Property Details of Public Servants -- Need for Disclosure 

under the Right to Information Act, 2005

(By R. Muralidharan, Managing Director, PONTEX and Deputy Registrar (Legal),

Co-operative Department, Puducherry, 605 009) 

Almost after 55 years since the coming into force of the Constitution of India, a national law providing for the right to information was passed by both the Houses of Parliament on 12/13th May 2005. It is undoubtedly the most significant event in the life of Indian democracy. Prime Minister Dr. Manmohan Singh, while speaking on the Right to Information Bill in the Lok Sabha said:

“The legislation would ensure that the benefits of growth would flow to all sections of people, eliminate corruption and bring the concerns of the common man to the heart of the all processes of governance.”

The preamble to the Act says that the Act is passed because democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and hold Governments and their instrumentalities accountable to the governed.

The Act may be likened to a powerful beacon, which illuminates unlit corners of state activity, and those of public authorities which impact citizens’ daily lives, to which they previously had no access. It mandates disclosure of all manner of information, and abolishes the concept of locus standi, of the information applicant; no justification for applying for information is necessary; indeed, Section 6(2) enjoins that reasons for seeking such information cannot be sought (to a certain extent this bar is relieved by Section 8). Decisions and decision making processes, which affect lives of individuals and collectives can now been subjected to gaze; if improper motives, or reasons contrary to law or avowed policies are discernable, those actions can be questioned. Parliamentary intention in enacting this law was to arm citizens with the mechanism to scrutinize government and public processes, and ensure transparency. At the same time, however, the needs of society at large, and governments as well as individuals in particular, to ensure that sensitive information is kept out of bounds, have also been accommodated, under the Act. This has been addressed at two levels: one, by taking a number of security and intelligence related organizations out of purview of the Act, and two, by enacting specified exemptions - from disclosure, on grounds of public interest. [Hon’ble Mr. Justice S.Ravindra Bhat in CPIO, Supreme Court of India v. Subbash Chandra Agarwal and another].

Combating  corruption  in  public  life

The employees of the Government and public enterprises play a pivotal role in the administration and implementation of policies of Government. They often face the charge that their assets are disproportionate to their known source of income and they amass wealth on par with the political big wigs. This charge cannot be brushed aside under the carpet as baseless or frolicsome as time and again the employees, regardless to their cadre, are brought under the scanner. The service conditions of the employees do provide that the employees shall furnish property returns and whenever they acquire assets prior permission or intimation is necessary. Many a time this requirement stays only in paper.

Time and again the public information officers receive applications under the Right to Information Act, soliciting copies of the property statements of the officials of the Government or public authority. Such applications are, more often than not, rejected on the ground that the property statement of an official is a personal information and hence saved under Section 8(l)(j) of the Act or there is no public interest warranting disclosure. This defence is fading in the light of the pronouncements of various High Courts and decisions of the Information Commission. This article is a loud thinking on this subject.

Conduct  Rules  mandate  submission  of  returns

In respect of Central Government servants, when a Government servant acquires, or disposes of any immovable property directly by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family, he should give prior intimation to the prescribed authority regarding such transactions. Any transaction in movable property by the Government servant either in his own name or in the name of any member of his family should be reported to the prescribed authority within one month of such transaction, if the value of such property exceeds Rs. 20,000 in the case of Group ‘A’ or B’ officers, or Rs. 15,000 in the case of Group ‘C' or ‘D’ employees. In both the cases, if the transaction is with a person having official dealings with the employee, previous sanction of the prescribed authority is necessary.

Group ‘A’ and 'B' officers shall submit an annual return as on 31st December every year giving full particulars of immovable property inherited/owned/acquired/ held by them on lease or mortgage either in their own name, or in any of their family member’s name or in any other person’s name.

As it may be seen, seeking permission or making intimation is mandatory, so also submission of property returns in case of officers. When the returns are so filed, even as confidential, such returns form part of records of the public authority.

Divergent  decisions  of  the  Information  Commission

There appears no unanimity among the Information Commissioners of the Central Information Commission on this score whether the property returns of the Government employees are disclosable or not. A few decisions are cited hereunder.

In Shri Roshan Lal v. Kendriya Vidyalaya Sanghathan, Appeal Nos. CIC/OK/A/2007/01493 & CIC/OK/A/208/00027 dated 20th March 2008, on the question of disclosure of property returns wherein the respondents had denied disclosure on the ground of Section 8(1)(j), it was held:

“The Bench, however, holds that annual property returns by Government employees are in the public domain and hence there seems to be no reason why they should not be freely disclosed. This should also be considered as a step to contain corruption in Government offices since such disclosure may reveal instances where property has been acquired, which is disproportionate to known source of income. The Commission, therefore directs the respondents to provide copies of property returns asked for by the appellant to him.”

Placing reliance on the above decision and also some celebrated judgments of the Apex Court, the Commission in Dr. Kousthubha Upadhyaya v. Department of Personnel and Training (2009 (1) ID 284), declined to uphold the exemption sought under Section 8(1)(j) from disclosure of property returns. However, it was ruled that since the information held is without doubt of concern to a third party the respondent shall give a written notice to the third party and the PIO will keep in view such submission in disclosing the information sought.

The Central Information Commissioner Mr. Shailesh Gandhi is consistent in ruling in favour of disclosure of property return. In Surender Singh v. Block Development Office, Najafgarh, New Delhi, CIC/SG/A/2010/000955 dated 3.6.2010, he has held that disclosure of information such as assets of a public servant, which is routinely collected by the public authority and routinely provided by the public servants, cannot be construed as an invasion on the privacy of an individual. There will only be a few exceptions to this rule which might relate to information which is obtained by a public authority while using extraordinary powers such as in the case of a raid or phone tapping. Any other exceptions would have to be specifically justified. Besides the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1)(j) cannot be applied.

In a petite order, Praveen Kumar v. Allahabad Bank, New Delhi, CIC/SM/A/2009/001811 dated 16.8.2010, it was held that the photocopies of the property returns of the employee, as desired by the appellant, cannot be disclosed being in the nature of personal information and exempt from disclosure under Section 8(1) (j).

While upholding the exemption from disclosure of property statements in Pannalal Paul v. P.C.D.A., Bangalore (2010 (2) ID 610), the logic of the Commission is that:

“It is common place that the property returns are filed by the public servants in compliance of conduct rules but these are filed in fiduciary capacity by them. We have not yet come to a stage where disclosure of such returns has been made mandatory either by the competent authority or by the Governments concerned. The cover of confidentiality on these returns will continue to prevail unless the competent authority or the Government decides otherwise. This rule can be violated only in one eventuality i.e., when disclosure of such information is in the larger public interest. Such larger public interest is to be established by the information seeker. I have carefully gone through the appeal memo and I do not find even a whisper that the disclosure of the requested information would be in the larger public interest. In the premises, I find no infirmity in the decisions of CPIO and AA.”

Similarly in Vihar Durve, Pune v. DOPT, New Delhi (2011 (1) ID 90) it was held that the property returns of the officers as submitted to the cadre authorities every year in confidence and disclosure of information contained herein would definitely be unwarranted invasion of the privacy of the individual which is exempted under Section 8(1)(j). The Commission went on to say that the Commission cannot accept the averments of the appellant that he, as an informed citizen has the right to such personal information pertaining to persons serving in Government since he would then act to curb corruption. The Commission pointed out to the appellant that if he had any specific information with regard to any acts of corruption or proportionate wealth in respect of any civil servant he should pass it on to the designated organizations who are charged with the responsibility of investigation in such matters. The role of such investigating agencies cannot be assumed by any citizen along with the right to have access to personal information of third parties. This decision is in keeping with established law and previous decisions of the Commission in similar cases.

