Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a petition filed by Ehtesham Qutubuddin Siddiqui (‘petitioner’), who is a death row convict in 7/11 Mumbai train serial bomb blasts in Mumbai challenging an order passed by Central Information Commission upholding that information sought regarding disclosure of the proposal and all documents in the Department’s file relating to issuance of the notification under Section 45(1) of the Unlawful Activity (Prevention) Act, 1967 (UAPA’), Yashwant Varma, J. held that Central Public Information Officer (‘CPIO’)- respondents rightly invoked Section 8(1)(a) of Right to Information Act, 2005 rejecting the disclosures sought and prayed for in the application.

Counsel for petitioner submitted that certain aspects of the information sought by the Petitioner were “severable” and thus, fall outside the scope of clause (a) of Section 8(1) of the RTI Act.

The Court while rejecting the contention noted that the petitioner has, even on a prima facie footing failed to establish what information that may ultimately lead to the issuance of the notification under Section 45 of the UAPA, 1967, would be severable.

Thus, the Court dismissed the petition being devoid of merits.

[Ehtesham Qutubuddin Siddique v. CPIO, 2022 SCC OnLine Del 2927, decided on 08-09-2022]

Advocates who appeared in this case :

Mr. Arpit Bhargava, Advocate, for the Petitioner;

None, for the CPIO.

*Arunima Bose, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts


Kerala High Court: In a case challenging the validity of Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006, Murali Purushothaman, J., held that Rule 12 is not inconsistent with Article 19(1)(a) of the Constitution and the provisions of the Right to Information Act, 2005 (‘RTI Act').

The Court said that the RTI should not be resorted to obtain the copies of ‘A’ diary of civil and criminal postings of the cases since the same can be obtained by filing copy application in the court under the relevant Rules of Practice. The Court expressed that,

“Since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.”

The petitioner, a retired Class I officer and presently a practicing lawyer had filed an application under the Right to Information Act, 2005 seeking copies of ”A’ diary of civil and criminal postings of the cases for the period from 01-12-2021 to 14-04-2022.

The said application was rejected by the Public Information Officer (PIO) stating that the information sought can be obtained by submitting copy application and besides, information is already available on the Court website, the Court's notice board, and on the Kiosk of the District Court.

The first appeal preferred by the petitioner under Section 19 (2) of the RTI Act was dismissed on the ground that the information sought by the petitioner relates to judicial proceedings and the High Court as per Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006 has directed all Subordinate Courts in the State that no information relating to any Judicial Proceedings shall be disclosed under the said Act.

Aggrieved thereby, the petitioner had filed the instant petition to assail both; the order of the PIO and the order dismissing the first appeal. Besides, the petitioner had sought to quash Rule 12 of the Rules, 2006 contending that the said provision is in violation of the fundamental right of the petitioner guaranteed under Article 19(1)(a) of the Constitution and the provisions of the RTI Act.

Pertinently, ‘A’ diary is a record of the sum and substance of the judicial work of each case taken up for consideration on a day, signed by the Presiding Officer.

Relying on Chief Information Commissioner v. High Court of Gujarat, (2020) 4 SCC 702, the Court observed that when the information can be obtained through the mechanism provided under the rules made by the High Court, the said mechanism should be preserved and followed and the provisions of the RTI Act shall not be resorted to. Since the copies of ”A’ diary of civil and criminal postings of the cases’ could be obtained by the petitioner on filing applications under the Rules of Practice, the Court opined that the provisions of the RTI Act should not be resorted to.

Whether Rule 12 inconsistent with RTI Act

The Criminal Rules of Practice, Kerala, 1982 and the Civil Rules of Practice, Kerala, 1971 were framed by the High Court before the enactment of the RTI Act and provide for the grant of copies of any proceedings or documents filed or in the custody of the Court. After the enactment of the RTI Act, to carry out the provisions of the said Act, the High Court has made the Rules, 2006 — in exercise of the powers conferred under sub-section (1) of Section 28 of the RTI Act read with Article 235 of the Constitution—incorporating provisions for providing information not covered by Criminal Rules of Practice and the Civil Rules of Practice.

The Court noted that since Criminal Rules of Practice and the Civil Rules of Practice provide for provisions for the grant of copies of any proceedings or documents filed or in the custody of the Court, the High Court, under Rule 12 of the Rules, 2006, has provided that no application for information or document relating to any judicial proceedings held by and under the control of the public authority, shall be entertained by the PIO. Hence, the Court held that the Rules, 2006 provide for the mode of furnishing information and are consistent with the provisions of the RTI Act.

Further, the Court observed that since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.

Consequently, the writ petition was dismissed. Additionally, considering that the PIO has referred to some non-existing provisions to reject the RTI application, as a word of caution, the Court remarked,

“The Public Information Officer has stated that it is not possible to give information in terms of Sections 2.8(V), 3(a), and 8B of the RTI Act. No such Sections could be traced in the RTI Act. While disposing of request for information, if any provisions of the law are to be referred to, the Public Information Officers shall endeavour to quote the correct provisions.”

[M.P. Chothy v. Registrar General, High Court of Kerala, WP(C) No. 23224 of 2022, decided on 20-07-2022]

Advocates who appeared in this case :

M.P. Chothy (in-person), Advocate, for the Petitioner.

*Kamini Sharma, Editorial Assistant has put this report together.

Legal RoundUpWeekly Rewind



Right to Abortion no longer a Constitutional right in the USA

In a far-reaching decision concerning American women’s right to abortion, the Supreme Court of the United States, has held that the Constitution of the United States does not confer any right to obtain abortions. The judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

While Chief Justice Roberts agreed with the majority opinion that the viability line established by Roe and Casey should be discarded, he however took a “measured course” and said that the right should extend far enough to ensure a reasonable opportunity to choose but need not extend any further certainly not all the way to viability.

However, the dissenting opinion termed the decision to be catastrophic and stated that the majority has given the ruling out of despise and has substituted a rule by judges for the rule of law. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,

The dissent concluded with the following words,

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Detailed Analysis: SCOTUS| United States’ Constitution does not confer any right to abortion; Roe v. Wade overruled after 49 years

Also read: “With sorrow—for this Court, but more, for the many mil­lions of American women…we dissent.” Read SCOTUS dissent on Right to Abortion case 


6 High Courts get new Chiefs

6 High Courts have got new Chief Justices. While Telangana High Court’s current Chief, Justice Satish Chandra Sharma will now be assuming the charge of the Chief Justice of the Delhi High Court, 5 judges have been promoted to be the Chief Justices of Gauhati, Rajasthan, Uttaranchal, Himachal Pradesh and Telangana High Courts.

Full Story: 5 Appointments and one Transfer lead to 6 High Courts getting new Chiefs


Clean Chit to PM Modi in 2002 Gujarat Riots

Supreme Court has dismissed Zakia Jafri’ss plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community.

Detailed Analysis: “SIT Officials have come out with flying colours unscathed despite all odds”; Read SC’s key observations while upholding SIT’s clean chit to PM Modi in 2002 Gujarat riots

Man set free in a 28-year-old honour killing case

In 1994, a young couple belonging to different castes was found hanging from a tree after having gone missing for days. The love affair did not sit well with the girl’s father and uncle. It was alleged her uncle had killed both of them and had kept the bodies in the house for 3 days, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

Noting that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt, the Court observed that conviction could not be based on a very weak kind of evidence of extra judicial confession by the co-accused and the theory of “Last seen together” propounded by the prime witness.

Detailed Analysis: No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case


Bombay High Court| Unmarried major Daughter’s right to maintenance

In a case where a father had refused to maintain his unmarried major daughter on the ground that the daughter was earning Rs.72 lakhs to Rs.80 lakhs by merely posting photographs on Instagram, the Bombay High Court has held that the father had the responsibility to maintain his daughter and her Instagram biography is not enough to prove that she has independent and sufficient income.

The Court remarked,

it is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true.”

Detailed Analysis: Bombay High Court| Unmarried major Daughter entitled for maintenance from her father; Glossy life on Instagram does not prove independent and sufficient income

Orissa High Court | Vigilance Department vis-à-vis Right to Information

The Orissa High Court has held that the Government of Odisha cannot deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. The Court held that if under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the notification by the Odisha Government’s Information and Public Relations Department seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

Detailed Analysis: Orissa High Court | Notification exempting Orissa Vigilance Department from the purview of RTI is ultra vires of RTI Act, 2005

Patna High Court| Right to Sanitation a fundamental right

Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. The Patna High Court observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Detailed Analysis: Right to Sanitation a fundamental right: Patna HC issues directions to Bihar Govt and NHAI to construct “Public toilets” on highways


NCDRC| Women with sponge left in abdomen after Caesarean Surgery gets Rs. 5 Lakhs Compensation

In a consumer dispute where a woman had alleged medical negligence on part of the doctors who had left a sponge in her abdomen after performing a Caesarean surgery; NCDRC has held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care and thus it constitutes medical negligence. As a result, the woman will now get the compensation of Rs. 5 lakhs.

