Central Information Commission
Dr. Jagdish Prasad Gaur vs Lok Sabha Secretariat on 4 March, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000816 dated 7.8.2009
Right to Information Act 2005 - Section 19
Appellant - Dr. Jagdish Prasad Gaur
Respondent - Lok Sabha Secretariat
Decision announced: 4.3.2010
Facts:
By an application of 11.2.09 received in the Lok Sabha Secretariat on 12.2.09, Shri J. P. Gaur of Ghaziabad, UP applied to the CPIO, Lok Sabha Secretariat seeking the following information:
"1. The following information in respect of Shri R. D. Sharma, Jt.
Director (Security) under the above mentioned Act, which is as under:
2. The photocopy of:
i) High School Certificate
ii) Intermediate Certificate
iii) Graduation Degree
iv) Law Degree.
v) Post Graduate Degree, if any
vi) His father's name, and complete residential address.
vii) His local address and permanent address.
viii) Whether he has been provided departmental residential accommodation at New Delhi? If so, the flat No. and locality may please be specified.
ix) The date of appointment and post on which the official was initially appointed.
x) The various dates on which the official was promoted to higher rank, may be specified.
3. Whether the Lok Sabha Secretariat has verified from the Examining Bodies about the genuineness of the Certificates / Degrees that whether the same person has appeared in the examinations, who has been awarded the Certificates / Degrees."
To this Shri J. P. Gaur received a response dated 13.3.09 from Dy. Secretary (Information Cell), Lok Sabha Secretariat informing him as follows:
"Point Nos. 2(i) to 2(vii), 2(ix) & 2(x) 1 Exempted under Sec. 8(1)(e) read with Sec. 8(1)(j) Point No. 2(viii) No accommodation has been provided from Lok Sabha Secretariat Pool of Residences to Shri R. D. Sharma, Jt. Director (Security).
Point no. 3 No."
Not satisfied, Shri Gaur moved an appeal before Shri N. K. Sapra, Addl. Secretary, Lok Sabha Secretariat on 23.4.09 on the following grounds:
"I was physically mandled(sic) and abused by Shri R. D. Sharma, Jt. Director (Security) for objecting his unbecoming conduct by way of flouting the orders / rules of Lok Sabha i.e. taking ride on the vehicles meant for the M.Ps. and taking private work from the workers of a Private Agency having Contract with the Parliament; which neither comes in the purview of his discharge of official duties being a "public servant" nor he is expected to indulge in such a act of serious misconduct; I am to file a Criminal Case or lodge F.I.R. against him.
You shall appreciate that no official more particularly of such a high rank is not expected to take the law in his own hands, even if he noticed anything wrong on my part. In this regard, there are several rulings of the "Apex Court i.e. Supreme Court & High Courts."
By his order of 22.5.09 Shri N. K.Sapra upheld the decision of CPIO, as follows:
"in view of the circumstances mentioned in your appeal and the powers conferred on me under the Act, I have condoned the delay in filing the appeal by you.
I have called for and examined the relevant papers in their totality. I find that the information available with this Secretariat on some of the points has already been supplied to you. The information sought by you on other points of your RTI application relates to personal information, which is exempted under sec. 8(1)(e) read with Sec. 8(1)(j) of the RTI Act, 2005."
This has brought Shri Gaur to his second appeal before us with the following prayer :
2"It is, therefore, most respectfully prayed that the Appellate Authority may be pleased to allow the appeal with cost and direct Shri R. D. Sharma, Jt. Director (Security) Lok Sabha Secretariat, New Delhi, to disclose the information required."
This prayer stems in essence from the following grounds:
"1. Shri R. D. Sharma, Jt. Director (Security) Lok Sabha Secretariat, New Delhi, is holding highly responsible post is answerable to the general public for his work and conduct.
2. Because the appellant has every legal right to seek even personal information or information relating to a public servant provided under laws against Corrupt / Unwanted Govt. Servants and for the purposes of enforcing the rule of law, against erring Govt. Servants."
