Hot Off The PressNews

On 24-11-2022, the Chief Justice of India, Dr Justice DY Chandrachud has launched the RTI Online Portal for the Supreme Court of India.

Key Guidelines:

  1. The Web Portal can be used only by Indian citizens to file Application, First Appeal and to make payment for Fees, Copying Charges, etc., under the Right to Information Act, 2005 (RTI Act).
  2. An applicant who desires to obtain information under the RTI Act from public authorities, other than Supreme Court of India, is advised to make RTI application to the concerned Public Authorities through respective Central/State Govt. Portal.
  3. On clicking “Submit” button, the applicant has to fill the required details on the page that will appear. Please note that all the fields marked * (red colour Asterix) are mandatory while the others are optional.
  4. The text of the application may be written at the prescribed column.
  5. Any supporting document/annexures can be attached as PDF document in “Supporting document” within the specified file size.
  6. After filling the first page, the applicant has to click on “Make Payment” to make payment of the prescribed RTI fee.
  7. Applicant can pay the prescribed fee through the following modes:
    1. Internet banking;
    2. Using credit/debit card of Master/Visa;
    3. UPI;
  8. Fee for making RTI application: a fee of ₹10/- per application is required. However, an applicant under the Below Poverty Line (BPL) is exempted to pay the requisite application fee under the RTI Rules, 2012. An applicant filing an application under the BPL category shall attach and upload a copy of the BPL certificate issued by the appropriate government in this regard, along with the application.
  9. An application would only be registered once the requisite fee has been paid successfully.
  10. In case after making payment, an applicant does not receives the registration number, the applicant is advised to wait for the 24-48 working hours as registration number will be generated after reconciliation. Please do not retry or make an additional attempt to make payment again. If an applicant does not receives the registration number within 24-48 hours, kindly send an e-mail at rti-cell@sci.nic.in with transaction details.
  11. On successful submission of an application, a unique Registration/Diary number would be generated and the same should be referred by the applicant for any future references and correspondences.
  12. Application filed through this Web Portal would reach electronically to the “Central Public Information Officer” of the Supreme Court of India and First Appellate Authority of Supreme Court of India, as the case may be.
  13. In case additional fee/copying charges are required representing the cost for providing information, the CPIO would intimate the applicant and the applicant can pay the same through Web Portal.
  14. For making First Appeal to the First Appellate Authority, the applicant has to click on the tab “Apply First Appeal” as provided on the concerned webpage and fill up the information as sought on the webpage.
  15. The registration number of original application has to be used for reference at the time of filing the First Appeal.
  16. As per RTI Act, no fee has to be paid for first appeal.
  17. Applicant/the appellant should submit their mobile number to receive SMS alert.
  18. To see the status of RTI Application/First Appeal filed through this Web Portal, a user check the same, by clicking at “View Status”.
  19. All the requirements for filing an RTI application and First Appeal as well as other provisions regarding time limit, exemptions etc., as provided in the RTI Actwill continue to apply.
  20. The permissible maximum file size allowed on this Web Portal is 1MB.
  21. The permissible file format allowed to be uploaded on this Web Portal is PDF file.
  22. Fee/Copying Charges once paid through this Web Portal shall not be refunded.
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.

Case BriefsSupreme Court

   

Supreme Court: In a case challenging the result of direct recruitment for Punjab/Haryana Superior Judicial Service, the Division Bench of Ajay Rastogi* and C.T. Ravikumar, JJ., reversed the impugned order of the Punjab and Haryana High Court rejecting the challenge to the selection process.

The Court held that the discrepancy regarding incomplete question paper could not be an inadvertent human error and that somebody must be held responsible for it. However, considering that the exam was conducted after 4-5 years, the Court opined that a fresh selection process could not be initiated, and the endeavour of the Court should always be to salvage the selection as much as possible.

Grounds for Challenge

The appellant is one of the applicants who had participated in direct recruitment to Punjab Superior Judicial Service/Haryana Superior Judicial Service, had approached the Punjab and Haryana High Court on being disappointed by not being qualified in the written examination with his trifold grievance:

  • Though, Paper V (Criminal Law) was of 200 marks, at the commencement of the examination, the question paper handed over to the candidates contained only 4 questions (nos. 1, 2, 3, and 5) of 160 marks in total instead of 200 marks. It was only when the complaint was made by the candidates that, after approx. an hour after the commencement of the examination, question no.4 was handed over as a supplementary question paper and no extra time was given for answering the additional question.

