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2015 (7) TMI 375 - BOMBAY HIGH COURT

2015 (7) TMI 375 - BOMBAY HIGH COURT - TMI - Scope of RTI - seeking Income Tax Returns and balance sheets of others of elected representatives - right to privacy - RTI application requesting certain information and more particularly the Income Tax Returns and balance sheets of the Respondent No.3 herein for the preceding three years - The CPIO of the Income Tax Department thereafter by her order dated 212013 denied the said information sought by the Petitioner. It was observed in the said order .....

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. - In the instant case, the said burden cannot said to have been discharged by the Petitioner.

There is a basic fallacy in the contention raised on behalf of the Petitioner. The Petitioner wants to proceed on the hypothesis that the information sought by him cannot be denied to the Parliament. In so far as the Parliament is concerned, the Parliament has its own rules of business and it therefore cannot be presumed that the information in respect of the Income Tax Returns of a Member .....

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f States or the Speaker of the House of the People i.e. Loksabha or the Chairman of the Council of the State i.e. Rajyasabha. Hence there are adequate provisions in the Representation of the People Act under which the information sought is to be provided to the Parliament to the extent mentioned in the said provisions and therefore reliance cannot be placed on the proviso to Section 8(1)(j) to contend that the exemption provided in the said Section would not operate.

RTI application w .....

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al Information Commission by which order, the Second Appeal filed by the Petitioner under the Right to Information Act 2005, (hereinafter referred to as the said Act) came to be dismissed and resultantly, the orders passed by the Central Public Information Officer (CPIO for short) of the Income Tax Department and the order dated 522013 passed by the First Appellate Authority came to be confirmed. 3 The Petitioner abovenamed claims to be an RTI activist and is a former Central Information Commiss .....

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in the said application justified the information sought by stating to the following effect: There is a larger public interest in disclosing this information to compare his affidavit given to the Election Commission with his Income Tax returns . Since the information related to the Respondent No.3 who is a third party, it seems that in terms of Section 11 of the said Act, a letter was addressed by the CPIO to the Respondent No.3. A reply was received from the Respondent No.3 opposing the disclo .....

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ority whose designation was mentioned in the said order. 5 The Petitioner accordingly filed a First Appeal under Section 19 of the said Act. The said Appeal inter alia contained the grounds on which the order was challenged, one of the grounds in the Appeal was that the disclosure of the information to another person cannot be construed as being unwarranted invasion of the privacy of the individual. Another ground that was set out was that the fulfillment of the statutory requirements would not .....

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DR) (2002)5 Supreme Court Cases 294. The said order was therefore challenged on the ground that exemption under Section 8(1)(j) does not apply. 6 The First Appeal was considered by the Appellate Authority i.e. the Additional Commissioner of Income Tax18( 2) who by his order dated 522013 rejected the said Appeal. The First Appellate Authority reiterated the grounds on which the information was denied by the CPIO. The First Appellate Authority referred to the Judgment of the Apex Court in the case .....

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rish Ramchandra Deshpande's case (supra), the information sought by the Petitioner falls under the exempted category specified under Section 8(1)(j) of the said Act. The First Appellate Authority further observed that the said information is a personal information the disclosure of which has no relationship to any public activity or interest and which would cause unwarranted invasion of the privacy of the concerned party. Hence on the aforesaid grounds, the Appeal filed by the Petitioner cam .....

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de's case (supra) has been rendered without considering the said two judgments as also without considering the proviso to the said Section 8(1)(j) of the said Act. The said Second Appeal filed by the Petitioner came to be disposed of by the Central Information Commissioner by upholding the orders passed by the Public Information Officer and the First Appellate Authority. The Central Information Commissioner in his order referred to the 5 Member Bench Judgment dated 562009 of the Commission w .....

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involved a larger public and the CPIO and or State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. The Central Information Commissioner has observed that in the present Appeal the Petitioner has not been able to prove any larger public interest with corroborative evidence and therefore upheld the decisions of the Central Public Information Officer and the First Appellate Authority and disposed of the .....