Subsequently, we have received recommendations from Shri Dharam Pal Sabharwal, MP dated 31.1.10 seeking an early decision in this case, which was accepted since appellant Shri Gaur fulfills the requirement of being an elderly citizen to qualify for out of turn hearing. The appeal was heard on 4.3.2010. The following are present:
Appellant Dr. Jagdish Prasad Gaur Respondents Shri Harish Chander, Dy. Secretary Shri Sanjay Sethi, Under Secretary Shri S. S. Pradhan, Executive Asstt.
Although arrangement had been made to hear Shri Gaur by videoconference in Ghaziabad, he ha opted to be present personally. The appeal was heard accordingly.
Shri Sanjay Sethi, Under Secretary, Lok Sabha Secretariat submitted that the information denied was because it was all personal information held in confidence for a third party and there is no public interest warranting disclosure of such information. He further submitted that if appellant indeed has a complaint against the behavior of any official of the Lok Sabha Secretariat, there is a 3 complete complaint mechanism available to him with the Lok Sabha Secretariat, which he is welcome to use.
Appellant Shri Gaur on the other hand submitted that since his complaint was against abuse of authority by a public servant acting in his public capacity, disclosure serves the public interest and his request may, therefore, be conceded. Shri Gaur also submitted, while displaying the letters on this account that after he had suffered "manhandling and abuse" by Shri R. D. Sharma, he had indeed moved a complaint before the Addl. Secretary (Security), Lok Sabha Secretariat on 16.9.09 to which he received a response after much exchange of correspondence and recommendation from Hon'ble M.P. only on 23.11.09 informing him that his complaint was frivolous. It was his allegation, therefore, that the Lok Sabha was only seeking to cover up the activities of Shri R. D. Sharma, Jt. Director (Security), which is why he was obliged to take recourse to the RTI Act in the first place.
The issues before us here are clearly two-
(1) the applicability of sec. 8(1)(e) and 8(1)(j) of the RTI Act in exempting disclosure of the information sought by appellant Shri Gaur in the present case; and (2) whether public interest would require that the information sought by appellant Shri Gaur be provided even if otherwise exempt from disclosure.
On the question of application of sec. 8(1)(e), we have a decision of the Delhi High Court in W.P. (Civil) No. 288/2009- Supreme Court of India vs. Subhash Chandra Agrawal announced on 2.9.2009 and subsequently upheld by full Bench of the Delhi High Court in which Justice Ravinder Bhat has held as follows:
"held that the following relationships can be categorized, as fiduciary:
• "Trustee/ beneficiary (Section 88, Indian Trusts Act, 1882).4
• Legal guardians/ wards (Section 20, Guardians and wards Act, 1890).
• Lawyer/ Client.
• Executors and administrators/ legatees and heirs. • Board of directors/ company.
• Liquidator/ company.
• Receivers, trustees in bankruptcy and assignees in insolvency/creditors.
• Doctor/ Patient • Parent/ Child.
On this basis Hon'ble Ravindra Bhat J has in that case expanded on this relationship as below
57. The advanced law Lexicon, 3rd Edition 2005, defines fiduciary relationship as 'a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship..... Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.'
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be 'formally' or 'legally' ordained, or established, like in the case of a written trust but can be one of moral or personal responsibility, due to the better or superior knowledge or training or superior status of the fiduciary as compared to the one whose affairs he handles.' Hon'ble Ravindra Bhat J then goes on to deal specifically with the right to privacy of public servants as below:
"65. It has been held by a Constitution Bench of the Supreme Court that an individual does not forfeit his fundamental rights, by becoming a public servant, in O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812. In Kameshwar Prasad v. State of Bihar AIR 5 1962 1166, the Supreme Court repelled an argument that public servants do not possess fundamental rights1 ."
In addition, we have a decision again by the Delhi High Court in WP( C) No. 4788 of 2008 Ministry of Defence vs. Central Information Commission & Anr. together with connected Writs, announced on 30.11.2009, in which Hon'ble Sanjeev Khanna J. has further refined the definition of fiduciary holding as follows on the question:
12. A contractual or a statutory relationship can cover a very broad field but fiduciary relationship may be confined to a limited area or act, e.g. directors of a company have several statutory obligations to perform. A relationship may have several facets. It may be partly fiduciary and partly non fiduciary. It is not necessary that all statutory, contractual or other obligations must relate to and satisfy the criteria of fiduciary obligations. Fiduciary relationships may be confined to a particular act or action and need not manifest itself in entirety in the interaction or relationship between the two parties.
