Privacy & Public Servant
IsGirishjudgment of SC a Precedent?M. SridharAcharyuluCentral Information Commission19.5.2017
Every employee of public authority is public servant.Though Public Authority has to be transparent, as a person public servant has right to privacy as part of right to life.GirishRamachandraDeshpandecase is one which is profusely used as a weapon to reject RTI applications
Refusing copies of Memos
GirishRDeshpandefiled an RTI for copies ofMemos, censures, SCNs against an OfficerCPIO, FAA refused saying it was personal information of that officerunder S 8(1)(j) of RTI Act.CIC also rejected the second appeal saying: “it was his personal information” and there was ‘no larger public interest’.
in Bombay HC
Single JudgeBomHC (Nagpur Bench) rejected WP in 2010The DB ofBomHC also dismissed LPA, 2011.Held: Performance of employee/officer in an organization is primarilya matter between employer and employee, those aspects are governed by service rules, which fall under ‘personal’ category. Disclosure causes unwarranted invasion of privacy.
In 2012, a Division Bench of the Supreme Court dismissedSpecial Leave Petition (SLP) ofGirishagainst the order of Division Bench of Bombay HC.It was not dismissedinlimini.The SC Bench expressed agreement with Bombay HC.Is it a full-fledged hearing on merits?
ManojAryaasked similar info and CIC rejected quoting order of dismissal of SLP of SC inGirishDoPTissued OM in Aug 2013 referring CIC and SC, directing the public authorities to refuse Memos, SCN Charges etc.The SC, HCs and CIC gave emphatic conclusions on ITRs, ACRs; Assets statements-LokpalAct.Complaints, Memos, SCNs: How can they be private?
Law of Precedent A 141
Art. 141 of Indian Constitution:The law declared by the Supreme Court shall be binding on all courts within the territory of India.State of Orissa v MDIllyas2006: Precedent has 3 aspects. A) A finding on material facts, B) Principles of law applicable to legal problems disclosed by facts, C) Judgment based on effect of each of the above.
SC’s discretionary power in SLP
Art. 136.(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.It is not possible to define limitation on this power. (SC 2005)If one SLP is dismissed, party concerned can file another SLP. There is noresjudicatafor SLP (SC 2003)
Doctrine of Merger
If SLP is admitted, it will lead to complete hearing and that would form precedent. If appeal is dismissed, the HC judgment gets confirmed and it merges with the SC order.If SLP dismissedinlimini(at threshold) without assigning any reason – it cannot be considered as declaration of law u/A 141Even if SLP rejection was with reasons, still it is not law u/A 141, because there was no exercise of appellate jurisdiction. It neither lays down law nor operates as Resjudicata.(TejkumariPatna HC 2001)
Kunhayammedv State of Kerala(SC2000), Held: SC can reverse, modify or affirm the judgment appealed from in appellate jurisdiction, but not under discretionary jurisdiction (136)DhakeshwariCotton Mills case(SC1955)136 has to exercised sparingly, it being extraordinary situations.HariSingh (SC1993)SLP dismissal will not result in precedent.
“…….if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it wouldneither attract the doctrine of mergerso as to stand substituted in place of the order put in issue before itnor would it be a declaration of lawby the Supreme Court underArticle 141of the Constitution for there is no law which has been declared.If the order of dismissal besupported by reasonsthen also the doctrine of merger would not be attracted because the jurisdiction exercised wasnot an appellate jurisdictionbut merelya discretionary jurisdictionrefusing to grant leave to appeal”.
SC in 2010 affirms
Order of SC inGirishwill bind the parties to that petition only. Not all parties in similar situation.BhakraBeas Management Board v.KrishanKumarVijandAnr.,[(2010) 8 SCC 701] that mere dismissal of a special leave petition at a preliminary stage does not constitute a binding precedent, and accordingly, any order passed by the High Court placing reliance on earlier order, shall still be challenged subsequently.
No merger: SC inBhakraBeas
“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 norArticle 141of the Constitution is attracted to such an order” - SCThusGirishorder by Bombay HC does not merge into SC order. However, because it was a speaking order it operates asresjudicata, i.e.,Girishcannot file another SLP. His appellate options are closed for ever.
HC order inGirish:Is it a Precedent?
If SC order is not precedent,BomHC order is.But there are other SC judgments which have precedential value, overshadowingGirishHC orderRRajgopal: (SC1996) dealt with balancing the right of privacy against right to free speech.SC explained Privacy:Any right to privacy must encompass and protect the personal intimacies of thehome, the family, marriage, motherhood, procreation and child-rearing. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical.Privacy is a Right to be let alone.
Privacy & Public Record
SC inRajgopal:Information that formed part of public record or court record does not give rise to any privacy, except in cases of female victims in sexual crimes.Girishorder of Bombay does not even refer to mention RRajagopaldecision. ICs have to look to SC for guidance on this aspect, and not this order.Assets related informationof public servants has to be in public domain- ParliamentLokpalAct. Delhi HC 2009 inSC v CIC&ADR vUoI2002
DB of Bombay High Court inSurupSinghNaikvMaharastra2007: info that cannot be denied to Parliament cannot be denied. Its sets off precedent of Bombay HC inGirish.PUCL vUoI2003,ADR vUoI2002, SC info about properties of contestants is in public domain.Resurgence India v ECI(SC2013) Affidavits with unfilled blanks results in rejection of nomination.DPJangrav SIC Haryana 2001: assets of public servant matter of public interest & cant be denied under section 8(1)j
OmprakashvUttarakhand2012 UHC; when assets info was required by law to be disclosed, it cannot be private.PUCL vUoI1997SC Phone tapping as per procedureestdby law, review committee.NazFoundationcase2011right to privacy of a citizen’s sexual relations is protected.No where, memos, complaints and probe reports are included in privacy.
Division Bench of the Kerala High Court inCentre for Earth Sciences Studies v. Anson Sebastian.2010 (2) KLT 233 held that disclosure of information regarding domestic enquiry against a public servant was not prohibited under Section 8(1)(j) of the RTI Act.UPSC v RK Jain:2012 DHC DB: Disciplinary inquiry of the charged officer is with regard to the alleged irregularities committed by him while discharging public duties and public functions. The disclosure of such information cannot be regarded as invasion of his privacy. This order sets off theGirishBombay order.
Public transaction – not private
State of UP v RajNarainSC 1975. blue book and other related documents of public transactions cannot be held secrecy unless it has repercussion on public security.“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. - They are entitled to know the particulars of every public transaction in all its bearing...”
Girishorder has brought disorder in RTI as far as information about public servants are concerned.Public servants do have privacy, but it is confined to home, family, procreation and motherhood etc. does not include affairs in domestic inquiries into their wrongful acts in public functioning.Main objective of RTI is to bring accountability.Girishorder and OM ofDoPTobstructs it.There should be a revised OM on this topic