Upsc vs Rk Jain
2012 Latest Caselaw 4110 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                  Judgment reserved on: 17.01.2012

%                 Judgment delivered on: 13.07.2012


+      W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay)

       UPSC                                             ..... Petitioner
                              Through:   Mr. Naresh Kaushik & Ms. Aditi
                                         Gupta, Advs.

                         Versus


       RK JAIN                                           ..... Respondent
                              Through:   Mr. Prashant Bhushan & Mr.Pranav
                                         Sachdeva, Advs.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI


                                  JUDGMENT

VIPIN SANGHI, J.

1. The present writ petition is directed against the decision of the

Central Information Commission (hereinafter referred to as the "CIC")

dated 12.01.2011 passed in Appeal No. CIC/WB/A/2009/001004- SM,

preferred under Section 19 of the Right to Information Act, 2005,

(hereinafter referred to as the "Act") whereby the petitioner has been

directed to provide the relevant records in its possession as sought by

the Respondent herein.

2. The respondent by an application filed under Section 6 of the

Act, sought the following Information from the petitioner:

"A. Please provide inspection of the records, documents, note sheets, manuscripts, records, reports, office memorandum, part files and files relating to the proposed disciplinary action and/or imposition of penalty against Shri G.S. Narang, IRS, Central Excise and customs Officer of 1974 Batch and also inspection of records, files, etc., relating to the decision of the UPSC thereof. Shri G.S. Narang is presently posted as Director General of Inspection Customs and Central Excise.

B. Please provide copies of all the note sheets and the final decision taken regarding imposition of penalty/ disciplinary action and decision of the UPSC thereof."

3. The Central Public Information Officer (CPIO) of the petitioner,

however, declined to provide the same on the ground that the

information sought pertained to the disciplinary case of Shri G. S.

Narang, which was of personal nature, disclosure of which has no

relationship to any public activity or interest. It further stated that the

disclosure of the same may infringe upon the privacy of the individual

and that it may not be in the larger interest. The petitioner, therefore,

claimed exemption from disclosing the information under Section

8(1)(j) of the Act.

4. The Respondent, consequently, filed an appeal under Section 19

of the Act, before the 1st Appellate Authority of the Petitioner. The

Appellate Authority dismissed the Appeal on the same ground that the

information sought was exempted from disclosure under Section 8(1)(j)

of the Act.

5. Being aggrieved by the said decision, the Respondent preferred

an appeal before the CIC. Setting aside the decision of the „First

Appellate Authority‟, the CIC held as follows:

"4. After carefully considering the facts of the case and the submissions made by both parties, we are of the view that the CPIO was not right in denying this information. As far as the UPSC is concerned, the Respondent informed, it receives references from the Ministries and Departments in disciplinary matters to give its comments and recommendations on individual cases. In this case too, the UPSC had been consulted and that it had offered its comments and views to the Government. Whatever records it holds in regard to this case will have to be disclosed because this cannot be classified as personal information merely on the ground that it concerns some particular officer. Our attention was drawn to a Division Bench ruling by the High Court of Kerala in the WA No. 2781/2009 in which the Court had held that the information sought by an employee, from his employer, in respect of domestic enquiry and confidential reports of his colleagues would not amount to personal information as provided under Section 8(1)(j) of the Right to Information (RTI) Act. In other words, information regarding the disciplinary matters against any employee cannot be withheld by claiming it to be personal Information.

5. In the light of the above, we direct the CPIO to invite the Appellant on any mutually convenient date within 15 working days from the receipt of this order and to show him the relevant records in the possession of the UPSC for his inspection. After Inspection, if the Appellant chooses to get the photocopies of some of those records, the CPIO shall provide the same free of cost." (emphasis supplied)

Petitioner's Submissions

6. The Petitioner assails the decision of the CIC, in the present writ

petition, on several grounds. The Petitioner submits that the

information sought by the Respondent at point „A‟ of his RTI application

is not with the Petitioner. It is stated by the Petitioner that the said

information relates to the actions of the concerned Ministry/

Department and as such no record thereof is available or held with the

Petitioner. As regards rest of the Information sought by the

Respondent, it is submitted that the same is exempt from disclosure

under Section 8(1)(e), 8(1)(g) and 8(1)(j) of the Act. The relevant

extract of Section 8 of the Act reads as follows:

"Section 8 - Exemption from disclosure of information

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--

x x x x x x x x x

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

x x x x x x x x x

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

x x x x x x x x x

(j) information which relates to personal information the disclosure of which has not 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;

x x x x x x x x x"

7. The Petitioner claims exemption under Section 8 (1)(j) of the Act

on the basis that the disclosure of the information sought would cause

unwarranted invasion of the privacy of the concerned charged officer.

