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The present article aims to outline the judicial pronouncements rendered on exceptions to the statutory Right to Information. While the previous article highlighted the evolution of Section 8 which led it to its present form, this article seeks to bring clarity on the court’s interpretation of various sub-clauses of Section 8.
The decisions of the Supreme Court of India (hereinafter ‘SC’) are binding on all subordinate courts by virtue of the Constitutional mandate under Article 141. By necessary implication, it is also binding on all authorities unless reviewed or set aside by a larger bench. The Courts also have the power to test the constitutional validity of the legislative acts, statutes and the scope of the same. In doing so the Courts may hold a provision invalid, read down provisions to restructure their applicability in a particular manner or in order to define the scope interpret it in a wide or narrow manner. Therefore, the interpretation placed by the Apex Court forms an important tool to understand how a particular statute has been implemented in the country.
1. Central Board of Secondary education & Anr v. Aditya Bandopadhyay & Ors.
This was one of the first cases wherein the SC was engaged in the interpretation of the scope of the exemption clause under the 2005 Act and balancing of competing goals of achieving transparency and other public interest. In the said case, the Court was confronted with the task of examining the scope of the term “fiduciary relationship” in the context of an RTI application by a student who had sought certified copies and/or inspection of his evaluated answer sheets, which was denied.
a. The Apex Court in the said case, after looking into the objects and reasons for the enactment of the 2005 Act, the structure of the statute, literature on the term fiduciary relationship went on to observe as follows,
“The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different
capacities and relationship, involving a common duty or obligation”
“… The term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term ‘fiduciary relationship’ is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are : a partner vis-à-vis another partner and an employer vis-à-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee’s conduct or acts are found to be prejudicial to the employer.”
Noting that the term ‘fiduciary’ has been used in the normal sense, the Apex court held that no fiduciary relationship existed between either the examining body and the examinee or the examining body and the examiner; and the exception under section 8(1)( e ) could not be availed of by the CBSE.
b. It is however, pertinent to note the attempt of the Court in balancing the scales, as the Court went on to observe that disclosure of information pertaining to the identities of those conducting the examine may endanger their safety and thus, directed removal/redaction of those portions which may reveal their identity.
c. Furthermore, it was held that the right to information can only be asserted during the period for which the public authority was required to maintain the record and such a right could not prolong the duration for the preservation of records.
d. Giving a literal interpretation to the term ‘existing’ information, the court held that the rules and regulations of the public authority as regards the preservation of records shall apply and even the Information Commission (s) under section 19(8) of the 2005 Act does not have the power to direct the public authority to preserve the information, for any period larger than what is provided under the rules and regulations of the public authority.
e. It was further clarified that any argument on the basis of Section 8(3) of 2005 Act does not override any rules or regulations governing the period for which the record, document or information is required to be preserved by any public authority.
f. Also commenting on the interpretation of the exemption provision under the 2005 Act, the court observed that the need of the hour is to adopt a purposive construction, involving a reasonable and balanced approach which harmonizes the two objects of the Act, that is, one under section 8 placing limitations and the other provisions of the Act which liberalize it. This decision of the Court has been a landmark decision on all the above mentioned aspects and has set the tone for the balancing act which the judicial forums have been called upon to perform.
2. Institute of Chartered Accountants of India v. Shaunak H Satya & Ors.
The Apex Court had the occasion to examine a very similar issue on facts but from a very different paradigm in the case of wherein an argument claiming copyright in the instructions and solution to the examiners was taken and therefore, protection under section 9 of the 2005 Act was claimed by ICAI.
a. While examining the contention of ICAI, the court held that the stage at which the information is sought becomes relevant, and there is will be no liability to provide any information prior to the conduct of the examination. However, the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held.
b. And further that Section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party. What emerges from the above approach of the Court is the essential function performed by it. Even though the ‘stage of information sought’ as a yardstick does not appear in the statute itself, the Courts adopted it in order to fulfill the objective of the statute while still protecting the interest of the protected party.
c. Examining the structure of Section 9, the Court also held that ICAI being a statutory authority is the state and thus, cannot avail of the exception of section 9. A bare reading of Section 9 would reflect that protection thereto can only be claimed by a body other than the state. As an ancillary point, it was also observed that even otherwise, furnishing information by an examination body will itself fall within the Section 52 of the Copyright Act, which is a provision pertaining to ‘fair use’ of copyrighted material.