  • Despite repeated demands, the respondents have failed to provide the marks obtained by the appellant in the written examination. Even the application filed by the appellant under the Right to Information Act, 2005 came to be rejected.

  • In Paper VI (General Knowledge) which was an objective type paper, there were no instructions and no OMR sheet was supplied and the candidates were called upon to make a circle out of the four multiple choices, and the question paper supplied had to be returned to the Invigilators.

  • No provisional answer key was uploaded.

Impugned Decision

All three objections raised by the appellant were repelled by the High Court at the motion stage, without calling for a written response from the respondents. Aggrieved thereby, the appellant had challenged the impugned order of the High Court by contending that the process adopted by the respondents was neither transparent nor fair and the written examination may be cancelled or at least the Paper V may be cancelled and be conducted afresh; only thereafter the merit list be declared of the candidates who qualified the main examination.

Interim Order

Noticeably, the Supreme Court, by an earlier order while calling upon the respondents for their written response, had permitted the respondents to continue with the interview process with a further direction that the result would not be declared in the meantime. Hence, the interview has been held and the result is pending declaration.

Analysis and Findings

Non-availability of OMR Sheet

With regard to the objection about Paper VI (General Knowledge), the Court observed that all instructions were made available to the candidates specifically indicated on the overleaf of the question paper and all the candidates had a common level playing field. Hence, in the absence of any material on record in rebuttal, the allegation was not sustainable and deserved to be rejected.

However, the Court added that to keep transparency in the process of holding examination, particularly in such cases where there is a multiple-choice question paper, it is always advisable that there shall be an OMR so that the question paper can be retained by each of the participants and after the examination is held, and a provisional answer key is to be uploaded inviting objections from the candidates and after collating such objections, the same be placed before a subject expert committee and the report of the committee shall be examined by the recruiting authority and thereafter the final answer key is to be uploaded.

Non-disclosure of Marks under RTI Act

So far as the marks of the written examination not being supplied to the appellant under the Right to Information Act, 2005 was concerned, the Court opined that as long as the process is not complete, the marks of the written examination are not to be uploaded or made available to the candidates and if it is being permitted, that will not be in the interest of the applicants. The Court said,

The disclosure of the marks in the main examination before it is finalised and the viva-voce is conducted would be against the principles of transparency, rather it will invite criticism of bias or favouritism.

Incomplete Question Paper

On the contention that only four questions were there in the original paper and question no. 4 of 40 marks was handed over to the candidates later on, the Court opined that the same could not be an inadvertent human error as being projected by the respondents. Calling it a serious lapse on the part of the recruiting authority, the Court held that somebody must be held responsible for it and such kinds of lapses certainly cannot be countenanced by the Court.

However, noticing that there was no objection in reference to the four questions (nos. 1, 2, 3, and 5) of Paper V (Criminal Law), the Court opined that it would be just to let the respondents evaluate question nos. 1, 2, 3 and 5 of Paper V (Criminal Law) of 160 marks and exclude the question no.4 which was supplemented at a later stage of 40 marks while evaluating the marks secured by the candidates in Paper V. The Court expressed,

At this stage, the Court cannot be oblivious of the fact that the Punjab/Haryana Superior Judicial Service Examination, 2019 has been held after 4-5 years and since the fate of the examination 2019 is still sub-judice in this Court, fresh selection process could not have been initiated and if this irregularity pointed out can be possibly eliminated from the process of selection, particularly in the written examination, the endeavour of the Court should always be to salvage the selection as possible.

Conclusion

In the light of above, the appeal was allowed and the impugned order of the High Court was set aside. Additionally, the Court directed that the result of the intervenor (Aashish Saldi), who had participated as against 10% quota in-service officer under Rule 7(3)(b) of the Punjab Superior Judicial Services Rules, 2007 and had no lis with the present process, be declared and further action may be taken in accordance with Rules, 2007.

[Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 SCC OnLine SC 1111 , decided on 29-08-2022]

*Judgment by: Justice Ajay Rastogi


Advocates who appeared in this case:

Counsel for the Appellant: Deepkaran Dalal;

Counsel for the Respondent: Abhimanyu Tewari;

Counsel for the Intervenor Aashish Saldi: Kaveeta Wadia.


