Central Information Commission
Shri Basanti Lal Singhvi vs Ministry Of Home Affairs (Mha) on 16 June, 2009
CENTRAL INFORMATION COMMISSION
Adjunct to Appeal No. CIC/WB/A/2007/00518 dated 22-3-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Basanti Lal Singhvi
Respondent: Ministry of Home Affairs (MHA)
ORDER
In our decision of 16.5.2008 we had held as follows:
"In the instant case, the then Minister (Home) has refused to disclose information in Parliament on the ground that the information happens to be a private one. What has been refused to be disclosed in Parliament, if made public at this stage, may be considered to be a breach of privilege. Of course, the Commission does not have the jurisdiction and would not choose to pass a verdict as to whether it will actually amount to either breach of privilege or contempt of the Parliament because it is for the Parliament to decide and determine that. The Commission can only see and examine whether the concerned Public Authority denying the information has a prime facie apprehension as to whether disclosure of information in the given case may amount to commission of contempt or breach of privilege and if a prime facie case is so made out, the Commission has to uphold the same. Parliament may, however, examine the matter in the light of the provisions of the Right to Information Act and the objectives that this legislation intends to achieve of bringing transparency and accountability in the working of all public authorities. In this case, the Commission would like to make a reference, and to request the Hon'ble Speaker of the Lok Sabha, Shri Somnath Chatterjee to consider the issue and decide as to whether it would be a breach of privilege if the information, which has been refused to be disclosed to Parliament by the Executive at one point of time, is now disclosed to an applicant under the Right to Information Act, 2005. Needless to say, if eventually an order of disclosure of information is issued after the matter of Parliamentary privilege is decided by the Hon'ble Speaker, because it cannot be denied that the information sought is with regard to a private property, hence before disclosing any information on record in this regard CPIO will still be required to give a written notice to the third party i.e. the erstwhile Maharaja of Udaipur, of the request and invite the third party to take a submission in writing or orally, regarding whether the information should be disclosed, and on this basis take a decision 1 on the disclosure of information keeping in view that should the third party claim invasion of privacy u/s 8(1)(j), the CPIO will have to take a considered decision after keeping in view such objection, considering that there is a public activity involved in this matter i.e. the accession of the State to the Indian Union and also to the fact that more than twenty years have expired since such accession.
The appellant has indeed contended that the information being more than 20 years old must be disclosed under sub-section (3) of Section 8 of the Right to Information Act, 2005 which reads as under:-
Section 8(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.
From the above, it is clear that the provisions of Section 8(3) are subject to the provisions of Section 8(1) (c) and, as such, even if the information relates to an incident or event which has taken place, occurred or happened 20 years before, still if it is decided that the disclosure amounts to the breach of privilege of Parliament, it cannot be disclosed."
On a series of complaints of non-compliance submitted by Shri Basanti Lal Singhvi, we found from the records that it appears that instead of complying with the orders of the Commission the concerned public authority had made a further reference to the Lok Sabha Secretariat. It appeared to us that on the basis of the file received from National Archives the Ministry is of the opinion that the subject matter of the information requested i.e. Sahelion ki Badi is a private property rather than a state property.
From the records it also appeared that in compliance with the orders of the Central Information Commission, a notice had been issued to the third party i.e. erstwhile Maharaja of Udaipur to make a submission in writing or orally regarding 2 the disclosure of the information asked for by the appellant. A copy of the notice appears to have also been sent to the Chief Secretary, Government of Rajasthan for causing service on the third party.
