Arvind Kejriwal v. Union of India

(c) information, the disClosure of which wpuJd.cause a breach of privilege of Parliament or the State Legislature;

(d) information inCluding cotrlmercial confidence, trade secrets. or. intellectual property, the disclosure of which wbuld harm the competitive position of a third party, unless the CQ.mpetent authority is satisfied that larger publi~ interest warrant~ the disclosure of s_uch Information; (~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; (f) information received m confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of infbrmatibn or·... assistance given in confidence for law enforcement or security purposes;, ' (h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministef;s, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public aft,~r 'the decision has been taken,.and the matter is· complete, or over: LPjt 719/10, l-91/11 & 292/11 Page 5 of27 ' ' • Provided further that those matters which come under the exemptions specified in this· section shall not be disclosed; (j) information which relates to personar. 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 Cen'tral 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 ·otth·e exemptions permissible in accprpance with sub-section (1 ), a public authority may allow access to information, if public Interest in disclqsur~ outweighs the harm to the protected interests: (3) Subject to the provisions of clau~es (a), (c) and (i) af sub-section (1 ), any information relating to any ·occurrence, ev.ent or matter which has taken place, occurred or happened twenty years before the date on which any request is made ·under secton 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 the said period of tyventy years has to be computed, the decision of the Central Government sh,all be final, subject to the usual appeals provided for in this Act" xxxx. "11. Third party information.- LPA 719/10, 291/11 & 292/11 Page 6 of27,' (1) Where a Central Public Information qtticer. or a State P.ublic. Information Officer, as the: case may be, -intends to disclose any. information. or record, or. part ther~of on a request made under this Act, which ~relates to or has been supplied by a third party:and has been treated as confidential.by that third party, the Central Public Information Officer or State Public lnfo·rmation Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party·of the request and of the fact that the CentraJ Public lfiformatio'n 0fficer or State Public lriformation Qfficer, as the case may be, intends to disclose the information or record; or part· thereof, and invite the third party to make a submission in writing ·or orally, regarding whether the information should be disclosed, and such submission of. the third. party shall be kept in view ·while taking a. decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed i.f the public interest in disclosure outweighs in Importance any possible.harm or injury to the interests·of such th.ird party. (2) Where a notice is served by the Central. Public Information Officer or State Public.Information Officer, as the case may be, under; sub-section (1) to a third party in respect of. any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against I the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after t.PA }19/10, 29~/11 &' 292/11 Page 7of27,' parties, marks obtained in a exam, admissions or even informa~ion which is qlready in public domain would attract the procedure stipulated 1n section 11 unless the word "or" is read as "and". It is submitted that in such cases, notices will ha'<e to be.: ' '·' issued to,third parties who may be spread all ave( India and this process itself may take days, if not months to be completed. Dealing with objections raised, in regard to the abo~ementioned procedure, would also make the Act tedious, result in procedural difficulties a~d delay furnishing of information and is therefore contrary to the legislative intent.