Detailed Analysis: Infected sponge left in the abdomen of a woman post Caesarean surgery, constitutes medical negligence; NCDRC directs compensation of Rs. 5 lakhs to the aggrieved party


TDS exemption on rent of ‘aircraft’ leased out by IFSC units on certain conditions

The Central Board of Direct Taxes (CBDT) has exempted TDS on lease rentals under Section 194-I of Income Tax Act, 1961 paid to Aircraft Leasing Units. The Notification will come into force on July 1, 2022. The Exemption is applicable on certain conditions. You can read the same on the SCC Online Blog.

Full Report: CBDT notifies exemption of TDS on rent of ‘aircraft’ leased out by IFSC units on certain conditions

Registration of Electors (Amendment) Rules, 2022

Central Government, after consulting the Election Commission of India has notified Registration of Electors (Amendment) Rules, 2022 A new Rule has been inserted which provides Merger and integration of list of amendments. The rule provides that the list of amendments prepared with reference to the qualifying dates shall be merged and integrated with the last finally published roll and published as draft roll, before every election and bye-election and shall be put in public domain with reference to the qualifying date, proximate to the said election, as the Election Commission may direct.

Full Report: Centre notifies linking of Aadhaar with electoral roll vide Registration of Electors (Amendment) Rules, 2022

NFRA Amendment Rules, 2022

The National Financial Reporting Authority Amendment Rules, 2022 introduces the penalty in case of non-compliance of the provisions of the Rules. Whoever contravenes any of the provisions of these rules, shall be punishable with fine not exceeding five thousand rupees, and where the contravention is a continuing one, with a further fine not exceeding five hundred rupees for every day after the first during which the contravention continues.”.

Full Report: MCA introduces maximum penalty upto Rs. 5000 in case non-compliance of NFRA Rules, 2018 vide NFRA Amendment Rules, 2022

Curated and presented by Prachi Bhardwaj, Associate Editor, EBC Publishing Pvt. Ltd. 

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, 2022 SCC OnLine Ori 2014, decided on 20-06-2022]

Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

Op EdsOP. ED.


The right to free speech and expression has always been regarded as a basic human right emanating from personal liberty and a necessary corollary to this right is the “right to know”. In a democratic setup like ours, this right assumes an even greater significance as “knowledge will forever govern the ignorance and people who mean to be their own Governors must arm themselves with the power which knowledge gives”.[1] The fundamental rights in the Indian Constitution[2] are largely reflections of the human rights recognised in the Universal Declaration of Human Rights, 1948, Article 19[3] of which reads as under:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

On the international front, the International Covenant on Civil and Political Rights, 1966 recognised the right to information in Article 19, the relevant portion of which is reproduced below:

  • Everyone shall have the right to hold opinions without interference.
  • Everyone shall have a right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice….

Similarly, The Commonwealth Expert Group Meeting on “Right to Know and the Promotion of Democracy and Development”, Marlborough House, London dated 1-3-1999 submitted the following principles and guidelines to the Commonwealth Heads of Government at their summit in South Africa held from 12-11-1999 to 15-11-1999 for their consideration and adoption:

The principles suggested that:

  • Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the State, as well as any Government-owned corporation and any other body carrying out public functions.
  • The legislation should contain a presumption in favour of maximum disclosure.
  • The right of access may be subject to only such exemptions, which are narrowly drawn, permitting Government to withhold information only when disclosure would harm essential interests such as national defence and security, law enforcement, individual privacy or commercial confidentiality: provided that withholding the information is not against public interest.
  • Decisions under the legislation should be subject to independent review capable of ensuring compliance.

The guidelines suggested that:

  • Governments should enact freedom of information legislation containing appropriate administrative measures for its implementation.
  • Governments should permit any individual to obtain information promptly and at low or no cost.
  • Legislation should provide for an independent review of decisions capable of providing an effective remedy in any case of delay or denial.
  • Governments should maintain and preserve records.
  • Governments should promote a culture of openness, publicly disseminating information relating to the exercise of their functions and the information held by them.

Whereas, in India, the Report of National Commission to Review the Working of the Constitution (NCRWC) under the Chairmanship of Justice M.N. Venkatachaliah, dated 31-3-2002[4] in Para 6.10.1 stated that major assumption behind new style of governance is the citizen’s access to information. Much of the common man’s distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes…. Right to information should be guaranteed and needs to be given real substance. It went on to suggest that Article 19(1)(a) of the Constitution of India may be amended as:

All citizens shall have the right—

(a) to freedom of speech and expression which shall include the freedom of press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas.[5]

On the judicial front the Supreme Court of India in State of U.P. v. Raj Narain[6], held as under:

  1. 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 very public act, everything that is done in a public way, by their functionaries. They are entitled to know the particulars of every public transaction and all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security….

In S.P. Gupta v. Union of India[7], it was held that the citizens’ right to know the facts, the true facts, about the administration of the country, is, thus, one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world.

Also, in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal[8], the Supreme Court held as under:

  1. … 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 oligarchy organisations….

Therefore, it is safe to say that the early foundations of the right to information act were laid down by the above judicial pronouncements in line with the international conventions. Even though States such as Rajasthan, Tamil Nadu, Goa, Karnataka, Assam and Delhi had enacted legislations furthering the objects of right to information, it was not before the long battles fought by citizen groups lead by the Mazdoor Kisan Shakti Sangathan that a nationwide demand for a law guaranteeing right to information was agitated. The movement catered huge support from social activists, professionals and persons in autocracy, politics and media who were committed to the aim of a transparent and accountable governance.

Finally, in 2002, the Government of India enacted the Freedom of Information Act, 2002[9]. However, with the passage of time, it was found that the said legislation could not serve the requirements of the nation and in order to ensure greater efficiency and more effective access to information, it was thought that the said Act must be made progressive and realistic. The Central Government constituted the National Advisory Committee and on the recommendations of the Committee, it was decided that a new legislation shall be enacted incorporating the recommendations and the existing one be repealed. Thus, the Right to Information Act, 2005[10] came to be enacted on 12-10-2005.


The Right to Information Act, 2005 is segregated into six chapters and two Schedules. Chapter I lays down the short title, extent, commencement, and definition clauses, Chapter II deals with the right to information framework, Chapters III and IV lay down the mechanics of the Information Commissions, Chapter V deals with the powers and functions of the Information Commissions and provides provisions for appeals, and penalties, Chapter VI incorporates miscellaneous provisions. The First Schedule prescribes the form of oath or affirmation to be made by Chief Information Commissioner (CIC), State Information Commissioner (SIC), and other Information Commissioners (ICs). The Second Schedule contains the Intelligence and Security Organisations established by the Central Government which are beyond the jurisdiction of the Act.

The Preamble to the Act lays down its object. It aims at 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 Commission and for the matters connected therewith or incidental thereto.

In ICAI v. Shaunak H. Satya[11], it was held as under:

  1. … object of the RTI Act is to harmonise the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand….

Section 2(h) of the Act[12] lays down the definition of “public authorities” under the Act. In Thalappalam Service Coop. Bank Ltd. v. State of Kerala[13], the Supreme Court held as under:

  1. The legislature, in its wisdom, while defining the expression “public authority” under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions “means” and “includes”. When a word is defined to “mean” something, the definition is prima facie restrictive and where the word is defined to “include” some other thing, the definition is prima facie extensive. But when both the expressions “means” and “includes” are used, the categories mentioned there would exhaust themselves. The meanings of the expressions “means” and “includes” have been explained by this Court in DDA v. Bhola Nath Sharma[14]. When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

Right to information, subject to the other provisions of the Act has been recognised as a statutory right under Section 3[15], and to achieve this object, the Act lays a complete code under Sections 4[16], 5[17], 6[18], and 7[19]. On the other hand, in order to strike a balance between public interest and other individual or State interests, the Act prescribes certain categories of exemptions under Sections 8[20], 9[21], 10[22], and 11[23].

In order to seek effective enforcement of the right to information and to provide redressal machinery, the Act, under Sections 12[24] and 15[25] establishes the Central Information Commission and the State Information Commissions. These Information Commissions are quasi-judicial bodies having the trappings of courts and derive their authority from Sections 18[26], 19[27], and 20[28] of the Act. Under Section 18, the Information Commissions are duty-bound to receive and inquire into complaints made on any of the grounds stated in clauses (a) to (f) of sub-section (1) of Section 18.

The appellate mechanism

Section 19(1) of the Act, provides a right of appeal to an officer senior in rank to the Public Information Officer (PIO) against whose decision or inaction the appeal is being preferred. The said appeal may be preferred within thirty days of receipt of the decision of the Central Public Information Officer (CPIO) or on account of non-receipt of decision from the CPIO within the period prescribed under sub-section (1) or clause (a) of sub-section (3) of Section 7. In cases where the appellant is prevented from making an appeal due to sufficient cause, the first appellate authority concerned may condone the delay upon satisfaction in exercise of powers under the proviso to Section 19(1).

