….. delivered in the backdrop of the disclosure of
Information of Income tax Returns etc. of Public Servants / Ministers / MPs.
(1) Ordinarily, the information requested
under RTI Act, 2005, of the Service
records, Assets and Liabilities / Income Tax Returns of a Public Servant /
Ministers / MPs, are refused, whilst
invoking the ruling of the Apex Court given in the Girish Ramchandra Deshpande
case.
(2) It is my case that any such information
can lawfully be disclosed within the framework of sections 8(1)(j) and / or
8(2).
(3) It is observed that the PIOs / FAA / CIC
/ SIC sought to deny the info on the premise that (a) the info requested is a
personal information; and the info requested has no relationship to public
activity and public interest; (b) the disclosure of info would cause
unwarranted invasion to the privacy of the concerned individual; (c) there is
no larger public interest involved in the disclosure of info requested; (d) the
Apex Court have in the Girish Ramchandra Deshpande case have barred the
disclosure of Income Tax / Assets of Public Servant / Ministers / MPs etc. I
have not seen a case where the PIO / FAA /CIC have ever dealt with the
proposition of law, wherein the info may be disclosed, if the info can be
furnished to the Parliament or State Legislature.
(4) In the ruling of the Girish Ramchandra
Deshpande case, the Apex Court have not laid down any law in respect of purport
and ambit of section 8(1)(j) of the RTI Act, 2005, and therefore, the said
ruling has no precedent value as such; and the said ruling is confined to the
facts of the said case and therefore has no precedent value as such.
(5) It appears that PIOs / FAA / SIC / CIC
are entertaining the belief that the Apex Court, in their Ruling in Girish
Ramchandra Deshpande, have put complete embargo on the disclosure of the Income
Tax Returns. This is completely misreading of the said ruling.
(6) It is submitted that, in the said ruling,
the Apex Court have held that “Income Tax returns are a personal information”;
and thereafter, the Apex Court refused to direct the disclosure of information,
on the premise of the factual matrix of the said case, that is to say, the
Hon’ble Apex court refused on the premise of (a) the absence of element of
public activity and public interest having regard to the nature of information
sought; (b) unwarranted breach of privacy of the individual concerned having
regard to the nature of information sought; (c) the Petitioner therein has not
succeeded in establishing that the information sought for, is for the larger
public interest.
From the perusal
of Para 1 of the said judgment, it would reveal that the Hon’ble Court have not
posed any question of law to itself. Therefore, as such the Hon’ble Court had
no intention to interpret the mandate of section 8(1)(j);
From the perusal
of Para 10, it would reveal that proviso to section 8(1)(j) is not stated
therein. Therefore, it can safely be argued that the said judgment was passed
in ignorance of the said proviso.
In Para 12 of
the said judgment, the Hon’ble Court have inter alia, stated that –
§
the
info requested is a personal information;
§
the
performance of an employee/officer is primarily a matter between the employee
and the employer, which are governed by the service rules,
§
which
has no relationship to any public activity or public interest;
§
the
disclosure of which would cause unwarranted invasion of privacy of that
individual.
§
The Court have expressly observed to
say that, in a given case, if the Central Public Information Officer or the
State Public Information Officer of the Appellate Authority is satisfied that
the larger public interest justifies the disclosure of such information,
appropriate orders could be passed but the petitioner cannot claim those
details as a matter of right.
(7) It is further submitted that, had the
judgments of R. Rajagopal and ADR /PUCL discussed hereinafter, which dealt
with the issues privacy, public records and disclosure of information in
respect of Public servants, were brought to the knowledge of the Hon’ble Apex
Court, the Hon’ble Apex Court could have never arrived at the conclusion, as
recorded in Para 12.
(8) It is of fundamental importance to
understand that every request for information is a peculiar case in itself; and
the expression “Public interest” is not capable of precise definition, and no
hard and fast rules can be laid down as what constitutes Public interest. Its
ascertainment would always depend on the nature of information requested and
facts and circumstances of each case.
