RTI Judgement Series
RTI Judgement Series: Citizens must get info without citing any reason or credential check

The citizen needs to give no reasons nor are his credentials to be checked for giving the information. If the third party objects to giving the information, the PIO must take his objections and see if any of the exemption clauses of Section 8(1) apply. If none of the exemption clauses apply, information has to be given. This is the seventh in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application

 
The Public Information Officer (PIO) is obliged to provide information sought under the Right to Information (RTI) Act. Under this Act, providing information is the rule and denial an exception and the citizen needs to give no reasons nor are his credentials to be checked for giving the information. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner ratified that information, which cannot be denied to the Parliament or a state legislature, shall not be denied to a person.
 
“Any attempt to constrict or deny information to the Sovereign Citizen of India without the explicit sanction of the law will be going against the rule of law. If the third party objects to giving the information, the PIO must take his objections and see if any of the exemption clauses of Section 8(1) apply. If any of the exemption clauses apply, the PIO is then obliged to see if there is a larger public interest in disclosure. If none of the exemption clauses apply, information has to be given,” the Central Information Commission (CIC) said in its order issued on 27 February 2009.
 
Delhi-based Mahesh Kumar Sharma has asked the Delhi Jal Board for certified copies of the documents submitted by Zile Singh for getting a water connection number 62261K sanctioned on 7 August 2000. The PIO, considering this a third party case, sought no objection certificate from Zile Singh. However, instead of Zile Singh, one Archana Sharma and Rakesh Kumar Sharma sent the reply stating that they did not want to disclose any information regarding above property to anyone including Mahesh Kumar Sharma.
 
Ms Sharma sent a second letter requesting “not to give or allow any details through certified copies, uncertified copies of personnel inspection about the property B-497, where the water connection was provided and which she had purchased from Zile Singh.”
 
The PIO therefore denied the information to Mahesh Kumar, who then approached the First Appellate Authority (FAA). He told the FAA that he is also son of Zile Singh who is dead. Here, instead of considering and dealing with his application under the provisions of the RTI Act, the FAA “has chosen to give gratuitous advice of how RTI should be used,” the Commission noted.
 
During the hearing before the Commission, the PIO contented that the information sought by the appellant (Mahesh Kumar) has no relationship to public interest and the credentials of the information-seeker must be ascertained. The PIO also contended that the information is provided by the consumer in a fiduciary relationship and hence cannot be given.
 
Section 3 of the Act defines the purpose of the Act very succinctly:
‘Subject to the provisions of this Act, all citizens shall have the right to information.’
 
“With a great economy of words this section is perhaps the most important section of the RTI Act, 2005. The Sovereign Citizen of India has the right to access all information since he owns it, and this right may be curtailed only by the limited provisions of this Act,” the CIC said.
 
In his order, Mr Gandhi, the CIC said, “It will be important to note that in sub-section 1(b)(xii) & (xiii), the Act mandates that public authorities will suo moto declare details of beneficiaries of subsidy programmes as well as particulars of recipients of concessions, permits or authorisations granted by it.”
 
Section 6(2) states, ‘An applicant making a request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’
 
Section 8(1) specifies the information which is exempted. The relevant provisions in this case are, ‘Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;  and
(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’
 
Parliament has clarified the exemptions of Section 8(1) with the proviso,
‘Provided that the information, which cannot be denied to the Parliament or a state legislature shall not be denied to any person.’
 
With this sentence Parliament has recognized that the individual citizen—the sovereign of this democracy—gives it legitimacy, and therefore its right to get information cannot exceed the right of its master, the Commission said.
 
Mr Gandhi said, even if the exemptions of Section 8(1) apply in a particular matter, if there is larger public interest, information shall be disclosed. “It is useful to comment here that an applicant does not have to show any public interest for disclosure of any information, unless a specific exemption under Section 8(1) is established,” he said.
 