The Petitioner also submits that disclosure would not serve any larger

public interest and would rather expose and make public- vulnerable

and sensitive information relating to third party(s). The petitioner

submits that the CIC erred in relying upon the decision of the Kerala

High Court in WA No. 2781/2009 titled Centre for Earth Science

Studies vs. Dr. Mrs. Anson Sebastian & the State Information

Commission.

8. It is submitted by the Petitioner that the information sought for

by the Respondent includes not only information that is personal to a

third party i.e. the charged officer, but also contains information

relating to the particular views and opinions of persons/ officers who

contributed to the disciplinary proceedings against the charged officer.

This opinion was given in trust and confidence and as such is held by

the Petitioner in its fiduciary capacity, and is thereby exempt under

Section 8(1)(e) of the Act. It is submitted that file notings pertaining to

disciplinary cases are exempt from disclosure under the aforesaid

section. To further his submission, the petitioner has placed reliance

upon the judgment of this Court in W.P. (C) No. 12367/2009 and LPA

No. 418/2010 titled Ravinder Kumar vs. Central Information

Commission & Ors., the judgment of the Supreme Court in Institute

of Chartered Accountants of India vs. Shaunak H. Satya and

others, (2011) 8 SCC 781, and; the decision of the CIC in Shri K.L.

Balbani vs. Directorate General of Vigilance, Customs & Central

Excise dt. 16.09.2009.

9. Further, it is submitted that the disclosure of such information

besides endangering the life and safety of the persons concerned, will

also disclose the assistance that was given by the officers during the

Disciplinary proceeding for enforcement of law. Consequently, it is

argued, that the disclosure of the information sought would be exempt

under Section 8(1)(g) of the Act.

10. The Petitioner contends that order of the CIC is unsustainable in

law in as much, as, it is contrary to the decisions of the concurrent

Benches of the CIC. Moreover, it has rendered its decision while this

Court is seized of a similar issue in W.P. (C) No. 13205/2009 titled

UPSC vs. C.L. Sharma.

Respondent's Submissions

11. The Respondent, on the other hand, has at the outset submitted

that the CIC has merely directed the disclosure of the records in

possession of the UPSC. It has not directed the Petitioner to procure

records from the concerned Ministries or Departments and then to

make them available to the Respondent for inspection.

12. The Respondent submits that the information directed to be

disclosed to the Respondent, by the Impugned order, is not exempted

under Section 8 (1)(e), 8(1)(g), or 8(1)(j) of the Act. It is further

submitted that the CPIO and the first Appellate Authority had merely

claimed exemption under Section 8(1)(j) of the Act, and that the

Petitioner cannot, at this stage, be permitted to introduce new grounds

by claiming exemption under Section 8(1)(g) and 8(1)(e) of the Act. It

is also contented that there is no fiduciary relationship involved in the

present case and the disclosure of information would not endanger the

life and safety of anyone. Hence, the information sought is not exempt

under Section 8(1)(e) and 8(1)(g) of the Act. It is also submitted that

the exemption under Section 8(1)(e) and (j) is not available as it would

be in the larger public interest to disclose the same.

13. As regards the exemption under Section 8(1)(j), it is submitted

by the Respondent that disclosure of the information permitted by the

impugned order relates to the public activity of public servants. It can,

by no stretch of imagination, be treated as personal information of a

Public Servant. The information sought is not personal information

relating to a third party, but is contained in the records of the UPSC

itself. It is further submitted that the disclosure of the information

sought is in the larger public interest, since the case not only relates to

serious irregularities committed in the administration of taxation cases

and adjudication of offence, but also involves different opinions given

by two public authorities, i.e. the Central Vigilance Commission and the

Petitioner on the basis of the same records, thereby making it

necessary to see whether same or different records were produced or

any part of the records were withheld from or by the Petitioner, and

also whether a proper method and procedure was adopted by the

Petitioner. It is contented that the disclosure would promote

transparency and accountability, thereby adding to the credibility to

the Petitioner itself.

