Full bench of CIC disallowed Right to Inspection of property to third party under the RTI

Thus, personal information including tax
returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of
the Act. If, however, the applicant can show sufficient public interest in
disclosure, the bar (preventing disclosure) is lifted and after duly notifying the
third party ( i.e. the individual concerned with the information or whose records
are sought) and after considering his views, the authority can disclose it. The
nature of restriction on the right of privacy, however, as pointed out by the
learned single Judge, is of a different order; in the case of private individuals,
the degree of protection afforded to be greater; in the case of public servants,
the degree of protection can be lower, depending on what is at stake. This is so
because a public servant is expected to act for the public good in the discharge
of his duties and is accountable for them.
115. The Act makes no distinction between an ordinary individual and a public
servant or public official. As pointed out by the learned single Judge "----- an
individual's or citizen's fundamental rights, which include right to privacy - are
not subsumed or extinguished if he accepts or holds public office." Section 8(1)
(j) ensures that all information furnished to public authorities - including
personal information [such as asset disclosures] are not given blanket access.
When a member of the public requests personal information about a public
servant, - such as asset declarations made by him - a distinction must be made
between personal data inherent to the person and those that are not, and,
therefore, affect his/her private life. To quote the words of the learned single
Judge "if public servants ---- are obliged to furnish asset declarations, the mere
fact that they have to furnish such declaration would not mean that it is part of
39
public activity, or "interest". ----- That the public servant has to make
disclosures is a part of the system's endeavour to appraise itself of potential
asset acquisitions which may have to be explained properly. However, such
acquisitions can be made legitimately; no law bars public servants from
acquiring properties or investing their income. The obligation to disclose these
investments and assets is to check the propensity to abuse a public office, for a
private gain." Such personal information regarding asset disclosures need not
be made public, unless public interest considerations dictates it, under Section
8(1)(j). This safeguard is made in public interest in favor of all public officials
and public servants.
14.
In light of the above Judgments, Commission is of the view that the
said inspection of the properties would certainly attract Section 8 (1) (j) of
the RTI Act as it would invade the privacy of the owner/occupant(s) of the
said property which is a Fundamental right enshrined under Article 21 of
the Constitution of India and such ‘inspection’ does not have any
relationship to any Public Activity or interest specially in the presence of
alternate mechanism to carry out such inspection by the MCD officials as
per the Provisions of the DMC Act. On the contrary, allowing such
inspection of the personal property to ‘third party’ under the RTI Act may
inculcate the ‘misuse’ of this privileged transparency right which will not be
in the larger public interest.Central Information Commission, New Delhi
Appeal No: CIC/DS/A/2012/002173,
CIC/DS/A/2012/002176 and
CIC/DS/A/2012/002184
Appellant : Shri A.D. Sharma
Public Authority : Municipal Corporation Delhi

Date of Decision : 17.12.2013

Facts
1. Pursuant to the Commission’s Orders dated 27 August 2013, and 30 October
2013, a full bench of the Commission had been constituted in the above
mentioned cases. Matter was heard on 21 November 2013. Appellant was
present at the hearing in person and made submissions. Respondents
representing the three Municipal Corporations namely East Delhi Municipal
Corporation, South Delhi Municipal Corporation and North Delhi Municipal
Corporation, Delhi were present at the hearing in person and also made their
respective submissions.
2. Appellant submitted that Respondent Public Authority has prescribed
procedures to check any unauthorized construction prevailing in Delhi and
they have the powers to take stringent action against the Unauthorized
Constructions. Appellant submitted multiple Office Orders of the MCD

supplementing the above submission. Further, it was submitted that Section 8
of the RTI Act
is not attracted in allowing the inspection to the third party
as relation between the owners of the property falls in the fiduciary
relationship with the Corporation rather it is under legal obligation through
the Architect to furnish specific information nor is there any danger to the life
and property of the constructer rather the inspection of the property along
with the MCD Official is an exercise to disclose conspiracy between the
Officers of Corporation and constructers. Also joint inspection of the
properties does not impede the process of investigation rather this action
facilitates process of investigation. It was then submitted that Appellant has
filed PIL against the Govt. of NCT Delhi in the Hon’ble Delhi High Court on
the subject matter of unauthorized construction in the larger public interest so
it is beneficial for the Appellant to seek information pertaining to the
identified properties. Further, it is obligatory function of the corporation to
make all efforts to number the properties and display the same on site
especially before construction commences as per the DMC Act. In the
absence of the above, it is impossible for the Appellant to identify the exact
number, location and address of the property and he is left with no choice but
to describe it as “abutting or in front of property situated opposite the
2
building” while making RTI Application for information to the MCD under
the RTI Act thereby necessitating joint inspection with the MCD Officials.
3. Respondents
submitted that inspection of the alleged ‘unauthorized
constructions’ is delegated statutory power authorized to the MCD
engineers, with the prescribed procedure under the DMC Act. Without the
said procedures, Engineers can neither enter nor inspect the premises of the
citizen who has a Right to Privacy. It was further submitted that merely
because a person doubts the integrity and functioning of the Officers of the
MCD, it cannot be a ground to allow him the powers of Supervision and
Powers of Entry. Further, any grievances against the ‘working’ of Public
Authority may be raised before the Honorable Delhi High Court in the
pending litigation matters involving Appellant and MCD, but CIC is not a
suitable forum to raise grievances by the Appellant. Allowing Inspection of
the property is not ‘information’ under Section 2 (f) of the RTI Act, 2005
which is ‘Recorded and Available’ and CPIO is not required to create
information or interpret information or to solve grievances or furnish replies
to the hypothetical questions of the Appellant. It was also submitted that the
CIC does not have powers under the RTI Act or the DMC Act to give any
directions to allow inspection of the third party property to the Appellant.
3
4. Commission after hearing both the parties, asked them to provide any
additional submission with respect to the issues involved in the present case in
writing by 2 December 2013. Matter was thus reserved subject to the
additional submissions by the parties to the present case.
Decision Notice
5.
The Commission has taken cognizance of the final submissions as
made by both Appellant and the Respondents in the present case. There are
two issues involved in the present case, the first being: Whether the Central
Information Commission (hereinafter “Commission”) has the ‘power to
direct’ the Public Authority i.e. Municipal Corporation of Delhi (hereinafter
“MCD”) to allow inspection of the Private/Third Party properties to the
Appellant-in person along with technical staff/Engineers of the MCD under
the RTI Act, 2005 or the DMC Act. The second issue before the Commission
is (in case the Commission has the power to direct the said ‘inspection of the
properties’) whether such inspection would invade the privacy of the
4
individual owner and/or occupant of the said property and would hence
attract Section 8 (1) (j) of the RTI Act, 2005.
