Right to Information Act 2005 (RTI Act)

Whether RBI is entitled to direct disclosure of confidential and sensitive information pertaining to customers’ affairs etc under the Right to Information Act, 2005?

MASTI

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/ APPELLATE JURISDICTION
I.A. No.68597 of 2021 AND I.A. No. 51632 of 2022
IN &
WRIT PETITION (CIVIL) NO.1159 OF 2019

HDFC BANK LTD. & ORS. …PETITIONER (S)

VERSUS
UNION OF INDIA & ORS. …RESPONDENT (S)

WITH
I.A. No.54521 of 2022
IN &
WRIT PETITION (CIVIL) NO.683 OF 2021

WRIT PETITION (CIVIL) NO. 1469 OF 2019

WRIT PETITION (CIVIL) NO.690 OF 2021

WRIT PETITION (CIVIL) NO.709 OF 2021

WRIT PETITION (CIVIL) NO.768 OF 2021

WRIT PETITION (CIVIL) NO.765 OF 2021

SPECIAL LEAVE PETITION (CIVIL) NO.14343 OF 2022

ORDER
B.R. GAVAI, J.

1. For the reasons stated in I.A. No.68597 of 2021 in Writ Petition (Civil) No.1159 of 2019 for Impleadment, the same is allowed.

2. This batch of writ petitions has been filed by various Banks including private banks, inter alia, challenging the action of the respondent­ Reserve Bank of India (hereinafter referred to as “RBI”) in directing disclosure of confidential and sensitive information pertaining to their affairs, their employees and their customers under the Right to Information Act, 2005 (hereinafter referred to as “the RTI Act”), which, in their submission, is otherwise exempt under Section 8 thereof.

3. We are treating Writ Petition (Civil) No. 1159 of 2019 as the lead matter.

4. Interlocutory Applications being I.A. No. 51632 of 2022 in Writ Petition (Civil) No.1159 of 2019 and I.A. No.54521 of 2022 in Writ Petition (Civil) No.683 of 2021 have been filed by the applicant­Girish Mittal, thereby seeking dismissal of the present writ petitions.

5. It is the contention of the applicant that the present writ petitions, in effect, are challenging the final judgment and order dated 16th December 2015, passed by this Court in the case of Reserve Bank of India vs. Jayantilal N. Mistry 1 and hence the same is not maintainable and is liable to be dismissed.

6. We have heard Mr. Prashant Bhushan, learned counsel appearing on behalf of the applicant­Girish Mittal and Mr. Rakesh Dwivedi, Mr. Mukul Rohatgi, Mr. Dushyant Dave, Mr. Jaideep Gupta, and Mr. K.V. Viswanathan, learned Senior Counsels and Mr. Divyanshu Sahay, learned counsel appearing on behalf of the writ petitioners/Banks.

7. Mr. Prashant Bhushan, learned counsel, submitted that the issue which is sought to be raised in the present writ petitions has already been put to rest by a judgment of this court in the case of Jayantilal N. Mistry (supra). It is further 1 (2016) 3 SCC 525 submitted that this Court, in the case of Girish Mittal vs. Parvati V. Sundaram and another2, while holding that the RBI has committed contempt of this Court by exempting disclosure of material that was directed to be given by this Court, has also held that the RBI was duty bound to furnish all information relating to inspection reports and other materials.

8. Mr. Prashant Bhushan relies on the judgment of a Nine­ Judge Bench of this Court in the case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra and Anr. 3 in support of his proposition that a judicial decision cannot be corrected by this Court in exercise of its jurisdiction under Article 32 of the Constitution of India. He also relied on the judgment of a Seven­Judge Bench of this Court in the case of A.R. Antulay vs. R.S. Nayak and another4 to contend that the judicial proceedings in this Court are not subject to the writ jurisdiction thereof.

2 (2019) 20 SCC 747 = Contempt Petition (C) No. 928 of 2016 in Transfer Case (C) No. 95 of 2015, decided on 26th April 2019 3 (1966) 3 SCR 744 4 (1988) 2 SCC 602
9. Mr. Prashant Bhushan further submitted that this Court in the case of Anil Kumar Barat vs. Secretary, Indian Tea Association and others5 has also held that the validity of an order passed by this Court itself cannot be subject to writ jurisdiction of this Court.

10. Mr. Bhushan also relied on the judgments of a Three­ Judge Bench of this Court in the cases of Khoday Distilleries Ltd. and another vs. Registrar General, Supreme Court of India6, Mohd. Aslam vs. Union of India and others 7 and Union of India and others vs. Major S.P. Sharma and others8 and the judgment of a Five­Judge Bench of this Court in the case of Rupa Ashok Hurra vs. Ashok Hurra and another9 to buttress his submissions.

11. Mr. Bhushan further submitted that in the case of Jayantilal N. Mistry (supra), several Miscellaneous 5 (2001) 5 SCC 42 6 (1996) 3 SCC 114 7 (1996) 2 SCC 749 8 (2014) 6 SCC 351 9 (2002) 4 SCC 388 Applications were filed on behalf of the Banks for impleadment. As such, the judgment delivered in the case of Jayantilal N. Mistry (supra) is after consideration of rival submissions, which now cannot be reopened. He further submitted that this Court by order dated 28th April 2021, passed in M.A. No.2342 of 2019 in Transferred Case (Civil) No.91 of 2015 and other connected matters has specifically rejected the prayer filed by the Banks (writ petitioners herein) for recall of the judgment dated 16th December 2015 passed by this Court in the case of Jayantilal N. Mistry (supra), and as such, the present writ petitions are liable to be dismissed.