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and the Central Information Commissioner have erred in rejecting the application filed by the Petitioner seeking the Income Tax Returns for 3 years of the Respondent No.3 which have been sought for by the said application on the ground that the said information is exempted under Section 8(1)(j) of the said Act. (ii) That all the three authorities below have failed to appreciate that the filing of the Income Tax Returns is a public activity and is a matter of public interest and hence privacy of .....

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lying the judgment of the 5 Member Bench of the Information Commission as also the Judgment of the Apex Court in Girish Ramchandra Deshpande's case (supra) as the facts in the said cases are distinguishable from the facts of the present case. (v) That the Judgment in Girish Ramchandra Deshpande's case (Supra) does not lay down any proposition of law and therefore cannot be applied. (vi) That the disclosure of the information sought for by the Applicant would be in larger public interest .....

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held in the said case that the information which cannot be denied to the Parliament or the State Legislature cannot be denied to the citizen. (ix) That the disclosure of the information is in larger public interest has been demonstrated by the Petitioner by making out a case in the Appeal namely that the same would amount to reducing corruption and increasing the faith in the elected representatives. (x) That the judgment in Girish Ramchandra Deshpande's case (supra) does not lay down any l .....

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. & Anr. (xi) That it has been held in the matter of PUCL Vs. Union of India AIR 2003 SC 2363 as also in the matter of R. Rajgopal alias R.R.Gopal & Anr. Vs. State of T.N. & Anr. (1994) 6 Supreme Court Cases 632 and in the case of ADR Vs. PUCL (2002)5 SCC 294 that the public interest element involved in divulging information relating to public servants, MP's and Ministers outweighs the right to privacy. SUBMISSION OF THE LEARNED COUNSEL MR. MALHOTRA ON BEHALF OF THE RESPONDENT NO .....

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ct the information sought i.e. the Income Tax Returns of the Respondent No.3 with any public activity of the Respondent No.3 and therefore the authorities were right in refusing to provide the information to the Petitioner. SUBMISSION OF THE LEARNED SENIOR COUNSEL MR. R.M.KADAM ON BEHALF OF THE RESPONDENT NO.3 (i) That from the reason mentioned in the application for seeking the information that the Petitioner/Applicant has sought in respect of the Respondent No.3 no case of public interest has .....

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a Deshpande's case (supra) which has been reiterated by the Apex Court in R.K.Jain's case (supra), the information relating to the Income Tax Returns falls within the exempted category under Section 8(1)(j) and since no case of public interest has been made out by the Petitioner, the said information cannot be provided. The authorities below were therefore right in rejecting the application of the Petitioner. (iv) That the Judgments on which reliance is placed on behalf of the Petitioner .....

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e and hypothesis that the information sought cannot be denied to the Parliament or the State Legislature and therefore cannot be denied to the Petitioner. The Parliament has its own rules of business and it cannot be presumed that the information in respect of Income Tax Returns of a member of the State Legislature would be sought. Reliance is placed on the judgment of a Learned Single Judge of the Delhi High Court in the matter of Vijay Prakash Vs. Union of India 160(2009) Delhi Law Times 631 ( .....

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wisdom having directed the candidate to provide the information to the extent mentioned in the said Act at the time of filing of the nomination, it is for the Parliament to determine if any further information is required to be divulged by the candidate for which necessary amendment in the Representation of People Act would have to be made. It is therefore not open for the Petitioner to contend that the Petitioner seeks the information sought as he wants to cross check the information given by t .....

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the nomination. CONSIDERATION 8 Having heard the Learned Counsel for the parties, I have considered the rival contentions. The question that arises for consideration in the instant matter is whether the Petitioner is entitled to the information he has sought for vide his application filed under the said Act or whether the said information falls within the exempted category under Section 8(1)(j) of the said Act. At this stage, it would necessary to refer to the provisions of the said Act which h .....

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relates to personal information the disclosure of which has no relationship to any public activity 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 Legisl .....

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ed 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. 11. Third party information.- (1) Where a Central Public Information Officer or a State Public Information Officer, as the cas .....

