Central Information Commission
Harjith D Bubber vs Ministry Of External Affairs on 25 March, 2021
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/MOEAF/A/2018/165166
Shri Harjith D Bubber ... अपीलकता/Appellant
Through: Sh. Siddharth Satija
VERSUS/बनाम
PIO, Ministry of External Affairs ... ितवादीगण /Respondent
Room No. 2021, A-Wing,
Jawaharlal Nehru Bhawan,
Janpath, New Delhi-110011
Date of Hearing : 26.11.2020, 17.02.2021
Date of Interim Decision : 30.11.2020
Date of Final Decision : 25.03.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 23.06.2018
PIO replied on : 17.07.2018
First Appeal filed on : 08.08.2018
First Appellate Order on : 21.08.2018
2ndAppeal/complaint received on : 30.10.2018
Information soughtand background of the case:
The Appellant filed his RTI application dated 23.06.2018 seeking information on following 04 points regarding the extradition of Shri Salim Abbas Karimi from India to USA:
1. Kindly supply copy of the reasons of satisfaction recorded by the Under Secretary(Extradition), Ministry of External Affairs (MEA) before passing order dated 11.10.2017 in relation to file No. T- 413/95/2015.
2. Please supply a true copy of the file maintained by your Hon'ble Office bearing file no. T-413/95/2015 alongwith any other Intra-
Office communications, process notes, file notings, pursuant to which order dated 11.10.2017, was passed.
3. Please provide a copy of the circular/notification/order passed by the Ministry of External Affairs appointing the court of Smt. Gurmohina Kaur, Ld. Additional Chief Metropolitan Magistrate, Page 1 of 11 Patiala House Courts, New Delhi as the Magistrate having jurisdiction to inquire into extradition cases, as per the provisions of the extradition Act, 1962.
4. Please indicate if any other Magistrate located within the territory of India has been appointed under Section 5 of the Extradition Act, 1962.
The CPIO vide letter dated 17.07.2018 denied disclosure of informaiton u/s 8 (1) (a), (f) and (h) of the RTI Act, 2005.
Dissatisfied with the response received from the PIO, the Appellant filed First Appeal dated 08.08.2018. The FAA, Dir(CPV) vide order dated 21.08.2018 concurred with the response of the CPIO.
Feeling aggrieved on non-receipt of information, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from Appellant vide letter dated 19.11.2020 wherein it was stated that the FAA failed to consider that the CPIO has failed miserably in discharge of statutory obligation imposed on him as a public authority u/s 7 (8) (i) of the RTI Act by not providing any specific reasons for denial of information. Furthermore, the FAA while dismissing the First Appeal in a mechanical and unreasoned manner failed to discharge the duties imposed on him as per the guidelines of the MHA dated 14.02.2014.
