Asset Details Of Govt. Servant Can Be Assessed Under RTI Act
Madras High Court
V.Madhav vs The Tamil Nadu Information Commission ... on 12 July, 2011
THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.A.No.551 of 2010
The writ appeal is directed against the order dated 2.2.2010 dismissing the writ petition filed by the appellant. The facts leading to the present writ appeal are as follows. The appellant made an application dated 12.2.2009 to the Public Information Officer, Public Department, Government of Tamil Nadu seeking permission to inspect the five latest statement of assets disclosure submitted by the ten I.A.S. Officers including the Chief Secretary to Government of Tamil Nadu and the nine Secretaries of the Departments of Finance, Industries, Health and Family Welfare, Agriculture, Public Works Department, Housing and Urban Development, Home, Prohibition and Excise, Rural Development and Panchayati Raj and Revenue. That application was rejected by the Public Information Officer in his letter dated 16.3.2009 on the ground that the information sought was exempt under Section 8(1)(j) of the Right to Information Act, 2005. Being aggrieved by the said communication, the appellant preferred an appeal to the appellate authority and the same was also rejected on 22.4.2009 with the same reason. Thereafter, the appellant filed a further appeal to the State Information Commission. The State Information Commission held that Section 8(1)(j) is not applicable for the assets details of Government servants. Nevertheless, it found that the information presented in a sealed cover constitutes information that is "held" by the public authority to ensure confidentiality and the assets details of public servants are personal information and since there was no public interest cause established, the information need not be disclosed. The said order was unsuccessfully challenged by the appellant in the writ petition giving rise to the present writ appeal.
2. We have heard Dr.V.Krishna Ananth, learned counsel for the petitioner, Mr.Vivek Sriram, learned counsel for the first respondent and Mr.M.C.Swamy, learned Special Government Pleader for the second respondent.
3. Before we consider the issue raised in this writ appeal, we may refer to our own judgment in The Superintendent of Police, Central Range, Office of the Directorate of Vigilance and Anti-Corruption v. R.Karthikeyan and others, 2011 (3) CTC 241, where we have narrated the history and object of the legislation, namely, the Right to Information Act, 2005 and the judgments of the Supreme Court. The relevant paragraphs 7 to 14 of the said judgment read thus: "
7...... The legal entrenchment of the right to information is drawn from the United Nations, which recognised the "freedom of Information as fundamental human right and as the touchstone for all freedoms to which the United Nations was consecrated." The right of free expression and declaring information has been recognised at the common law many years back, as the fundamental rights of the public to know what the Government have been transacting in their name. Until we adopted our Constitution in 1950, there had been no scope for individual freedom at any time in India's history. After the Constitution, the liberty of thought is the basis of freedom of speech and expression under Article 19(1)(a), which is an essential component of a democratic governance. The right to information is now treated as an invisible integral part of the right of free speech. As information is vital not only for the betterment of the society but also for the betterment of an individual, Article 21 guarantees right to life including the basic right to be informed.
8. India has adopted a democratic form of Government and no democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only when the people know how the Government is functioning, they can fulfill the role which democracy assigned to them and make democracy a really effective participatory democracy. Right to information is basic to any democracy. A vibrant citizenry is a prerequisite for survival of democratic society and governance. The quality of life in a civilized society depends upon the quality of exchange of information about the governance and related aspects. It is now widely recognised that openness and accessibility of people to information about the government's functioning is a vital component of democracy. Disclosure of allowable information would lead to better system and it would be in the public interest that a public authority should throw open the process of public scrutiny, which would result in evolving a better system. Disclosure of information would compromise the integrity and efficiency of the functioning of the public authority. In an increasingly knowledge-based society, information and access to information holds the key to resources, benefits and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy.
9. The Right to Information Act is a rights based enactment more akin to any other enactments safeguarding fundamental rights. As the statement of the object of the Act goes, democracy requires an informed citizenry and transparency of information. The Act encompasses basically two things, firstly, the right of a citizen to seek for information to which he is entitled under the provisions of the Act and the corresponding duty of the information officers to furnish such information and secondly, it leads to transparency in the government functioning.
