While leaving not even an iota of doubt in the mind of anyone, the Bombay High Court in a remarkable, robust, rational, recent and refreshing judgment titled Rajendra Goyal alias Raju Goyal vs PIO and connected matter in Writ Petition No. 1066 of 2021 with Writ Petition No. 603 of 2021 and cited in 2022 LiveLaw (Bom) 78 delivered just recently on March 3, 2022 has held that claims of being a “social activist” are not enough to get information under the RTI Act, the application must show details sought are bona fide in larger public interest, and without causing “unwarranted invasion of privacy of the individual” under Section 8(1)(j) of the RTI Act. All social activists like Raju Goyal and so also the concerned authorities must always take this into account. The Court clearly said that, “The logic seems to be this: since Goyal (appellant) is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable.”
To start with, this brief, brilliant and balanced judgment authored by Justice GS Patel for a Bench of Bombay High Court comprising of himself and Justice Madhav J Jamdar first and foremost puts forth in para 1 that, “This common order and judgment will dispose of both Writ Petitions. In both matters we issue Rule on 29th November 2021.”
It is then stated in para 2 that, “Writ Petition No. 1066 of 2021 is filed by one Rajendra Goyal Alias Raju Goyal (“Goyal”). Writ Petition No. 603 of 2021 is filed by the State of Maharashtra.”
Going one para ahead, the Bench then succinctly states in para 3 that, “The 2nd Petitioner in Writ Petition No. 603 of 2021 is the Additional Superintendent of Police, Anti Corruption Bureau, Thane. Goyal is the 1st Respondent to the State Government’s Petition. The State Information Commissioner is the 2nd Respondent.”
To put things in perspective, the Bench then envisages in para 4 that, “In Goyal’s Petition, the Public Information Officer (“PIO”) of Anti Corruption Bureau, Thane is the 1st Respondent. The Additional Superintendent Police, the First Appellate Authority is the 2nd Respondent. The second Appellate Authority, the State Information Commissioner is the 3rd Respondent. The State of Maharashtra is the 4th Respondent. One Dilip Ghevare (“Ghevare”), Town Planner in Thane, has been added by an amendment as the 5th Respondent to Goyal’s Petition.”
As we see, the Bench then specifies in para 5 that, “Both Petitions deal with the same order, one dated 24th August 2020 issued by the Second Appellate Authority. Goyal wants this order implemented in full. The State Government asks that it be quashed and set aside.”
As it turned out, the Bench then observes in para 6 that, “One of the questions that arises from Goyal’s Petition is the question of whether his Petition can at all be fairly said to be bona fide. Who is Goyal, and what does he claim to be? This may not be directly relevant to the filing of an RTI query. It is certainly a question of consequence when a party comes to this Court and invokes our jurisdiction under Articles 226 and 227 of the Constitution of India. In his Petition, Goyal begins by describing himself as a ‘social activist’, an expression that is increasingly fashionable these days when a party wants to be as vague as possible about what he or she really does. It seems to have now became an avocation alongside well-established disciplines to say that one is a social activists as if that encompasses the universe of all activities without need of further clarity, and as if that automatically sanctifies or lends bona fides to the petitioner before the Court. But in Goyal’s Petition itself at page 5, possibly by more by accident than design, we find that the truth slips out. Goyal himself says he is in the business of real estate. This becomes consequential when we see that entire purport and target of his Writ Petition is the 5th Respondent, Ghevare, the town planner in Thane.”
Needless to say, the Bench then states in para 7 that, “Goyal’s RTI application dated 18th January 2019 is apparently innocuous in the first part. It seeks a disclosure about an open enquiry, identified as Open Enquiry No. 58/Thane/2017. It then seeks the fullness of information about this enquiry until date.”
Furthermore, the Bench then mentions in para 8 that, “It is the third sub-item of item 3 of the RTI application that goes further and says that what is demanded is, though in the context of the Open Enquiry No. 58/Thane/2017, the papers relating to Dilip Ghevare. Of these papers in sub-item 3 an unqualified and open inspection is sought.”
No wonder, the Bench clearly states in para 9 that, “There would ordinarily have been no difficulty with merely the enquiry report, but for the fact that the enquiry report has annexed to it a large amount of personal information pertaining to Ghevare and his family members. Sub-clause 3 makes it clear that the object of Goyal’s affections or disaffections is in fact none other than Ghevare.”