Sub-section (3) of Section 19, entails a right of second appeal to the Information Commissions against the decision of the first appellate authority. The said appeal is said to lie within ninety days from the date on which the decision was received or ought to have been made, however, on sufficient cause being shown towards the satisfaction of the Information Commission concerned, the Information Commission in exercise of power under the proviso of Section 19(3) of the Act may condone the delay and admit the appeal even after expiry of the said statutory period.

The Act, in order to achieve the objects of transparency and equity, creates a reverse burden of proof on the PIO. According to Section 19(5), the burden of proving that denial of a request was justified shall be on the PIO concerned.

In order to provide an effective and expeditious remedy and encourage access to information and free flow of the same, the Act under Section 19(6) mandates that appeal preferred under sub-section (1) or sub-section (2) of Section 19 shall be disposed of within thirty days of the receipt of the appeal or for reasons to be recorded in writing within an extended period not exceeding 45 days from the date of filing of the appeal.

The drawbacks

Even though the Act, attempts to act as a complete code not only to recognise right to information as a statutory right but also to ensure its effective realisation by establishing a redressal system, we see that the absence of an outer time-limit for the disposal of complaints under Section 18 and second appeals under Section 19 have reduced the efficacy of the said mechanism.

The Central Information Commission in reply dated 17-9-2021 in RTI No. CICOM/R/E/21/00794, has stated that as of date, cases registered in May 2019 (some left out cases)/January-February 2020 were being listed for hearing.

The RTI Act was enacted to ensure free availability and easy access to information with a speedy redressal to the general public. However, it is evident from the above RTI reply that, like any other, judicial institution or quasi-judicial body, pendency has started to mount on the Central Information Commission. This very fact, goes to the extent of hitting at the root of the aim and object of enacting such legislation in the first place.

The right of expeditious disposal of first appeal under the Act clearly shows the intent of the legislature to establish an effective and time-bound remedy and not leave the RTI applicants in long battles of litigation. This touch of speedy redressal is lost during second appeals and complaints under the Act. Another displeasing side of this is that the Information Commissions after scrutiny admit the complaint or second appeals but the files are not given any listing dates for long.

The High Courts have stepped up to the occasion and have given their interpretations for expeditious disposals of second appeals and remedy the difficulty faced by the appellants. The High Court of Calcutta in Akhil Kumar Roy v. W.B. Information Commission[29] has held as under:

A second appeal arises from a decision in a first appeal under Section 19(1), and a first appeal arises from a decision or a failure to give a decision under  Section 7. The sparkle of a strong strand of speed woven though the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open-ended second appeal scheme is bound to make the Section 6 request go totally adrift generating a multitier avoidable and unwarranted offshoot court proceedings as this case.

In my opinion, keeping in mind the respective maximum periods fixed for deciding a first appeal under Section 19(1) and disposal of a request for obtaining information under Section 7, the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof. In view of the scheme of the statute, I think this period should be considered the reasonable period for deciding a second appeal.

The High Court of Karnataka in Jayaprakash Reddy v. Central Information Commission[30] has held as under:

  1. It is indeed to be noticed that no time-limit is prescribed to decide a second appeal. Therefore, it would have to be interpreted that when no time is prescribed, it would follow that it ought to be decided within a reasonable time. Since there is a time-limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal.
  2. Consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing.

The High Court of Judicature at Allahabad in Mukul Agrawal v. State of U.P.[31], held as under:

  1. Under the statute, appellate authorities are supposed to decide the matter expeditiously, but it appears that authorities themselves are fixing dates of several months which is not the intention of legislature since the statute has been framed for public welfare and encouraging transparency. Therefore, authorities under Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”) must decide the matters expeditiously.

Similarly, the High Court in Skand Bajpai v. Central Information Commission[32] directed the Commission to decide the second appeal of the petitioner within ninety days of producing a copy of the said order since the appeal was pending for a year.

Though, the interference by the High Courts as mentioned above was much warranted, the same could not become a regular practice, for it shall be extremely detrimental to the RTI applicants for being engaging in multiple legal pursuits and this shall also increase the burden on the already burdened Indian judiciary. This practice shall also defeat Parliament’s intent behind creating the RTI Act in the first place.

Failure to provide a decision within the statutory period by the PIO or the first appellate authority is itself a ground to pursue an appeal, as such it is evident that the legislature intended swift remedy. Thus, failure to dispose of second appeals and complaints within a reasonable time by the Information Commissions and mounting of huge backlogs is clearly against the purpose for creating these Commissions. This runs contrary to the recommendations of the National Advisory Council, based on which the 2002 Act was repealed and 2005 Act was enacted.

The Supreme Court of India in Kusum Ingots & Alloys Ltd. v. Union of India[33] held as under:

…an order, whether interim or final, passed on a writ petition, keeping in view Art. 226(2)[34], will have effect throughout the territory of India, subject of course to applicability of the Act.

Since the RTI Act is applicable to the whole of India, the judgments rendered by the  High Courts as stated above must apply nationwide, and hence, the second appellate authorities must dispose of the appeals within a reasonable time in line with the letter and spirit of the Act, failing which there may occur a situation whereby the time a second appeal reached its conclusion, the information may no longer be required. This if adopted as a defence mechanism, though unethical, shall render the Act a mere paper legislation.

*Final year student, BA LLB, New Law College, Bharati Vidyapeeth Deemed to be University, Pune. Author can be reached at

[1]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[2]Constitution of India.

[3]Universal Declaration of Human Rights, 1948, Art. 19.

[4]Report of the National Commission to Review the Working of the Constitution.

[5]Report of the National Commission to Review the Working of the Constitution, Para 3.8.1.

[6](1975) 4 SCC 428, 453.

[7]1981 Supp SCC 87.

[8](1995) 2 SCC 161, 229.

[9]Freedom of Information Act, 2002.

[10]Right to Information Act, 2005.

[11](2011) 8 SCC781, 797.

[12]Right to Information Act, 2005, S. 2(h).

[13](2013) 16 SCC 82, 103.

[14](2011) 2 SCC 54.

[15]Right to Information Act, 2005, S. 3.

[16]Right to Information Act, 2005, S. 4.

[17]Right to Information Act, 2005, S. 5.

[18]Right to Information Act, 2005, S. 6.

[19]Right to Information Act, 2005, S. 7.

[20]Right to Information Act, 2005, S. 8.

[21]Right to Information Act, 2005, S. 9.

[22]Right to Information Act, 2005, S. 10.

[23]Right to Information Act, 2005, S. 11.

[24]Right to Information Act, 2005, S. 12.

[25]Right to Information Act, 2005, S. 15.

[26]Right to Information Act, 2005, S. 18.

[27]Right to Information Act, 2005, S. 19.

[28]Right to Information Act,2005, S. 20.

[29] 2010 SCC OnLine Cal 2688.

[30] 2015 SCC OnLine Kar 9684.

[31]2018 SCC OnLine All 6112.

[32]2022 SCC OnLine All 306.

[33](2004) 6 SCC 254, 261, para 22.

[34]Constitution of India, Art. 226(2).

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia J. dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner, the wife, is a teacher in a Government Primary School in Udham Singh Nagar and was married to respondent 8, the husband but later their relation got strained and therefore she started living separately due to alleged cruelty, torture and demand of dowry at the hand of her husband and in-laws. The case of the petitioner before the Court was that her husband (respondent 8) was seeking personal information of the petitioner under Right to Information Act, 2005 (in short “RTI Act”), and these information are being given to him by the concerned authority. The information sought was as to how many teachers are working, the salary being given to the petitioner etc. Hence the instant petition.

Respondent 8 contended that this information does not appear to be private in nature in any manner nor are they exempted under the RTI Act.

Under the RTI Act, the ‘information’ has been defined under Section 2(f) of the RTI Act, which reads as under:

‘information’ means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

A bare perusal of the aforesaid definition shows that the ‘information’ has been widely defined. On a request these information have to be supplied to the persons seeking such information by a public authority.

The ‘public authority’ has also defined under Section 2(h) of the RTI Act, which reads as under:

“‘public authority’ means any authority or body or institution of self-government

established or constituted:

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.”

The Court observed that it cannot be any anybody’s case that a Government authority being Government school does not come under the definition of ‘public authority’. The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information. It further observed that the nature of information sought by respondent 8 is not covered under any of the exemption given under Section 8 of the RTI Act.

The Court held “no interference can be made in the present writ petition. The writ petition is totally misconceived and is hereby dismissed.”

[Jasmeet Kaur v. State of Uttarakhand, 2016 SCC OnLine Utt 2276, decided on 07-09-2016]

Arunima Bose, Editorial Assistant has reported this brief.


For petitioner: Mr. Mani Kumar

For State: Mr. P.C. Bisht

Case BriefsHigh Courts

Karnataka High Court: N S Sanjay Gowda J dismissed the petition being devoid of merits.

The respondent 1’s son has ended his life by jumping out of the window and the Authorities stated that it was due to over drinking. Thus, Respondent 1 sought for information regarding the B report that was filed after investigation due to the stigma attached to his family by furnishing of the B report. By the impugned order, The State Information Commissioner directed the petitioners to hand over and furnish the B- report and the enclosures.

