Central Information Commission
Shri Prakash Jus Roy vs Deputy Commissioner Of Police, (Dcp) ... on 2 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/01170 dated 18-11-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Prakash Jus Roy
Respondent: Deputy Commissioner of Police, (DCP) New Delhi Distt.
FACTS
By an application of 21-3-07 Shri Prakash Jus Roy of Rani Jhansi Road, New Delhi applied to Shri Anand Mohan, DCP, New Delhi Distt. seeking the following information:
"1. List of all complaints filed against Mr. Rajinder Jaina alias Rajender Jain alias Mr. Rajender Jaina S/o T. C. Jain r/o Flat 'P', Sagar Apartments, G, Tilak Marg, New Delhi- 110001, office at N-52A, Connaught Circu7s, New Delhi- 110001.
2. All FIR's filed against the above named person along with ATR and current status.
3. All arrest warrants and non-traceable reports issued against the above and the current status.
4. List of all complaint's FIRs and arrest warrants issued in the name of Mr. T. C. Jaina, father of Mr. Rajender Jaina.
5. List of all complaint's FIRs and arrest warrants issued in the name of Mr. Rakesh Jaina son of Mr. T. C. Jaina.
6. List of all complaints filed against M/s Rajendra's and M/ lord Builders Pvt. Ltd.
Period for which information asked for: From 1980 till date."
To this he received a response dated 18-4-07 from Shri Anand Mohan, DCP, New Delhi Distt. as follows:-
"I am to state that two complaints with the allegation of cheating in respect of Rajender Jaina were received in P. S. Connaught Place on 25.5.06 and 15.6.06. A case FIR No. 248/06 dated 15.9.90 u/s 406/420 IPC, P. S. Connaught Place was registered against him, wherein he was acquitted by Shri V. K. Jain, M. M. Patiala House Court on 28.9.93. Information with regard to the remaining points may be treated as Nil."1
Not satisfied, however, Shri Prakash Jus Roy moved his first appeal before Shri Alok Verma, Jt. Commissioner of Police, New Delhi on 8-5-07 with the following plea:
"Correct and full information as requested in our application in Form-A dated 20.3.2007."
Upon this he received an order from Shri Alok Verma as follows:
"I have examined all the relevant records and find the appellant has sought information relating to 3rd party, therefore, I am asking PIO/ New Delhi District to issue 3rd party notice to Shri Rajender Jaina as per section 11 (1) of RTI Act, 2005 before providing comprehensive information to the appellant. The appeal is, accordingly disposed of."
Accordingly on 5-7-07 he received the following response in compliance with the orders of JCP Shri Alok Verma, from DCP Shri Anand Mohan:
"I am to state that in view of the Section 11 (1) of the Right to Information Act, 2005, the third party i.e. Rajender Jaina was served a notice to represent as to whether the detail information relating his involvement in criminal case may be provided to the applicant. In his representation the third party has objected. So no more information on your request in this matter can be provided."
Appellant Shri Prakash Jus Roy's prayer before us in his second appeal is as below:-
"Orders to the PIO to provide the comprehensive information, as this information is not exempted u/s 8 of Right to Information Act, 2005, and as it was discussed on floor of both Houses of Parliament, it cannot be denied to us under the Proviso of Section 8 (j). Further, as Rajender Jaina continues to heat innocent people, it is in larger public interest that such information should be disclosed.
Imposition of strict penalties upon the concerned persons for failure to provide information completely, and providing false and misleading information to protect Rajender Jaina and further with intent to defeat the provisions of RTI Act with malicious intent.
Due publication of action taken by you to uphold democracy and transparency of information vital of functioning of Government."
The following appeared before us on 12-1-2009:
2Appellants Shri Prakash Jus Roy Shri Pranay Jus Roy Respondents Shri V.S. Joon, ACP/Hq. New Delhi Distt.
Shri H.M. Bakshi, SHO, Connaught Place Mrs. Usha Choudhary, Sub Inspector, New Delhi Distt.
Appellant Shri Prakash Jus Roy submitted a copy of the proceedings in the Rajya Sabha in which the Union Home Minister has dealt with questions specifically regarding Shri Rajender Jaina. He, therefore submitted that this information should be provided to him and cannot be denied by the CPIO without application of mind simply because the third party has an objection to disclosure.
The grounds of withholding the information in this case can only be invocation of Section 8 (1) (j) of the RTI Act 2005 on the basis of invasion of privacy. 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. At any rate CPIO has under the orders of first appellate authority taken the precaution of referring the matter to Shri Rajender Jaina, third party, as required u/s 11 (1). The US Restatement of the Law, Second, Torts, 652 on the other hand, defines the invasion of Privacy in the following manner:
3One, 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.
