Moneycontrol
May 20, 2017 11:17 AM IST | Source: PTI

SC order on personal info not binding: Info Commissioner

A Supreme Court order, commonly cited by a public authority to deny "personal information" of officials, cannot be a ground for refusing records under the RTI Act, Information Commissioner Sridhar Acharyulu said today.

SC order on personal info not binding: Info Commissioner

A Supreme Court order, commonly cited by a public authority to deny "personal information" of officials, cannot be a ground for refusing records under the RTI Act, Information Commissioner Sridhar Acharyulu said today.

In his presentation on "Scope of Privacy of 'Public' Servant" at a seminar on RTI implementation here, Acharyulu said in the Girish Ramachandra Deshpande case, the apex court in 2012 had ordered that his Special Leave Petition challenging the order of Bombay High Court is to be dismissed.

"Dismissal of Special Leave Petition means the Supreme Court did not permit the appellant to file an appeal over the order of division Bench of Bombay High Court," he said.

The case relates to Deshpande, who had filed an RTI for copies of memos, censures issued against an officer but the authorities claimed it to be personal information and rejected it.

This was upheld by the Central Information Commission and the Bombay High Court.

Deshpande filed a Special Leave Petition before the Supreme Court challenging the high court order which had claimed these records to be personal information as it was a matter between an employee and the employer.

The SLP was dismissed by the Supreme Court with some observations which are being cited by public authorities to deny information when an RTI applicant demands service records of a public servant.

Citing constitutional provisions and a number of Supreme Court orders, Acharyulu today said the observations made by the Supreme Court cannot be a ground to deny information.

He said the Supreme Court in its 2010 order in the case of Bhakra Beas Management Board versus Krishan Kumar Vij had held that mere dismissal of an SLP at a preliminary stage does not constitute a binding precedent, and accordingly, any order.

He also cited a Supreme Court order by noted judge R C Lahoti which had said in any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court.

"The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order," it had said in 2000.

Acharyulu said, in the Girish case, the apex court discussed the facts in five or six paragraphs and held the matter need not be heard in the appeal.

"The mention and discussion of the facts give character of 'speaking order' to it. But the merits or facts discussed are only limited to the extent of allowing or dismissing the 'special leave' and it does not mean that all the facts...were heard, discussed and decided for the purpose of laying down law on those questions," he said.

Acharyulu asserted that the disciplinary action or complaints against a public servant, cannot fall under the categories of private domain such as family, marriage, procreation, motherhood, child bearing and education.

He said the apex court in the matter of R Rajgopal v State of Tamil Nadu in 1996 had clearly stated that the information that formed part of public record or court record does not give rise to any privacy, except in cases of female victims of sexual crimes where her name shall not be revealed.

"When compared and analysed, the ratio in Rajgopal was in full-fledged writ appeal which was heard on merits was not over ruled by the order of dismissal of SLP in Girish," he said in his presentation.

Acharyulu, who was a professor at NALSAR, Hyderabad, said as it was not writ appeal there was no opportunity to bring the ratio in the Rajagopal case to the notice of the Division Bench of Supreme Court.

"Another vital point is that the memos, complaints or disciplinary action related information is not unconnected with public activity, which was also not discussed in the order. It might have happened because it was not a full writ appeal but a hearing on SLP only," he said.
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