Gujarat High Court
Gujarat University vs M Sridhar Acharyulu (Madabhushi ... on 31 March, 2023
Bench: Biren Vaishnav
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9476 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT UNIVERSITY
Versus
M SRIDHAR ACHARYULU (MADABHUSHI SRIDHAR) & 3 other(s)
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Appearance:
MR. TUSHAR MEHTA, LD. SOLICITOR GENERAL WITH MR. RAJAT NAIR,
ADVOCATE WITH MR. KANU AGARWAL, ADVOCATE WITH MS
DHARMISHTA RAVAL(707) for the petitioner(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 3
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 4
MR. PERCY KAVINA, SENIOR COUNSEL WITH MR. AUM M KOTWAL(7320)
MR.P P CHANDARANA(7119) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 31/03/2023
CAV JUDGMENT
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
1 Rule returnable forthwith. Learned counsels
appearing for the respective respondents waive service of
notice of rule on behalf of the respective respondents.
1.1 The present writ petition has been filed by the
petitioner-Gujarat University seeking appropriate writ
and order for quashing of the order dated 29.04.2016
passed by the Central Information Commission (CIC) in
proceeding No. No.CIC/SA/C/2015/000275. The following
prayers have been made in the writ petition:
"(A) YOUR LORDSHIPS may be pleased to
admit and allow the present petition;
(B) YOUR LORDSHIPS may be pleased to
issue a writ of certiorari or any other writ in
the nature of certiorari, order or direction in
the nature of certiorari quashing and setting
aside the order dated 29.04.2016 passed in
Proceeding No. CIS/SA/C/2015/000275 by
respondent No.1 (Annexure-A);
(C) Pending the admission and final hearing of
the present petition, YOUR LORDSHIPS may be
pleased to stay order dated 29.04.2016 passed
in Proceeding No. CIC/SA/C/2015/000275 by
respondent No. 1 (Annexure-A).
(D) Any other and further reliefs as deemed fit
in the interest of justice may kindly be
granted."
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
2 The case of the petitioner, briefly stated is that
Information Commissioner [IC] of the Central Information
Commission [CIC] while hearing the Second Appeal No.
CIC/SA/C/2015/000275/2015 filed by a third party [Neeraj
Saxena] for supply of information about transportation
request of Electoral Photo Identity Card of Respondent
No.2, has passed the impugned 'adjunct order', whereby,
it has suo moto, taken up an oral request of Respondent
No.2; converted the same into an RTI application and
allowed the said application by directing disclosure of the
educational degree of the Prime Minister. The letter
written by the Respondent No.2 reads as under:
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C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
3 The grievance of the petitioner is that the
information which is directed to be given could not have
been ordered in view of the exemption contained under
Section 8 (1) (e) and (j) of the Right To Information Act,
2005 (hereinafter referred to as "RTI Act" for short). It is
the specific case of the petitioner that RTI Act is intended
to ensure transparency in "public functionaries" and is
not enacted to satisfy just curiosity of strangers. This
essential part becomes clear from section 8 (1) (e) and (j)
of the RTI Act which mandates disclosure of information
mentioned therein only on the condition stated therein
and only after the applicant satisfying and the authority
being satisfied about the existence of public interest in
such disclosure.
4 It is further the case of the petitioner that the CIC
without issuing notice to the petitioner and/or without
calling its reply, in a proceeding where no application
was filed by Respondent No 2 under Section 6(1) of the
Right to Information Act, 2015 [RTI Act] with the PIO of
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the petitioner and in a proceeding where the petitioner
was not even a party has passed the impugned adjunct
order directing the PMO to provide the specific number
and year of the degree to the petitioner and directed the
petitioner to make best possible search for the
information regarding the degrees in the name of "Mr.
Narendra Damodar Modi" in the year 1983 and provide it
to Respondent No 2.
5 It is the case of the petitioner that CIC could not
have orally considered the said request at the instance of
respondent No.2 and treated it as a deemed application
under the RTI Act merely on a tenuous plea that if
respondent no 2, who is also a constitutional authority,
has no objection in providing details of his personal
information, then on the same analogy there cannot be
any objection if the personal information in the form of
education qualification certificates of the Prime Minister,
Shri Narendra Damodardas Modi is disclosed and made
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public. The tenor of the letter reproduced hereinabove
indicates such a mind-set of the Respondent No.2
6 The petitioner has thus prayed before this court that
the order passed by the IC of the CIC is not only in
breach of exemption clause provided under Section 8(e)
and (j) of the RTI Act but is also violative of principles of
natural justice and is therefore liable to be quashed.
7 The orders recorded in the writ petition indicate that
the petition came up before this Hon'ble Court on
20.06.2016. However, on the said date this Court only
issued notice in the matter without granting any ad
interim relief. Aggrieved by the said order, the petitioner
filed LPA No.572/2016 before the Division Bench of this
Court whereby vide order dated 01.07.2016, the Division
Bench of this Court granted ad interim relief in terms of
para 7(b) of the Civil Application No.5675/2016 till
further orders.
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7.1 The said LPA was finally disposed of by the Division
Bench of this Court vide its final order dated 27.12.2016,
whereby, the Division Bench stayed the execution,
operation and implementation of the order dated
29.04.2016 passed in Proceeding No.
CIC/SA/C/2015/000275/2015 till final disposal of the
instant Special Civil Application. As recorded by the
Division Bench in its order 27.12.2016, the Respondent
No.2, during the disposal of the aforesaid LPA, had made
a request for expeditious disposal of the Special Civil
Application.
7.2 The petition could not be heard expeditiously due to
repeated adjournments sought by the parties on one
pretext or the other. When the matter was taken up on
02.02.2023 by this Court for final disposal, on the said
date a note was placed before this Court by the learned
counsel for Respondent No.2 seeking discharge. The
Court passed an order accordingly. A request was made
that appearance of Mr Aum Kotwal learned Advocate
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shall be filed. As the said matter was of the 2016 and
seven years had lapsed, this Court vide order dated
02.02.2023 made it explicitly clear that if the counsel
appearing for Respondent No.2 does not enter
appearance by next date of hearing, the Court shall
proceed to hear the matter. In the meanwhile, Mr Aum
Kotwal filed appearance in the matter and accordingly
the matter was taken up for final hearing on 09.02.2023.
8 The matter was heard at length on 09.02.2023
wherein, detailed submissions were made by Shri Tushar
Mehta, learned Solicitor General Of India ("Solicitor
General of India" for short) assisted by Mr.Rajat Nair,
advocate with Mr.Kanu Agarwal, advocate with
Ms.Dharmishta Raval, learned advocate for the petitioner.
Mr. Percy Kavina, learned Senior Counsel appeared with
Mr. Aum Kotwal, learned advocate for respondent No.2
and Mr.Devang Vyas, learned ASG for respondent No.3.
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9 At the outset and before making submissions on
merits, Shri Mehta, learned Solicitor General of India has
pointed out that the degree in question is that of the
person holding the position of Prime Minster of India and,
therefore, in principle, the University has / had no
objection in making the degree public. He had
categorically invited the attention of this Court to the
following assertions made in Memo of the Letters Patent
Appeal:
"(g) The appellant states and submits that
in observance of the highest degree of
fairness and transparency it has on 9th May
2016 also uploaded, on its' website, the said
degree which clearly suggests that there is
no intention on the part of the Appellant, to
withhold any information. However despite
that the Respondents 2 & 4, are arbitrarily
seeking to litigate on the issue for
extraneous and oblique motives. It is
submitted that the appellant University
has conferred lacs of degrees to lacs of
students over the years. If this order is not
stayed the appellant will be flooded with
applications seeking such "third party
information" and therefore, the impugned
order deserves to be stayed till the question
raised in this petition is adjudicated."
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10 It is the contention of Shri Mehta, learned Solicitor
General of India that the said LPA was filed as back as on
30.06.2016, which was disposed of after hearing
Respondent No.2 herein and the aforesaid fact is not
disputed. Even on the date of hearing, ld. Solicitor
General of India ascertained from the website of the
petitioner and informed the Court that the said degree
stands displayed on the website of the petitioner.
10.1 He, however, urged that the manner in which a
request was made by the Respondent No.2 and the
manner in which the CIC passed the order, is a matter of
serious concern. He has emphatically submitted that
because of such irresponsible requests and mechanical
exercise of statutory powers thereafter that the very
heart and soul of Right to Information Act is destroyed
and there are individuals who abuse the provisions of the
Act either out of curiosity or at times even for some
oblique purpose and for achieving some collateral
objects. Shri Mehta, learned Solicitor General of India,
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thus, submits that he is arguing the matter on merits as
this question needs to be decided on behalf of all the
students of the country, even though for the case in hand,
the petitioner has displayed the degree of the Prime
Minster on its website and it has nothing to hide.
