Access to information, under Section 3 of the Act, is the rule and
exemptions under Section 8, the exception. Section 8 being a restriction on
this fundamental right, must therefore is to be strictly construed. It should
not be interpreted in manner as to shadow the very right itself. Under
Section 8, exemption from releasing information is granted if it would
impede the process of investigation or the prosecution of the offenders. It is
apparent that the mere existence of an investigation process cannot be a
ground for refusal of the information; the authority withholding information
must show satisfactory reasons as to why the release of such information
would hamper the investigation process. Such reasons should be germane,
and the opinion of the process being hampered should be reasonable and
based on some material. Sans this consideration, Section 8(1)(h) and other
such provisions would become the haven for dodging demands for
information.
IN THE HIGH COURT OF DELHI
WP(C) No. 3114/2007
Decided On: 03.12.2007
Bhagat Singh Vs. Chief Information Commissioner and Ors.
Hon'ble Judges:
S. Ravindra Bhat, J.
1. The Petitioner in the present writ proceeding approaches this Court
seeking partial quashing of an order of the Central Information Commission
and also for a direction from this Court that the information sought by him
under the Right to Information Act, 2005 (hereinafter referred to as 'the Act')
should be supplied with immediate effect.
2. The facts relevant to decide the case are as follows. The petitioner was
married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a
criminal complaint alleging that she had spent/paid as dowry an amount of
Rs. Ten Lakhs. Alleging that these claims were false, the Petitioner, with a
view to defend the criminal prosecution launched against him, approached
the Income Tax Department with a tax evasion petition (TEP) dated
24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the
Petitioner's wife to present her case before them. Meanwhile, the Petitioner
made repeated requests to the Director of Income Tax (Investigation) to
know the status of the hearing and TEP proceedings. On failing to get a
response from the second and third Respondents, he moved an application
under the Act in November, 2005. He requested for the following
information:
(i) Fate of Petitioner's complaint (tax evasion petition) dated 24.09.2003
(ii) What is the other source of income of petitioner's wife Smt. Saroj Nimal
than from teaching as a primary teacher in a private school '
iii)What action the Department had taken against Smt. Saroj Nimal after
issuing a notice u/s 131 of the Income 'tax Act, 1961, pursuant to the said
Tax Evasion Petition.
3. The application was rejected by the second Respondent (the Public
Information Officer, designated under the Act by the Income Tax
department) on 10th January 2006 under Section 8(1) of the Act, by
reasoning that the information sought was personal in nature, relating to
dowry and did not further public interest. The relevant portion of this
provision is extracted below:
Exemption from Disclosure of Information: (1) Notwithstanding anything
contained in this Act, there shall be no obligation to give any citizen.
XXXXXXXXXXXXX
(j) information which relates to personal information, the disclosure of
which has no relationship to any public activity or interest or which would
cause un- warranted invasion of the privacy of the individual unless the
Central Public Information Officer or the State Public Information Officer or
the Appellate Authority, as the case may be, is satisfied that the larger public
interest justices the disclosure of such information.
4. The petitioner, thereafter, appealed to third Respondent- the Appellate
Authority which too rejected his request to access the information. While
doing so, not only did he reiterate section 8(1)(j) as a ground for rejection
but also observed that the information sought could also be denied under
Section 8(1)(h), which is reproduced below:
(h) information which would impede the process of investigation or
apprehension or prosecution of offenders
5. Against the order of the Appellate Authority, the petitioner filed a second
Appeal on 1st March, 2006, before the Respondent No. 1, the Central
Information Commission (hereafter 'the CIC') praying for setting aside the
Orders of Respondent No. 2 and 3. The petitioner sought the following
reliefs:
a) issue directions to Respondent No. 2 and 3 to furnish information,
b) to order an inquiry against Respondent's No. 2 and 3 for not implementing
the Right to Information Act properly
c) to impose penalties and disciplinary action against Respondent No. 2 and
3 under Section 20 of the RTI Act and
d) to award cost of proceedings to be recovered from Respondent No. 2and3.
6. The CIC, on 8th May 2006 allowed the second appeal and set aside the
rejection of information, and the exemption Clause 8(1) (j) cited by
Respondents No. 2and3. The CIC further held that-
as the investigation on TEP has been conducted by DIT (Inv), the relevant
report is the outcome of public action which needs to be disclosed. This,
therefore, cannot be exempted u/s 8(1) (j) as interpreted by the appellate
authority. Accordingly, DIT (Inv) is directed to disclose the report as per the
provision u/s 10(1) and (2), after the entire process of investigation and tax
recovery, if any, is complete in every respect.