*Kamini Sharma, 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.

Op EdsOP. ED.

Background


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.

Introduction


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 bajpaiskand@gmail.com.

[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).

Case BriefsHigh Courts

Delhi High Court: In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

Petitioner challenged the order passed by the Central Information Commission on a second appeal which was preferred. The appeal itself was directed against a response which was preferred by the competent authority for the petitioner being provided the minutes and the resolution of the meeting of the Supreme Court Collegium stated to have been held on 12-12-2018.

Chief Information Commissioner held that in the absence of any resolution being passed, the petitioner had been correctly advised that in the absence of available information, no disclosure could possibly be made.

High Court’s attention was drawn to certain newspaper reports that reported certain statements to have been made by one of the member of the Collegium who was reported to have stated that certain decisions were, taken and had expressed disappointment that the same had not been uploaded.

The collegium, undisputedly, is a multi-member body whose decisions stand embodied in resolutions that may be ultimately drawn and signed. The disclosures made by the respondents when read carefully seem to indicate that no resolution with respect to the agenda items was drawn by members who constituted the Collegium on 12 December 2018.  

Further, it was observed that a “decision” taken by the collegium would necessarily have to be embodied in a “resolution” which is ultimately framed and signed by the members of that collective body.

That resolution alone would represent the collective decision taken or the majoritarian view which prevailed and was adopted.

The Bench stated that in the absence of any formal resolution coming to be adopted and signed by the members of the Collegium, the respondents rightly took the position that there was absence of material that was liable to be disclosed. [Anjali Bhardwaj v. CPIO, Supreme Court of India, 2022 SCC OnLine Del 905, decided on 30-3-2022]


Advocates before the Court:

For the Petitioner:

Mr. Prashant Bhushan and Mr. Rahul Gupta, Advs.

For the Respondent:

None

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.


Appearances:

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.


Appearances

For petitioners: Mr. Venkata Satya Narayan

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., upheld that order of the Central Information Commission whereby a penalty of Rs 10000 was imposed on the petitioners for changing stands while not providing the information as sought by the applicant under the RTI Act.

The instant petition was filed by two officers working with the Union Bank of India as Central Public Information Officers (CPIO).

The above-two officers challenged the impugned Order passed by the Central Information Commission vide which penalties amounting to Rs 10,000 were imposed upon them.

Background

An RTI application was filed by the applicant who was the Chief Manager at the Union Bank of India wherein he sought the following information:

Details of the Board approval along with justification for giving exemption with regard to 3 years branch head service.

The Office of the CPIO had informed the applicant that copy of the board note, being an internal document of commercial confidence would be exempted from disclosure.

Even the appellant authority stated that the copy of the board approval was exempted from being disclosed under Section 8(1)(d) of the RTI Act.

In the second appeal with regard to the matter, CIC found that there was no reason why complete information was not provided to the applicant and held that the responses provided were rather incomplete and evasive. Therefore, a show-cause notice to the CPIOs of the bank was issued.

On receiving the above show cause notice, the CPIOs responded stating that the information which was sought could not be found on record. Due to the change in stand by the petitioners, CIC imposed a penalty of Rs 10,000 under Section 20 of the RTI Act.

Analysis and Decision

Bench referred to this Court’s decision in R.K Jain v. Union of India, 2018 SCC OnLine Del 10957  wherein it was recognized that the CPIO, being the custodian of information or documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information, and in cases of default, the penal action is to be invoked against the CPIO only.

In the decision of Registrar of Companies v. Dharmendra Kumar Garg (WP(C) 11271/2009, decided on 1st June, 2012), the role of CPIOs under the RTI Act was elaborately dealt with.

Further, in the decision of J.P. Agrawal v. Union of India, (WP(C) 7232/2009, decided on 4th August, 2011) the Single Judge recognized that:

CPIOs/PIOs are not merely “post offices” and have a crucial responsibility in facilitating the purpose of the RTI Act.