What distinguishes a normal contractual or informal relationship from a fiduciary relationship or act is as stated above, the requirement of trust reposed, highest standard of good faith and honesty on the part of the fiduciary with regard to the beneficiaries' general affairs or in a particular transaction, due to moral or personal responsibility as a result of superior knowledge and training of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary 2 . In this regard I may quote, the following observations in the decision dated 23rd April, 2007 by five members of the CIC in Rakesh Kumar Singh and others versus Harish Chander, Assistant Director and others MANU/CI/0246/2007.
"31. The word ―fiduciary is derived from the Latin fiducia meaning ―trust, a person (including a juristic person such as Government, University or bank) who has the power and obligation to act for another under circumstances which require total trust, good faith and honesty. The most common example of such a relationship is the trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators, directors of a company, public servants in relation to a Government and senior managers of a firm/company etc. The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as 1 Emphasis added 2 Emphasis ours 6 compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business. The Black's Law Dictionary also describes a fiduciary relationship as ―one founded on trust or confidence reposed by one person in the integrity and fidelity of another. The meaning of the fiduciary relationship may, therefore, include the relationship between the authority conducting the examination and the examiner who are acting as its appointees for the purpose of evaluating the answer sheets"
This order concludes with following ruling in Para 19:
"A decision of the PIO on the question whether information was furnished/available to a public authority in fiduciary relationship or not, can be made subject matter of appeal before the Appellate Authorities including the CIC. "
In addition, in the same decision of the Delhi High Court in WP (Civil) No. 9914 of 2009; OUI thru Ministry of Defence vs. Maj Rajpal & Ors. and similar cases, the Hon'ble Sanjeev Khanna, J. has held as follows with regard to exemption claimed u/s 8(1)(j):
27. The said clause has been examined in depth by Ravindra Bhat, J. in Subash Chand Agrawal (supra) under the heading point 5.
28. Examination of the said Sub-section shows that it consists of three parts. The first two parts stipulate that personal information which has no relationship with any public activity or interest need not be disclosed. The second part states that any information, which should cause unwarranted invasion of a privacy of an individual, should not be disclosed unless the third part is satisfied. The third part stipulates that information, which causes unwarranted invasion of privacy of an individual, will not be disclosed unless public information officer or the appellate authority is satisfied that larger public interest justifies disclosure of such information 3 . As observed by S. Ravindra Bhat, J. the third part of Section 8(1)(j) reconciles two legal interests protected by law i.e. right to access information in possession of the public authorities and the right to privacy. Both rights are not absolute or complete. In case of a clash, larger public interest is the determinative test. Public interest element sweeps through Section 8(1)(j).Unwarranted invasion of privacy of any individual is protected in public interest, but gives way when larger 3 Highlighted by us for reference in conclusion 7 public interest warrants disclosure. This necessarily has to be done on case to case basis taking into consideration many factors having regard to the circumstances of each case.
29. Referring to these factors relevant for determining larger public interest in R.K. Jain versus Union of India (1993) 4 SCC 120 it was observed:-
54. The factors to decide the public interest immunity would include (a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, whether the public interest immunity for the class is said to protect; (c) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought; (e) the likelihood that production of the documents will affect the outcome of the case; (f) the likelihood of injustice if the documents are not produced......
55. ...............When public interest immunity against disclosure of the State documents in the transaction of business by the Council of Ministers of the affairs of State is made, in the clash of those interests, it is the right and duty of the court to weigh the balance in the scales that harm shall not be done to the nation or the public service and equally to the administration of justice. Each case must be considered on its backdrop. The President has no implied authority under the Constitution to withhold the documents.