7. The Petitioner contends that the first Respondent was correct in allowing
disclosure of information, by holding that Sections 8(1)(j) did not justify
withholding of the said information, but incorrectly applied Sec 8(1)
(h) of the Act. He submits that the disclosure of the said information could
not in any way impede the investigation process and that the Respondents
have not given any reasons as to how such disclosure would hamper
investigation. On the other hand, he contends, the information would only
help in absolving himself from the false prosecution and criminal
harassment. Moreover, he contends that under Section 10 of the Act non-
exempt information could have been provided to him after severing it from
the exempt information. He in fact applied to the second and third
respondent under the aforesaid provision but was informed that the matter
was still under investigation.
8. In August 2006 the petitioner filed a contempt petition before the CIC for
non compliance of order dated 8th May 2006. Pursuant to this, the CIC
asked the second and third respondent to take necessary action. The
Petitioner also wrote a letter to the Chief Information Commissioner,
seeking his indulgence for compliance of impugned order dated 8th May
2006. Pursuant to this, the first Respondent issued a notice to the other
Respondents asking for comments with respect to non-compliance of the
order and to show cause as to why a penalty should not be imposed as per
Section 20 of the Act. On 15th February, 2007, the Petitioner again appealed
to the first Respondent requesting him to impose penalties on the concerned
officer of Income Tax Department (Investigation) for non compliance of the
order of the Central Information Commission.
9. The petitioner in this writ petition requests this Court to partially quash
the order of the first Respondent dated 8th May 2006 in so far as it directs
disclosure after the entire process of investigation and tax recovery is
completed; to direct the other respondents to forthwith supply the
information sought; to direct the CIC to impose penalties under Section 20
and to compensate him for damages suffered due to non supply of
information. It was urged that the CIC, after appreciating that there was no
merit in the plea regarding applicability of Section 8(1)(h), and being
satisfied, should have not imposed the condition regarding completion of
proceedings, which could take years. Such power to restrict the access to
information did not exist under the Act.
10. The second and third respondents, pursuant to an order of this Court aver
that the Petitioner misconstrued letters sent by the Income Tax officer and
the Director General of Income Tax in relation to the fact that the
investigations are complete. They submit that although there was a
preliminary investigation undertaken by the Income Tax officer, Delhi and a
report was submitted pursuant to that, the Assessing officer has issued
notices under section 148 of the Income Tax Act, 1961 and the investigation
and procedures under the assessing Officer are yet to be completed. Learned
Counsel Sonia Mathur, appearing on behalf of the Respondents submitted
that, as per the directions of the CIC, the information sought would be
supplied after 31st March 2008, after completion of investigation and
recovery.
11. The Universal Declaration of Human Rights, adopted by the United
Nations in 1948, assures, by Article 19, everyone the right, 'to seek, receive
and impart information and ideas through any media, regardless of frontiers'.
In Secretary Ministry of Information and Broadcasting, Govt. of India and
Orsv. Cricket Association of Bengal and Ors. 1995 (2) SCC 161] the
Supreme Court remarked about this right in the following terms:
The right to freedom of speech and expression includes the right to receive
and impart information. For ensuring the free speech right of the citizens of
this country, it is necessary that the citizens have the benefit of plurality of
views and a range of opinions on all public issues. A successful democracy
posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies
is essential to enable the citizens to arrive at informed judgment on all issues
touching them.
This right, to information, was explicitly held to be a fundamental right
under Article 19(1)(a) of the Constitution of India for the first time by
Justice KK Mathew in State of UP v. Raj Narain, (1975) 4 SCC 428. This
view was followed by the Supreme Court on a number of decisions and after
public demand, the Right to Information Act, 2005 was enacted and brought
into force.
12. The Act is an effectuation of the right to freedom of speech and
expression. In an increasingly knowledge based society, information and
access to information holds the key to resources, benefits, and distribution of
power. Information, more than any other element, is of critical importance in
a participatory democracy. By one fell stroke, under the Act, the maze of
procedures and official barriers that had previously impeded information,
has been swept aside. The citizen and information seekers have, subject to a
few exceptions, an overriding right to be given information on matters in the
possession of the state and public agencies that are covered by the Act. As is
reflected in its preambular paragraphs, the enactment seeks to promote
transparency, arrest corruption and to hold the Government and its
instrumentalities accountable to the governed. This spirit of the Act must be
borne in mind while construing the provisions contained therein.