14. The Respondent submits that the judgment of this Court in

Ravinder Kumar (Supra), relied upon by the petitioner, have no

applicability to the present case and that the CIC has rightly followed

the judgment of the Kerala High Court in Centre for Earth Science

Studies (Supra). It is also submitted that the mere pendency of some

similar matter before this Court would not preclude the CIC to decide

the appeal pending before it.

Discussion

15. The principal contention of the Petitioner, right from the stage

when the RTI application was considered by the CPIO up till the stage

of consideration of the Second Appeal before the CIC, was that the

information sought for by the Respondent is exempted from disclosure

under Section 8(1)(j) of the Act. Therefore, I proceed to deal with it

first.

16. The exemption under Section 8(1)(j) is available in respect of

„personal information‟ of an individual. For the exemption to come

into operation, the personal information sought:

(i) Should not have relation to any public activity, or to public

interest OR,

(ii) Should be such as to cause unwarranted invasion of the

privacy of the individual. However, the exemption is not

available in a case where larger public interest justifies

such disclosure.

17. The word „personal‟ means appertaining to the person; belonging

to an individual; limited to the person; having the nature or partaking

of the qualities of human beings, or of movable property. [See Black's

Law Dictionary, Sixth Edition].

18. The word „information‟ is defined in Section 2(f) of the Act as

meaning:

"any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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".

19. Therefore, "personal information" under the Act, would be

information, as set forth above, that pertains to a person. As such it

takes into its fold possibly every kind of information relating to the

person. Now, such personal information of the person may, or may not,

have relation to any public activity, or to public interest. At the same

time, such personal information may, or may not, be private to the

person.

20. The term "personal information" under section 8(1)(j) does not

mean information relating to the information seeker, or the public

authority, but about a third party. The section exempts from disclosure

personal information, including that which would cause "unwarranted

invasion of the privacy of the individual". If one were to seek

information about himself, the question of invasion of his own privacy

would not arise. It would only arise where the information sought

relates to a third party. Consequently, the exemption under Section

8(1)(j) is as regards third party personal information only.

21. Further, the personal information cannot be that of a "public

authority". No public authority can claim that any information held by

it is personal to it. There is nothing "personal" about any information

held by a public authority in relation to itself. The expression "personal

information" used in Section 8(1)(j) means information personal to any

"person", that the public authority may hold. For instance, a public

authority may in connection with its functioning require any other

person to provide information which may be personal to that person. It

is that information, pertaining to that other person, which the public

authority may refuse to disclose, if the information sought satisfies the

conditions set out in clause (j) of Section 8(1) of the Act, i.e., if such

information has no relationship to any public activity (of the person

who has provided the information, or who is the source of the

information, or to whom that information pertains), or to public

interest, or which would cause unwarranted invasion of the privacy of

the individual (unless larger public interest justifies disclosure). The

use of the words "invasion of the privacy of the individual", instead of

"an individual", shows that the legislative intent was to connect the

expression "personal information" with the word "individual".

22. Merely because information that may be personal to a third party

is held by a public authority, a querist does not become entitled to

access it, unless the said personal information has a relationship to a

public activity of the third person (to whom it relates), or to public

interest. If it is private informtaion (i.e. it is personal information which

impinges on the privacy of the third party), its disclosure would not be

made unless larger public interest dictates it. Therefore, for example,

a querist cannot seek the personal or private particulars provided by a

third party in his application made to the passport authorities in his

application to obtain a passport, merely because such information is

available with the passport authorities, which is a public authority

under the Act. The querist must make out a case (in his application

under Section 6 of the Act) justifying the disclosure of the information

sought on the touchstone of clause (j) of Section 8(1) of the Act.

23. Proceeding further, I now examine the expressions „Public

activity‟, „Public interest‟ and „Privacy of the individual‟ used in Section

8(1)(j) of the Act.