10. The use of the Right to Information Act needs no elaborate reference as the very fact that such a right to get information has been recognised as a fundamental right. To put it precisely, the information supplied under the Act brings about transparency and accountability, both of which hold to reduce corruption and increased efficiency in governance and it also encourages participation of the people in a democracy. The need for right to information ensures people's participation, ensures principle of accountability, transparency, limiting the discretion powers given to officials, protects the civil liberties, effective and proper implementation of schemes of government and makes media more effective.
11. Though the Indian Constitution has no express provision guaranteeing the right to information, it has been recognized by the Courts in a plethora of cases as implicit in Article 19(1)(a), which guarantees to all citizens the right to free speech and expression, and Article 21 of the Constitution which guarantees the right to life in accordance with due process to all citizens. The background of the enactment will not be complete if the contribution of the Hon'ble Apex Court for the legislation is not mentioned. The Apex Court in the decision in State of U.P. v. Raj Narain, AIR 1975 SC 865, interpreted Article 19(1)(a) of the Constitution of India so widely so as to include so many rights within its sweeping shadow. One such right is the right to information. It is observed in the said judgment that "the right to know which is derived from the concept of freedom of speech, though not absolute is a factor which should make wary, when secrecy is claimed for transactions which can at any rate have no repercussion on public security." The Apex Court further observed that "the people of this country have the right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in its bearing." The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a), as observed by the Apex Court in S.P.Gupta v. Union of India, AIR 1982 SC 149.
12. In the Secretary, Ministry of Information and Broadcasting, Government of India v. The Cricket Association of Bengal, (1995) 2 SCC 179, the Apex Court, while considering the freedom of speech and expression in the light of the right to information, has observed that "freedom of speech and expression is basic to and indivisible from a democratic polity. It includes the right to impart and receive information." The Apex Court has also observed that "for ensuring the free speech right of the citizens of the country,it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues and a successful democracy posits an 'aware' citizenry."
13. The pride for enactment of the Right to Information Act would certainly go to the judiciary as could be seen from certain observations of the Hon'ble Apex Court in some of the judgments. The judgment in Union of India v. Association for Democractic Reforms, AIR 2002 SC 2112 is again a forerunner for recognising the right to information as a fundamental right and the said judgment laid the foundation over which the superstructure of the Right to Information Act, 2005 was built. In Peoples Union for Civil Liberties v. Union of India reported in (2004) 2 SCC 476, it was observed that- "Right of information is a facet of the freedom of 'speech and expression' as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right."
In another case in Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294, it was observed that the right to get information in a democracy is recognized all throughout and it is a natural right flowing from the concept of democracy".
14. The Apex Court in Indira Jaising v. Registrar General, Supreme Court of India, reported in (2003) 5 SCC 494, also took the same view and held-
"It is no doubt true that in a democratic framework free flow of information to the citizens is necessary for proper functioning particularly in matters which form part of a public record. The decisions relied upon by the learned counsel of the petitioner do not also say that right to information is absolute. There are several areas where such information need not be furnished. Even the Freedom of Information Act, 2002, to which also reference has been made, does not say in absolute terms that information gathered at any level in any manner for any purpose shall be disclosed to the public."
4. We may also refer to the judgment of the Apex Court in Bennet Coleman v. Union of India, AIR 1973 SC 60 holding that the right to information was held to be included within the right to freedom of speech and express guarantee under Article 19(1)(a) of the Constitution of India. We may also add that a line of judgments of the Apex Court cut across the freedom of privacy pleaded on the ground that such information, the disclosure of which has no relationship to any public activity or interest. In this context, we may also refer to the judgment of the Apex Court in R.Rajagopal alias R.R.Gopal and another v. State of Tamil Nadu and others, (1994) 6 SCC 632.
5. Keeping the above object of the Right to Information Act in mind, the issue raised has to be considered. On the one hand it is the contention of the appellant that inasmuch as the assets declaration by the I.A.S. Officers is mandatory in terms of Rule 16 of the All India Services (Conduct) Rules, 1968, the question of placing reliance on Section 8(1)(j) of the Act is erroneous. On the other hand, it is the contention of the Information Commission that the information as to the assets declaration relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of privacy of the individual. It is the further contention of the Information Commission that the information furnished in sealed cover is "held" by the Government, which has no access to such information, and therefore the question of either furnishing the information or making the access to such information is protected under Section 8(1)(j). For deciding the issue raised in this appeal, the following provisions of the Right to Information Act are referable and they read thus: "2.(f) "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.