7. The word 'or' is normally disjunctive and the wo"rd 'and' is conjunctive. However, there have been occassions when the courts have interpreted and· read them vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. H is permissible to read word 'or' as 'and' and vice versa, if the legislative intent is clearly spelt out or some other part of the statute, requires such interpretation (See Principles of Statutory Interpretation of G.P. Singh, ·11h edition at page 455)... In this context, we may reproduce the following passage from the Municipal Corporation of Delhi vs. Tek Ghand Bhatia, AIR 1980 SC 360, wherein it has been held as under:- 1-PA 719/10, 291/11 & 292/11 Page 9 of27 "11.... It should also be noted that these qualifying adjectives cannot be read into the last portion of the definition i.e. the word' "or is otherwise unfit for huma~ consumption", · which is quite separate and distinct from others. The word "otherwise" signifies unfitness for human consumption due to other causes. If the last portion ·is meant to mean something different, it becomes ·difficult to understand how the word ''or" as used in the deHnition of "adulterated" in · · Section 2(j)(f) between "filthy, putrid, rotten · ~etc." and "otherwise unfit for human. consumption" could have been intended to be· used conjunctively. It would be more appropriate in the context to read it disjunCtively. In Stroud's Judicial Dictionary, 3rd Edn., Vol. 1, it is stated at p. 135: "'And' has generally a cumulative sense, · requiring the fulfilment of all the conditions that it joins tpgether, and herein it is the. antithesis of 'or'. Sometimes, however, even in such a connection, it is, by force of a context, read as 'or'." While ctealihg with the topic '.OR is read as AND, and vice versa', Stroud says in Vol. 3, at p. 2009: "You w~JI fi'nd it said in some cases that 'or' means 'and'; but 'or' · never does mean · 'and'." Similarlv, in Maxwell· on Interpretation of Statutes, 11th·Edn., pp. 229~30, it has been accepted that "to carry out the. intention of the legislature,· it is occasionally found ~. necessary to read the conjunctions 'or' and · 'and' one for the other". The word "or" is normally disjunctive and "and" is normally conjunctive, but at times they are read as vice versa. As· Scrutton, L.J. said iri Green v. Premier G/ynrhonwy State Co.: "You do sometimes· read "or" as "and" in a statute..".. But you do not do it unless you are obliged, because "or" does not generally mean "and" LPA 719/10, 291/11 & 292/11 Page 20 of27 \l / 8. and "and" does not generally mean "or". As Lord Halsbury L.C. obs!erved in Mersey Docks & Harbour Board v. Henderson--the reading of "or" as "and" is ri.ot to be resorted tQ "unless some othe'r part of the same statute or the, clear intention of it requires that to be done". The s.ubstitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of the cases of turning "or'' into "and" and vice versa have.not gone to the extreme limit of interpretation." Similarly, in Competition Commission of India vs. Steel Authority of India Ltd. and Anr.. (201 0) 10 SCC 744, it has been held as under:-

LPA '?-19/!1.0, 291/11 & 292/11 Page 11 of27 2011:DHC:16899-DB. ' "11..... As Lord Halsbury L. C. observed 1r[1] Mersey Docks & Harbour Board v. Henderson Bros. (AC at p. 603) the reading · of 'or' as 'and' is not to be resorted to 'unless some other part of the same statute or th.e clear intention of. it requires that to be· done'. The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of the cas~.s of turning 'or' into 'and' and vice versa have not gone to ·the extreme limit of interpretation."

9. The question, therefore, arises as to what is the leg.islative intent behind Section 11. The answer in regard the legislative intent is clear and reflected in the proviso which spells out the parameters when third party information can be furnished or denied to the information seeker. The said proviso has to be read with along with the exemptions which have to be provided in Section 8 specially Section 8(1 )U) which permits denialidisclosure of personal information which has no relationship with any public activity or interest; or which causes unwarranted invasion of pnvacy of an individual unless larger public interest justifies. disclosure of. such information. The proviso to Section 11 (1) states that the confidential information except in cases o! trade or commercial secrets protected by law, shall be.disclosed if public interest in.disclosure outways any possible harm or i.njury to the. interest of the third party: The proviso as well as S~cti.on 8(1 )(j) LPA 71!!/10, 291/11 & 292/11 Page 12 of27 •• nequlres balancing of two conflicting rights i.e. right to infqrmation "nd the r[.ght to confidentiality. or privacy. Reference can also be made,to s~ction 8(1 )(e) of the Act in thi·s regard. Thus in such cases, which of the two conflicting right has to be giyen primacy depends upon larger public interest. This is the test which has to · ·' ' be applied.

10. This view which we have taken finds echo and concurrence in People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 sec 399, wherein.it was opined:-..

law imposes Jeasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendfy relations wi'th the foreign States, public order, decency or morality or in relation to contempt of court, · defamatio·n or incitement of an offence. The gro~nds upon which reasonable restrictions LPA 719/10, 291/11 & 292/11.. 11' can be placed upon the freedom of speech and expression are designed firstly to ·.. ensure that the:said right is not exercised in. such a manner as to threaten · the sovereignty and inte.grity of India, security of the State, friendly relations with the foreign States, public order, decency or mora~ity. Similarly, the said right cannot be ·so exercised as to amount to contempt of court, defamation or incitement of an offence. Existing laws providing such restrictions are. saved and the State is free to make laws in 'future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring and maintaining conditions in which the ·said right can meaningfully and peacefully be exercised by the citizens of this country."