The court observed that there is no prohibition to give information sought for since the investigation was already completed. The court further observed that the Commissioner was right in observing that only in the event the matter was under investigation, there was a bar for grant of the information regarding the investigation.

The Court further observed that the directions given by the Commissioner regarding furnishing of B report and its enclosures as sought for by respondent 1 especially when the investigation was concluded was absolutely right.

The Court held “contention of the learned counsel for the petitioners that it was open for respondent No. 1 to secure B report and enclosures from the Magistrate cannot be a ground to deny the information sought for under RTI”[The Public Information Officer v. Maleshappa M Chikkeri, W P No. 18599/2021, decided on 12-10-2021]

Arunima Bose, Editorial Assistant has reported this brief.


For petitioners: Mr. Venkata Satya Narayan

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan J. directed all the Panchayat Secretaries in the State of Himachal Pradesh to provide death certificate as demanded by any person or authority under the Right to Information Act.

The instant application was filed seeking direction to the Panchayat Secretary, Shingla, Development Block, Rampur, District Shimla, H.P. to provide the death certificate, Legal Heir Certificate and BPL Certificate in respect of Baldev resident of Village Dakolar, Post Office Shingla. As per the provisions contained in Section 8(1) J and Section 11 of Right to Information Act, 2005 as the aforesaid officer refused it.

It was brought to the notice of the Court that the Death Certificate, Birth and Death Register is maintained by the Panchayat Secretary of concerned Gram Panchayat as a local Registrar Birth and Death. Death Certificate is provided by the Panchayat Secretary to the family members of the deceased person only. It was further noted that the copy of Death certificate of late Sh. Baldev was requested to be provided under the RTI Act, 2005 and accordingly as per provision 11 (1) of the RTI Act, 2005 for providing Third Party information wife of deceased was inquired who refused to provide certificate of her deceased husband and accordingly as per Rule 8(1)(j) and 11 of the RTI Act, the applicant/Advocate was intimated accordingly by the concerned Public Information Officer-cum-Panchayat Secretary Shingla.

The Court observed that once a party has died, his death certificate cannot be termed a ‘Third Party Information‘, as that information relates/related only to the deceased. It was further observed that entries in Birth and Death Register are public documents and admissible under Section 35 of the Indian Evidence Act and it is not necessary to prove, who made the entries and what was the source of information.

The Court directed that “henceforth whenever a copy of death certificate is demanded by any person or authority under Right to Information Act, or even on simple paper, the same shall be given by all the Panchayat Secretaries in the State of Himachal Pradesh, subject to of course on usual charges.”

[OIC Ltd. v. Hira Devi, FAO (WCA) 417 of 2012, decided on 27-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.


For Appellants: Mr. Ashwani K. Sharma and Mr. Mayank Sharma

For Respondents 1 and 2: Mr. Sarthak Mehta

For respondent State: Mr. Ashok Sharma, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Mr. Hemanshu Misra, Mr. Bhupinder Thakur, Mr. Kewal Sharma, Additional Director (Panchayati Raj) in person.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

The following prayers were made before the Court:

(i)  A declaration that all national and regional political parties are public authorities under the Right to Information Act, 2005;

(ii) A direction to the Election Commission of India to collect all information concerning the finances of political parties;

(iii) A direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors.


Explaining the Scheme, the Court said that while the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties.

Under clause 7 of the Electoral Bonds Scheme, 2018, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.

“If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme.”

Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.

Further, the financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain.

The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country was also found to be “misconceived”. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.

The Court, hence, found no reason to interfere with the Scheme.

[Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266, decided on 26.03.2021]

Appearances before the Court by:

For appellant: Advocate Prashant Bhushan,

For Union of India: Attorney General KK Venugopal

For ECI: Senior Advocate Rakesh Dwivedi

Case BriefsSupreme Court

[NOTE: This Report highlights the important observations made by Justice Sanjiv Khanna in his dissenting opinion in the Central Vista Project case. Justice AM Khanwilkar has written the majority opinion, for himself and Justice Dinesh Maheshwari, in the 2:1 judgment that gave a go ahead to the Centra Vista Project.]

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ has, by a 2:1 verdict, has given a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Sanjiv Khanna, J said that he had reservations with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.

Here are the key takeaways from Justice Sanjiv Khanna’s dissenting opinion

  • To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would be defeat the benefic objective of exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements.

“Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure.”

  • Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments. They have far more permanent consequences.

“It was therefore necessary for the DDA to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact, and proposed change in use of the iconic and heritage buildings.”

  • Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the proposal. Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum extent, rather than read them down as mere irregularity or dilute them as unnecessary or not mandated.
  • Deliberative democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision-making.
  • Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision-making stage. In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision-making is more efficient in smaller groups.
  • Delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry’s right to know and be informed. Democracy, by the people, is not a right to periodical referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the government’s duty to inform are embedded in democratic form of governance as well as the fundamental right to freedom of speech and expression.
  • When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility. This is not to say that consultation should be open ended and indefinite, or the government must release all information, as disclosure of certain information may violate the right to privacy of individuals, cause breach of national security, impinge on confidentiality etc. Information may be abridged or even denied for larger public interest. This implies that there should be good grounds and justification to withhold information.

“Boundaries of what constitutes legitimate with holding can at times be debatable; but in the present case, there is no contestation between transparency and the right to know on the one hand, and the concerns of privacy, confidentiality and national security on the other. Further, the Development Act and Development Rules demand and require openness and transparency, and embody without exception the right to know which is implicit in the right to participate and duty to consult.”

  • While the Respondents have claimed that modifications to the Master Plan of Delhi would not result in change in character of the plan, a reading of the notice inviting tenders published by the Central Public Works Department inviting design and planning firms for the “Development / Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi” indicates that the proposed project does envisage extensive change to the landscape.

“The impact of the changes envisaged are not minor and what is envisaged is complete redevelopment of the entire Central Vista, with site development infrastructure, landscape design, engineering design and services, mobility plan etc. The expenditure to be incurred and demolition and constructions as proposed indicate the expansive and sweeping modifications/changes purposed.”

  • It would be hypothetical and incongruous to accept that L&DO had applied its mind to the objections and suggestions even before the public hearing, and therefore, the court should assume that the Central Government had considered the objections and suggestions. The letter written by the L&DO dated 6th February 2020 with reference to the background note does not reflect consideration of the objections and suggestions but inter alia states that by an earlier letter dated 4th December 2019, agenda for change of land use of eight blocks has been forwarded for placing before the technical committee of the Authority and a background note was being enclosed. Authority was requested to take necessary action accordingly. This is not a letter or communication showing consideration of the suggestions and objections.

“Final decision must be conscientiously and objectively taken by the competent authority post the hearing.”

  • The Central Government has not placed on record even a single document or minutes to show that the objections and suggestions were considered by the Central Government, albeit they place reliance on the gazette notification 20th March, 2020 which does not specifically talk about considerations of objections and suggestions but states ‘whereas the Central Government have after carefully considering all aspects of the matter, have decided to modify the Master Plan for Delhi 2021/Zonal Development Plan for Zone D and Zone C’.
  • There is violation of the Section 45 as public notice of hearing fixed on 6th and 7th of February 2020 was issued by way of public notice dated 3rd February, 2020 published on 5 th February, 2020. SMS and email were issued at the last moment. Lack of reasonable time, therefore, prevented the persons who had filed objections and given suggestions to present and appear orally state their point of view.
  • A meeting of the Committee on 23rd April 2020 through video conferencing, with the agenda “Proposed New Parliament Building at Plot No.118, New Delhi”, was held, and ‘No Objection’ was granted.
  • Pertinently, the mandate of the Committee is to engage architects and town planners to advise the government on development of the Central Vista and the Secretarial Complex. However, four independent representatives, namely, (i) President of Indian Institute of Architects; (ii) representative of Indian Institute of Architects (Northern Chapter); (iii) President of Institute of Town Planners, India; and (iv) representative of Institute of Town Planners, India, were absent and did not participate. Even the Chief Architect of the NDMC was not present. Therefore, only the representatives of the Government, the Director Delhi Division, MoHUA and Joint Secretary (Admn.) of Ministry of Environment and Forests were present.
  • Given the nature and magnitude of the entire re-development project and having given due notice to the language, as well as object and purpose behind the re-development project, undoubtedly prior approvals and permissions from the Heritage Conservation Committee were/are required and necessary.

“Where power is given to do a certain thing in a certain way, then the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. When the statute prescribes a particular act must be done by following a particular procedure, the act must be done in that manner or not at all.”

However, Heritage Conservation Committee was never moved to secure approval/permission. No approval/permission has been taken.

  • Paragraph 1.3 states that redevelopment, engineering operations, or even additions/alterations etc. require prior permission of Heritage Conservation Committee. However for demolition, major repairs and alterations/additions to listed buildings or building precincts procedure of inviting objections and suggestions from the public shall be followed. Heritage Conservation Committee would consider the suggestions and objections. Decision of the Heritage Conservation Committee is final and binding.
  • Failure to record reasons can amount to denial of justice, as the reasons are a live link between the mind of the decision maker to the controversy in question and decision or conclusion arrived at. Therefore, requirement of a speaking order is judicially recognised as an imperative.