6.
In his submissions regarding the first issue, Appellant has insisted that
the Commission under Section 25 (5) of the RTI Act may direct the MCD to
allow inspection. Section 25 (5) of the RTI Act states that:
“...(5) If it appears to the Central Information Commission or State Information
Commission, as the case may be, that the practice of a public authority in relation to the
exercise of its functions under this Act does not conform with the provisions or spirit of
this Act, it may give to the authority a recommendation specifying the steps which ought
in its opinion to be taken for promoting such conformity.”
7. It is observed that though Commission under the said Section; can
‘recommend’ to the Public Authority to perform certain action in
conformity with the spirit of the RTI Act, however, the said Section 25
(5) does not confer any power to the Commission to ‘direct’ any specific
actions. Such powers have been laid down in Sections 18 and 19 of the
RTI Act alone. Hence it would be inappropriate to interpret Section 25
(5) in such casual manner, and Commission certainly cannot coerce the
Public Authority to allow any inspection under Section 25 (5) of the RTI
Act. With reference to Section 19, the Honorable Supreme Court in the
5
case Chief Information Commr. and Another State of Manipur and
Another (CIVIL APPEAL NOs.10787-10788 OF 2011) dated 12 December
2011 has observed:
“...38. It may be that sometime in statute words are used by way of abundant
caution. The same is not the position here. Here a completely different procedure
has been enacted under Section 19. If the interpretation advanced by the learned
counsel for the respondent is accepted in that case Section 19 will become
unworkable and especially
Section 19(8) will be rendered a surplusage. Such an interpretation is totally
opposed to the fundamental canons of construction. Reference in
this connection may be made to the decision of this Court in Aswini Kumar
Ghose and another v. Arabinda Bose and another – AIR 1952 SC 369. of the
report Chief Justice Patanjali Sastri had laid down:
“It is not a sound principle of construction to brush aside words in a statute as
being inapposite surplusage, if they can have appropriate application in
circumstances conceivably within the contemplation of thestatute”.
39. Same was the opinion of Justice Jagannadhadas in Rao Shiv Bahadur Singh
and another v. State of U.P. – AIR 1953 SC 394 at page 397: “It is incumbent on
the court to avoid a construction, if reasonably permissible on the language,
which would render a part of the statute devoid of any meaning or application”.
40. Justice Das Gupta in J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State
of Uttar Pradesh and others – AIR 1961 SC 1170 at page 1174 virtually reiterated
the same principles in the following words:
6
“the courts always presume that the Legislature inserted every part thereof for a
purpose and the legislative intention is that every part of
the statute should have effect”.
41. It is well-known that the legislature does not waste words or say anything in
vain or for no purpose. Thus a construction which leads to
redundancy of a portion of the statute cannot be accepted in the absence of
compelling reasons. In the instant case there is no compelling reason to accept
the construction put forward by the
respondents.”.
The above ratio also appears in full measure while interpreting the
provisions of Section 25 (5) of the RTI Act and therefore the Appellant’s
contention cannot be accepted.
The powers of the Commission under Section 18 of the RTI Act specifically
allow the CIC to inquire into any complaint filed by the RTI Applicant. The
said section further allows the CIC to initiate an enquiry into the matter, if
required which includes summoning and enforcing the attendance of
persons, receiving evidence on affidavit, inspection of documents, etc.
However, CIC does not have any power under Section 18 of the Act to
allow Joint inspection of third party property to a RTI Applicant. Section 18
further does not grant power to the CIC to disclose any information to the
RTI Applicant. Such power is mentioned in Section 19 of the RTI Act. The
7
provisions of Section 18 of the RTI Act were interpreted by the Honorable
Supreme Court in the case Chief Information Commr. and Another State
of Manipur supra as:
“...29. If we look at Section 18 of the Act it appears that the powers under
Section 18 have been categorized under clauses (a) to (f) of Section 18(1).
Under clauses (a) to (f) of Section 18(1) of the Act the Central Information
Commission or the State Information Commission, as the case may be, may
receive and inquire into complaint of any person who has been refused access
to any information requested under this Act [Section 18(1)(b)] or has been
given incomplete, misleading
or false information under the Act [Section 18(1)(e)] or has not been given a
response to a request for information or access to information within time
limits specified under the Act [Section 18(1)(c). We are not concerned with
provision of Section 18(1)(a) or 18(1)(d) of the Act. Here we are concerned with
the residuary provision under Section 18(1)(f) of the Act. Under Section 18(3)
of the Act the Central Information Commission or State Information
Commission, as the case may be, while inquiring into any matter in this Section
has the same powers as are vested in a civil court while trying a suit in respect
of certain matters specified in Section 18(3)(a) to (f). Under Section 18(4)
which is a non-obstante clause, the Central Information Commission or the
State Information Commission, as the case may be, may examine any record to
which the Act applies and which is under the control of the public authority
and such records cannot be withheld from it on any ground.
30. It has been contended before us by the respondent that under Section 18 of
the Act the Central Information Commission or the State Information
Commission has no power to provide access to the information which has been
requested for by any person but which has been denied to him. The only order
which can be passed by the Central Information Commission or the State
Information Commission, as the case may be, under Section 18 is an order of
8
penalty provided under Section 20. However, before such order is passed the
Commissioner must be satisfied that the conduct of the Information Officer was
not bona fide. 31. We uphold the said contention and do not find any error in
the impugned judgment of the High court whereby it has been held that the
Commissioner while entertaining a complaint under Section 18 of the said Act
has no jurisdiction to pass an order providing for access to the information...”
In light of the above, Commission, under Section 18 of the RTI Act, has the
power to inquire into the matter and has same powers as are vested in a civil
court and thus may initiate penalty provisions against the CPIO in terms of
Section 20 of the Act. However, under Section 18, Commission may not
direct to provide information and does not possess inherent power of the
High Court to issue Writs to the Public Authority.
8. In the next submission, Appellant has highlighted the fact that since the
properties (which are to be inspected) has been allegedly constructed
without obtaining the No Objection Certificate (NOC) by the concerned
department of the Public Authority, the property does not belong to the
building/persons residing in it and thus the ‘ownership’ of the said
property does not have any legal standing. Commission is of the view
that whether a particular property has or has not received NOC is a
matter between the property owner/occupant (claiming its legitimacy)
and the Public Authority. The ‘inspection’ of the said property by the
Appellant along with the Officials of the MCD is a separate matter.