The Commission said, in this matter, where the information belongs to late Zile Singh and not to Archana Sharma, who has objected. Mahesh Kumar claims to be son of Zile Singh, which is contested by third party (Ms Sharma). However, the Commission said it does not find it necessary to rule on these matters.
 
In the case, the third party invoked the protection of Section 8(1)(e) of the RTI Act. The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship.
 
“In the instant case a key element of the relationship between the applicant for a water connection and the Delhi Jal Board certainly cannot be said to be primarily of trust by the applicant in the Public authority, nor can it be said that the information was given for the benefit of the giver. The information was provided to get an authorization for a water connection,” the Commission said.
 
Under Section 8(1)(j) information which has been exempted is defined 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.”
To qualify for this exemption the information must satisfy the following criteria:
1. It must be personal information.  
   
The Commission said, “In common language we would ascribe the adjective ‘personal’ to an attribute which applies to an individual and not to an Institution or a Corporate. From this it flows that ‘personal’ cannot be related to institutions, organisations or corporates. Hence we could state that Section 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates.”
 
Where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. However, the concept of ‘privacy’ is related to the society and different societies would look at these differently. India has not codified this right so far, hence in balancing the Right to Information of Citizens and the individual's Right to Privacy, the Citizen's Right to Information would be given greater weightage, Mr Gandhi noted in the order.
 
He said, “...we can accept that disclosure of information which is routinely collected by the public authority and routinely provided by individuals, would not be an invasion on the privacy of an individual and there will only be a few exceptions to this rule which might relate to information which is obtained by a public authority while using extraordinary powers such as in the case of a raid or phone-tapping.”
 
“If the third party objects to giving the information, the PIO must take his objections and see if any of the exemption clauses of Section 8(1) apply. If the any of the exemption clauses apply, the PIO is then obliged to see if there is a larger Public interest in disclosure. If none of the exemption clauses apply, information has to be given,” the Commission said.
 
The Commission disallowed the third party’s objections made about the exemptions of Section 8(1)(e) & (j) and asked the PIO to provide the information before 15 March 2009.
 
CENTRAL INFORMATION COMMISSION
 
Decision No. CIC /AT/A/2008/01262//SG/2109
 
Appeal No. CIC/AT/A/2008/01262/
 
 
Appellant                                                            : Mahesh Kumar Sharma,            
                                                                                      Delhi -110034.
                                                                     
Respondent 1                                                    : PIO,
                                                                                      Delhi Jal Board,
                                                                                      Govt. of NCT of Delhi.
                                                                                      Varunalaya Phase - II, Jhandewalan
                                                                                      Karol Bagh,
                                                                                      New Delhi-110005. 
 

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COMMENTS

SUJIT KATYAL

4 years ago

Hon. Shailesh Gandhi has done yeoman service for India.

Lok Sabha approves changes in Debt Recovery Bill amid walkout

The Bill seeks to convert any part of debt into shares of defaulting company by the asset reconstruction Company

 
New Delhi: The Lok Sabha on Monday approved an amendment bill to make easier recovery of bad loans by banks amid walkout by the Bharatiya Janata Party (BJP), Left and some other parties after the government rejected their demand for referring it to the Standing Committee, reports PTI.
 
The Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Bill, 2011, which was approved by voice vote in the Lower House, seeks to convert any part of debt into shares of defaulting company by the asset reconstruction Company (ARC).
 
The Bill was introduced in Lok Sabha in December 2011.
 
While the opposition demanded that the bill be referred to the Standing Committee for scrutiny, Finance Minister P Chidambaram said when the bill was introduced last year the Speaker decided against referring it to the Parliamentary committee.
 
Referring it to the committee now would delay the process further, he said, adding the then minister wanted it to be passed without delay as amendments were of technical nature.
 
"The bill was introduced in 2011 and should not be referred (to Standing Committee) now after 12 months...It would defeat the very purpose the bill. In the interest of banking sector, it is necessary to pass the bill in 2012," he said, adding the move would quicken the process of loan recovery.
 
