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TMI Blog2015 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ention raised on behalf of the Petitioner. The Petitioner wants to proceed on the hypothesis that the information sought by him cannot be denied to the Parliament. In so far as the Parliament is concerned, the Parliament has its own rules of business and it therefore cannot be presumed that the information in respect of the Income Tax Returns of a Member of Legislature would be sought. The same would undoubtedly be in the discretion of the Honourable Speaker. In the said context, it is also relevant to refer to Section 75A of the Representation of the People Act under which every elected candidate for a House of Parliament has to furnish information relating to the movable and immovable property, his liabilities to any public financial institution, his liabilities to the Central Government or the State Government to the Chairman of the Council of States or the Speaker of the House of the People i.e. Loksabha or the Chairman of the Council of the State i.e. Rajyasabha. Hence there are adequate provisions in the Representation of the People Act under which the information sought is to be provided to the Parliament to the extent mentioned in the said provisions and therefore reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for has no relationship to any public activity or interest and therefore does not qualify in view of the provisions of Section 8(1)(j) of the said Act. The Petitioner was however informed that if he is aggrieved by the said order, he may file an Appeal before the First Appellate Authority whose designation was mentioned in the said order. 5 The Petitioner accordingly filed a First Appeal under Section 19 of the said Act. The said Appeal inter alia contained the grounds on which the order was challenged, one of the grounds in the Appeal was that the disclosure of the information to another person cannot be construed as being unwarranted invasion of the privacy of the individual. Another ground that was set out was that the fulfillment of the statutory requirements would not be covered by the exemption contemplated under Section 8(1)(j). A further ground which was set out was that the information which cannot be denied to Parliament, a citizen would be entitled to the same information, as Parliament itself derived its legitimacy from the citizens, and lastly it was set out that the standard of disclosure for those who want to be public servants has been set higher by the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Information Officer and the First Appellate Authority. The Central Information Commissioner in his order referred to the 5 Member Bench Judgment dated 562009 of the Commission wherein the said 5 Member Bench had held that Income Tax Returns have been rightly held to be personal information exempted from disclosure under clause 8(1)(j) of the said Act. The Second Appellate Authority also referred to the judgment of the Apex court in Girish Ramchandra Deshpande's case (supra) holding that the details disclosed by a person in his Income Tax Returns is personal information which has been exempted from disclosure under clause (j) of Section 8(1) of the said Act, unless involved a larger public and the CPIO and or State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. The Central Information Commissioner has observed that in the present Appeal the Petitioner has not been able to prove any larger public interest with corroborative evidence and therefore upheld the decisions of the Central Public Information Officer and the First Appellate Authority and disposed of the said Second Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surup Singh Naik Vs. State of Maharashtra AIR 2007 Bom 121 has dealt with the proviso to Section 8(1)(j) and has held in the said case that the information which cannot be denied to the Parliament or the State Legislature cannot be denied to the citizen. (ix) That the disclosure of the information is in larger public interest has been demonstrated by the Petitioner by making out a case in the Appeal namely that the same would amount to reducing corruption and increasing the faith in the elected representatives. (x) That the judgment in Girish Ramchandra Deshpande's case (supra) does not lay down any law and the said Judgment was purely based on facts and circumstances of the case and therefore has no precedential value. Reliance is sought to be placed on the following judgments of the Apex Court (1) (1979) 3 Supreme Court Cases 745 in the matter of Dalbir Singh Ors. Vs. State of Punjab (2) (1992) 1 Supreme Court Cases 489 in the matter of State of Punjab Ors. Vs. Surinder Kumar Ors. (3) (2002) 8 Supreme Court Cases 361 in the matter of S. Shanmugavel Nadar Vs. State of T. N. Anr. (xi) That it has been held in the matter of PUCL Vs. Union of India AIR 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Petitioner have no relevance in the context of the information sought by the Petitioner under the Right to Information Act. The Right to Information Act is a self contained code and unless public interest is made out or that the public interest outweighs the right to privacy of the Respondent No.3, the information sought by the Petitioner cannot be provided. (v) That the reliance placed by the Petitioner on the proviso to Section 8(1) (j) is misplaced as the matter cannot be approached from the perspective and hypothesis that the information sought cannot be denied to the Parliament or the State Legislature and therefore cannot be denied to the Petitioner. The Parliament has its own rules of business and it cannot be presumed that the information in respect of Income Tax Returns of a member of the State Legislature would be sought. Reliance is placed on the judgment of a Learned Single Judge of the Delhi High Court in the matter of Vijay Prakash Vs. Union of India 160(2009) Delhi Law Times 631 (vi) That the Judgment in Surup Singh Naik's case (supra) though dealing with the said proviso is clearly distinguishable on facts and therefore the said Judgment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation 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. (2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with subsection (/), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of subsection (/), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 19 against the decision. 