70. Hence, in our view, right of a voter·to ·know the biodata of a candidate is the foundation of democracy. The old dictum let the people have the truth and the freedom to discuss it and all will go well with the Government- should prevail.

71. The true test for deciding the validity of the Act is - whether it takes away or abridges fundamental rights of the citizens. If there.is direct abridgement of the fundamer1tal right of freedom of speech and expression, the law would be invalid." In Central Board of Secondary Education versus Aditya Bandopadhyay CA No. 6454 of 2011 decided on gth ·August 2011, the Supreme Court has held:

LPA 719/iO, 291/11_& 292/11 Page 14 of27 and exceptions (under sections 8, 9 ·an.d 24) in regard to information held by public authorities:.

(i) Exclusion of the Act ·in entirety under section 24 to intelli'gence and. security organizations specified ifl the Second Schedule even· though they may be "public authorities", (except in regard to information ·with reference to allegations of corruption and human. rights violations).

(ii) Exemption · of the several categories of. information enumerated in section. · 8(1) of the Act which no public authority is u·nder an obligation to give to any citizen, notwithstanding anything contained in the Act [however, in regard to the information exempted under clauses (d) and. (e); the con:'petent authority, and m regard to the information excluded under clause U), Central Public Information Officer/State Public Information Officer/the Appellate Authority, may direct disclosure of information; if larger public interest warrants or justifies the disclosure].

(iii) If any request for providing access to information involves an infringement of a copyright subsisting in a person other than the State, the Central/State Public Information Officer. may reject the request under section 9 of RTI Act. Having regard to the scheme of the RTI Act, the right of the citizens.to access any information held or under the control of any public authority, should be read m LPA 719/10, 291/11 & 292/11 Page 15 of27 harmony with the· exclusions/exemptions in the Act. ·xxxx

33. Some High Courts·,have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which 1s a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for pres~rving democracy. One is to bring ab~ut transparency and accountability by p-roviding access to' information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with.other public interests which include efficient operation of the governments: optimum use · of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to · the Act specifically states that the object of the Act is to harmonise these two conflicting· interests. While sectio,ns 3 and 4 seek to a_chieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information,. but as an · equally important provision protecting other public. interests essential for the J ' LPA 719(10, 291/11 & 292/11 Page '1.[6] of27 • fulfilment and preservation of democratic ideals.

34. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations ·of the governments,.preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it, is difficult to visualise and enumerate · all types of information which r.equ1re to be exempted from. disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts· and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the · Act, while interpreting section 8 and the other provisions of the Act. xxxx

37. The right to information is a cherished right. Information and right to information are intended to be formidable tools 1n the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions· of RTI Act should be enforced strictly and all efforts should be made to bring.to light the. necessary information under clause (b) of s~ction 4(1) of the Act which. relates to securing LPA 719/10, 291/11 & 292/11 Page 17of27 ·~-----------~---·transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than · those ·enumerated m section ·4(1 )(b) and

(c) of the Act), equal · importance and emphasis are g1ven to other public interests (like confidentiality of.· sensitive information, fidelity and.fiduciary relationships, effiCient operation, of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and a~countability in. the. functioning of public.authorities and.. eradtQation of corruption) would ·· be courttr-productive as it will adversely affegjJhe efficiency of the administration and:"tesult in the executive getting boggjd down with. the nonprod!ftive work of collecting and furni~tling information. The. Act shou,f~ not be allowed to be misu.ed or abused, to become a tool to obstruct the · national. devefppment and integration, or to destr~~y the peace, ·tranquility · and -harmJ:?ny among its citizens. Nor should it be converted into a tool of oppraf3si'on or intimidation of honest.officials str.iving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities·. spends · 75% of their time m collecting.and furnishing information to applicants instead of discharging · their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to · employees of a public LPA 719/10, 291/11 & 292/11 --------~ · - - 2011:DHC:16899-DB. J authorities' prioritising 'information furnishing', at the cost pf their normal· and regular dutie$." [Emphasis supplied]

