‘possible’ harm and injury to the third party on disclosure
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.
72. Public interest, sometimes criticised as inherently amorphous and
incapable of a precise definition, is a time tested and historical
conflict of rights test which is often applied in the right to
information legislation to balance right to access and protection of
the conflicting right to deny access. In Mosley v. News Group
Papers Ltd.49 it has been observed:
“130… It is not simply a matter of personal privacy
versus the public interest. The modern perception is
that there is a public interest in respecting personal
privacy. It is thus a question of taking account of
conflicting public interest considerations and evaluating
them according to increasingly well recognized
criteria.”
The RTI Act is no exception. Section 8(1)(j) of the RTI Act
prescribes the requirement of satisfaction of ‘larger public interest’
for access to information when the information relates to personal
information having no relationship with any public activity or
interest, or would cause unwarranted invasion of privacy of the
individual. Proviso to Section 11(1) states that except in case of
trade or commercial secrets protected by law, disclosure may be
allowed if the public interest in disclosure outweighs in importance
any possible harm or injury to the interest of the third party. The
words ‘possible harm or injury’ to the interest of the third party is
preceded by the word ‘importance’ for the purpose of comparison.
49 2008 EWHC 1777 (QB)
Civil Appeal No. 10044 of 2010 & Ors. Page 86 of 108
‘Possible’ in the context of the proviso does not mean something
remote, far-fetched or hypothetical, but a calculable, foreseeable
and substantial possibility of harm and injury to the third party.
73. Comparison or balancing exercise of competing public interests
has to be undertaken in both sections, albeit under Section 8(1)(j)
the comparison is between public interest behind the exemption,
that is personal information or invasion of privacy of the individual
and public interest behind access to information, whereas the test
prescribed by the proviso to Section 11(1) is somewhat broader
and wider as it requires comparison between disclosure of
information relating to a third person or information supplied and
treated as confidential by the third party and possible harm or
injury to the third party on disclosure, which would include all kinds
of ‘possible’ harm and injury to the third party on disclosure