9
However, Commission is of the view that such information which
highlights the NOC status of individual property must be in the public
domain but ‘disclosure’ of the said information through inspection of the
property by a ‘third party’ is not a solution to the problem and has not
been inculcated in any legislative enactment (RTI Act or DMC Act).
Arguendo, even if the said properties have not obtained the NOC or are
unauthorized; there is a prescribed procedure to take action against/
demolish, as per the relevant provision of the DMC Act which does not
give any right of inspection to any ‘third party’. For Example, if any
student is found using mischievous methods/cheating in a particular
examination, there is a prescribed procedure to handle such answer
sheets. No third party can claim to hold a right to inspect the said answer
sheets of the student just because there is an allegation of cheating or on
the grounds that the answer sheet belongs to the body conducting the
examination. However, third party may claim the right to know the
outcome of any investigation in the matter, which is not the same as
claiming right to ‘inspection’ of third party property under the RTI Act.
Such interpretation taken by the Appellant of the Observations of the
Apex court in the CBSE case is incorrect. A clear reading of the
provisions of the RTI Act concludes that the CIC does not have any
10
power to direct the Public Authority to allow inspection of the third party
Properties to the Appellant. Further, nowhere in the DMC Act is it
mentioned that any ‘third party’ can be allowed inspection. Commission
is in agreement with the Submissions of the Respondents that there exist
a sound mechanism (by providing Delegated Statutory powers to inspect
under Section 431 and Section 491 of the DMC Act, 1957) to tackle
encroachment and unauthorized construction and which certainly does
not confer any power to the CIC to direct any inspection.
9. Further, Respondents have also submitted that the Scheme of DMC Act
provides that any person aggrieved against the action relating to the
demolitions as explained in Section 347 of the DMC Act can approach
the Tribunal specially constituted in this regard and presided by the
Judicial Officer of the rank of Additional District Judge. The said tribunal
functions from Tis Hazari Courts and hears the appeals against the
Orders of the MCD. Therefore, if another statutory provision, created
under any other law, vests the right to seek information and provides the
mechanism for invoking the said right (which is also statutory, as in this
case) that mechanism should be preserved and operated, and not
destroyed merely because another general law created to empower the
citizens to access information has subsequently been framed. Honorable
11
Delhi High Court in the case Registrar of Companies and Ors.v. D K
Garg (WP No. 11271/2009- dated 1 June 2012) observed the following:
30. In the context of the object of the RTI Act, and the various provisions
thereof, in my view, the said expression 'held by or under the control of any
public authority' used in section 2(j) of the RTI Act deserves a wider and a
more meaningful interpretation. The expression 'Hold' is defined in the Black's
Law dictionary, 6th Edition, inter alia, in the same way as to keep' i.e. to retain,
to maintain possession of, or authority over.
31. The expression 'held' is also defined in the Shorter Oxford Dictionary, inter
alia, as 'prevent from getting away; keep fast, grasp, have a grip on'. It is also
defined, inter alia, as "not let go; keep, retain".
32. The expression 'control' is defined in the Advanced Law Lexicon by P.N.
Ramanatha Aiyar 3rd Edition Reprint 2009 and it reads as follows:
(As a verb) To restrain; to check; to regulate; to govern; to keep under check;
to hold in restraint; to dominate; to rule and direct; to counteract; to exercise a
directing, restraining or governing influence over; to govern with reference
thereto; to subject to authority; to have under command, and authority over, to
have authority over the particular matter. (Ame. Cyc)"
33. From the above, it appears that the expression 'held by' or 'under the
control of any public authority', in relation to 'information', means that
information which is held by the public authority under its control to the
exclusion of others. It cannot mean that information which the public authority
has already 'let go', i.e. shared generally with the citizens, and also that
information, in respect of which there is a statutory mechanism evolved,
(independent of the RTI Act) which obliges the public authority to share the
same with the citizenry by following the prescribed procedure, and upon
fulfillment of the prescribed conditions. This is so, because in respect of such
12
information, which the public authority is statutorily obliged to disseminate, it
cannot be said that the public authority 'holds' or 'controls' the same. There is
no exclusivity in such holding or control. In fact, the control vests in the seeker
of the information who has only to operate the statutorily prescribed
mechanism to access the information. It is not this kind of information, which
appears to fall within the meaning of the expression 'right to information', as
the information in relation to which the 'right to information' is specifically
conferred by the RTI Act is that information which "is held by or under the
control of any public authority".
34. The mere prescription of a higher charge in the other statutory mechanism
(in this case Section 610 of the Companies Act), than that prescribed under the
RTI Act does not make any difference whatsoever. The right available to any
person to seek inspection/copies of documents under Section 610 of the
Companies Act is governed by the Companies (Central Government's) General
Rules & Forms, 1956, which are statutory rules and prescribe the fees for
inspection of documents, etc. in Rule 21A. The said rules being statutory in
nature and specific in their application, do not get overridden by the rules
framed under the RTI Act with regard to prescription of fee for supply of
information, which is general in nature, and apply to all kinds of applications
made under the RTI Act to seek information. It would also be complete waste of
public funds to require the creation and maintenance of two parallel
machineries by the ROC - one under Section 610 of the Companies Act, and the
other under the RTI Act to provide the same information to an applicant. It
would lead to unnecessary and avoidable duplication of work and consequent
expenditure.
35. The right to information is required to be balanced with the need to
optimize use of limited fiscal resources. In this context I may refer to the
relevant extract of the Preamble to the RTI Act which, inter alia, provides:-
13
AND WHEREAS revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
Governments, optimum use of limited fiscal resources and the preservation of
confidentially of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while
preserving the paramountancy of the democratic ideal;
(emphasis supplied).
36. Section 4(1)(a) also lays emphasis on availability of recourses, when it talks
about computerization of the records. Therefore, in the exploitation and
implementation of the RTI Act, a delicate and reasonable balance is required to
be maintained. Nobody can go overboard or loose ones equilibrium and sway in
one direction or assume an extreme position either in favour of upholding the
right to information granted by the RTI Act, or to deny the said right.