9 In so far as Section 11 is concerned, if the information sought relates to a third party, the CPIO or the State Public Information Officer as the case may be is within 5 days from the receipt of the request is required to give a written notice to such third party of the request and of the fact that the CPIO or the State Public Information Officer as the case may be intends to disclose the information or the record or part thereof and invited the third party to make a submission in writing or orally regarding whether the said information should be disclosed. Hence in terms of Section 11, the third party is required to be given a notice and the reply given by the third party to the request made has to be considered by the Information Officer whilst deciding the application. 10 In so far as Section 8(1)(j) is concerned, it relates to the personal information of an individual which has no relationship to any public activity or interest. The said clause (j) is a part of Section 8 which contains various categories of information which are exempted from disclosure. In so far as clause (j) is concerned, the CPIO or the State Public Information Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPIO by making a general statement in his Appeal to the effect mentioned in the excerpted portion of paragraph (4) as above of his Appeal. The said Appeal as indicated above was dismissed by the First Appellate Authority by its order dated 522013 and the reason mentioned by the CPIO was reiterated by the First Appellate Authority. The First Appellate Authority has only broadened the ground mentioned by the CPIO by stating that the disclosure of the said information would cause unwarranted invasion of the privacy of the concerned party. The ground mentioned in the application filed by the Petitioner before the CPIO as also the ground mentioned in the Appeal filed by the Petitioner before the First Appellate Authority has been adverted to so as to consider whether the Petitioner has made out any case for disclosure of the information on the ground of the same being in public interest. 12 At this stage, it would be necessary to refer to the Judgment of the Apex Court in Girish Ramchandra Deshpande's case (supra) and R. K. Jain's case (Supra) as also the judgment of the 5 Member Bench of the Commission. In so far as Girish Ramchandra Deshpande's case (supra) is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 13. The details disclosed by a person in his income tax returns are personal information which stand exempted from disclosure under clause(j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. 13 In so far as the Judgment in R. K. Jain's case (supra) is concerned, the facts were identical as the facts in Girish Ramchandra Deshpande's case in as much as the information relating to the service record of the third party was sought by the Petitioner which was denied on the ground that the same is personal inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny public interest involved in the disclosure of the information sought by the Petitioner by way of the Income Tax Returns of the Respondent No.3 for the preceding three years. The Petitioner is in fact seeking the information by questioning the manner in which the Income Tax Department functions. Since the Petitioner is seeking information relating to the Respondent No.3 the Petitioner was required to demonstrate as to how the disclosure of the information relating to the Respondent No.3 would serve public interest. As indicated above, the Petitioner has made a general and sweeping statement which can hardly be said to satisfy the test of disclosure being made in public interest. The Petitioner has sought to assail the reliance placed by the CIC on the judgment in Girish Ramchandra Deshpande's case (supra) on the ground that the same does not lay down any law and that the same has been rendered without considering the judgment of the Apex Court in PUCL's case and R.Rajgopal's case (supra). In the context of the challenge to the applicability of the judgment in Girish Ramchandra Deshpande's case is concerned, it would be necessary to revisit the facts involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979(3) Supreme Court Case 745, 1992(1) Supreme Court Cases 489 and (2002) 8 Supreme Court Cases 361 to contend that Girish Ramchandra Deshapande's case (supra) does not lay down any law, is thoroughly misplaced, as the said judgments have been rendered in the factual context prevailing in the said cases. Hence in so far as whether the Income Tax Returns fall in the exempted category the issue has been concluded by the Apex Court in Girish Ramchandra Deshpande's case, which has been fetched in R.K.Jain's case (supra). 16 Since the Petitioner seems to be basing his case on the purity of elections and probity in public life, before adverting to the two judgments of the Apex Court in the two PUCL cases, it would be necessary to refer to the relevant provisions of the Representation of the People Act, 1950. By the amendment carried out in the year 2002, Section 33A and 33B have been introduced in the Representation of the People Act. In terms of Section 33A, a candidate shall apart from any information which he is required to furnish in his nomination has also to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdly said to satisfy the test of the same being in public interest. The information sought also has no connection with any public activity of the Respondent No.3. The Petitioner possibly being aware of the said position has therefore sought to contend that filing of the Income Tax Returns is a public activity. I am afraid the said contention is thoroughly misconceived as filing of Income Tax Returns can be no stretch of imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the prerequisites for the same are satisfied. 