24. „Public activity‟ qua a person are those activities which are

performed by the person in discharge of a public duty, i.e. in the public

domain. There is an inherent public interest involved in the discharge

of such activities, as all public duties are expected to be discharged in

public interest. Consequently, information of a person which is related

to, or has a bearing on his public activities, is not exempt from

disclosure under the scheme and provisions of the Act, whose primary

object is to ensure an informed citizenry and transparency of

information and also to contain corruption. For example, take the case

of a surgeon employed in a Government Hospital who performs

surgeries on his patients who are coming to the government hospital.

His personal information, relating to discharge of his public duty, i.e.

his public activity, is not exempt from disclosure under the Act. Such

information could include information relating to his physical and

mental health, his qualifications etc., as the said information has a

bearing on the discharge of his public duty, but would not include his

other personal information such as, his taste in music, sport, art, his

family, his family background etc., which has no bearing/relation to his

act of performing his duties as a surgeon.

25. "Public interest" is also a ground for taking away the exemption

from disclosure of personal information. Therefore, a querist may seek

personal information of a person from a public authority in public

interest. The second half of the first part of clause (j) of Section 8(1)

shows that when personal information in respect of a person is sought,

the authority concerned shall weigh the competing claims i.e., the

claim for the protection of personal information of the concerned

person on the one hand, and the claim of public interest on the other,

and if "public interest" justifies disclosure, i.e., the public interest

outweighs the need for protection of personal information, the

concerned authority shall disclose the information.

26. For example, a querist may seek from the income tax

authorities- the details of the income tax returns filed by private

individual/juristic entity - if the querist can justify the disclosure of such

personal information on the anvil of public interest. The authorities

would, in such cases, be cautious to ensure that the ground of "public

interest" is not routinely used as a garb by busy bodies to pry on the

personal affairs of individual private citizens/entities, as it would be

against public interest (and not in public interest) to permit such

personal information of third parties to fall into the hands of anybody

or everybody.

27. At this stage, I may digress a little and observe that whenever

the querist applicant wishes to seek information, the disclosure of

which can be made only upon existence of certain special

circumstances, for example- the existence of public interest, the

querist should in the application (moved under Section 6 of the Act)

disclose/ plead the special circumstance, so that the PIO concerned

can apply his mind to it, and, in case he decides to issue notice to the

concerned third party under Section 11 of the Act, the third party is

able to effectively deal with the same. Only then the PIO/appellate

authority/CIC would be able to come to an informed decision whether,

or not, the special circumstances exist in a given case.

28. I may also observe that public interest does not mean that which

is interesting as gratifying curiosity or love of information or

amusement; but that in which a class of the community have a

pecuniary interest, or some interest by which their rights or liabilities

are affected. The expression "public interest" is not capable of a

precise definition and has not a rigid meaning and is elastic and takes

its colors from the statute in which it occurs, the concept varying with

the time and the state of the society and its needs. [See Advanced

Law Lexicon, Third Edition].

29. The second part of clause (j) of Section 8(1) appears to deal with

the scope of defence founded on the right of privacy of an individual.

The tussle between the right of privacy of an individual and the right of

others to seek information which may impinge on the said right of

privacy, is what the said clause seeks to address.

30. The right to privacy means the right to be left alone and the right

of a person to be free from unwarranted publicity. Black‟s Law

Dictionary says that the terms „right to privacy‟ is a generic term

encompassing various rights recognized to be inherent in concept of

ordered liberty, and such rights prevent government interference in

intimate personal relationship‟s or activities, freedoms of individual to

make fundamental choices involving himself, his family, and his

relationship with others. A man has the right to pass through this

world, if he wills, without having his picture published, his business

enterprises discussed, his successful experiments written for the

benefit of others, or his eccentricities commented upon by any means

or mode. It is based on the theory that everyone has the right of

inviolability of the person.

31. The "right to privacy", even though by itself has not been

defined by our Constitution and though, as a concept, it may be too

broad to define judicially, the Supreme Court has recognised by its

liberal interpretation that "right to privacy" is an integral part of the

right to personal liberty under Article 21 of the Constitution of India.