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ublic Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure o .....

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g contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section b, if the third party has been given an opportunity to make representation under subsection (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third (4) A notice given under subsection (3) shall include a statem .....

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s to disclose the information or the record or part thereof and invited the third party to make a submission in writing or orally regarding whether the said information should be disclosed. Hence in terms of Section 11, the third party is required to be given a notice and the reply given by the third party to the request made has to be considered by the Information Officer whilst deciding the application. 10 In so far as Section 8(1)(j) is concerned, it relates to the personal information of an .....

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hat the information which cannot be denied to the Parliament or the State Legislature shall not be denied to any person. It is on the touchstone of the aforesaid two provisions that the application filed by the Petitioner in the instant matter would have to be considered. The Petitioner in his application made on 21112012 has sought the Income Tax Returns of the previous three financial years of the Respondent No.3. The reason for which the information sought has been stated thus There is a larg .....

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hip to any public activity or interest and it therefore does not qualify for bring disclosed in view of Section 8(1)(j) of the said Act. 11 The Petitioner aggrieved by the said order dated 212013 filed an Appeal before the First Appellate Authority under Section 19 of the said Act. After justifying the reason for seeking information, the Petitioner in paragraph (4) of the said Appeal has stated to the following effect : There is a general belief that politicians and elected representatives are c .....

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t would also improve the Citizens' trust in the Income Tax department. Hence the Petitioner had sought to supplement the reason given in his original application before the CPIO by making a general statement in his Appeal to the effect mentioned in the excerpted portion of paragraph (4) as above of his Appeal. The said Appeal as indicated above was dismissed by the First Appellate Authority by its order dated 522013 and the reason mentioned by the CPIO was reiterated by the First Appellate A .....

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e of the information on the ground of the same being in public interest. 12 At this stage, it would be necessary to refer to the Judgment of the Apex Court in Girish Ramchandra Deshpande's case (supra) and R. K. Jain's case (Supra) as also the judgment of the 5 Member Bench of the Commission. In so far as Girish Ramchandra Deshpande's case (supra) is concerned, amongst the information sought by the Petitioner was the information relating to the details of the investments of the third .....

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the said Act, unless involves larger public interest and the CPIOor the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. Paragraphs 11 to 13 of the judgment in Girish Ramchandra Deshpande's case (supra) are material and are reproduced hereinunder: 11. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his empl .....

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the abovementioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act. 12. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/offi .....

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ation Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 13. The details disclosed by a person in his income tax returns are" personal information" which stand exempted from disclosure under clause(j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Off .....

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ch stands exempted under Section 8(1)(j) of the said Act. The Apex Court referred to the Judgment in Girish Ramchandra Deshpande's case (supra) and especially paragraphs 11 to 13 thereof and thereafter concluded that the said information could not be provided and accordingly affirmed the Judgment of the Division Bench of the High Court. Paragraph 21 of the said report is material and is reproduced hereinunder: 21. In view of the discussion made above and the decision in this Court Girish Ram .....

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lst deciding the Appeal has referred to various Judgments of the Commission and thereafter has concluded that the Income Tax Returns fall in the category of personal information and is therefore exempted under Section 8(1)(j) of the said Act. 15 Hence what flows from the Judgments of the Apex Court is that the Income Tax Returns constitute personal information and are exempted from disclosure under Section 8(1)(j) and that the said personal information can only be divulged if the CPIO or the Sta .....

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tement which does not specifically relate to the Respondent No.3. The Petitioner has also sought to justify the information sought on the ground that the Income Tax authorities do not check the Income Tax Returns of those who are elected with their declared affidavits filed at the time of standing for elections. The said ground also does not make out any case of there being any public interest involved in the disclosure of the information sought by the Petitioner by way of the Income Tax Returns .....

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id to satisfy the test of disclosure being made in public interest. The Petitioner has sought to assail the reliance placed by the CIC on the judgment in Girish Ramchandra Deshpande's case (supra) on the ground that the same does not lay down any law and that the same has been rendered without considering the judgment of the Apex Court in PUCL's case and R.Rajgopal's case (supra). In the context of the challenge to the applicability of the judgment in Girish Ramchandra Deshpande' .....