The law of Precedents
(9) I now crave leave to state some of the
law of precedents, which has immediate bearing on the instant write up. Article 141. Law declared by Supreme Court to be binding on all courts.— The law
declared by the Supreme Court shall be binding on all courts within the
territory of India.
a)
Broadly
speaking, every judgment of superior courts has three segments, namely, (i) the
facts and the point at issue; (ii) the reasons for the decision; and (iii) the
final order containing the decision. It is the ratio decidendi of a judgment
and not the final order in the judgment, which forms a precedent.
b)
What
is binding is the ratio of the decision and not any finding of facts. It is the
principle found out upon a reading of a judgment as a whole, in the light of
the questions before the Court that forms the ratio and not any particular word
or sentence... A judgment of the Court has to be read in the context of
questions which arose for consideration in the case in which the judgment was delivered.
c) It is not everything said by a judge while giving judgment, constitutes a
precedent. The enunciation of the reason or principle on which a question
before the court has been decided, is alone binding as a precedent.
d) A judgment should be understood in the light of the facts of that case,
and no more should be read into it than what it actually says.
e)
Every
judgment to qualify to be a precedent should invariably answer an issue of law;
and a decision is available as a
precedent only if it decides a question of law.
f) The only thing binding as an authority upon a subsequent judge is the
principle upon which the case was decided.
g) It is well
settled that a decision of the Apex Court based on specific facts does not
operate as a precedent for future cases. Only the principles of law that
emanate from a judgment of the Court, which have aided in reaching a conclusion
of the problem, are binding precedents within the meaning of Article 141.
h) The expression
“declared” in Article 141 of the Constitution is wider than the words “found or
made”. To declare is to announce opinion. Interpretation, ascertainment and
evolution are parts of the process, while that interpreted, ascertained or
evolved is declared as law.
That there is a Fiduciary relationship
(10) It is seen that an argument is advanced by
PIOs / FAA / SIC / CIC that Income Tax Dept holds financial information of the
People in fiduciary capacity. This is misconceived, for, the people submit
their financial information to the Income Tax Dept under a statutory
obligation, and thus the Income tax dept holds their financial information by
virtue of law.
Further, it may
be stated that, the fiduciary relationship presupposes some kind of discretion
/ choice between the concerned parties; wherein the submission of financial
information to the Income tax dept is a statutory obligation. The individual
has no choice of whether he wants to file the Income tax return, nor does it
presuppose any trust or faith he has in the Income tax department. He does it
because the law requires him to do this, and if he did not fulfill his
statutory duty he would have to bear the legal consequences.
(11) Coming to the real controversy – Whether
the information [Income Tax Returns of an Elected Representative who is a
Minister / Public Servant] can be disclosed, within the framework of Law, i.e.
section 8(1)(j) of the Right to Information Act [RTI], 2005. The expression
“framework of Law”, would certainly include the Law declared by Apex Court as
enshrined under Article 141 of the Constitution of India.
I proceed to
interpret, literally, the mandate of sections 8(1)(j) and 8(2). Section 8(1)(j)
and 8(2) reads as –
SECTION 8:
Exemption from disclosure of information:
(1)
Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,
(j) information
which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the Appellate
Authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that
the information which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.
(2)
Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any
of the exemptions permissible in accordance with sub-section (1), a public authority
may allow access to information, if public interest in disclosure outweighs the
harm to the protected interests.
The literal interpretation of the mandate of
sections 8(1)(j) and 8(2) –
1.
To
qualify for the exemption from disclosure, two ingredients should exist, and
under two circumstances, the information requested may be denied –
(a) Where the Information requested is (a) a
personal information; and (b) the Nature of info requested has apparently no
relationship to any public activity or interest;
or
(b) Where
the Info requested is (a) personal information; and (b) the disclosure of
information would cause unwarranted invasion of privacy of the individual
concerned.
However, information requested may be disclosed in
the following seven circumstances –
a)
Where
the Information requested is although a personal information; but it has
relationship to a public activity;
b)
Where
the Information requested is although a personal information; but it has
relationship to a public interest;
c)
Where
the Information requested is although a personal information; but the
disclosure of info may not cause unwarranted invasion to the privacy of the
concerned individual;
d)
Where
the Info requested is although a personal information; and Nature of info
requested has apparently no relationship to any public activity or public
interest; but where the LARGER PUBLIC INTEREST justifies the disclosure of such
information;
e)
Where
the Info requested is although a personal information; and the disclosure of
info may cause unwarranted invasion of privacy of the concerned individual, but
where the LARGER PUBLIC INTEREST justifies the disclosure of such information;
f)
Where
the Info requested is although a personal information; and the nature of info
requested has apparently no relationship to any public activity or interest;
and the Info requested is a personal information; and the disclosure of info
may cause unwarranted invasion of privacy of the individual; and where there is
apparently no LARGER PUBLIC INTEREST in the disclosure of the Info, YET, where
the information requested, can be furnished to the Parliament or to a State
Legislature, on their asking [Proviso to S.8(1)], the same can be furnished to
the citizen;
g)
Where
the Info requested is although a personal information; and the nature of info
requested has apparently no relationship to any public activity or interest;
and the Info requested is a personal information; and the disclosure of info
may cause unwarranted invasion of privacy of the individual; and where there is
apparently no LARGER PUBLIC INTEREST in the disclosure of the Info; YET, the
Info may be disclosed where the disclosure of information in the public
interest outweighs the harm claimed by the third party or by any other
individual claiming prejudice by reason of such disclosure [S.8(2)];
(12) The ruling of the Apex Court in the
landmark ADR / PUCL case [(2002) 5 SCC 294] assumes greatest significance in
the light of the nature of Info which is the subject matter of the present
write up. The said judgment throws light on the element of “Public interest” in
the disclosure of certain Information of Public Servants / Ministers / MPs
etc., and so also justifies the disclosure of Info on LARGER PUBLIC INTEREST
ground.
