Lucknow / 29 August 29, 2022 …………
Uttar Pradesh State Information Commission ( UPSIC ) has denied movable & immovable property details of Info-Commissioners to Lucknow based RTI activist Urvashi Sharma. Not agreeing with the logics of PIO Mumtaz Ahmad for denial of Info, Activist Urvashi has today sent her objections to the PIO of UPSIC.
उत्तर प्रदेश राज्य सूचना आयोग के जन सूचना अधिकारी मुमताज़ अहमद ने एक्टिविस्ट उर्वशी शर्मा की आरटीआई अर्जी पर जवाब देते हुए सूचना आयुक्तों की चल-अचल संपत्तियों को सार्वजनिक करने से मना कर दिया है. मुमताज़ अहमद के उत्तर पर विरोध जताते हुए उर्वशी ने आज अपनी आपत्तियां मुमताज़ अहमद को भेज दी हैं.
Reply of Mumtaz Ahmad and objections sent by Urvashi Sharma to Mumtaz Ahmad are available on below weblink. मुमताज़ अहमद का जवाब और उर्वशी की आपत्तियां नीचे दिए वेबलिंक पर उपलब्ध हैं.
https://upcpri.blogspot.com/2022/08/activist-cries-foul-as-upsic-refuses-to.html
To,
Sri Mumtaz Ahmad
PIO, Uttar Pradesh Information Commission
RTI Bhavan,Gomtinagar, Lucknow, U.P. – 226017
Sub. : Objections to your RTI reply letter no. 682/राo सूoआo/2022 dated 25-07-2022 in re. RTI no. 366/2022.
Dear Sir,
You have denied information related to movable and immovable assets by citing :-
1) Section 8(च) of RTI act 2005.
“Section 8(च) of RTI act 2005 -> किसी विदेशी सरकार से विश्वास में प्राप्त सूचना”
The information sought by me is not “किसी विदेशी सरकार से विश्वास में प्राप्त सूचना”; hence this first plea of SPIO does not hold any ground in this matter so information should be given to me.
2) Section 11 of RTI act 2005.
but SPIO failed to invoke provisions of said section 11 of RTI act as PIO has not issued notices under rule 4(8) of U.P. RTI Rules 2015 on Form 9 of U. P. RTI rules 2015 to the concerned third parties. As SPIO has grossly failed to comply provisions of section 11 read with rule 4(8) of U.P. RTI Rules 2015 and Form 9 of U. P. RTI rules 2015; this second plea of SPIO also does not hold any ground in this matter so information should be given to me.
3) Para 2 of order of Hon’ble Supreme Court of India passed in Sri Girish Ramchandra Desh Pandey Vs. CIC & others.
In this regard my objections are that SPIO has not mentioned that the disclosure of information sought by me is not in the larger public interest of the society. For denial of information under section Section 8(1)(j), it has to be mandatorily established that disclosure of information sought has no relationship to any public activity or interest. Moreover, proviso of section 8(1)(j) says that -> Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” SPIO has nowhere mentioned that the information sought by me is sought by the Parliament or a State Legislature, it shall not be given to the Parliament or a State Legislature.
I am also quoting the ratio decidendi of the Supreme Court judgement in R Rajagopal and Anr. v State of Tamil Nadu (1994), SC which states: “26. We may now summarize the broad principles flowing from the above discussion: 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, childbearing, 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 interests 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 publicized 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 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 defense 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 Parliament and Legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.” This judgement effectively lays down that matters of public records cannot claim privacy unless it relates to violation of ‘decency or morality’. It also reiterates the principle in Article 19(2) of the constitution. It is my submission that all personal information is not exempt from disclosure by law, hence there is no reason to establish a larger public interest. This would be necessary only when the information is exempt. The denial of information is not in consonance with the law and hence is an error.
So far as Girish Ramchandra Deshpande judgment of the Supreme Court is concerned, I would like to point out that it was given in a SLP and hence does not give any reasoning and cannot lay down the law. Besides, the R, Rajagopal judgment precedes the Girish Deshpande judgment. It also has a clear ratio decidendi and hence forms s precedent laying down the law. The Girish Deshpande judgment being a subsequent judgment cannot contradict or override the R. Rajagopal judgment.
