The Central Public Information Officer v. A K Jain

3. Furthermore, it is also worth to mention here that as per Section 22 of the RTI Act 2005, it has overriding effect on any other law for time being in force or in any instrument having effect by virtue of any law other than this Act. Thus, it may be legally inferred that respondents are under legal obligation to respond the appellant's RTI application dated 26.02.2014 in the light of provisions of RTI Act 2005 and, plea taken by the respondents under Regulation 21 of the Consumer Protection applicable here.

4. The Commission heard the submissions made by respondents at length. The Commission also perused the case-fie thoroughly specifically, nature of issues, called by the appellant in his RTI application date 10.12.2014, respondent's response dated 31.12.2014, FAA's order dated 06.02.2015, other material made available on record and also the grounds of memorandum of second appeal.

5. The Commission is of the considered view that appellant has been deprived by the respondents deliberately from having the benefits of the RTI Act 2005, even after lapse of more than ten months period. Thus, the respondents have defeated the very purpose of the RTI Act, 2005 for which it was legislated by Parliament of India. As such, the Commission feels that appellant’s second appeal, deserves to be allowed in toto.

6. In view of the above, the respondents are hereby directed to provide the complete and categorical information issue-wise, to the appellant as per this RTI application, in accordance with the provisions of RTI Act, 2005, within 80 days from the date of receipt of this order under intimation to this Commission, if need be, Section 5(4) of the RTI Act 2005 may also be invoked in the matter. The Appeal is disposed of accordingly, Sd/- (M.A. Khan Yusufi) Information Commissioner” That brings the CPIO, NCDRC before this Court seeking setting aside of the aforenoted order.

3. On 6th April, 2016, this Court issued notice and stayed the operation of the Impugned order. Despite efforts, none appeared on behalf of Respondent. In these circumstances, on 12th October, 2023, Mr. Gautam Narayan was appointed as the Amicus Curiae to assist the Court.

FACTS AND CONTENTIONS PRESENTED BY PETITIONER:

4. Mr. Vidhur Mohan, counsel for Petitioner, submits as follows: 4.[1] Regulation 21 and 22 of the Consumer Protection Regulation, 2005[8] restricts the provision or inspection of the requested documents sought by the Respondent. 4.[2] CIC has erroneously held that Section 22 of the RTI Act shall have an overriding effect and as such, the information sought, cannot be withheld by relying upon Regulation 21 of the CPA Regulations. To elaborate, the CPA Regulations have been framed in exercise of powers under section 30A of the Consumer protection Act,1986 with prior approval of the Central Government. Therefore, Regulation 21 & 22 framed under Section 30A of the CPA, governs the manner in which the certified copies of the cases have to be provided.

4.3. The Supreme Court in Bharat Sanchar Nigam Limited vs. Telecom “CPA Regulations” Regulatory Authority of India,[9] has held that the power to regulate would include the power to prohibit. The proceedings before the consumer fora is judicial in nature and thus, in order to maintain right of privacy of parties, Regulation 21 and 22 of the CPA Regulations prohibit inspection and supply of certified copies of judicial records to third parties.

4.4. This Court in Inderjeet Singh vs. Central Public Information Officer10 interpreted Regulations 21 and 22 of the CPA Regulations and held no third party can inspect the record of any decided petition/ revision petition/ review petition, etc. The validity of the said Regulations cannot be questioned in proceeding under the RTI Act.

4.5. The right to information is not absolute right and is subject to exemptions under section 8 of the Act. Thus, Section 22 is subject to Section 8(1) (b) and (j) of the RTI Act which has not been considered in the impugned order.