Explaining that the information sought did not impinge on the security, sovereignty, integrity or interest of the state, the Appellant stated that the FAA was duty bound to explain how or in what context , the exemption u/s 8 (1) (a) was applicable. Referring to Section 8 (1)( f), it was stated that no part of the information sought pertains to any sort of intergovernmental correspondence between the Government of India and the Government of United States of America and that it pertained to intra-governmental correspondences within the MEA. The FAA failed to take into consideration, the observations of the Commission in numerous cases wherein similar requests pertaining to inter departmental correspondence within the Central Government have been allowed (Afroz Alam "Sahil" vs. PIO, Foreign Ministry, Government of India).Explaining that mere existence of an investigation process cannot be a ground for refusal of information, the Appellant stated that even if an inquiry was pending before a competent court, it was unclear as to why exemption u/s 8 (1) (h) was claimed. A reference was made to the decision of the Hon'ble High Court of Delhi in B.S. Mathur vs. PIO, Delhi High Court[180 (2011) DLT 303]; Bhagat Singh vs. CIC, [2007 SCC Online Del 1607] and Adesh Kumar vs. Union of India and Ors.[2014 SCC Online Del 7203]. He further stated that information on points 3 and 4 of the RTI application constitutes official documents as the same constitutes acts or record of acts of Sovereign Authority i.e., Ministry of External Affairs and hence the CPIO was duty bound to provide the information. The present matter pertains to a case of alleged fraud in the USA Page 2 of 11 and such information is of great significance to the society at large. Further, the information regarding arrest in Mumbai and enquiry proceedings pending in Delhi is available on websites and various public domains suggest that the fugitive is undergoing extradition enquiry proceedings at Patiala House Courts, New Delhi though he was taken into custody in Mumbai. Thus, it is unclear as to why furnishing such information clarifying the position of the government department and steps taken in relation to the said enquiry are not subject to scrutiny under the RTI given that the same would help elaborate on the official steps taken by the MEA in relation to the said enquiry. It was further stated that the information regarding the decision taken as per rules and regulations shall be made freely accessible and that the FAA failed to take into account the mandate provided under Section 4 (1) (d) which casts an obligation upon a public authority to provide reasons for administrative or quasi judicial decisions. He also referred to the decisions of the Hon'ble Supreme Court in Bihar Public Service Commission vs. Sayed Hussain Abbas Rizvi and Anr.[2012 13 SCC 61]. In view of the above, it was prayed to direct the concerned CPIO to furnish the documents/ information sought in the RTI application.
A written submission has been received from the CPIO and Director (CPV) vide letter dated 24.11.2020 wherein explaining the reasons for denying the information u/s 8 (1) (a), (f) and (h), it was stated that an extradition is a law enforcement process between two sovereign countries for handing over of an accused or convict under a formal treaty. The process requires communication of dossiers, evidence and other material containing detailed information about not only the accused/ convict but also may include many others involved in the case including foreign authorities, witnesses, etc. The information received from a foreign country is thus treated as "information received in confidence"
not to be divulged publicly. The information obtained/supplied could also include private facts (mobile number, email Ids, addresses, bank details, etc) disclosure of which may have implications for the supplying foreign authority under the privacy laws of that state. Hence, conveying such private facts to a third party could be considered as an undesirable/ irresponsible act. As the stringency of privacy laws differ from country to country, it was stated that in their considered view, it is better to avoid such disclosures so as not to adversely impact relations with a foreign country. The extradition records also reflect the stages of various investigations going on at a given point of time. A detrimental effect on the process of investigation by sharing such information with a third party cannot be ruled out. The CPIO/FAA has no way to determine if greater public interest will be served by supplying such information to a third party about an ongoing extradition process. The court proceedings and final outcome of the process is anyway made public.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, audio hearings were scheduled after giving prior notice to both the parties.Page 3 of 11
The Appellant's representatives Shri Siddharth Satija, Advocate and Shri Nikhil Pillai, Advocate participated in the hearing on being contacted on their telephone. Reiterating the contents of the RTI application and referring to their written submission, the Appellant's representative stated that the information sought in points no. 1 and 2 pertained to the internal functioning of the Ministry of External Affairs hence could not be denied u/s 8 (1) (a), (f) and (h) of the RTI Act. Similarly, the information in point 3 and 4 related to generic details regarding appointment of magistrates having jurisdiction to inquire into extradition cases in accordance with Section 5 of the Extradition Act, 1962. The Appellant's representative also referred to several decisions of higher courts and this Commission in support of their contention regarding disclosure of information.