 In light of the above decisions, the High Court laid down the following principles:

i)  CPIO/PIOs cannot withhold information without reasonable cause;

ii)  A PIO/CPIO cannot be held responsible if they have genuinely rejected the information sought on valid grounds permissible under the Act. A mere difference of opinion on the part of CIC cannot lead to an imposition of penalty under Section 20 of the RTI Act;

iii)  Government departments ought not to be permitted to evade disclosure of information. Diligence has to be exercised by the said departments, by conducting a thorough search and enquiry, before concluding that the information is not available or traceable;

iv) Every effort should be made to locate information, and the fear of disciplinary action would work as a deterrent against the suppression of information for vested interests;

v) PIO/CPIO cannot function merely as “post offices” but instead are responsible to ensure that the information sought under the RTI Act is provided;

vi) A PIO/CPIO has to apply their mind, analyze the material, and then direct disclosure or give reasons for non-disclosure. The PIO cannot rely upon subordinate officers;

vii) Duty of compliance lies upon the PIO/CPIO. The exercise of power by the PIO/CPIO has to be with objectivity and seriousness the PIO/CPIO cannot be casual in their approach.

viii) Information cannot be refused without reasonable cause.

Conclusion

Hence, the Court held that under the RTI Act, the CPIOs have a solemn responsibility.

Section 5(3) requires that every CPIO or SPIO shall deal with requests for information and `render reasonable assistance’ to the persons seeking information.

CPIOs or SPIOs can seek assistance from higher/other officials in the organisation in order to enable them to furnish the information sought for the `proper discharge’ of their duties, as per Section 5(4).

 In the present matter, CPIOs changed their stands which would go on to show that there was an intention to withhold certain important documents or information, leading to the finding of mala fides and unreasonable conduct.

In light of the above, Court opined that the penalty imposed could not be faulted with. However, considering the fact that both the CPIOs since retired from the service of the Bank, the penalty was reduced to Rs 5,000 each. [Rakesh Kumar Gupta (Erstwhile CPIO) Union Bank of India v. CIC, 2021 SCC OnLine Del 194, decided on 22-01-2021]


Advocates for the parties:

For the Petitioners: Mr O.P. Gaggar, Advocate.

For the Respondents: Mr Gaurang Kanth, Standing Counsel with Mr Aman Singh Bakhshi, Advocate.

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 bhumesh.verma@corpcommlegal.in. **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]  <https://www.livemint.com/news/india/sc-new-bench-to-hear-plea-against-allahabad-hc-order-on-lucknow-posters-11584003637212.html>.

[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 BriefsHigh Courts

Bombay High Court: A Division Bench of Nitin Jamdar and Milind Jadhav, JJ., took strong objection to the fact that despite the Office Memorandum dated 07-10-2016 [specifying that the personal details of the applicants under Right to Information Act should not be put up on the website], for four years, 4,474 RTI applications with personal details of the applicants were uploaded on the website of the Ministry of Information and Broadcasting. According to the Court, looking at the magnitude of the lapse, it cannot be treated as just a routine internal matter. The Court also placed the responsibility of ensuring that necessary enquiry is conducted and that too in time bound manner upon the highest official in the Ministry, the Secretary.

Petitioner who is a former journalist had applied under the Right to Information Act, 2005 to the Ministry of Youth and Sports Affairs seeking details regarding a campaign launched by the Government of India. The said application was transferred to the Ministry of Information and Broadcasting.

Petitioner submitted that it had instituted court proceedings on some sensitive social issues and started receiving threatening calls and messages. A mob had also gathered outside his residence. He noted that the Ministry of Information and Broadcasting has uploaded his personal details and uploaded the application filed by him.

Hence in view of the above, petitioner filed the instant petition for a direction that the petitioner’s personal details be removed from the website of Ministry of Information and broadcasting further he sought damages for mental agony.

During the hearing on 15-10-2020, the Counsel appearing for the Ministry had accepted that the Department of Personnel and Training had issued a memorandum on 7-10-2016, specifying that the personal details of the applicants under Right to Information Act should not be put up on the website. The said memorandum did not reach the Ministry of Information and Broadcasting, and with its knowledge, corrective action was taken.

In Avishek Goenka v. Ashish Kumar Roy, WP No. 33290(W) of 2013 decided by Calcutta High Court on 20-11-2013, Mr Goenka claiming to be an activist in the field of Right to Information, had approached the Calcutta High Court with the contention that the authority should not insist upon the detailed address of the applicant under the Act of 2005 as and when an application is made under the said Act.

