Central Information Commission
Ashish Thakarshibhai Diyora vs Bar Council Of India on 10 May, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/BCOIN/A/2021/120558
Ashish Thakarshibhai Diyora ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bar Council of Gujarat, RTI
Cell, 3rd Floor, Satyamev Complex,
Opp. High Court of Gujarat, Sola,
Ahmedabad - 380060, Gujarat. .... ितवादीगण /Respondent
Date of Hearing : 06/05/2022
Date of Decision : 06/05/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 07/03/2020
CPIO replied on : 11/06/2020
First appeal filed on : 01/07/2020
First Appellate Authority's order : 08/03/2021
2nd Appeal/Complaint dated : 15/04/2021
Information sought:
The Appellant filed an RTI application dated 07.03.2020 seeking the following information:
(1) "Forms were submitted in your department in the year 2017, 2018, 2019 to get Sanad. Out of them, marksheets of graduation from other states' universities were verified and received contradictory, suspicious verification clarifications of some persons from there. Verification of other universities is received from totally 1 doubtful sources and received false information and received verification relating to false courses, years and places. Therefore it is requested to provide information of all Sanad forms of such persons, marksheets of every years of graduations, LL.B., copy of migration certificate, provisional certificate and letters addressed to your office for verification and correspondences done in reference thereto, as well as provide information about reply and clarification received and necessary information of remarks/notes of your office in that reference. Further more, also provide information about persons to whom your office has issued sanad. I/we are ready to pay expense for getting all these information. (2) The applicants who are pending to get sanad, have completed three years of graduation of after Std.12 from their local university, but for law-admission, mandatory 45% is not achieved, so such applicant who has completed only last third year from other state's university, bringing brought certificate-marksheet from there and has submitted with form in the law college. Thus in form to get sanad, such candidate has concealed fact of graduation passed with less percentage from their local university. So only last year's other university's marksheet of graduation is submitted for such candidate. Therefore please provide every details of such applicants alongwith necessary evidences with sanad form."
The CPIO replied to the appellant on 11.06.2020 stating as follows:-
"The information asked for cannot be supplied due to following reasons.
(i) As per section 9(1)(i) of the Bar Council of Gujarat Right to information Rules, 2014."
Being dissatisfied, the appellant filed a First Appeal dated 01.07.2020. FAA's order dated 08.03.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: Nilesh J Panchal, Incharge Secretary & CPIO present through video conference.2
The Appellant reiterated the information sought for in the RTI Application and agitated against the denial of the same by the CPIO citing RTI rules of Bar Council of Gujarat.
Upon apprising the Appellant regarding the applicability of the exemption of Section 8(1)(j) of the RTI Act, he contested that he has not named any third party in the RTI Application and urged the underlying issue concerns his sanad also.
The CPIO submitted that he has taken charge only in first week of March and has been able to gather from the available records that the information was denied as the High Court of Gujarat has stayed the case proceedings untill the next date of hearing i.e 08.06.2022.
Decision:
The Commission based on a perusal of the facts on record observes that facts and circumstances of the instant case is squarely covered by the below quoted findings and decision of this bench in the matter of Divya Pranav vide File No. CIC/BCOIN/A/2020/129309 dated 03.02.2022, wherein the same subject matter of sanad was pursued and denial was on the grounds of the Bar Council of Gujarat RTI Rules, 2014:
Hearing proceedings in Divya Pranav Case:
"The CPIO relied upon his written submissions sent prior to the hearing justifying the denial of the information based on Section 9(1)(i) of the Bar Council of Gujarat Right to Information Rules, 2014 by stating that Section 28 of the RTI Act allows rule-making power to the competent authority for implementation of the RTI Act. He further harped on the argument that the Appellant filed forged documents for seeking registration with the BCG against which BCG has filed a criminal complaint against her and since the matter is sub judice, the information sought regarding the action taken on her representation cannot be provided.
The Appellant through her written submission brought the attention of the bench to an earlier decision of the Commission vide File No.CIC/BCOIN/A/2019/144991 dated 23.08.2021 (Shailesh Dilipbhai Babria vs. Bar Council Gujarat) against the same CPIO wherein the same question of law was determined and adjudicated upon. The relevant extract of the said decision is reproduced hereunder for clarity:3
'Having heard both the parties and on perusal of the available records, the Commission at the outset notes that in the instant matter information has been denied by the Respondent by quoting various subclauses of Rule 9 of the Bar Council of Gujarat Right to Information Rules (BCGRTI Rules), 2014 which the Respondent claims to have the approval of the Bar Council of India. At the outset, the Commission in the following paragraphs provides its views on Rule 9 of the BCGRTI Rules, 2014. the relevant provisions of Rule 9 read as under:
9. Restrictions:-
(1) No information shall be provided to any applicant in the following matters:-
(i) In respect of the document of records produced in a judicial proceeding.
(ii) The information, which is likely to affect the security of any institution or the public order.
(iii) The information, which has no relationship with the public activity.
(iv) The information, which could cause unwarranted invasion to the privacy of any person.
(v) If it relates to a policy matter under consideration.
(vi) If a copy can be issued under the provisions of Advocates Acts, 1961 and the Rules framed by the Council.
