Reliance Industries Ltd. & Anr. vs The Chief Information ...
2012 Latest Caselaw 6647 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 21st November, 2012

+                   W.P.(C) 7248/2012 & CM No.18689/2012 (for stay)

       RELIANCE INDUSTRIES LTD. & ANR.         ..... Petitioners
                   Through: Dr. A.M. Singhvi, Sr. Adv. with Mr.
                            R. Sasiprabhu, Mr. Shivshankar, Mr.
                            Somiran Sharma, Advs.

                                      Versus

    THE CHIEF INFORMATION
    COMMISSIONER & ORS                 ..... Respondents

Through: Mr. Neeraj Malhotra, Adv. for R-

2,3 & 5.

Mr. Jatan Singh, CGSC with Mr. Tushar Singh, Adv. for UOI/R-6.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

CM No.18690/2012 (for exemption)

Allowed, subject to just exceptions.

The application is disposed of.

WP(C) No.7248/2012

1. This writ petition impugns the order dated 06.11.2012 of the Central

Information Commission (CIC) allowing the appeal preferred by the

respondent No.4 Mr. Arun Kumar Agarwal and directing the Public

Information Officer (PIO) of the respondent No.3 Securities and Exchange

Board of India (SEBI) to provide the information sought, to the respondent

No.4. Though as per the Roster of this Court, the writ petition challenging

the order of the CIC is to be heard by a Single Judge of this Court but the

same is listed before us because the petitioner has also sought a declaration

of "Sections 8(1)(d) and 8(1)(e) of the Right to Information (RTI) Act,

2005 as ultra vires, unconstitutional and violative of Article 14 of the

Constitution of India". We have as such first heard the senior counsel for

the petitioner on the vires of Sections 8(1)(d) and 8(1)(e) of the RTI Act

inasmuch as if we do not find any merit in the said challenge, the petition

so far as challenging the order dated 06.11.2012 of the CIC, is to be

considered by a Single Judge Bench of this Court.

2. Section 8 of the RTI Act details the information which is exempt

from disclosure. Clauses (d) and (e) of Sub-section (1) thereof exempts

from disclosure:

(i) Information including commercial confidence, trade secrets or

intellectual property, the disclosure of which would harm the

competitive position of a third party; and,

(ii) Information available to a person in his fiduciary relationship.

However both the aforesaid exemptions are subject to:

"unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information".

3. Though the petitioner who is opposing the disclosure claiming

exemption under Sections 8(1)(d) and 8(1)(e) supra, has sought declaration

of the entire Sections 8(1)(d) and 8(1)(e) as ultra vires but the senior

counsel for the petitioner has confined the challenge only to the „proviso‟

to the aforesaid exemptions. It is contended, that the „proviso‟ virtually

takes away the exemption provided for in Sections 8(1)(d) and 8(1)(e) and

is too widely worded leaving unguided discretion in the Competent

Authority to override the exemption by citing public interest, without

defining "larger public interest" and is thus arbitrary and violative of

Article 14 of the Constitution of India. It is alternatively contended that

the said „proviso‟ may be required to be "read down".

4. We are unable to find any merit in the challenge to the vires of the

„proviso‟ aforesaid to Sections 8(1)(d) and 8(1)(e). "Public interest" is an

expression which has found its way in several legislations and has been

repeatedly and elaborately interpreted by the Courts and the ground of

"public interest‟ being an amorphous, nebulous or vague and indefinite

concept held to be not available for assailing the provision. It thus cannot

be said that the use of the words "public interest" in the „proviso‟ vests

unguided discretion in the Competent Authority.

5. The words "in the interest of the general public" were in Maneka

Gandhi Vs. Union of India AIR 1978 SC 597 held to have a clearly well

defined meaning and not vague or undefined. Similarly in Premium

Granites Vs. State of Tamil Nadu (1994) 2 SCC 691 as well as in Orissa

Textile and Steel Ltd. Vs. State of Orissa (2002) 2 SCC 578, it was held

that "public interest" was a definite concept and exercise of power "in

public interest" though required to satisfy the test of reasonableness if

challenged, cannot be said to be vesting unguided power. In between, in

Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir (1980) 4

SCC 1, it was also held that the concept of public interest must, as far as

possible, receive its orientation from the Directive Principles which

embody par excellence the constitutional concept of public interest.

6. We may also notice that it is not always feasible and practical to lay

down exhaustive guidelines and which can cover all the contingencies.