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by service rules and is a matter between the employer and the employee and that the information falls within the expression personal information, disclosure of which according to the Apex Court had no relationship to any public activity or public interest and on the other hand would cause unwarranted invasion of the privacy of that individual. In so far as the information sought by the Petitioner / Applicant relating to the investments, loans and borrowing from banks, the Apex Court held that t .....

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cannot claim the said details as a matter of right. Hence the Apex Court in Girish Ramchandra Deshpande's case (Supra) was directly concerned with Section 8(1)(j) of the said Act and exemption from disclosure covered by the said provision, it is in the said context that the Apex Court made observations and recorded a finding that the details in the Income Tax Returns is personal information and can be disclosed only if public interest so warrants. The Apex Court thereby laid down a proposit .....

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se 745, 1992(1) Supreme Court Cases 489 and (2002) 8 Supreme Court Cases 361 to contend that Girish Ramchandra Deshapande's case (supra) does not lay down any law, is thoroughly misplaced, as the said judgments have been rendered in the factual context prevailing in the said cases. Hence in so far as whether the Income Tax Returns fall in the exempted category the issue has been concluded by the Apex Court in Girish Ramchandra Deshpande's case, which has been fetched in R.K.Jain's ca .....

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n which he is required to furnish in his nomination has also to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed, whether he has been convicted of an offence, the candidate has to submit an affidavit in the prescribed from verifying the information specified in subsection (1). The returning officer after the information is furnished to him under subsection (1) displays the said in .....

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information which he knows or has reason to believe to be false. Hence a reading of the aforesaid provisions disclose that to have free and fair elections and to bring purity in the electoral process in the country and to bring probity in public life that certain electoral reforms were introduced which are now reflected in the framing of Section 33A and Section 125A of the Representation of the People Act. Hence the Parliament has provided for disclosure of information relating to the candidate .....

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t mentioned in Section 33A, it is not open for a citizen to contend that he seeks certain information to cross check the information which has been revealed by the candidate at the time of filing of his nomination. If the information furnished by a candidate is false, he can be prosecuted under Section 125A of the said Act. In the instant case, as indicated above, the Petitioner has sought information to cross check the information furnished by the Respondent No.3 at the time of filing of his no .....

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tion be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the prerequisites for the same are satisfied. 17 Now coming to the judgment in P.U.C.L. and another's case (supra). The said judgment concerns the directions issued by the Election Commission of India under Article 324 of the Constitution .....

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y for smooth conduct of elections and the word elections is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. 2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article is a reservoir of power to act for the avowed purp .....

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s case, the Court construed the expressions superintendence, direction and control in Article 324 (1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders. 3. The word elections includes the entire process of election which consists of several stages and it embraces many steps, some of which .....

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ons of black money, which is used for retaining power and for reelection. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be reelected even in case where he has collected tons of money. Presuming, as contended by the learned senior counsel Mr. Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the county as the amount would be una .....

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racy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. 5. The right to get information in democracy is recognized all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19[1] ad [2] of the International Covenant of Civil and Political Rig .....

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lature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest. 7. Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For .....

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ering the challenge raised to Section 33B of the Representation of the People Act. The Apex Court was considering the disclosure of information by a candidate under Section 33A of the said Act in the context of the right to privacy which is protected under Article 21 of the Constitution of India. The observations of the Apex Court in paragraph 49 of the said judgment are material and are for the sake of ready reference reproduced herein under :49 It is to be stated that the Election Commission h .....

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o privacy would not be affected if the information sought by the Petitioner is disclosed. The Apex Court has made the observations that it has made having regard to the amended provisions of the Representation of People Act, and the said observations cannot be applied whilst considering the provisions of the said Act, which is a self contained code. 20 The Petitioner has also sought to place reliance on the judgment of the Apex Court in R Rajagopal's case (supra). The said judgment also conc .....