A) The Central Government/Authority would put on public domain on the web, intelligible and adequate information along with drawings, layout plans, with explanatory memorandum etc. within a period of 7 days.

B) Public Advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media would be made within 7 days.

C) Anyone desirous of filing suggestions/objections may do so within 4 weeks from the date of publication. Objections/ suggestions can be sent by email or to the postal address which would be indicated/mentioned in the public notice.

D) The public notice would also notify the date, time and place when public hearing, which would be given by the Heritage Conservation Committee to the persons desirous of appearing before the said Committee. No adjournment or request for postponement would be entertained. However, the Heritage Conservation Committee may if required fix additional date for hearing.

E) Objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections etc. would also be taken into consideration while deciding the question of approval/permission.

F) Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye Laws and the Master Plan of Delhi.

G) Heritage Conservation Committee would be at liberty to also undertaken the public participation exercise if it feels appropriate and necessary in terms of paragraph 1.3 or other paragraphs of the Unified Building Bye Laws for consultation, hearing etc. It would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath.

H) The report of the Heritage Conservation Committee would be then along with the records sent to the Central Government, which would then pass an order in accordance with law and in terms of Section 11A of the Development Act and applicable Development Rules, read with the Unified Building Bye-laws.

I) Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new parliament on Plot No. 118. However, its final decision or outcome will be communicated to the local body viz., NDMC, after and only if, the modifications in the master plan were notified.

J) Heritage Conservation Committee would pass a speaking order setting out reasons for the conclusions.

Further, the order of the EAC dated 22nd April,2020 and the environment clearance by the Ministry of Environment and Forest dated 17th June,2020 was set aside, and EAC has been requested to decide the question on environment clearance within a period of 30 days from the date copy of this order received, without awaiting the decision on the question of change/modification of land use. Speaking and reasoned order would be passed.

[Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7, decided on 05.01.2020]

*Justice AM Khanwilkar has penned the majority opinion. Read more about him here

** Justice Sanjiv Khanna has penned the dissenting opinion. 


Here’s why the Supreme Court gave a go-ahead to Central Vista Project in a 2:1 verdict [Read majority opinion]

Case BriefsSupreme Court

[NOTE: This Report highlights the important observations made by Justice AM Khaniwlkar while writing the majority opinion in the Central Vista Project case, for himself and Justice Dinesh Maheshwari. Justice Sanjiv Khanna has given the dissenting opinion in the case]

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ has, by a 2:1 verdict, has given a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

“We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this Court, or if we can question the wisdom of the government in focusing on a particular direction of development. We are equally compelled to wonder if we can jump to put a full stop on execution of policy matters in the first instance without a demonstration of irreparable loss or urgent necessity, or if we can guide the government on moral or ethical matters without any legal basis. In light of the settled law, we should be loath to venture into these areas.”

Here are the key highlights from the majority opinion: 


The petitioners have not been able to demonstrate any case of denial of natural justice. For, the prescribed procedure, both by statute and convention, seems to have substantially been followed. In fact, in circumstances when challenge is raised to a project of immense national importance which is not limited to any particular city or state or intended to give benefit to any private individual, impediments cannot be induced by reading in requirements which are not mandated by law.

“The principle of “Rule of Law” requires rule in accordance with the law as it is, and not in accordance with an individual’s subjective understanding of law. Substantial justice is the core of any such inquiry and it is in this direction that processes are to be understood and adjudicated upon. The Court needs to be conscious of all aspects in a non-adversarial public interest litigation where public interest is the sole premise of enquiry.”


It is no doubt true that the classification of legislative or administrative functions can no more be done like a pigeon-holes classification. It was because of this reason that the phrases “quasi-legislative” and “quasi-administrative” have made inroads in the modern administrative law. In fact, in practical parlance, even quasi-legislative functions are treated as falling under the wider ambit of administrative functions.

In the present case, what is being modified is the master/zonal plan already in existence. True that is not an action that creates new zones or new parameters. However, the underlying nature of activity being performed here is of town planning and change in land use of one or couple of plots in a given zone. It is a modification which will provide direction to all future development of the subject plots.

“… there is a distinction between modifying the use of land in a given zone and demarcating fresh boundaries for various zones of land. The change of usage of Government land is of a general nature. It is certainly not a purely routine administrative work. That means that the function of change in land use has a quasi-legislative hue to it.”


The notice of meeting was communicated to all the members on 16.4.2020 and they were asked to make the requisite arrangements in advance. Furthermore, the members who lacked in technical know-how to interact virtually were given the option of necessary assistance for the purpose of meeting. In such a scenario, it is inconceivable to say that the members were deliberately kept out of the meeting.

“If they failed to join the meeting for reasons best known to them, the outcome of the meeting cannot be assailed by alleging motives. Further, the minutes of meeting were mailed to all the members on 30.4.2020 and even then, no word of discord or dissatisfaction was received from any of these members. It must follow that their absence cannot be equated to an irregularity, much less an illegality. The Committee was not expected to sit over the proposal merely because some members were unwilling to join virtually despite all arrangements being in place. Indisputably, none of the absent members is before us in this case and we have no occasion whatsoever to consider them as being aggrieved in any manner, for no grievance at their instance has come on record.”


When petitioners allege illegality on a ground such as absence of reasons in a pure administrative process, they must bear the burden to demonstrate the requirement of reasons in the first place. It is not as if reasons are mandatory in all decisions.”

In cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that absence of reasons would be a violation of a legal requirement and thus, illegal. However, in cases when there is no express requirement of reasons, the ulterior effect of absence of reasons on the final decision cannot be sealed in a straightjacketed manner. Such cases need to be examined from a broad perspective in the light of overall circumstances.

In cases where individual rights are affected by the decision, an opportunity of being heard and application of mind couched in the form of reasons form part of the jurisprudential doctrine. Such cases need to be distinguished from cases which do not impinge upon individual rights and involve ordinary administrative processes. For, similar standards cannot be deployed to decide both these cases.

“What we are dealing with is the opinion of an advisory (administrative) body which is appointed by the same Government which calls for its advice and not to adjudicate upon rights of individuals. Even if we assume that the no objection by an advisory body would have the effect of affecting the objectivity of the final decision, the fact remains that it does not take the final decision. It is meant to invoke its expertise in light of the subject proposal placed before it and advise the Government as regards the feasibility of the proposed development in connection with the existing central vista region. The final decision would be that of the competent authority of the concerned department.”

Not being a statutory body, an advisory body’s opinion has no finality attached to it nor could be appealed against to superior forum.

“Undeniably, in the process of decision-making, the Government may choose to consult as many bodies and agencies as it desires and opinion of every such advisory body cannot be assailed by supplying fictional standards without keeping in view the nature of body and context of advice.”

The DUAC was sitting in an advisory capacity so as to advise the Government on aesthetics of a development/re-development project. It is not meant to analyse any other aspect of the project. In that, it is expected to apply its mind to those aspects of the project which may have a bearing on aesthetics. The Minutes succinctly reveal that complete information relating to designs was placed before the DUAC and it applied itself on an array of factors including parking, plantation of trees, traffic, appearance of facade, ventilation, landscape, building equipment etc. so far as the same are relevant for its enquiry, to fulfil its advisory duties.

“…the allegation of arbitrariness is easy to raise in a theoretical discourse, but hard to establish in a Court of law where unsubstantiated considerations have no place.”


Legitimate expectations may arise in cases when the decision-making body deviates from a set standard, thereby impinging upon the rights of those who are subjected to the decision.

“In the present case, had the project proponent entirely skipped the step of consultation with CVC, enforcing such consultation by operation of legitimate expectation may have come into play.”


Once an expert committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which reveals total absence of mind. Absent that material, due deference must be shown to the decisions of experts.

“The facts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation.”


Once the project proponent frames a conscious timeline of completion of various projects which broadly fall under the umbrella of a common vision for the region, the same cannot be disturbed on the notion that the whole vision should go through the regulatory compliances at once. That would defeat the whole purpose of advance planning of a development activity. Planning involves in-depth consideration of a wide range of concerns including regulatory requirements. The decision to attribute different timelines and purposes to different projects is a domain of planning and the Court cannot readily attribute the label of mala fides to such informed decision until and unless there is a clear attempt to evade the requirements of law.


In this case, the process of tender was used to select the consultant wherein uniform conditions were prescribed for all the participants who were eligible and free to participate in the process. Upon submission of bids, their applications were analysed on pre-determined set of objective parameters which were duly notified to all the participants beforehand. The petitioners have not shown that the conditions of tender were deliberately crafted in a manner to make them suitable for a particular participant. Nor, have they shown that the conditions were violative of any mandatory requirement.


“Just because the Government has followed a particular method of selection/appointment of the Consultant for the stated project and another one would have been a better option cannot be the basis to quash the appointment already made after following a fair procedure consequent to inviting tenders from eligible persons similarly placed.”