37. The Supreme Court in The Institute of Chartered Accountants of India Vs.
Shaunak H. Satya & Others, Civil Appeal No. 7571/2011 decided on
02.09.2011, observed that:
it is necessary to make a distinction in regard to information intended to bring
transparency, to improve accountability and to reduce corruption, falling under
section 4(1)(b) and (c) and other information which may not have a bearing on
accountability or reducing corruption. The competent authorities under the
RTI Act will have to maintain a proper balance so that while achieving
transparency, the demand for information does not reach unmanageable
proportions affecting other public interests, which include efficient operation of
public authorities and government, preservation of confidentiality of sensitive
information and optimum use of limited fiscal resources.
(emphasis supplied).
14
38. Therefore, if another statutory provision, created under any other law, vests
the right to seek information and provides the mechanism for invoking the said
right (which is also statutory, as in this case) that mechanism should be
preserved and operated, and not destroyed merely because another general law
created to empower the citizens to access information has subsequently been
framed.
10. In light of the above, Commission is of the view that the words of
legislature should not be interpreted beyond its true intent and objective.
Hence, Appellant cannot construe that Commission has ‘plenary power’
to direct the Public Authority to allow inspection to any third party (i.e.
Appellant, in the present case) in absence of any specific provision
mentioned in the RTI Act.
11.However, even assuming
that the CIC had the ‘power’ to allow
inspection, the next issue is that whether the said inspection of the
properties would amount to information under Section 2 (f) and whether
there will be any right to such information under Section 2 (j) of the RTI
Act. Also, if the inspection of the properties would attract Section 8 (1)
(j) of the RTI Act.
Section 2 (f) of the RTI Act states that:
15
"information" means any material in any form, including records, documents, memos, e-
mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force;
Section 2 (j) of the RTI Act states that:
“right to information" means the right to information accessible under this
Act which is held by or under the control of any public authority and includes the
right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes
or in any other electronic mode or through printouts where such information is
stored in a computer or in any other device;
The first part of this issue is that whether ‘any material in any form’ as
mentioned in Section 2 (j) of the Act would include the opportunity to
inspect. The intent of the legislature while drafting Section 2 (f) was clear
that any information held in any form i.e. whether tangible or virtual form
would amount to information (wider sense). However, inspection of the
16
‘information’ would certainly not include private ‘house property’ as it
would lead to interpretation of section 2 (f) and 2 (j) in too liberal a fashion.
Under Section 2 (f)-‘information’- material in any form means that any
document/record maintained in any tangible/intangible form. Now, if the
MCD already maintains any record in tangible/intangible form of the said
properties, the same would certainly amount to ‘information’ and the
inspection of the same may be provided under Section 2 (j) of the RTI Act
[Subject to provisions of Section 8 (1) of the RTI Act]. The above
understanding of law is in consonance with the Copyright Act, 1957 as
mentioned by the Appellant in his submission, since any Copyright exists
only in the ‘work’ which is expressed and not merely is an ‘idea in the
mind’. Similarly, right to inspect particular information resides only with the
material in any form. Mere allegations of encroachment and not obtaining
NOCs would not provide any right to inspect personal spaces to the
Appellant. Also merely because Appellant doubts the integrity and
functioning of the Officers of the Public Authority, this cannot be a ground
to allow him inspection under the Act. Appellant is free to approach the
suitable forums for any such grievance against the Public Authority but
certainly not under the RTI Act. Hence, inspection of the private property
by any ‘third party’ would not amount to inspection of particular
17
‘information’ under Section 2(f). Commission further observes that the
properties to be inspected are in ‘personal’ capacity and not a ‘public
activity’. It is only the report/document/sample generated after inspection
and which is within the domain of the public authority that can be accessed
under the provisions of the RTI Act. ‘Any material in any form’ may not be
equated with the term ‘material in ANY FORM’ as such comparison is
odious in the present case and evidently overreaches the legislative intent.
12. The Second part of the issue is, even if the ‘inspection’ of the property
would amount to ‘information’ in terms of Sections 2 (f) of the Act and
there exists a ‘right to information’ under Section 2 (j) of the RTI Act,
2005; would disclosure of such information attracts Section 8 (1) (j) of
the RTI Act, 2005.
Section 8 (1) (j) of the RTI Act states that:
(j)
information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted 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 justifies the disclosure of such information:
The Appellant has not submitted specifically, how such inspection by the
third party would NOT amount the invasion of the Privacy of the
18
occupant/owner of the said property. The only point the Appellant has raised
is that such inspection would be in the larger public interest and in the
context of the preamble of the RTI Act.
Right to Privacy: On the basis of the past experience and cultural
understanding, the meaning of Right to privacy varies among countries.
With technological advancements, the personal information does not limit
itself to any physical boundaries, thereby increasing the importance of the
Privacy rights among individuals. Governments action to collect information
related to government services such as Taxation, medical, employment,
fingerprints, DNA mapping, and personal communications has evolved and
expanded. This has led to the concerns about the possibility of abuse of such
personal information for unlawful purposes. In Griswold v. Connecticut, 381
U.S. 479 (1965), the Supreme Court of the United States ruled that the
Constitution protected a right to privacy. The case involved a Connecticut
law that prohibited the use of contraceptives. By a majority ruling, the
Supreme Court (US) invalidated the law on the grounds that it violated the
"right to marital privacy". Recently, in the case United States v. Jones, U.S
10-1259 (2012), the Supreme Court of the United States ruled unanimously
that government agents violated the Constitution when they tracked a
suspect for 28 days using a GPS device installed without a warrant. In the
19
United Kingdom, the Human Rights Act, 1998, “incorporates” as British law
the “European Convention for the Protection of Human Rights and
Fundamental Freedoms” signed in 1950. Article 8(1) of the Convention says
that “everyone has the right to respect for his private and family life, his
home and his correspondence”. Clause (2) carves out permissible
restrictions, which are “necessary in a democratic society” in the interests of
national security, for the prevention of crime, etc. The issue of ‘privacy’ as
mentioned in Section 8 (1) (j) of the RTI Act, 2005 has been subject of
interpretation by several Courts in India. Hon’ble Supreme Court of India in
a recent case of Thalappalam Ser. Coop. Bank Ltd. and Ors. v. State of
Kerala and Ors. (Civil Appeal No. 9017 of 2013) dated 7 October 2013 has
observed the issue of Right to Information vis a vis Right to Privacy. The
Court stated that:
“...44. People's right to have access to an official information finds place in
Resolution 59(1) of the UN General Assembly held in 1946. It states that
freedom of information is a fundamental human right and the touchstone to all
the freedoms to which the United Nations is consecrated. India is a party to the
International Covenant on Civil and Political Rights and hence India is under
an obligation to effectively guarantee the right to information. Article 19 of the
Universal Declaration of Human Rights also recognizes right to information.