In the above-cited decision, Division Bench considered Section 6(2) of the RTI Act and held that it would be the duty of the authority to hide such details and particularly from their website so that people at large would not know of the details. On 20-11-2013, the Court passed the order accordingly, and the Secretary, Ministry of Personnel was directed to circulate the copy of the order to all concerned so the authority can take measure to hide personal details of the activists to avoid any harassment by the persons having vested interests.

Ministry of Personnel had issued an Office Memorandum on 07-10-2016 wherein the Calcutta High Court decision was referred to in which it was directed that personal details of RTI applicants should not be disclosed. The legal position is thus clear that personal details of the applicant under the Act of 2005 should not be uploaded on the website.

Bench stated that the respondents could not seek dismissal of the petition contending that the petitioner was not the only victim of an irregularity, more particularly when the breach was in regard to an enactment which is an essential component of a working democracy.

Adding to the above, Court stated that respondent Ministry contends that it was not aware of the Official Memorandum dated 07-10-2016 and when it became aware, it took suitable action. This response is vague. There is no such general concept of awareness of a government department. Either the government department receives an official communication, or it was not received.

Right to Information Act is a unique and vital piece of legislation.

In the Calcutta High Court decision cited in the above paragraphs had cautioned of the intimidatory tactics of unscrupulous elements against such applicants. Based on this Court order, Office Memorandums were issued directing removal of personal details.

Uploading the personal details of the applicants is thus not only unnecessary, but it may also make some of the applicants vulnerable to unscrupulous elements.

Bench in the instant matter also observed that,

“Informed citizenry and transparency of information are vital for the functioning of democracy. Noticing that personal details of other applicants are put up in the public domain, some of those who want to seek information for the larger good may be deterred for the fear of being targeted.”

In the present matter, Court stated that it intends to place the responsibility of ensuring that necessary enquiry is conducted and that too in a time-bound manner upon the highest official in the ministry, the Secretary. If the enquiry will result in punitive action against the guilty government servants it would follow the applicable Rules and Regulations.

With regard to the claim for damages by the petitioners, Court stated that it is not the position of law that in writ jurisdiction, the moment the court concludes that a right is breached, damages must follow as of course without any further enquiry.

Courts grant damages in public law more in the cases of the poor and downtrodden who may not have the means to enforce their rights in private law. The law of damages requires various parameters to be evaluated.

Hence in the present case, the claim for damages is left open to be agitated in the appropriate civil forum.

With the following directions, the petition was disposed of:

(a) The papers of this Petition along with a copy of the replies filed by the Respondent and the copy of this order be placed before the Secretary, Ministry of Information and Broadcasting, Government of India.

(b) Responsibility is placed on the Secretary, Ministry of Information and Broadcasting, Government of India, to ensure that a suitable enquiry is held in the issues highlighted in this judgment regarding the uploading of the personal details of the applicants contrary to the Office Memorandum concerned.

(c) After a due enquiry, suitable disciplinary action will be taken as per the governing rules and regulations.

(d) Action under Clauses (b) and (c) will be completed within three months, that is by the first week of February 2021, from the date the order is placed before the Secretary as per clause (a).

(e) The report be submitted to the Registry of this court by the Secretary, under his signature of completing the action taken as per clause (c ) within two weeks thereafter, that is by the third week of February 2021

(f) If no report is submitted to this Court within the time stipulated, liberty to the Petitioner to move an application in this petition. This liberty is irrespective of the action that the Court may take under its powers for non-compliance.

(g)The Respondent will deposit the cost of the petition quantified at Rs 25000 in the Registry of this court within three weeks from today, which petitioner will be entitled to withdraw.[Saket S. Gokhale v. Union of India,  2020 SCC OnLine Bom 2313, decided on 05-11-2020]


Saket Gokhale, Petitioner in Person.

Rui Rodrigues with D.P. Singh for the respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amit Pandove (Information Commissioner) while addressing the present appeal observed the essence of Section 6(3) of the Right to Information Act, 2005.

In the instant, RTI application information was sought pertaining to the Group-A officers who were drawing reimbursement of tuition fee for their children along with those who had adopted children.

CPIO provided a reply to the appellant and on being dissatisfied, appellant filed the first appeal, FAA upheld the CPIO’s reply.