12. Per contra, the learned Senior Counsels appearing on behalf of the writ petitioners/Banks submit that though M.A. No.2342 of 2019 in Transferred Case (Civil) No.91 of 2015 and other connected matters were rejected by this Court by order dated 28th April 2021, this Court clarified that the dismissal of those applications shall not prevent the applicant­Banks therein to pursue other remedies available to them in law. It is thus submitted that the said order would not come in the way of the present petitioners in filing the present petitions.

13. It is submitted that Section 11 of the RTI Act provides that when any information relating to third party has been sought, a written notice is required to be given to such third party of the request, by the Central Public Information Officer or State Public Information Officer, as the case may be, and the submissions by such third party are required to be taken into consideration while taking a decision about the disclosure of the information. Reliance in this respect has been placed on the judgment of this Court in the case of Chief Information Commissioner vs. High Court of Gujarat and another 10. It is submitted that this Court in the case of Jayantilal N. Mistry (supra) has not taken into consideration this aspect of the matter.

14. It is further submitted on behalf of the writ petitioners/Banks that the right to privacy has been said to be 10 (2020) 4 SCC 702 as implicit fundamental right by a Five­Judge Constitution Bench of this Court in the case of Supreme Court Advocates­ on­Record Association and another vs. Union of India11. It is submitted that the said view is also reiterated by a Nine­ Judge Constitution Bench of this Court in the case of K.S. Puttaswamy and another vs Union of India and others12, which has explicitly and categorically recognised the right to privacy as a fundamental right.

15. Mr. Rakesh Dwivedi, learned Senior Counsel, relied on the judgment of this Court in the case of A.R. Antulay (supra) in support of the proposition that no man should suffer because of the mistake of the Court. He submits that the rules of procedure are the handmaidens of justice and not the mistress of justice. He relies on the maxim “ex debito justitiae”. He further relies on the judgment of this Court in the case of Sanjay Singh and another vs. U.P. Public Service 11 (2016) 5 SCC 1 12 (2017) 10 SCC 1 Commission, Allahabad and another13 in support of the submission that the petition would be tenable.

16. Mr. Mukul Rohatgi, learned Senior Counsel, submitted that the petitioners herein are private banks and not a public authority as defined under the RTI Act. He relies on the judgment of this Court in the case of Thalappalam Service Cooperative Bank Limited and others vs. State of Kerala and others14 in that regard. He submitted that RBI’s Inspection Reports in respect of the inspection carried out under Section 35 of the Banking Regulation Act, 1949 are so confidential that they cannot even be provided to the Directors individually. He relies on the communication issued by the RBI to all the Banks dated 14th March 1998 in this regard.

17. Mr. Rohatgi further submitted that an earlier policy as notified by the RBI on 30th June 1992 was in tune with the provisions of Section 8 of the RTI Act, the provisions of the Reserve Bank of India Act, 1934 (hereinafter referred to as “the 13 (2007) 3 SCC 720 14 (2013) 16 SCC 82 RBI Act”) and the Banking Regulation Act, 1949. However, in view of the judgment of this Court in the case of Girish Mittal (supra), the RBI has modified the policy into a one­line policy, providing therein that the disclosure of information was to be in accordance with the judgment and order of this Court in Girish Mittal (supra). Mr. Rohatgi, learned Senior Counsel relied on the judgment of this Court in the case of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi and another15 in support of his submission that the Court will have to strike a balance between public interest and private interest. He also relies on the judgment of this Court in the case of Girish Ramchandra Deshpande vs. Central Information Commissioner and others16 to contend that personal information cannot be directed to be disclosed unless outweighing public interest demands it to be done.

18. Mr. K.V. Viswanathan, learned Senior Counsel submits that HDFC Bank, Kotak Bank and Bandhan Bank were not 15 (2012) 13 SCC 61 16 (2013) 1 SCC 212 parties in the case of Jayantilal N. Mistry (supra). He submits that sub­Section (5) of Section 35 of the Banking Regulation Act, 1949 provides a specific procedure as to in what manner the inspection report would be published. He submits that when a special Act provides a particular manner for disclosure of an information, it will have an overriding effect over the RTI Act. The learned Senior Counsel submits that the said provisions were not noticed in the case of Jayantilal N. Mistry (supra).

19. Mr. Jaideep Gupta, learned Senior Counsel submitted that this Court in the case of Jayantilal N. Mistry (supra) has not taken into consideration the provisions of the Credit Information Companies (Regulation) Act, 2005.

20. Mr. Dushyant Dave, learned Senior Counsel, submitted that Section 45NB of the RBI Act emphasizes on the confidentiality of certain information with regard to non­ banking companies. He submits that sub­section (4) of Section 45NB of the RBI Act, which is a non­obstante clause, provides that, notwithstanding anything contained in any law for the time being in force, no court or tribunal or other authority shall compel the Bank to produce or to give inspection of any statement or other material obtained by the Bank under any provisions of this Chapter. He submits that this provision has not been noticed in the case of Jayantilal N. Mistry (supra).

21. It is submitted on behalf of all the writ petitioners/Banks that what is under challenge is the action of the RBI compelling the petitioners to disclose certain information which itself is exempted under the provisions of the RBI Act. It is submitted that various other special enactments specifically prohibit such information to be disclosed. It is submitted that since the RBI’s directions are issued in pursuance to the judgments of this Court in the cases of Jayantilal N. Mistry (supra) and Girish Mittal (supra), the petitioners cannot approach the High Court and the only remedy that is available to the petitioners is by way of the present writ petitions. It is submitted by learned Senior Counsels appearing on behalf of the writ petitioners/Banks that this Court in Jayantilal N. Mistry (supra) does not notice the judgment of this Court in the case of Supreme Court Advocates­on­Record Association and another (supra). The judgment of this Court in the case of Supreme Court Advocates­on­Record Association and another (supra) was rendered on 16th October 2015, whereas the judgment of this Court in the case of Jayantilal N. Mistry (supra) was rendered on 16th December 2015. It is further submitted that, in view of the judgment of the Constitution Bench consisting of Nine Hon’ble Judges in the case of K.S. Puttaswamy and another (supra) clearly recognizing the right to privacy as a fundamental right, the law laid down by this Court in the case of Jayantilal N. Mistry (supra) to the contrary is no more a good law and, therefore, requires reconsideration by a larger Bench.