4.6. The information ought to have been denied under Section 8(1)(j) of the RTI Act as the information sought by the Respondent-Mr Jain is ‘personal information’. NCDRC deals with cases wherein the parties, through their pleadings and documents, share sensitive information and therefore giving free access to all such information could at some point of time, amount to a breach of Right to Privacy. This would occur as anyone can then seek information which is totally personal to the parties. Such unauthorized use of information can then have serious repercussions for such parties. Reliance is also placed on the judgment of the Supreme Court in Supreme Court of India v. Subhash Chandra Agarwal,11 to point out that in the said ruling, the Court held that the CPIO/ CIC while deciding an application under RTI Act should examine the right sought to be exercised and information asked for, should fall within the scope of ‘information’ and ‘right to information’ under the RTI Act. Section 8 provides for a qualified exemption from such disclosure where the information relates to “personal information” and disclosure of which has no relationship to any public activity; or interest; or disclosure of such information would cause an unwarranted invasion of the privacy. There can be instances where such information is known to be misused. To illustrate the said dangers associated with allowing for inspection of court records, the following example is cited: “In a dispute between a consumer and a service provider which provides services related to digital healthcare and interoperability of different hospitals, doctors and patients; the service provider in such proceeding may disclose its working ecosystem, patient data, health records, data related to hospitals and the inventory of the hospitals, etc.. Such information, which also falls in the category of ‘personal information’, if provided to any person claiming to be affected by any dispute pending before the Ld. Tribunal may misuse the same. Hence any information received by the Ld. NCDRC, either in form of pleadings or otherwise, cannot be allowed to be circulated under the RTI Act as the same would prejudice the interest of the parties to the dispute”

4.7. Regulation 20 and 21 of the CPA Regulations prohibits inspection of requested documents.

4.8. Section 8(1)(b) of the RTI Act specifically states that if any court of law or Tribunal has expressly forbidden the dissemination publication of information, then the same would exempt the Authority from providing the same. Thus, CIC ought not to have directed the issuance of subject documents to the Respondent.

4.9. Mr. Jain had filed an intervention application in the case for which he has applied for seeking judicial records. The said intervention application was filed but Mr. Jain but did not pursue the same and was kept pending. Thus, when there is an alternative mechanism in place for persons who are likely to be affected by the case to take recourse to, the provisions of RTI Act cannot be invoked.

FACTS AND CONTENTIONS PRESENTED BY MR.

GAUTAM NARAYAN:

5. Mr. Gautam Narayan, Amicus Curiae, on the other hand contends as follows: 5.[1] There is no absolute bar under the Consumer Protection Act or Regulations framed thereunder that deny the information to a third party irrespective of their status as a ‘third party’. The Respondent was thus entitled to seek information regarding a pending complaint, including copies of documents, under the RTI Act.

5.2. Interpretation of Regulation 21 and 22 of the CPA on which the decision of FAA and CPIO is based is incorrect. Their decision was premised on this understanding that Regulation 21(5) of the CPA regulations which deals with supply of copies of such documents to a ‘party’ impliedly prohibits supply of information to a third party. The absence of a specific enabling provision in the Regulations, does not necessarily preclude such a possibility, especially since the Regulations are issued by the NCDRC with the Central Government’s approval. Additionally, the Act does not outline a method for third parties to access information. Therefore, it is the responsibility of the legislature to establish such a procedure, or alternatively, for the NCDRC to provide one. This is because the right to information is considered an aspect of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India,1950. The Consumer Protection Act, 1986 and the amended Consumer Protection Act, 2019 do not indicate any legislative intent to bar third-party access to information. Given the silence of these Acts on this matter, the provisions of the RTI Act, 2005, which outlines a procedure for disclosing information to third parties, should be applied.

5.3. In Central Information Commissioner v. High Court of Gujarat,12 the Supreme Court was dealing with the interplay of Gujarat High Court Rules, and the RTI Act, in relation to a right of a third party to seek certified copies from the High Court. The Supreme Court took note of Rule 151 of the Gujarat High Court Rules, 1993 which stipulated and regulated disclosure of information to third parties and, having regard to the same and not finding any inconsistency with the provisions of the RTI Act, held that the Gujarat High Court Rules sufficiently regulates the disclosure of such information. However, in case there is inconsistency, then the provisions of the RTI Act would prevail.

5.4. The judgment of the SCI v. Subhash Chandra Agarwal (supra) and ICAI v. Shaunak H. Satya.13 hold that the decision to supply or deny information regarding a pending/disposed off case to a third party will require weighing of competing interests by the PIO. Subash Chandra Aggarwal (Supra) devises a judicially manageable standard for supply of ‘personal information.’

5.5. The approach of the PIO and the FAA to reject all such applications filed by third parties simply on the basis of Regulation 21(5) appears to be contrary to the Principal Act - the RTI Act, 2005 as also the law laid down by the Hon’ble Supreme Court.