(13) In the ruling of Rajagopal case [(1994) 6
SCC 632], the Apex Court have stated what constitute “privacy” vis a vis a
privacy of a public servant.
(14) The ruling of the Bombay High Court in the
case of Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009,
delivered by Justice C.L. Pangarkar, dated 20.01.2009, the Hon’ble Court, inter
alia, have dealt with the proposition of law, wherein the info may be
disclosed, if the info can be furnished to the Parliament or State Legislature.
(15) I now crave leave to deal with each of the
above referred judgment, which dealt with the issues of (a) Public Interest (b)
Privacy (c) disclosure of info on the ground of furnishing of info to the
Parliament / State Legislature.
(16) The keen observations of the Apex Court in
the case of ADR /PUCL case [(2002) 5 SCC 294, [Relevant Paras 1, 2, 10, 30, 31, 32, 33, 34, 36, 39,
40, 48]; and
Para 7 of the Bombay High Court Ruling, stated hereinbefore, supplement the
argument, of the existence of the element of “Public Interest” and “Larger
Public Interest”, in the disclosure of Info, including of Income Tax Returns of
Public Servants / MPs / Ministers etc.
(17) In the backdrop of aforesaid submission,
it is further submitted that there is a general belief that Public servants,
politicians and elected representatives are corrupt and amass wealth at the
expense of the public. There is also a common belief that Income Tax
authorities do not check the IT returns of those who are elected with their
declared affidavits filed at the time of standing for elections. If this is
true, citizens will act as monitors. On the other hand if citizens’
apprehensions are not true, it would enhance the trust and respect for the
elected representative, which is necessary for a healthy democracy. This would
certainly be significant public interest to enhance the credibility and trust
in elected representatives and the Income tax department.
(18) The keen observations of the Apex Court in
the case of Rajagopal case [(1996) 6 SCC 632 [Relevant Paras 1, 9, 18, 26] and in the case of ADR /PUCL case [(2002) 5 SCC 294 [Relevant Para
41];
and Para 8 of the Bombay High Court Ruling stated hereinbefore, supplement the
argument, of the absence of the element of “Privacy” in the disclosure of
Information, including of Income Tax Returns of Public Servants / MPs /
Ministers etc.
(19) The Para 8 of the Ruling of the Bombay
High Court, referred hereinbefore, dealt with the proviso to section 8(1)(j)
which dealt with the proposition that the disclosure of information on the
ground of furnishing of information to the Parliament / State Legislature.
(20) The observations of the Apex Court in the
ADR /PUCL case [(2002) 5
SCC 294 [Relevant Para 42, 43, 44, 48] fortifies the proposition that “No
further purported harm could accrue to the Public Servant / MPs / Ministers
etc.”, in the disclosure of Information, including of Income Tax Returns of
Public Servants / MPs / Ministers etc.
(21) All the relevant Paras referred
hereinbefore of the concerned Apex court and Bombay High court rulings are
reproduced at the end of this write up.
(22) It is further submit that the Preamble and
the Statement of objects of the RTI Act, 2005, gives a vital clue that the said
Act was enacted with the spirit of ensuring transparency in the administration
of the nation; and all the aforesaid discussion may be viewed from the prism of
the Preamble and Statement of object of RTI Act. The Preamble and the
Statements of objects and Reasons runs as follows –
An Act to provide for setting out the practical
regime of right to information for citizens to secure access to information
under the control of public authorities, in order to promote transparency and accountability
in the working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for matters
connected therewith or incidental thereto
WHEREAS the Constitution of India has established democratic
Republic;
AND WHEREAS democracy requires an informed citizenry
and transparency of information which are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable to the governed;
AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for
furnishing certain information to citizens who desire to have it.