On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review. The Cabinet as a narrow centre of the national affairs must be in possession of all relevant information, which is secret or confidential. At the cost of repetition it is reiterated that information relating to national security, diplomatic relations, internal security of sensitive diplomatic correspondence per se are class documents and that public interest demands total immunity from disclosure. Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc. The maxim salus populi est suprema lex, which means that regard to public welfare is the highest law, is the basic postulate for this immunity. Political decisions like declaration of emergency under Article 356 are not open to judicial review but it is for the electorate at the polls to decide the executive wisdom. In other areas every communication, which preceded from one officer of the State to another or the officers inter se, does not necessarily per se relate to the 8 affairs of the State. Whether they so relate has got to be determined by reference to the nature of the consideration the level at which it was considered, the contents of the document of class to which it relates to and their indelible impact on public administration or public service and administration of justice itself. Article 74(2) is not a total bar for production of the records. Only the actual advice tendered by the Minister or Council of Ministers to the President and the question whether any, and if so, what advice was tendered by the Minister or Council of Ministers to the President, shall not be enquired into by the court. In other words the bar of judicial review is confined to the factum of advice, its extent, ambit and scope but not the record i.e. the material on which the advice is founded. In S.P.Gupta case this Court held that only the actual advice tendered to the President is immune from enquiry and the immunity does not extend to other documents or records, which form part of the advice, tendered to the President.
30. In S.P. Gupta (supra), the Supreme Court held that democratic form of Government necessarily requires accountability, which is possible only when there is openness, transparency and knowledge. Greater exposure about functioning of the Government ensures better and more efficient administration, promotes and encourages honesty and discourages corruption, misuse or abuse of authority, Transparency is a powerful safeguard against political and administrative aberrations and antithesis of inefficiency resulting from a totalitarian government which maintains secrecy and denies information. Reference was again made to Sodhi Sukhdev Singh (supra) and it was observed that there was no conflict between ‗public interest and non-disclosure' and ‗private interest and disclosure' rather Sections 123 and 162 of the Evidence Act, 1872 balances public interest in fair administration of justice, when it comes into conflict with public interest sought to be protected by non-disclosure and in such situations the court balances these two aspects of public interest and decides which aspect predominates. It was held that the State or the Government can object to disclosure of a document on the ground of greater public interest as it relates to affairs of the State but the courts are competent and indeed bound to hold a preliminary enquiry and determine the validity of the objection to its production and this necessarily involves an enquiry into the question whether the evidence relates to affairs of the State. Where a document does not relate to affairs of the State or its disclosure is in public interest, for the administration of justice, the objection to disclosure of such document can be rejected. It was observed :
9"The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document.
31. A statement or defence to non-disclosure is not binding on the courts and the courts retain the power to have a prima facie enquiry and balance the two public interest and affairs of the State. The same is equally true and applies to CIC, who can examine the documents/information to decide the question of larger public interest. Section 18(4) of the RTI Act empowers CIC to examine any record under the control of a public authority, while inquiring into a complaint. The said power and right cannot be denied to CIC when they decide an appeal. Section 18 is wider and broader, yet jurisdiction under section 18 and 19 of the RTI Act is not water-tight and in some areas overlap.
32. The Supreme Court in S.P Gupta's case considered the question whether there may be classes of documents, which the public interest requires not to be disclosed, or which should in absolute terms be regarded as immune from disclosure. In other words, we may examine the contention whether there can be class of documents which can be granted immunity from disclosure not because of their contents but because of their class to which they belong. Learned Additional Solicitor General in this regard made pointed reference to the following observations in S.P.Gupta (supra):
69. .... The claim put forward by the learned Solicitor General on behalf of the Union of India is that these documents are entitled to immunity from disclosure because they belong to a class of documents, which it would be against national interest or the interest of the judiciary to disclose........ This class includes cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad (vide : Conway v. Rimmer, 1968 AC 910 at pp. 952, 973, 979, 987 and 993 and Reg v. Lewes J.K. Ex parte Home Secy., 1973 AC 388 at p.412). Papers brought into existence for the purpose of preparing a submission to cabinet (vide Commonwealth Lanyon property Ltd v. Commonwealth, 129 LR 650) and indeed any documents which relate to the framing of government policy 10 at a high level (vide : Re Grosvenor Hotel, London). It would seem that according to the decision in Sodhi Sukhdev Singh's case (AIR 1961 SC 493) (supra) this class may also extend to ―notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached in the course of determination of questions of policy. Lord Reid in Conway v. Rimmer (supra) at page 952 proceeded also to include in this class ―all documents concerned with policy-
making within departments including, it may be minutes and the like by quite junior officials and correspondence with outside bodies . It is this case to consider what documents legitimately belong to this class so as to be entitled to immunity from disclosure, irrespective of what they contain. But it does appear that cabinet papers, minutes of discussions of heads of departments and high level documents relating to the inner working of the government machine or concerned with the framing of government policies belong to this class which in the public interest must be regarded as protected against disclosure.
