO’s) denial of information stating that, she
is not entitled to seek the details of the income tax returns of her
husband as it is exempted under Section
8(1)(j) of the RTI Act, 2005.
Contrast
this with the CIC order by Prof Shridhar Acharyulu in 2015, who slammed a show
cause notice on the PIO on the penalty clause and stated in his order that the
PIO cannot reject the request for such information, as it becomes information
of larger public interest if filed by the spouses, as the issue has a bearing
on prevention of domestic violence in the society and maintenance of wife and
children.
CIC
Neeraj Kumar Gupta, in his 10 July 2020 order, quoting a Delhi High Court order, states: “wherein it
has been clarified that in a private dispute between husband and wife, the
basic protection afforded by virtue of the exemption from disclosure enacted
under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is
able to justify how such disclosure would be in ‘public interest’. In the
matter at hand, the appellant has not succeeded in establishing that the
information sought is for larger public purpose.’’
In sharp
contrast, CIC Acharyulu in his 3 February 2015 order has interpreted that
maintenance of the wife and children and prevention of domestic violence
constitutes larger public interest and hence cannot fall under the exemption
clause of the RTI Act. His order states: “the PIO cannot reject the request for such
information, if filed by spouses, on the ground of Section 8(1)(j) saying it is
personal information, because the protection of privacy is overridden by the
huge public interest in maintaining wives, as provided in the proviso to
exception 8(1)(j). The larger public interest in maintenance of wives and
children, prevention of domestic violence, etc for the purposes of the
disclosure of such information, which was strongly established by the Delhi
High Court in two landmark judgments.’’
CIC
Gupta in his order, stated: “The act of filing returns with the department
cannot be construed as public activity. The expression “public activity” would
mean activities of a public nature and not necessarily act done in compliance
of a statute. The expression "public activity" would denote activity
done for the public and/or in some manner available for participation by public
or some section of the public. There is no public activity involved in filing a
return or an individual pursuing his assessment with the income tax
authorities. In this view, the information relating to individual assessee
could not be disclosed.’’
In sharp
contrast, CIC Acharyulu made this information to be given an utmost urgency,
that is in 48 hours, when he stated in his order that: “The information related to income details in
the context of non-maintenance of the spouse, becomes the life related
information which should be given within 48 hours according to proviso to
Section 7(1) of RTI Act, 2005.’’
Mr
Gupta, in his CIC order observed that income tax details comes under
``fiduciary capacity’’ and hence information is private. His order elaborates
that, “a Bombay High Court order of 2015 titled as Shailesh Gandhi v. The
Central Information Commission, wherein, it has been observed as follows:-“the
Petitioner possibly being aware of the said position has therefore sought to
contend that filing of the income tax returns is a public activity. I am afraid
the said contention is thoroughly misconceived as filing of income tax returns can
by no stretch of the imagination be said to be a public activity, but is an
obligation which a citizen owes to the State viz. to pay his taxes and since
the said information is held by the income tax department in a fiduciary
capacity, the same cannot be directed to be revealed unless the pre-requisites
for the same are satisfied.”
CIC
Acharyulu in his 2015 CIC order took the reference of another High Court Order
when he stated: “In Kusum Sharma case
referred above (Jan 14, 2015), the Delhi High Court stated that the maintenance
is not merely a legal right but it is part and parcel of basic human right.
Depending on the financial conditions and non-availability of support from
parents, when husband does not maintain his wife, it challenges her right to live,
and thus information related to maintenance becomes life related information.
In this case, the appellant alleged that she lost 15 kilos weight as she was
not given food for 15 days by the husband, who took lot of dowry wealth from
the parents in law. The allegation that he advertised for second wife during
the sustenance of his marriage with first wife, which is being investigated
into is proof of the fact that he neglected his wife. It proves prima -facie
that he was not maintaining his wife. The public authority did not go into
these questions, and the PIO did not bother to give her information asked for
in reasonable period.’’
CIC
Gupta also cited the Supreme Court of
India v. Subhash Chandra Agarwal of 2019 wherein he stated that, “reading of the
aforesaid judicial precedents, in our opinion, would indicate that personal
records, including name, address, physical, mental and psychological status,
marks obtained, grades and answer sheets, are all treated as personal
information. Similarly, professional records, including qualification,
performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all
personal information. Medical records, treatment, choice of medicine, list of
hospitals and doctors visited, findings recorded, including that of the family
members, information relating to assets, liabilities, income tax returns,
details of investments, lending and borrowing, etc. are personal information.
Such personal information is entitled to protection from unwarranted invasion
of privacy and conditional access is available when stipulation of larger
public interest is satisfied. This list is indicative and not exhaustive.’’
- CIC Acharyulu in his order insisted that as per the 2015 Delhi High Court order: “as depending on the financial conditions and non-availability of support from parents, when husband does not maintain his wife, it challenges her right to live, and thus information related to maintenance becomes life related information. This information about assets, income and investments of spouses is no more private or personal information as against spouses, even if that information could be personal or private information as against any person other than spouse. The proviso to Section 8(1)(j) read with Section 8(2) of the Right to Information Act entitled the appellant to get information which she sought because of overwhelming public interest in securing the lives of deserted wives. The Commission thus holds that: The spouses have right to information between them as listed by Delhi High Court.
- The husband in this case, has a duty to provide all that information listed above to his wife, and the appellant wife has right to information as established by Delhi High Court based on rights of marriage as provided by various statutes of family law whom he is not maintaining and public authority has authority and power to enforce that duty…
- Though certain documents like annual returns of assets, investments, IT returns etc were earlier declared as private/ personal or third-party information, as far as spouses are concerned they are not private or personal or third party information between them in the context of marital disputes especially for maintenance purposes.
- The PIOs cannot reject the request for such information, if filed by spouses, on the ground of Section 8(1)(j) saying it is personal information, because the protection of privacy is overridden by the huge public interest in maintaining wives, as provided in the proviso to exception 8(1)(j). The larger public interest in maintenance of wives and children, prevention of domestic violence, etc., for the purposes of the disclosure of such information, which was strongly established by the Delhi High Court in two landmark judgments referred above.
- The information related income details in the context of non-maintenance of the spouse, becomes the life related information which should be given within 48 hours according to proviso to Section 7(1) of RTI Act, 2005.
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