13. Access to information, under Section 3 of the Act, is the rule and
exemptions under Section 8, the exception. Section 8 being a restriction on
this fundamental right, must therefore is to be strictly construed. It should
not be interpreted in manner as to shadow the very right itself. Under
Section 8, exemption from releasing information is granted if it would
impede the process of investigation or the prosecution of the offenders. It is
apparent that the mere existence of an investigation process cannot be a
ground for refusal of the information; the authority withholding information
must show satisfactory reasons as to why the release of such information
would hamper the investigation process. Such reasons should be germane,
and the opinion of the process being hampered should be reasonable and
based on some material. Sans this consideration, Section 8(1)(h) and other
such provisions would become the haven for dodging demands for
information.
14. A rights based enactment is akin to a welfare measure, like the Act,
should receive a liberal interpretation. The contextual background and
history of the Act is such that the exemptions, outlined in Section 8,
relieving the authorities from the obligation to provide information,
constitute restrictions on the exercise of the rights provided by it. Therefore,
such exemption provisions have to be construed in their terms; there is some
authority supporting this view ( See Nathi Devi v. Radha Devi Gupta 2005
(2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and
V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different
approach would result in narrowing the rights and approving a judicially
mandated class of restriction on the rights under the Act, which is
unwarranted.
14. In the present case, the orders of the three respondents do not reflect any
reasons, why the investigation process would be hampered. The direction of
the CIC shows is that the information needs to be released only after the
investigation and recovery in complete. Facially, the order supports the
petitioner's contention that the claim for exemption made by respondent
Nos. 2 and 3 are untenable. Section 8(1)(j) relates only to investigation and
prosecution and not to recovery. Recovery in tax matters, in the usual
circumstances is a time consuming affair, and to withhold information till
that eventuality, after the entire proceedings, despite the ruling that
investigations are not hampered by information disclosure, is illogical. The
petitioner's grouse against the condition imposed by the CIC is all the more
valid since he claims it to be of immense relevance, to defend himself in
criminal proceedings. The second and third respondents have not purported
to be aggrieved by the order of CIC as far as it directs disclosure of
materials; nor have they sought for its review on the ground that the CIC
was misled and its reasoning flawed. Therefore, it is too late for them to
contend that the impugned order contains an erroneous appreciation of facts.
The materials available with them and forming the basis of notice under the
Income Tax act is what has to be disclosed to the petitioner, i.e the
information seeker.
15. As to the issue of whether the investigation has been complete or not, I
think that the authorities have not applied their mind about the nature of
information sought. As is submitted by the Petitioner, he merely seeks
access to the preliminary reports investigation pursuant to which notices
under Sections 131, 143(2), 148 of the Income Tax have been issued and not
as to the outcome of the investigation and reassessment carried on by the
Assessing Officer. As held in the preceding part of the judgment, without a
disclosure as to how the investigation process would be hampered by sharing
the materials collected till the notices were issued to the assesse, the
respondents could not have rejected the request for granting information.
The CIC, even after overruling the objection, should not have imposed the
condition that information could be disclosed only after recovery was made.
16. In view of the foregoing discussion the order of the CIC dated 8th May
2006 in so far as it withholds information until tax recovery orders are made,
is set aside. The second and third respondents are directed to release the
information sought, on the basis of the materials available and collected with
them, within two weeks.
17. This Court takes a serious note of the two year delay in releasing
information, the lack of adequate reasoning in the orders of the Public
Information Officer and the Appellate Authority and the lack of application
of mind in relation to the nature of information sought. The materials on
record clearly show the lackadaisical approach of the second and third
respondent in releasing the information sought. However, the Petitioner has
not been able to demonstrate that they malafidely denied the information
sought. Therefore, a direction to the Central Information Commission to
initiate action under Section 20 of the Act, cannot be issued.
18. The writ petition is allowed in the above terms. In the peculiar
circumstances of the cases, there shall be no order on costs.
(S. RAVINDRA BHAT)
JUDGE
3RD December, 2007.
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