22. In the case of Naresh Shridhar Mirajkar and others (supra), a Nine­Judge Constitution Bench of this Court was considering as to whether an order passed by the High Court on original side in the proceedings before it could be challenged under Article 32 of the Constitution for enforcement of fundamental rights guaranteed under Article 19(1)(a), (d) and

(g) of the Constitution of India. It will be relevant to refer to the following observations of this Court in the said case:

“The basis of Mr Setalvad’s argument is that the impugned order is not an order inter­ partes, as it affects the fundamental rights of the strangers to the litigation, and that the said order is without jurisdiction. We have already held that the impugned order cannot be said to affect the fundamental rights of the petitioners and that though it is not inter­partes in the sense that it affects strangers to the proceedings, it has been passed by the High Court in relation to a matter pending before it for its adjudication and as such, like other judicial orders passed by the High Court in proceedings pending before it, the correctness of the impugned order can be challenged only by appeal and not by writ proceedings. We have also held that the High Court has inherent jurisdiction to pass such an order.
But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Article 32 which seek for the issue of a writ of certiorari to correct the said order. If questions about the jurisdiction of superior courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Article 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter­partes, and those which are not inter­partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior court of record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32.” [emphasis supplied]

23. It could thus be seen that the Nine­Judge Bench of this Court, speaking through P.B. Gajendragadkar, CJ., categorically held that the impugned orders could not affect the fundamental rights of the petitioners. It has further been held that since the order was passed in the proceedings pending before the High Court, the correctness of the impugned order could be challenged only by appeal and not by writ proceedings. It has been further held that, having regard to the fact that the order had been passed by a superior court of record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order could not be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32. This Court further observed thus:

“We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Article 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Article 32. The words used in Article 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Article 32; to hold otherwise would be repugnant to the well­recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court’s decisions in relation to the said point.” [emphasis supplied]
24. It could thus be seen that this Court held that it would be unreasonable to hold that this Court, under Article 32, could correct the judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and therefore this Court can correct the same by issuance of a writ of certiorari under Article 32. This Court held that though the words used in Article 32 are wide, the order impugned before it could not be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Article 32.

25. Insofar as the judgment of this Court in the case of Khoday Distilleries Ltd. and another (supra), on which Mr. Prashant Bhushan placed reliance, is concerned, this Court in the said case was considering therein a challenge to the correctness of the decision on merits after the appeal as well as review petition were dismissed.

26. In the case of Mohd. Aslam (supra), this Court held that Article 32 of the Constitution was not available to assail the correctness of a decision on merits or to claim reconsideration. It, however, considered the contention raised on behalf of the petitioners that the judgment in the case of Manohar Joshi vs. Nitin Bhaurao Patil and another17 was in conflict with the Constitution Bench judgement of this Court in the case of S.R. Bommai and others vs. Union of India and others 18. This Court after considering the submissions found that the opinion so expressed was misplaced.

27. Insofar as the judgment of this Court in the case of Major S.P. Sharma and others (supra) is concerned, in the said case, the first round of litigation arising out of termination of respondent­employee had reached finality upto this Court. 17 (1996) 1 SCC 169 18 (1994) 3 SCC 1 However, the same was sought to be reopened by filing another writ petition before the High Court. In this background, this Court observed thus:

“90. Violation of fundamental rights guaranteed under the Constitution have to be protected, but at the same time, it is the duty of the court to ensure that the decisions rendered by the court are not overturned frequently, that too, when challenged collaterally as that was directly affecting the basic structure of the Constitution incorporating the power of judicial review of this Court. There is no doubt that this Court has an extensive power to correct an error or to review its decision but that cannot be done at the cost of doctrine of finality. An issue of law can be overruled later on, but a question of fact or, as in the present case, the dispute with regard to the termination of services cannot be reopened once it has been finally sealed in proceedings inter se between the parties up to this Court way back in 1980.”
28. It could thus be seen that this court has held that when a question of fact has reached finality inter se between the parties, it cannot be reopened in a collateral proceeding. However, it has been observed that an issue of law can be overruled later on.

29. Mr. Prashant Bhushan strongly relied on the judgment of this Court in the case of Rupa Ashok Hurra (supra). It will be relevant to refer to the following observations of this Court in the judgment of Quadri, J.

“41. At one time adherence to the principle of stare decisis was so rigidly followed in the courts governed by the English jurisprudence that departing from an earlier precedent was considered heresy. With the declaration of the practice statement by the House of Lords, the highest court in England was enabled to depart from a previous decision when it appeared right to do so.

The next step forward by the highest court to do justice was to review its judgment inter partes to correct injustice. So far as this Court is concerned, we have already pointed out above that it has been conferred the power to review its own judgments under Article 137 of the Constitution. The role of the judiciary to merely interpret and declare the law was the concept of a bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernible shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but bypassing the principle of finality of the judgment. In Union of India v. Raghubir Singh [(1989) 2 SCC 754] Pathak, C.J. speaking for the Constitution Bench aptly observed: (SCC pp. 766­67, para

10) “10. But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for readjustment in a changing society, a readjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that ‘the life of the law has not been logic it has been experience’ (Oliver Wendell Holmes : The Common Law, p. 5), and again when he declared in another study (Oliver Wendell Holmes : Common Carriers and the Common Law, (1943) 9 Curr LT 387, 388) that ‘the law is forever adopting new principles from life at one end’, and ‘sloughing off’ old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra­legal propositions emerging from experience to serve as premises, or by experience­guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined (Julius Stone : Legal Systems & Lawyers Reasoning, pp.