Right to information also emanates from the fundamental right guaranteed to
citizens under Article 19(1)(a) of the Constitution of India. Constitution of
India does not explicitly grant a right to information. In Bennet Coleman and
20
Co. and Ors. v. Union of India and Ors. MANU/SC/0038/1972 : (1972) 2 SCC
788, this Court observed that it is indisputable that by "Freedom of Press"
meant the right of all citizens to speak, publish and express their views and
freedom of speech and expression includes within its compass the right of all
citizens to read and be informed. In Union of India v. Association of
Democratic Reforms and Anr. MANU/SC/0394/2002 : (2002) 5 SCC 294, this
Court held that the right to know about the antecedents including criminal past
of the candidates contesting the election for Parliament and State Assembly is a
very important and basic facets for survival of democracy and for this purpose,
information about the candidates to be selected must be disclosed. In State of
U.P. v. Raj Narain and Ors. MANU/SC/0032/1975 : (1975) 4 SCC 428, this
Court recognized that the right to know is the right that flows from the right of
freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution. In People's Union for Civil Liberties (PUCL) and Ors. v. Union of
India and Anr. MANU/SC/0234/2003 : (2003) 4 SCC 399, this Court observed
that the right to information is a facet of freedom of speech and expression
contained in Article 19(1)(a) of the Constitution of India. Right to information
thus indisputably is a fundamental right, so held in several judgments of this
Court, which calls for no further elucidation.
45. The Right to Information Act, 2005 is an Act which provides for setting up
the practical regime of right to information for citizens to secure access to
information under the control of public authorities in order to promote
transparency and accountability in the working of every public authority.
Preamble of the Act also states that the democracy requires an informed
citizenry and transparency of information which are vital to its functioning and
also to contain corruption and to hold Governments and their instrumentalities
accountable to the governed. Citizens have, however, the right to secure access
to information of only those matters which are "under the control of public
authorities", the purpose is to hold "Government and its instrumentalities"
accountable to the governed. Consequently, though right to get information is a
21
fundamental right guaranteed under Article 19(1)(a) of the Constitution, limits
are being prescribed under the Act itself, which are reasonable restrictions
within the meaning of Article 19(2) of the Constitution of India.
46. Right to privacy is also not expressly guaranteed under the Constitution of
India. However, the Privacy Bill, 2011 to provide for the right to privacy to
citizens of India and to regulate the collection, maintenance and dissemination
of their personal information and for penalization for violation of such rights
and matters connected therewith, is pending. In several judgments including
Kharak Singh v. State of U.P. and Ors. MANU/SC/0085/1962 : AIR 1963 SC
1295, R. Rajagopal alias R.R. Gopal and Anr. v. State of Tamil Nadu and Ors.
MANU/SC/0056/1995 : (1994) 6 SCC 632, People's Union for Civil Liberties
(PUCL) v. Union of India and Anr. MANU/SC/0149/1997 : (1997) 1 SCC 301
and State of Maharashtra v.
Bharat Shanti Lal Shah and Ors.
MANU/SC/3789/2008 : (2008) 13 SCC 5, this Court has recognized the right to
privacy as a fundamental right emanating from Article 21 of the Constitution of
India. Right to privacy is also recognized as a basic human right under Article
12 of the Universal Declaration of Human Rights Act, 1948, which states as
follows:
No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, not to attack upon his honour and reputation.
Everyone has the right to the protection of law against such interference or
attacks.
Article 17 of the International Covenant on Civil and Political Rights Act, 1966,
to which India is a party also protects that right and states as follows:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home and correspondence nor to unlawful attacks on his honour and
reputation...
This Court in R. Rajagopal (supra) held as follows:
22
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.
Restrictions and Limitations:
47. Right to information and Right to privacy are, therefore, not absolute rights,
both the rights, one of which falls under Article 19(1)(a) and the other under
Article 21 of the Constitution of India, can obviously be regulated, restricted
and curtailed in the larger public interest. Absolute or uncontrolled individual
rights do not and cannot exist in any modern State. Citizens' right to get
information is statutorily recognized by the RTI Act, but at the same time
limitations are also provided in the Act itself, which is discernible from the
Preamble and other provisions of the Act. First of all, the scope and ambit of
the expression "public authority" has been restricted by a statutory definition
Under Section 2(h) limiting it to the categories mentioned therein which
exhaust itself, unless the context otherwise requires. Citizens, as already
indicated by us, have a right to get information, but can have access only to the
information "held" and under the "control of public authorities", with
limitations. If the information is not statutorily accessible by a public authority,
as defined in Section 2(h) of the Act, evidently, those information will not be
under the "control of the public authority". Resultantly, it will not be possible
for the citizens to secure access to those information which are not under the
control of the public authority. Citizens, in that event, can always claim a right
to privacy, the right of a citizen to access information should be respected, so
also a citizen's right to privacy.
48. Public authority also is not legally obliged to give or provide information
even if it is held, or under its control, if that information falls under Clause (j)
of Sub-section (1) of Section 8. Section 8(1)(j) is of considerable importance so
far as this case is concerned, hence given below, for ready reference:
23
8. Exemption from disclosure of information-(1) Notwithstanding anything
contained in this Act, there shall be no obligation to give any citizen-
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure of which
has no relationship to any public activity or interest, or which would cause
unwarranted 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 justifies
the disclosure of such information: Provided that the information which cannot
be denied to the Parliament or a State Legislature shall not be denied to any
person.
49. Section 8 begins with a non obstante clause, which gives that Section an
overriding effect, in case of conflict, over the other provisions of the Act. Even
if, there is any indication to the contrary, still there is no obligation on the
public authority to give information to any citizen of what has been mentioned
in Clauses (a) to (j). Public authority, as already indicated, cannot access all the
information from a private individual, but only those information which he is
legally obliged to pass on to a public authority by law, and also only those
information to which the public authority can have access in accordance with
law. Even those information, if personal in nature, can be made available only
subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left
alone, as propounded in Olmstead v. The United States reported in 1927 (277)
US 438 is the most comprehensive of the rights and most valued by civilized
man.
50. Recognizing the fact that the right to privacy is a sacrosanct facet of Article
21 of the Constitution, the legislation has put a lot of safeguards to protect the
rights Under Section 8(j), as already indicated. If the information sought for is
personal and has no relationship with any public activity or interest or it will
24
not sub-serve larger public interest, the public authority or the officer
concerned is not legally obliged to provide those information. Reference may be
made to a recent judgment of this Court in Girish Ramchandra Deshpande v.