“For proving a violation of public trust, it falls upon the petitioners to establish that public resources are being squandered and used or planned to be used in a manner which cannot be termed as beneficial public use. As for the respondents, it falls upon them to establish that the proposed use of public resources is aligned in the direction of beneficial use and in public interest.”

In the present case, the respondents have elaborately demonstrated the imminent need for the project. Also, the change in land use does not result into any deprivation of recreational spaces. On the contrary, the changes would result into optimisation and greater access to open spaces including entail in assets creation.


Evidently, all relevant documents from the stage of expression of need for the project by Speaker of Lok Sabha to appointment of consultant, issuance of public notice, conduct of public hearing, final notification for change in land use and minutes of meetings of CVC, DUAC and EAC were placed in public domain. The petitioners have not pointed out a single document which formed a part of the process and was not placed in public domain.

“Be that as it may, it is also relevant to note that mere absence of information does not vitiate an administrative process, that too in toto.”

The real effect of absence of information in public domain has to be tested on the anvil of actual prejudice on public’s ability to participate in the decision-making process, wherever provided for. It must result into a denial of legally enforceable right. In the present case, none of the persons who participated in raising objections to change in land use or those who sent representations to DUAC and EAC have come forward to contend that they could not access information, thereby rendering them incapable of participating in the process or in raising informed objections.


(i) There is no infirmity in the grant of:

(a) “No Objection” by the Central Vista Committee (CVC);

(b) “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973; and

(c) “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016.

(ii) the exercise of power by the Central Government under Section 11A (2) of the DDA Act, 1957 is just and proper.

(iii) The recommendation of Environmental Clearance (EC) by Expert Appraisal Committee (EAC) and grant thereof by MoEF is just, proper and in accordance with law including the 2006 Notification.

(iv) The project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site.

(v) MoEF to consider issuing similar general directions regarding installation of adequate capacity of smog tower(s) as integral part in all future major development projects whilst granting development permissions, particularly in cities with bad track record of air quality – be it relating to Government buildings, townships or other private projects of similar scale and magnitude, including to use smog guns during the construction activity of the Project is in progress.

(vi) The stage of prior permission under clause 1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/redevelopment etc. work is to commence and not the incipient stage of planning and formalisation of the Project. Accordingly, the DDA shall obtain aforementioned prior permission of the designated Authority before actually starting any development/redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118, if already not obtained.

(vii) The selection/appointment of Consultant, in light of the limited examination warranted in this case, is held to be just and proper.

[Rajiv SUri v. Delhi Development Authority,  2021 SCC OnLine SC 7, decided on 05.01.2020]

*Justice AM Khanwilkar has penned the majority opinion 

Know Thy Judge| Justice AM Khanwilkar


‘Citizens have the right to know and participate in deliberation and decision making’; Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Op EdsOP. ED.

Right to Information Intertwined with Right to Privacy of Personal Information

The Right to Information (RTI) is considered as a fundamental right under Article 19(1)(a) of the Constitution[1] and is often described as a tenet for strengthening the pillars of democracy. The Right to Information Act, 2005 provides for transparency and accountability of Government through access of information to the general public.

On the other side, the right to privacy is also considered as a fundamental right under Article 21 of the Constitution since 2017 when the Supreme Court ruled so in K.S. Puttaswamy v. Union of India[2].

The real challenge is when both these rights are at crossroad and enforcement of any one would lead to other being overridden. Thus, the RTI Act, 2005 paves the way for right to privacy by restricting the disclosure of the information which interferes with the privacy of any individual unless it is required for greater public good[3].

In Girish Ramchandra Deshpande v. Central Information Commission[4] (Girish Deshpande), the issue before the Supreme Court was whether the Central Information Commission (CIC) can deny the information pertaining to the personal matters of a public servant, pertaining to his service career and the details of his assets, liabilities, movable and immovable properties on the basis of exception mentioned in Section 8(1)(j) of the RTI Act, 2005.

Section 8(1)(j) of the  RTI  Act, 2005 provides that: Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen 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 Parliament or a State Legislature shall not be denied to any person.

The Court while expanding the scope of Section 8(1)(j) of the Act in the aforementioned case held that the documents pertaining to the public servant including his employment letter, assets, income tax return, details of gift received, orders of censure/punishment are exempted from being disclose by the virtue of Section 8(1)(j) and qualifies to be personal information. It further observed that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and these aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which would cause unwarranted invasion of privacy of that individual.

Further, the Supreme Court in R.K Jain v. Union of India[5] wherein the appellant sought copies of all note sheets and correspondence pages as contained in an Annual Confidential Report (ACR) and any follow up action pertaining integrity of a public servant was denied on the basis of Section 8(1)(j) of the RTI Act.

Similarly, in 2017 the Supreme Court again reiterated its position in the judgment of Canara Bank v. C.S. Shyam[6], wherein the information sought was of personal information of an employee of Canara Bank. The court while affirming the position of Girish Deshpande[7] as well as R.K. Jain v. Union of India[8] held that personal information is outside the ambit of the RTI and that there was no public interest having larger good involved in respect of personal information being sought.

Privacy Upheld by Judiciary in the Often Referred to “Name and Shame” Decision in Lucknow, Uttar Pradesh

Recently, after the promulgation of the Citizenship Amendment Bill, 2019 (CAA), there were nationwide protests against the Government and the CAA which led the Uttar Pradesh Government/administration to take an unforeseen action against the protestors who were accused of vandalism. The administration displayed banners in the city of Lucknow which had all the details of those protestors including their photographs, name and address, against whom the administration had initiated actions to claim compensation for public vandalism.

The poster sought to confiscation of property if the accused failed to pay up the compensation. This found widespread telecast and reporting in print. The Allahabad High Court had taken a suo motu cognizance of such move considering it to be a gross violation of right to privacy as enshrined under Article 21 of the Constitution.

The Court although had not referred to the judgment of Girish Deshpande[9], but had held that such move by the UP Government was uncalled for and breached the right to privacy of the rioters. Though the judgment in Girish Deshpande[10] had little relation to the referred case here, but it is worth mentioning in the context of right to privacy of personal information which won in this case.

Let us try to Analyse Excerpts of the Ruling by the Allahabad High Court

It has been often said that the right to privacy provides lungs to the edifice of the constitutional system. The slightest injury to this right is impermissible as it would put the values designed and depicted in the Preamble of the Constitution to jeopardy. Primarily, the foregoing was upheld in the ruling by the Allahabad High Court.

The act on the part of district and police administration of Lucknow was in conflict with the right of life and liberty of individuals. The territorial jurisdiction of the Allahabad High Court which was challenged was put to rest with the argument that despite the fact that the action might have happened in Lucknow and no personal injury was caused, but the act on the part of the administration demonstrated gross ignorance of constitutional and democratic values and the fact that it was widely prone to public dissemination via media, it could lead to form a State-wide nature of impugned action.

The administration’s logic to display the names of the accused at a conspicuous place was that it should act as a deterrent to public to take law in their hands and was in public interest. This was challenged to be in violation of people’s fundamental rights. Further, it was held that there was no provision in the current law by which the Government could display such names in public fora and that those persons were not even fugitives.

The Allahabad High Court also questioned rational nexus between the object (to deter public at large from participating in such illegal acts of rioting, etc.) and means (display of identity against whom compensation has been claimed for destroying public property) adopted to achieve the object and further how the extent of interference is proportionate to its need. It was said that the fact that only few peoples’ name was put on the banners while there must be several thousand cases against several accused in the State for several serious crimes, the administration had done a colourable act in exercise of its executive powers.

UP authorities was ordered to take down banners from the road side displaying the personal information of individuals and not to do such acts without authority of law.[11] The UP Government has appealed against the aforesaid order before the Supreme Court, which has not been stayed yet and has been referred to a larger Bench.[12]

Right to Fair Trial over and above Right to Privacy

The issue[13] arose through a matrimonial dispute wherein the family court had admitted a Compact Disk (CD) filed by husband wherein the wife could be heard talking ill about the husband and his family. The husband contended that such derogatory remark amounts to cruelty. Thereafter, the wife approached the Delhi High Court under Article 227 of the Constitution seeking dismissal of the CD being taken on record as evidence. The reasoning provided by wife was that the CD was tampered, therefore unreliable and that the conversation between her and so called friend was recorded without her knowledge or consent which constituted violation of her fundamental right to privacy, therefore not admissible as evidence. For the purpose of case analysis here, we will only consider the legal point pertaining  privacy.

The argument put forth by wife was that privacy had been recognised by the Supreme Court as a fundamental right, available to a person not only against the State but also against private individuals as is recognised by the Supreme Court in  K.S. Puttaswamy v. Union of India[14].

On the other hand, husband’s contention was that although privacy had been recognised by the Supreme Court as a fundamental right, but it was not absolute and subject to reasonable restrictions.