On the issue of rising non-performing assets (NPAs) of banks, Chidambaram said the banking sector is well regulated and the gross NPA, which is around 3.5% of total loans, was not high and the situation would improve with economic recovery. 
 
Chidambaram said, "Because of stress in economy, several sectors are not doing well. So gross NPAs has risen. Efforts are to ensure that these sectors come out of difficulty. We must do some handholding to them to bring them out of stress."
 
Dismissing concerns of members that the bill was against farmers and small borrowers, he said the Debt Recovery Tribunal (DRT) law deals with only those persons who had borrowed in excess of Rs10 lakh.
 
He said that in order to promote financial inclusion, the banks are opening branches at the rate of 20 per day.
 
Chidambaram said RBI lays down guidelines for ARCs and 64,000 cases are pending before the DRT and that is why it was necessary to limit the number of adjournments to six.
 
Ideally, he said, these cases should be disposed of in one or two hearings as these are well documented.
 
Responding to allegations of members that banks refrain from taking actions against large corporates like Kingfisher, Chidambaram said no favour is being shown to anyone and law is taking its own course.
 
He said tax authorities have taken severe action in attaching property and banks have not given any fresh loan to them.
 
On concerns of allowing 49% FDI in ARCs, Chidambaram said permission was given by RBI in 2005 for foreign investment as domestic companies did not have any experience in setting up this business.
 

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SEBI allows 12 more alternative investment funds

Since October, 12 AIFs like India Realty Fund, Dar Mentorcap Film Fund, Capaleph Indian Millennium Small & Medium Enterprises Fund and Capaleph Indian Millennium PE Fund have registered with SEBI

Mumbai: Market regulator Securities and Exchange Board of India (SEBI) has allowed 12 entities to set up alternative investment funds (AIFs), a newly created class of pooled-in investment vehicles for real estate, private equity and hedge funds, in the last two months, reports PTI.

 

The 12 AIFs that have been registered with SEBI since 10th October included India Realty Fund, Dar Mentorcap Film Fund, Capaleph Indian Millennium Small & Medium Enterprises Fund and Capaleph Indian Millennium Private Equity Fund.

 

SEBI had already allowed nine AIFs to set up shops in the country. As on August 31, 2012, a total of 20 applications were pending with SEBI for registration as AIFs.

 

The regulator had notified in May this year the guidelines for a new class of market intermediaries named AIFs, which are basically funds established or incorporated in India for the purpose of pooling in of capital from Indian and foreign investors for investing as per a pre-decided policy.

 

SEBI in August decided that the promoters of listed companies can offload 10% of equity to AIFs such as such as SME Funds, Infrastructure Funds, PE funds and Venture Capital Funds registered with the market regulator to attain minimum 25% public holding.

 

Under SEBI guidelines, AIFs can operate broadly in three categories. The SEBI rules apply to all AIFs, including those operating as private equity funds, real estate funds and hedge funds, among others.

 

The Category-I AIFs are those funds that get incentives from the government, SEBI or other regulators and include Social Venture Funds, Infrastructure Funds, Venture Capital Funds and SME Funds.

 

The Category-III AIFs are those trading with a view to make short-term returns and include hedge funds, among others.

 

The Category-II AIFs can invest anywhere in any combination but are prohibited from raising debt, except for meeting their day-to-day operational requirements. These AIFs include PE funds, debt funds or fund of funds, as also all others falling outside the ambit of two other categories.

 

Among other registered AIFs in the last two months are-- Edelweiss Stressed & Troubled Assets Revival Fund Trust, IIFL Private Equity Fund, IIFL Opportunities Fund, IIFL Venture Fund, Quant First Alternate Investment Trust, Fulcrum Venture India Trust, Kedaara Capital and Arcus Opportunities Fund.

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