Misconceived interpretation that Information requested may also be denied u/s 11 of
the RTI Act
(23) An argument is also advanced that information
requested may also be denied u/s 11 of the RTI Act, 2005.
a)
It
is submitted that whenever any PIO is in receipt of an Application u/s 6 of the
Act, seeking information, the said PIO is, at the outset, expected to consider
if the information requested, is exempted as per the provisions of Sections 8
and/or 9 of the RTI Act. If the PIO comes to the conclusion that the
information requested is not exempted u/s 8 and/or 9, the PIO may disclose the
information.
b)
However,
where the PIO intends to disclose the information, but where the information
requested, has been supplied by a third party and is treated as confidential by
the said third party, the PIO is obliged to intimate to the concerned third
party of his intention to disclose the information.
c)
If
the third party objects to the disclosure of the information, the PIO is to
keep it in his mind his objections while taking a decision about disclosure of
the information requested.
d)
The
PIO is not obliged to accept every objection which has been raised by the
concerned third party, and PIO is obliged to keep in view such objections of the
third party; and these objections have to be tested at the mandate of sections
8 and / or 9 of the RTI Act. In other words, every objection raised by the
third party has to be tested at the touchstone of the provisions of sections 8
and/or 9 of the RTI Act.
e)
The
PIO may then decide to deny the information requested only if he is convinced
about the objections of the third party justifying that the information sought
is exempted as per the provisions of Section 8 and/or 9 of the RTI Act.
f)
The
RTI Act does not give veto power to the third party, but provides the third
party with an opportunity to raise his legitimate objections; and in case the
PIO decides to disclose the information despite the objections, the concerned
third party may prefer an Appeal against the decision of the said PIO, as per
the provisions of Section 11 (2) to 11 (4).
These express provisions 11(2) to 11(4) makes it clear that the third
party is not rendered remediless, in cases where PIO disagrees with the third
party’s objection in disclosure of information.
g)
The
expression “Where PIO intends to disclose information..” is guiding force to
deal with the Application. Further, the nature of objections, if any, of the
third party have to be justified in terms of the exemptions under Sections 8
and/or 9.
h)
Section
11(3) contemplates “decision” about the disclosure or non- disclosure of
information requested; and the PIO is obliged to inform the concerned third
party about his said decision. It may be noted that this sub-section (3)
contemplates only “decision” to disclose or not, and not the actual disclosure.
And therefore, there are adequate safeguards in the Act to protect the
interests of the third parties, who may prefer an Appeal, if their legitimate
objections are ignored by the concerned PIO.
i)
The
reading of section 7(7) of the RTI Act, 2005, clearly suggests that information
requested can be denied only u/ss 8 and / or of the Act.
j)
I
further say that while deciding any Application / Appeal received u/s 6, 19(1)
or 19(3) of the Act, the main issue before the PIO / 1st Appellate
Authority (FAA) and Commission is “Having regard to the nature of information
requested, and the grounds advanced by the Appellant, if any, whether
information can be furnished, at the touchstone of sections 8 and/or 9.
k)
While
dealing with RTI Applications involving the purported applicability of section
8(1)(j), while granting or refusing the disclosure of the information, the
issue is always of “subjective satisfaction” of the concerned PIO / FAA and the
Commission, and each of the concerned authority has every right to reach
appropriate conclusion, provided it records reasons for its said “subjective
satisfaction”.
l)
While
dealing with the cases of personal information or cases of third party
information, the concerned PIO, FAA and the Commissions are obliged to take
independent decision, while taking into consideration the larger public
interest involved in the disclosure of the information and the nature of the
objection raised by the third party.
m)
The
said authorities are obliged to deal with the grounds, if any, furnished by the
concerned Applicant / Appellant, and shall record their “satisfaction”, in the
form of reasons, for rejection or for allowing the furnishing of information.
n)
The
concerned authorities cannot merely reject the Application, based on the
objection raised by the third party, or reject the Application / Appeal, by
merely stating that no larger public interest is involved in the disclosure of
information requested.
o)
Every
request for information is a peculiar case in itself; and the expression
“Public interest” is not capable of precise definition, and no hard and fast
rules can be laid down as what constitutes Public interest. Its ascertainment
would always depend on the nature of information requested.
(24) In its recent ruling the Apex Court [(2012)
3 SCC 387] said –
Para 28: Now,
the interpretation of a legal provision and its application to a set of facts
are two different exercises requiring different approaches.
28.1:
"Interpretation" means the action of explaining the meaning of
something. For interpreting a statutory provision, the court is required to
have an insight into the provision and unfold its meaning by means of the
well-established canons of interpretation, having regard to the object,
purpose, historicism of the law and several other well-known factors. But, what
is important to bear in mind is that the interpretation of a legal provision is
always independent of the facts of any given case.