RELEVANT PROVISIONS

6. Since in this case, there is an inter-play of Acts, it would be apposite to first take note of the relevant provisions. Section 22 of the RTI Act, reads as follows: “22. Act to have overriding effect.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

7. The RTI Act provides for exemption from disclosure of information under Section 8 of the RTI Act. This Court at the outset notes that Section 8(1)(j) of the RTI Act has undergone an amendment. However, such an amendment was introduced in 2023 which is subsequent to the RTI proceedings in the present case. Nonetheless, the amended Section 8 of the RTI Act reads as follows: “8. Exemption from disclosure of information.—(1) Notwithstanding citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such 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 in 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 information 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 ministries, secretaries and other officers: Provided that decision of council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemption specified in this section shall be disclosed. (j) information which relates to personal 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 of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of subsection (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 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 twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.”

8. The relevant Regulations are 21 & 22 of Consumer Protection Act, 2005 Regulations, which reads as follows:

irrespective of number of pages. (3) A certified copy of an order shall clearly specify the date when free copy was issued, date of application, date when the copy was made ready and the date when it was so delivered to him. (4) Any party desiring to get a certified copy of any document on the file of the Consumer Commission, may get the same on payment of certification fee of twenty rupees per copy: Provided that if any such document of which certified copy is sought, is over and above five pages, an extra amount of one rupee per page shall be charged over and above the fee of rupees twenty. (6) Certified copy of any miscellaneous order passed by the Consumer Commission shall be supplied on payment of rupees five per copy.

22. Inspection of records.- Parties or their agents can inspect the records of matter filed by them by filing an application on payment of ten rupees as fee.”

ANALYSIS AND FINDINGS:

9. This case involves interplay between RTI Act 2005 and the Consumer Protection Regulations, 2005 framed under Section 30A of the Consumer Protection Act. The core issue is whether the regulatory framework under the Consumer Protection Act adequately addresses the rights of third parties to access information. While there is undoubtedly a need to account for the fiduciary confidentiality vested in tribunals and to safeguard sensitive caserelated information within records of the tribunal, there must also be sufficient measures to accommodate third-party rights under the overarching objectives of transparency and accountability under the RTI Act. This understanding is crucial in determining whether the RTI Act’s provisions should prevail when specific regulatory measures under the Consumer Protection Act may appear insufficient or restrictive.

10. The Petitioner’s stance is in line with the First Appellate Authority’s (FAA) decision. They contend that Regulation 21 of the CPA regulations restrict the transmission of case-related information to third parties, as it permits only parties involved in a case to access relevant documents, judgments, or orders. This, they claim, implicitly excludes third parties and is intended to protect the confidentiality and sensitive nature of the court proceedings. Consequently, they assert that the absence of explicit permission for third-party access in the regulations inherently means such access is forbidden, relying on the doctrine that ‘what is not explicitly permitted is explicitly forbidden.’

11. This Court finds the Petitioner’s interpretation legally untenable. The absence of a specific prohibition in the CPA Regulations, regarding access to NCDRC records to third parties, should not be construed as an implicit prohibition. Regulation 21, when interpreted literally, establishes mechanism for issuing certified copies to parties directly engaged in the proceedings. It delineates the procedure for enabling the case-related parties to obtain necessary documents. Similarly, Regulation 22 specifies procedures for these parties to inspect records, establishing a structured approach for parties to access pertinent information thereby facilitating their active participation in and management of their cases. However, crucially, these provisions do not extend to or explicitly address the rights of a third party, nor do they impose any specific prohibitions against third-party access to such information.

12. The interpretation of the CPA Regulations must align with the overarching goal of the RTI Act to enhance transparency and access to information. In the Court’s opinion, the Regulation 21 which details the processes for parties directly involved in cases to obtain certified copies does not explicitly restrict third-party access. This absence of specific prohibition should not be misconstrued as an implicit restriction but rather recognized as a gap in the regulatory framework. This regulatory gap necessitates the application of RTI Act for access to information. Since the CPA Regulations do not provide for or explicitly restrict third-party access, the RTI Act serves as the legislative bridge.

13. Before us Regulation 21 has been urged to be interpreted as an absolute bar on third parties from seeking information and certified copies. This implicit bar read into the regulation would render the CPA Regulations in conflict with the provisions of the RTI Act.14 The Supreme Court in CIC v. High Court of Gujarat (Supra) examined the regulatory framework of Gujarat High Court Rules. In that case, the Supreme Court recognized the coexistence of Court rules with the right to information guaranteed under the RTI Act. The Supreme Court analysed Rule 151 of Gujarat High Rules, to hold that since the Rules stipulated a mechanism for a third party to have access to the information/ obtaining certified copies of documents by stating the reasons for seeking the information, it was not inconsistent with the provisions of RTI Act. The Supreme Court also endorsed the views of this Court in Supreme Court of India vs R.S. Mishra15 holding that when the High Court Rules provide a mechanism for seeking information/ certified copies by filing an application, the provisions of the RTI act are not to be resorted to.