For esteemed readers exclusive indulgence, the Bench then reveals in para 10 that, “Now Section 8 of the Right To Information Act (“RTI Act”) reads thus:
“8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any 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 an 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 Ministers, Secretaries and other officers;
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over;
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (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 sub-section (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.””
Simply put, the Bench then notes in para 11 that, “Clearly the Section excludes certain classes of data and information from disclosure. Important amongst these is personal information in sub-clause (j).”
Notably, the Bench then points out quite rightly in para 12 that, “The contours of sub-clause (j) received judicial interpretation in a judgment of the Supreme Court in Girish Ramchandra Deshpande v Central Information Commissioner and Ors. (2013) 1 SCC 212.”
More precisely, the Bench then states in para 13 that, “In paragraph 11, the Supreme Court extracted sub-clauses (e), (g) and (j) of Section 8 of the RTI Act. Then in paragraphs 12 to 16, the Supreme Court said this:
“12. The Petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be “personal information” as defied in clause (j) of Section 8(1) of the RTI Act.
13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which all under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Office or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
14. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.
15. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1) (j) of the RTI Act.
16. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed.””
Quite forthrightly, the Bench then propounds in para 14 that, “The proposition that emerges is that the application must be bona fide in the public interest without causing an unwarranted invasion of privacy of the individual under Section 8(1)(j). The Petitioner must establish that the information sought for is in the larger public interest.”
On the face of it, the Bench then observes in para 15 that, “For completeness, we note that the Supreme Court decision in Girish Ramchandra Deshpande was a precursor by several years to the Supreme Court judgment regarding the right to privacy in KS Puttaswamy (Retd) And Anr v Union of India And Ors 2017 (10) SCC 1 (PuttaswamyII). It is true that Puttaswamy-II was not directly concerned with the RTI Act. But it was facially concerned with the issue of privacy, one that we find reflected in Section 8(1)(j) of the RTI Act. In Puttaswamy-II the Supreme Court clearly held that the right to privacy is an essential component of Article 21 of the Constitution of India.”
Be it noted, the Bench then enunciates in para 16 that, “This becomes important from the perspective of the State Government’s Writ Petition. To put it another way, now that we have this judicial interpretation of Section 8(1)(j), and in addition the pronouncement of the Supreme Court in Puttaswamy-II, there is no possibility at all of the State Government acting in violation of the right to privacy under Article 21.”
Of course, the Bench then states in para 17 that, “The impugned order of 24th August 2020 was passed in an second appeal by Goyal against a dismissal of his first appeal. The first appeal challenged the rejection of his RTI application by the PIO. That rejection was by a letter by 29th January 2019. The first appeal failed by an order dated 13th February 2019.”
To be sure, the Bench then specifies in para 18 that, “This is what led Goyal to file a second appeal before the Second Appellate Authority. The operative operation of the impugned order has three clauses. The first is a direction to the PIO to give inspection as sought of all the documents in the open enquiry mentioned above and copies to be provided free of cost. There is no qualification at all in this part regarding material that might be exempted from disclosure under Section 8(1)(j). That is the first error on the part of the Second Appellate Authority.”
Furthermore, the Bench then states in para 19 that, “The second paragraph of the impugned order, in our view, needlessly ventures too far afield. It castigates the First Appellate Authority — by name, something that should never be done — and then says that that Authority ‘purposely’ and ‘deliberately’ wrongly rejected the first appeal by Goyal, ‘misguided’ him, and gave him the wrong answer. This is nothing but a finding of mala fides by the Second Appellate Authority against the First Appellate Authority. Such a finding is a finding of fact. It must be based on cogent and uncontroverted material. Here, there was no material at all before the Second Appellate Authority to return any such finding of mala fides, of the First Appellate Authority having acted ‘purposely’ and ‘deliberately’ wrongly, etc. There was no occasion for the Second Appellate Authority to express its displeasure.”