Aggrieved by the above order, the second appeal was filed under Section 19 of the Right to Information Act on the ground that incomplete information was furnished by the respondent. By the second appeal, the applicant requested Commission to take disciplinary action against the CPIO concerned and sought direction towards CPIO to provide the information.

Appellant submitted that the respondent furnished partial information in response to his RTI application. It was further submitted that the adoption certificate was not provided to him till date on the ground that the original documents are not available in respondent’s office.

Appellant contended that if the service book was not available in their office, the respondent should have transferred the RTI application to the division concerned as per the provision contained in Section 6(3) of the RTI Act.

Respondent submitted that since the then CPIO, was not sure as to where the service book was, he did not transfer the RTI application.

Decision

Commission observed that as per Section 6(3) of the RTI Act, where an application is made to a public authority but the subject matter of the RTI application pertains to another public authority, the CPIO of the public authority receiving the RTI application has to transfer the same to the public authority concerned within 5 days of receipt of the application.

In the present case, the then CPIO instead of transferring of application to the authority concerned merely stated that the information sought for was not available in their office.

The above-stated merely indicates the vacuous and lackadaisical approach towards matters relating to RTI.

Commission taking every serious view of the lapse, stated that,

“Public information officers are entrusted with the responsibility of providing information to the citizen under the RTI Act and it is expected that the CPIO on receipt of a request shall as expeditiously as possible provide the information sought for by the applicant.”

In the instant case, it is pertinent to note that, not only the then CPIO failed to comply by the provisions of the RTI Act, the FAA also disregarded the same.

In view of the foregoing, the Commission directs the respondent to furnish a categorical reply to the appellant with respect to the adoption documents sought by him, as per the provisions of the RTI Act. [Mallikarjun v. CPIO, 2020 SCC OnLine CIC 989, decided on 21-10-2020]

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Central Information Commission (CIC): Y.K. Sinha (Information Commissioner) addressed an RTI application filed seeking the following information:

  1. Names of students of Class 8th and 12th students who were given admission under EWS Quota for the session 2017-18. Provide information in detail.
  2. Names of Class 12th students who fall under EWS Quota in the final year.
  3. Provide the names of parents/Guardians of Class 8th and 12th students who were given admission under EWS Quota in the year 2017-18.
  4. Provide copies income certificates submitted by Class 8th and 12th students who were enrolled under EWS Quota in the year 2017-18?

Applicant on being dissatisfied with the response and aggrieved with the same approached the Commission with the instant second appeal.

Respondents stated that data about online registration of students is available since the year 2018-19, while the appellant seeks information pertaining to the academic year 2017- 18, hence the information could not be readily provided.

He further explained that before the implementation of the Right to Education Act, admissions to students from economically weaker sections were given under the freeship quota. The registration of students under EWS quota is not done at the stage of class 8 or 12, hence data sought by the appellant is not readily available.

Hence, in view of the above, the information sought by the appellant could not be readily provided.

Decision

Commission noted that the reply of the respondent that information about admissions under EWS[Economically Weaker Section] quota is not available in their office is totally unacceptable.

The respondent being the regulatory authority of all educational institutions cannot remain oblivious nor avoid questions relating to such crucial information which involves the implementation of the Right to Education Act.

Further, the commission added that information about names and particulars of students is personal information held by the school in a fiduciary capacity disclosure of which would invade the privacy of the concerned children.

RTE Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools, requiring all private schools(except the minority institutions) to reserve 25% of seats for children belonging to the economically weaker section of society.

Respondent was directed to provide information about the total number of students, if any, admitted under EWS quota in Class 8 and Class 12 for the academic year 2017-18.

Appeal was disposed of in the above terms.[Anita Chaudhary v. PIO, DDE-ZONE II, Dte, of Education, 2020 SCC OnLine CIC 731, decided on 09-06-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka (CIC) observed that, important decisions are being made by the Governments involving huge intervention in the healthcare and daily lives of billions of people as they seek to secure social, economic and cultural wellbeing of its population and uphold the rule of law.

It is essential that the decisions themselves and the senior decision makers involved are thoroughly documented in order for the Governments to remain accountable both during and after the crisis for future generations to be able to learn from these actions.