Relying upon other judicial precedents, it was urged that the husband was entitled to establish cruelty on the wife’s part and to prove his case seeking dissolution of marriage on that ground under the family law concerned. Accordingly, the wife’s right to privacy must accede to the husband’s right to bring evidence to prove his case, else the husband would be denied the right to fair trial guaranteed under Article 21 of the Constitution.

The single Judge Bench while considering the various judicial precedents cited on both sides  categorically held that in the case of conflict between two rights i.e. right to fair trial and right to privacy, the fundamental right to privacy had to yield to right to fair trial and thus any incriminating evidence collected through breach of privacy was admissible in the court of law. The court had harmoniously interpreted two fundamental rights which flows out from Article 21 of the Constitution and had observed that no fundamental right is absolute.

The Court relied upon the decision of the Supreme Court in M.P. Sharma v. Satish Chandra[15]  wherein it was contended that the evidence collected should be inadmissible being an illegally compelled evidence and thus is violative of Article 20(3) of the Constitution, the Supreme Court held that although the search or seizure was illegally conducted and may amount to breach of a fundamental right but that would not make the search or seizure invalid in law. The court also relied upon a Supreme Court decision of Pooran Mal v. Director of Inspection (Investigation),[16] wherein the seizure of account books, documents and valuables by income tax authorities was challenged to be in conflict with Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution.

The Supreme Court while interpreting the provision of the Evidence Act, 1872 noted that the only test of an admissibility of evidence is its relevancy  and thus it is immaterial whether the evidence is procured through an illegal search or seizure.

Investigation is an Intrusion to Privacy, but the Unearthing of Truth must Happen in the Interest of Justice

The year 2020 has not only been marred by so many deaths due to  Covid-19, but also under mysterious circumstances particularly the much media investigated and publicised case of  Sushant Singh Rajput. Due to dissemination of personal information in public both from the right and wrong parties (referring to the parties in dispute), there is a privacy angle that has gained prominence.

In normal instances, investigation are done by State police and investigative bodies under the Government (State or Central, or both), but the mysterious stories including foul play circling round the matter has allowed the media to take centre stage in investigation. One of the good instances wherein due to free media reporting, the case is probably heading in the right direction otherwise it would have gone under cover long ago. Interestingly, from call data records to WhatsApp chats are on display in several news channels.

Now, this is personal information. Given the background, it may be worthwhile to look into some judicial pronouncements particularly from the admissibility of evidence and court’s opinion on privacy with respect of phone taping. It may be further provided that in current times a separate process is required for accessing phone records from the telecom providers and these pronouncements should not be read in entire isolation.

In R.M. Malkani v. State of Maharashtra[17] it has been held that conversation that is tape-recorded by an external device, without tampering or interrupting telephone lines, is admissible in evidence. In this case the Supreme Court has spelt-out three conditions for admissibility of a tape recording, namely, (a) relevance, (b) voice identification; and (c) proof of accuracy. Further it has been held that evidence, even if procured illegally, is admissible.

In another case of Tukaram S. Dighole v. Manikrao Shivaji Kokate[18], it has been held that tape recordings of speeches are documents under Section 3 of the Evidence Act, 1872 which stand on no different footing than photographs, and are admissible after satisfying the three conditions as laid down inter alia in R.M. Malkani[19]. Further in N. Sri Rama Reddy v. V.V. Giri[20], it has been held that a tape recording can be used to corroborate as well as contradict evidence.

There has been contrary pronouncements as well to include as in State of Punjab v. Baldev Singh[21] where the Supreme Court has held that while considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot  allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by conduct of which the prosecution ought not to take advantage, particularly when that conduct causes prejudice to the accused.

With times changing, tape recordings have been replaced with WhatsApp chats, however the above principles should still be applicable subject to any evolving judicial pronouncements and evidence laws pertaining e-information.

To conclude, right to privacy is not an absolute right and has to be placed in the context of other rights and values depending upon the facts of the case. And we see the beam balance swaying on either side when right to privacy and other rights are involved as we researched in the foregoing.

*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at **Sayantan Dey, Legal and Compliance Professional and Ujjwal Agrawal, Student Researcher Corp Comm Legal.

[1]      Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788: AIR 1973 SC 106; State of U.P. v. Raj Narain, (1975) 4 SCC 428; Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641: 1986 AIR SC 515.

[2]      (2017) 10 SCC 1.

[3]      S. 8(1)(j) of the Right to Information Act, 2005.

[4]      (2013) 1 SCC 212.

[5]      (2013) 14 SCC 794.

[6]    (2018) 11 SCC 426.

[7]      Supra (Note 4).

[8]      Supra (Note 5).

[9]      Supra (Note 4).

[10]    Supra (Note 4).

[11]  Banners Placed on Road Side in the City of Lucknow, In re, 2020 SCC OnLine All 244.

[12]  <>.

[13]    Deepti Kapur v. Kunal Julka, 2020 SCC Online Del 672.

[14]    (2017) 10 SCC 1.

[15]    AIR 1954 SC 300.

[16]    (1974) 1 SCC 345.

[17]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[18]    (2010) 4 SCC 329.

[19]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[20]    (1970) 2 SCC 340.

[21]    (1999) 6 SCC 172.

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. The order of the Court came in the plea seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.

Noticing that since the issues involved affect the State, and the nation, the Court was of the opinion that the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. It, hence, found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The Committee will consists of:

  • The Secretary, Ministry of Home Affairs (Home Secretary), Government of India. (Head of the Committee)
  • The Secretary, Department of Communications, Ministry of Communications, Government of India.
  • The Chief Secretary, Union Territory of Jammu and Kashmir.

The Committee will not only examine the contentions of, and the material placed by both the parties but also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise Centre regarding the same.

It is important to note that, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended. While on one hand, the petitioners have argued that 4G speed was essential for healthcare, education, trade and business in the union territory during this hour of crisis due to coronavirus, the officials in Jammu and Kashmir, on the other hand, contended that restoration of 4G services could give rise to anti-national activities and militancy.

Attorney General KK Venugopal appearing for the Central government had earlier, told the Court that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Taking note of all the arguments, the Court said that while it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. However, considering that the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir, the Court, however, said,

“we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration.”

The Court, hence, highlighted the observations made by it’s January order in Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, wherein it has said that for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.

Though the Court agreed to it’s observation in Anuradha Bhasin judgment that the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies, it was also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens and that it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown.

Terming the issue of restoration of 4G internet service in the valley as “a very important but a sensitive issue on national security and human rights”, the Court asked the Committee to take a balanced decision, keeping both aspects in mind.

[Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453, decided on 11.05.2020]

Also read:

Article 370| Review all orders imposing curbs in a week and put them in public domain: SC to J&K administration [Anuradha Bhasin judgment]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.C. Dharmadhikari and R.I. Chagla, JJ., addressed a PIL that sought effective enforcement and implementation of The Right to Information Act, 2005.

For the above, bench stated that certain orders have been passed from time to time to ensure that the RTI Act, 2005 does not become a dead letter.

The Court stated that,

“Enactment is in the larger public interest. Right to Information is implicit and inbuilt in the right and freedom guaranteed to a citizen under Article 19(1)(a) of the Constitution of India. Right to free speech and expression includes within it the right to information. That is how this constitutionally recognised and permitted right is made meaning and its enforcement is now serving a larger public purpose. It is only the enforcement machinery which is created by the RTI Act, 2005.”

Local bodies and all those authorities having the trapping of a State are covered by the law. As far as the State Government is concerned, it was handicapped for want of staff. It has been noted that on account of the present PIL and certain directions of the Supreme Court, recruitment rules have been framed.

State Government by its affidavit assured the Court that the rules framed with respect to recruitment will be duly followed and the vacant posts will be filled up from time to time. Further through the affidavit, it has also been informed that merely because there are vacancies, the State Government will not deny information to the members of the public if that is otherwise to be made available.

It has also been noted that only 14 vacant positions are left to be filled now, for which the process in accordance with the recruitment rules will be initiated and completed.

In view of the above, the matter has been placed listed for 14-01-2020. [Public Concern for Governance Trust v. State of Maharashtra, 2019 SCC OnLine Bom 5303, decided on 03-12-2019]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In yet another historic verdict, the 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the mjority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion.

Majority Verdict penned by Sanjiv Khanna, J

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Section 8(1)(j) vis-à-vis Section 11 of the RTI Act

Section 8(1)(j) 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.

On the relative scope of both the provisions, the Court said,

“the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority.”

Public Interest Test

The Court said that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.

Some of the important aspects highlighted by the Court are as follows:

    • Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure.
    • Public interest is not immutable and even time-gap may make a significant difference
    • The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case.
    • ‘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.

Judicial Independence

The independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like.

The Court said that it cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. It, however, said,

“we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information.”

The Court concluded by saying that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.

Delhi High Court’s Judgment

The Court upheld the 2010 Delhi High Court verdict where it had directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. The Court said that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.