58­59).”

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision­ making process not disclosing his links with a party to the case, or on account of abuse of the process of the court.

Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.

xxx xxx xxx

49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power.” [emphasis supplied]

30. This Court in the aforesaid case held that the concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. The Court has to balance ensuring certainty and finality of a judgment of the Court of last resort on one hand and dispensing justice on reconsideration of a judgment on the valid grounds on the other hand. This Court has observed that though Judges of the highest court do their best, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. It has been held that in such a case it would not only be proper but also obligatory both legally and morally to rectify the error. This Court further held that to prevent abuse of its process and to cure a gross miscarriage of justice, the Court may reconsider its judgments in exercise of its inherent power.

31. This Court in the case of A.R. Antulay (supra), speaking through Sabyasachi Mukharji, J. observed thus:

“82. Lord Cairns in Rodger v. Comptoir D’escompte De Paris [(1869­71) LR 3 PC 465, 475 : 17 ER 120] observed thus:
“Now, Their Lordships are of opinion, that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression ‘the act of the court’ is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the court.
83. This passage was quoted in the Gujarat High Court by D.A. Desai, J., speaking for the Gujarat High Court in Soni Vrajlal v. Soni Jadavji [AIR 1972 Guj 148 : (1972) 13 Guj LR 555] as mentioned before. It appears that in giving directions on 16­2­1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar case [AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis.”

32. It could thus be seen that the principle of ex debito justitiae has been emphasized. This Court held that no man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. It has been held that the rules of procedure are the handmaidens of justice and not the mistress of justice. It has further been held that if a man has been wronged, so long as the wrong lies within the human machinery of administration of justice, that wrong must be remedied.

33. Ranganath Misra, J., in his concurrent opinion, observed thus:

“102. This being the apex court, no litigant has any opportunity of approaching any higher forum to question its decisions. Lord Buckmaster in Montreal Street Railway Co. v. Normadin [1917 AC 170] (sic) stated:
All rules of court are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.

This Court in State of Gujarat v. Ramprakash P. Puri [(1969) 3 SCC 156 : 1970 SCC (Cri) 29 : (1970) 2 SCR 875] reiterated the position by saying [SCC p. 159 : SCC (Cri) p. 31, para 8] Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the court can be corrected by the court itself without any fetters. This is on the principle as indicated in (Alexander) Rodger case [(1969­71) LR 3 PC 465 : 17 ER 120] . I am of the view that in the present situation, the court’s inherent powers can be exercised to remedy the mistake. Mahajan., J.
speaking for a Four Judge Bench in Keshardeo Chamria v. Radha Kissen Chamria [1953 SCR 136 : AIR 1953 SC 23] at Page 153 stated:

The judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree­holder or the objections raised by the judgment­debtors.
103. The Privy Council in Debi Bakhsh Singh v. Habib Shah [ILR (1913) 35 All 331] pointed out that an abuse of the process of the court may be committed by the court or by a party. Where a court employed a procedure in doing something which it never intended to do and there is an abuse of the process of the court it can be corrected. Lord Shaw spoke for the Law Lords thus:

Quite apart from Section 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.

It was pointed out by the Privy Council in The Bolivar [AIR 1916 PC 85] that:

Where substantial injustice would otherwise result, the Court has, in Their Lordships’ opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties…
Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curia neminem gravabit — an act of the court should prejudice no one.

104. To err is human, is the oft­quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militatte against its status or authority. Perhaps it would enhance both.”
34. It has been held that this being the apex court, no litigant has any opportunity of approaching any higher forum to question its decisions. It has further been held that once a judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising its inherent powers. It has been held that, to err is human, and the Courts including the Apex Court are no exception.

35. This Court in the case of Sanjay Singh and another (supra) has observed thus:

“10. The contention of the Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision.

In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent. The term “judgment” and “decision” are used, rather loosely, to refer to the entire judgment or the final order or the ratio decidendi of a judgment. Rupa Ashok Hurra [(2002) 4 SCC 388] is of course, an authority for the proposition that a petition under Article 32 would not be maintainable to challenge or set aside or quash the final order contained in a judgment of this Court. It does not lay down a proposition that the ratio decidendi of any earlier decision cannot be examined or differed in another case. Where violation of a fundamental right of a citizen is alleged in a petition under Article 32, it cannot be dismissed, as not maintainable, merely because it seeks to distinguish or challenge the ratio decidendi of an earlier judgment, except where it is between the same parties and in respect of the same cause of action. Where a legal issue raised in a petition under Article 32 is covered by a decision of this Court, the Court may dismiss the petition following the ratio decidendi of the earlier decision. Such dismissal is not on the ground of “maintainability” but on the ground that the issue raised is not tenable, in view of the law laid down in the earlier decision. But if the Court is satisfied that the issue raised in the later petition requires consideration and in that context the earlier decision requires re­examination, the Court can certainly proceed to examine the matter (or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench). When the issue is re­examined and a view is taken different from the one taken earlier, a new ratio is laid down. When the ratio decidendi of the earlier decision undergoes such change, the final order of the earlier decision as applicable to the parties to the earlier decision, is in no way altered or disturbed. Therefore, the contention that a writ petition under Article 32 is barred or not maintainable with reference to an issue which is the subject­matter of an earlier decision, is rejected.” [emphasis supplied]

36. After referring to the judgment of this Court in the case of Rupa Ashok Hurra (supra), this Court has held that it does not lay down a proposition that the ratio decidendi of an earlier decision cannot be examined or differed with in another case. It has been held that if the Court is satisfied that the issue raised in the later petition requires consideration and in that context, the earlier decision requires re­examination, the Court can certainly proceed to examine the matter or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench. This Court, therefore, specifically rejected the contention that a writ petition under Article 32 of the Constitution was barred or not maintainable with reference to an issue which was the subject matter of an earlier decision.

