Krishan Kumar Yadav vs Chief Information Commissioner ... on 17 November, 2022

[Cites 14, Cited by 0]

Delhi High Court - Orders

Krishan Kumar Yadav vs Chief Information Commissioner ... on 17 November, 2022

1. The instant writ petition has been preferred against an order passed by the Chief Information Commission [CIC] in terms of which the prayer for disclosure of information that was sought has been rejected. The Court notes that the disclosures which were sought by the petitioner pertained to the pay slip of the estranged wife.

2. The CIC has taken into consideration the settled position that such a disclosure would clearly amount to the invasion of privacy rights of third parties and therefore the disclosures would not be merited.

3. The Court notes that the issue of whether the provisions of the Right to Information Act, 2005 can be invoked in cases of matrimonial disputes is no longer res integra and stands settled in light of the decision rendered by the Court in Vijay Prakash versus Union of India & Ors. [2009 SCC OnLine Del 1731] where it was observed and held as follows:-

"18. The scheme of the Information Act no doubt is premised on disclosure being the norm, and refusal, the exception. Apart from the classes of exceptions, they also appear to work at different Signature Not Verified levels or stages, in the enactment. Thus, for instance, several Digitally Signed By:NEHA Signing Date:18.11.2022 17:17:42 organizations--security, and intelligence agencies, are excluded from the regime, by virtue of Section 24, read with the Second Schedule to the Act. The second level of exception is enacted in Section 8, which lists 11 categories or classes [Clauses (a) to (j)] that serve as guidelines for nondisclosure. Though by Section 22, the Act overrides other laws, the opening non obstante clause in Section 8 ("notwithstanding anything contained in this Act") confers primacy to the exemptions, enacted under Section 8(1). Clause (j) embodies the exception of information in the possession of the public authority which relates to a third party. Simply put, this exception is that if the information concerns a third party (i.e. a party other than the information seeker and the information provider), unless a public interest in disclosure is shown, information would not be given; information may also be refused on the ground that disclosure may result in unwarranted intrusion of privacy of the individual. Significantly, the enactment makes no distinction between a private individual third party and a public servant or public official third party.

21. Earlier, in Kameshwar Prasad v. State of Bihar, AIR 1962 1166, an argument that public servents do not possess certain fundamental rights, was repelled, by another Constitution Bench, categorically, in these terms:

"It was said that a Government servant who was posted to a particular place could obviously not exercise the freedom to move throughout the territory of India and, similarly, his right to reside and settle in any part of India could be said to be violated by his being posted to any particular place. Similarly, so long as he was in Government service he would not be entitled to practice any profession or trade and it was therefore urged that to hold that these freedoms guaranteed under Article 19 were applicable to Government servants would render public service or administration impossible. This line of argument, however, does not take into account the limitations which might be imposed on the exercise of these rights by Clause (5) and (6) under which restrictions on the exercise of the rights conferred by Sub-clauses (d) and (g) may be imposed if reasonable in the interest of the general public.

13. In this connection he laid stress on the fact that special provision had been made in regard to service under the State in some of the Articles in Part III--such as for instance Arts. 15, 16, and 18(3) and 18(4)--and he desired us therefrom to draw the inference that the other Articles in which there was no specific reference to Government servants were inapplicable to them. He realised, however, that the implication arising from Article 33 would run Signature Not Verified counter to this line of argument but as regards this Article Digitally Signed his submission was that it was concerned solely to save By:NEHA Signing Date:18.11.2022 17:17:42 Army Regulations which permitted detention in a manner which would not be countenanced by Article 22 of the Constitution. We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.

14. In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Article

33. That Article select two of the Services under the State members of the armed forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-- from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19(1)(e) and

(g)."