33. The aforesaid observations have to be read along with the ratio laid down by the Supreme Court in subsequent paras of the said judgment. In Para 71, it was observed that the object of granting immunity to documents of this kind is to ensure proper working of the Government and not to protect Ministers or other government servants from criticism, however intemperate and unfairly biased they may be. It was further observed that this reasoning can have little validity in democratic society, which believes in open government. It was accordingly observed as under:-
The reasons given for protection the secrecy of government at the level of policy making are two. The first is the need for candour in the advice offered to Minister; the second is that disclosure ‗would create or fan ill-informed or captious public or political criticism.' Lord Reid in Conway v. Rimmer thought the second ‗the most important reason'. Indeed, he was inclined to discount the candour argument. I think both reasons are factors legitimately to be put into the balance, which has to be struck between the public interest in the proper functioning of the public service (i.e. the executive arm of the government) and the public interest in the administration of justice. Sometimes the public service reasons will be decisive of the issue; but they should never prevent the court from weighing them against the injury, which would be suffered in the administration of justice if the document was not to be disclosed. The same view was 11 expressed by Gibbs A.C.J. in Sankey v. Whitlam (supra) where the learned acting Chief Justice said: ―I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned.
There is nothing sacrosanct about the immunity, which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases."
34. Possibly the only class of documents which are granted immunity from disclosure is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong. Other documents and information which do not fall under Article 74(2) of the Constitution cannot be held back on the ground that they belong to a particular class which is granted absolute protection against disclosure. All other documents/information is not granted absolute or total immunity. Protection from disclosure is decided by balancing the two competing aspects of public interest i.e. when disclosure would cause injury or unwarranted invasion of privacy and on the other hand if non-disclosure would throttle the administration of justice or in this case, the public interest in disclosure of information. In such 12 cases, the Court/CIC has to decide, which of the two public interests pre-dominates.
35. Same view has been taken by the Supreme Court in its subsequent judgment in the case of R.K. Jain (supra). It was observed as under:-
43. It would, therefore, be concluded that it would be going too far to lay down that no document in any particular class or one of the categories of cabinet papers or decisions or contents thereof should never, in any circumstances, be ordered to be produced. Lord Keith in Burmah Oil case considered that it would be going too far to lay down a total protection to Cabinet minutes. The learned Law Lord at p.1134 stated that ―something must turn upon the subject-
matter, the persons who dealt with it, and the manner in which they did so. Insofar as a matter of government policy is concerned, it may be relevant to know the extent to which the policy remains unfulfilled, so that its success might be prejudiced by disclosure of the considerations which led to it. In that context the time element enters into the equation. Details of an affair which is stale and no longer of topical significance might be capable of disclosure without risk of damage to the public interest..... The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level . Lord Scarman also objected to total immunity to Cabinet documents on the plea of candour. In Air Canada case Lord Fraser lifted Cabinet minutes from the total immunity to disclose, although same were entitled to a high degree of protection...."
44. x x x x x
45. In a clash of public interest that harm shall be done to the nation or the public service by disclosure of certain documents and the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done, it is the courts duty to balance the competing interests by weighing in scales, the effect of disclosure on the public interest or injury to administration of justice, which would do greater harm. Some of the important considerations in the balancing act are thus: ―in the interest of national security some information which is so secret that it cannot be disclosed except to a very few for instance the State or its own spies or agents just as other countries have. Their very lives may be endangered if there is the slightest hint of what they are doing. In R. v. Secretary of State for Home Affairs, ex p 13 Hosenball in the interest of national security Lord Denning, M.R. did not permit disclosure of the information furnished by the security service to the Home Secretary holding it highly confidential. The public interest in the security of the realm was held so great that the sources of the information must not be disclosed nor should the nature of information itself be disclosed."