However, the plea of appellant Shri Prakash Jus Roy is that the larger public interest will warrant disclosure. Therefore, before taking any further decision in this matter we decided that we should give third party Shri Rajender Jaina the opportunity to be heard. Therefore the case was adjourned to 20th January, 2009 at 12.30 p.m. when Shri Rajender Jaina of Flat P, Sagar Apartments, 6, Tilak Marg, New Delhi was also to be asked to be present to determine from him his objection to disclosing the information sought. The following appeared before us on 20-1-2009:
Appellants Shri Prakash Jus Roy Shri Thomas Kutty Respondents Shri V.S. Joon, ACP/Hq. New Delhi Distt.
Shri H.M. Bakshi, SHO, Connaught Place Mrs. Usha Choudhary, Sub Inspector, New Delhi Distt.
Shri Rajender Jaina to whom the notice had been served vide letter no. CIC/WB/A/2007/01170 dated 14th January 2009 is not present. When he was contacted on phone his son responded stating that he would wish to attend the hearing but has not received the notice. In light of this the hearing was further adjourned to 3rd February 2009 at 11.00 AM regarding which parties were informed including the representative of Shri Rajender Jena on 'phone. Accordingly, the following appeared before us on 3-2-09:
Appellants Shri Prakash Jus Roy.
Shri Pranay Jus Roy.
Respondents Shri V.S. Joon, ACP/Hq. New Delhi Distt.
Shri H.M. Bakshi, SHO, Connaught Place Mrs. Usha Chopra, W/SI Shri Rajesh Aggarwal Advocate for Shri Rajender Jaina.
Shri Rajesh Aggarwal, learned counsel for third party Shri Jaina submitted that Right to Information and Right to Privacy fall within Articles 19 and 21 of the Constitution of India. He then quoted from the decision of the 4 Supreme Court in 2004-(008)-SUPREME-0547-SC District Registrar Collector, Hyderabad & Anr. Vs. Canara Bank etc. in which Rt Hon'ble R.C. Lahoti J. and Ashok Bhaj J. had decided as follows:
"18. History takes us back to Semayne's case decided in 1603 (5 Coke's Rep 91a) (77 Eng Rep 194) (KB) where it was laid down that 'Every man's house is his castle. One of the most forceful expressions of the above maxim was that William Pit in the British Parliament in 1763. He said "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail its proof may shake the wind may below through it the storm may enter, the rain may enter but the Kind of England cannot enter his entire force dare not cross the threshold of the ruined tenement."
20. Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states:
No one shall be subjected to arbitrary interference with the privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 17 of the International covenant of Civil and Political Rights (to which India is a party) refers to privacy and states that:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondent, nor to unlawful attacks on his honour and reputation.
21. The European Convention on Human Rights, which came into effect on September 3rd 1953, also states in Article 8:
1. Everyone has the right to respect for his private an family life, his home and his correspondence......
.....The American Courts trace the 'right to privacy' to the English common law that treated it as right associated with 'right to property'.....
.....The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole......' ......Physical privacy is as necessary to 'relations o the most fundamental sort.. respect, love, friendship and trust' as 'oxygen is for combustion.'.....
.....Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/ executive orders and (3) judicial orders. The legislative intrusions must be tested on the touchstone of 5 reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionately of the intrusion vis-à-vis the purpose sought to be achieved......
.....Kharak Singh vs. State of UP, 1964 (1) SCR 332, the UP Regulations regarding domiciliary visits were in question and the majority referred to Munn vs. Illinois (1876) 94 US 113 and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to 'life' in Article
21......
.....The privacy right can be denied only when an important countervailing interest is shown to be superior', or where a compelling State interest was shown."
Thus while agreeing that we have no legislation on privacy, he submitted that the case of Rajender Jaina was clearly covered by this constitutional provision. He also went on to cite Section 8 (1) (b) of the RTI Act , which reads as follows:
information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
He also cited the Indian Evidence Act in submitting that as per Section 54the previous bad character of an individual cannot be taken into account in the subsequent hearing of a case. Ld. Counsel Shri Rajesh Aggarwal also invited our attention to the definition of contempt of court under the Contempt of Court Act 1971 with special reference to Section 2 (3) in which contempt of court has been stated to mean that it "interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;' Appellant Shri Jus Roy on his side presented copies of answers given in the Rajya Sabha and 8th Lok Sabha on 29-3-1988 and 26-7-1989 by the then Union Home Minister and Minister for Urban Development regarding Shri Rajinder Jaina and M/s. Jena Properties Private Ltd., Connaught Place to which reference had been made in our interim decision of 12-1-2009. He also submitted a copy of the decision of the Delhi High Court in 146 (2008) DLT 385 "Shri Bhagat Singh Vs. Chief Information Commissioner & Anr."
together with judgement pertaining to the Right to Information as being a part 6 of Fundamental Rights under Article 19 (1) (a) of the Constitution of India. In this context he argued that the information sought must be supplied and the third party plea may not be taken since this is a case acknowledged in the highest legislative authority of the country as concerning criminal activity.