22. A bare consideration of the right of individuals, including public servants, to privacy would seem to suggest that privacy rights, by virtue of Section 8(1)(j) whenever asserted, would have to prevail. However, that is not always the case, since the public interest element, seeps through that provision. Thus when a member of the public requests information about a public servant, a distinction must be made between "official" information inherent to the position and those that are not, and therefore affect only his/her private life. This balancing task appears to be easy; but is in practice, not so, having regard to the dynamics inherent in the conflict. Though it may be justifiably stated that protection of the public servant's private or personal details as an individual, is necessary, provided that such protection does not prevent due accountability, there is a powerful counter argument that public servants must effectively waive the right to privacy in favour of transparency. Thus, if public access to the personal details such as identity particulars of public servants, i.e. details such as their dates Signature Not Verified of birth, personal identification numbers, or other personal Digitally Signed By:NEHA Signing Date:18.11.2022 17:17:42 information furnished to public agencies, is requested, the balancing exercise, necessarily dependant and evolving on case by case basis may take into account the following relevant considerations, i.e.

(i) whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization, and,

(ii) whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case;

(iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources.

23. An important and perhaps vital consideration, aside from privacy is the public interest element, mentioned previously. Section 8(1)(j)'s explicit mention of that concept has to be viewed in the context. In the context of the right to privacy, Lord Denning in his What Next in Law, presciencely said that:

"English law should recognise a right to privacy. Any infringement of it should give a cause of action for damages or an injunction as the case may require. It should also recognise a right of confidence for all correspondence and communications which expressly or impliedly are given in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions are to be allowed whenever the public interest in openness outweighs the public interest in privacy or confidentiality. In every instance it is a balancing exercise for the Courts. As each case is decided, it will form a precedent for others. So a body of case-law will be established."

24. A private individual's right to privacy is undoubtedly of the same order as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, which is afforded to the two classes--public servants and private individuals, has to be viewed from this perspective. The nature of restriction on the right to privacy is therefore of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake. Therefore, if an important value in public disclosure of personal information is demonstrated, in the particular facts of a case, the protection afforded by Section 8(1)(j) may not be available; in such case, the information officer can proceed to the next step of issuing notice to the concerned public official, as a "third party" and consider his views on why there should be no disclosure. The onus of showing that disclosure should be made, is upon the individual asserting it; he cannot merely say that as the information relates to a public official, there Signature Not Verified is a public interest element. Adopting such a simplistic argument Digitally Signed By:NEHA Signing Date:18.11.2022 17:17:42 would defeat the object of Section 8(1)(j); the legislative intention in carving out an exception from the normal rule requiring no "locus" by virtue of Section 6, in the case of exemptions, is explicit through the non obstante clause. The court is also unpersuaded by the reasoning of the Bombay High Court, which appears to have given undue, even overwhelming deference to Parliamentary privilege (termed "plenary" by that Court) in seeking information, by virtue of the proviso to Section 8(1)(j). Were that the true position, the enactment of Section 8(1)(j) itself is rendered meaningless, and the basic safeguard bereft of content. The proviso has to be only as confined to what it enacts, to the class of information that Parliament can ordinarily seek; if it were held that all information relating to all public servants, even private information, can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover, there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court.

25. As discussed earlier, the "public interest" argument of the petitioner is premised on the plea that his wife is a public servant; he is in litigation with her, and requires information--in the course of a private dispute--to establish the truth of his allegations. The CIC has held that there is no public interest element in the disclosure of such personal information, in the possession of the information provider, i.e. the Indian Air Force. This Court concurs with the view, on an application of the principles discussed. The petitioner has, not been able to justify how such disclosure would be in "public interest": the litigation is pure and simple, a private one. The basic protection afforded by virtue of the exemption (from disclosure) enacted under Section 8(1)(j) cannot be lifted or disturbed."

4. In that view of the matter, the Court finds no ground to interfere with the order impugned in the instant writ petition.

5. It is, however, observed that the competent court which is in seisin of the matrimonial dispute would be bound to act in furtherance of the principles which were enunciated by the Supreme Court in Rajnesh versus Neha [(2021) 2 SCC 324] and require all parties to file their comprehensive affidavit of assets on record.

6. The Court thus leaves it open to the petitioner here to pursue the said issue before the competent court which as noted hereinabove Signature Not Verified Digitally Signed By:NEHA Signing Date:18.11.2022 17:17:42 would be obliged to proceed further in accordance with the guidelines laid down by the Supreme Court in the decision noted above.

7. The writ petition stands disposed of on the above terms.

YASHWANT VARMA, J.

NOVEMBER 17, 2022 neha Signature Not Verified Digitally Signed By:NEHA Signing Date:18.11.2022 17:17:42

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders