Access rule, exemption exception

Giving information is the rule which needs to be liberally interpreted and exemption being an exception, it has to be strictly interpreted. A husband filed a Tax Evasion Petition (TEP) against his wife, who levelled allegations against him and sought a criminal prosecution for dowry harassment. He filed RTI application to know the status of petition, action taken and to know the other sources of income of his wife.

The PIO of IT department rejected quoting Section 8(1) of the Act, by reasoning that the information sought was personal in nature, relating to dowry and did not further public interest. (The relevant portion of this: Exemption from Disclosure of Information: (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen. …..(j) information which relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause un-warranted 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 justices the disclosure of such information.)

His appeal was also rejected by PIO who not only reiterated section 8(1) (j) as a ground for rejection but also observed that the information sought could also be denied under Section 8(1) (h), which said: (h) information which would impede the process of investigation or apprehension or prosecution of offenders.

The CIC allowed the second appeal and set aside the rejection of information, and the exemption Clause 8(1) (j). The CIC further held that as the investigation on TEP has been conducted by DIT (Inv), the relevant report is the outcome of public action which needs to be disclosed. This cannot be exempted u/s 8(1) (j) as interpreted by the appellate authority. Though the CIC directed the DIT (Investigation) to disclose the report as per the provision u/s 10(1) and (2), it stated that it could be done ‘after the entire process of investigation and tax recovery, if any, is complete in every respect’. This last part of the direction was challenged in Delhi High Court. Direction to disclosure was welcomed but withholding it till investigation was over in all aspects would block the disclosure which would have saved him from prosecution in dowry case. He contended that Section 8(1) (i) was incorrectly applied by CIC.

Delhi High Court Justice S. Ravindra Bhat accepted this contention in WP(C) No. 3114/2007 and decided on December 3, 2007 in Bhagat Singh vs. Chief Information Commissioner and Others.

Justice Ravindra Bhat laid down an important rule saying: Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore, is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process.

Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information. Justice Bhat advised: A rights-based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation.

The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view (See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adapting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.

The judge found that PIO, AA and CIC did not give reasons, why the investigation process would be hampered. He said: The direction of the CIC shows that the information needs to be released only after the investigation and recovery is complete. Facially, the CIC order supports the petitioner's contention that the claim for exemption as untenable. Section 8(1) (j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usualcircumstances is a time- consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical.

Delhi High Court observed that the CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made. The HC took serious note of the two-year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the authorities in releasing the information sought. However, the High Court refused to give a direction to the Central Information Commission to initiate action under Section 20 of the Act, as mala fide reasons could not be established. The judgment shows how RTI can help to disprove the false allegations.