36. Reference in this regard may also be made to the judgment of the Supreme Court in Dinesh Trivedi M.P. and others versus U.O.I (1997) 4 SCC 306 and Peoples' Union for Civil Liberties versus Union of India (2004) 2 SCC 476.
37. Considerable emphasis and arguments were made on the question of ‗candour argument' and the observations of the Supreme Court in the case of S.P. Gupta (supra). It will be incorrect to state that candour argument has been wholly rejected or wholly accepted in the said case. The ratio has been expressed in the following words:
70. ..... We agree with these learned Judges that the need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class, but as pointed out by Gibbs A.C.J. in Sankey v.
Whitlam (supra), it would not be altogether unreal to suppose ―that in some matters at least communications between ministers and servants of the Grown may be more frank and candid if these concerned believe that they are protected from disclosure because not all Crown servants can be expected to be made of ―sterner stuff . The need for candour and frankness must therefore certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide : the observations of Lord Denning in Neilson v. Lougharre, (1981) 1 All ER at p. 835.
71. There was also one other reason suggested by Lord Reid in Conway v. Rimmer for according protection against disclosure to documents belonging to this case: ―To my mind, said the learned Law Lord: ―the most important reason is that such disclosure would create or fan ill- informed or captious public or political criticism. The business of Government is difficult enough as it is, and no Government could contemplate with equanimity the inner workings of the Government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. But this reason does not commend itself to us. The object of granting immunity to documents of this kind is to ensure the 14 proper working of the Government and not to protect the ministers and other Government servants from criticism however intemperate and unfairly based. Moreover, this reason can have little validity in a democratic society which believes in an open Government. It is only through exposure of its functioning that a democratic Government can hope to win the trust of the people. If full information is made available to the people and every action of the Government is bona fide and actuated only by public interest, there need be no fear of ―ill-informed or captious public or political criticism . But at the same time it must be conceded that even in a democracy, Government at a high level cannot function without some degree of secrecy. No minister or senior public servant can effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to be made public. It is therefore in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. What is the measure of this protection is a matter which we shall immediately proceed to discuss."
38. This becomes clear when we examine the test prescribed by the Supreme Court on how to determine which aspect of public interest predominates. In other words, whether public interest requires disclosure and outweighs the public interest which denies access. Reference was made with approval to a passage from the judgment of Lord Reid in Conway vs. Rimmer 1968 AC 910. The Court thereafter elucidated:-
72. .....The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the could would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document.
This balancing between two competing aspects of public 15 interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.
39. Again reference was made to the following observations of Lord Scarman in Burmah Oil versus Bank of England 1979-3 All ER 700:
But, is the secrecy of the inner workings of the government at the level of policy making are two. The first is the need for candour in the advice offered to Ministers; the second is that disclosure ‗would create or fan ill-informed or captious public or political criticism.' Lord Reid in Conway v. Rimmer thought the second ‗the most important reason'. Indeed, he was inclined to discount the candour argument.
40. However, the said observations have to be read and understood in the context and the year in which they were made. In the S.P Gupta's case, the Supreme Court observed that interpretation of every statutory provision must keep pace with the changing concepts and values and to the extent the language permits or rather does not prohibit sufficient adjustments to judicial interpretations in accord with the requirements of fast changing society which is indicating rapid social and economic transformation. The language of the provision is not a static vehicle of ideas and as institutional development and democratic structures gain strength, a more liberal approach may only be in larger public interest. In this regard, reference can be made to the factors that have to be taken into consideration to decide public interest immunity as quoted above from R.K. Jain case (supra).