2(j). "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.
8. Exemption from disclosure of information.--(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(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."
6. The above provisions should be read keeping in mind the laudable object of the Act for which it was enacted. The definition of "information" includes, among other things, any material in any form, records, documents, etc. That definition includes the information relating to any private body which can be accessed by a public authority under any other law for the time being in force as well. The information relating to any private body which cannot be accessed by a public authority under any other law for the time being in force cannot be termed to be information. By that provision, assets details of the government servants filed before the Government, though in sealed cover, cannot be said to be an information that could not be accessed by the Government. Our attention is not drawn as to any of the rules on this. What is "information which relates to personal information" is also a matter of debate depending upon the circumstances. In the event a member of public requests information about public servants, a distinction must be made between official information inherent to the position and those that are not which affect only the private life. Apparently, the balancing task to find out as to whether a particular information is a public information or an information relating to public duty is not that much easy. The balancing exercise necessarily depended on case to case basis on the following relevant considerations: (i)Whether information is deemed to comprise the individual's private details unrelated to his position in the organisation?
(ii)Whether the disclosure of personal information is with the aim of providing knowledge of the proper performance of the duties and task assigned to the public servants in any specific case? and
(iii)Whether the disclosure will furnish any information requires to establish accountability or transparency in the use of public resources?
An information relating to private duty which is not accessible by the public authority is an information as provided under Section 8(1)(j), that is a right of privacy. Nevertheless, if a government servant furnishes assets details to the Government and if he is accountable to file such assets details as required under the rules, such information relating to the assets cannot be considered to be public information which are inaccessible by the Government. Hence, the information relating to the assets declaration of I.A.S. Officers cannot be said to an information which could not be accessed by the public authority, as those informations are either no more confidential or private informations.
7. Likewise, the definition of "right to information" includes the right to information accessible under the Act which is "held" by or under the "control" of any public authority, which includes the right to inspection of work, documents, records. If both the definitions are read together, right to information is available in respect of information which are accessible under the Act which is held by or under the control of any public authority that includes the inspection of works, documents, records. In order to apply Section 8(1)(j), (i) the information must relate to personal information and (ii) the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of privacy of an individual. Nevertheless, a power is conferred on the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, to satisfy themselves that the larger public interest justifies the disclosure of such information. Therefore, even in case of personal information, in the event the authorities are satisfied that the larger public interest justifies the disclosure of such information, the information sought cannot be denied. The right to information which is recognised as a fundamental right cannot be denied on the ground that it is not accessible by the public authority, particularly no restriction for such accessibility is shown to us in the form of a rule. Hence, the reliance placed by the learned Judge on Section 8(1)(j) to reject the contention of the appellant cannot be accepted.
8. While considering the above, the learned Judge extensively quoted various judgments of the Supreme Court and found that the information sought for by the appellant relates to personal information and the disclosure of which has no relationship to any public activity or interest and ultimately, dismissed the writ petition. Nevertheless, when it was brought to the notice of the learned Judge that the Central Information Commission has passed an order that the assets details of I.A.S. Officers could be disclosed, it has been observed that as the copy of the order was not furnished, the Court was not in a position to go into that aspect. The learned Judge has denied the request of the appellant for the information on the ground that the information is not accessible to the public authority and therefore the appellant cannot compel the public authority to give that information. This reason shall not hold good, as the details of the assets declaration have already been hosted on the website. Equally the reason that the documents are confidential in nature is no more available for the State to contend in view of the subsequent event which we would be referring immediately.
9. Rule 16 of the All India Services (Conduct) Rules, 1968 mandates the member of the service to submit a return of his assets and liabilities to the Government. That apart, the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, New Delhi has issued a circular dated 4.4.2011, which reads as under:- "Subject : Submission of immovable property returns by IAS Officers for the year 2010 (as on 1.1.2011) Placing on the public domain reg.
As per Rule 16(2) of AIS (Conduct) Rules, 1968, all the members of the Service are required to submit their immovable property returns (IPRs) latest by 31st January every year. Vide this Department's circular of even number dated 22nd December, 2010, all State Governments and Central Ministries/Department were requested to forward immovable property returns of all IAS Officers for the year 2010 to the Department of Personnel and Training (DOPT) latest by 15th February, 2011. Subsequently D.O. letter were issued to all Chief Secretaries by Secretary, DOPT to forward the IPRs of all IAS Officers borne on their cadre latest by 26th March, 2011.