32. In Rajagopal vs. State of Tamil Nadu, AIR 1995 SC 264, the

Supreme Court had the occasion to comment on the origin, basis,

nature and scope of the right to privacy in India. Mr. Justice B.P. Jeevan

Reddy, referred to the earlier decision of the Supreme Court in Kharak

Singh and Ors. v. State of Uttar Pradesh and Ors., 1964 (1) SCR

332: AIR 1963 SC 129 and the decision in Gobind v. State of

Madhya Pradesh, 1975 (2) SCC 148: AIR 1975 SC 1378. In the later

case, Mathew, J., speaking for himself, Krishna Iyer and Goswami, JJ.

traced the origins of this right and also pointed out how the said right

has been dealt with by the United States Supreme Court in two of its

well-known decisions in Griswold v. Connecticut, [1965] 385 U.S.

479 : 14 L.Ed. 2d. 510 and Roe v. Wade, [1973] 410 U.S. 113. After

referring to Kharak Singh (supra) and the said American decisions,

the learned Judge stated the law in the following words:

"...privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test....

...privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characterstics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty....

There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such 'harm' is not constitutionally protectible by the State. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that

may reflect the values of their peers rather than the realities of their natures. [See 26 Stanford Law Rev. 1161, 1187]

The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.

The European Convention on Human Rights, which came into force on September 3, 1953, represents a valiant attempt to tackle the new problem. Article 8 of the Convention is worth citing [See "Privacy and Human Rights", Ed. AH robertson, p. 176]:

1. Every one has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others." (emphasis supplied)

33. Mr. Justice B.P. Jeevan Reddy, summarized the concept of right to

privacy as under:

"(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 offence should not further be subjected to the indignity of her name and the incident being publicised 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. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and the Parliament and Legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule." (Emphasis supplied)

34. It follows that the „privacy‟ of a person, or in other words his

„private information‟, encompasses the personal intimacies of the

home, the family, marriage, motherhood, procreation, child rearing and

of the like nature. „Personal information‟, on the other hand, as

aforesaid, would be information, in any form, that pertains to an

individual. Therefore, „private information‟ is a part of „personal

information‟. All that is private is personal, but all that is personal may

not be private. A person has a right to keep his private information, or

in other words, his privacy guarded from disclosure. It is this right

which has come to be recognised as fundamental to a person‟s life and

liberty, and is accordingly protected from unwarranted/unauthorised

invasion under the Act, and can be overridden only in „larger‟ public

interest.

35. The use of the expression "unwarranted" before "invasion of the

privacy of the individual" and the expression "larger" before "public

interest" needs attention. The use of "unwarranted", as aforesaid,

shows that the PIO, Appellate Authority or the CIC, as the case may be,

should come to a definite finding upon application of mind to all the

relevant considerations and submissions of the querist and the third

party - whose privacy is at stake, that the disclosure of the

information, which would cause invasion of the privacy of the

individual is warranted, in the facts of the case. He should, therefore,

come to the conclusion that even after application of the principle of

severability (contained in Section 10 of the Act), it is necessary to

disclose the personal and private information in larger public interest.

The expression "larger public interest" connotes that the public

interest that is sought to be addressed by the disclosure of the private

information, serves a large section of the public, and not just a small

section thereof. Therefore, if the information has a bearing on the

state of the economy; the moral values in the society; the

environment; national safety, or the like, the same would qualify as

"larger public interest".

36. Take for instance, a case where a person is employed to work in

an orphanage or a children‟s home having small children as inmates.

The employer may or may not be a public authority under the Act. That

person, i.e. the employee, has a background of child abuse, for which

he has undergone psychiatric treatment in a government hospital. A

querist could seek information regarding the medical and psychiatric

treatment undergone by the person concerned from the government

hospital where the person has undergone treatment, in larger public

interest, even though the said information is not only personal, but

private, vis-à-vis. the employee. The larger public interest in such a

case would lay in protecting the children living in the orphanage/

children‟s home from possible child abuse.

37. In light of the above discussion, the following principles emerge

for the exemption under Section 8(1)(j) to apply:

(i) The information sought must relate to „Personal

information‟ as understood above of a third party.

Therefore, if the information sought does not qualify as

personal information, the exemption would not apply;

(ii) Such personal information should relate to a third person,

i.e., a person other than the information seeker or the

public authority; AND

(iii) (a) The information sought should not have a relation to

any public activity qua such third person, or to public

interest. If the information sought relates to public activity

of the third party, i.e. to his activities falling within the

public domain, the exemption would not apply. Similarly, if

the disclosure of the personal information is found justified

in public interest, the exemption would be lifted, otherwise

not;

OR

(iii) (b) The disclosure of the information would cause

unwarranted invasion of the privacy of the individual, and that

there is no larger public interest involved in such disclosure.