Consequently a notice was issued to Shri N.M. Perumal, Director Ministry of Home Affairs, by our order of 18.2.09 to show cause as to why a maximum penalty of Rs. 25,000/- should not be not imposed on him under section 20 (1) of the RTI Act 2005 for having willfully obstructed furnishing of information to appellant Shri Basanti Lal Singhvi in compliance with the orders of the Commission. Subsequently the case was heard on 9.3.09 and the following were present:-
Respondent i. Shri Shashi Bhushan, JS & Appellate Authority, MHA ii. Shri Mohinder Singh, Director (Judicial) & CPIO, MHA iii. Smt Santa Thampi, US (Judicial), MHA Shri Shashi Bhushan Jt. Secretary MHA submitted that the orders dated 31.7.08 issued by the Commission were received in the Judicial Division on 5.8.08. In accordance with the orders of the Commission, notice was issued to the third party i.e. erstwhile Maharaja of Udaipur on 8.8.08. It was confirmed that the notice dated 8th August 2008 was forwarded through the Chief Secretary, Government of Rajasthan vide letter dated 8th August 2008.
The reply from the third party was received by the respondent Public Authority on 20.10.2008 and the Maharaja of Udaipur in his reply objected to the disclosure of the List of Properties to the private individuals as in his view the disclosure is likely to be misused to "drag us in unnecessary and baseless litigation and expose the Estate to wholly unwarranted litigation".
While waiting for the response of third party, in view of the policy decision taken at the highest level in the Ministry of Home Affairs, the case was submitted to the Hon'ble Home Minister for taking the approval regarding providing the 3 requisite information to the applicant. Accordingly, the Hon'ble Home Minister on 24.9.2008 ordered as follows:
'A' yes.
Unless directed by the court, I think we need not show the document or give the information to the court. Let us decide the issue after receiving the required clarification from the Lok Sabha."
A reference was accordingly made by the respondent Public Authority to the Hon'ble Speaker, Lok Sabha, on 29.09.2008. A reply from the Lok Sabha Secretariat was received on 06.01.2009 wherein it was observed as follows:-
'B' -
As the USQ No. 655 answered in the Lok Sabha on 15th November, 2008 pertained to properties of rulers of Indore and Gwalior, it cannot be contended that the specific information denied to Lok Sabha in reply to that question would be divulged if the request of Shri Basanti Lal Singhvi seeking information regarding property of erstwhile Maharaja of Udaipur were to be acceded to."
During the hearing the respondent Public Authority produced two of the letters- one letter no. ASM/2008-09/648 dated 14th October 2008 addressed to the Director (Judicial) & CPIO, MHA by Shri Arvind Singh Mewar and the other a DO No. F.4 (3)-P/51 dated 28th March 1951 addressed to Maharana Sir Bhupal Singh ji Bahadur, Maharaja of Udaipur from the Ministry of States, Government of India.
The Respondent Public Authority also submitted that the response from the Lok Sabha Secretariat as well as the reply received from the third party, i.e. Maharaja of Udaipur, were considered at the highest level and the case was submitted to the Hon'ble Home Minister for taking a decision on merit particularly in view of the objection of the third party. After a careful consideration of the entire matter at the highest level, it was decided that the disclosure of information be refused. Accordingly, a reply dated 17.02.2009 was sent to Shri Basanti Lal 4 Singhvi, the appellant. A copy of the reply sent to the appellant was also endorsed to the Commission.
On perusal of the aforesaid D.O. No. F.4 (3)-P/51 dated 28th March, 1951 from the Ministry of States, Government of India, it appears that the Government of India has agreed to recognize Laxmi Vilas Palace and Sahelion-ki-badi gardens and buildings as the private property of Maharaja of Udaipur. From the records, it is also clear that this particular information at one point of time was denied to the Parliament by the Hon'ble Minister on the ground that the information pertains to private property of ex-Rulers.
In view of the above, it is clear that disclosure of information concerning this matter is not covered u/s 8(1) (c) of the Right to Information Act, 2005. It is now established that the information sought is concerning a private property namely Sahelion ki Badi belonging to Maharaja Udaipur, the disclosure of details of which have been objected to u/s 11(1) of the Right to Information Act by the third party. There is however, no doubt that the information sought is held by a public authority namely the Ministry of Home Affairs. The question, therefore, arises whether such disclosure in the case of a property which has been a subject of public interest would amount to invasion of privacy. Before taking any decision with regard to disclosure of any such information, therefore, the third party will require to be given an opportunity of being heard. Maharaja, Udaipur Shri Arvind Singh or his authorized representative was, therefore invited to appear before us through videoconference on 8th June, 2009 at 12.30 p.m. together with appellant Shri Basanti Lal Singhvi to enable us to take a final decision in this matter.
