THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7974 of 2010 Dated:09.04.2010 Between: Nellore Vijaya Kumar, And another. …Petitioners and The Deputy Director of Social Welfare, Social Welfare Office, Kadapa, Kadapa District, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7974 of 2010 ORDER: Petitioners are brothers. Petitioner No.1 was appointed in 1991 in the Department of Social Welfare and at present he is working in the Office of respondent No.1. Petitioner No.2 was appointed in the Department of Fisheries in 1992 and at present he is working in the Office of respondent No.2. It appears, respondent No.3 made an application to respondent Nos.1 and 2 seeking information regarding service particulars of the petitioners. The petitioners allege that respondent No.3 is a Journalist working for various Telugu newspapers and he is in the habit of blackmailing Government employees. The petitioners apprehend that respondent Nos.1 and 2 may furnish the information to respondent No.3 without following the provisions of the Right to Information Act, 2005 (RTI Act). This Court heard the Counsel for the petitioners. The reason why respondent No.3 sought information about the petitioners is not disclosed. It is probable that the petitioners procured the Government jobs claiming reservation and respondent No.3 might be making enquires with regard to validity or genuineness of the community status claimed by the petitioners. It is also probable that respondent No.3 is seeking information under the RTI Act with regard to disciplinary matters where the petitioners are involved. They claim that any information sought by respondent No.3 being in the nature of third party information they are entitled to notice by respondent Nos.1 and 2. The Writ Petition is wholly misconceived. There is no necessity nor jurisdiction vested in the Court under Article 226 of the Constitution of India to sermonize the Officials of the Executive branch of the State to follow the law. In a country of constitutional governance by rule of law, all public authorities have to strictly adhere to rule of law. This includes acting in a transparent and accountable manner in accordance with the relevant law. To assume that the same will not be followed is to make mockery of coequal branch of the State. RTI Act has six chapters (31 sections) and two schedules. Chapter-I contains short title and dictionary clause. The heart and soul of RTI Act is chapter-II containing Sections 3 to 11, which deal with citizens’ right to information and obligation of public authorities. Chapters-III, IV and V constitute Information Commissions at various levels and describe powers and functions of these Commissions. Miscellaneous provisions are included in Chapter-VI and Section 22 gives overriding effect to the provisions of RTI Act notwithstanding anything contained in Official Secrets Act, 1927, and any other Law for the time being in force or in any instrument having effected by virtue of any law. Section 23 deals with jurisdiction of Courts to entertain any suit, application or proceeding in respect of any order made under RTI Act. As this case does not involve any controversy with regard to constitution of State Information Commission, Central Information Commission etc., and exercise of power by these Commissions, it is not necessary to refer to those sections. However, it is important to notice provisions of Chapter-II. Section 2(f) of RTI Act defines "information" as to mean 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. Section 3 of RTI Act confers on all citizens right to information. The term “record” as defined in Section 2(i) of RTI Act, include any document, manuscript and file, any microfilm, microfiche and facsimile copy of a document, any reproduction of image or images embodied in such microfilm (whether enlarged or not), and any other material produced by a computer or any other device. As per section 2(j) of RTI Act, "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to inspection of work, documents, records; taking notes, extracts or certified copies of documents or records; taking certified samples of material; and/or obtaining information in any electronic form. Section 4(1)(a) of RTI Act casts a statutory duty on every public authority to maintain all records duly catalogued and to ensure that all records are appropriated to be computerized and connected to network so as to make them accessible. Every public authority is required to designate Central Public Information Officers or State Public Information Officers in all administrative units. These Officers shall deal with request from citizens seeking information and render reasonable assistance. Section 6 of RTI Act enables a person to request for obtaining information. Under Section 7 of RTI Act, Information Officer has to respond within thirty (30) days in default of which, it shall be deemed that information is refused. Even where access to record is required to be provided, Information Officer shall provide assistance. Section 11 of RTI Act contains procedure when information sought relates to a third party, which has been treated as confidential by that third party. In such a case, a notice shall have to be issued to third party for making a representation against disclosure whereupon Information Officer shall take a decision. When information is denied by Public Information Officer, the person can prefer an appeal to such officer, who is senior in the rank to State Information Officer. Even if there is resistance at the appellate stage, Section 18(1)(a) of RTI Act enables aggrieved person to prefer a complaint to State Information Commission. If the State Information Commission comes to the opinion that information was not furnished within the time specified under Section 7(1) of RTI Act or mala fide denied request for information, a fine of Rs.250/- (Rupees two hundred and fifty only) per day (till information is furnished) can be imposed. Sections 8, 9 and 10 of RTI Act are one group of provisions, which provide for exemption from disclosure of information and grounds for rejection to access in certain cases as well as method of applying principle of severability. A perusal of these would show that Parliament has expressed very clearly on information about which there is no obligation to give such information to any citizen. Even with regard to exemption material under Section 8(1) of RTI Act, as per Section 8(2) of RTI Act, if public interests in disclosure outweighs productive interests, public authority may allow access to information notwithstanding exemptions under Section 8(1) of RTI Act or Official Secrets Act. Section 9 of RTI Act prohibits giving information, which involves infringement of copy right. Under Section 9 of RTI Act, even with regard to exempted information, if a document contains information which is not exempt, public authority may decline to grant exempted information and allow access to other information, which is not exempted. The overview of RTI Act especially Sections 6, 7, 8 read with Sections 2(f) and 2(i) of RTI Act, leads to conclusion that endeavour of legislation is to harmonise conflicting public and private interests. If information is available with public authority, unless and until it is one of the categories mentioned in Section 8(1), there should not be any objection for furnishing information subject to procedural compliance under RTI Act. Even the information regarding private persons can also be made available after Section 11 of RTI Act is complied with. Theory of ‘implied bar’ does not apply to a Law, which is made to give full scope to fundamental rights. Section 3 of RTI Act, which confers on every citizen the right to information is manifestation of fundamental rights under Article 19(1)(a) of Constitution. Unless such a right is curtailed by Law made by competent Legislature, the purpose of Law cannot be defeated. Parliament has exempted only certain categories of documents as enumerated under Section 8 of RTI Act with regard to which there is no obligation to furnish information. Explicit exemption of documents under Section 8(1) of RTI Act conclusively presupposes that RTI Act does not impliedly bar furnishing of information with regard to any information as defined under Section 2(f) read with 2(i) of RTI Act. Insofar as third party information is concerned, the Parliament itself has taken abundant care to protect the trade or commercial secrets and if in this regard if such a disclosure is public interest the right can be waived. The further protection taken by the Legislature is the issue of notice to third party with regard to the request made by any person for information about that third party. There is no warrant to suspect that respondent Nos.1 and 2 would ignore the same. Even in such an eventuality the petitioners have an efficacious remedy of appeal before the appellate Commissioner and thereafter before State Information Commission for information. The Writ Petition is accordingly dismissed. _____________ (V.V.S.RAO, J) 09.04.2010 vs