WPC NO.7304/2007 + CONNECTED MATTERS Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION (CIVIL) NOS.8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 AND 3607 OF 2007, Reserved on : 12th August,2009/2nd September, 2009. % Date of Decision : 30th November , 2009. (1) WRIT PETITION (CIVIL) NO. 8396 OF 2009 UNION OF INDIA THR. DIRECTOR, MINISTRY OF PERSONNEL, PG & PENSION ….Petitioner Through Mr.S.K.Dubey, Mr.Deepak Kumar, advocates. versus CENTRAL INFORMATION COMMISSION & SHRI P.D. KHANDELWAL ….Respondents Through Prof. K.K. Nigam, advocate for CIC. Respondent no.2, in person. (2) WRIT PETITION (CIVIL) NO.16907 OF 2006 UNION OF INDIA ..... Petitioner Through Mr. A.S. Chandhiok, ASG with Mr. Ritesh Kumar, Ms. Vibha Dhawan & Mr. Sandeep Bajaj, Advocates. versus SWEETY KOTHARI ..... Respondent Through Mr. Bhakti Pasrija, Advocate. (3) WRIT PETITION (CIVIL) NO. 4788 OF 2008 UNION OF INDIA THR. SECRETARY, MINISTRY OF DEFENCE & ANOTHER .... Petitioners Through Mr. A.S. Chandhiok, ASG with Mr. R. Balasubramanian, Advocate. versus THE CENTRAL INFORMATION COMMISSION WPC NO.7304/2007 + CONNECTED MATTERS Page 2 THR. ITS REGISTRAR & ANOTHER ..... Respondents Through Prof. K.K. Nigam, Advocate for respondent No. 1. (4) WRIT PETITION (CIVIL) NO. 9914 OF 2009 UNION OF INDIA THR. SECRETARY, MINISTRY OF DEFENCE & ANOTHER .... Petitioners Through Mr. A.S. Chandhiok, ASG with Mr. R. Balasubramanian, Advocate. versus THE CENTRAL INFORMATION COMMISSION THR. ITS REGISTRAR & MAJ.RAJ PAL (RETD.) ..... Respondents Through Prof. K.K. Nigam, Advocate for respondent No. 1. Maj. Raj Pal, in person. (5) WRIT PETITION (CIVIL) NO. 6085 OF 2008 UNION OFINDIA & ANOTHER ..... Petitioners Through Mr. A.S. Chandhiok, ASG with Mr. R. Balasubramanian, Advocate. versus CENTRAL INFORMATION COMMISSION & ANOTHER ..... Respondents Through Prof. K.K. Nigam, Advocate for respondent No. 1. (6) WRIT PETITION (CIVIL) NO. 7304 OF 2007 UNION OF INDIA ..... Petitioner Through Mr. A.S. Chandhiok, ASG with Mr. Ritesh Kumar, Ms. Vibha Dhawan & Mr. Sandeep Bajaj, Advocates. Versus BHABARANJAN RAY & ANOTHER ..... Respondents Through WPC NO.7304/2007 + CONNECTED MATTERS Page 3 (7) WRIT PETITIION (CIVIL) NO. 7930 OF 2009 ADDL.COMMISSIONER OF POLICE (CRIME) ..... Petitioner Through Mr. A.S. Chandhiok, ASG with Ms. Mukta Gupta , Ms. Anagha, Mr. Ritesh Kumar, Ms. Vibha Dhawan & Mr. Sandeep Bajaj & Mr. Bhagat Singh, Advocates. versus CENTRAL INFORMATIONAL COMMISSION & ANOTHER. ..... Respondents Through Prof. K.K. Nigam, Advocate for respondent No. 1. Mr. Prashant Bhushan, Advocate for respondent No. 2 . (8) WRIT PETITION (CIVIL) NO. 3607 OF 2007 THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA ..... Petitioner Through Mr. Parag P. Tripathi, Sr. Advocate with Mr. Rakesh Agarwal & Mr. Anuj Bhandari, Advocates. Versus CENTRAL INFORMATION COMMISSION ..... Respondent Through Prof. K.K. Nigam, Advocate. CORAM : HON’BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES SANJIV KHANNA, J.: 1. The petitioners herein have challenged orders passed by the Central Information Commission (hereinafter also referred to as CIC, WPC NO.7304/2007 + CONNECTED MATTERS Page 4 for short) under the Right to Information Act, 2005 (hereinafter referred to as the RTI Act, for short). 2. The challenge to the impugned orders involves interpretation of Sections 8(1), 18 and 19 of the RTI Act, which read as under:- ―Section 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 secretes 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 any 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 WPC NO.7304/2007 + CONNECTED MATTERS Page 5 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 authority 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. ‖ “Section 18- Powers and functions of Information Commissions- 1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the WPC NO.7304/2007 + CONNECTED MATTERS Page 6 case may be, to receive and inquire into a complaint from any person,— (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub- section (1) of Section 19 or the Central Information Commission or the State Information Commission, as the case may be; (b) who has been refused access to any information requested under this Act; (c) who has not been given a response to a request for information or access to information within the time-limit specified under this Act; (d) who has been required to pay an amount of fee which he or she considers unreasonable; (e) who believes that he or she has been given incomplete, misleading or false information under this Act; and (f) in respect of any other matter relating to requesting or obtaining access to records under this Act. (2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof. (3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:— (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; WPC NO.7304/2007 + CONNECTED MATTERS Page 7 (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. (4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds. Section 19 Appeal.