The Respondent is represented by Shri Vishnu Kumar Sharma, Director, CPV and Shri P. Roychaudhuri, Advocate through audio conference. Shri Sharma stated that in points 1 and 2, the Appellant has sought complete file No. T- 413/95/2015 alongwith copy of the reasons of satisfaction recorded by the Under Secretary(Extradition), Ministry of External Affairs (MEA) before passing order dated 11.10.2017, other intra-office communications, process notes and file notings pursuant to which order dated 11.10.2017 was passed. He stated that the file contains dossiers, evidence and other material contains detailed information about not only the accused/convict but also may include many others involved in the case including foreign authorities, witnesses, etc. The file may also contain personal details of third parties such as their mobile number, email ids, addresses, bank details, etc. Thus, it will be difficult on the part of the Respondent Public Authority to severe any information and provide the same to the Appellant. However, with regard to points 3 and 4, the Respondent agreed to relook into the matter to ascertain if information may be disclosed to the Appellant.
DECISION- INTERIM Having heard both the parties and on perusal of the available records, the Commission notes that the instant matter requires careful examination of the facts of the case, the judicial/quasi judicial pronouncements cited by the Appellant and ensuing contentions necessitate a further hearing of parties before the Commission can arrive at a final decision. Several written submissions have been filed by both the parties including a written submission by the Appellant's representative, a day prior to the instant hearing which requires further examination. Therefore, in view the above, the Commission directs the Registry of this bench to fix another short date of hearing in the matter requesting both the parties to appear before the Commission through video conferencing mode arranged within the CIC premises or in person.
The Respondent may also submit their response, if any, to the Commission with a copy to the Appellant against the additional written submissions filed by the Appellant, at least 7 days prior to the next date of hearing fixed by the Commission.Page 4 of 11
Facts emerging in Course of Hearing: 17.02.2021 In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, video hearings were scheduled after giving prior notice to both the parties.
Both parties were duly represented by their respective counsels and heard at length through video conference.
The Respondent pointed out that the present litigation seems to be in the nature of proxy litigation because the RTI applicant has not demonstrated any cogent reason for seeking information about extradition of a third party, viz. Shri Salim Abbas Karimi, a US national. The information sought by the Appellant which appears unconnected to him, obviously is of value to the accused who has been arrested on charges of committing fraud in the USA. However, no connection has been established by the Appellant for seeking information pertaining to the enquiry proceedings, underway in Delhi about Shri Salim Abbas Karimi. It has further been contended by the Respondent that if the RTI applicant was seeking information on his own, then it was incumbent upon him to disclose his interest in seeking such personal information related to a third party to ascertain his bonafide as establish the larger public interest in disclosure of such information. The Respondent further contended that information sought is barred from disclosure under Section 8(1)(a) and 8(1)(j) of the RTI Act, 2005, while placing reliance on the decision in the case of Union of India v. R. Jayachandran [WP (C) 3406/2012 dated 19.02.2014], by the Hon'ble High Court of Delhi wherein it was held that passport details, copies of birth certificate and copies of records of educational qualification are personal information, the disclosure of which is generally barred since it would cause unwarranted invasion of privacy of individuals unless there was an overbearing public interest in favour of disclosure.
In rebuttal of the Respondent's contention, it was submitted by the Appellant's counsel that a fresh exemption clause i.e. Section 8(1)(j) cannot be raised at appellate stage of proceedings and any argument to support the order of the CPIO should be confined to the stand taken by the CPIO. The counsel for the Appellant further submitted that as per the provisions of the RTI Act he is not obliged to disclose the reasons behind seeking the information and therefore the question of the Appellant's bonafide cannot be questioned by the Respondent only because he has not disclosed his interest in obtaining such information. The counsel for the Appellant placed reliance on B.S. Mathur vs. PIO, Delhi High Court; Bhagat Singh vs. CIC and Adesh Kumar vs. Union of India and Ors. to corroborate his argument that: "..Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption..." and emphasised that due process of law must be followed while denying access to information by providing supportive arguments for such denial and public authority is obliged under the Act to provide reasons for administrative or quasi judicial decisions.Page 5 of 11
Decision: 25.03.2021 Upon examining the facts of the case alongwith the detailed contentions placed forth by both the parties, the Commission takes note of the Appellant's contention that fresh ground for denial of information i.e. Section 8(1)(j) cannot be raised at appellate stage if the PIO had not cited such exemption in his response. It is also unquestionable that merely citing of any provision of law does not suffice for denial of information, unless duly supported by appropriate reasons.
