TaxTMI 
TaxTMI 
2013 (3) TMI 442
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....against Shri G.S. Narang, IRS, Central Excise and Customs Officer of 1974 Batch and also inspection of records, files, etc., relating to the decision of the UPSC thereof. Shri G.S. Narang is presently posted as Director General of Inspection Customs and Central Excise. B. Please provide copies of all the note sheets and the final decision taken regarding imposition of penalty/disciplinary action and decision of the UPSC thereof." 3. The Central Public Information Officer (CPIO) of the petitioner, however, declined to provide the same on the ground that the information sought pertained to the disciplinary case of Shri G.S. Narang, which was of personal nature, disclosure of which has no relationship to any public activity or interest. It further stated that the disclosure of the same may infringe upon the privacy of the individual and that it may not be in the larger interest. The petitioner, therefore, claimed exemption from disclosing the information under Section 8(1)(j) of the Act. 4. The Respondent, consequently, filed an appeal under Section 19 of the Act, before the 1st Appellate Authority of the Petitioner. The Appellate Authority dismissed the Appeal on th....
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....nformation sought by the Respondent, it is submitted that the same is exempt from disclosure under Section 8(1)(e), 8(1)(g) and 8(1)(j) of the Act. The relevant extract of Section 8 of the Act reads as follows : "Section 8 - Exemption from disclosure of information. - (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- x   x   x   x   x   x   x   x (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; x   x   x   x   x   x   x   x (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; x   x   x   x   x   x   x   x ....
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....ilance, Customs & Central Excise dt. 16-9-2009. 9. Further, it is submitted that the disclosure of such information besides endangering the life and safety of the persons concerned, will also disclose the assistance that was given by the officers during the disciplinary proceeding for enforcement of law. Consequently, it is argued, that the disclosure of the information sought would be exempt under Section 8(1)(g) of the Act. 10. The Petitioner contends that order of the CIC is unsustainable in law inasmuch, as, it is contrary to the decisions of the concurrent Benches of the CIC. Moreover, it has rendered its decision while this Court is seized of a similar issue in W.P. (C) No. 13205/2009 titled UPSC v. C.L. Sharma. Respondent's submissions 11. The Respondent, on the other hand, has at the outset submitted that the CIC has merely directed the disclosure of the records in possession of the UPSC. It has not directed the Petitioner to procure records from the concerned Ministries or Departments and then to make them available to the Respondent for inspection. 12. The Respondent submits that the information directed to be disclosed to the Respondent, by the i....
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....decide the appeal pending before it. Discussion 15. The principal contention of the Petitioner, right from the stage when the RTI application was considered by the CPIO up till the stage of consideration of the Second Appeal before the CIC, was that the information sought for by the Respondent is exempted from disclosure under Section 8(1)(j) of the Act. Therefore, I proceed to deal with it first. 16. The exemption under Section 8(1)(j) is available in respect of 'personal information' of an individual. For the exemption to come into operation, the personal information sought : (i) Should not have relation to any public activity, or to public interest, OR (ii) Should be such as to cause unwarranted invasion of the privacy of the individual. However, the exemption is not available in a case where larger public interest justifies such disclosure. 17. The word 'personal' means appertaining to the person; belonging to an individual; limited to the person; having the nature or partaking of the qualities of human beings, or of movable property. [See Black's Law Dictionary, Sixth Edition]. 18. The word 'information....
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....hat information pertains), or to public interest, or which would cause unwarranted invasion of the privacy of the individual (unless larger public interest justifies disclosure). The use of the words "invasion of the privacy of the individual", instead of "an individual", shows that the legislative intent was to connect the expression "personal information" with the word "individual". 22. Merely because information that may be personal to a third party is held by a public authority, a querist does not become entitled to access it, unless the said personal information has a relationship to a public activity of the third person (to whom it relates), or to public interest. If it is private information (i.e. it is personal information which impinges on the privacy of the third party), its disclosure would not be made unless larger public interest dictates it. Therefore, for example, a querist cannot seek the personal or private particulars provided by a third party in his application made to the passport authorities in his application to obtain a passport, merely because such information is available with the passport authorities, which is a public authority under the Act. The qu....
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..... 26. For example, a querist may seek from the Income-tax authorities- the details of the Income-tax returns filed by private individual/juristic entity - if the querist can justify the disclosure of such personal information on the anvil of public interest. The authorities would, in such cases, be cautious to ensure that the ground of "public interest" is not routinely used as a garb by busy bodies to pry on the personal affairs of individual private citizens/entities, as it would be against public interest (and not in public interest) to permit such personal information of third parties to fall into the hands of anybody or everybody. 27. At this stage, I may digress a little and observe that whenever the querist applicant wishes to seek information, the disclosure of which can be made only upon existence of certain special circumstances, for example - the existence of public interest, the querist should in the application (moved under Section 6 of the Act) disclose/plead the special circumstance, so that the PIO concerned can apply his mind to it, and, in case he decides to issue notice to the concerned third party under Section 11 of the Act, the third party is able ....