1.2. Section 11 (1 ), (Q), (3) and (4) are the procedural provisions which have to be complied with by the PIO/appellarit authoritl, when they are required to apply the said test and, give a finding whether information should be disclosed or not disclosed. If the said aspect is kept in mind, we feel there would be no difficulty in interpreting· Section 11 (1) and the so. called difficulties or impartibility as pointed out by the appellant will evaporate ar..~· 1 lose significance.. This will be also in consonance with th~ primary rule of i'nterpretation that the legislative intent is to be gathered from language employed in a statute which is normally the determiping factor. The presumption is that the legislature has stated what it intended to stat~ and has made no mistake. (SEE' Prakash Nath Khanna vs. CIT, (2004) 9 SCC 686,· and several judgments of Suprem.e Court cited in B. Premanand and Ors. vs., Mohan Koika~ anq Drs., (2011 ).[4] SCC 266).

13. Read in this manner, what is stipulated by Section 11 (1) is ! that when an information set:;ker files an application w~ich relatf.0 · to or has been supplied by third party, the PIO has to· examine whether the said information is treated as confidential or can be LPA 719/10, 291/11 & 292/11 Page 19 of27 treated as confidential by the third party. If the answer is in the possible sphere of affirmative or "maybe yes", then the procedure ' • > •.;.....:. prescribed in Section 11 ha·s to be followed for determining... whether the larger public interest require$ such disclosure. When information per se or ex·facie cannot be regarded as confidential, I then the procedure under·section 11 is not to be followed. All information relating to or furnished by a third party need not be J confidential for various reasons jncluding the factum that it is already in public domain or in circulation, right of third party is not affected or by law is required to be disclosed etc.. The aforesaid I interpretation takes care of the difficulties visual"ised by the appellant like marks obtained in an examination, l.ist of BPL families, etc. In such cases, normally plea of privacy or confidentiality does not arise as the said list has either been made.. public, available in the public domain or has been already circulated to various third parties. On the other hand, in case the word 'or' is read as 'and', it may lead to difficulties and problems, •, including invasion of right of privacy/confidentiality of a third party. For example, a public authority may have in its records, medical reports or prescriptions relating to third persqn but which have not been supplied by the third person. If the interpretation given by the appellant is accepted then such information cah be. disclosed ' LPA 719/10, 291/11 & 292/11 Page 20 of27 to the information seeker without following the procedure prescribe~ in Section 11 (1) as th~ information was not furnished or supplied by the third pe~son. Such examples can be multiplied, Furthermore, the difficulties and anomalies pointed out can even arise when the word "or" is read as "and" in cases where the information is furnished by the third party. For example, for being enrolled as ·a BPL family, information may have been furnished by the third party who is in the list of BPL families. Therefore, the. reasonable and proper manner of interpreting Section 11 (1) is to keep in mind the test sfipulated by the proviso. I~ has to be examined whether information can be treated and regarded as being of confidential nature, if it relates to a third party or has, been furnished by a third party. Read in this manner, when information relates to a third party and can be prima facie regarded and treated as confidential, the procedure under Section 11 (1) must be followed. Similarly, in case information ha~ been provided by the third party and has been prima faci~ tre?ted by 'I -the said third party as confidential, again the procedure prescribed under Section 11 (1) has to be foliowed.

14. · It may also be noted here that in Central Board of Secondary Education (supra), the Supreme Court has drawn a !.PA 719/10, 291/11 & 292/11 Page 21 of27 • distinction between different categories of information. The first category is information which promotes transparency and accountability in the working of every public authority, disCiosu~e of which may help in cortaining or discouraging corruption. Such ' information is enumerated ·in clauses {b) and (c) of Section 4(1) of the Act. Second category of jnformation is information held by the public authority but not covered or falling under clauses (b) and

(c) of the Act. The last category is information which is not held by or under the control of public authority and which· cannot be accessed by a public authority. The Supreme Court has held has under:- "31..... Information under the third category does not fall within the scope of RTI Act. Section 3 of RTI Act gives every citizen, the. right to 'information' held by or under the control of a public authority, which falls either under the ·first or second category. In regard to the information falling under the first category,. there is also a special responsibility upon public authorities to suo mota publish and disseminate. such information so that they will_ be easily and readily accessible to the public without any need to access them by having recourse to section 6 of RTI Act. There is no such obli'gation to publish and disseminate· the other information which falls under the second category. LPA 719/10, 29J./11 & 292/11 Page22 of27 ------------·------·- -- ·-. ---consisting o.f two or more. p.ersons constituted as its part or for the purpose of its advice, and· as to whether meetings of those boards, councils,. committees and other bodies are open to the public, or the minutes of such · meetings are accessible for public;