11 On merits of the matter Shri Mehta, learned
Solicitor General of India, appearing for the petitioner
made the following submissions:-
(i) That the information which is directed to be given
could not have been ordered in view of the exemption
contained under section 8 (e) and (j) of the RTI Act as
explained in detail hereunder. It is the specific case of
the petitioner that RTI Act is intended to ensure
transparency in "public functionaries" and is not enacted
to satisfy just curiosity of strangers. This essential part
becomes clear from section 8 (e) and (j) of the RTI Act
which mandates disclosure of information mentioned
therein only on the condition stated therein and only after
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the applicant satisfying and the authority being satisfied
about the existence of public interest in such disclosure.
(ii) That the CIC has passed the order dated 29.04.2016
in a complete arbitrary manner;
(iii) That the impugned order passed by the CIC is in
teeth of the exemption clause contemplated under section
8(e) and (j) of the RTI Act, and is thus, unsustainable in
the eyes of law;
(iv) That the information sought by Respondent No.2 and
the direction passed by the CIC are in complete
contravention of the provisions of Right to Information
Act, as the information sought to be disclosed, squarely
fall within the exemption clause provided under Section 8
(e) and (j) of the RTI Act.
(v) Shri Mehta, learned Solicitor General of India
further submitted that personal record including
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educational qualification etc. has been held to be
personal information and hence was exempted from
disclosure under section 8(j) of the RTI Act. He further
submitted that disclosure of such educational
qualification to Respondent No.2 had no relation or even
a remote nexus to any public activity or interest
discharged by the Prime Minister and as such disclosure
of it would cause unwarranted invasion of privacy.
(vi) Mr. Mehta, learned Solicitor General of India has
extensively referred to the recent judgment of the
Constitution Bench of the Hon'ble Supreme Court of India
rendered in the case of Supreme Court of India s.
Subash Chandra Agrawal reported in (2020) 5 SCC
481 and relied upon the three concurring and
supplementing opinions of their lordships of the Hon'ble
Supreme Court, whereby, the terms "personal
information" and "information available in fiduciary
capacity" and the interplay of exemptions provided under
section 8 (e) and (j) vis-a-vis overwhelming public interest
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and the issue of transparency and accountability were
authoritatively settled by the Hon'ble Supreme Court.
(vii) In addition to Subash Chandra Agrawal judgment
(supra) heavy reliance was placed by Shri Mehta, learned
Solicitor General of India on para 26 of the judgment
rendered by the Hon'ble Supreme Court in R. Rajgopal
vs. State of Tamil Nadu [(1994) 6 SC 652] and para
479 of the 9-Bench judgment rendered by the Hon'ble
Supreme Court in K.S. Putuswamy vs. Union of India
reported in (2017) 10 SCC 1 to support his submission
that educational qualification and personal records
including degrees were part of personal information and
as such exempted under Section 8(j) of the RTI Act.
(viii) Mr. Mehta, learned Solicitor General of India,
further extensively referred to the judgment of the
Hon'ble Supreme Court rendered in Kerala Public
Service Commission vs. State Information
Commission reported in (2016) 3 SCC 417 and the
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judgment by the Hon'ble Supreme Court in the case of
Central Board of Secondary Education vs. Aditya
Bandhopadhya reported in (2011) 8 SCC 497 and ICAI
Vs. Shaunak H. Satya reported in (2011) 8 SCC 781 to
buttress his contention that:-
(a) educational qualification of a citizen of the
country - be it marks, degrees or other
qualification is personal information of
that citizen, dissemination/disclosure of
which to such third party stranger is
constitutionally protected under the head
'Right of Privacy';
(b) Such information is held by universities,
examining board etc. whether public body
or not in fiduciary capacity; and
(c) Since such personal information is held by
petitioner- University in fiduciary capacity,
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as such, there is a specific embargo under
the provisions of the RTI Act in respect of
disclosure of the same to a third party
stranger for the reason that said
information is neither relatable to
transparency and accountability in public
administration nor there exists any other
facet of overwhelming public interest for
disclosure of such information to a third
party stranger. In this regard, Mr. Mehta
has also pointed out the decision in
respect of position prevailing in other
jurisdictions also and has submitted that
the educational information of an
individual is exempted from disclosure in
United States of America and United
Kindgom.
(ix) Mr. Mehta, learned Solicitor General of India has
further submitted before this court that the educational
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degree of the Prime Minister was available to the
petitioner-Gujarat University in a fiduciary capacity and
there was no larger public interest either pleaded or
proved by the Respondent No.2 warranting disclosure of
the said information. Mr. Mehta learned Solicitor General
of India submitted that the term 'overwhelming public
interest' is not a matter of supposition or conjecture. The
said term is a 'matter of fact' which has to be pleaded,
proved and a finding has to be recorded containing
convincing reasons.
(x) On the point of locus Shri Mehta, learned Solicitor
General of India has submitted that being the custodian
of the educational certificates and documents of its
student, the provisions of RTI Act mandates the petitioner
university to keep the said documents in confidence in its
fiduciary capacity. Refering to the judgment rendered by
the Hon'ble Supreme Court in Aditya Bandhopadhya
and Shaunak H. Satya (supra), Mr Mehta submitted
that not only the statute but the judgment of the Hon'ble
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Supreme Court entrusted a solemn duty upon the
petitioner university to keep the said information in
confidence and prevent the same from unwarranted
disclosure to any third party. Shri Mehta, learned
Solicitor General of India submitted that the said
contention was not being urged because of peculiar facts
of this case but was urged on behalf of all the students of
the country whose educational documents are necessarily
required to be kept in confidence by universities across
the nation.
(xi) Shri Mehta, learned Solicitor General of India
further submitted that the information pertaining to the
educational qualification of the Prime Minister and the
copies of the degree were already available in public
domain. He submitted that the digitised version of the
said degrees of the Prime Minister was not only available
on social media websites and news portals but the same
was also officially webhosted by the petitioner University
on its own official website. As such, the argument made
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by Respondent No.2 that the certificates or educational
qualification of the voter were not available for public
perusal, was incorrect.
(xii) On the tone and tenor of the impugned order passed
by CIC Mr. Mehta learned Solicitor General of India has
vehemently submitted that it was impermissible for the
CIC to suo moto take oral request of Respondent No.2 as
a representation/application before itself and pass an
'adjunct order' in a proceeding filed by a third person
seeking information pertaining to Respondent No.2.
(xiii) Shri Mehta, learned Solicitor General of India also
submitted that the present proceedings was nothing but
an abuse of salutary provisions of RTI Act. He submitted
that merely because Respondent No.2 happened to be the
Chief Minister of a Union Territory, it was impermissible
for the CIC to entertain his oral request in a second
appeal where he was arrayed as a Respondent, to pass an
adjunct order directing the PMO to provide the serial
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number and exact year of the issuance of degree to the
Hon'ble Prime Minister and to the petitioner-University to
search out the same and hand it over to the Respondent.
(xiv) Shri Mehta, learned Solicitor General of India
further submits that authorities created under the Act
have only limited jurisdiction which is conferred upon
them by the Act under which authorities are constituted.
The CIC, while exercising statutory second appellate
powers, had no jurisdiction to take up the issues suo
motu as, such powers can be exercised only by
constitutional courts having the power of judicial review.
He submitted that the CIC which is the creature of a
statute is conferred with the jurisdiction to entertain any
such application only when an appeal by the first
appellate authority is rejected for erroneous reason. He
thus submitted that it was completely impermissible for
the CIC to suo motu entertain the oral request of
Respondent No.2 and pass an order in a second appeal,
without there being any RTI application under Section
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6(1) of the RTI Act to the PIO of petitioner-University, and
pass an order without hearing or even issuing notice to
the petitioner University
(xv) Mr Mehta Learned Solicitor General of India has
further submitted that under RTI Act, comprehensive and
detailed rules are provided which prescribes the format
in which the pleadings are to be made before the original
authority, the appellate authority and the second
appellate authority. He submitted that the said rules and
format are mandatory in nature to entertain any appeal,
application or complaint. He submitted that at either of
the stages the said rules of procedure cannot be given a
complete go bye just because of certain notions,
inhibitions and perception harboured by Information
Commissioner. He submitted that any order passed by the
Information Commissioner in wanton disregard of the
said rules of procedure would make it arbitrary and non-
est.