Practical manner and purposive approach are terms which resonate in the judicial decisions again and again.
3. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Ors.
Entrance examinations for educational institutions/job placements appear to be one of the most popular events for filing of RTI applications and seeking information. This is yet another case where the Hon’ble Supreme Court was engaged in examining the nature and extent of information which may be disclosed with regard to such entrance examination. The RTI applicants had sought information relating to the name, designation, addresses of subject experts on the interview board; name and addresses of the candidates who appeared; marks of all candidates; tabulated statement of marks with the signatures of the officers and the merit list.
a. In examining the issues arising in the matter, the Court observed that the right to information is not an uncontrolled right and has to be made subject to a dual check, firstly on the anvil of the exemptions inbuilt in the 2005 Act itself and secondly, constitutional limitation under Article 21 of the Constitution. Relying on the ratio of CBSE case, the Court went onto held that the term “public interest” does not have any set definition and has to take its colour from the statute it appears in. In the context of the 2005 Act, it has to be strictly construed in order to justify the denial of information and there has to be an objective evaluation whether the public interest outweighs the invasion of privacy or other factors stated in the provision.
b. Further, analyzing the contours of section 8(1) (g), the Court laid emphasis on the two distinct terms used therein viz., life and physical safety of person. While the term life is wide, physical safety is a restricted term. In view of the same, furnishing the names and marks allotted by them to individuals was viewed to be in the teeth of section 8(1) (g), and would also not serve any public purpose.
4. Union Public Service Commission and Ors. v. Agensh Kumar and Ors.
However, this is one where the Supreme Court in sought to place UPSC on a distinct footing as compared to other educational institutions in observing as follows,
“10 . Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If Rules or practice so require, certainly such Rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.”
5. Reserve Bank of India v. Jayantilal N Mistry
In this matter, the Supreme Court yet again examined the applicability of section 8, this time in the background of refusal of information by RBI relating to the inspections carried by the RBI on banks though out the country. Protection under Section 8(1) (a), (d) and (e) was claimed and it was further averred that RBI had the discretion to disclose the information in public interest.
a. Noting that the 2005 Act, overrides the earlier laws promoting secrecy, the Court held that the only exceptions available are those under Section 8. The Court followed its earlier judgment in the CBSE case on the aspect of fiduciary relationship and after an elaborate discussion on the above aspect; it held that RBI, being a statutory body with wide ranging powers, acts as the guardian of public interest and not a promoter of benefits of the public sector or private sector banks. The information obtained by it in its statutory duty could not be protected under Section 8(1) (e), which applied to exceptional cases and only with regard to certain information for which disclosure is unwarranted. It thus ruled against the basic argument of RBI that it was in fiduciary relationship with other banks.
b. Addressing the second limb of the argument seeking non-disclosure of information, the Court went into the aspect of commercial interest and observed as follows,
“Economic interest of a nation in most common parlance are the goals which a nation wants to attain to fulfil its national objectives. It is the part of our national interest, meaning thereby national interest can’t be seen with the spectacles(glasses) devoid of economic interest.
“… This makes it necessary to think when or at what stage an information is to be provided i.e., the appropriate time of providing the information which will depend on nature of information sought for and the consequences it will lead to after coming in public domain.”
c. It is noteworthy that even in this matter the court reiterated the aspect relating to the stage at which the information is sought. In the facts of the matter, the Court observed that it was in the public interest to disclose the information sought which would otherwise manifest ill practices in the banking system.
6. Girish Ramchandra Deshpande v. CIC & Ors.
This is another decision of the Supreme Court which merits discussion where information was sought relating to service and income of certain individuals. The exemptions under Section 8(1) (e), (g) and (j) were pressed into service.
a. Examining the controversy at hand, the Court held that performance of an employee is a matter between the employee and the employer and normally governed by service rules and further that details disclosed in the tax returns would also form part of personal information, which could only be disclosed if there is public interest alleged and highlighted. In the facts of this particular case, no public interest was found to be served in disclosing the information sought under the RTI application.