28.2:
"Application" means the practical use or relevance (of something to
something); the application of a statutory provision, therefore, is by
definition case related and as opposed to interpretation, the application or
non-application of a statutory provision would always depend on the exact facts
of a given case. Anyone associated with the process of adjudication fully knows
that even the slightest difference in the facts of two cases can make a world
of difference on the question whether or not a statutory provision can be
fairly and reasonably applied to it.
(25) Whereas I have tried to articulate the
mandate of section 8(1)(j) hereinbefore, taking clue from the aforesaid Apex
Court ruling, every Application / Appeal may accordingly deserves to be decided
while applying the mandate of law to the facts and circumstances bearing each
of the concerned Application / Appeal.
The observations in ADR /PUCL case [(2002) 5 SCC 294]
Para 1: Short but important question
involved in these matters is _ in a nation wedded to republican and democratic
form of government, where election as a Member of Parliament or as a Member of
Legislative Assembly is of utmost importance for governance of the country,
whether, before casting votes, voters have a right to know relevant particulars
of their candidates?
Para 2 Petitioner has also referred
Para 6.2 of the report of the Vohra Committee of the Government of India,
Ministry of Home Affairs, which reads as follows:-
"6.2 Like the Director CBI, the DIB
has also stated that there has been a rapid spread and growth of criminal
gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic
lobbies in the country which have, over the years, developed an extensive
network of contacts with the bureaucrats/Government functionaries at the local
levels, politicians, media persons and strategically located individuals in the
non State sector. Some of these Syndicates also have international linkages,
including the foreign intelligence agencies. In this context the DIB have given
the following examples _
(i) In certain States like Bihar,
Haryana and UP, these gangs enjoy the patronage of local level politicians,
cutting across party lines and the protection of Governmental functionaries.
Some political leaders become the leaders of these gangs, armed senas and over
the year get themselves elected to local bodies State Assemblies and the
national Parliament. Resultantly, such elements have acquired considerable
political clout seriously jeopardising the smooth functioning of the
administration and the safety of life and property of the common man causing a
sense of despair and alienation among the people;
(ii) The big smuggling Syndicates having
international linkages have spread into and infected the various economic and
financial activities, including havala transactions, circulation of black money
and operations of a vicious parallel economy causing serious damage to the
economic fibre of the country. These Syndicates have acquired substantial
financial and muscle power and social respectability and have successfully
corrupted the Government machinery at all levels and yield enough influence to
make the task of Investigating and Prosecuting agencies extremely difficult;
even the members of the Judicial system have not escaped the embrace of the
Mafia;
(iii) Certain elements of the Mafia have
shifted to narcotics, drugs and weapon smuggling and established
narco-terrorism networks specially in the States of J and K, Punjab, Gujarat
and Maharashtra. The cost of contesting elections has thrown the politician
into the lap of these elements and led to a grave compromise by officials of
the preventive/detective systems. The virus has spread to almost all the
centres in the country, the coastal and the border States have been
particularly affected;
(iv) The Bombay bomb blast case and the
communal riots in Surat and Ahmedabad have demonstrated how the India
underworld has been exploited by the Pak ISI and the latter's network in UAE to
cause sabotage subversion and communal tension in various parts of the country.
The investigations into the Bombay bomb blast cases have revealed expensive
linkages of the underworld in the various governmental agencies, political
circles, business sector and the film world".
Para 10: Mr. K.K. Venugopal, learned
senior counsel appearing on behalf of Election Commission exhaustively referred
to the counter affidavit filed on behalf of Election Commission. At this stage,
we would refer to some part from the said affidavit. It is stated that issue of
persons with criminal background' contesting election has been engaging the
attention of the Election Commission of India for quite some time; even
Parliament in the debates on 50 years of independence and the resolution passed
in its special Session in August, 1997 had shown a great concern about the
increasing criminalisation of politics; it is widely believed that there is
criminal nexus between the political parties and anti-social elements which is
leading to criminalisation of politics; the criminals themselves are now
joining election fray and often even getting elected in the process. Some of
them have even adorned ministerial berths and, thus, law breakers have become
law makers.
Para 30: Now we would refer to various
decisions of this Court dealing with citizens' right to know which is derived
from the concept of 'freedom of speech and expression'. The people of the
country have a right to know every public act, everything that is done in a
public way by the public functionaries. MP or MLAs are undoubtedly public
functionaries. Public education is essential for functioning of the process of
popular government and to assist the discovery of truth and strengthening the
capacity of an individual in participating in decision making process. The
decision making process of a voter would include his right to know about public
functionaries who are required to be elected by him.