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(xvi) Shri Mehta further submitted that the impugned
order was riddled with contradiction and there was no
legal basis available with the Commission to pass the
direction as done in para 13 of the CIC's order. He
submitted that though at one point [para 8] the
Commission records that the educational degrees of
Prime Minister are already in public domain and further
at para 10 records that curiosity could not be equated
with public interest for the purpose of RTI Act as because
merely the "public is interested", does not mean that
disclosure of such information is in 'public interest'. He
further pointed out that the Commission had itself
recorded in the said para that no educational qualification
was prescribed for contesting election for any electoral
post under law or for election to the post of Prime
Minister or to Lok Sabha and the holding of such post
cannot be questioned on the point of educational
qualification. However, despite expressly recording the
same the Commission has proceeded to direct disclosure
of information on the ground that educational
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qualification related information about public authorities,
public servants or political leaders occupying the
constitutional positions is not hit by exception under
Section 8 of the RTI Act. Mr Mehta has therefore
submitted that the decision of the Commission is sans any
legal reasoning but is based on theatrics and childish
curiosity.
(xvii) Mr Mehta, learned Solicitor General of India
has further vehemently submitted that merely because a
citizen holding the post of Chief Minister wants to know
the degree related information on Prime Minister is no
ground under RTI to supply personal information of Prime
Minister to the said Chief Minister. He however,
submitted that unfortunately the said ground is the only
ground which has prevailed upon the Commission while
passing directions to the PMO and the Gujarat University
to disclose the said information. Mr. Mehta therefore
submitted that the order thus passed by the CIC was
passed due to extraneous considerations and not as per
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the position of law expounded and settled by authoritative
pronouncement of the Hon'ble Apex Court.
(xviii) Mr. Mehta has also drawn attention of this
court on para 10 & 11 of the order dated 29.04.2016
whereby reference has been made by the Information
Commissioner to the comments of his late father and has
submitted that instead of adhering to the legal
parameters, certain extraneous considerations have gone
into a decision making process of the learned CIC. He
submitted that the learned CIC ought to have
differentiated between discharge of statutory jurisdiction
with overzealous attempt made by Respondent No.2 to
satiate his curiosity. Mr. Mehta has submitted that the
Commission ought not to have fallen prey to and/or ought
not have ventured into political thicket but ought to have
restricted itself to the limited jurisdiction which has been
conferred on the Commission under the provisions of RTI
Act. Mr. Mehta thus submitted that the decision of the
CIC which is premised on the extraneous factors i.e. the
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comments of his father and assembly debates regarding
illiteracy in the country and the danger it presents
coupled with the fact that the only reason provided by it
for disclosure of the information being that the same is
required by a citizen holding the post of Chief Minister is
unsustainable and liable to be dismissed. Mr Mehta has
thus submitted that the jurisdiction exercised by the CIC
in the present case by passing the impugned order was
ex-facie exercised in a most arbitrary, callous and
cavalier fashion and for extraneous reasons, for which the
order dated 29.04.2016 was liable to be set aside with
costs and strictures.
(xix) In the end Mr Mehta has vehemently submitted
before this court that recently a sordid phenomenon has
emerged in administration of the RTI Act, wherein, a
genre of vested interest groups have emerged who claim
themselves to be RTI activists. They flood the public
authorities across the spectrum with RTI applications,
claiming themselves to be the crusaders of transparency.
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Such vested interest groups and persons have created a
new public post for themselves and have anointed
themselves with the title of 'RTI Activists' as if it is a
profession by itself. They have visiting cards and display
boards hung outside their houses and offices naming
them as 'RTI Activists' and 'Public Interest Litigator'
through which they try to exert control in an attempt to
have dominance over the matters of public administration
and on public at large. RTI Applications are used as an
arm twisting weapon and for oblique purposes. He
submitted that this genre of people have polluted the
salutary spirit of RTI Act and have maligned the laudable
object which the RTI Act had sought to achieve. Shri
Mehta Ld. Solicitor General of India has categorised such
applicants in the following categories:
(a) RTI Applicants who file RTI petitions on
multiple occasions in order to seek redress for a
perceived wrong that had been done to them. Their
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major purpose is to obtain restitution for their own
wrongs.
(b) RTI Applicants who use the Right to
Information Act as an arm twisting weapon to exert
unethical pressure and extract illicit benefits
therefrom and others;
(C) RTI Applicants who use RTI Act to harass
public figures in order to create unnecessary
controversy to obtain publicity and garner news
headlines from that.
(xx) Referring to the above, Mr Mehta has submitted that
the present case manifestly falls under the last category,
wherein, unwarranted controversy was sought to be
created by the Respondent No 2 to generate media hype
and to derive publicity from the same at the cost of
someone else's reputation. He submitted that time has
come where such manoeuvres and motivated attempts
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ought to be called out and deprecated by constitutional
courts of the country, by preventing salutary provision of
RTI Act from being abused by such vested interest groups
or persons for their own hidden intrigues. He submitted
that a regime of costs in such situation would, to an
extent, remedy such a situation.
(xxi) In the aforesaid context, learned Solicitor General of
India submits that the provision of the RTI Act must be
strictly construed in case of categories mentioned in
clause (b) and (c) earmarked by him which is reproduced
hereinabove. It is only in cases which fall under category
(a) that a liberal construction to the RTI Act should be
given so that its avowed object of bringing transparency
and ensuring justice is achieved.
12 For the respondent No.2, Mr. Percy Kavina, learned
Senior Counsel made the following submissions:
(i) that the present petition was not maintainable at the
instance of petitioner-Gujarat University as there is no
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order against the petitioner which is a statutory body and
principally the order is only against the PMO. Shri Kavina,
Senior Advocate has submitted that the petitioner being a
statutory body cannot file a petition on behalf of Central
Information Commission of PMO against whom directions
have been issued. He submitted that petitioner being a
public authority is merely tasked to do certain compliances
and as such is not and cannot be held to be an aggrieved
party clothing it with locus to challenge the order of the
CIC.
(ii) Shri Kavina, learned Senior Counsel, submitted that
all information about the candidate contesting elections
must be available in public domain for it to be scrutinized
by public. He submitted that every voter has a
fundamental right to know the educational qualification of
a candidate which is clear from the provisions of
Representation of Peoples Act,1951 and Rules made
therein, more particularly Rule 4A and Form 26 of
Conduct of Elections (Rule) 1961. He submitted that thus
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every candidate has a duty to disclose the educational
qualification to subserve the right of information of the
voter and as such the application of Respondent No.2 was
maintainable under Right to Information Act.
(iii) Shri Kavina, learned Senior Counsel, further
submitted that once a student passes examination and
qualifies to secure a degree then such degree cannot be
treated as private or third party information. The said
degree certificate thus has to be considered as public
document generated by a public body and discharging its
duties as public and statutory authority. He submitted
that though mark-sheets or answer sheets can be held to
be private information, however, degree certificate of
final result would be a matter which ought to be
published in public domain.
(iv) Mr. Kavina, learned Senior Counsel, submitted that
a degree related information as available in the
permanent register of the University is accessible as a
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
public document, the same would fall within the statutory
provision of Sections 74 & 76 of the Evidence Act,1872
where under list of public documents and right to inspect
and obtain certified copy is provided. He thus submitted
that as per Sections 74 & 76 of Evidence Act, a degree
issued by a University would come within the four
corners of public information withheld by a public officer.
(v) Mr. Kavina, learned Senior Counsel, further
submitted that the relationship between University and
student is primarily of contractual nature and thus is
fiduciary in nature. He submitted that the degrees are
thus not protected under the exception provided under
Section 8 (e) of the RTI Act.
ANALYSIS
Having considered the submissions made by the
Learned Counsels for the Respective parties, this Court
deems it appropriate to reproduce the relevant extracts
of the Order of the C.I.C under challenge. The same is as
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
under:
"6. Meanwhile, in the response, Mr Kejriwal
raised a demand for information about Prime
Minister Narendra Modi's educational
qualifications referring to Hans Raj Jain case, in
which complaint about Information of Mr Modi's
graduation was a subject matter. He stated that
while CIC wanted Mr Kejriwal's Information to
be given, CIC was obstructing the Information
about degrees of Mr. Mod, the Prime Minister.
He expressed surprise over this and also
doubted objectivity of the Commission
7. Hence, the Commission considers the
response of Mr Kejriwal, the Chief Minister of
Delhi, as application under RT in his capacity as
a citizen.
8. The educational qualifications related
Information about public authority or public
servant or political leader occupying
constitutional position is not hit by any
exception under Section 8 of RTI Act. It cannot
be stated as personal or private information
also. In fact, the information about educational
degrees of Prime Minister is already in public
domain. It is a matter of profuse reporting in
print, electronic and social media. In an
Interview to a senior journalist, Mr Rajiv Shukla,
Mr Narendra Modi explained that he completed
High School and on the advice of an elderly
personality he obtained degree and PG through
external examinations without stepping into the
colleges. (Clip relating to education,
https://www.youtube.com/watch?
y=yaDp8UPieVU (full interview
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
https://www.youtube.com/watch?v=shyXSvQW4
w).