14. Thus, when we delve deeper into the reasoning in CIC v. High Court of Gujarat, it becomes clear that the Supreme Court has focused on Section 8(1)(j) of the RTI Act. 244DLT179 availability of an effective regulatory machinery by Court for having access to information or obtaining documents with the Regulatory framework. Such a framework is necessary in order for enable parties and third parties to seek information and certified copies so that they need not resort to the RTI Act. Since the Gujarat High Court Rules enabled such access by necessitating filing of an affidavit from third parties outlining the purpose for seeking certified copies, the Supreme Court held that these rules did not inherently conflict with the RTI Act. The Supreme Court also found that the procedure within the Rules was simple and effective and less cumbersome than the process of invoking section 11 of the RTI Act and “it is not as if the information is denied or refused to the application.” Therefore, the Rules were found to be consistent and aligning with the objectives of transparency and efficiency. However, here the Regulations are silent as far as third parties are concerned. There is no Regulation that specifically deals with the situation at hand. Thus, this Court cannot interpret Regulations 21 and 22 obstructing a third party from obtaining copies of documents on the judicial side. The procedural rules of the Supreme Court which have been noticed and discussed in CIC v. High Court of Gujarat, itself enable third parties to apply for copies in pending or disposed of matters on showing ‘good cause’. Thus, Regulation 21 does not apply to third parties and there is a regulatory gap as the CPA Regulations are silent on this aspect. Hence, Mr. A.K. Jain could in the opinion of the Court, resort to the provisions of the RTI Act. He had every right to the seek information under the RTI Act, subject to limitations prescribed under the Act since the information could not have accessed through the mechanism provided under the Regulations.

15. Furthermore, the non-obstante clause articulated in Section 22 of the RTI Act stipulates that in instances of any inconsistency between the RTI Act and other laws, the RTI Act will prevail. Therefore, should Regulations 21 of the CPA be interpreted in the restrictive manner suggested by the Petitioner—without a harmonious reading—they would be subordinated to the overarching mandate of the RTI Act stipulated in Section 22.

16. The Petitioner has referenced the judgment of Inderjeet Singh v. NCDCR & Anr. to support the argument that the documents requested by the Respondent could not be issued. It is thus imperative to contextualize this reliance within the framework established by subsequent jurisprudence. Importantly, the Inderjeet Singh case was adjudicated prior to Supreme Court’s ruling in CIC v. High Court of Gujarat, which significantly expounded on the interplay between specific court rules and Right to Information Act. Moreover, Inderjeet Singh did not address the interplay between Section 22 of the RTI Act and Regulations 21 and 22 of the CPA Regulations. Therefore, its applicability to the present case is limited. The Supreme Court’s later decision explicitly acknowledged the possibility of concurrent mechanisms under the RTI Act and court rules, thus providing a more comprehensive framework for assessing requests for judicial documents.

17. Next, we must examine the reasoning of the impugned decision of the CPIO as well as the FAA which the Petitioner reiterates as grounds to assail the decision of the CIC. The FAA has relied on 8(1)(b) of the RTI Act, which in Court’s opinion is ex-facie misconceived. Section 8(1)(b) of the RTI Act exempts only such information which has been expressly forbidden to published by any court of law or tribunal or the disclosure of which may constitute contempt of court. Section 8(1)(b) of the RTI reads as follows: “8. Exemption from disclosure of information.—(1) Notwithstanding citizen,— (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; “ [Emphasis supplied] The specific term used in the section is “expressly forbidden.” However, this Court is unable to identify any explicit prohibition or declaration to this effect. Even if Regulations 21 and 22 of the CPA, as framed by the NCDRC, are interpreted as ‘forbidding’ the supply of documents, it is certainly not explicit. Thes regulations don’t prohibit or forbid dissemination of information or grant of certified copies of records. Consequently, Section 8(1)(b) of the RTI Act cannot be invoked to deny the documents requested by the Respondent.