DECISION NOTICE
1. Having heard the arguments over three sessions and examined the record we find that the key issue is whether the information sought is held by the public authority and would, in light of the third party's objection given u/s 11 (1) of the RTI Act, if disclosed constitute an invasion of privacy of Shri Rajinder Jaina. Clearly, the information sought, if given, cannot interfere with the proceedings of a trial court before which we are given to believe there are several cases pending between the third party Shri Jaina and appellant Shri Prakash Jus Roy. There is also no ground for evoking sections 52 to 55 of the Indian Evidence Act 1972 since the character of the parties concerned have no bearing on the matter concerning simply the disclosure of information held by a Public Authority. The key issue, therefore, remains whether such disclosure will amount to an invasion of privacy and therefore, qualifies for exemption u/s 8 (1) (j) of the RTI Act.
2. Right of privacy is not expressly guaranteed. However, the Supreme Court in Kharak Singh's case (AIR 1963 SC 1295) held that right to privacy is a guaranteed right under the Constitution of India. In Rajagopal v. State of Tamil Nadu, 1994(6) SCC 632 and in P.U.C.L. v. Union of India, (1997) ISCC 301 Supreme Court reiterated the law that right to privacy is part of the right to 'life' and 'personal liberty' enshrined under Article 21 of the Constitution. In these decisions, the Supreme Court placed reliance on the International Treaties to which India is signatory and came to a conclusion that Article 21 read with relevant Article in the International Treaty/Covenant would lead to a conclusion that right to privacy is part of Article 21.
3. The Supreme Court recognized that right to privacy by itself has not been identified under the Constitution and that as a concept; it may be too 7 broad and moralistic to define it judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on facts of each case. Describing the origin of the right to privacy. The Hon'ble Apex Court in Raj Gopal's case observed as follows: -
"The right to privacy as an independent and distinctive concept originated in the field to Tort Law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin: (1) the General law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life-story is written- whether laudatory or otherwise-and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status."
4. Accordingly, taping of telephone conversation has been held to be infringement of the right of privacy. Similarly, surveillance by police has been held to be an invasion of this right that gives cause of action for tortuous liability besides the right to enforce through constitutional courts.
5. The broad principles concerning the law of privacy were summarized by the Hon'ble Apex Court in Raj Gopal's case and accordingly, it was held:
(1) A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.
(2) None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned. But a publication concerning the above aspects becomes unobjectionable, if such publication is based upon public records including court records. Once something becomes a matter of public record, the right of privacy no longer exists. The only exception to this could be in the interest of decency.8
(3) In the case of public officials, it is obvious that right of privacy or for that matter, remedy of action for damages is simply not available with respect to their acts and conducts relevant to the discharge of their official duties. This is so even where the publication is based upon the acts and statements that are not true unless the official establishes that the publication was made with reckless disregard for truth.
(4) So far as the Government, local authority or other
organization and institution exercising
governmental power are concerned, they cannot maintain suit for damages for defaming them.
6. The right of privacy has not been held to be an absolute right. The impact of the Right to Information Act on the law of privacy has also come up for judicial scrutiny in a few cases. In K.J. Doraisamy vs. Assistant General Manager, State Bank of India & Ors. (MANU/TN/3276/2006) the question was as to whether a bank/financial institution has a right to publish the photographs of a defaulting borrower in newspapers and if such publication offends the law of privacy.
7. The Madras High Court observed that with the advent of the Right to Information Act, the bank has become obliged to disclose the information to the public. It also observed that Section 3 of the Act entitles a citizen to the right of information. Section 4(2) of the said Act obliges a Public Authority to disclose information to common people. Even personal information or an information, which may otherwise amount to an invasion of privacy, may also be disclosed if the larger public interest so warrants. The Hon'ble Court in fact came to the conclusion that the right to privacy virtually fades out in front of the 'Right to Information' and 'larger public interest.'