Complainant sought information regarding district-wise number of hospitals and healthcare facilities called by any other name, designated as COVID-19 treatment centres;  criteria for designating them as COVID-19 treatment centers; hospitals and healthcare facilities whose status as COVID 19 treatment centers was withdrawn, etc which should be available with the M/o Health and Family Welfare (M/oH&FW), Directorate General of Health Services (DGHS) or the Indian Council of Medical Research (ICMR).

Reasoning for information sought:

Complainant submitted that the suo motu disclosure of information would immensely benefit the suspected COVID-19 patients or their relatives to be informed and take timely action to approach the appropriate healthcare facility for treatment.

ICMR

He further cited the example of mapping of designated COVID testing centers by the ICMR on Google Maps and stated that similarly information regarding COVID-19 Treatment Centers could also be displayed on Google Maps which would be beneficial to the entire citizenry.

Respondent (MoHFW, PH Section) re-iterated the response to the RTI application and stated that the information sought was not available with them and the application was transferred to the CPIOs concerned.

Commission’s Observation and Decision

Commission at the outset was appalled to learn that basic information pertaining to the District Wise Designated COVID treatment centres could not be provided to the information seeker by any of the Respondents.

As per the provisions of the RTI Act, 2005, the CPIO acts as the pivot for enforcing the implementation of the RTI Act, 2005 and it is their responsibility to facilitate flow of information instead of simply shifting the onus of disclosing the same to other Public Authority/ officials.

Commission further observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of the public who having to seek information should be an exception.

An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Commission held that very pertinent information pertaining to the COVID-19 pandemic situation was sought by the Complainant which could not be made available by any of the Respondent. The fact that the application shuttled from one Division of the Public Authority to another indicates that there is a very urgent requirement for notifying a Nodal Authority in the M/o H&FW/ DGHS to compile, collate and consolidate the information sought in the RTI application and suo motu upload the same on the website of the Public Authority.

Therefore, the Commission advises the Secretary, M/o H&FW to designate an officer of an appropriate seniority as a Nodal Officer to examine the matter and suo motu disclose the information sought in the RTI application on the website of the Public Authority within a period of 15 days.[Venkatesh Nayak v. CPIO & CMO (EMR), MoHFW, 2020 SCC OnLine CIC 346 , decided on 05-06-2020]

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: Holding that non­governmental organisations substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005, the bench of Deepak Gupta and Aniruddha Bose has held,

“If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.”

Noticing that the RTI Act was enacted with the purpose of bringing transparency in public dealings and probity in public life, the Court said that while interpreting the provisions of the RTI Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act.

On the issue relating to what constitutes ‘substantial finance’, the Court said ‘substantial’ means a large portion. It does not necessarily have to mean a major portion or more than 50%.  No hard and fast rule can be laid down in this regard.  Whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50% but still may not be called substantially financed.

“Supposing a small NGO which has a total capital of Rs.10,000/­ gets a grant of Rs.5,000/­ from the Government, though this grant may be 50%, it cannot be termed to be substantial contribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50%, the same can still be termed to be substantially financed. “

Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed.

[DAV College Trust and Management Society v. Director of Public Instructors, 2019 SCC OnLine SC 1210, decided on 17.09.2019]

Hot Off The PressNews

Supreme Court: The Court has reserved order on two contempt petitions filed against Reserve Bank of India (RBI) for not complying with the Supreme Court’s direction to disclose information under the Right to Information (RTI) Act.

A bench headed by Justice L Nageshwar Rao reserved the order after hearing the parties in the case, Girish Mittal and Subhash Chandra Agrawal, who filed contempt pleas. The two had claimed that RBI and its former Governor Urjit Patel had “willfully and deliberately” disobeyed the Court’s judgement asking the central bank to disclose information under the RTI Act. The two pleas sought initiation of contempt of court action against former Governor for not disclosing information as directed by the top court. One of the contempt plea filed by Girish Mittal said that RBI refused to provide information sought about the inspection reports of some banks.

In December 2015, the petitioner under the RTI Act had sought certain information which included copies of inspection reports of ICICI Bank, Axis Bank, HDFC Bank and State Bank of India from April 2011 till December 2015. The petitioner had also sought copies of case files with file notings on various irregularities detected by RBI in case of Sahara Group of companies and erstwhile Bank of Rajasthan by these entities themselves and their known/unknown promoters. However, RBI denied the information in January 2016 that such information is exempted under Section 8(1)(e) of the RTI Act  and Section 45NB of the Reserve Bank of India Act.