18. Furthermore, the reliance on Section 8(1)(j) of the RTI Act to exempt disclosure on the grounds of personal information needs to be critically examined. This section is intended to protect personal information from being disclosed when it has no relevance to public activity or interest or would constitute an unwarranted invasion of privacy. The CPIO’s argument rests on the assertion that the applicant, being a third party to the proceedings, does not have a legitimate claim to access the information sought. The CPIO assumed that since the CPA regulations only enables case-related parties access to information, it must be assumed that rule making authority was conscious of the fact that issuance of copy of document to a person, who is not a party “would prejudicially effect the decision making process” and thus, third party has not been included within the framework of Regulation 21. This perspective narrowly interprets the provision and could undermine the broader objectives of the RTI Act aimed at promoting transparency and accountability. Moreover, the Court cannot read any such intention. The 1986 Act as also the amended 2019 Act reveals no such intention of the legislature. It is imperative to consider that the mere status of an individual as a ‘third party’ does not automatically exclude them from the right to access information, especially when such information may have broader public implications. The RTI Act mandates a careful balancing of interests—weighing the need for privacy against the public interest in disclosure. This necessitates a substantive assessment of whether the disclosure of such information indeed poses a significant risk to privacy that outweighs the public interest. The Supreme Court in Supreme court v. Subhash Chandra Agarwal,16 elucidated that the denial of information under Section 8(1)(j) of the RTI Act necessitates the PIO to weigh the competing interests involved in disclosure of information to third-party. The ruling highlighted that procedural exclusions should not be used to withhold information that is critical for ensuring transparency and accountability of public institutions. In the present case, the denial of access to the requested documents was predicated merely on Applicant being a third party to the proceedings, without a substantive evaluation of the potential privacy concerns or the public interest served by disclosure. Such an approach does not conform to the legislative intent behind the RTI Act or the judicial precedents that advocate for a reasoned and balanced application of its exemptions. Given these considerations, the argument that Section 8(1)(j) of the RTI Act justifies withholding the requested information in this instance appears insufficiently substantiated. There is a clear need for a more detailed assessment that explicitly addresses whether the specific information requested would indeed lead to an unwarranted invasion of privacy. Thus, the decision of the FAA and the position advanced by the Petitioner lack the necessary legal grounding to override the objects of the RTI Act, which prioritize transparency and the right to information.

19. In light of the submissions and observations noted above, this Court recognizes the delicate balance required between public access to information and the confidentiality of judicial records. Thus, the impugned order needs to be modified to meet the concerns expressed by the Petitioner.

20. The National Consumer Disputes Redressal Commission (NCDRC), as a tribunal, handles sensitive data concerning parties involved in litigation. Information pertaining to judicial proceedings inherently contains personal data, which necessitates safeguarding the privacy of litigants. Given this context, Mr. A.K. Jain’s status as a third party does not inherently entitle him to access or obtain certified copies of documents from NCDRC proceedings. His right to access is contingent upon the regulatory framework under the CPA Regulations because of the void and under the RTI Act which fills the regulatory gaps. To maintain the confidentiality and to manage the potential for overwhelming and inappropriate requests that may inundate NCDRC if a complete free unrestricted access is given to third parties, it is prudent for this Court to mandate that any third party, including Mr. Jain, submit a detailed application or affidavit when requesting information or certified copies showing good cause to receive such material. This procedural requirement aims to control the flow and appropriateness of information dissemination and is aligned with similar stipulations found in various High Court rules as well as Supreme Court Rules, which the Supreme Court has recognized as compatible with the RTI Act. Therefore, this matter is remanded back to the Central Public Information Officer (CPIO) of the NCDRC. The CPIO is directed to reassess Mr. Jain’s request upon receipt of his affidavit, balancing the need for transparency with the privacy rights of the individuals involved. The decision to disclose or withhold information should be made judiciously, considering the stipulations of Section 8 of the RTI Act, which outlines specific grounds for non-disclosure. This approach ensures that the provisions of the RTI Act are not compromised, while also respecting the confidentiality required in judicial proceedings.

21. The Court appreciates the efforts put by Mr. Gautam Narayan assisted by Ms. Asmita Singh, in rendering assistance to the Court to arrive at a just and fair decision in the present petition.

22. A copy of this order shall be communicated to Mr. A.K. Jain- the Respondent herein.

23. The petition is disposed of, along with the pending application.

SANJEEV NARULA, J JULY 26, 2024