NV Ramana, J’s separate but concurring opinion

“Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”

Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps

First Step: Whether information is private or not

  • The nature of information.
  • Impact on private life.
  • Improper conduct.
  • Criminality
  • Place where the activity occurred or the information was found.
  • Attributes of claimants such as being a public figure, a minor etc and their reputation.
  • Absence of consent.
  • Circumstances and purposes for which the information came into the hands of the publishers.
  • Effect on the claimant.
  • Intrusion’s nature and purpose

Second step: Whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act

  • Nature and content of the information
  • Consequences of non-disclosure; dangers and benefits to public
  • Type of confidential obligation.
  • Beliefs of the confidant; reasonable suspicion
  • Party to whom information is disclosed
  • Manner in which information acquired
  • Public and private interests
  • Freedom of expression and proportionality.

Chandrachud, J’s separate but concurring opinion

“To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”

Though Chandrachud, J noticed that to be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’ and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said

“But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve.”

He further said that the judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power.

[Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459, decided on 13.11.2019]

Hot Off The PressNews

Supreme Court:  The Court has asked the Centre and State Governments to file reply on a plea seeking direction to establish Right to Information(RTI)  web portals in all states to enable citizens, especially those living abroad, to file RTI  applications online. A bench headed by Justice NV Ramana asked them to file a reply in two weeks and the petitioner to file a rejoinder thereafter. It said that no further adjournment would be granted to the parties.

The order was passed on a plea filed by Pravasi Legal Cell contending that none of the states, except Delhi and Maharashtra, have set up the online RTI portals.

Under the RTI  Act, any citizen of India may request information from a public authority which is required to reply within thirty days.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: In the bid to gather information from intermediaries regarding the names of the originators of any message/content/information shared on the platforms run by these intermediaries, the Court has asked the Ministry of Electronics & Information Technology to file an affidavit within three weeks placing on record the stage at which the process of framing/notifying the rules is at. The Court also asked the Secretary to give definite timelines in respect of completing the process of notifying the rules.

The bench of Deepak Gupta and Aniruddha passed the order in the light of the fact that there are various messages and content spread/shared on the social media, some of which are harmful.

“Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contrabands can be sold through the use of platforms run by the intermediaries.”

The bench, hence, noticed that in such circumstances, it is imperative that there is a properly framed regime to find out the persons/institutions/bodies who are the originators of such content/messages. It may be necessary to get such information from the intermediaries.

Some intermediaries, however, submitted that they cannot provide information either with regard to the content or with regard to the originators because they have end to end encryption and therefore, even the intermediaries are not in a position to find out who is the originator or what is the content.

On the said issue, the Court noticed that

“de-encryption, if available easily, could defeat the fundamental right of privacy and de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected.”

It, hence, said that for purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.

After Solicitor General Tushar Mehta told that the Court that  the matter is under active consideration of the Union of India and that the draft rules in this regard have already been framed and are only required to be notified, the Court asked Solicitor General to take complete instructions in the matter.

[Facebook Inc. v. Union of India, 2019 SCC OnLine SC 1264, order dated 24.09.2019]

Hot Off The PressNews

Supreme Court: After hearing Attorney General KK Venugopal, appearing for the Supreme Court and advocate Prashant Bhushan, appearing for the RTI activist Subhash Chandra Agarwal, the 5-judge bench of Ranjan Gogoi, CJ and N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ reserved the verdict in the matter where an RTI Activist had sought disclosure of information on appointment of judges, thereby bringing collegium under RTI.

For the past decade, the Supreme Court has refused to divulge information under RTI about the collegium’s confidential communications with the government. The collegium recommends judges for the High Courts and the apex court. The Supreme Court, after losing legal battles before the Central Information Commission (CIC) and the Delhi High Court, finally had to appeal to itself to protect the collegium’s workings.

AG’s submission

AG represented the Supreme Court’s Central Public Information Officer (CPIO), who is the authority tasked to respond to RTI queries related to the court. He argued before the Court that opening up the “highly-sensitive” correspondence of the Supreme Court’s collegium and its workings to the Right to Information(RTI) regime would make judges and the government “shy” and “destroy” judicial independence. He also asserted that if the RTI will be applied to the collegium, its member judges would not be able to sit back and have a free and frank discussion for fear that their confidential views may later come into the public domain.

He said,

“If reasons for his rejection come into public domain, will a judge be able to function independently? The entire future of the judge is ruined. The public, litigants lose their confidence in him. A judge whose integrity has been questioned and overlooked for appointment or elevation, is handicapped. He cannot go to the press to clear the air. Disclosure of highly sensitive communication under RTI will risk the very existence of the judicial way of functioning. So, the information should be kept confidential.”

Acknowledging that the right to know was part of the right to free speech, AG said the right to free speech was, however, subject to reasonable restrictions.

On the question of disclosure of personal assets of judges, AG argued even  under RTI was an “unwarranted intrusion” into their privacy.

Prashant Bhushan’s Submissions

Arguing on behalf of RTI activist Subhash Chandra Agarwal, advocate Prashant Bhushan said that the Court has always been on forefront of right to information and transparency. He said that even in SP Gupta judgment, the 7-judge bench said that non disclosure of information would cause greater harm to public interest. He further argued that even in the absence of RTI Act, the Court has held that candidates contesting elections should disclose their criminal antecedents.

He said,

“You have asked centre to follow transparency in appointment in other wings of the Government. You can’t claim exemption from disclosure of information relating to appointment of judges.”

He also said that people are entitled to know about appointment of judges in a democracy. He told the Court,

“you have given judgments on transparency but deny information when it comes to you.”

He also said,

“An honest officer making a decision will not be cowed down by the fear that his reasoning or decision will become public tomorrow.”

When the bench said that a person may not want the information relating to his sexual orientation to be disclosed or the fact that he/she is suffering from schizophrenia, Bhushan agreed and said that Section 10 of RTI Act that provides exemption will be applicable in such cases.

On the issue of disclosure of assets of the judges, Bhushan said that  the RTI applicant is merely which judges submitted there asset details to CJI. 

(With inputs from The Hindu)

Central Information Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The appellant conducted blood group determination test 8 times in both government and privately-owned hospitals, situated in Agra as well as Delhi. Some tests returned his result as blood group ‘B-positive’ while others as ‘B-negative’. The appellant was perplexed and approached the Medical Council of India (“MCI”) under Right to Information Act (“Act”) to ascertain conclusively his blood group, specifically whether he was Rh-positive or Rh-negative.

The Public Information Officer (“PIO”) of the MCI responded saying that the information sought did not qualify as ‘information’ defined under Section 2(f) of the Act, which reads:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”

This argument by the respondent-MCI was accepted by the First Appellate Authority (“FAA”) who deemed the PIO’s reply appropriate.

The appellant approached the Central Information Commission (“CIC”) praying for relief, citing the reason that the matter pertained to his health and knowledge of his blood group is essential in case of an emergency where blood transfusion might be required. He, therefore, claimed a right to be informed of his correct blood group.

The MCI maintained that apart from the fact that the solicited information did not fall under the purview of the Act, but the respondent MCI neither possessed such information nor had any jurisdiction or power to obtain such information. The MCI also suggested that the All India Institute for Medical Sciences (“AIIMS”) may be approached to carry out suitable research on the same and put to rest the appellant’s queries.

The CIC held that the clarifications sought by the appellant can be construed as information as different pathology laboratories have provided opposite results and the appellant only wished to obtain concrete and reliable information in case of medical emergency, which is also a part of his Righto Life under the Constitution.

The CIC also observed that as a responsible and sensitive PIO, the respondent ought to have forwarded the appellant’s query to the AIIMS under Section 6(3) of the Act. Hence the respondent was directed to send the documents furnished by the appellant to the AIIMS, which was, in turn, requested to carry out necessary tests and provide the requested information. The appeal was accordingly disposed of. [Soni S Eramat v. Medical Council of India, File No. CIC/MEDCI/A/2017/120881, decided on 10.05.2018]

Central Information Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While reiterating that third party’s personal information held by the bank in fiduciary capacity involving commercial confidence is exempt from disclosure under Section 8(1)(d), (e) and (j) of the RTI Act, CIC disposed of an appeal seeking information from the State Bank of India (Mumbai) regarding the basis of giving huge loans to Gautam Adani Group along with the evidence that the loan was connected to the coal mines of Australia.

It was alleged by the appellant that the Group has taken loans worth about Rs. 77,000 crores from various banks and the Group’s financial position was not sound, therefore, he wanted the information. Earlier, appellant approached CPIO and the first appellate authority (FAA) of the Bank but was informed that the information being sought was commercial information and held by them in trust for the third party, therefore, it could not be provided. The contention of the appellant that larger public interest was involved in the matter as it was his duty to enquire into the documents submitted by the Group, was rejected by the Commission on the ground that appellant had not even mentioned any larger public interest in the matter let alone substantiate in his RTI application. “The Commission finds that the appellant had sought third party’s personal information held by the bank in fiduciary capacity involving commercial confidence. The Commission, therefore, holds that the information sought is exempt under Section 8(1)(d), (e) and (j) of the RTI Act,” noted the Commission while disposing of the appeal. [Ramesh Ranchordas Joshi v. State Bank of India, 2016 SCC OnLine CIC 15858, decided on October 4, 2016]