Para 31: In State of Uttar Pradesh V/s.
Raj Narain and others (1975) 4 SCC 428), the Constitution Bench considered a
question _ whether privilege can be claimed by the Government of Uttar Pradesh
under Section 123 of the Evidence Act in respect of what has been described for
the sake of brevity to be the Blue Book summoned from the Government of Uttar
Pradesh and certain documents summoned from the Superintendent of Police, Rae
Bareli, Uttar Pradesh? The Court observed that "the right to know which is
derived from the concept of freedom of speech, though not absolute, is a factor
which should make one wary, when secrecy is claimed for transactions which can,
at any rate, have no repercussion on public security. The Court pertinently
observed as under :
"In a government of responsibility
like ours, where all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this country have a right
to know every public act, everything that is done in a public way, by their
public functionaries. - They are entitled to know the particulars of every
public transaction in all its bearing..."
Para 32: In Indian Express Newspapers
(Bombay) Private Ltd, and Others etc. V/s. Union of India and others [(1985) 1
SCC 641], this Court dealt with the validity of customs duty on the newsprint
in context of Art. 19(1)(a). The Court observed (in para 32) thus:
"The purpose of the press is to
advance the public interest by publishing facts and opinions without which a
democratic country cannot make responsible judgments... "
Para 33: The Court further referred (in
para 35) the following observations made by this Court in Romesh Thappar V/s.
State of Madras (1950 SCR 594) :
"...(The freedom) lay at the
foundation of all democratic organisations, for without free political
discussion no public education, so essential for the proper functioning of the
processes of popular government, is possible. A freedom of such amplitude might
involve risks of abuse... (But) "it is better to leave a few of its
noxious branches to their luxuriant growth, than, by pruning them away, to
injure the vigour of those yielding the proper fruits".
Again in paragraph 68, the Court
observed :-
"....The public interest in freedom
of discussion (of which the freedom of the press is one aspect) stems from the
requirement that members of a democratic society should be sufficiently
informed that they may influence intelligently the decisions which may affect
themselves." (Per Lord Simon of Glaisdale in Attorney -General V/s. Times
Newspapers Ltd. (1973) 3 All ER 54). Freedom of expression, as learned writers
have observed, has four broad social purposes to serve: (1) it helps an
individual to attain self -fulfilment, (ii) it assists in the discovery of
truth, (iii) it strengthens the capacity of an individual in participating in
decision -making and (iv) it provides a mechanism by which it would be possible
to establish a reasonable balance between stability and social change. All
members of society should be able to form their own beliefs and communicate
them freely to others. In sum, the fundamental principle involved here is the
people's right to know. Freedom of speech and expression should, therefore,
receive a generous support from all those who believe in the participation of
people in the administration...."
Para 34: From the
afore-quoted paragraph, it can be deduced that the members of a democratic
society should be sufficiently informed so that they may influence
intelligently the decisions which may affect themselves and this would include
their decision of casting votes in favour of a particular candidate. If there
is a discharge by a candidate as sought for then it would strengthen the voters
in taking appropriate decision of casting their votes.
Para 36: Thereafter, the Court summarised
the law on the freedom of speech and expression under Art. 19(1)(a) as
restricted by Art. 19(2) thus:_
"The freedom of speech and
expression includes right to acquire information and to disseminate it. Freedom
of speech and expression is necessary, for self -fulfilment. It enables people
to contribute to debate on social and moral issues. It is the best way to find
a truest model of anything, since it is only through it that the widest
possible range of ideas can circulate. It is the only vehicle of political
discourse so essential to democracy Equally important is the role it plays in
facilitating artistic and scholarly endeavours of all sorts... "
Para 37: The Court
thereafter (in paragraph 82) held :-
"True democracy cannot exist unless
all citizens have a right to participate in the affairs of the polity of the
country. The right to participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the issues, in respect of
which they are called upon to express their views. One-sided information,
disinformation, misinformation and non-information all equally create an
uninformed citizenry which makes democracy a farce when medium of information
is monopolised either by a partisan central authority or by private individuals
or oligarchic organisations. This is particularly so in a country like ours
where about 65 per cent of the population is illiterate and hardly 1 1/2 per
cent of the population has an access to the print media which is not subject to
pre-censorship."
Para 39-40: In the case of Dinesh Trivedi,
M.P. and Others V/s. Union of India and Others [(1997) 4 SCC 306], the Court
dealt with a petition for disclosure of a report submitted by a Committee
established by the Union of India on 9/07/1993 which was chaired by erstwhile
Home Secretary Shri N.N. Vohra which subsequently came to be popularly known as
Vohra Committee.