9. This generated lot of curiosity among the
people, who expressed their feelings in various
social media and newspaper websites in the
form of comments. The curiosity cannot be
equated with public Interest. Just because the
public is interested in it, it does not mean that it
is in public interest. There Is no educational
qualification prescribed for contesting any
electoral position under law. The election to Lok
sabha, or Prime Ministership cannot be
questioned on the point of educational
qualification. Where there is a prescribed
educational qualification for a position, and its
existence was doubted, its disclosure will be in
public interest. That is not the point in this case.
10. Here I would like to recall the comment of
my father, Freedom Fighter, Late M. S. Acharya,
when Telugu University wanted his educational
qualifications as part of bio-data to draft a
citation to present Telugu Pratibha Purskaram
to him for being an eminent Telugu Journalist.
When asked what did you study? he took pride
in saying: "I studied "Raghu Vamsha' and
'Megha Dootha', 'Kumara Sambhava' of Maha
Kavi Kalidas". I said 'they are not degrees
offered by universities'. "So what, they give
better education than many degrees awarded by
Universities". His citation had finally referred to
those Mahakavyas as his qualifications.
11. During Constituent Assembly Debates, Mr.
H.V. Kamath noted the extent of illiteracy in the
country and the dangers it presented, and
expressed regret that the franchise itself had not
been restricted on grounds of literacy.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
Alladi Krishnaswamy Ayyar noted: "More than
any other provision in the Constitution. I should
think the boldest step taken by this Assembly is
in the matter of universal adult suffrage with a
belief in the common man and in his power to
shape the future of the country." Subsequently,
during the final debates on 23rd November
1949, he observed that "in spite of the ignorance
and liliteracy of the large mass of the Indian
people, the Assembly has adopted the principle
of adult franchise with an abundant faith in the
common man and the ultimate success of
democratic rule and in the full belief that the
introduction of democratic government on the
basis of adult suffrage will bring enlightenment
and promote the well-being, the standard of life,
the comfort and the decent living of the common
man. The principle of adult suffrage was adopted
in no lighthearted mood but with the full
realisation of its implications. If democracy is to
be broad based and the system of governments
that is to function is to have the ultimate
sanction of the people as a whole, in a country
where the large mass of the people are illiterate
and the people owning property are so few, the
introduction of any property or educational
qualifications for the exercise of the franchise
would be of the principles of democracy.. This
Assembly deserveds on adopting the principle of
adult suffrage and be stated that never before in
the history of the world has such experiment
been so boldly undertaken."
Not prescribing the educational (degree based)
qualification for contesting electoral offices is
one of the great features of Indian Democracy.
What needed is education not degree.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
12. However, when a citizen holding. the
position of chief Ministership wants to know the
degree related information of the Prime
Minister, it will be proper to disclose.
13. Hence, the, Commission requires the PMO
to provide specific number and year of the
degree and PG degree to the Delhi University
and the Gujrat University offices so that It will
be easy for them to search and provide any
documents relating to it. The Commission
directs the PIOs of Delhi University and Gujarat
University Ahmadabad to make best possible
search for the information regarding degrees in
the name of "Mr Narendra Damodar Modi" in
the year 1978 (Graduation in DU) and 1983
(Post Graduation in GU) and provide it to the
appellant Mr Kejriwal, as soon as possible. (The
time limit is not prescribed keeping in view the
difficulty, in searching without specific
number.)"
13 This court finds that the question of whether education
qualifications are personal information or not is no more res-
integra and already stands authoritatively settled by the
Constitution Bench of the Hon'ble Supreme Court in the case
of Subhash Chandra Agarwal (Supra). In the said judgment
the Constitution Bench of the apex court has unequivocally
held that personal professional records, including
qualification, performance, evaluation reports, ACRs,
disciplinary proceedings, etc. are all personal information and
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
such personal information is entitled to protection from
unwarranted invasion of privacy. Para 70 of the said judgment
which is relevant for the present purpose reads as under:-
"70. 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."
14 The aforesaid judgments of the hon'ble Apex Court clearly
lay down that the education documents, including
degrees of an individual are personal information
disclosure of which would require an overwhelming
public interest. The said information would thus ipso
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
facto be covered by the exception clause provided under
section 8(j) of the RTI Act.
15 The meaning, purport and import of the exemptions
provided under section 8 of the RTI Act has been laid
down in the judgment of Subhash Chandra Agarwal
(Supra), in the following terms:-
"33. Sub-section (1) of Section 8 begins with a
non obstante clause giving primacy and
overriding legal effect to different clauses
under the sub-section in case of any conflict
with other provisions of the RTI Act.
Section 8(1) without modifying or
amending the term "information", carves
out exceptions when access to
"information", as defined in Section 2(f) of
the RTI Act would be denied. Consequently,
the right to information is available when
information is accessible under the RTI Act,
that is, when the exceptions listed in
Section 8(1) of the RTI Act are not
attracted. In terms of Section 3 of the RTI
Act, all citizens have right to information,
subject to the provisions of the RTI Act,
that is, information "held by or under the
control of any public authority", except
when such information is exempt or
excluded.
34. Clauses in sub-section (1) to Section 8 can
be divided into two categories : clauses (a),
(b), (c), (f), (g), (h) and (i), and clauses (d),
(e) and (j). The latter clauses state that the
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
prohibition specified would not apply or
operate when the competent authority in
clauses (d) and (e) and the PIO in clause (j)
is satisfied that larger public interest
warrants disclosure of such information.
[ For the purpose of the present decision,
we do not consider it appropriate to decide
who would be the "competent authority" in
the case of other public authorities, if sub-
clauses (i) to (v) to clause (e) of Section 2
are inapplicable. This "anomaly" or
question is not required to be decided in
the present case as the Chief Justice of
India is a competent authority in the case
of the Supreme Court of India.] Therefore,
clauses (d), (e) and (j) of Section 8(1) of the
RTI Act incorporate qualified prohibitions
and are conditional and not absolute
exemptions. Clauses (a), (b), (c), (f), (g), (h)
and (i) do not have any such stipulation.
Prohibitory stipulations in these clauses do
not permit disclosure of information on
satisfaction of the larger public interest
rule. These clauses, therefore, incorporate
absolute exclusions."
XXX XXX XXX
"133. The exemptions to right to
information as noted above are contained
under Section 8 of the RTI Act. Before we
analyse the aforesaid provision, we need to
observe basic principles, concerning
interpretation of exemption clauses. There
is no doubt, it is now well settled that
exemption clauses need to be construed
strictly. They need to be given appropriate
meaning in terms of the intention of the
legislature."
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
16 Reference may also be made to concurring opinion
of Hon'ble The Chief Justice Dr. D Y Chandrachud,
wherein, the term "personal information" as appearing in
section 8 (e) of the RTI Act was interpreted and
elaborated. The relevant portion of the said judgment
reads as under: -
"G. Fiduciary relationship
236. In order to determine whether the Chief
Justice of India holds information with
respect to asset declarations of Judges of
the Supreme Court in a fiduciary capacity,
it is necessary to assess the nature of the
relationship and the power dynamics
between the parties. Frankfurter, J. of the
United States Supreme Court in Securities
& Exchange Commission v. Chenery
Corpn., while determining the question
whether officers and Directors who manage
a holding company in the process of
reorganisation occupy positions of trust,
stated :
"... But to say that a man is a fiduciary
only begins analysis; it gives direction
to further inquiry. To whom is he a
fiduciary? What obligations does he
owe as a fiduciary? In what respect
has he failed to discharge these
obligations? And what are the
consequences of his deviation from
duty?"
237.Black's Law Dictionary, defines "fiduciary
relationship" thus:
"A relationship in which one person is
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
under a duty to act for the benefit of
the other on matters within the scope
of the relationship. Fiduciary
relationships -- such as trustee-
beneficiary, guardian-ward, principal-
agent, and attorney-client -- require
an unusually high degree of care.
Fiduciary relationships usually arise in
one of four situations : (1) when one
person places trust in the faithful
integrity of another, who as a result
gains superiority or influence over the
first, (2) when one person assumes
control and responsibility over
another, (3) when one person has a
duty to act for or give advice to
another on matters falling within the
scope of the relationship, or (4) when
there is a specific relationship that has
traditionally been recognised as
involving fiduciary duties, as with a
lawyer and a client or a stockbroker
and a customer."
(emphasis supplied)
238. In Words and Phrases the term
"fiduciary" is defined:
"Generally, the term 'fiduciary' applies
to any person who occupies a position
of peculiar confidence towards
another... It refers to integrity and
fidelity... It contemplates fair dealing
and good faith, rather than legal
obligation, as the basis of the
transaction... The term includes those
informal relations which exist
whenever one party trusts and relies
upon another, as well as technical
fiduciary relations."