While it is true that Section 28 of the RTI Act, 2005 allows the competent authority to make rules by notification in the official gazette in order to implement the provisions of the Act, the provisions of the principal act cannot be invoked in order to impose new kinds of exemption from disclosure of information apart from the ones enumerated u/s 8 and 9 of the RTI Act, 2005. It is a matter of concern that some of the provisions enumerated in Rule 9 are exemptions beyond what is clearly prescribed in the exhaustive provisions of Section 8 of the RTI Act, 2005 which has been carefully deliberated, debated and enacted by the Parliament. The Commission also observes that the provisions are ambiguously drafted and aim to allow denial of such information which may otherwise be allowed for disclosure as per the RTI Act, 2005. For instance Rule 9
(iii) allows for denial of information which has no relation to any public activity. However, the RTI Act, 2005 does not allow for denial of information merely on the ground that it is not related to any public activity or interest. The test of public activity or interest can only be applied to justify disclosure of information otherwise exempted u/s 8 (1) (d), (e) or (j) of the RTI Act, 2005. The following observations made in the judgement of the Hon'ble High Court of Kerala in Treesha Irish v. The CPIO and Ors. WP (C) No.6532 of 2006 dated 30.08.2010 is relevant in this respect:
4'23. There is no provision anywhere in the Act to the effect that information can be refused to be disclosed if no public interest is involved. Of course in a case of personal information, if it has no relationship with any public activity or interest, the information officer has discretion to refuse to disclose the same, if the larger public interest does not justify disclosure of such information. But on the ground of lack of public interest involved alone, the public information officer cannot refuse to disclose the information, without a finding first that the information is personal information having no relationship to any public activity or interest.' Similarly, some of the provisions such as Rule 9 (iv) are redundant since Section 8(1)(j) already allows for denial of such information which would cause unwarranted invasion of the privacy of the individual.
On closer examination of the RTI Act, 2005 it is evident that there is no enabling provision in the principal Act i.e., RTI Act, 2005 for Bar Council of Gujarat to enact rules for denying information in addition to what is prescribed under the RTI Act, 2005. Similarly, Section 28(2) which empowers the public authority to notify Rules for implementing the principal Act also makes no reference to denial of further information by way of additional rules. Clearly, Parliament's intention was to list out exemptions for disclosure of information only u/s 8 and 9 of the RTI Act, 2005.
Furthermore, the Hon'ble Supreme Court in State of UP &Ors vs Renusagar Power Co and Ors 1988 AIR 1737 decided on 28.07.1988 held as follows:
'If the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled.' Hence, Rule 9 of the BCGRTI Rules, 2014 clearly appears to be in contravention of the parent statute. Therefore, in exercise of its powers under Section 25 (5) of the RTI Act, 2005, the Commission recommends to the Secretary, Bar Council of Gujarat to put up the instant decision before the competent authority to take a considered view regarding amending the Bar Council of Gujarat Right to Information Rules, 2014 in view of the above- mentioned observations.
The Commission also directs Shri P.M. Parmar, Secretary, Bar Council of Gujarat to provide a revised response in accordance with the provisions of the 5 RTI Act, 2005 to the Appellant by 30.09.2021 under intimation to the Commission.' Decision in Divya Pranav Case:
"The Commission based on a perusal of the facts on record, at the outset, takes exception to the fact that P.M. Parmar, Secretary, Bar Council of Gujarat has reiterated the same grounds in the instant matter which were put forth by him before the coordinate bench in the Shailesh Babaria matter despite the fact that the reliance placed upon Section 9 of Bar Council of Gujarat Right to Information Rules, 2014 was held to be in contravention to the provisions of the RTI Act. P.M. Parmar, Secretary, Bar Council of Gujarat is advised to desist from putting forth the same submissions before the Commission in the future.
....The CPIO is reminded that denial of the information under the RTI Act should be in accordance with the exemption clauses of Section 8 and the relevant clause ought to be categorically invoked for withholding the information. While putting forth the plea of sub judice, the CPIO has not cited any exemption clause of the RTI Act to deny the information. Moreover, in this regard the attention of the CPIO is drawn towards a judgment of the Hon'ble High Court of Delhi in the matter of Municipal Corporation of Delhi v. R.K. Jain W.P. (C) 14120/ 2009 dated 23.09.2010 wherein it was held as under:
'5...........The matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act.' The CPIO has also failed to discharge the onus of justifying the denial of the information as required under Section 19(5) of the RTI Act. He has instead narrated at length the alleged background of the criminal complaint against the Appellant and other extraneous considerations which has no bearing on the provision of information under the RTI Act. Here, reference may be had of another judgment of the Hon'ble Delhi High Court in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP(C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
'6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8(1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending 6 may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case.' It is not appropriate for the CPIO to question the intent of the RTI Applicant or the context for seeking information and Section 6(2) of the RTI Act ensures against the same as under:
6. Request for obtaining information.--
(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
Similarly, in a judgment of the Apex Court in the matter of Ferani Hotels Private Ltd. Vs. The State Information Commissioner, Greater Mumbai & Ors. in Civil Appeal Nos. 9064-9065 of 2018 dated 27.09.2018 it was observed as under:
'15. The purport of the said Act is apparent from Section 6 of the said Act, which provides for the manner of making a request for obtaining information. In terms of sub-section (2) of Section 6 of the said Act, there is no mandate on an applicant to give any reason for requesting the information, i.e., anybody should be able to obtain the information as long as it is part of the public record of a public authority.....
xxx
16. The only exemption from disclosure of information, of whatever nature, with the public authority is as per Sections 8 & 9 of the said Act. Thus, unless the information sought for falls under these provisions, it would be mandatory for the public authorities to disclose the information to an applicant.' xxx"
DECISION 7 Having observed as above, the Commission rejects the denial of the information as cited by the CPIO in the instant matter under the Bar Council of Gujarat RTI Rules, 2014.
However, at the same time, there is no scope of relief to be ordered in the matter as the information sought for relates to third parties and disclosure of the same stands exempted under Section 8(1)(j) of the RTI Act. In this regard, the attention of the Appellant is drawn towards a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794. The following was thus 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..."
With the above observations, the appeal is disposed of.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 8 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 9