(ix) a directory of · its officers and employees;

(x) the monthly remuneration received by each of its officers ·and employees, including the. system of compensation as provided in its regulations;

(xi) the budget allocated to each of its · agency, indtcating the particulars of all plans, proposed· expenditures and reports on disbursements made; ~ >si.i). the manner of execution of s,ubsidy programmes, including the amounts allocated ·and the details of beneficiaries of such prqgrammes; (xiri) particular~ of concessions, perrr-lits or. granted by it; recipients of authorisations

(Xiv) details in respect. of the information, available to ·· or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining information, including the wdrking hours of· a library or reading roo'm, if maintained for public use;

(xvi) the names, designations and other. particulars. of the Public

32. The information falling under·. the first category, enumerated in. sections 4(1 )(b) & (c) of RTI Act are extracted below: "4. Obligations of public authorities.-(1) Every public authority shall-- (a) xxxxxx· (b) publish within one hundred and twenty days from the enactment of this Act,- -(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iv) the norms set by it for the discharge qf its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by i.ts employees for discharging its functions;

(vi) a statement of the categories of documents that are held by it or under its control;

(vii) the particulars of any arrangement that exists for consuitation · with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;.

(viii) a. statement councils, committees of the boards, and other bodies

LPA 719/10, 291/11 & 292/11 Page23 of27 '~ ',-_./ \ __ ' (:X:vii) such other. information as may be prescribed; -· and thereafter update these publications every year;

(c) publish, formulating announcing the public; all relevant facts while important policies or decisions ·which affect 1~5..· Section 11 also ensures that the principles of rrtatur~J· justice are $Omplied with. Information which is confidential, reh:~ting to a thir<t'· party or furnished by a third party, is not furni~h~ to the information ~eeker without notice or without hearing the third party-'s point.of view. A third party may have reaso~s, grounds ¢ I ~ • • ' { I <md explanation as. to why the information sho9ld not be furnished, which may not be m the knowledge of the ' PIO/appellate ·authorities or available in the records. The '. information seeker is not required to give any reason why he has made an application for jnformation. There may be facts,. causes or reasons unknown to the PIO or the appellant authority which may.justify and require den·ial of information. Fair and just decision is the essence of natural justice. Issuance of notice and giving an opportunity to the third party serves a salutary purpose and ensures that there is a fair and just decision. In fact issue of notice to a third party may in cases curtail litigation and complications that may arise if information 1s furnished without LPA 719/10, 291/11 & 292/11 Page 25 of27 2011:DHC:16899-DB. _, hearing the third party concerned. Section 11 prescribes a fairly strict time schedule to ensure that the proceedings are not delayed.

16. Thus, Section 11 (1) postulates two circumstances when the procedure has.to be followed. Firstly when the information relates to a thir·d party and can be prima fa'Cie regarded as confidential as it affects the right of privacy of the third party. The second situation is when information is provided and given· by a third party to a public authority and prima facie. the..third party who has -· provided information has treated and regarded the said information as confidential. "The prodecure given in Section 11 (1) applies to both cases.

17. The learned single Judge ·in the impugned decision has. dealt with and interpreted aspect of annual confidential reports. ' ' a_nd other factual aspects including the fact that inspection of several files has been allowed to the appellant ~nd wlrlat the ' appellant is to~ay seeking.is merely the gradings. We would not ·like to comment on any of these aspects or issues as they were not specifically argued by either side. As noticed above, the matter has been remitted for fresh decision by the CIC. · The observation made in the present appeal should not be construed LPA 719/10, 291/11 & 292/11 Page 26 o/27 as binding findings on any of. the said aspects. We have interpreted se·ction 11 of the- Act and the observations made · above are in that context. The appeals are accordingly disposed -of. No costs are awarded. -· Hz September 3o, 201 f kkb --- LPA 719/10, 291/11 & 292/11 '~ ~ ·!1~~. (SANJIV KHANNA)_ JUDGE·. ( DIPAK MISRA)