7. In "R. Anbazhagan Deputy Manager (Mechanical) Tamilnadu Newsprint and Papers Ltd. (TNPL) Vs. State Information Commission & Ors. (MANU/TN/0638/2008) the applicant wanted to know the salary particulars of an employee working in the Tamil Nadu News Printing and Papers Limited and the concerned Public Authority declined to provide information on the ground that it is a 'personal information' which has no relationship to any public activity or interest and that it would cause 9 unwarranted invasion of privacy of a person. Rejecting the objection, the Hon'ble Madras High Court observed as follows:
"The petitioner receives his salary from a public sector undertaking and as stated in the counter filed by the respondents 2 and 3 it is subject to the provisions of Income Tax. Therefore, there is nothing secret about the income received by him. Further it also cannot be stated that the disclosure has no relationship to any public activity or interest. The case of the fourth respondent is, if this information is disclosed it would show that the petitioner's wife would not satisfy one of the criteria subject to which the LPG distributorship is allotted. This allotment of distributorship cannot be arbitrary and contrary to rules and if there is some factor, which would vitiate the selection process, then it would definitely be a matter of public interest. In any event, the income received by an individual from a public sector undertaking cannot be private information. Information relating for example as to whether a particular person is tested HIV positive might be a matter which intrudes into the privacy of the individual, but not the monthly income which a person is receiving from a public sector undertaking which is subject to income tax."
8. In the present case what is being asked for is information concerning criminal cases filed against one individual Mr. Jaina. One of the pleas that have been taken by the appellant is that the information has been disclosed to the Parliament and has been a matter of discussion in the Parliament. He has submitted that what has not been denied to Parliament cannot in any case be denied under proviso to Section 8(1)(j). Disclosability of an information on this ground was discussed at length in "Surupsingh Vs. State of Maharashtra"
AIR 2007 Bom 121. In this case, a private citizen by an application under the RTI Act sought from the PIO of Shri J.J. Hospital ,Mumbai, the medical records of the writ petitioner. In his application, it was set out that it was in public interest to know why a convict is allowed to stay in an air-conditioned comfort of the hospital and that there has been intensive questioning about this aspect in the media and the people's mind. The following observations of the Hon'ble Court in this regard are worth quoting: -
"The question then is what is the true import of the proviso, which sets out that the information which cannot be denied to Parliament or a State Legislature shall not be denied to any person. Are the medical records maintained of a patient in a 10 public hospital covered by the provisions of the Act? Can this information be withheld to either Parliament or State Legislature as the case may be on the ground that such information is confidential? To our mind generally such information normally cannot be denied to Parliament or the State Legislature unless the person who opposes the release of the information makes out a case that such information is not available to Parliament or the State Legislation under the Act. By its very constitution and the plenary powers, which the Legislature enjoys, such information cannot be denied to Parliament or State Legislature by any public authority. As the preamble notes, the Act is to provide for setting out a practical regime of right to information for citizens, to secure access to information under the control of public authorities as also to promote transparency and accountability in the working of every public authority. These objects of the legislature are to make our society more open and public authorities more accountable. Normally, therefore, all such information must be made readily available to a citizen subject to right of privacy and that information having no relationship to any public authority or entity 1 . In the instant case the respondent No. 2 while granting the application of respondent No. 5, has given as reasons larger public interest and as that the information could not be withheld from Parliament or State Legislature. The learned Associate Advocate General informed us that the State Assembly has not framed any Rules in the matter of receiving information.
The test always in such matter is between private rights of a citizen and the right of third person to be informed. The third person need not give any reason for his information. Considering that, we must hold that the object of the Act, leans in favour of making available the records in the custody or control of the public authorities."
9. In the above case, on behalf of the petitioner, it was also contended that the medical records are confidential and considering the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 framed under Indian Medical Council Act, 1956, the information as sought should not be revealed unless the revelation is required by the law of the State. It was also contended that a Registered Medical Practitioner is not required to disclose the secrets of his patient except in a Court of Law and under the orders of the presiding Judge under the said Regulations. Considering the provisions of the Right to Information Act, 2005 in the context of the facts of case, the Hon'ble Court held that:-
1Emphasis ours 11 "The Right to Information Act, is an enactment by Parliament and the provisions contained in the enactment must, therefore, prevail over an exercise in subordinate legislation 2 , if there be a conflict between the two."
10. If the facts of the case are analysed in the context of judicial pronouncement cited above, and in the context of the matter having already been disclosed before Parliament both in the Rajya Sabha and in the Lok Sabha, which attests to the demands of public interest, there remains hardly any justification in withholding this information from disclosure. It is accordingly directed that the CPIO shall provide the information to the appellant that is held by him within 15 working days from the date of receipt of this order. The appeal is accordingly allowed, but there will be no cost.
Reserved in the hearing this decision is announced in open chambers on 2.3.'09. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 2-3-2009 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 2-3-2009 2 Emphasis added 12