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e nexus between the prisoner and several IAS and IPS and other officers some of whom were alleged to be his partners in several crimes. The Petitioner had decided to commence serial publication of the autobiography and announced the same in their magazine. The Inspector General of Prisons wrote a letter to the Petitioners alleging that the serial in question was not written by Auto Shankar and asking the Petitioners to stop publishing the same forthwith. The question that the Apex Court framed w .....

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e a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. In my view, the said judgment does not further the case of the Petitioner in seeking the information sought on the ground that no right of privacy of the Respondent No.3 is affected, in fact the said judgment supports the case of the Respondent No.3 as the Apex Court has observed that the right to privacy would have to give way if .....

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11 . In the light of the judgments of the Apex Court in Girish Ramchandra Deshpande's case also R.K.Jain's case which judgments of the Apex Court are latter in point of time. The said judgment of a learned Single Judge of this Court stands impliedly overruled. 22 The exemption under Section 8(1)(j) of the said Act had come up for consideration before the Apex Court recently in Bihar Public Service 11 2009(0)AIJMH 146009 Commission's Case (supra). The Apex Court after observing that .....

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d the invasion of privacy, the observations of the Apex Court in paragraph 23 of the said judgment are material and are reproduced herein under: 23 The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in .....

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tivity or interest or it may even cause unwarranted invasion of privacy of the individual. On these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy an .....

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onerous than may be a routine case. As indicated in the earlier part of this judgment the reason mentioned in the original application as supplemented by the grounds in the First Appeal hardly make out a case of public interest. Hence in the instant case, the said burden cannot said to have been discharged by the Petitioner. Hence the finding of the First Appellate Authority as well as the CIC that the Petitioner has not made out any case for disclosure of the information on the ground of publi .....

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ner cannot be denied to the Parliament or the State Legislature. In support of the said contention the Petitioner has sought to place reliance on the judgment of a Division Bench of this Court in Surup Singh Naik's case (supra). In so far as the said judgment of the Division Bench is concerned, to which this Court was a party, no doubt in the said judgment proviso to Section 8(1)(j) was in contention and the Division Bench of this Court had allowed the application filed by the Petitioner see .....

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surrendered to the police in Mumbai on 12052006. On 14052006 the Petitioner was shifted to one of the Government Hospitals i.e. the Sir J J Hospital on account of suspected heart problem as well as low sugar and blood pressure. The Respondent No.5 in the said Petition who was a private citizen had by his application dated 27052006 sought information from the CPIO of the said Sir J J Hospital of the medical reports of the Petitioner. In his application it was set out that it was in public interes .....

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success. The Respondent No.5 therefore preferred a Second Appeal before the Respondent No.2. The Respondent No.2 i.e. Second Appellate Authority allowed the Appeal and directed the information to be provided to the Respondent No.5 which order was challenged before the Division Bench of this Court by way of the said Writ Petition. The Division Bench crystallized the question that it was required to answer namely the right of an individual to keep certain matters confidential on the one hand and r .....

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d to Parliament or the State Legislature unless the person who opposes the release of the information makes out a case that such information is not available to Parliament or the State Legislation under the Act. The Division Bench went on to observe that having regard to the plenary powers which the legislature enjoys, such information cannot be denied to Parliament or State legislature by any public authority. The Division Bench concluded that the records of the institution i.e. Sir J J Group o .....

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had got himself admitted to avoid incarceration. The said judgment, in my view, cannot be extended to mean that any and every information is to be provided to the Parliament or the State Legislature. This has to be viewed in the context of the facts of Surup Singh Naik's case (supra) wherein the Division Bench of this Court was of the view that the information relating to the patient Surup Singh Naik could not have been denied to the Parliament or State Legislature. In my view, therefore, th .....

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e reasoning of this Court which appears to have given undue, even overwhelming deference to Parliamentary privilege. The Learned Single Judge observed that were that the true position, the enactment of Section 8(1)(j) would itself be rendered meaningless and the basic safeguard bereft of content. The Learned Judge concluded that if the proviso is to be interpreted in a manner that the Parliament has the right to demand any information then there would be nothing left to the right to privacy whic .....

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