Division  Bench  decides  the  issue

The whole gamut of the controversy that came up for decision before the Division Bench of the Commission in P.P. Rajeev v. Cochin Port Trust, CIC/AT/A/2008/00707 dated 22nd February 2010, are:

(i)  Do property returns filed by employees before public authorities qualify to be personal information within the meaning of Section 8(l)(j) of the RTI Act?

(ii) Is there a commitment by the public authority to keep these returns confidential except when required under specified conditions to be disclosed, which brings the matter within Section 11(1) ?

(iii) If property returns are categorized as personal information, what conditions are to be satisfied before their disclosure can be authorized ?

Deliberating the issues it ruled that filing of asset or property returns by public servants before their respective public authorities is most often a requirement under the service or the conduct rules of such civil servants. Most such rules provide that all such property or assets returns shall be tendered to the designated public authority and shall be held confidentially by that public authority. Disclosure of property/asset return related information is authorized only when certain set conditions are met, which may include the public servant facing an enquiry about irregularity in assets acquisition and so on. The key point is that the public servant concerned hands over an admittedly personal information in this case the statement of his immovable assets on condition/assurance of its confidentiality given by public authority under appropriate Rules. Therefore, a statement of immovable assets of a public servant held by a public authority meets the two conditions laid down in Section 11(1), viz., (i) It is a third party information and (ii) It is held confidentially. Therefore, any decision to disclose or not to disclose such information will have to be made in the context of Section 11(1). The parties to whom such information might relate to will have to be consulted and their objection, if any, to the disclosure of such information will have to be factored in by the CPIO before he decides to disclose or not to disclose such an information.

Apart from Section 11(1), Section 8(1)(j) is also relevant for the purpose of this category of information, i.e., personal information. It follows that once it is established that a set of information is personal, the only reason why it should be disclosed is that it serves larger public interest. There is a noticeable congruence between Section 8(1)(j) and Section 11(1) regarding the modality of disclosing personal, private or third-party information. Both allude to public interest as the pre-requisite for authorizing their disclosure.

Finding some decisions made by the Commission in which it was stated that once an individual is required to submit an information under a statute, that information ceases to be personal the Division Bench was unable to endorse such a view, held that the character of a set of information would not undergo change merely because it has been passed on to a Government or to a public authority under a statute. For example, the details of immovable assets of a civil servant or an employee of the public authority would not cease to be personal merely because the conduct rules of such civil servant or employee required him to periodically submit these to the public authority he serves. Once an information is characterized as personal, it remains so regardless of who holds such information. In fact, if personal information of an individual comes in the control of the public authority, it requires exercising of greater care and caution by that public authority before sharing it openly, and sharing it, if at-all, under pre-determined conditions and specific circumstances. Any disclosure of personal information of immovable assets of an employee being one such can be authorized only if the conditions laid-down in Section 8(1)(j) and Section 11(1) are met on a case to case basis.

Garnering support from a couple of judgments of Delhi High Court, viz., CPIO, Supreme Court of India v. Subbash Chandra Agarwal (2009 (2) ID 217) and Union of India v. Bhabaranjan Ray and another, W.P. No.7304/2007 dated 30th November 2009, the Division Bench concluded that that there cannot be a omnibus order about the disclosure of all immovable assets-related information of employees of public authorities. The Government or the public authorities may frame rules about disclosure of this class of information held by them as filed by their employees, but till such time as these Rules are framed and, the condition of confidentiality in which such information is handed over to the public authority holds good, the request for their disclosure will have to be considered on a case-by-case basis under the provisions of Sections 8(1)(j) and 11(1) of the Act. Similarly, it shall be open to any public authority or the Government to voluntarily undertake to disclose this variety of information, fully or in part.

It may be seen that the Division Bench has played the ball in the court of the Government or the public authority to frame rules for disclosure and till such time the confidentiality is to be maintained.