38. Let us now examine the claim of exemption under Section 8(1)(j)

in the present case, in view of the aforesaid principles. The information

sought by the Respondent relates to the proposed disciplinary action

and/or imposition of penalty against Shri G.S. Narang, IRS, Central

Excise and Customs Officer of 1974 Batch and the

decision/recommendation of the Petitioner communicated to the

concerned Ministry.

39. The Petitioner in the present case, being a constitutional body

and thereby a "public authority" under the Act, cannot claim the

exemption of personal information qua itself and its officials under

Section 8(1)(j). Even otherwise, its act of tendering advice to the

concerned Ministry on matters relating to disciplinary proceedings

against a charged officer is in discharge of a public duty entrusted to it

by the law itself, and is thereby a public activity. Consequently, the

defence is also not available to the officers of the Petitioner with

respect to their acts and conduct relevant to the discharge of their

official duties.

40. The information sought, in the present case, also does not relate

to the privacy of the charged officer. Disciplinary inquiry of the charged

officer is with regard to the alleged irregularities committed by him

while discharging public duties and public functions. The disclosure of

such information cannot be regarded as invasion of his privacy.

41. Even otherwise, the disclosure of such information would be in

the larger public interest, keeping in view the object of the Act, which

is to promote transparency and accountability and also to contain

corruption. The preamble of the Act, inter alia, states:

"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order

to promote transparency and accountability in the working of every public authority,. .... .... ... And Whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And Whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; And Whereas it is necessary to harmonise these conflicting interest while preserving the paramountancy of the democratic ideal; ... ... ..."

42. This Court in LPA No. 501/2009 titled Secretary General,

Supreme Court of India vs. Subhash Chandra Aggarwal, dealing

with the concept of „Right to Information‟ under the Act observed as

under:

"30. Information is currency that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation. Information is basis for knowledge, which provokes thought, and without thinking process, there is no expression. "Knowledge" said James Madison, "will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it is but a prologue to farce or tragedy or perhaps both". The citizens‟ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world. " (emphasis supplied)

43. The Court, while explaining the importance and need of the

Right, referred to the following observation of the Supreme Court in

S.P. Gupta vs. Union of India, 1981 (Supp) SCC 87:

"65. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of government - an attitude and habit of mind. But this important role people can fulfill in a democracy only if it is an open government where there is full access to information in regard to the functioning of the government." (emphasis supplied)

44. After, having referred to a sea of judgments and scholarly

excerpts, the Division Bench of this Court held as follows:

"60. The decisions cited by the learned Attorney General on the meaning of the words "held" or "control" are relating to property and cannot be relied upon in interpretation of the provisions of the Right to Information Act. The source of right to information does not emanate from the Right to Information Act. It is a right that emerges from the constitutional guarantees under Article 19(1)(a) as held by the Supreme Court in a catena of decisions. The Right to Information Act is not repository of the right to information. Its repository is the constitutional rights guaranteed under Article 19((1)(a). The Act is merely an instrument that lays down statutory procedure in the exercise of this right. Its overreaching purpose is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to help the governors accountable to the governed. In construing such a statute the Court ought to give to it the widest operation which its language will permit. The Court will also not readily read words which are not there and introduction of which will restrict the rights of citizens for whose benefit the statute is intended." (Emphasis supplied)

45. It is clear from the above, that the thrust of the legislation is to

secure access to information under the control of public authorities in

order to promote transparency and accountability in the working of

every public authority, unless its disclosure is exempted under the Act.

The access to information is considered vital to the functioning of a

democracy, as it creates an informed citizenry. Transparency of

information is considered vital to contain corruption and to hold

Government and its instrumentalities accountable to the governed

citizens of this country.

46. The orders of the learned Single Judge and Division Bench of this

Court in Ravinder Kumar (Supra) have no relevance for a variety of

reasons. The order of the learned Single Judge, upholding the claim of

exemption under Section 8(1)(j) raised by the public authority- to the

disclosure of note sheets containing opinions and advices rendered by

officials in respect of departmental proceedings- on the ground that

the same was against public interest, had been made specifically in the

facts and circumstances of that case. Further, the order of the Division

Bench was an order dismissing an application for restoration of the

LPA. It was not an order on merits. There was no decision on any legal

proposition on merits rendered by the Court in the said order. Mere

prima facie observations of the Division Bench do not constitute a

binding precedent. The decisions in Ravinder Kumar (supra),

therefore, do not even otherwise apply in the facts of the present case.