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....the occasion to comment on the origin, basis, nature and scope of the right to privacy in India. Mr. Justice B.P. Jeevan Reddy, referred to the earlier decision of the Supreme Court in Kharak Singh and Ors. v. State of Uttar Pradesh and Ors., 1964 (1) SCR 332: AIR 1963 SC 129 and the decision in Gobind v. State of Madhya Pradesh, 1975 (2) SCC 148: AIR 1975 SC 1378. In the later case, Mathew, J., speaking for himself, Krishna Iyer and Goswami, JJ. traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme Court in two of its well-known decisions in Griswold v. Connecticut, [1965] 385 U.S. 479 : 14 L.Ed. 2d. 510 and Roe v. Wade, [1973] 410 U.S. 113. After referring to Kharak Singh (supra) and the said American decisions, the learned Judge stated the law in the following words : "...privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test... privacy primarily concerns....
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....bsp; There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others." (emphasis supplied) 33. Mr. Justice B.P. Jeevan Reddy, summarized the concept of right to privacy as under : "(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. 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 and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts him....
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....he family, marriage, motherhood, procreation, child rearing and of the like nature. 'Personal information', on the other hand, as aforesaid, would be information, in any form, that pertains to an individual. Therefore, 'private information' is a part of 'personal information'. All that is private is personal, but all that is personal may not be private. A person has a right to keep his private information, or in other words, his privacy guarded from disclosure. It is this right which has come to be recognised as fundamental to a person's life and liberty, and is accordingly protected from unwarranted/unauthorised invasion under the Act, and can be overridden only in 'larger' public interest. 35. The use of the expression "unwarranted" before "invasion of the privacy of the individual" and the expression "larger" before "public interest" needs attention. The use of "unwarranted", as aforesaid, shows that the PIO, Appellate Authority or the CIC, as the case may be, should come to a definite finding upon application of mind to all the relevant considerations and submissions of the querist and the third party - whose privacy is at stake, that the disclosure of the information, wh....
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.... not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (iii) (b) The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure. 38. Let us now examine the claim of exemption under Section 8(1)(j) in the present case, in view of the aforesaid principles. The information sought by the Respondent relates to the proposed disciplinary action and/or imposition of penalty against Shri G.S. Narang, IRS, Central Excise and Customs Officer of 1974 Batch and the decision/recommendation of the Petitioner communicated to the concerned Ministry. 39. The Petitioner in the present case, being a constitutional body and thereby a "public authority" under the Act, cannot claim the exemption of personal information qua itself and its officials under Section 8(1)(j). Even otherwise, its act of tendering advice to the concerned Ministry on matters relating to disciplinary proceedings against a charged officer is in discharge of a public duty entrusted to it by the....
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....on, "will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it is but a prologue to farce or tragedy or perhaps both. "The citizens" right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world."(emphasis supplied) 43. The Court, while explaining the importance and need of the Right, referred to the following observation of the Supreme Court in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 : "65. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. ....
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....old Government and its instrumentalities accountable to the governed citizens of this country. 46. The orders of the learned Single Judge and Division Bench of this Court in Ravinder Kumar (supra) have no relevance for a variety of reasons. The order of the learned Single Judge, upholding the claim of exemption under Section 8(1)(j) raised by the public authority - to the disclosure of note sheets containing opinions and advices rendered by officials in respect of departmental proceedings - on the ground that the same was against public interest, had been made specifically in the facts and circumstances of that case. Further, the order of the Division Bench was an order dismissing an application for restoration of the LPA. It was not an order on merits. There was no decision on any legal proposition on merits rendered by the Court in the said order. Mere prima facie observations of the Division Bench do not constitute a binding precedent. The decisions in Ravinder Kumar (supra), therefore, do not even otherwise apply in the facts of the present case. 47. Reliance placed, by the Petitioner, on Shri K.L. Bablani (supra) is misplaced. Firstly, this is the view of the CIC a....
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....actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a Chartered Accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body." (Emphasis supplied) 51. In the present case it cannot be said that the opinion/advice tendered by the officers of the petitioner in respect of Sh. G.S. Narang was on account of their position as that of a "beneficiary" and that the position of the petitioner was that of a "trustee". The offic....
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....re confidential or secret. 54. It is pertinent to note that there is no bar, per se, to the furnishing of opinions and advices in response to an application under the Act. The Supreme Court in Khanapuram Gandaiah v. Administrative Officer, (2010) 2 SCC 1, while referring to Section 2(f) of the Act, which defines 'information', held as under : "10.  x   x   x   x   x   x   x   x  x This definition shows that 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." (emphasis supplied) 55. Therefore, what emerges from the aforesaid is that opinions/advices tendered/given by the officers (public officials) can be sought for under the Act, provided the same have not been tender....