Girish Ramchandra Deshpande Vs. Central Information Commission & Ors. (2013) 1 SCC 212 The issue before the Court: Whether the information pertaining to a Public Servant in respect of his service career and also the details of his assets and liabilities, movable and immovable properties, can be denied on the ground that the information sought for was qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The observations of the Court: “12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act. 13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public 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. 14. 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.” The Court held that: The Apex Court held that copies of all memos, show cause notices and orders of censure/punishment, assets, income tax returns, details of gifts received etc. by a public servant are personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted and cannot be furnished under RTI Act. Our analysis of the judgment: The judgement has expanded the scope of Section 8 (1) (j) far beyond its wording, without any discussion or interpretation of the law whatsoever. The only justification given for denial is that the Court agrees with the decision of the CIC. The Court mentions,” The performance of an employee/officer in an organization is primarily a matter between the employee and the employer”, forgetting that the employer is ‘we the people’ who gave ourselves the constitution. Section 8 (1) (j) exempts “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.” The Supreme Court has missed realizing that the exemption applies to personal information only if it has no relationship to any public activity or is an unwarranted invasion on the privacy of an individual. The court has not even quoted the important proviso. Effectively the court has read Section 8(1) (j) as: 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.” Forty seven words out of the eighty seven words have not been considered and the important proviso has not even been mentioned in the judgment. The clear intent of Section 8 (1) (j) is to ensure that if some record is held by the public authority which has no relationship to any public activity it is exempted from disclosure. Even if it is a public record and disclosure would be an unwarranted invasion of the privacy of an individual, this should not be given. The proviso provides an acid test and before refusing information under Section 8 (1) (j) a subjective assessment has to be made whether it would have been denied to Parliament or State Legislature. The aforesaid judgment clearly appears to be contrary to the following two judgements of the Supreme Court: 1. R Rajagopal and Anr. v state of Tamil Nadu (1994), SC The ratio of this judgement was: “28. We may now summarise the broad principles flowing from the above discussion: (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 offense should not further be subjected to the indignity of her name and the incident being published 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 simply not available with respect to their acts and conduct relevant to the discharge of their official duties.” Public record as defined in the Public Records Act is any record held by any Government office. This judgement at point 2 clearly states that for information in public records, the right to privacy can be claimed only in rare cases. This is similar to the proposition in Section 8 (1) (j) which does not exempt personal information which has relationship to public activity or interest. It also talks of certain kinds of personal information not being disclosed which has been covered in the Act by exempting disclosure of personal information which would be an unwarranted invasion on the privacy of an individual. At point 3 it categorically emphasizes that for public officials the right to privacy cannot be claimed with respect to their acts and conduct relevant to the discharge of their official duties. Privacy is to do with matters within a home, a person’s body, sexual preferences etc as mentioned in the apex court’s earlier decisions in Kharak Singh and R.Rajagopal cases. This is in line with Article 19 (2) which mentions placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. If however it is felt that the information is not the result of any public activity, or disclosing it would be an unwarranted invasion on the privacy of an individual, it must be subjected to the acid test of the proviso: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1) (j). Public servants have been used to answering questions raised in Parliament and the Legislature. It is difficult for them to develop the attitude of answering demands for information from citizens. Hence before denying personal information, the law has given an acid test: Would they would give this information to the elected representatives. If they come to the subjective assessment, that they would provide the information to MPs and MLAs they will have to provide it to citizens, since the MPs and MLAs derive legitimacy from the citizens. Another perspective is that personal information is to be denied to citizens based on the presumption that disclosure would cause harm to some interest of an individual. If however the information can be given to legislature it means the likely harm is not much of a threat since what is given to legislature will be in public domain. It is worth remembering that the first draft of the bill which had been presented to the parliament in December 2004 had the provision as Section 8 (2) and stated: (2) Information which cannot be denied to Parliament or Legislature of a State, as the case may be, shall not be denied to any person. In the final draft passed by parliament in May 2005, this section was put as a proviso only for section 8 (1) (j). Thus it was a conscious choice of parliament to have this as a proviso only for Section 8 (1) (j). It is necessary that when information is denied based on the provision of Section 8 (1) (j), the person denying the information must give his subjective assessment whether it would be denied to Parliament or State legislature if sought. The Girish Deshpande judgement is clearly contrary to the earlier judgement, since it accepts the claim of privacy for Public servants for matters relating to public activity which are on Public records. 