41. The proviso below Section 8(1)(j) of the RTI Act was subject of arguments. The said proviso was considered by the Bombay High Court in Surup Singh Hryanaik versus State of Maharashtra AIR 2007 Bom. 121 and it was held that it is proviso to the said sub- section and not to the entire Section 8(1). The punctuation marks support the said interpretation of Bombay High Court. On a careful reading of Section 8(1), it becomes clear that the exemptions contained in the clauses (a) to (i) end with a semi colon ―; after each such clause which indicate that they are independent clauses. Substantive sub section Clause (j) however, ends with a colon, followed by the proviso. Immediately following the colon mark is the proviso in question which ends with a full stop ―./. In Principles of Statutory Interpretation, 11th Ed. 2008 (at page No. 169) G.P Singh, has noted that if a statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted 16 to for purposes of construction. Punctuation marks can in some cases serve as a useful guide and can be resorted to for interpreting a statute
42. Referring to the purport of the proviso in Surup Singh (supra), the Bombay High Court has held that information normally which cannot be denied to Parliament or State Legislature should not be withheld or denied.
43. A proviso can be enacted by the legislature to serve several purposes. In Sundaram Pillai versus Patte Birman (1985) 1 SCC 591 the scope and purpose of a proviso and an explanation has been examined in detail. Normally, a proviso is meant to be an exception to something in the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used to qualify and set at naught, the object of the main enactment. Sarthi on Interpretation of Statutes, referred to in the said judgment, states that a proviso is subordinate to the main section and one of the principles which can be applied in a given case is that a proviso would not enlarge an enactment except for compelling reasons. It is unusual to import legislation from a proviso into the body of the statute. But in exceptional cases a proviso in itself may amount to a substantive provision. The proviso in the present cases is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right. The purpose is only to clarify that while deciding the question of larger public interest i.e., the question of balance between ‗public interest in form of right to privacy' and ‗public interest in access to information' is to be balanced.
DECISION NOTICE From the above, it is clear that the information sought by appellant Shri J. P. Gaur being information on official record held in pursuit of a public activity by the Lok Sabha Secretariat cannot under any circumstances be described as fiduciary, which requires that it be "a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business". However, for the same reason it cannot be deemed to have no relationship to any public activity. That being the case, even though the information can be deemed to be private, and as held by the Delhi High Court 17 in Subhash Chandra Agrawal's case, a public servant does not lose his right to privacy, disclosure cannot amount to invasion of privacy. Issue No.(1) is, therefore, decided accordingly.
This brings us to the question at issue No. (2). We have already held that exemption from disclosure u/s 8(1)(e) does not hold. On question 8(1)(j), however, even though we have held that this information is related to a public activity, there remains a requirement that we determine whether disclosure of this information will in fact serve the public interest. In this case, we have a request for information regarding an individual who is charged with maintaining security. Will, therefore, the disclosure of this private information compromise the officer's responsibilities as Jt. Director (Security)? Shri R. D. Sharma regarding whom the information as sought is admittedly a third party in this matter, as argued by respondents in the hearing. The information sought is also held in confidence by the Lok Sabha Secretariat. For these reasons, therefore, this is a fitting case for disposal in accordance with sec. 11(1) of the RTI Act.
The Decision of Shri N. K. Sapra, Addl. Secretary, Lok Sabha Secretariat is, therefore, set aside. CPIO Shri Harish Chander, Dy. Secretary shall now, in accordance with sec. 11(1), within 5 days from the receipt of this Decision Notice give a written notice to third party Shri R. D. Sharma, Jt. Director (Security) apprising him of the fact that CPIO intends to disclose the information sought and invite the third party to make a submission in writing or orally regarding whether the information should be disclosed and such submission of the third party shall be kept in view before disclosing the information sought, or part thereof, for reasons to be recorded in writing. This decision will be based on the grounds on which exemption is to be allowed in line with the masterful ruling on each of the components of Sec 8(1) (j) as highlighted by us in the ruling in WP(C) quoted above at Footnote 3. Besides, CPIO will also ensure that only such information be provided, should disclosure be decided upon, which is actually held by the 18 Lok Sabha Secretariat or under its control as mandated by the definition of 'right to information' u/Sec 2(j) Reserved in the hearing this Decision is announced subsequently on the same date i.e. 4th day of February 2010 in open chambers. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.3.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 4.3.2010 19