—(1) Any person who, does not receive a decision within the time specified in sub- section (1) or clause (a) of sub-section (3) of Section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under Section 11 to disclose third-party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: WPC NO.7304/2007 + CONNECTED MATTERS Page 8 Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party. (5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (6) An appeal under sub-section (1) or sub- section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. (8) In its decision, Central Information Commission or State Information Commission, as the case may be, has the power to— (a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including— (i) by providing access to information, if so requested, in a particular form; (ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records; (v) by enhancing the provision of training on the right to information for its officials; WPC NO.7304/2007 + CONNECTED MATTERS Page 9 (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of Section 4; (b) require the public authority to compensate the complainant for any loss or other detriment suffered; (c) impose any of the penalties provided under this Act; (d) reject the application. (9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority. (10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed. SECTION 8 OF THE RTI ACT 3. Section 8 (1) of the RTI Act begins with a non-obstante clause and stipulates that notwithstanding any other provision under the RTI Act, information need not be furnished when any of the clauses (a) to (j) apply. Right to information is subject to exceptions or exclusions stated in section 8(1) (a) to (j) of the RTI Act. Sub-clauses (a) to (j) are in the nature of alternative or independent sub clauses. In the present cases, we are primarily concerned with Clauses (e), (h), (i) and (j) of the RTI Act. Each sub-clause has been interpreted separately. Section 8(1)(h) of the RTI Act has been interpreted while examining WP(C) No. 7930/2009, Addl. Commissioner of Police (Crime) Vs. Central Information Commission & Another. WPC NO.7304/2007 + CONNECTED MATTERS Page 10 SECTION 8 (1) (e) OF THE RTI ACT 4. Section 8(1)(e) protects information available to a person in his fiduciary relationship. As per Section 3(42) of the General Clauses Act, 1897 the term ―person‖ includes a juristic person, any company or association or body of individuals, whether incorporated or not. Section 8(1)(e) adumbrates that information should be available to a person in his fiduciary relationship. The ―person‖ in Section 8(1)(e) will include the ―public authority‖. The word ―available‖ used in this Clause will include information held by or under control of a public authority and also information to which the public authority has access to under any other statute or law. The term ―information‖ has been defined in Section 2(f) of the RTI Act as under: ―(f) "information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; ― 5. The information relating to a private body which can be accessed by a public authority under any other law in force is information which may be made available. Information ―available‖ with a public authority can be furnished. 6. The term ―fiduciary relationship‖ has not been defined in the RTI Act. Therefore, we have to interpret the term ―fiduciary WPC NO.7304/2007 + CONNECTED MATTERS Page 11 relationship‖ keeping in mind the object and purpose of the RTI Act and the term ―fiduciary‖ as is understood in common parlance. The RTI Act is a progressive and a beneficial legislation enacted to provide a practical regime to secure to the citizen‘s, right to information; to promote transparency, accountability and efficiency and eradicate corruption. Sub-section 8(1)(e) of the RTI Act permits screening and preservation of confidential and sensitive information made available due to fiduciary relationship. The aforesaid Clause has been interpreted by S. Ravindra Bhat, J. in CPIO, Supreme Court of India, New Delhi versus Subhash Chandra Agarwal and another (Writ Petition No. 288/200) decided on 2nd September, 2009 as under:- ―55. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mothew [1998] Ch 1, the term ―fiduciary‖,was described as under: “A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.” Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan,(2005) 1 SCC 212 and Needle Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd : 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal. 56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide whether a transaction resulted in a fiduciary relationship. Money was sought to be recovered WPC NO.7304/2007 + CONNECTED MATTERS Page 12 by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds,; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds)in a fiduciary capacity. The High Court upset the trial court ‘s findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court ‘s findings. The court noticed Section 88 of the Trusts Act, which reads as follows: “Section 88.Advantage gained by fiduciary.- Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.” Affirming the High Court ‘s findings that the bank did not owe a fiduciary responsibility to the appellant, it was held by the Supreme Court, that: “9.An analysis of this Section would show that the Bank, to whom the money had been entrusted, was not in the capacity set out in the provision itself. The question of any fiduciary relationship therefore arising between the two must therefore be ruled out. It bears reiteration that there is no evidence to show that any trust had been created with respect to the suit money..” The following kinds of relationships may broadly be categorized as ―fiduciary ‖: Trustee/beneficiary (Section 88, Indian Trusts Act, 1882); Legal guardians / wards (Section 20, Guardians and Wards Act, 1890); Lawyer/client; Executors and administrators / legatees and heirs; Board of directors / company; WPC NO.7304/2007 + CONNECTED MATTERS Page 13 Liquidator/company; Receivers, trustees in bankruptcy and assignees in insolvency / creditors; Doctor/patient; Parent/child. 57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as “a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship ….Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer ” 58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be ―formally ‖or ―legally ‖ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles.‖ 7. In Woolf vs Superior Court (2003)107 Cal.App. 4th 25, the California Court of Appeals defined fiduciary relationship as ―any relationship existing between the parties to the transaction where one of the parties is duty bound to act with utmost good faith for the benefit of the other party. Such a relationship ordinarily arises where WPC NO.7304/2007 + CONNECTED MATTERS Page 14 confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interests of the other party without the latter‘s knowledge and consent.‖ 8. Fiduciary can be described as an arrangement expressly agreed to or at least consciously undertaken in which one party trusts, relies and depends upon another‘s judgment or counsel. Fiduciary relationships may be formal, informal, voluntary or involuntary. It is legal acceptance that there are ethical or moral relationships or duties in relationships which create rights and obligations. The fiduciary obligations may be created by a contract but they differ from contractual relationships for they can exist even without payment of consideration by the beneficiaries and unlike contractual duties and obligations, fiduciary obligations may not be readily tailored and modified to suit the parties. In a fiduciary relationship, the principal emphasis is on trust, and reliance, the fiduciary‘s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position, integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself. 9. One basic difference between fiduciary and contractual or any other relationship is the quality and the extent of good faith obligation. WPC NO.7304/2007 + CONNECTED MATTERS Page 15 In contractual or in other non fiduciary relationship, the obligation is substantially weaker and qualitatively different as compared to a fiduciary‘s legal obligation. Fiduciary loyalty and obligation requires complete subordination of self-interest and action exclusively for benefit of the beneficiary. Primary fiduciary duty is duty of loyalty and disloyalty an anathema. Contractual or other non fiduciary relationship may require that a party should not cause harm or damage the other side, but fiduciary relationship casts a positive obligation and demands that the fiduciary should protect the beneficiary and not promote personal self interest. Although, strict liability may not apply to instances of disloyalty, other than in cases of self-dealing, judicial scrutiny is still intense and the level of commitment and loyalty expected is higher in fiduciary relationships than non-fiduciary relationships. In some cases, trustees have been held liable even when there is conflict of interests as the beneficiary relies upon and is dependent upon the fiduciary‘s discretion. Fiduciary‘s loyalty obligation is stricter than the morals of the market place. It is not honesty alone, but the punctilio of an honour, the most sensitive