Central Information Commissioner and Ors. MANU/SC/0816/2012 : (2013) 1
SCC 212, wherein this Court held that since there is no bona fide public
interest in seeking information, the disclosure of said information would cause
unwarranted invasion of privacy of the individual Under Section 8(1)(j) of the
Act. Further, if the authority finds that information sought for can be made
available in the larger public interest, then the officer should record his reasons
in writing before providing the information, because the person from whom
information is sought for, has also a right to privacy guaranteed under Article
21 of the Constitution.
...
53. Consequently, an information which has been sought for relates to personal
information, the disclosure of which has no relationship to any public activity
or interest or which would cause unwarranted invasion of the privacy of the
individual, the Registrar of Cooperative Societies, even if he has got that
information, is not bound to furnish the same to an applicant, unless he is
satisfied that the larger public interest justifies the disclosure of such
information, that too, for reasons to be recorded in writing...”
Further Hon’ble Delhi High Court in the case UPSC v. R K Jain (WP no
1243/2011) dated 13 July 2012 had observed that:
“...14. 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
25
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.
15. 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.
16. 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].
17. The word "information" is defined in Section 2(f) of the Act as meaning:
any material in any form, including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a public
authority under any other law for the time being in force.
18. Therefore, "personal information" under the Act, would be information, as
set forth above, that pertains to a person. As such it takes into its fold possibly
every kind of information relating to the person. Now, such personal
information of the person may, or may not, have relation to any public activity,
or to public interest. At the same time, such personal information may, or may
not, be private to the person.
26
19. The term "personal information" under section 8(1)(j) does not mean
information relating to the information seeker, or the public authority, but
about a third party. The section exempts from disclosure personal information,
including that which would cause "unwarranted invasion of the privacy of the
individual". If one were to seek information about himself, the question of
invasion of his own privacy would not arise. It would only arise where the
information sought relates to a third party. Consequently, the exemption under
Section 8(1)(j) is as regards third party personal information only.
20. Further, the personal information cannot be that of a "public authority".
No public authority can claim that any information held by it is personal to it.
There is nothing "personal" about any information held by a public authority
in relation to itself. The expression "personal information" used in Section 8(1)
(j) means information personal to any "person", that the public authority may
hold. For instance, a public authority may in connection with its functioning
require any other person to provide information which may be personal to that
person. It is that information, pertaining to that other person, which the public
authority may refuse to disclose, if the information sought satisfies the
conditions set out in clause (j) of Section 8(1) of the Act, i.e., if such
information has no relationship to any public activity (of the person who has
provided the information, or who is the source of the information, or to whom
that 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".
21. 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 informtaion (i.e.
it is personal information which impinges on the privacy of the third party), its
27
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 querist must make out a case (in his application
under Section 6 of the Act) justifying the disclosure of the information sought
on the touchstone of clause (j) of Section 8(1) of the Act.
22. Proceeding further, I now examine the expressions "Public activity",
"Public interest" and "Privacy of the individual" used in Section 8(1)(j) of the
Act.
23. "Public activity" qua a person are those activities which are performed by
the person in discharge of a public duty, i.e. in the public domain. There is an
inherent public interest involved in the discharge of such activities, as all public
duties are expected to be discharged in public interest. Consequently,
information of a person which is related to, or has a bearing on his public
activities, is not exempt from disclosure under the scheme and provisions of the
Act, whose primary object is to ensure an informed citizenry and transparency
of information and also to contain corruption. For example, take the case of a
surgeon employed in a Government Hospital who performs surgeries on his
patients who are coming to the government hospital. His personal information,
relating to discharge of his public duty, i.e. his public activity, is not exempt
from disclosure under the Act. Such information could include information
relating to his physical and mental health, his qualifications etc., as the said
information has a bearing on the discharge of his public duty, but would not
include his other personal information such as, his taste in music, sport, art, his
family, his family background etc., which has no bearing/relation to his act of
performing his duties as a surgeon.
28
24. "Public interest" is also a ground for taking away the exemption from
disclosure of personal information. Therefore, a querist may seek personal
information of a person from a public authority in public interest. The second
half of the first part of clause (j) of Section 8(1) shows that when personal
information in respect of a person is sought, the authority concerned shall
weigh the competing claims i.e., the claim for the protection of personal
information of the concerned person on the one hand, and the claim of public
interest on the other, and if "public interest" justifies disclosure, i.e., the public
interest outweighs the need for protection of personal information, the
concerned authority shall disclose the information.
25. 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.
26. 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 to effectively deal
with the same. Only then the PIO/appellate authority/CIC would be able to
come to an informed decision whether, or not, the special circumstances exist
in a given case.
29
27. I may also observe that public interest does not mean that which is
interesting as gratifying curiosity or love of information or amusement; but that
in which a class of the community have a pecuniary interest, or some interest
by which their rights or liabilities are affected. The expression "public interest"
is not capable of a precise definition and has not a rigid meaning and is elastic
and takes its colors from the statute in which it occurs, the concept varying with
the time and the state of the society and its needs. [See Advanced Law Lexicon,
Third Edition].
28. The second part of clause (j) of Section 8(1) appears to deal with the scope
of defence founded on the right of privacy of an individual. The tussle between
the right of privacy of an individual and the right of others to seek information
which may impinge on the said right of privacy, is what the said clause seeks to
address.
29. The right to privacy means the right to be left alone and the right of a
person to be free from unwarranted publicity. Black's Law Dictionary says that
the terms "right to privacy" is a generic term encompassing various rights
recognized to be inherent in concept of ordered liberty, and such rights prevent
government interference in intimate personal relationship's or activities,
freedoms of individual to make fundamental choices involving himself, his
family, and his relationship with others. A man has the right to pass through
this world, if he wills, without having his picture published, his business
enterprises discussed, his successful experiments written for the benefit of
others, or his eccentricities commented upon by any means or mode. It is based
on the theory that everyone has the right of inviolability of the person.
30. The "right to privacy", even though by itself has not been defined by our
Constitution and though, as a concept, it may be too broad to define judicially,
the Supreme Court has recognised by its liberal interpretation that "right to
privacy" is an integral part of the right to personal liberty under Article 21 of
the Constitution of India.