High  Courts  hold  differing  judgments

The question of disclosure of property returns is answered both for and against by different High Courts. Here are few.

In the case before Karnataka High Court, Sri H.Ramakrishna Gowda, Managing Director, Karnataka State Coir Development Corporation v. Karnataka Information Commission and Another, W.P. No.7953/2007 dated 16.7.2008, the petitioner was directed by the Information Commission to provide details of his property, whether the same has been disclosed in the declaration to be given and who are the members of his family and in whose name the property stands. This direction was challenged on the ground that it would result in unwarranted invasion of his privacy and therefore under Section 8 there is exemption from disclosure. It was held that every public servant has to disclose all his assets and members of his family. In fact the said disclosure has been made by the petitioner in the usual course. It is clear from clause (j) of Section 8 such information is not exempted. The authorities were justified in passing the impugned order. No case for interference was made out.

A tangent view was expressed by the very same Karnataka High Court in H.E. Rajashekarappa v. SPIO & Under Secretary to Government, Planning and Statistics Department, Bangalore & Others (AIR 2009 Kar. 8 ; 2009 (1) ID 141) that the property statement is personal information. It was held that the object of the Act is to provide right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. It cannot be said that Section 2(f) encompasses the personal information of the officials of the public authority. The intention of the legislation is to provide right to information to a citizen pertaining to public affairs of the public authority. Therefore the third respondent had no right to seek personal information of the petitioner.

The Punjab and Haryana High Court in D.P. Jangra v. State Information Commission and Others (2011 (1) ID 335) held that the information contained in the property statement has direct relationship with the public employment of the petitioner and cannot possibly be termed as unwarranted invasion of his privacy. Therefore, the information sought by the respondent with regard to the sanctions, expenditure, movable and immovable properties of the petitioner, cannot possibly be termed to be exempted information, as escalated under Section 8(e)(j) of the Act, particularly when, what is not disputed here is that the petitioner being a public servant was required and submitted his detailed properties statement, as per conduct rules and the authorities under the Act, are (legally) duty bound to supply such information to respondent.

Though the core issue decided in CPIO, Supreme Court of India v. Subbash Chandra Agarwal (2009 (2) ID 217) was different, the annotations made on disclosure of property statement are quite apposite. In paragraph 68, it was observed that the Court cannot be unmindful of the fact that several categories of public servants, including Central and State Government servants, as well as public sector employees and officers of statutory corporations are required by service rules to declare their assets, periodically. Settled procedures have been prescribed, both as to periodicity as well as contents of such asset disclosure. The regime ushered under the Act no doubt mandates, by Section 4, disclosure of a wide spectrum of information held by each public authority to be disseminated to the public; it can even be through the medium of the internet. Yet, that provision is overridden by Section 8 by virtue of the non-obstante clause. This means that such personal information regarding asset disclosures, need not be made public, unless public interest considerations dictate it, under Section 8(1)(j). Any other interpretation would rob this clause of its vitality, as the value of privacy would be completely eroded, and the information would be disseminated without following the procedure prescribed.   (emphasis in the judgment).

When the order of the learned single Judge was challenged, the Full Bench of Delhi High Court in Secretary General, Supreme Court of India v. Subbash Chandra Agarwal (2010 (1) ID 1: 2010 (1) CTC) 241: AIR 2010 Del. 159) concurred with the order, cited supra, and on the question of disclosure of property details it observed in paragraph 115 that the Act makes no distinction between an ordinary individual and a public servant or public official. As pointed out by the learned single Judge “--  an individual’s or citizen’s fundamental rights, which include right to privacy - are not subsumed or extinguished if he accepts or holds public office.” Section 8(l)(j) ensures that all information furnished to public authorities including personal information [such as asset disclosures] are not given blanket access. When a member of the public requests personal information about a public servant, such as asset declarations made by him a distinction must be made between personal data inherent to the person and those that are not, and, therefore, affect his/her private life. To quote the words of the learned single Judge “if public servants are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”. That the public servant has to make disclosures is a part of the system’s endeavour to appraise itself of potential asset acquisitions which may have to be explained properly. However, such acquisitions can be made legitimately; no law bars public servants from acquiring properties or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for a private gain.” Such personal information regarding asset disclosures need not be made public, unless public interest considerations dictates it, under Section 8(1)(j). This safeguard is made in public interest in favour of all public officials and public servants.                                                         (emphasis mine)