The only question then remaining to be decided was as to whether the CPIO has willfully disobeyed the orders of the Commission and rendered him self liable for penalty envisaged under Section 20(1) of the Right to Information Act, 2005. As has been quoted above, the Commission directed the CPIO to provide the information sought by the appellant, Shri Basanti Lal Singhvi, within 20 days from the date of the decision notice, allowing for 5 days for issue of notice to the 5 third party and a further 10 days for the third party to respond. The disclosure of information, therefore, was contingent upon giving a notice to the third party; receiving a response from the third party and then taking a decision on the basis of response given by the third party. From what has been stated before this Commission, it appears that the communication of the third party was sent through the Chief Secretary, Rajasthan and the reply from the third party was received on 20.10.2008. It further appears that in the meantime a reference was already made to the Hon'ble Speaker, Lok Sabha, by the Ministry under the orders of the Home Minister.
The Commission had been apprised at the time of hearing, that a copy of the D.O. letter from the Ministry of States addressed to the Maharaja of Udaipur was obtained from the Archives and when it was established that the Sahelion-ki- badi which is the subject matter of the RTI application, is undoubtedly a private property, the Ministry decided to make a reference to the Lok Sabha Speaker.
In view of these facts and circumstances, no fault could be found with the CPIO. This matter was decided accordingly. The complaint was then heard by video conference on 8.6.2009. The following are present:
Appellant at NIC Studio, Udaipur Mr. Basanti Lal Singhvi Mr. Narender Singhvi (son of appellant) Respondents at CIC Studio, New Delhi Mr. Shashi Bhushan, J.S. (J), MHA Mr. Mohinder Singh, Dir. (J), MHA Mr. A. K. Sharma, S.O. (Judl), MHA Third Party at NIC Studio, Udaipur.
Ms. Aditi Lodha, Legal Consultant of Maharaja Udaipur. Mr. Aslam Naushad, -do-
Ms. Aditi Loha invited our attention to the letter of 14.10.08 of Shri Arvind Singh Mewar to CPIO Shri Mohinder Singh, Director, MHA, in which she has sought to classify the answer in two parts -6
A In para 1 which she defines as Part-I, third party Shri Arvind Singh has objected to the disclosure of the list of his private properties. B In para 2, classified as Part-II, however, Shri Arvind Singh Mewar has agreed to comply with any orders provided that the impugned list is accompanied by some letters, as identified by him.
Shri Narender Singhvi on the other hand submitted that a PIL has been filed in this case by one Shri Nair challenging the sale of Sahelion-ki-Badi of which Shri Singhvi is buyer. It was in that context that the information was required and that there was no conflict of interest between his seeking the information and the plea taken by third party Shri Arvind Singh Mewar. Shri Shashi Bhushan J.S.(J) MHA confirmed that the supporting documents cited by Shri Arvind Singh Mewar in his letter of 14th Oct., 2008 are held on the Government record either in the Ministry itself or in the National Archives.
DECISION NOTICE As discussed above and in light of the advice received from the Hon'ble Speaker, Lok Sabha exemption from disclosure u/s 8(1) sub sec.(c) of the RTI Act is not applicable in the present case. The only question that remains is exemption under sub sec. (j) of Sec. 8(1). This section has three components which will determine qualifying for exemption:
1. The information sought must have no relationship to any public activity.
2. The information sought must have no relationship to any public interest, and
3. The information sought would cause unwarranted invasion of privacy of the individual.
It is clear that in the present case the status of the land in question has been the subject of intense public activity with exchange of correspondence 7 between the Government of India and the family of Shri Arvind Singh Mewar, with the matter coming up also before Parliament. But it the conclusion of that process we find that the information sought has not been the subject of interest in Parliament and by being found to be private property is now outside the sphere of public interest. However, from the response received from the third party dated 14th October, 2008, w see that he has not argued invasion of privacy but only threat of undue harassment, to avoid which he has also suggested that if disclosure is made it should be accompanied by disclosure of further information.