47. Reliance placed, by the Petitioner, on Shri K.L. Bablani (supra)

is misplaced. Firstly, this is the view of the CIC and does not bind this

Court. What can, however, be relied upon are the reasons contained in

this decision to persuade this Court to form its view. The CIC held that

the file notings relating to vigilance matters, on the basis of which

administrative/disciplinary action has been taken may not be

disclosed, except upon demonstration of public interest, as it could

embarrass and put pressure on those making file notings regarding the

officer whose conduct is under comment.

48. The concerns expressed in, and which swayed the decision of the

CIC in Shri K.L. Balbani (supra) relied upon by the Petitioner, can be

met by resort to Section 10 of the Act. However, those concerns

cannot be a good reason to altogether deny information which,

otherwise, is not exempt from disclosure under the law. Consequently,

the defence set up by the petitioner, founded upon clause (j) of Section

8(1) is not tenable in this case.

49. The defences under Section 8(1)(e) and Section 8(1) (g) of the

Act would also be of no avail to the Petitioner in the present case. This

is so, not merely on account of it being an afterthought of the

Petitioner to raise the same, but also because they are untenable in

the facts of the present case.

50. The over-riding public interest involved in the present case, as

aforesaid, would render inoperative the exemption under Section

8(1)(e) of the Act. Even otherwise, the exemption under Section

8(1)(e) of the Act would not apply since the information sought by the

Respondent is not held by, or available with the petitioner in its

fiduciary capacity. The Supreme Court in CBSE vs. Aditya

Bandopadhyay, (2011) 8 SCC 497, laid down the test of determining

fiduciary relationship as follows;

"41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words 'information available to a person in his fiduciary relationship' are used in Section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body." (Emphasis supplied)

51. In the present case it cannot be said that the opinion /advice

tendered by the officers of the petitioner in respect of Sh. G.S. Narang

was on account of their position as that of a "beneficiary" and that the

position of the petitioner was that of a "trustee". The officers

concerned who were involved in the opinion/advice making process

acted in the discharge of their official/public duties. In any event, as

aforesaid, the interest of such an officer can be effectively and

sufficiently safeguarded by resort to Section 10 of the Act.

52. Reliance is placed by the petitioner, on the Judgment of the

Supreme Court in Institute of Chartered Accountants of India vs.

Shaunak H. Satya & Ors., (2011) 8 SCC 781. The Supreme Court, in

the said decision, while referring to the test laid down in the Aditya

Bandopadhyay (supra), observed as under:

"21. The instructions and 'solutions to questions' issued to the examiners and moderators in connection with evaluation of answer scripts, as noticed above, is the intellectual property of ICAI. These are made available by ICAI to the examiners and moderators to enable them to evaluate the answer scripts correctly and effectively, in a proper manner, to achieve uniformity and consistency in evaluation, as a large number of evaluators and moderators are engaged by ICAI in connection with the evaluation. The instructions and solutions to questions are given by the ICAI to the examiners and moderators to be held in confidence. The examiners and moderators are required to maintain absolute secrecy and cannot disclose the answer scripts, the evaluation of answer scripts, the instructions of ICAI and the solutions to questions made available by ICAI, to anyone. The examiners and moderators are in the position of agents and ICAI is in the position of principal in regard to such information which ICAI gives to the examiners and moderators to achieve uniformity, consistency and exactness of evaluation of the answer scripts. When anything is given and taken in trust or in confidence, requiring or expecting secrecy and confidentiality to be maintained in that behalf, it is held by the recipient in a fiduciary relationship." (Emphasis supplied)

53. The aforesaid observation of the Supreme Court in Institute of

Chartered Accountants of India (Supra) does not render support to

the contention of the Petitioner in claiming exemption from disclosing

the opinion/recommendations tendered by it to the Ministry. It is not

the case of the petitioner that the files notings containing the

opinions/views of its officers, and the ultimate final

opinion/recommendation tendered by it to the Ministry were

confidential or secret.

