Overcoming Apex Court’s ruling in Girish R Deshpande through the Lokayukta Act19 Apr, 2014
In the case of Girish Ramchandra Deshpande vs Central Information Commissioner and Ors. [SLP (Civil) No. 27734 of 2012, judgement dated 3 October, 2012] over access to information about serving public officers under the Right to Information (RTI) Act, 2005 (Link - http://www.rtifoundationofindia.com/dopt/SCDecision.pdf), a two-judge bench of the Apex Court ruled that Immovable Property Returns (IPRs) and service books of a civil servant are personal information and attract the protection of personal privacy guaranteed under Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which 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 Legislature shall not be denied to any person. of the RTI Act. Such personal information including a chargesheet served on an officer during disciplinary proceedings and transfer orders were treated as sensitive information that would not be disclosed unless there is an overbearing public interest that was required to be proved by the RTI applicant.
The author argues that since then, this ratio has served as the basis for several public authorities, Information Commissions and even High Courts to deny access to information about civil servants even if they are generated in an official context. He contends that there are at least five High Court judgements which have followed this ratio till date and puts up arguments against the judgment.
Mr. Shailesh Gandhi has filed a writ petition in an RTI matter and has challenged the G R Desphande ratio in the Bombay High Court. I also believe, with the greatest respect to the wisdom of the Apex Court, that the judgment in that case was delivered without taking into account previous pronouncements of the same Court in cases such as R Rajagopal and Anr. vs State of Tamil Nadu [AIR 1995 SC264] (Nakkeeran case) and several others that followed. In those judgements the Apex Court had held that information about private individuals contained in official records such as first information reports and chargesheets do not attract the claim of privacy. Further, the protection available for the [private matters of a public functionary is of a lesser degree as compared to a private individual. In fact this last position was reiterated by the single judge and full bench of the Delhi High Court in the Judges Assets case. The Apex Court also did not take into consideration the Central Government's recent action of making the IPRs of the elite IAS, IPS and IFS officers public through websites. It also does not seem to have been informed about the initiatives taken in the States of Bihar and Madhya Pradesh to disclose the assets and liabilities statements of all civil servants and Ministers. Had these practices been brought to the notice of the Apex Court, it might have ruled differently.
Lokpal and Lokayukta Act makes G R Desphande ratio obsolete:
Chapter XIII of the Lopkal and Lokayuktas Act 2013 enacted this year makes it compulsory for all civil servants under the Government of India (All India services and Groups A-D Services) and all Ministers including the Prime Minister, and to declare their assets and liabilities as well as those of their spouses and dependent children. Section 44(6) of this law requires the competent authority of every department to publish these statements on its website by the end of August every year. Only the defence forces are not included in this chapter.
So for all purposes the Apex Court's ratio in G R Desphande becomes obsolete in so far as information about the financial status of civil servants is concerned. If such information were to be sought under the RTI Act, it will have to be disclosed as the Lokpal Act makes them publicly available information. There is no excuse for withholding access to such information henceforth. I hope RTI applicants will bring this change in law to the notice of the public authorities and the Information Commissions as they may not have read this chapter of the Lokpal Act seriously. I hope Shailesh ji uses this point as an additional argument in his petition.
DoPT invites comments on the draft template for disclosing assets and liabilities
The Department of Personnel and Training (DoPT) under the Central Government has issued an Office Memorandum to all ministries and departments inviting their attention to Chapter XIII of the Lokpal Act. They have circulated draft templates for declaration of the assets and liabilities of every public servant along with extracts of the Lokpal Act. Ministries and departments are required to send their comments by 4th April, 2014. This OM is accessible on the DoPT's website at:http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/11013_3_2014-Estt.A-20032014.pdf
What is right and wrong with the draft templates?
The OM is timely and the draft templates provide for the disclosure of a range of information that was not covered by IPRs that were being filed under the Civil Service Rules, till date. For example, movable property details must also be disclosed. Information about liabilities such as loans, insurance premiums etc. must also be disclosed. All such information was not accessible under the RTI Act till date. This is progress indeed as more information about the financials of public servants must be disclosed on websites under the Lokpal Act. Such information cannot be denied under the RTI Act. When all States adopt the model of the Lokayukta given in the last part of the Lokpal Act, these provisions will become applicable to public servants in the States as well.
However the draft templates have major lacunae. They are designed to collect information about the civil servant primarily. Financials of the spouse and the dependent children is only incidental to the declaration. This is not in keeping with the letter and spirit of the Lokpal Act. There must be columns for compulsorily declaring the assets and liabilities of the spouse and dependent children as well. The templates used by the Election Commission to require affidavits from candidates contesting elections to Parliament and State Legislatures may be used as a model. The Association for Democratic Reforms which pioneered the voters' right to know the financial and criminal antecedents of candidates contesting elections has made several suggestions for improving the quality of disclosure of financial information of politicians. These must be incorporated in the templates for government servants.
Further, the DoPT must also issue an OM containing draft templates for the disclosure of assets and liabilities of the Prime Minister, all Ministers and Members of Parliament so that these public servants and citizens may give their comments on the templates. The Lokpal Act requires disclosure of financial assets and liabilities of the heads secretaries and officers of NGOs that are financed by the Central Government or those which receive foreign donations (and not foreign contributions) of more than Rs. 10 lakhs a year (Rs. 1 million). Tempates must be drafted for making disclosures in such organisations as well and circulated for people's comments.
The purpose of such consultative exercises must be to expand transparency not curtail it. This is the second step towards combating corruption and recovering ill-gotten gains of public servants. The first step of course was the enforcement of the RTI Act. Disclosure is all the more important because Section 45 of the Lokpal Act states that if some financial information is not disclosed it will be presumed that those assets were acquired by corrupt means.