17 Now coming to the judgment in P.U.C.L. and another's case (supra). The said judgment concerns the directions issued by the Election Commission of India under Article 324 of the Constitution of India. The Apex Court has summed up the legal and constitutional position which emerges from the directions issued by the Election Commission of India in Paragraph 46 of the said judgment. Paragraph 46 of the said judgment, is for the sake of ready reference rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of election, voter can decide whether he could be reelected even in case where he has collected tons of money. Presuming, as contended by the learned senior counsel Mr. Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the county as the amount would be unaccounted. May be true, still this would have its own effect as a stepinaid and voters may not elect lawbreakers as lawmakers and some flowers of democracy may blossom. 4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in process of election would include transparency of a candidate who seeks election or reelection. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. 5. The right to get information in democracy is recognized all throughout and it is natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn up properly by the Election Commission as early as possible and in any case within two months. 19 In my view, the aforesaid judgments can hardly further the case of the Petitioner to contend that since the Respondent No.3 being a people's representative, his right to privacy would not be affected if the information sought by the Petitioner is disclosed. The Apex Court has made the observations that it has made having regard to the amended provisions of the Representation of People Act, and the said observations cannot be applied whilst considering the provisions of the said Act, which is a self contained code. 20 The Petitioner has also sought to place reliance on the judgment of the Apex Court in R Rajagopal's case (supra). The said judgment also concerns the right to privacy under Article 21 of the Constitution of India and the case concerns the publication of the autobiography of one Auto Shankar who was convicted for 6 murders and was sentenced to death and who had written his autobiography in jail and has handed over the same to his wife with the knowledge and approval of the jail authorities for being delivered to his advocate with a request to publish th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act had come up for consideration before the Apex Court recently in Bihar Public Service 11 2009(0)AIJMH 146009 Commission's Case (supra). The Apex Court after observing that information which relates to personal information recorded by Section 8(1)(j) of the said Act stands exempted and can be disclosed only if the public interest so warrants, has thereafter held that the said exemption is a statutory exemption which must operate as a rule and only in exceptional cases, would disclosure be permitted that too for reasons to be recorded demonstrating satisfaction to the test of larger public interest. In so far as the competing claims between larger public interest and the invasion of privacy, the observations of the Apex Court in paragraph 23 of the said judgment are material and are reproduced herein under: 23 The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to furnish the said information having regard to the proviso as the information sought by the Petitioner cannot be denied to the Parliament or the State Legislature. In support of the said contention the Petitioner has sought to place reliance on the judgment of a Division Bench of this Court in Surup Singh Naik's case (supra). In so far as the said judgment of the Division Bench is concerned, to which this Court was a party, no doubt in the said judgment proviso to Section 8(1)(j) was in contention and the Division Bench of this Court had allowed the application filed by the Petitioner seeking information relating to the hospitalization of the Petitioner Surup Singh Naik which was denied by the authorities below. However, the proviso was applied in the facts that were prevailing in the said case. The facts in the said case was that the Petitioner Surup Singh Naik was a Minister in the State Government at the relevant time who was punished for contempt of court by the Apex Court by judgment dated 10052006 and was to undergo imprisonment for one month. It seems that the Petitioner surrendered to the police in Mumbai on 12052006. On 14052006 the Petitioner was shifted to one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of Hospitals, therefore,, ought to be made available to Parliament or the State Legislature. The Parliament/Legislature and/or its Committees are entitled to the records even if they be confidential or personal records of a patient. Hence the judgment of the Division Bench of this Court was revolving around the facts in the said case, where a Minister in Office was punished for Contempt of Court and was admitted to a Government Hospital and was being treated therein and the suspicion was that he had got himself admitted to avoid incarceration. The said judgment, in my view, cannot be extended to mean that any and every information is to be provided to the Parliament or the State Legislature. This has to be viewed in the context of the facts of Surup Singh Naik's case (supra) wherein the Division Bench of this Court was of the view that the information relating to the patient Surup Singh Naik could not have been denied to the Parliament or State Legislature. In my view, therefore, the judgment of the Division Bench of this Court does not in any manner further the case of the Petitioner based on the proviso to Section 8(1)(j) of the said Act. 24 The proviso to Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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