Parameters  to  decide  overwhelming  public  interest

The balancing exercise is to too hot to decide for the PIO and there is no definite yardstick to determine whether the public interest is present in the request of an applicant for disclosure of property statement of an official. The judgment of Division Bench of High Court of Madras in V. Madhav v. Tamil Nadu Information Commission & Anr. (2011) 6 MLJ 653) holds the key and infuses light. It was held that the assets details of the Government servant filed before the Government, though in sealed cover, cannot be said to be information that could not be accessed by the Government. In the event a member of public requests information about public servants, a distinction must be made between official information inherent to the position and those that are not which affect only the private life. Apparently, the balancing task to find out as to whether a particular information is a public information or an information relating to public duty is not that much easy. The balancing exercise necessarily depended on case to case basis on the following relevant considerations:

(i) Whether information is deemed to comprise the individual’s private details unrelated to his position in the organisation?

(ii) Whether the disclosure of personal information is with the aim of providing knowledge of the proper performance of the duties and task assigned to the public servants in any specific case? and

(iii) Whether the disclosure will furnish any information requires to establish accountability or transparency in the use of public resources.

If a Government servant furnishes assets details to the Government and if he is accountable to file such assets details as required under the rules, such information relating to the assets cannot be considered to be public information which are inaccessible by the Government. Hence, the information relating to the assets declaration of I.A.S. Officers cannot be said to be information which could not accessed by the public authorities, as those information are either no more confidential or private information.

The right of the appellant to have the inspection of these assets declaration cannot be denied on the ground that they are personal information, as the same is hosted on the website. The Division Bench went on to add that the administrative efficiency could be achieved only by transparency and access to the assets details documents furnished by its officers including I.A.S. Officers, though in sealed covers, to the applicant on his request. Disclosure of such information under the provisions of the Act will ensure the ‘culture of openness’ rather the ‘culture of secrecy’. If that is followed, a sound administrative system leading to efficiency and effectiveness could be achieved. It would further result in involving a better form of Government.

Waling  an  extra  mile

Feel like starting all over again after poring over the above decisions and judgments? May be in the cross road and at the dead end. The PIO is still in quandary how to deal with such applications. Will it not be too much to expect from the poor PIO to deal with the imbroglio on case to case basis and weigh the public interest in such disclosure. His decision can always be under challenge and he cannot take a mid-way approach.

The exemption under confidentiality cannot be successfully pleaded as confidentiality does not fall under the exemption clauses of the Act and does not have the sanction of the law makers. This view is well supported by the judgment of the High Court of Madras in V. Madkav v. Tamil Nadu Information Commission and Another (cited supra). In almost all the decisions the objective of the Act is the key and pro-disclosure is advocated. Considering the rampant corruption alleged in public life and the pro-active disclosure of assets by people in the helm of affairs a day will soon come when disclosure of property statements of officials of the public authorities is allowed in absolute terms. It will be befitting the quote the epilogue of the judgment of the Full Bench of the Delhi High Court in Secretary General, Supreme Court of India v. Subbash Chandra Agarwal. “Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant.” The disclosure of property returns is a step in the right direction to contain, if not eradicate, corruption and probity in public life.