Moreover, the guidelines can be gathered from the setting of the Act.

7. The RTI Act, as per its Preamble, is to fulfill the constitutional goal,

of establishment of a democratic republic, which requires an informed

citizenry vital to its functioning, and to set out the practical regime for

citizens to secure access to information under the control of Public

Authorities. The Preamble to the Act itself notices that revelation of

information may conflict with other public interest inter alia of

preservation of confidentiality of sensitive information and the Act

attempts to harmonize these conflicting interests "while preserving the

paramountcy of democratic ideal".

8. The „proviso‟ aforesaid to Sections 8(1)(d) and 8(1)(e) which carves

out an exception to the information exempt from disclosure, is one of the

facets of such harmonization of conflicting interest. While information

including commercial confidence, trade secrets or intellectual property or

made available to Public Authority in fiduciary relation, has in recognition

of the principle of "preservation of confidentiality of sensitive

information" been exempted from disclosure, but such exemption is not

available when "larger public interest warrants the disclosure of such

information". It thus cannot be said that the proviso taketh away what has

been given under Sections 8(1)(d) and 8(1)(e). Notice may be taken of the

recent judgment of the Apex Court in Central Board of Secondary

Education Vs. Aditya Bandopadhyay (2011) 8 SCC 497. Though there

was no challenge therein to the vires of the „proviso‟ aforesaid to Sections

8(1)(d) and 8(1)(e), but the Supreme Court nevertheless noticed that such

harmonization is essential for preserving democracy and that "it is difficult

to visualize and enumerate all types of information which require to be

exempted from disclosure in public interest" and that "the legislature has

however made an attempt to do so" and further that "the Courts and

Information Commissions enforcing the provisions of RTI Act have to

adopt a purposive construction, involving a reasonable and balanced

approach which harmonizes the two objects of the Act, while interpreting

Section 8 and the other provisions of the Act". The right to information

was held to be a cherished right intended to be a formidable tool in the

hands of responsible citizens to fight corruption and to bring in

transparency and accountability.

9. We have ourselves enquired from the senior counsel for the

petitioner as to what guiding principles possibly could have been laid down

or as to what should be the "reading down" of the proviso. No reply has

been forthcoming. Rather, it is stated that the argument of "reading down"

may not have been appropriate.

10. The Supreme Court recently in Namit Sharma Vs. Union of India

(W.P.(C) No.210/2010 decided on 13.09.2012) held, that mere

apprehension of abuse against some persons is no ground to hold a law

illegal or unconstitutional; that to raise a plea of Article 14, arbitrariness

has to be brought out in clear terms; that one of the known concept of

constitutional interpretation is that the legislature cannot be expected to

carve out scientifically perfect or logically complete classification which

may satisfy the expectations of all concerned and the Courts would respect

the classification dictated by the wisdom of the legislature; it was also

noticed that exemptions under Section 8 have been widely worded keeping

in mind the need to afford due protection to privacy, national security and

the larger public interest and a balance is to be struck between them.

11. As aforesaid, the expression "public interest" is a well understood

one. Moreover, a person claiming exemption thereunder, if faced with the

plea of public interest by the information seeker, has several foras available

to satisfy that there is no larger public interest warranting disclosure. The

RTI Act provides for two appeals, first to the Appellate Authority and then

to the CIC against the orders of the PIO and thereafter the remedy of

judicial review under Article 226 of the Constitution of India is also

available. All the said foras and the High Courts in exercise of powers of

judicial review are found to be competent to go into the question of public

interest.

12. As far back as in Gobind Vs. State of Madhya Pradesh (1975) 2

SCC 148 it was held that privacy / dignity claims can be denied when an

important countervailing interest is shown to be superior. It is thus not as

if the proviso aforesaid to Sections 8(1)(d) and 8(1)(e) provides for

anything new.

13. Accordingly, the challenge to the vires of Sections 8(1)(d) and

8(1)(e) of the RTI Act is rejected.

14. As far as the challenge to the order dated 06.11.2012 of the CIC on

merits is concerned, the same as aforesaid is to be considered by the learned

Single Judge. The senior counsel for the petitioner states that the time granted

by the CIC to SEBI for providing information is expiring tomorrow and

unless operation of the order of the CIC is stayed, the writ petition may

become infructuous. On this submission, the writ petition be listed before the

learned Single Judge as per Roster for consideration, on 22nd November,

2012.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 21, 2012 „gsr‟