7. K. Jain v. UoI & Anr.
In this matter, the Court was looking into orders of the forum below wherein the denial of information sought namely, the note sheets and correspondence of the file relating to a member of CESTAT, was upheld. Following the ratio of the Girish Ramchandra Deshpande case, the Court upheld the denial of information as the same was in nature of personal information of a third party attracting the provisions of Section 11.
8. Thalappalam Ser. Coop. Bank Ltd. and Ors. v. State of Kerala and Ors.
The SC once again analyzed the scope of Section 8(1)(j) in this case. The primary question that arose was as to whether a registered or deemed to be registered cooperative society would fall within the meaning of public authority making it liable to furnish information under the 2005 Act.
a. While deciding that question, the Hon’ble Court went on to make certain observations qua the right to privacy, which has been embodied in clause (j) of Section 8(1). Noting that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the Court took into account that a number of safeguards have been placed in section 8(1) (j). If a public authority has information which would cause invasion into the privacy of an individual, then the public authority is not bound to provide the same, unless it is satisfied that the larger public interest justifies the disclosure of the same.
9. CPIO, Supreme Court of India v. SC Aggarwal.
This is the most recent decision on the subject. The RTI applications filed sought information pertaining to collegium discussions on appointment of judges and their asset declarations. Notably, the CIC, single-judge bench of Delhi High Court and on appeal- the Full Bench of Delhi High Court rendered decisions in favour of the RTI applicant refusing to interpret the exceptions in a manner which would stifle the citizen’s right to information even in situations where public interest would merit the disclosure.
Before looking into the reasoning of the Supreme Court, it is apposite to note the findings of the Ld. Single Judge Bench, Delhi High Court as affirmed by the Full Bench as follows:-
- The Chief Justice of India is a public authority and holds information on asset declaration by judges as such and doesn’t hold the same in fiduciary capacity;
- Queries regarding asset declaration by judges fell within the purview of “information’;
- the information on asset declaration rendered in consonance with 1997 resolution is entitled to be treated as “personal information” and the provision of Clause (j) of Section 8(1) needs to be followed;
- declaration of assets is not an insurmountable task and the judges may proceed to frame an appropriate system for the same.
The Constitution Bench of the Supreme Court reiterating extensively its earlier decisions (as discussed above in detail) upheld the findings of the Delhi High Court Full and rejected the appeal filed in the Asset Declaration Case. The Court sounded a note of caution with regard to balancing right to privacy and right to information. Concluding the matter, the court remanded the matter to the CPIO to follow the mandate of Section 11 in dealing with the RTI applications pertaining to the Appointment of Judges Case.
The above analysis of the leading judgments of the Supreme Court on the scope and interpretation of the exemption clause reflect that a very judicious approach has been adopted by the Apex Court in attempting to balance the burden on the executive and various costs involved versus the right to information that is vested in every individual and would further the objective of promoting transparency in the system. In applying the statute to the case at hand, the court has time and again been guided by the overall objective with which the statute was enacted. It is this balanced approach that has in fact strengthened the objective of transparency in the system. It is quite notable that in the first 10 years of the enactment of 2005 Act, big scams and irregularity in the government decision making was unearthed. It, however, is a different debate as to whether the 2005 Act is being abused by overzealous miscreants.
By – Rajul Jain
The Author is an Advocate practicing before various courts in Delhi. The present article is two of two-part series on Exceptions to Right to Information. Read Part I here
(2011) 8 SCC 497
 (2011) 8 SCC 781
 (2012) 13 SCC 61
 (2018) 4 SCC 530
 (2016) 3 SCC 525
 It may be noted that upon applications filed by Banks, the said matter has been revived and is pending adjudication. Vide its order dated 18.12.2019 passed in MA Nos. 2342 of 2019 in TC (C) No. 91 of 2015 the Hon’ble Court directed that Inspection/ Risk Assessment reports of the banks shall not be disclosed until further orders
 (2013) 1 SCC 212
 (2013) 14 SCC 794
 (2013) 16 SCC 82
 Decision dated 13.11.2019 in Civil Appeal Nos. 10044 of 2010; Civil Appeal No. 2683 of 2010 and Civil Appeal No. 1 0045 of 2010