37. In the present case, admittedly, the writ petitioners/Banks were not parties in the case of Jayantilal N. Mistry (supra). Though the Miscellaneous Applications filed by HDFC Bank and others for recall of the judgment and order in the case of Jayantilal N. Mistry (supra) were rejected by this Court vide order dated 28 th April 2021, this Court in the said order specifically observed thus:

“The dismissal of these applications shall not prevent the applicants to pursue other remedies available to them in law.”
38. It is thus clear that this Court did not foreclose the right of the petitioners/Banks to pursue other remedies available to them in law.

39. In view of the judgment of this Court in the case of Jayantilal N. Mistry (supra), the RBI is entitled to issue directions to the petitioners/Banks to disclose information even with regard to the individual customers of the Bank. In effect, it may adversely affect the individuals’ fundamental right to privacy.

40. A Nine­Judge Constitution Bench of this Court in the case of K.S. Puttaswamy and another (supra) has held that the right to privacy is a fundamental right. No doubt that the right to information is also a fundamental right. In case of such a conflict, the Court is required to achieve a sense of balance.

41. A perusal of the judgments of this Court cited supra would reveal that it has been held that though the concept of finality of judgment has to be preserved, at the same time, the principle of ex debito justitiae cannot be given a go­bye. If the Court finds that the earlier judgment does not lay down a correct position of law, it is always permissible for this Court to reconsider the same and if necessary, to refer it to a larger Bench.

42. Without expressing any final opinion, prima facie, we find that the judgment of this Court in the case of Jayantilal N. Mistry (supra) did not take into consideration the aspect of balancing the right to information and the right to privacy. The petitioners have challenged the action of the respondent­RBI, vide which the RBI issued directions to the petitioners/Banks to disclose certain information, which according to the petitioners is not only contrary to the provisions as contained in the RTI Act, the RBI Act and the Banking Regulation Act, 1949, but also adversely affects the right to privacy of such Banks and their consumers. The RBI has issued such directions in view of the decision of this Court in the case of Jayantilal N. Mistry (supra) and Girish Mittal (supra). As such, the petitioners would have no other remedy than to approach this Court. As observed by Ranganath Misra, J. in the case of A.R. Antulay (supra) that, this being the Apex Court, no litigant has any opportunity of approaching any higher forum to question its decision. The only remedy available to the petitioners would be to approach this Court by way of writ petition under Article 32 of the Constitution of India for protection of the fundamental rights of their customers, who are citizens of India.

43. We, therefore, hold that the preliminary objection as raised is not sustainable. The same is rejected. I.A. No.51632 of 2022 in Writ Petition (Civil) No.1159 of 2019 and I.A. No.54521 of 2022 in Writ Petition (Civil) No.683 of 2021 are accordingly dismissed.

………………………….J.

[B.R. GAVAI] ………………………….J.

[C.T. RAVIKUMAR] NEW DELHI;

SEPTEMBER 30, 2022.

CBDT Obligation To Disclose RTI Information Explained

MASTI

The latest judgement of the Delhi High Court in CENTRAL BOARD OF DIRECT TAXES versus SATYA NARAIN SHUKLA explains the law on the obligation of the CBDT to disclose information relating to verification of the affidavits filed by the Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) disclosing their assets to the Election Commission.

The CBDT claimed that it is not required to disclose information because of the exclusion in Section 24(1) of the Right to Information Act, 2005. The CBDT also claimed that the said information is exempt from disclosure under the provisions of Section 8(1)(h) of the RTI Act.

The Delhi High Court upheld the contention of the CBDT on the basis that the information sought did not pertain to allegations of corruption.

It noted that the respondent had merely highlighted that the net wealth of certain MLAs and MPs had increased fivefold and the respondent had sought verification of the same in order to bring about a higher level of transparency. No specific or general allegations of corruption were advanced by the respondent.

The Court clarified that in the event any citizen was to make an allegation of corruption, the information as sought from the CBDT under the RTI Act would not be excluded from the scope of the Act.

THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 19.02.2018

W.P.(C) 5547/2017 & CM No. 23333/2017

CENTRAL BOARD OF DIRECT TAXES ….. Petitioner

versus

SATYA NARAIN SHUKLA ….. Respondent

Advocates who appeared in this case: For the Petitioner : Mr Ruchir Bhatia, Senior Standing Counsel with Mr Gurpreet Shah Singh, Dy. CIT (O&D), CBDT.

For the Respondent: Respondent in person.

CORAM:- HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT VIBHU BAKHRU, J

1. The petitioner (hereafter “CBDT”) impugns an order dated 29.05.2017 (hereafter “the impugned order”) passed by the Central Information Commission (hereafter “the CIC”) in a second appeal preferred by the respondent under Section 19(3) of the Right to Information Act, 2005 (hereafter “the Act”).

2. By the impugned order, the CIC has, inter alia, directed disclosure of the information sought by the respondent and photocopies of responses received from Director Generals of Income Tax (DGs) to CBDT’s letter dated 11.08.2015. According to CBDT, the said information is excluded from the scope of the Act as it emanates from the Directorate General of Income Tax (Investigation). The said office is placed in the Second Schedule of the Act and, thus, any information received from the said office is excluded from the purview of the Act by virtue of Section 24(1) of the Act. CBDT also claims that the said information is exempt from disclosure under the provisions of Section 8(1)(h) of the Act.

3. Briefly stated, the relevant facts necessary to consider the aforesaid controversy are as under:-

4. The respondent filed an application dated 16.11.2015 seeking the following information under the Act:-

“(1) Photocopies of the letters no. F. No. 282/4/2012-IT(Inv) dated 1.10.2013 and No. 282/04/2012-IT(Inv. V)/140 dated 9.7.2015. (2) Photocopies of the responses received from the DGs to the letter No. 282/4/012-IV (Inv. V)/192 dated 11.08.2015 from Shri Rajat Mittal, Under Secretary (Inv. V) CBDT.”