In the said case, the Court dealt with
citizen's rights to freedom of information and observed "in modern
constitutional democracies, it is axiomatic that citizens have a right to know
about the affairs of the Government which, having been elected by them, seek to
formulate sound policies of governance aimed at their welfare". The Court
also observed "democracy expects openness and openness is concomitant of a
free society and the sunlight is a best disinfectant".
Para 41: Mr. Ashwini Kumar, learned senior
counsel appearing on behalf of the intervenor submitted that the aforesaid
observations are with regard to citizen's right to know about the affairs of
the Government, but this would not mean that citizens have a right to know the personal
affairs of MPs or MLAs. In our view, this submission is totally misconceived.
There is no question of knowing personal affairs of MPs or MLAs. The limited
information is - whether the person who is contesting election is involved in
any criminal case and if involved what is the result? Further there are
widespread allegations of corruption against the person holding post and power.
In such a situation, question is not of knowing personal affairs but to have
openness in democracy for attempting to cure cancerous growth of corruption by
few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know
that their representative has not misconducted himself in collecting wealth
after being elected. This information could be easily gathered only if prior to
election, the assets of such person are disclosed. For this purpose, learned
counsel Mr. Murlidhar referred to the practice followed in the United States
and the form which is required to be filled in by a candidate for Senate which
provides that such candidate is required to disclose all his assets and that of
his spouse and dependants. The form is required to be re-filled every year.
Penalties are also prescribed which include removable from ballot.
Para 42: Learned counsel Mrs. Kamini
Jaiswal referred to All India Service (Conduct) Rules, 1968 and pointed out
that a member of All India Service is required to disclose his/her assets
including that of spouse and the dependant children. She referred to Rule 16 of
the said Rules, which provides for declaration of movable, immovable and
valuable property by a person who becomes Member of the Service. Relevant part
of Rule 16 is as under:
"16. (1) Every person shall, where
such person is a member of the Service at the commencement of these rules, before
such date after such commencement as may be specifieded by the Government in
this behalf, or, where such person becomes a member of the Service after
commencement, on his first appointment to the Service submits a return of his
assets and liabilities in such form as may be prescribed by the Government
giving the full particulars regarding: -
(a) the immovable property owned by him,
or inherited or acquired by him or held by him on lease or mortgage, either in
his own name or in the name of any member of his family or in the name of any
other person.
(b) shares, debentures, postal
Cumulative Time Deposits and cash including bank deposits inherited by him or
similarly owned, acquired or held by him;
(c) other movable property inherited by
him or similarly owned, acquired or held by him; and
(d) debts and other liabilities incurred
by him directly or indirectly"
Para 43: Such officer is also required to
submit an annual return giving full particulars regarding the immovable and
movable property inherited by him or owned or acquired or held by him on lease
or mortgage either in his own name or in the name of any member of his family
or in the name of any other person.
Para 44: It is also submitted that even
the Gazetted Officers in all government services are required to disclose their
assets and thereafter to furnish details of any acquisition of property
annually. In our view, it is rightly submitted that in a democratic form of
government, MP or MLA is having higher status and duty to the public. In P.V.
Narasimha Rao. V/s. State (CBI/SPE) [(1998) 4 SCC 626], the Court inter alia
considered whether Member of Parliament is a public servant? The Court [in para
162] held thus:
"A public servant is "any
person who holds an office by virtue of which he is authorised or required to
perform and public duty". Not only, therefore, must the person hold an
office but he must be authorised or required by virtue of that office to
perform a public duty. Public duty is defined by Section 2(b) of the said Act
to mean "a duty in the discharge of which the State, the public or that
community at large has an interest". In a democratic form of government it
is the Member of Parliament or a State Legislature who represents the people of
his constituency in the highest lawmaking bodies at the Centre and the State
respectively. Not only is he the representative of the people in the process of
making the laws that will regulate their society, he is their representative in
deciding how the funds of the Centre and the State shall be spent and in
exercising control over the executive. It is difficult to conceive of a duty
more public than this or of a duty in which the State, the public and the
community at large would have greater interest... "
Para 48: The Election Commission is
directed to call for information on affidavit by issuing necessary order in
exercise of its power under Art. 324 of the Constitution of India from each
candidate seeking election to Parliament or a State Legislature as a necessary
part of his nomination paper furnishing therein, information on the following
aspects in relation to his/her candidature:-
(1) Whether the candidate is convicted /
acquitted / discharged of any criminal offence in the past if any, whether he
is punished with imprisonment or fine?