(emphasis supplied)
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
239. In Corpus Juris Secundum "fiduciary" is
defined thus:
"A general definition of the word
which is sufficiently comprehensive to
embrace all cases cannot well be
given. The term is derived from the
civil, or Roman law. It connotes the
idea of trust or confidence,
contemplates good faith, rather than
legal obligation, as the basis of the
transaction, refers to the integrity, the
fidelity, of the party trusted, rather
than his credit or ability, and has been
held to apply to all persons who
occupy a position of peculiar
confidence toward others, and to
include those informal relations which
exist whenever one party trusts and
relies on another, as well as technical
fiduciary relations.
The word 'fiduciary', as a noun,
means one who holds a thing in trust
for another, a trustee, a person
holding the character of a trustee, or a
character analogous to that of a
trustee, with respect to the trust and
confidence involved in it and the
scrupulous good faith and candor
which it requires; a person having the
duty, created by his undertaking, to
act primarily for another's benefit in
matters connected with such
undertaking. Also more specifically, in
a statute, a guardian, trustee,
executor, administrator, receiver,
conservator or any person acting in
any fiduciary capacity for any person,
trust or estate. Some examples of
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what, in particular connections, the
term has been held to include and not
to include are set out in the note."
240. In CBSE v. Aditya Bandopadhyay, a two-
Judge Bench of this Court while discussing
the nature of fiduciary relationships relied
upon several decisions and explained the
terms "fiduciary" and "fiduciary
relationship" thus : (SCC pp. 524-25, para
39)
"39. The term "fiduciary" refers to a
person having a duty to act for the
benefit of another, showing good faith
and candour, where such other person
reposes trust and special confidence
in the person owing or discharging the
duty. The term "fiduciary
relationship" is used to describe a
situation or transaction where one
person (beneficiary) places complete
confidence in another person
(fiduciary) in regard to his affairs,
business or transaction(s). The term
also refers to a person who holds a
thing in trust for another (beneficiary).
The fiduciary is expected to act in
confidence and for the benefit and
advantage of the beneficiary, and use
good faith and fairness in dealing with
the beneficiary or the things belonging
to the beneficiary. If the beneficiary
has entrusted anything to the
fiduciary, to hold the thing in trust or
to execute certain acts in regard to or
with reference to the entrusted thing,
the fiduciary has to act in confidence
and is expected not to disclose the
thing or information to any third
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party."
(emphasis supplied)
241. In RBI v. Jayantilal N. Mistry, a two-
Judge Bench of this Court reiterated the
observations made in CBSE v. Aditya
Bandopadhyay and held that RBI did not
place itself in a fiduciary relationship with
other financial institutions by virtue of
collecting their reports of inspections,
statements of the banks and information
related to the business. It was held that the
information collected by the RBI was
required under law and not under the
pretext of confidence or trust: (Jayantilal N.
Mistry case [RBI v. Jayantilal N. Mistry,
(2016) 3 SCC 525: (2016) 2 SCC (Civ) 382],
SCC p. 563, para 64)
"64. The exemption contained in
Section 8(1)(e) applies to exceptional
cases and only with regard to certain
pieces of information, for which
disclosure is unwarranted or
undesirable. If information is available
with a regulatory agency not in
fiduciary relationship, there is no
reason to withhold the disclosure of
the same. However, where
information is required by mandate of
law to be provided to an authority, it
cannot be said that such information is
being provided in a fiduciary
relationship. As in the instant case,
the financial institutions have an
obligation to provide all the
information to RBI and such
information shared under an
obligation/duty cannot be considered
to come under the purview of being
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
shared in fiduciary relationship."
(emphasis supplied)
242. The Canadian Supreme Court in Robert L.
Hodgkinson v. David L. Simms, discussed
the term "fiduciary" thus:
" A party becomes a fiduciary
where it, acting pursuant to statute,
agreement or unilateral undertaking,
has an obligation to act for the benefit
of another and that obligation carries
with it a discretionary power. Several
indicia are of assistance in recognizing
the existence of fiduciary relationships
: (1) scope for the exercise of some
discretion or power; (2) that power or
discretion can be exercised
unilaterally so as to effect the
beneficiary's legal or practical
interests; and, (3) a peculiar
vulnerability to the exercise of that
discretion or power.
The term fiduciary is properly
used in two ways. The first describes
certain relationships having as their
essence discretion, influence over
interests, and an inherent
vulnerability. A rebuttable
presumption arises out of the inherent
purpose of the relationship that one
party has a duty to act in the best
interests of the other party. The
second, slightly different use of
fiduciary exists where fiduciary
obligations, though not innate to a
given relationship, arise as a matter of
fact out of the specific circumstances
of that particular relationship. In such
a case the question to ask is whether,
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given all the surrounding
circumstances, one party could
reasonably have expected that the
other party would act in the former's
best interests with respect to the
subject-matter at issue. Discretion,
influence, vulnerability and trust are
non-exhaustive examples of
evidentiary factors to be considered in
making this determination. Outside
the established categories of fiduciary
relationships, what is required is
evidence of a mutual understanding
that one party has relinquished its
own self-interest and agreed to act
solely on behalf of the other party. In
relation to the advisory context, then,
there must be something more than a
simple undertaking by one party to
provide information and execute
orders for the other for a relationship
to be enforced as fiduciary."
243. Dr Paul Finn in his comprehensive work
on Fiduciary Obligations, describes a
fiduciary as someone who has an obligation
to act "in the interests of" or "for the
benefit of" their beneficiaries in some
particular matter. For a person to act as a
fiduciary they must first have bound
themselves in some way to protect and
further the interests of another. Where
such a position has been assumed by one
party then that party's position is
potentially of a fiduciary. The Federal Court
of Australia in Australian Securities &
Investments Commission v. Citigroup
Global Markets Australia Pty. Ltd. (No. 4)
[Australian Securities & Investments
Commission v. Citigroup Global Markets
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
Australia Pty. Ltd. (No. 4), has held:
"The question of whether a fiduciary
relationship exists, and the scope of
any duty, will depend upon the factual
circumstances and an examination of
the contractual terms between the
parties... Apart from the established
categories, perhaps the most that can
be said is that a fiduciary relationship
exists where a person has undertaken
to act in the interests of another and
not in his or her own interests but all
of the facts and circumstances must
be carefully examined to see whether
the relationship is, in substance,
fiduciary... The critical matter in the
end is the role that the alleged
fiduciary has, or should be taken to
have, in the relationship. It must so
implicate that party in the other's
affairs or so align him with the
protection or advancement of that
other's interests that foundation exists
for the fiduciary expectation."
(emphasis supplied)
XXX XXX XXX
245. Other structural properties of the
fiduciary relationship are dependence and
vulnerability, where the beneficiary is
dependent upon the fiduciary to exercise
power and impact the practical interests.
Once a fiduciary relationship is established,
fiduciary duties include the duty of loyalty
and duty of care towards the interests of
the beneficiaries.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
246. From the discussion above, it can be
seen that a fiduciary is someone who acts
for and on behalf of another in a particular
matter giving rise to a relationship of trust
and confidence. A fiduciary relationship
implies a condition of superiority of one of
the parties over the other, where special
confidence has been reposed in an
individual to act in the best interests of
another."
17 The term personal information in the context of
Section 8(e) has been interpreted in the opinion of
Hon'ble Mr Justice Sanjeev Khanna in the following
terms: -
"Point 3 (B) : Right to privacy under Section 8(1)
(j) and confidentiality under Section 11 of
the RTI Act
47. If one's right to know is absolute, then
the same may invade another's right to
privacy and breach confidentiality, and,
therefore, the former right has to be
harmonised with the need for personal
privacy, confidentiality of information and
effective governance. The RTI Act captures
this interplay of the competing rights under
clause (j) to Section 8(1) and Section 11.
While clause (j) to Section 8(1) refers to
personal information as distinct from
information relating to public activity or
interest and seeks to exempt disclosure of
such information, as well as such
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information which, if disclosed, would
cause unwarranted invasion of privacy of
an individual, unless public interest
warrants its disclosure, Section 11 exempts
the disclosure of "information or record ...
which relates to or has been supplied by a
third party and has been treated as
confidential by that third party". By
differently wording and inditing the
challenge that privacy and confidentiality
throw to information rights, the RTI Act
also recognises the interconnectedness, yet
distinctiveness between the breach of
confidentiality and invasion of privacy, as
the former is broader than the latter, as
will be noticed below.
XXX XXX XXX
58. Clause (j) to sub-section (1) of Section
8 of the RTI Act specifically refers to
invasion of the right to privacy of an
individual and excludes from disclosure
information that would cause unwarranted
invasion of privacy of such individual,
unless the disclosure would satisfy the
larger public interest test. This clause also
draws a distinction in its treatment of
personal information, whereby disclosure
of such information is exempted if such
information has no relation to public
activity or interest. We would like to,
however, clarify that in their treatment of
this exemption, this Court has treated the
word "information" which if disclosed
would lead to invasion of privacy to mean
personal information, as distinct from
public information. This aspect has been
dealt with in the succeeding paragraphs.