5. The Central Public Information Officer (CPIO) of CBDT responded to the petitioner”s application by a letter dated 28.12.2015. He did not provide the photocopies of the letters as sought for at point no.1 but briefly indicated the contents of those letters. Insofar as the information sought at point no.2 is concerned, the CPIO responded as under:-

“Since, the matter is under investigation, hence under the provisions of Section 8(h) of RTI Act, 2005 (Information which would impede the process of investigation or apprehension or prosecution of offenders) information cannot be provided at this stage.”

6. Aggrieved by the response of the CPIO, the respondent preferred an appeal under Section 19(1) of the Act before the First Appellate Authority (hereafter “the FAA”). The said appeal was disposed of by an order dated 11.02.2016, whereby the FAA directed the CPIO to provide photocopies of the relevant letters as requested by the respondent as per point no.1 of his application. In respect of the respondent”s request for responses received from the DGs to the letter dated 11.08.2015 is concerned, the FAA upheld the CPIO”s decision that the said information was exempt under the provisions of Section 8(1)(h) of the Act and, therefore, could not be provided at that stage. However, the FAA directed the CPIO to convey the outcome of the investigations once the same are concluded.

7. Aggrieved by the decision of the FAA rejecting the request for furnishing the responses received from the DGs, the respondent preferred a second appeal before the CIC. The said appeal was allowed by the impugned order and the CPIO was directed to supply the information sought for by the respondent.

8. The controversy relates to the verification of the affidavits filed by the Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) disclosing their assets to the Election Commission. The respondent had submitted a list of MPs and MLAs whose assets have allegedly increased more than fivefold after the previous election (that is, during the term of their office as elected representatives after the previous election).

9. The said list of MPs and MLAs were forwarded to the DGs for verification. By a letter dated 11.08.2015, the following instructions were issued to the DGs with regard to the list of MPs and MLAs provided by the respondent:-

“The undersigned is directed to convey that any such case, featuring in the list that is yet to be verified, should be got verified urgently. A comprehensive report of the verifications done as per guidelines fixed by the Board may also be provided, if not done earlier. The report may be submitted within a month from the date of this letter in the annexed proforma. It is requested that the “Brief outcome” column must sufficiently record the outcome and the suggested course of action.”

10. The learned counsel appearing for CBDT submitted that CBDT could not be compelled to provide the photocopies of responses received from the DGs because: (i) the information sought for is exempted from disclosure by virtue of Section 8(1)(h) of the Act; and (ii) that any information from Directorate General of Income Tax (Investigation) is excluded from the purview of the Act by virtue of Section 24(1) of the Act.
11. Section 8(1)(h) of the Act reads as under:-

“8. Exemption from disclosure of information.– (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen– xxxx xxxx xxxx xxxx (h) information which would impede the process of investigation or apprehension or prosecution of offenders.”

12. It is clear from the above that only such information which would (i) impede the process of investigation; (ii) impede the apprehension or prosecution of offenders, is exempted from disclosure by virtue of Section 8(1)(h) of the Act. In the present case, there is no material to indicate that any investigation is being conducted, which would be impeded by disclosure of the information sought for by the respondent. It is stated by CBDT that the Election Commission of India forwards the affidavits submitted by MPs and MLAs disclosing their assets for verification to CBDT. Such affidavits are forwarded by CBDT to the Directorate General of Income Tax (Investigation) for verification and the outcome of such verification is shared directly by the Directorate General of Income Tax (Investigation) with the Election Commission of India.

13. The petitioner further states that the verification exercise carried out by the Directorate General of Income Tax (Investigation) is only indicative in nature and any further action proposed under the Income Tax Act, 1961 has to be followed up by an assessment order, which is passed by the concerned assessing officers. The verification affidavits filed by the candidates cannot be equated with an investigation as referred to in Section 8(1)(h) of the Act. The process of investigation as contemplated under Section 8(1)(h) of the Act is one in the nature of a probe and an inquiry. Clearly, verification from records cannot be termed as an “investigation”.
14. Even if, it is assumed that the verification being conducted by the Directorate General of Income Tax (Investigation) is in the nature of an investigation, the same is no ground for denial of information. Only such information which impedes the process of investigation can be denied. Thus, it would be necessary for the CPIO to specify the CIC that: (a) the investigation was conducted or was proposed; and (b) the information sought would impede the process of investigation. It is apparent that in the present case, these conditions are not met. First of all, there is no assertion that any process of investigation is under way; and secondly, there is no material to indicate that disclosure of the information as sought would impede any such investigation.
15. The suggestion that the expression “process of investigation” includes within its ambit an assessment proceedings resulting in the assessment order is plainly unmerited. The assessment proceedings merely relate to scrutiny of the Income Tax Returns and an assessment income on tax payable by an assessee. Plainly, such proceedings do not take the colour of investigation.
16. The next question to be addressed is whether the information sought for by the respondent is excluded from the purview of the Act.
17. Section 24(1) of the Act reads as under:-

“24. Act not to apply to certain organizations.– (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.”

18. A plain reading of Section 24(1) of the Act indicates that the provisions of the Act would not be applicable to Intelligence and Security Organizations as specified in the Second Schedule. Further, any information received from such organizations falls under the exclusionary clause of Section 24(1) of the Act. CBDT is not one of the offices, public organizations which are specified under the Second Schedule; but, the Directorate General of Income Tax (Investigation) is. Thus, any information received from the Directorate General of Income Tax (Investigation) by any Public Authority would also fall within the exclusionary provisions of Section 24(1) of the Act. Indisputably, the information sought for by the respondent emanates from the Directorate General of Income Tax (Investigations) (various DGs who have called upon to submit a comprehensive report of verification). Thus, CBDT would be justified in denying such information to the respondent.

