Bombay High Court: A Division Bench of Nitin Jamdar and Milind Jadhav, JJ., took strong objection to the fact that despite the Office Memorandum dated 07-10-2016 [specifying that the personal details of the applicants under Right to Information Act should not be put up on the website], for four years, 4,474 RTI applications with personal details of the applicants were uploaded on the website of the Ministry of Information and Broadcasting. According to the Court, looking at the magnitude of the lapse, it cannot be treated as just a routine internal matter. The Court also placed the responsibility of ensuring that necessary enquiry is conducted and that too in time bound manner upon the highest official in the Ministry, the Secretary.
Petitioner who is a former journalist had applied under the Right to Information Act, 2005 to the Ministry of Youth and Sports Affairs seeking details regarding a campaign launched by the Government of India. The said application was transferred to the Ministry of Information and Broadcasting.
Petitioner submitted that it had instituted court proceedings on some sensitive social issues and started receiving threatening calls and messages. A mob had also gathered outside his residence. He noted that the Ministry of Information and Broadcasting has uploaded his personal details and uploaded the application filed by him.
Hence in view of the above, petitioner filed the instant petition for a direction that the petitioner’s personal details be removed from the website of Ministry of Information and broadcasting further he sought damages for mental agony.
During the hearing on 15-10-2020, the Counsel appearing for the Ministry had accepted that the Department of Personnel and Training had issued a memorandum on 7-10-2016, specifying that the personal details of the applicants under Right to Information Act should not be put up on the website. The said memorandum did not reach the Ministry of Information and Broadcasting, and with its knowledge, corrective action was taken.
In Avishek Goenka v. Ashish Kumar Roy, WP No. 33290(W) of 2013 decided by Calcutta High Court on 20-11-2013, Mr Goenka claiming to be an activist in the field of Right to Information, had approached the Calcutta High Court with the contention that the authority should not insist upon the detailed address of the applicant under the Act of 2005 as and when an application is made under the said Act.
In the above-cited decision, Division Bench considered Section 6(2) of the RTI Act and held that it would be the duty of the authority to hide such details and particularly from their website so that people at large would not know of the details. On 20-11-2013, the Court passed the order accordingly, and the Secretary, Ministry of Personnel was directed to circulate the copy of the order to all concerned so the authority can take measure to hide personal details of the activists to avoid any harassment by the persons having vested interests.
Ministry of Personnel had issued an Office Memorandum on 07-10-2016 wherein the Calcutta High Court decision was referred to in which it was directed that personal details of RTI applicants should not be disclosed. The legal position is thus clear that personal details of the applicant under the Act of 2005 should not be uploaded on the website.
Bench stated that the respondents could not seek dismissal of the petition contending that the petitioner was not the only victim of an irregularity, more particularly when the breach was in regard to an enactment which is an essential component of a working democracy.
Adding to the above, Court stated that respondent Ministry contends that it was not aware of the Official Memorandum dated 07-10-2016 and when it became aware, it took suitable action. This response is vague. There is no such general concept of awareness of a government department. Either the government department receives an official communication, or it was not received.
Right to Information Act is a unique and vital piece of legislation.
In the Calcutta High Court decision cited in the above paragraphs had cautioned of the intimidatory tactics of unscrupulous elements against such applicants. Based on this Court order, Office Memorandums were issued directing removal of personal details.
Uploading the personal details of the applicants is thus not only unnecessary, but it may also make some of the applicants vulnerable to unscrupulous elements.
Bench in the instant matter also observed that,
“Informed citizenry and transparency of information are vital for the functioning of democracy. Noticing that personal details of other applicants are put up in the public domain, some of those who want to seek information for the larger good may be deterred for the fear of being targeted.”
In the present matter, Court stated that it intends to place the responsibility of ensuring that necessary enquiry is conducted and that too in a time-bound manner upon the highest official in the ministry, the Secretary. If the enquiry will result in punitive action against the guilty government servants it would follow the applicable Rules and Regulations.
With regard to the claim for damages by the petitioners, Court stated that it is not the position of law that in writ jurisdiction, the moment the court concludes that a right is breached, damages must follow as of course without any further enquiry.
Courts grant damages in public law more in the cases of the poor and downtrodden who may not have the means to enforce their rights in private law. The law of damages requires various parameters to be evaluated.
Hence in the present case, the claim for damages is left open to be agitated in the appropriate civil forum.
With the following directions, the petition was disposed of:
(a) The papers of this Petition along with a copy of the replies filed by the Respondent and the copy of this order be placed before the Secretary, Ministry of Information and Broadcasting, Government of India.
(b) Responsibility is placed on the Secretary, Ministry of Information and Broadcasting, Government of India, to ensure that a suitable enquiry is held in the issues highlighted in this judgment regarding the uploading of the personal details of the applicants contrary to the Office Memorandum concerned.
(c) After a due enquiry, suitable disciplinary action will be taken as per the governing rules and regulations.
(d) Action under Clauses (b) and (c) will be completed within three months, that is by the first week of February 2021, from the date the order is placed before the Secretary as per clause (a).
(e) The report be submitted to the Registry of this court by the Secretary, under his signature of completing the action taken as per clause (c ) within two weeks thereafter, that is by the third week of February 2021
(f) If no report is submitted to this Court within the time stipulated, liberty to the Petitioner to move an application in this petition. This liberty is irrespective of the action that the Court may take under its powers for non-compliance.
(g)The Respondent will deposit the cost of the petition quantified at Rs 25000 in the Registry of this court within three weeks from today, which petitioner will be entitled to withdraw.[Saket S. Gokhale v. Union of India, 2020 SCC OnLine Bom 2313, decided on 05-11-2020]
Saket Gokhale, Petitioner in Person.
Rui Rodrigues with D.P. Singh for the respondent.