Having discussed the above position, dealing with the merits of the case, the Commission notes that though Respondent was granted time and opportunity to file written submissions in support of their arguments, no such submission has been submitted by the Respondent, except the oral averments during hearing.
Therefore, the Commission shall decide the case on the basis of records available. Though the Commission is in agreement in principle with some of the arguments put forth by the Appellant as noted in the paragraph above, but while deciding the matter at hand in a holistic manner, each aspect shall be considered in detail. From the above discussion, it is noted that information had been denied initially by the CPIO vide letter dated 17.07.2018 invoking provisions under Section 8 (1) (a), (f) and (h) of the RTI Act, 2005. In this regard, it is worthwhile to note that all three exemptions claimed by the PIO, in this case are such that it casts no obligation on the public authority to provide information exempt under these provisions. This position of law has been elucidated by the Allahabad High Court, Lucknow Bench while deciding a case PIO, CM's Office, Civil Secrtariat, Govt. of UP vs. State Information Commission and Others as follows:
"...The perusal of the provisions of Section 8 reveals that there are certain information contained in sub-clause (a),(b),(c),(f),(g) and (h), for which there is no obligation for giving such an information to any citizen, whereas information protected under sub- clauses( d),( e) and( )j are though protected information, but on the discretion and satisfaction of the competent authority, that it would be in larger public interest to disclose such information, such information can be disclosed..."
Having noted the above, it cannot be overlooked that every denial of information should be adequately supported by reason, which the PIO has failed to do in his reply dated 17.07.2018.
For the sake of convenience, the contents of Section 8(1)(a), (f), (h) and (j) of the RTI Act 2005 are reproduced hereunder:
8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or Page 6 of 11 economic interests of the State, relation with foreign State or lead to incitement of an offence;
(f) information received in confidence from foreign government;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
It is an undisputed fact that the extradition case is pending trial at Patiala House Courts. The Section 8(1)(h) of the RTI Act as noted above exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders, the Act, does not define either the term "investigation" or "process of investigation". Information sought in this case pertains to the extradition enquiry which is governed by the Code of Criminal Procedure, which makes a distinction between an "investigation", "inquiry" and "trial" and all the three terms denote three different stages of a criminal case. The first stage is reached when a police officer investigates into a case. After completing the investigation, when the case is sent to a Magistrate, the next stage begins, which is either an inquiry or a trial. It is pertinent to note that the Apex Court in the Directorate of Enforcement Vs. Deepak Mahajan (AIR 1994 SC 1775), has held that the word "investigation" cannot be limited only to police investigation but includes the "investigation" carried on by any agency whether he be a police officer or empowered or authorized officer invested with the power of investigation. The expression "inquiry" as defined under the Code of Criminal Procedure is of wide import and thus, the term "investigation‟ used in Section 8(1)(h), in the context of this Act should be interpreted broadly and liberally, wherein the term "investigation" would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken, i.e. only after the final decision has been arrived at after the matter has gone through all the stages of appeals and revisions as well as a final decision about prosecuting or not prosecuting that person has been taken by an appropriate competent authority. Therefore, no infirmity is found with denial of information about a case which is pending investigation before a Court and to which the Appellant is not a party.
Page 7 of 11The query 1 raised by the Appellant is clearly exempt from disclosure as has been discussed in the Apex Court decision of Khanapuram Gandaiah vs. Administrative Officer & Ors [dated 4 January, 2010] in the following words:
"...... an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion..."