19. It was also contended by the respondent that since the information sought for by him related to allegations of corruption, the same falls within the exception to the exclusionary clause of Section 24(1) of the Act. The respondent is correct that by virtue of the first proviso to Section 24(1) of the Act, all information pertaining to allegations of corruption and human rights violations falls within the exception to Section 24(1) of the Act. In other words, notwithstanding that such information emanates from any of the organizations as specified under the Second Schedule of the Act, it is not excluded from the purview of the Act.
20. However, in the present case, it is difficult to accept that the information sought by the respondent pertains to allegations of corruption, as no such allegations have been made at any stage. The respondent had merely highlighted that the net wealth of certain MLAs and MPs had increased fivefold and the respondent had sought verification of the same in order to bring about a higher level of transparency. No specific or general allegations of corruption were advanced by the respondent.

21. Thus, it is not possible to accept that the information as sought for by the respondent falls within the purview of the Act even though it emanates from the organization which is placed in the Second Schedule.
22. In view of the above, the order passed by the CIC cannot be sustained and is, accordingly, set aside. However, it is clarified that in the event any citizen was to make an allegation of corruption, the information as sought by the respondent would not be excluded from the scope of the Act.

23. The petition and the pending application are disposed of. The parties are left to bear their own costs.

VIBHU BAKHRU, J FEBRUARY 19, 2018

Right to Information Act, 2005 Interpreted By Supreme Court

MASTI

The Supreme Court has held in the latest judgement that indiscriminate and impractical demands or directions under the Right to Information Act, 2005 (RTI Act) for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.

The Supreme Court judgement holds that the Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.

The Supreme Court judgement holds that 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 authorities prioritising “information furnishing”, at the cost of their normal and regular duties.” (emphasis added) (7)

it has been held by the Supreme Court in the judgement that it is clear that in interpreting the scheme of the Act, this Court has, while adopting purposive interpretation, read inherent limitation in Sections 3 and 6 based on the Third Recital in the Preamble to the Act. While balancing the right to information, public interest including efficient working of the Government, optimum use of fiscal resources and preservation of confidentiality of sensitive information has to be balanced and can be a guiding factor to deal with a given situation de hors Sections 8,9 and 11

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.(s).6159-6162 OF 2013

UNION PUBLIC SERVICE COMMISSION ETC. Appellant(s)

VERSUS

ANGESH KUMAR & ORS. ETC. Respondent(s)

WITH
C.A. No. 5924/2013

JOINT DIRECTORS AND CENTRAL PUBLIC
INFORMATION OFFICER AND ANR. Appellant(s)

VERSUS

T.R. RAJESH Respondent(s)
AND

SLP(C) No. 28817/2014
SLP(C) No. 28801/2014
SLP(C) No. 28811/2014
SLP(C) No. 28816/2014
SLP(C) No. 28805/2014
SLP(C)No……. of 2018 (@Diary No(s). 15951/2017)

O R D E R

Civil Appeal No(s).6159-6162 of 2013 :

(1) We have heard learned counsel for the parties and Signature Not Verified perused the record.

Digitally signed by MAHABIR SINGH Date: 2018.02.21 16:15:35 IST Reason:

(2) These appeals have been preferred against judgment and Order dated 13.7.2012 in LPA NO.229 of 2011 in W.P.(C)NO.3316 of 2011, 28.08.2012 in Review Petition NO.486 of 2012 in LPA NO.229/2011 and Review Petition NO.484 of 2012 in W.P.(C) NO.3316/2011 of the High Court of Delhi at New Delhi.

(3) The respondents-writ petitioners were unsuccessful candidates in the Civil Services (Preliminary) Examination, 2010. They approached the High Court for a direction to the Union Public Service Commission (UPSC) to disclose the details of marks (raw and scaled) awarded to them in the Civil Services (Prelims) Examination 2010. The information in the form of cut-off marks for every subject, scaling methodology, model answers and complete result of all candidates were also sought. Learned Single Judge directed that the information sought be provided within fifteen days. The said view of the Single Judge has been affirmed by the Division Bench of the High Court.

(4) The main contention in support of these appeals is that the High Court has not correctly appreciated the scheme of the Right to Information Act, 2005 (the Act) and the binding decisions of this Court.

(5) It is submitted that though Sections 3 and 6 of the Act confer right to information (apart from statutory obligation to provide specified information under Section 4), Sections 8, 9 and 11 provide for exemption from giving of information as stipulated therein. The exclusion by Sections 8, 9 and 11 is not exhaustive and parameters under third recital of the preamble of the Act can also be taken into account. Where information is likely to conflict with other public interest, including efficient operation of the Government, optimum use of fiscal resources and preservation of confidentiality of some sensitive information, exclusion of right or information can be applied in a given fact situation.

(6) In support of this submission, reliance has been placed on judgment of this Court in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors., (2011) 8 SCC 497 wherein this Court observed :

“61. Some High Courts have held that Section 8 of the RTI Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is 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 preserving democracy. One is to bring about transparency and accountability by providing 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 Sections 3 and 4 seek to achieve 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 fulfilment and preservation of democratic ideals.

62. 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 require 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 the Freedom to Information Act, 2002. The courts and Information Commissions enforcing the provisions of the 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.

66. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of Section 4(1) of the Act which relates to securing 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 in Sections 4(1)(b) and (c) of the Act], equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.).

67. Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in 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 authorities prioritising “information furnishing”, at the cost of their normal and regular duties.” (emphasis added) (7) Thus, it is clear that in interpreting the scheme of the Act, this Court has, while adopting purposive interpretation, read inherent limitation in Sections 3 and 6 based on the Third Recital in the Preamble to the Act. While balancing the right to information, public interest including efficient working of the Government, optimum use of fiscal resources and preservation of confidentiality of sensitive information has to be balanced and can be a guiding factor to deal with a given situation de hors Sections 8,9 and 11. The High Court has not applied the said parameters.