30
31. In Rajagopal vs. State of Tamil Nadu, MANU/SC/0056/1995 : AIR 1995 SC
264, the Supreme Court had 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., MANU/SC/0085/1962 : 1964 (1)
SCR 332 : AIR 1963 SC 129 and the decision in Gobind v. State of Madhya
Pradesh, MANU/SC/0119/1975 : 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 the individual. It therefore relates to and overlaps
with the concept of liberty. The most serious advocate of privacy must confess
that there are serious problems of defining the essence and scope of the right.
Privacy interest in autonomy must also be placed in the context of other rights
and values.
Any right to privacy must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and child rearing. This
catalogue approach to the question is obviously not as instructive as it does not
give analytical picture of the distinctive characterstics of the right of privacy.
Perhaps, the only suggestion that can be offered as unifying principle
31
underlying the concept has been the assertion that a claimed right must be a
fundamental right implicit in the concept of ordered liberty....
There are two possible theories for protecting privacy of home. The first is that
activities in the home harm others only to the extent that they cause offence
resulting from the mere thought that individuals might be engaging in such
activities and that such 'harm' is not constitutionally protectible by the State.
The second is that individuals need a place of sanctuary where they can be free
from societal control. The importance of such a sanctuary is that individuals
can drop the mask, desist for a while from projecting on the world the image
they want to be accepted as themselves, an image that may reflect the values of
their peers rather than the realities of their natures. [See 26 Stanford Law Rev.
1161, 1187].
The right to privacy in any event will necessarily have to go through a process
of case-by-case development. Therefore, even assuming that the right to
personal liberty, the right to move freely throughout the territory of India and
the freedom of speech create an independent right of privacy as an emanation
from them which one can characterize as a fundamental right, we do not think
that the right is absolute.
The European Convention on Human Rights, which came into force on
September 3, 1953, represents a valiant attempt to tackle the new problem.
Article 8 of the Convention is worth citing [See "Privacy and Human Rights",
Ed. AH robertson, p. 176]:
1. Every one has the right to respect for his private and family life, his home
and his correspondence.
2. 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
32
the protection of health or morals or for the protection of the rights and
freedoms of others.
(Emphasis supplied)
32. 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 himself into controversy or voluntarily invites or raises a
controversy.
(2) The rule aforesaid is subject to the exception, that any publication
concerning the aforesaid aspects becomes unobjectionable if such publication
is based upon public records including court records. This is for the reason that
once a matter becomes a matter of public record, the right to privacy no longer
subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interest of decency
[Article 19 (2)] an exception must be carved out to this rule, viz., a female who
is the victim of a sexual assault, kidnap, abduction or a like offence should not
further be subjected to the indignity of her name and the incident being
publicised in press/media.
(3) There is yet another exception to the Rule in (1) above - indeed, this is not
an exception but an independent rule. In the case of public officials, it is
obvious, right to privacy, or for that matter, the remedy of action for damages is
33
simply not available with respect to their acts and conduct relevant to the
discharge of their official duties. This is so even where the publication is based
upon facts and statements which are not true, unless the official establishes
that the publication was made (by the defendant) with reckless disregard for
truth. In such a case, it would be enough for the defendant (member of the
press or media) to prove that he acted after a reasonable verification of the
facts; it is not necessary for him to prove that what he has written is true. Of
course, where the publication is proved to be false and actuated by malice or
personal animosity, the defendant would have no defence and would be liable
for damages. It is equally obvious that in matters not relevant to the discharge
of his duties, the public official enjoys the same protection as any other citizen,
as explained in (1) and (2) above. It needs no reiteration that judiciary, which is
protected by the power to punish for contempt of court and the Parliament and
Legislatures protected as their privileges are by Articles 105 and 104
respectively of the Constitution of India, represent exceptions to this rule.
(Emphasis supplied)
33. It follows that the "privacy" of a person, or in other words his "private
information", encompasses the personal intimacies of the home, the 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.
34. The use of the expression "unwarranted" before "invasion of the privacy of
the individual" and the expression "larger" before "public interest" needs
34
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, which would cause invasion of the privacy of
the individual is warranted, in the facts of the case. He should, therefore, come
to the conclusion that even after application of the principle of severability
(contained in Section 10 of the Act), it is necessary to disclose the personal and
private information in larger public interest. The expression "larger public
interest" connotes that the public interest that is sought to be addressed by the
disclosure of the private information, serves a large section of the public, and
not just a small section thereof. Therefore, if the information has a bearing on
the state of the economy; the moral values in the society; the environment;
national safety, or the like, the same would qualify as "larger public interest".
35. Take for instance, a case where a person is employed to work in an
orphanage or a children's home having small children as inmates. The
employer may or may not be a public authority under the Act. That person, i.e.
the employee, has a background of child abuse, for which he has undergone
psychiatric treatment in a government hospital. A querist could seek
information regarding the medical and psychiatric treatment undergone by the
person concerned from the government hospital where the person has
undergone treatment, in larger public interest, even though the said
information is not only personal, but private, vis--vis. the employee. The larger
public interest in such a case would lay in protecting the children living in the
orphanage/ children's home from possible child abuse.
36. In light of the above discussion, the following principles emerge for the
exemption under Section 8(1)(j) to apply:
35
(i) The information sought must relate to "Personal information" as
understood above of a third party. Therefore, if the information sought does not
qualify as personal information, the exemption would not apply;
(ii) Such personal information should relate to a third person, i.e., a person
other than the information seeker or the public authority; AND
(iii) (a) The information sought should not have a relation to any public activity
qua such third person, or to public interest. If the information sought relates to
public activity of the third party, i.e. to his activities falling within the public
domain, the exemption would 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....”
13. Further, Honorable Division Bench of the Delhi High Court had stated in
the
case
Secretary
General,
Supreme
Court
of
India
Vs. Subhash Chandra Agarwal (LPA No. 501/2009- dated 12 January
2010) that:
“... RIGHT TO INFORMATION VIS-À-VIS RIGHT TO PRIVACY
110. The right to privacy as an independent and distinctive concept originated
in the field of Tort law, under which the new cause of action for damages
resulting from unlawful invasion of privacy was recognized. This right has two
aspects: (i) The ordinary law of privacy which affords a tort action for damages
36
resulting from an unlawful invasion of privacy and (ii) the constitutional
recognition given to the right to privacy which protects personal privacy against
unlawful government invasion. Right to privacy is not enumerated as a
fundamental right in our Constitution but has been inferred from Article 21.