2. It has been decided that officers who do not submit the property return in time would be denied Vigilance Clearance and will not be considered for promotion and empanelment for senior level posts in Government of India. Government of India have also decided that the annual property return as on January 1, 2011 of members of All India Service and other Group 'A' Central Service Officers will be placed in the public domain.
3. Against this backdrop, it is once again requested that IPRs all IAS Officers working in the State Governments and Central Ministries/Dept., be forwarded to reach us positively by 5 P.M., on 20.4.2011.
4. The decisions of Government of India contained in para 2 of this circular may be brought to the notice of the officers concerned and they be requested to adhere to the time line indicated in para 3 above. The names of defaulting officers will be put up on the website of DOPT and action indicated in terms of the decision enumerated in para 2 of this letter. "
10. Placing reliance on this circular, the learned Special Government Pleader has submitted that as of now, the assets details of the IAS Officers in question are available on the website and therefore there is no impediment for the appellant to access those details and for that reason, the request of the appellant made in his application dated 12.2.2009 requires no consideration.
11. On the other hand, Dr.V.Krishna Ananth, learned counsel for the appellant would submit that after the order in the writ petition, the Central Government has directed the disclosure of the assets details by the I.A.S. Officers. The information hosted in the website has no authenticity, as such information is liable for hacking. The said information has also no evidentiary value. In view of the above change of circumstances, there cannot be any impediment for the Information Commission to allow the appellant to access the information sought for in his application. We find force in the above submission.
12. As regards the right of the appellant to seek for inspection of the assets details for the past five years preceding 2009 is concerned, we may point out that the details of the assets furnished, as furnished in the typed set of papers by the respondents, would not clearly indicate whether those assets details are in respect of the five years for the period between 2004 and 2009. The right of the appellant to have the inspection of the assets declaration cannot be now denied on the ground that they are personal informations, the disclosure of which has no relationship to any public activity or interest, as the same is no more available in the wake of the subsequent events, namely, the assets details have been hosted on the website. Hence, the order of the learned Judge rejecting the request of the appellant for inspection of the assets details of the I.A.S. Officers made in his application dated 12.2.2009 cannot be sustained. In this context, it must be noticed that the learned Judge refused to take into consideration the directions of the Central Information Commission to the I.A.S. Officers to declare their assets solely on the reason that the copy of the order containing those directions was not furnished before the Court.
13. The Government has many duties including accountability to the people and showing efficiency in governance. As has been classified, the efficiency in relation to the Government are administrative efficiency, policy efficiency and service efficiency. The administrative efficiency could be achieved only by transparency and access to the assets details documents furnished by its officers including I.A.S. Officers, though in sealed covers, to the applicant on his request. Disclosure of such information under the provisions of the Act will ensure the "culture of openness" rather the "culture of secrecy". If that is followed, a sound administrative system leading to efficiency and effectiveness could be achieved. It would further result in involving a better form of Government.
14. It also reminds us the following quote of the Father of the Nation Shri Mahatma Gandhi stating,
"the real Swaraj will come not by acquisition of authority by a few, but by the acquisition of the 'capacity' by all to resist authority, when abused".
We may also refer to the observations of Justice V.R.Krishna Iyer finding the source of information from Rig Veda. He referred to the following from Rig Veda as saying,
"let noble thoughts come to us from every side".
He also quoted the Bible as saying,
and ye shall know the truth, and the truth shall make you free".
15. For all the above discussions, we reject the contention that the assets details are held by the Government and cannot be made available to the appellant as untenable. Hence, the relief sought for in this writ appeal must be considered. Though the appellant would be entitled to the inspection of the assets details of the I.A.S. Officers furnished by them in sealed cover to the State Government, the application requesting the information with reference to the office cannot be ordered, as such information should be made with reference to the individual officer with specific request by naming him/her. In the event such request is made, the appellant would be entitled to the furnishing of such information, which includes the inspection of the assets details of the concerned officer. With these observations, the writ appeal is ordered accordingly. No costs.