(8) The problems in showing evaluated answer sheets in the UPSC Civil Services Examination are recorded in Prashant Ramesh Chakkarwar v. UPSC1 .

From the counter affidavit in the said case, following extract was referred to :

“(B) Problems in showing evaluated answer books to candidates.—(i) Final awards subsume earlier stages of evaluation. Disclosing answer books would reveal intermediate stages too, including the so-called ‘raw marks’ which would have negative implications for the integrity of the examination system, as detailed in Section (C) below.

(ii) The evaluation process involves several stages.

Awards assigned initially by an examiner can be struck out and revised due to (a) totalling mistakes, portions unevaluated, extra attempts (beyond prescribed number) being later corrected as a result of clerical scrutiny, (b) The examiner changing his own awards during the course of evaluation either because he/she marked it differently initially due to an inadvertent error or because he/she corrected himself/herself to be more in conformity with the accepted standards, after discussion with Head Examiner/colleague examiners, (c) Initial awards of the Additional Examiner being revised by the Head Examiner during the latter’s check of the former’s work, (d) the Additional Examiner’s work having been found erratic by the Head Examiner, been rechecked entirely by another examiner, with or without the Head 1 (2013) 12 SCC 489 Examiner again rechecking this work.

(iii) The corrections made in the answer book would likely arouse doubt and perhaps even suspicion in the candidate’s mind. Where such corrections lead to a lowering of earlier awards, this would not only breed representations/grievances, but would likely lead to litigation. In the only evaluated answer book that has so far been shown to a candidate (Shri Gaurav Gupta in WP No. 3683 of 2012 in Gaurav Gupta v. UPSC dated 6.7.2012(Del.)) on the orders of the High Court, Delhi and that too, with the marks assigned masked; the candidate has nevertheless filed a fresh WP alleging improper evaluation.

(iv) As relative merit and not absolute merit is the criterion here (unlike academic examinations), a feeling of the initial marks/revision made being considered harsh when looking at the particular answer script in isolation could arise without appreciating that similar standards have been applied to all others in the field. Non-appreciation of this would lead to erosion of faith and credibility in the system and challenges to the integrity of the system, including through litigation.

(v) With the disclosure of evaluated answer books, the danger of coaching institutes collecting copies of these from candidates (after perhaps encouraging/inducing them to apply for copies of their answer books under the RTI Act) is real, with all its attendant implications.

(vi) With disclosure of answer books to candidates, it is likely that at least some of the relevant examiners also get access to these. Their possible resentment at their initial awards (that they would probably recognise from the fictitious code numbers and/or their markings, especially for low-candidature subjects) having been superseded (either due to inter-examiner or inter-subject moderation) would lead to bad blood between Additional Examiners and the Head Examiner on the one hand, and between examiners and the Commission, on the other hand. The free and frank manner in which Head Examiners, for instance, review the work of their colleague Additional Examiners, would likely be impacted. Quality of assessment standards would suffer.

(vii) Some of the optional papers have very low candidature (sometimes only one), especially the literature papers. Even if all examiners’ initials are masked (which too is difficult logistically, as each answer book has several pages, and examiners often record their initials and comments on several pages with revisions/corrections, where done, adding to the size of the problem), the way marks are awarded could itself be a give away in revealing the examiner’s identity. If the masking falters at any stage, then the examiner’s identity is pitilessly exposed. The ‘catchment area’ of candidates and examiners in some of these low-candidature papers is known to be limited. Any such possibility of the examiner’s identity getting revealed in such a high-stakes examination would have serious implications, both for the integrity and fairness of the examination system and for the security and safety of the examiner. The matter is compounded by the fact that we have publicly stated in different contexts earlier that the paper-setter is also generally the Head Examiner.

(viii) UPSC is now able to get some of the best teachers and scholars in the country to be associated in its evaluation work. An important reason for this is no doubt the assurance of their anonymity, for which the Commission goes to great lengths. Once disclosure of answer books starts and the inevitable challenges (including litigation) from disappointed candidates starts, it is only a matter of time before these examiners who would be called upon to explain their assessment/award, decline to accept further assignments from the Commission. A resultant corollary would be that examiners who then accept this assignment would be sorely tempted to play safe in their marking, neither awarding outstanding marks nor very low marks, even where these are deserved. Mediocrity would reign supreme and not only the prestige, but the very integrity of the system would be compromised markedly.” (9) This Court thereafter approved the method of moderation adopted by the UPSC relying upon earlier judgment in Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720 and U.P. Public Service Commission v. Subhash Chandra Dixit, (2003) 12 SCC

701. (10) Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing.

Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.

(11) In view of the above, the impugned order(s) is set aside and the writ petitions filed by the writ petitioners are dismissed. This order will not debar the respondents from making out a case on above parameters and approach the appropriate forum, if so advised.

(12) The appeals are accordingly disposed of.

Civil Appeal No. 5924 of 2013:

(1) In view of judgment rendered today in Civil Appeal No(s).6159-6162 of 2013, the impugned order is set aside. The appeal stands disposed of in the same terms.

SLP(C) No. 28817/2014, SLP(C) No. 28801/2014, SLP(C) No. 28811/2014 SLP(C) No. 28816/2014, SLP(C) No. 28805/2014, SLP(C) NO……… of 2018 (arising out of Diary No(s). 15951/2017) :

(1) Delay condoned.

(2) In view of judgment rendered in Civil Appeal Nos.6159-6162 of 2013, these special leave petitions are disposed of in the same terms.

……………………..J.

(ADARSH KUMAR GOEL) ……………………..J.

(UDAY UMESH LALIT) New Delhi, February 20, 2018.