Adding more, the Bench then notes in para 20 that, “But it does not stop there. The Second Appellate Authority then directed a show cause notice to be issued to the First Appellate Authority as to why disciplinary action under Section 20(1) of the RTI Act should not be taken against the First Appellate Authority. There is absolutely no warrant for this at all. Show causes notices are not to be issued, especially internally in administration, where the mere issuance can have a serious effect or impact on a service record, in this casual and off-hand manner, and based entirely on conjecture and surmise. If there is a signal failure here on the part of the Second Appellate Authority it is the failure to act with the necessary restraint and detachment.”
What’s more, the Bench observes in para 21 that, “Finally, the impugned order expresses its disappointment that against the Superintendent of Police in allegedly being negligent and not passing order in accordance with law on Goyal’s first appeal. Again, the Second Appellate Authority’s approach is entirely wrong.”
It cannot be glossed over that the Bench then holds in para 22 that, “The Second Appellate Authority completely misdirected itself on law and on the approach to be taken. It could not have shut its eyes to the existence of Section 8(1)(j) as interpreted by the Supreme Court way back in 2012. The law declared by the Supreme Court binds all, and the Second Appellate Authority is no exception to it. There is no manner of doubt that the enquiry report has references to annexures that detail Ghevare and his family’s personal assets and personal affairs. Mr Panchpor tells us that this extends even to details of bank accounts, financial holdings, etc.”
In hindsight, the Bench then aptly observes in para 23 that, “This brings us back to the first question of who Goyal is and his reasons for wanting this information. The answer to this is one that we have not received despite the putting the question repeatedly to Mr Najmi. The only answer we have received from Mr Najmi is that any person can put the criminal law into motion. Goyal has, we are told, reason to believe there is serious fraud and corruption by Ghevare. Goyal wants to stamp out corruption wherever he finds it. Therefore, according to Mr Najmi, and since Goyal is a social activist (and presumably, therefore, nothing more need be demanded of him to establish his credentials), Goyal is entitled to this information. He says it cannot be withheld. He questions how the State Government can possibly impeach an order passed by a State Information Commissioner. He calls this being both suitor and judge simultaneously.”
It cannot be lost on us that the Bench then makes no bones to point out clearly in para 24 that, “The Petition filed by Goyal has one curious and, in our view, deafening silence. It tells us nothing at all about Goyal himself. It only tells us that he is a social activist, conceivably about as an empty and expression as one could hope to find, and then reveals perhaps accidentally, that he is developer and stops at that. There is no record of any work done by Goyal in “social activism” against corruption. This is not an application by some responsible social action group. We understand and appreciate the right to public information and we endorse it. But if the statute has certain qualifications to that right, and these have not been found to be unconstitutional (or even challenged as ultra vires in this Petition), then what Goyal seeks from us is an express violation of the clear exception in the statute.”
Quite rationally, the Bench then observes in para 25 that, “The logic seems to be this: since Goyal is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable. The submission is directly contrary to the decision of the Supreme Court in Girish Ramchandra Deshpande. It would also run afoul of Puttaswamy-II.”
Quite candidly, the Bench while calling a spade a spade then plainly states in para 26 that, “We do not believe we would be wrong in saying that Goyal’s application and his Petition do not satisfy us as being bona fide.”
Going ahead, the Bench then minces no words to hold in para 27 that, “These considerations apart, as we have noted, the impugned order displays manifest errors on the face of the record. This is not a case of substituting our decision for a plausible or reasonable one by the Second Appellate Authority. The view taken by the Second Appellate Authority is one that is entirely unjustified in law and contrary to settled law, both statutory and jurisprudential. The entire decision-making process is vitiated.”
As a result, the Bench then holds in para 28 that, “This is why we are compelled to intervene in exercise of our Writ jurisdiction in the State Government Writ Petition.”
Finally, the Bench then concludes by holding in para 29 that, “Accordingly the following order:
(a) Rule is made absolute in Writ Petition No. 603 of 2021.
(b) Rule is discharged in Writ Petition No. 1066 of 2021.”
In conclusion, the Bombay High Court has made it absolutely clear that the social worker is not exempted from exceptions under Section 8 of the RTI Act. It was also made clear that the petitioner must be able to satisfy that he is bona fide in doing what he does and he is doing it to serve the larger public interest and not for his own vested interest. No doubt, what the Bombay High Court has ruled in this case so ably by citing relevant case laws also along with adequate reasoning has to be definitely accepted with grace. No denying it!
Sanjeev Sirohi