XXX XXX XXX
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
64. While clause (j) exempts disclosure of
two kinds of information, as noted in para
58 above, that is, "personal information"
with no relation to public activity or
interest and "information" that is exempt
from disclosure to prevent unwarranted
invasion of privacy, this Court has not
underscored, as will be seen below, such
distinctiveness and treated personal
information to be exempt from disclosure if
such disclosure invades on balance the
privacy rights, thereby linking the former
kind of information with the latter kind.
This means that information, which if
disclosed could lead to an unwarranted
invasion of privacy rights, would mean
personal information, that is, which is not
having co-relation with public information.
XXX XXX XXX
69. Reference can also be made to Aditya
Bandopadhyay, as discussed earlier in
paras 42 and 43, where this Court has held
that while a fiduciary could not withhold
information from the beneficiary in whose
benefit he holds such information, he/she
owed a duty to the beneficiary to not
disclose the same to anyone else. This
exposition of the Court equally reconciles
the right to know with the rights to privacy
under clause (j) to Section 8(1) of the RTI
Act.
XXX XXX XXX
70. Reading of the aforesaid judicial
precedents, in our opinion, would indicate
that personal records, including name,
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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."
18 In the same opinion of Hon'ble Mr Justice Sanjeev
Khanna, his Lordship has interpreted the word "public
interest" in the context of RTI Act in the following terms:-
"88. The RTI Act is no exception. Section 8(1)(j)
of the RTI Act prescribes the requirement of
satisfaction of "larger public interest" for access
to information when the information relates to
personal information having no relationship with
any public activity or interest, or would cause
unwarranted invasion of privacy of the
individual. Proviso to Section 11(1) states that
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except in case of trade or commercial secrets
protected by law, disclosure may be allowed if
the public interest in disclosure outweighs in
importance any possible harm or injury to the
interest of the third party. The words "possible
harm or injury" to the interest of the third party
are preceded by the word "importance" for the
purpose of comparison. "Possible" in the context
of the proviso does not mean something remote,
far-fetched or hypothetical, but a calculable,
foreseeable and substantial possibility of harm
and injury to the third party.
XXX XXX XXX
91. Public interest in access to information
refers to something that is in the interest of the
public welfare to know. Public welfare is widely
different from what is of interest to the public.
"Something which is of interest to the public"
and "something which is in the public interest"
are two separate and different parameters. For
example, the public may be interested in private
matters with which the public may have no
concern and pressing need to know. However,
such interest of the public in private matters
would repudiate and directly traverse the
protection of privacy. The object and purpose
behind the specific exemption vide clause (j) to
Section 8(1) is to protect and shield oneself from
unwarranted access to personal information and
to protect facets like reputation, honour, etc.
associated with the right to privacy. Similarly,
there is a public interest in the maintenance of
confidentiality in the case of private individuals
and even Government, an aspect we have
already discussed.
XXX XXX XXX
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
95. The last aspect in the context of public
interest test would be in the form of clarification
as to the effect of sub-section (2) to Section 6 of
the RTI Act which does not require the
information seeker to give any reason for
making a request for the information. Clearly,
"motive" and "purpose" for making the request
for information is irrelevant, and being
extraneous cannot be a ground for refusing the
information. However, this is not to state that
"motive" and "purpose" may not be relevant
factor while applying the public interest test in
case of qualified exemptions governed by the
public interest test. It is in this context that this
Court in Aditya Bandopadhyay [CBSE v.
Aditya Bandopadhyay, (2011) 8 SCC 497: 6
SCEC 25] has held that beneficiary cannot be
denied personal information relating to him.
Similarly, in other cases, public interest may
weigh in favour of the disclosure when the
information sought may be of special interest or
special significance to the applicant. It could
equally be a negative factor when the "motive"
and "purpose" is vexatious or it is a case of clear
abuse of law."
[Emphasis Supplied]
19 Mr Mehta, learned Solicitor General of India has
also relied on the statutes and judgements passed by the
courts of United Kingdom and United States of America
to buttress his submission that the educational
qualification of an individual is a personal information
falling within the ambit of right of privacy and hence is
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
exempted from disclosure. In view of the authoritative
pronouncement on the said issue by the Apex Court of
this country, there is no need for this court to refer to and
place reliance on the judgement and statutes prevailing
in other jurisdictions. The limited scope of controversy
raised in the present petition is already covered by the
judgements rendered by Indian court and as such this
court finds no reason to rely on the judgments rendered
by the courts of foreign jurisdiction.
20 In so far as the issue of Universities/Boards etc.
holding and possessing the educational documents such
as mark-sheets and certificates of a student/citizen is
concerned, as per the law laid down by the Hon'ble
Supreme Court in Aditya Bandopadhyay, case (Supra)
and ICAI v. Shaunak H. Satya case (Supra), the apex
court has unequivocally held that the documents related
to educational qualifications are held in fiduciary
capacity, and therefore, would be exempted from
disclosure under Section 8(1)(e) of the RTI Act. The said
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
judgments have been quoted with approval in Subhash
Chandra Agarwal (Supra).
21 In the aforesaid judgements rendered by the Hon'ble
Apex Court in Subhash Chandra Agarwal case, Kerala
Public Service Commission, Aditya Bandopadhyay
case and ICAI v. Shaunak H. Satya case (Supra), it
has been unequivocally held that educational qualification
related documents are nothing but personal information
of the student. In the aforesaid judgments it has also been
held that there is a fiduciary relationship between the
examining body and the examinee and the exemption
contemplated under section 8(1)(e) of the RTI Act, would
operate in regard to giving access to the information held
in fiduciary relationship, to third parties. Once the
examination process is over, the University steps into the
shoes of examining body and answer sheets etc. becomes
a degree. This stage is one stage posterior to what was
considered by the Hon'ble Supreme Court in the
aforesaid judgments and as such, on the same analogy
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
and by applying the necessary implication doctrine, it is
held that the degrees of a student is kept by the
university in confidence and in fiduciary capacity.
22 In light of the aforesaid legal position laid down by
the Hon'ble Apex Court, this court holds that the
educational documents including degrees fall within
ambit of personal information of a citizen, disclosure of
which is exempted under Section 8(1)(j) of the RTI Act.
Further, the said information is held by the Universities
and Boards in fiduciary capacity on behalf of their
students which is again exempted under Section 8(1)(e)
of the RTI Act. That being so, the first contention of Shri
Kavina that once a student passes examination and
qualifies to secure a degree then such degree cannot be
treated as private or third party information and the said
degree certificate has to be considered as public
document generated by a public authority stands
rejected.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
23 Once it is held that the educational degrees of the
student attract the exemption contemplated under
section 8(1) (e) and (j), the next question which fall for
the consideration of this court is whether there is any
public purpose in disclosure of such information under
the provisions of RTI.
24 A perusal of the impugned order shows that the CIC
expressly noted that the information about educational
degrees of Shri Narendra Modi is already in public
domain and the same is merely a matter of curiosity in
public domain which cannot be equated with 'public
interest' because only if public is interested in perusing
certain information the same would not ipso facto fall
within the legal ambit of 'public interest' as contemplated
under section 8(e) and (j) of the RTI Act. The Commission
has also recorded that the said qualification or degrees
have no nexus on the constitutional post occupied by Shri
Narendra Modi. Further, the Commission has also
recorded that it was also not a case where there was a
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
prescription of minimum educational qualification for
holding the position of Prime Minister and where holding
of such minimum educational qualification by the Prime
Minister was in doubt. The Commission has also
recorded the fact that the information sought had no
remote nexus either with accountability or transparency
in discharge of function as the Prime Minister of the
country.
25 Thus the Commission in the impugned order has
itself come to the conclusion that the information sought
for was neither in public interest nor the same was
relatable to accountability or transparency in discharge of
public functions performed by Sh. Narendra Damodardas
Modi as Prime Minister of India.
26 However, despite expressly noting the aforesaid
factual aspects of the matter, the impugned order has
nowhere adjudicated the said facts in the context of
provisions of RTI Act. The Commission has merely given
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
a cryptic finding that educational qualification related
information to public authorities, public servants or
political leaders occupying constitutional position is not
hit by any exception under Section 8 of the RTI Act. No
reasons have been assigned by the Commission to come
to such a conclusion. Instead the only reason which this
Court strangely finds as the basis of the direction issued
by the Commission, is the assumption of the Commission
that when a citizen holding the post of Chief Minister
wants to know the degree related information of the
Prime Minister, it will be proper to disclose. The said
reasoning in the opinion of this Court is completely
unsustainable and outside the scope of jurisdiction vested
in the CIC under the provisions of RTI Act.