Likewise, there is no justification behind disclosure of the information sought at query 2 by the Appellant, particularly in view of the Respondent's contention that the file sought by the Appellant contains dossiers, evidence and other material contains detailed information about not only the accused/convict but also may include many others involved in the case including foreign authorities, witnesses, apart from personal details of third parties such as their mobile number, email ids, addresses, bank details, etc. The issue to be addressed next is whether the information sought qualifies as personal information of the accused US national or not, the Commission places reliance on the decision of Girish Ramchandra Deshpande v. Central Information Commissioner and Others, wherein the applicant had sought copies of all memos, show-cause notices and censure/punishment awarded to a Government employee from his employer and also details of his movable/immovable properties, details of investment, loan and borrowings from financial institutions, details of gifts accepted by the employee from his family members and relatives at the time of the marriage of his son. In this context, it was observed:
13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/ punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. ......On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies Page 8 of 11 the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
The information about extradition proceedings related to a third party ought to be guarded as his personal information, disclosure whereof would result in invasion of his privacy. The right to privacy though not expressly guaranteed in the Constitution of India is now recognized as a basic fundamental right vide decision of the Constitutional Bench in K.S.Puttaswamy and Another v. Union of India and Others holding that it is an intrinsic part of the right to life and liberty guaranteed under Article 21 of the Constitution and recognised under several international treaties, chief among them being Article 12 of the Universal Declaration of Human Rights, 1948 which states that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. The judgment recognises that everyone has a right to the protection of laws against such interference or attack. While discussing the decision of K.S.Puttaswamy and Another v. Union of India and Others, the Apex Court in its decision dated 13.11.2019, in the case of CPIO, Supreme Court Of India vs. Subhash Chandra Agarwal notes:
"...41....provisions of Section 8(1)(j) of the RTI Act have been referred to highlight that the right to privacy is entrenched with constitutional status in Part III of the Constitution, thus providing a touchstone on which validity of executive decisions can be assessed and validity of laws can be determined vide judicial review exercised by the courts. This observation highlights the status and importance of the right to privacy as a constitutional right. The ratio as recorded in the two concurring judgments of 26 (2017) 10 SCC 1 the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.) are similar. It is observed that privacy involves a persons right to his physical body; right to informational privacy which deals with a persons mind; and the right to privacy of choice which protects an individuals autonomy over personal choices. While physical privacy enjoys constitutional recognition in Article 19(1)(d) and (e) read with Article 21, personal informational privacy is relatable to Article 21 and right to privacy of choice is enshrined in Articles 19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the concurring opinion, there is a reference to The Right to Privacy by Samuel Warren and Louis D. Brandeis on an individuals right to control the dissemination of personal information and that an individual has a right to limit access to such information/shield such information from unwarranted access. Knowledge about a person gives another power over that person, as personal data collected is capable of effecting representations in his decision making process and shaping behaviour which can have a stultifying effect on the expression of dissent which is the cornerstone of democracy. In the said concurring judgment, it has been further held that the right to protection of reputation from being unfairly harmed needs to be zealously guarded not only against falsehood but Page 9 of 11 also against certain truths by observing: 623. An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments..."
After a detailed discussion on the aspect of privacy of an individual, which is sought to be protected under Section 8(1)(j) of the RTI Act, the Apex Court in the same decision of CPIO, Supreme Court Of India vs. Subhash Chandra Agarwal held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
In the light of the abovementioned decisions, the Commission is of the considered opinion that information against the queries 1 and 2 are exempt from disclosure, particularly in view of the fact that the Appellant has not been able to convince the Commission that such disclosure of information is in bonafide larger public interest. However, the Respondent shall provide a revised reply, furnishing appropriate information as per law, in response to the queries 3 and 4, raised by the Appellant, within three weeks of receipt of this order. The Respondent shall submit a compliance report before the Commission in this regard with necessary proof of service by 30.04.2021, failing which appropriate penal action shall be initiated as per law.
The appeal is thus disposed off, with the above directions.
Y. K. Sinha ( वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Page 10 of 11 Authenticated true copy (अिभ मािणत स ािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 11 of 11