(2) Prior to six months of filing of
nomination, whether the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or more, and in which charge
is framed or cognizance is taken by the Court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank
balances etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly
whether there are any over dues of any public financial institution or
Government dues.
(5) The educational qualifications of
the candidate.
The observations in Rajagopal case [(1996) 6 SCC 632]
Para 1: This petition raises a question
concerning the freedom of press vis-a-vis the right to privacy of the citizens
of this country. It also raises the question as to the parameters of the right
of the press to criticise and comment on the acts and conduct of public
officials.
Para 9: A more elaborate appraisal of
this right took place in a later decision in Gobind V/s. State of M.P wherein
Mathew, J. speaking for himself, Krishna lyer and Goswami, JJ. traced the
origins of this right and also pointed out how the said right has been dealt
with by the United States Supreme court in two of a its well-known decisions in
Griswold V/s. Connecticut and Roe V/s. Wade. After referring to Kharak Singh
and the said American decisions, the learned Judge stated the law in the
following words:
Any right to privacy must encompass and
protect the persona] intimacies of the home, the family, marriage, motherhood,
procreation and child-rearing. This catalogue approach to the question is obviously
not as instructive as it does not give analytical picture of the distinctive
characteristics of the right of privacy. Perhaps, the only suggestion that can
be offered as unifying principle underlying the concept has been the assertion
that a claimed right must be a fundamental right implicit in the concept of
ordered liberty.
Para 18: The principle of the said
decision (New York Times versus Sullivan) has been held applicable to
"public figures" as well. This is for the reason that public figures
like public officials often play an influential role in ordering society. It
has been held as a class the public figures have, as the public officials,
have, access to mass media communication both to influence the policy and to
counter criticism of their views and activities, On this basis, it has been
held that the citizen has a legitimate and substantial interest in the conduct
of such persons and that the freedom of press extends to engaging in
uninhibited debate about the involvement of public figures in public issues and
events.
Para 26: We may now summarise the broad
principles flowing from the above discussion:
(1) the right to privacy is implicit in
the right to life and liberty guaranteed to the citizens of this country by
Art. 21. It is a "right to be let alone." A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. None can publish
anything concerning the above matters without his consent - whether truthful or
otherwise and whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in
an action for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a
controversy.
(2) The rule aforesaid is subject to the
exception, that any publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records including
Court records. This is for the reason that once a matter becomes a matter of
public record, the right to privacy no longer subsists and it becomes a
legitimate subject for comment by press and media among others. We are,
however, of the opinion that in the interests of decency (Article 19(2)) an
exception must be carved out to this rule, viz., a female who is the victim of
a sexual assault, kidnap, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being published in
press/ media.
The observations made by Bombay High Court in the
case of Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009,
delivered by Justice C.L. Pangarkar, dated 20.01.2009
Para 7 The first thing that needs to be
taken into consideration is that the petitioner is a public servant. When one
becomes a public servant, he in strict sense becomes a public servant and as
such, every member of public, gets a right to know about his working, his
honesty, integrity and devotion to duty. In fact, nothing remains personal
while as far as the discharging of duty. A public servant continues to be a
public servant for all 24 hours. Therefore, any conduct/ misconduct of a public
servant even in private, ceases to be private. When, therefore, a member of a
public, demands an information as to how many leaves were availed by the public
servant, such information though personal, has to be supplied and there is no
question of privacy at all. Such supply of information, at the most, may
disclose how sincere or insincere the public servant is in discharge of his
duty and the public has a right to know.
Para 8: The next question is whether the
applicant should be supplied the copies of the application at all. It was contended
that the copies of the application should not be supplied for, they may contain
the nature of the ailment and the applicant has no right to know about the
ailment of the petitioner or his family. To my mind, what cannot be supplied,
is a medical record maintained by the family physician or a private hospital.
To that extent, it is his right of privacy, it certainly, cannot be invaded.
The application for leave is not a medical record at all. It, at the most, may
contain ground on which leave was sought. It was contended that under Sec.8 (1)
(j), the information cannot be supplied. In this regard, it would be necessary
to read proviso to that section. If the proviso is read, it is obvious that
every citizen is entitled to have that information which the Parliament can
have. It is not shown to me as to why the information as is sought, cannot be
supplied to the Parliament. In fact, the Parliament has a right to know the
ground for which a public servant has taken leave since his salary is paid from
the public exchequer. In the circumstances, I do not find that the Information
Commission committed any error in directing such information to be supplied.
There is no substance in the writ petition. It is dismissed.
Thanking you.
Sandeep Jalan
Advocate
Mumbai.
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