27 In the opinion of this court, once the Commission
came to the finding that the information sought for was
neither relatable to accountability and transparency in
public functions discharged by Shri Narendra
Damodardas Modi nor there was any larger public
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
interest in disclosure of the said information, as in, the
disclosure sought for was merely something which was of
'interest to the public' and a matter of political curiosity
and not something which was in the public interest, then
the Commission ought to have strictly applied the
exemptions contemplated under section 8(e) and (j) and
ought to have refused disclosure of the said information.
Instead the Commission has rendered an omnibus finding
that educational qualification related information about
public authorities, public servants or political leaders
occupying the constitutional positions is not hit by
exception under Section 8 of the RTI Act. This Court fails
to comprehend the justification or the legal foundation on
the basis of which the Commission has arrived at the said
finding. The said decision of the CIC, in the opinion of the
court is contrary to the legal position and is therefore set
aside. This court holds that in absence of any larger
public interest, which is neither pleaded nor raised, the
educational degrees of Sh Narendra Damodardas Modi
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
are exempted from disclosure under the provisions of
section 8(1)(e) and (j) of the RTI Act.
28 During the course of the hearing full opportunity
was once again given by this court to Respondent No. 2 to
place his justification, as to what larger public purpose
would be served in disclosing the educational degrees of
Shri Narendra Damodardas Modi to him through the RTI
route when the same was already available in public
domain. However, in response, the only justification
which came forward before this court was that all
information about the candidate contesting elections
must be available in public domain for it to be scrutinized
by public. This court can only record its disagreement
with the aforesaid justification placed by Respondent No.
2 when the degree is already in public domain. The said
reasoning is outside the ambit of concept of public
interest which has elaborately been pronounced in the
case of Subhash Chandra Agarwal (supra) as quoted
above. To borrow the words of their Lordships of the
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
Hon'ble Apex Court, this court finds that the respondent
has merely set up a case of "Something which is of
interest to the public" rather than setting up a legal case
of "something which is in the public interest". Further
this court agrees with the submission of Shri Mehta,
learned Solicitor General of India that the insistence of
the Respondent No. 2 to get the educational degree of
Prime Minister, Shri Narendra Damodardas Modi through
RTI route, when the same is already available in public
domain, also creates doubt on the bonafide and motive of
the Respondent No 2. In the opinion of the court, the
manner in which the request was made and considered by
the CIC, squarely falls within the observation made by the
Hon'ble Apex Court in para 95 of Subash Chandra
Agarwal, (Supra) whereby the honourable Supreme
Court has observed that in given cases "motive" and
"purpose" may be negative factor while applying the
public interest test in case of qualified exemptions
governed by the public interest test "when the "motive"
and "purpose" is vexatious or it is a case of clear abuse of
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
law". In absence of any valid ground of public interest,
this court finds that the application made by respondent
no 2 also fails to qualify the public interest test
contemplated in Subash Chandra Agarwal, (Supra) due
to ostensible motive and purpose which appears to this
court to be more politically vexatious and motivated,
instead of, being based on sound public interest
considerations.
29 Having held so, this court is of the opinion that
information i.e. educational degree of any individual can
be sought using RTI Act only when there is a pleading,
which is proved by the Applicant and thereafter
satisfaction is reached by the authority under the Act that
"public interest" requires disclosure of such information.
Such "public interest" as used in Section 8(1)(e) and (j)
would mean manifest public interest and not just curiosity
of the RTI Applicant. As explained in the judgment of the
Supreme Court, the term "public interest" would not
mean matters where "public is interested". There can be
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
certain matter where public may develop interest out of
curiosity. Such interest has nothing to do with "public
interest" which is the test required to be applied under
Section 8(1)(e) and (j). The present case neither pleads
nor establishes existence of any public interest. While
the Respondent No.2 was responding as to whether he
wants to declare his electoral photo identity card, he very
causally gave a conditional consent substantially saying
that if Chief Minister is called upon to disclose his
electoral photo identity card, Prime Minister should also
be asked to declare his degree.
29.1 The Respondent No.2 could have either agreed to
divulge such information or could have resorted to
Section 8(1)(e) and (j). The petitioner has made a
submission that such a course of action would be very
childish way of dealing with statutory proceedings
governed by statutory provisions, however, this court for
the moment is not going into the same.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
30 Coming to the next ground urged, this Court also
finds that there is no provision under the RTI Act whereby
the Commission is empowered to take suo motu
cognizance of any oral request made before it at an
appellate stage. This court is of the view that Commission
which is a mere creature of statute could have exercised
only such powers and functions which have been
expressly entrusted to it by the Statute. In absence of any
inherent or suo moto powers being vested in the
commission by the RTI Act, the Commission could not
have entertained an oral request and suo moto converted
it into an RTI application; that too at an appellate stage.
The Commission, in the opinion of this court, has, in a
very callous and cavalier manner entertained the oral
request of Respondent No.2 and has passed statutory
directions/orders completely trivialising the statutory
jurisdiction vested in it. Furthermore, reference made by
the Information Commissioner presiding the Bench of CIC
to his father's ideology and comment and the constituent
debate whereby a critique has been made for not
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
restricting adult franchise on the ground of illiteracy are
completely extraneous reasonings going into the root of
the decision making process adopted by the commission.
31 The above referred facts and law lead to inevitable
conclusion that the way and manner in which the CIC has
proceeded to give example of his father is more shocking
than surprising. It is unbelievable that an authority
exercising quasi-judicial powers at Second Appellate
stage would exercise the powers in such manner. With a
view to emphasise the anguish of the Court about the
manner of exercise of power by the CIC, it is relevant to
reproduce a part of the order impugned here:
"10. Here I would like to recall the
comment of my father, Freedom Fighter, Late
M. S. Acharya, when Telugu University
wanted his educational qualifications as part
of bio-data to draft a citation to present
Telugu Pratibha Purskaram to him for being
an eminent Telugu Journalist. When asked
what did you study? he took pride in saying: "I
studied "Raghu Vamsha' and 'Megha Dootha',
'Kumara Sambhava' of Maha Kavi Kalidas". I
said 'they are not degrees offered by
universities'. "So what, they give better
education than many degrees awarded by
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
Universities". His citation had finally referred
to those Mahakavyas as his qualifications."
32 Having held so this court also finds that while
treating the oral request of Respondent No.2 on an
application at the appellate stage, the Commission
transgressed its jurisdiction and embarked into an arena
of political thicket and ventured into judicial activism on
being overwhelmed by the fact that the information is
sought by a citizen occupying the post of Chief Minister
and thus is liable to be disclosed. This, in the opinion of
the Court, it is clear transgression of the jurisdiction
vested upon the Commission under the provisions of RTI
Act making the impugned order dated 29.04.2016
completely unsustainable in the eyes of law. In the
opinion of this court, it appears that the Information
Commissioner has lost sight of the distinction between
judicial commission and public forum. The observation
and the reasoning made by the information commission
compels this court to hold that such observations were
beyond the remit of judicial considerations which the
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
commission is required to adhere to while adjudicating
statutory second appeal under the provisions of RTI Act.
33 A lot of stress has been placed by Shri Kavina that
the right to vote of a citizen would inhere in itself, the
right to know about the educational qualifications of the
candidate. He has submitted before this court that the
provisions of Representation of Peoples Act, 1951 and the
Rules made thereunder, more particularly, Rule 4A read
with Form 26 of the Conduct of Elections (Rules) 1961
cast an obligation on the candidate to give information
about his educational qualification to the public at large
and hence when one statute i.e the Representation of
Peoples Act imposes such an obligation upon the
candidate to disclose his educational qualification, surely,
then deeming fiction such information would assume the
character of public information and would be available to
any citizen under RTI Act. The said contention in the
opinion of the court is only stated to be rejected. Firstly,
it is clear that Respondent No.2 is neither a voter nor a
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
candidate. No case in this regard has been set up by the
Respondent No.2. Secondly, the disclosure contemplated
under Form 26 of the Conduct of Election (Rules) 1961
only relates to mentioning of the details of candidate's
educational qualification in the affidavit. It nowhere
prescribes that the candidate is under a statutory duty to
firstly annex the said documents with Form 26 affidavit
and thereafter make it public for perusal of public at
large. A reading of the said form shows that the candidate
is also under an obligation to his or her criminal
antecedents, financial and other details. If the argument
of Respondent No 2 is accepted and taken to its logical
conclusion then it would mean that not only a candidate
is under statutory compulsion to make public his
educational certificates but also the documents
pertaining to his criminal antecedents such as charge
sheets, statements of witness etc. and documents
pertaining to his financial assets i.e. income tax returns,
certificates of fixed deposits etc. On that analogy it can
also be argued that if a candidate has mentioned the
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
details of assets held by him in Form 26 then he would
have to make public the title deeds of the said assets.