We do not have a law of privacy in India. We have no clear definition of what is meant by "invasion of privacy" within the RTI Act. We have no equivalent of UK's Date Protection Act, 1998, Sec 2 of which, titled 'Sensitive Personal Data', reads as follows:
"In this Act "sensitive personal data" means personal data consisting of information as to:
a) The racial or ethnic origin of the data subject.
b) His political opinions.
c) His religious beliefs or other beliefs of a similar nature.
d) Whether he is a member of a Trade Union.
e) His physical or mental health or condition.
f) His sexual life.
g) The commission or alleged commission by him of any
offence.
h) Any proceedings for any offence committed or alleged to
have been committed by him, the disposal of such
proceedings or the sentence of any court in such
proceedings.
If we were to construe privacy to mean protection of personal data, this would be a suitable starting point to help define the concept. The US Restatement of the Law, Second, Torts, 652 on the other hand, defines the invasion of Privacy in the following manner:
One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.8
In light of the above, we might now refer to the original application of appellant Shri Basanti Lal Singhvi of 23.1.'07, in which he has clarified as follows:
We have purchased 1 bigha (land and rest house) situated art 66 K Saheli Marg, Udaipur from ex-Maharaja of Udaipur which was a registered document and registration completed on 18.12.'63 in favour of late Shri Vijay Singh Singhvi One of the parties filed a PIL in court stating that the property sold by ex-Maharaja to Singhvi family is a state govt. property and Maharaja was not authorised to sell the property."
. It is in the above context that appellant Shri Basanti Lal Singhvi has sought an inventory of private properties of the former Maharaja. We have already decided that exemption from disclosure under Section 8(1) (c) of the Right to Information Act, 2005 does not apply in the present case. The information concerning the private properties of the third party in this case was not is not at issue. However, similar information concerning other ex-Rules has been denied in Parliament.
The only issue that needs to be determined is as to whether the exemption claimed under Section 8(1) (j) is justified or not. There is, no doubt, that the properties in respect of which information has been asked for are the private properties of a third party, disclosure of which is permissible only if a larger public interest justifies its disclosure. In this context, it will also be pertinent to refer to the proviso of Section 8(1) (j) which reads as under:-
"Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
There is no doubt that the proviso is not the Rule, but is instead an exception to a Rule, yet it definitely provides assistance in understanding the ambit and scope of Section 8(1)(j), particularly in view of the facts and circumstances of this case. In a similar case relating to other ex-Rulers, information was asked for in the Parliament and the same has been denied. If a Member of Parliament would have asked for information about the private 9 properties of the third party, the Ministry would have taken the same stand and would have denied information. Under the circumstances, it appears that the information is, per se, "deniable" and if it is deniable to the Member of Parliament, there is every reason to believe that its disclosure cannot be held to be in public interest. The claim of exemption, therefore, is held as "justified".
In this case, however, the third party has agreed that the information asked for by the appellant may be disclosed provided certain other documents are also simultaneously disclosed. At this stage, it will not be appropriate on the part of this Commission to decide this matter and allow the concerned public authority to disclose even those documents which have not been even asked for by the appellant. It is on the other hand open to the appellant to seek disclosure and it will thereafter be for the CPIO of the concerned public authority to decide about disclosure after affording an opportunity of being heard to the concerned third party, and taking into account his qualified acquiescence quoted above. The appeal accordingly stands disposed of.
Reserved in the hearing, this Decision is announced on this 16th day of June, 2009 in open Chamber. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 16.6.2009 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 16.6.2009 10