2. The Supreme Court judgement in the ADR/PUCL case [(2002) 5 SCC 294] had clearly laid down that citizens have a right to know about the assets of those who want to be Public servants (stand for elections). It should be obvious that if citizens have a right to know about the assets of those who want to become Public servants, their right to get information about those who are Public servants cannot be lesser. This would be tantamount to arguing that a prospective groom must declare certain matters to his wife-to-be, but after marriage the same category of information need not be disclosed! When quoting Section 8 (1) (j) the Court has forgotten to mention the important proviso to this Section which stipulates, ‘Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.’ The Supreme Court did not even mention this in its judgement when quoting section 8 (1) (j) and has not considered it. If this proviso was quoted the Court would have had to record that in its opinion the said information would be denied to Parliament. The Court forgot its ruling in CIVIL APPEAL NOs.10787-10788 OF 2011 (Arising out of S.L.P(C) (judgement 2 above) at para 36: “ It is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.” Bihar Government, Gujarat government, Municipal Corporation of Mumbai and many others had displayed the assets of all the officials on their website. The decision of the Supreme Court will reverse the transparency march and constrict Right to Information. It appears that the Court has not taken into account the two earlier judgements mentioned above, and the important proviso to Section 8 (1) (j) and hence the decision in Girish Deshpande’s case may be per incuriam. Besides, there does not appear to any ‘ratio decidendi’ in this judgement, that is to say, the judgment does not spells out any reason for the conclusion it reached. Hence this judgement cannot be a precedent. Unfortunately this judgment has resulted in most information about public officials being denied including that regarding their work. Consequently arbitrary favours by Public servants and their corruption has been obscured from the eyes of the public. Maharashtra government has issued a circular based on this judgement in which it instructs that all personal information of public servants must be refused because of the Girish Deshpande judgement. It is worth recording that the main ground for the judgement is agreement with the CIC decision. A perusal of the CIC decision also does not display any proper reasoning but is based on an earlier decision by a bench of the Commission. The bench decision which was relied on by CIC, did not even relate to information about a public servant! Besides the said CIC decision in the matter of Milap Choraria vs. CBDT did not analyse Section 8 (1) (j) fully, and grossly misinterpreted Section 11. Many High Court judgments and one by the Supreme Court have declared that ‘personal information’ cannot be given, unless a larger public interest is shown. It has become very popular with PIOs, First appellate authorities and Information Commissioner’s to deny most information relating to public servants. In the opinion of the Authors this judgment is not in consonance with the law and earlier Supreme Court judgments. It has created a exemption not in the law. This results in a constriction of the citizen’s fundamental right and the law’s objective of curbing corruption and wrong doings is defeated. It is worth remembering two judgments of the Supreme Court. A five judge bench has ruled in P. Ramachandra Rao v. State of Karnataka case no. appeal (crl.) 535.: “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature” In Rajiv Singh Dalal (Dr.) Vs. Chaudhari Devilal University, Sirsa and another (2008), the Supreme Court, after referring to its earlier decisions, has observed as follows. "The decision of a Court is a precedent, if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a precedent." The Girish Ramchandra Deshpande appears to have no ratio, nor does it lay down any principle with reasons. It has not considered the R. Rajagopal and ADR/PUCL judgments. Hence it should not considered as a precedent. But it has become the law, since everyone in power finds it convenient. This violates the RTI Act and is constricting the citizen’s fundamental right far beyond what even the constitution permits.
this third plea of SPIO also does not hold any ground in this matter so information should be given to me.
Kindly remove 3 objections as detailed above and provide the information to me.
Regards,
Date : 29-08-2022
Yours Truly
( Urvashi Sharma )
102,Narayan Tower, F Block, Rajajipuram,Lucknow-226017
E mail upcpri@gmail.com Mobile 8081898081
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