"Slow  Down,  India !! "

(By E. Krishna Das, Advocate, Palakkad)

“WE are too wound up, at work and home. The state of the nation adds to the stress. Take it easy and have a healthy 2012!! Today, the working Indian is a bit too keyed up. There is too much pressure in our living and working environment. School kids are pressurized to perform, college students are on a suicide spree, working adults are working their butts off. The slow down movement is essential for India as we emerge as the World’s Capital for diabetes and hypertension, and we are strong contenders to be cholesterol capital as well. As lifestyle diseases of every kind hit us and as working India experiences it all first-hand, this is an idea whose time has come!!” This was the headline and the gist of an article which appeared in a leading business newspaper about two weeks back which prompted me to pen a few thoughts on the condition of the lower courts in Kerala.

The person who wrote the above article may have never visited the courts in Kerala because if he had done so, he would have written this more than a few decades ago!! If there is one department in this entire nation, which is burning the midnight oil, doing its duty undeterred, for the development of the society that is none other than the judiciary, which includes the officers, staff, and the lawyers too. 2011 showed many a sign that the lower judiciary is craving for justice. A Principal District Judge chose to end his life! A Magistrate had a paralytic stroke!! And numerous lawyers passed away well before their prime!! The reasons are obvious! There is always a big hue and cry over the huge backlog of cases. It is easy to give targets, to find fault for not achieving targets, to issue memos to officers and staff for some small mistakes done. But has anyone tried to study the root cause of the problems being faced by the lower courts?

The developed countries have an average of 70 courts for a million people and we have an abysmal 6!! The infrastructure is so poor in lower courts that a modem dairy farm would look better. Buildings of the pre-independence era, furniture and fans of the last century, old creaking wooden stands waiting to give away under the weight of the case bundles and dust accumulated over the years! There can be nothing worse in the 21st century. And it is in such hells that hundreds flock daily for justice!!

The Civil and Criminal Rules of Practice in Kerala, state that the courts shall be open on all working days from 10.30 a.m. to 5 p.m. and shall ordinarily sit from 11 a.m. to 5 p.m. with an interval not exceeding one hour. A huge majority of the lower courts start functioning at 11 and the officers are in their chamber already by 9.30 am and don’t leave or rather can’t leave even by 5.30 p.m. There are courts which even sit upto 6 pm and even much, later and obviously the office staff can leave only after the officer leaves. Does anybody care for such staff and their family? There may be no other Government Department in this country other than the armed forces which starts work before time and ends the day after the lights are on. And this does not happen once in a blue moon. It happens every day, every month, every year, continuously, and the clock never stops for this department. Judicial officers, lawyers, court staff, advocate clerks, and the list goes on! Judicial Officers were given lap tops and everyone applauded the move. But now what happens is that the officer goes home and types the judgments himself in order to meet the tough targets. There are officers who dictate in the night and record it in a tape recorder and the typist would type the judgment the next morning!! Hats off to the family members!! And the biggest question is where does all this lead to? Will we be able to clean up the stables? Will we be able to bring down the back log to such a number wherein we can leisurely dispose off cases? Never ever!! The population is ever increasing. Different types of legislation are coming up and legal literacy is at its ever high. One thing is absolutely sure. We can never ever dispose off all cases and sit back as this is a never ending process. And the biggest toll is the health of all concerned. It is high time that the Government and the High Court of Kerala take serious note of the pitiable situation in the lower courts. It is high time that we take a second look at the system. Otherwise we may have many more unfortunate incidents and the next one may be one of us.

An option that may be looked into is to increase the sitting hours by half an hour daily and make Saturday a non-sitting day. The judicial officers, staff and the lawyers can work in their chambers. Thus the judicial officers would have ample time to read, prepare the judgments and do their chamber work calmly and leisurely. The lawyers would have ample time to prepare for their cases. This would give the much needed breathing space for all. If the High Court thought it fit to have a holiday on Saturday why this facility should not be extended to the lower courts too?