54. It is pertinent to note that there is no bar, per se, to the

furnishing of opinions and advices in response to an application under

the Act. The Supreme Court in Khanapuram Gandaiah vs.

Administrative Officer, (2010) 2 SCC 1, while referring to Section 2

(f) of the Act, which defines „information‟, held as under:

"10. x x x x x x x x x

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions." (emphasis supplied)

55. Therefore, what emerges from the aforesaid is that

opinions/advices tendered/given by the officers (public officials) can be

sought for under the Act, provided the same have not been tendered in

confidence/secrecy and in trust to the authority concerned, i.e. to say-

in a fiduciary relationship. Since the petitioner has not been able to

set up the same in the present case, as aforesaid, the claim of

exemption under Section 8(1)(e) stands rejected.

56. A bare perusal of Section 8(1)(g) of the Act, makes it clear that

the exemption would come into operation only if the disclosure of

information would endanger the life or physical safety of any person or

would identify the source of the information or assistance given in

confidence for law enforcement or security purposes. The

opinion/advice, which constitutes the information in the present case,

cannot be said to have been given "in confidence for law

enforcement or security purposes", as aforesaid. Therefore, that part

of the clause would be inapplicable and irrelevant in the present case.

So far as the petitioner‟s submission- that the disclosure of Information

would endanger the life and safety of the officers who tendered their

opinion/advices- is concerned, the same in my considered opinion, as

aforesaid, in the facts of the present case, may be addressed- by resort

to Section 10 of the Act. The exemption under Section 8(1)(g) of the

Act, therefore, as claimed by the Petitioner, would be no ground for

disallowing the disclosure of the information (sought by the

Respondent) in the facts of the present case.

57. At this stage, I may take note of the fact that the petitioner

herein tendered to this court, after the judgment in the present case

had been reserved, decisions of the CIC- wherein information sought

by RTI applicants with regard to disciplinary proceedings of charged

officers, were held to be exempt from disclosure under Section 8(1)(h)

of the Act on the grounds that the disciplinary

proceedings/investigation were ongoing, and as such, disclosure of

information sought would impede the process of investigation.

58. The said argument cannot be availed of by the petitioner herein

as it was not raised at any stage (before and after the filing of the

present petition), and no opportunity was afforded to the respondent

herein to meet the same. Moreover, on the facts of this case, the

argument premised upon clause (h) of Section 8(1) cannot be

sustained. The information sought at point „B‟ relates to the note

sheets and final opinion rendered by the UPSC regarding imposition of

penalty/punishment on the charged offer. Such information, as is

evident from a plain reading, relates to notings and opinion post

investigation i.e., after the investigation is complete. Disclosure of

such information cannot, be any means whatsoever be held to

"impede the process of investigation" which could be raised only when

an investigation is ongoing. As such the exemption under Section

8(1)(h) of the Act also cannot be raised in by the petitioner in the

present case.

59. The petitioner‟s submission that the order of the CIC is

unsustainable in as much as it is contrary to the decisions of the

concurrent benches of the CIC is neither here nor there. The impugned

decision of the CIC had been made specifically in the facts and

circumstances of the present case. As regards the Petitioner‟s

submission that the CIC‟s decision (Impugned order) is unsustainable

since it was rendered while this Court was seized of a similar issue in

UPSC v. C.L. Sharma (supra)- is concerned, the same in my view is

entirely untenable. The pendency of the same issue in other cases

before this Court does not preclude the CIC from dealing with the

issues arising before it, unless there is a restraint on the CIC from

doing so. There is nothing on record to suggest that this Court has, in

UPSC v. C.L. Sharma (supra), put a blanket restraint on the CIC from

dealing with the claim of exemption under Section 8(1)(j) of the Act.

Therefore, the said submission also stands rejected.

60. In view of above, the decision of the CIC is upheld, subject to the

modification that the petitioner may, examine the case with regard to

applicability of Section 10 of the Act, in relation to the names of the

officers who may have acted in the process of opinion formation while

dealing with the case of charged officer Sh.G.S. Narang.

61. The petition is accordingly disposed of. The interim order stands

vacated.

(VIPIN SANGHI) JUDGE JULY 13, 2012 SR/'BSR'