The petitioners contended that top court in 2016 while directing disclosure of a very similar type of information sought under the RTI Act had observed RBI  is clearly not in any fiduciary relationship with any bank. Filing the contempt pleas, petitioners stated that the responses of RBI are in complete violation of the apex court judgment by which it was held that RBI ought to act with transparency and not hide information that might embarrass individual banks and it is duty bound to comply with the provisions of the RTI Act and disclose the information sought.

(Source: ANI)

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has observed that leave records of other employees cannot be declared unless the applicant shows the involvement of a larger public interest. In this case, the appellant filed RTI application seeking leave records of a certain duration of all the executives working under Director (HR) and Director (CM).

The Commission observed that such information cannot be provided to the third party in terms of Supreme Court’s judgments in Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, (2018) 11 SCC 426, Girish Ramchandra Deshpande v. Central Information Commissioner, (2013) 1 SCC 212 and R.K. Jain v. Union of India, (2013) 14 SCC 794. The Apex Court had held in these cases that information relating to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders, etc. cannot be provided in view of exception laid down under Section 8(j) of the RTI Act unless the applicant discloses any larger public interest involved in seeking such information of the individual employee.

The Commission applied the same test in this appeal and concluded that no intervention was required by it as the appellant failed to show the involvement of larger public interest in seeking leave records of other employees. [Love Gogia v. Central Public Information Officer, BSNL, Appeal No. CIC/BSNLD/A/2018/613653, order dated 26-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Single-member Bench comprising of Bimal Julka, Information Commissioner, disposed of an appeal directing the appellant to approach the appropriate forum for her grievance redressal while holding that jurisdiction of the Commission was restricted to the function of ruling on the matters pertaining to right to information.

The appellant who was not present before the Commission, vide RTI application, sought information regarding the action taken by the respondent- Life Insurance Corporation, on the representation made by her claiming insurance under policy number as mentioned in the RTI application. The CPIO (LIC) forwarded appellant’s application to the Manager, Health Insurance, for necessary action. Dissatisfied, the appellant approached the first Appellate Authority (FAA). The FAA provided a point wise response to appellant’s query. Aggrieved by the action taken by the respondent Corporation, the appellant preferred the instant appeal.

The Commission perused the record and held that FAA had provided a proper response to the query raised by the appellant in her RTI application. As for the redressal of appellant’s grievance that the action taken by the Corporation was not satisfactory, the Commission observed that the framework of the Right to Information Act 2005, restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access to/ right to information. The Act does not allow the Commission to venture into the merits of the grievance. The Commission referred to a plethora of precedents to hold that proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished. Further, the Commission does not decide the dispute between two parties concerning their legal rights other than their right to get information in possession of a public authority. Since the appellant was not present, the Commission went on to hold that in view of the facts of the case and submission made by the respondent, no further intervention of the Commission was required. For redressal of her grievance, the appellant was directed to approach the appropriate forum. The appeal was accordingly disposed of. [M. Meenatchi v. CPIO (LIC) ,2018 SCC OnLine CIC 750, dated 11-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The Commission recently dealt with an appeal seeking information regarding ‘Mann ki Baat’ program which was further disposed of by the commission on no additional scope of intervention.

The RTI application filed sought information regarding ‘Mann ki Baat’ program which included the information of the total number of video, audio and in writing messages received from the start by the Hon’ble Prime Minister of India. For the said issue, appellant was responded by the CPIO on 04-12-2017.

The respondent stated in response to the appeal that various suggestions and grievances are received under the said program from several sources and based on the nature of communication, they are forwarded to the concerned departments. Due to such voluminous data being received and forwarded to different departments based on the issue, it gets all scattered and retrieving all the information to be served would eventually require the resources from the office to work on this instead of the normal discharge of its functions attracting Section 7(9) of the RTI Act. It was also stated that no particular officials have been assigned to handle the communication received under ‘Mann ki Baat’.

Therefore, noting and observing the stated reasons filed by the respondent, Commission was satisfied and was in its favour which further lead the appeal to be disposed of. [Aseem Takya v. CPIO, PMO,2018 SCC OnLine CIC 391, order dated 05-06-2018]