The first decision of the Supreme Court dealing with this aspect is Kharak
Singh v. State of UP MANU/SC/0085/1962 : AIR 1963 SC 1295. A more
elaborate appraisal of this right took place in later decisions in Gobind v. State
of MP MANU/SC/0119/1975 : (1975) 2 SCC 148, R. Rajagopal v. State of T.N.
MANU/SC/0056/1995 : (1994) 6 SCC 632 and District Registrar and Collector
v. Canara Bank MANU/SC/0935/2004 : (2005) 1 SCC 496.
111. The freedom of information principle holds that, generally speaking, every
citizen should have the right to obtain access to government records. The
underlying rationale most frequently offered in support of the principle are,
first, that the right of access will heighten the accountability of government and
its agencies to the electorate; second, that it will enable interested citizens to
contribute more effectively to debate on important questions of public policy;
and third, that it will conduce to fairness in administrative decision-making
processes affecting individuals. The protection of privacy principle, on the other
hand, holds in part at least that individuals should, generally speaking, have
some control over the use made by others, especially government agencies, of
information concerning themselves. Thus, one of the cardinal principles of
privacy protection is that personal information acquired for one purpose should
not be used for another purpose without the consent of the individual to whom
the information pertains. The philosophy underlying the privacy protection
concern links personal autonomy to the control of data concerning oneself and
suggests that the modern acceleration of personal data collection, especially by
government agencies, carries with it a potential threat to a valued and
fundamental aspect of our traditional freedoms.
112. The right to information often collides with the right to privacy. The
government stores a lot of information about individuals in its dossiers supplied
37
by individuals in applications made for obtaining various licences, permissions
including passports, or through disclosures such as income tax returns or for
census data. When an applicant seeks access to government records containing
personal information concerning identifiable individuals, it is obvious that
these two rights are capable of generating conflict. In some cases this will
involve disclosure of information pertaining to public officials. In others, it will
involve disclosure of information concerning ordinary citizens. In each
instance, the subject of the information can plausibly raise a privacy protection
concern. As one American writer said one man's freedom of information is
another man's invasion of privacy.
PROTECTION OF PERSONAL INFORMATION UNDER SECTION 8(1)(j)
113. The right to information, being integral part of the right to freedom of
speech, is subject to restrictions that can be imposed upon that right under
Article 19(2). The revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the
Government, optimum use of limited fiscal resources and the preservation of
confidentiality of sensitive information and, therefore, with a view to harmonize
these conflicting interests while preserving the paramountacy of the democratic
ideal, Section 8 has been enacted for providing certain exemptions from
disclosure of information. Section 8 contains a well defined list of ten kinds of
matters that cannot be made public. A perusal of the aforesaid provisions of
Section 8 reveals that there are certain information contained in Sub-clause
(a), (b), (c), (f),(g) and (h), for which there is no obligation for giving such an
information to any citizen; whereas information protected under Sub-clause
(d), (e) and (j) are protected information, but on the discretion and satisfaction
of the competent authority that it would be in larger public interest to disclose
such information, such information can be disclosed. These information, thus,
have limited protection, the disclosure of which is dependent upon the
satisfaction of the competent authority that it would be in larger public interest
as against the protected interest to disclose such information.
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114. There is an inherent tension between the objective of freedom of
information and the objective of protecting personal privacy. These objectives
will often conflict when an applicant seeks access for personal information
about a third party. The conflict poses two related challenges for law makers;
first, to determine where the balance should be struck between these aims; and,
secondly, to determine the mechanisms for dealing with requests for such
information. The conflict between the right to personal privacy and the public
interest in the disclosure of personal information was recognized by the
legislature by exempting purely personal information under Section 8(1)(j) of
the Act. Section 8(1)(j) says that disclosure may be refused if the request
pertains to "personal information the disclosure of which has no relationship
to any public activity or interest, or which would cause unwarranted invasion of
the privacy of the individual." Thus, personal information including tax
returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of
the Act. If, however, the applicant can show sufficient public interest in
disclosure, the bar (preventing disclosure) is lifted and after duly notifying the
third party ( i.e. the individual concerned with the information or whose records
are sought) and after considering his views, the authority can disclose it. The
nature of restriction on the right of privacy, however, as pointed out by the
learned single Judge, is of a different order; in the case of private individuals,
the degree of protection afforded to be greater; in the case of public servants,
the degree of protection can be lower, depending on what is at stake. This is so
because a public servant is expected to act for the public good in the discharge
of his duties and is accountable for them.
115. The Act makes no distinction between an ordinary individual and a public
servant or public official. As pointed out by the learned single Judge "----- an
individual's or citizen's fundamental rights, which include right to privacy - are
not subsumed or extinguished if he accepts or holds public office." Section 8(1)
(j) ensures that all information furnished to public authorities - including
personal information [such as asset disclosures] are not given blanket access.
When a member of the public requests personal information about a public
servant, - such as asset declarations made by him - a distinction must be made
between personal data inherent to the person and those that are not, and,
therefore, affect his/her private life. To quote the words of the learned single
Judge "if public servants ---- are obliged to furnish asset declarations, the mere
fact that they have to furnish such declaration would not mean that it is part of
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public activity, or "interest". ----- That the public servant has to make
disclosures is a part of the system's endeavour to appraise itself of potential
asset acquisitions which may have to be explained properly. However, such
acquisitions can be made legitimately; no law bars public servants from
acquiring properties or investing their income. The obligation to disclose these
investments and assets is to check the propensity to abuse a public office, for a
private gain." Such personal information regarding asset disclosures need not
be made public, unless public interest considerations dictates it, under Section
8(1)(j). This safeguard is made in public interest in favor of all public officials
and public servants.
14.
In light of the above Judgments, Commission is of the view that the
said inspection of the properties would certainly attract Section 8 (1) (j) of
the RTI Act as it would invade the privacy of the owner/occupant(s) of the
said property which is a Fundamental right enshrined under Article 21 of
the Constitution of India and such ‘inspection’ does not have any
relationship to any Public Activity or interest specially in the presence of
alternate mechanism to carry out such inspection by the MCD officials as
per the Provisions of the DMC Act. On the contrary, allowing such
inspection of the personal property to ‘third party’ under the RTI Act may
inculcate the ‘misuse’ of this privileged transparency right which will not be
in the larger public interest.
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15.
In view of the above explanations, the Commission dismisses the
present Appeal of the RTI Applicant and the information sought should not
be provided to him under the relevant provisions of the RTI Act, 2005.
Smt. Deepak Sandhu
Chief Information Commissioner
Shri Basant Seth
Shri Rajiv Mathur
Information Commissioner
Information Commissioner
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