Section 11(1) of the RTI Act by SANJIV KHANNA, J. (Not very good)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA ….. APPELLANT(S)
VERSUS
SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 10045 OF 2010
A N D
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
SANJIV KHANNA, J.
60. In Arvind Kejriwal v. Central Public Information Officer and
Another38
, the Delhi High Court had examined and interpreted
Section 11 of the RTI Act in the following manner:
“12. Section 11(1), (2), (3) and (4) are the procedural
provisions which have to be complied with by the
PIO/appellant authority, when they are required to
apply the said test and give a finding whether
information should be disclosed or not disclosed. If the
said aspect is kept in mind, we feel there would be no
difficulty in interpreting Section 11(1) and the so called
difficulties or impartibility as pointed out by the
appellant will evaporate and lose significance. This will
be also in consonance with the primary rule of
interpretation that the legislative intent is to be
gathered from language employed in a statute which is
normally the determining factor. The presumption is
that the legislature has stated what it intended to state
and has made no mistake. (See Prakash Nath Khanna
vs. CIT, (2004) 9 SCC 686; and several judgments of
Supreme Court cited in B. Premanand and Ors. vs.
Mohan Koikal and Ors..
13. Read in this manner, what is stipulated by Section
11(1) is that when an information seeker files an
application which relates to or has been supplied by
third party, the PIO has to examine whether the said
information is treated as confidential or can be treated
as confidential by the third party. If the answer is in the
possible sphere of affirmative or "maybe yes", then the
procedure prescribed in Section 11 has to be followed
for determining whether the larger public interest
requires such disclosure. When information per se or
ex facie cannot be regarded as confidential, then the
procedure under section 11 is not to be followed. All
information relating to or furnished by a third party
need not be confidential for various reasons including
the factum that it is already in public domain or in
circulation, right of third party is not affected or by law
38 AIR 2012 Delhi 29
Civil Appeal No. 10044 of 2010 & Ors. Page 69 of 108
is required to be disclosed etc. The aforesaid
interpretation takes care of the difficulties visualised by
the appellant like marks obtained in an examination, list
of BPL families, etc. In such cases, normally plea of
privacy or confidentiality does not arise as the said list
has either been made public, available in the public
domain or has been already circulated to various third
parties. On the other hand, in case the word “or” is
read as “and”, it may lead to difficulties and problems,
including invasion of right of privacy/confidentiality of a
third party. For example, a public authority may have in
its records, medical reports or prescriptions relating to
third person but which have not been supplied by the
third person. If the interpretation given by the appellant
is accepted then such information can be disclosed to
the information seeker without following the procedure
prescribed in Section 11(1) as the information was not
furnished or supplied by the third person. Such
examples can be multiplied. Furthermore, the
difficulties and anomalies pointed out can even arise
when the word “or” is read as “and” in cases where the
information is furnished by the third party. For example,
for being enrolled as a BPL family, information may
have been furnished by the third party who is in the list
of BPL families. Therefore, the reasonable and proper
manner of interpreting Section 11(1) is to keep in mind
the test stipulated by the proviso. It has to be examined
whether information can be treated and regarded as
being of confidential nature, if it relates to a third party
or has been furnished by a third party. Read in this
manner, when information relates to a third party and
can be prima facie regarded and treated as
confidential, the procedure under Section 11(1) must
be followed. Similarly, in case information has been
provided by the third party and has been prima facie
treated by the said third party as confidential, again the
procedure prescribed under Section 11(1) has to be
followed.
xx xx xx
16. Thus, Section 11(1) postulates two circumstances
when the procedure has to be followed. Firstly when
the information relates to a third party and can be
Civil Appeal No. 10044 of 2010 & Ors. Page 70 of 108
prima facie regarded as confidential as it affects the
right of privacy of the third party. The second situation
is when information is provided and given by a third
party to a public authority and prima facie the third
party who has provided information has treated and
regarded the said information as confidential. The
procedure given in Section 11(1) applies to both
cases.”
61. We would clarify that Section 11 is not merely procedural but also
a substantive provision which applies when the PIO intends to
disclose information that relates to or has been supplied by a third
party and has been treated as confidential by that third party. It
requires the PIO to issue notice to the third party who may make
submission in writing or orally, which submission has to be kept in
view while taking a decision. Proviso to Section 11(1) applies in all
cases except trade or commercial secrets protected by law.
Pertinently, information including trade secrets, intellectual
property rights, etc. are governed by clause (d) to sub-section (1)
of Section 8 and Section 9 of the RTI Act. In all other cases where
the information relates to or has been supplied by the third party
and treated as confidential by that third party, disclosure in terms
of the proviso may be allowed where the public interest in
disclosure outweighs in importance any possible harm or injury to
the interest of the third party. Confidentiality is protected and
preserved in law because the public interest requires such
Civil Appeal No. 10044 of 2010 & Ors. Page 71 of 108
protection. It helps and promotes free communication without fear
of retaliation. However, public interest in protecting confidentiality
is subject to three well-known exceptions. The first exception
being a public interest in the disclosure of iniquity for there cannot
be any loss of confidentiality involving a wrongdoing. Secondly,
there cannot be any public interest when the public has been
misled. Thirdly, the principle of confidentiality does not apply when
the disclosure relates to matters of public concern, which
expression is vastly different from news value or news to satiate
public curiosity. Public concern relates to matters which are an
integral part of free speech and expression and entitlement of
everyone to truth and fair comment about it. There are certain
circumstances where the public interest in maintaining
confidentiality may be outweighed by the public interest in
disclosure and, thus, in common law, it may not be treated by the
courts as confidential information. These aspects would be
relevant under the proviso to Section 11(1) of the RTI Act.
62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of
three exceptions and more when it incorporates public interest
test. It states that information, otherwise treated confidential, can
be disclosed if the public interest in disclosure outweighs the
possible harm and injury to the interest of such a third party. The
Civil Appeal No. 10044 of 2010 & Ors. Page 72 of 108
expression ‘third party’ has been defined in clause (n) to Section 2
to mean a person other than the citizen making a request for
information and includes a public authority. Thus, the scope of
‘information’ under Section 11 is much broader than that of clause
(j) to Section 8 (1), as it could include information that is personal
as well as information that concerns the government and its
working, among others, which relates to or is supplied by a third
party and treated as confidential. Third-party could include any
individual, natural or juristic entity including the public authority.