This in the opinion of the court is not the purport of Form
26 of the Conduct of Election (Rules) 1961. No such
analogy of the Representation of Peoples Act and the
rules framed thereunder is required to be imported while
interpreting the provisions of RTI Act, as it would mean
that the RTI Act is required to be interpreted differently
for those who are contesting elections and those who are
not. The submission of Shri Kavina in this regard is
therefore rejected.
34 Under the Constitution of India, Article 75 thereof
provides for "Other provisions as to Ministers". It says
that the Prime Minister shall be appointed by the
President and the Minister shall be appointed by the
President on the advice of the Prime Minister. No
educational qualifications have been provided for leaders
in order to be eligible for election. It is a well-known fact
that barring a few exceptions, most of the candidates
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
elected to the Parliament or the State Legislatures are
fairly educated even if they are not graduates or post
graduates. To think of illiterate candidates is based on a
factually incorrect assumption. The experience and
events in public life and the legislatures have
demonstrated that the dividing line between the well-
educated and less educated is rather thin. Much depends
on the character of the individual, in the sense of
devotion to the duty and the concern of the welfare of the
people. These characteristics are not the monopoly of the
well-educated persons.
34.1 The Supreme Court in the decision in the case of
P.U.C.L (supra), echoed such sentiments through the
words of Justice P.Venkatarama Reddi, J while negating
the constitutional validity of Sec.33 (B) of the
Representation of the Peoples Act. In para 122 of the
decision, the Court speaking through him held as under:
"122 The last item left for discussion is about
educational qualifications. In my view, the disclosure
of information regarding educational qualifications
of a candidate is not an essential component of the
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
right to information flowing from Article 19(1)(a). By
not providing for disclosure of educational
qualifications, it cannot be said that Parliament
violated the guarantee of Article 19(1)(a). Consistent
with the principle of adult suffrage, the Constitution
has not prescribed any educational qualification for
being Member of the House of the People or
Legislative Assembly. That apart, I am inclined to
think that the information relating to educational
qualifications of contesting candidates does not
serve any useful purpose in the present context and
scenario. It is a well-known fact that barring a few
exceptions, most of the candidates elected to
Parliament or the State Legislatures are fairly
educated even if they are not graduates or
postgraduates. To think of illiterate candidates is
based on a factually incorrect assumption. To say
that well-educated persons such as those having
graduate and postgraduate qualifications will be
able to serve the people better and conduct
themselves in a better way inside and outside the
House is nothing but overlooking the stark realities.
The experience and events in pubic life and the
legislatures have demonstrated that the dividing line
between the well educated and less educated from
the point of view of his/her calibre and culture is
rather thin. Much depends on the character of the
individual, the sense of devotion to duty and the
sense of concern to the welfare of the people. These
characteristics are not the monopoly of well-
educated persons. I do not think that it is necessary
to supply information to the voter to facilitate him to
indulge in an infructuous exercise of comparing the
educational qualifications of the candidates. It may
be that certain candidates having exceptionally high
qualifications in specialized field may prove useful to
the society, but it is natural to expect that such
candidates would voluntarily come forward with an
account of their own academic and other talents as a
part of their election programme. Viewed from any
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angle, the information regarding educational
qualifications is not a vital and useful piece of
information to the voter, in ultimate analysis. At any
rate, two views are reasonably possible. Therefore,
it is not possible to hold that Parliament should have
necessarily made the provision for disclosure of
information regarding the educational qualifications
of the candidates."
35 Shri Kavina, learned Senior Advocate has also
argued before this court that since the petitioner was not
heard, the matter can be remanded back to CIC for
considering the objections of the petitioner university and
also for complying with the provisions of section 11, if
required for the purpose of arriving at a decision as to
whether the said information pertaining to the
educational qualification in question is required to be
disclosed in larger public interest or not. This court is not
persuaded by the said submission of Shri Kavina. The
present matter is of 2016 and seven years have already
lapsed. An objection of such a nature was required to be
taken right at the inception. However, from the perusal of
the order passed by the division bench of this court in the
LPA proceedings as well as failure of respondent no 1 as
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well as respondent no 2 to file any response to the
petition till date, compels this court to observe that such
a stand is taken by the Respondent No. 2 only to keep the
matter alive.
35.1 The petition involves a neat legal question, therefore
and is argued fully by both sides and decided by this
court on merits as the question raised is only a question
of law. It will not be a sound exercise of discretion, while
exercising jurisdiction under Article 226 of the
Constitution of India to remand the matter after seven
years as such question of law can only be settled by a
constitutional court. The question of application of
exemption 8(1) (e) and (j) raised in the present Special
Civil Application has already been answered by this court
in favour of the petitioner. There are no other factual
controversies which are required to be gone into in the
present matter. Further detailed submission on law have
already been made by all the parties concerned. As such,
this courts finds no reason except the prayer of the
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Respondent No. 2 to remand the application back to the
commission. The said submission is therefore rejected.
36 At this juncture, reference is also required to be
made to the observations of the Apex Court in Aditya
Bandhopadhya (Supra) wherein the Apex Court in para
67 held:-
"Indiscriminate and impractical demands or
directions under the RTI Act for disclosure of
all and sundry information (unrelated to
transparency and accountability in the
functioning of public authorities and
eradication of corruption) would be
counterproductive as it will adversely affect the
efficiency of the administration and result in
the executive getting bogged down with the
non-productive work of collecting and
furnishing information. The Act should not be
allowed to be misused or abused, to become a
tool to obstruct the national development and
integration, or to destroy the peace, tranquillity
and harmony among its citizens. Nor 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 75% of the staff of public authorities
spends 75% of their time in collecting and
furnishing information to applicants instead of
discharging their regular duties. The threat of
penalties under the RTI Act and the pressure of
the authorities under the RTI Act should not
lead to employees of public authorities
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
prioritising "information furnishing", at the
cost of their normal and regular duties."
37 This court finds that the CIC while passing the
impugned order was well aware that what it was
directing was not a specific and certain but a fishing and
roving enquiry. The same is evident from the fact that
commission provided no time limit being fully cognizant
of the difficulty which would have been faced by the
petitioner in searching the information in question. The
Commission being a statutory authority ought to have
kept the aforesaid principles in mind while dealing with
the oral request of Respondent No 2 and ought not to
have made an exception in the present case by not even
refering to the same, when ordinarily, in every matter the
said principle is considered and kept in mind by the
commission while passing suitable directions. Treating
the present case an exception completely justifies the
submission of the petitioner that extraneous
considerations have gone into the decision making
process of the Commission.
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
38 The above referred discussion leads to an inevitable
conclusion that there has been an indiscriminate misuse
of the salutary provisions of the RTI Act in the present
case for the purposes not contemplated by the legislature
while enacting the said Act. In the present case, the
manner in which a request came from Respondent No.2
who was neither an Applicant nor an appellant and was
merely a respondent before the CIC leaves much to be
desired. Such requests cannot be made so casually
making mockery of the very intent and purpose of the RTI
Act.
39 The Respondent No.2, doubtlessly used an appeal
against him to kick start and trigger a controversy not
falling within the purview of the RTI Act for the objects
and purpose this court need not go into. Having found
both the requests by Respondent No.2 and the order by
the CIC being absolutely causal and having found that
neither such request was competent nor such an order
could have been passed and keeping in view the salutary
object of the RTI Act, this court thinks it fit to allow the
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present petition with a direction to Respondent No.2 to
pay costs.
40 Further despite the degree in question being put on
the website of the petitioner University for all to see and
despite this fact being made expressly clear with
precision in the pleadings before this Court and despite
the respondent never ever disputing the degree in
question either during the pendency of these proceedings
or even during final hearing, the respondent No.2 has
persisted with the matter. This is one more reason to
impose costs while allowing this petition.
41 Accordingly, petition is allowed. The impugned order
dated 29.04.2016 passed in proceeding No.
CIS/SA/C/2015/000275 is quashed and set aside.
Respondent No.2 is directed to pay costs of Rs. 25,000/-
to be deposited with Gujarat State Legal Services
Authority within a period of 4 weeks from the date of this
judgment. Rule is made absolute accordingly.
(BIREN VAISHNAV, J)
BIMAL
C/SCA/9476/2016 CAV JUDGMENT DATED: 31/03/2023
FURTHER ORDER
After pronouncement of the judgement / order,
learned Senior Counsel Mr.Percy Kavina appearing for
the respondent No.2 requests that respondent No.2 be
heard on cost as the same not having been done at the
time of argument. Such request is rejected.
Learned Senior Counsel Mr.Percy Kavina appearing
for the respondent No.2 has further requested for stay of
the order. Such request is also rejected.
(BIREN VAISHNAV, J)
BIMAL