Let’s make 2012 a better place to live in and try to make our work enjoyable without the tensions and charged atmosphere in the court rooms. Justice hurried is said to be justice buried. Let’s take it day by day in a saner manner. Let us live life fully as human beings and not machines where in we cut, copy and paste whatever we need. Let us do away with targets, with marks and with memos! Let’s try to give full justice to everyone who approaches this temple and not capsule justice. The sky is not going to fall. We have to learn to go slow !! Go Slow India !! You have nothing to lose !

Major Impediments before a Citizen Seeking Information under 
Right to Information Act with Specific Reference to Kerala Experience

(By Advocate D.B. Binu, General Secretary, Human Rights Defence Forum,

 Kerala R.T.I. Federation) 

Right to Information Act is a revolutionary enactment empowering a citizen to audit the performance of the public authorities in a democratic polity and evaluate the success and failure of the Government returned to power through ballot. It is an enactment that put strings on the bureaucrats and a feeler to them that they are not masters but servants of the public. The Act can attain its destined object only by removing the hurdles laid in the procedure prescribed for obtaining information. 

 The Act recognizes the right of a citizen to seek information from any public authority without stating the purpose for seeking particular information. By a legal fiction, the presumption is that every information sought from public authorities is essentially in public interest. That is why under Section 6(2) of the Right to Information Act it is declared that an applicant “shall not be required to give any reason for requesting the information”. 

Section 8 of the Act deals with the exemption from disclosure of informations which include personal informations of a public servant that amounts to unwarranted invasion of privacy of the individual. The State Public Information Officers, the Appellate Authorities and even the State Information Commissions, when entertain an application for personal information touching matters of a public servant, mechanically issues notice under section 11 of the Act on the ground that the information sought are of third parties. This is totally unacceptable in as much they have a duty before issuing such notice to satisfy whether information sought for has any relationship to the public activity or public interest of the public servant. If on examination of the request in that perspective, only if it is found that the information sought for has nothing to do with his activity as public servant or public interest, and that the information sought, on the contrary will amount to invasion of the privacy of the individual, then alone the notice under section 11 can be justified. Further on receiving a notice under section 11, the public servant concerned  has to satisfy the Public Information Officer to deny the information that the information sought is not only has no bearing with his public activity as public servant  or public interest, but also, it is an invasion to his privacy. Even thereafter, it is still open to the State Public Information Officer to direct discloser, if he considers the disclosure of information is warranted in public interest. That is to say, even if it is information that invades the privacy of the public servant, the same has no immunity from disclosure when it is in public interest. That is to say the Act has upheld the supremacy of disclosure of all informations in public interest. Unfortunately, the trend among the State Information Officers, Appellate Authorities and even State Commissions is to deny information on the ground of third party information or want of his consent. The question of consent of the public servant in fact does not arise. What matter is the public interest.

 The other aspect of hurdle sought to be placed before the State Public Information Officers and other authorities under the Act is to plead the status of a constitutional functionary. Institutions such as Judiciary, Legislative Assembly, and Public Service Commissions are seen claiming constitutional protection from the application of the Right to Information Act. This plea of constitutional protection is nothing but to deny the right of a constitutional entity that has concern to protect the State binding to the Constitutional goals. A citizen is a Constitutional entity and have all right to be governed by Constitutional means to achieve its goal. If these institution’s claim for constitutional protection is upheld, it will result in a conflict between two constitutional entities. It is perhaps to avoid such conflict the Act refused to concede any such right to Constitutional bodies and used the word Public authorities to encompass all authorities whether constituted under any statute or by Constitution itself. Admittedly all are Public Authorities and hence accountable to the people. It is shame on those who plead Constitutional protection without understanding this simple principle.  How is our nation safe in the hands of those who refuses to account their function to its own people?

 The Kerala Public Service Commission has been resisting the orders of the State Information Commission and succeeded in getting Stay Orders from the High Court. Their plea is that they are Constitutional body and cannot be subjected to the jurisdiction of the State Information Commission. Recently they even passed a resolution directing the officers of the PSC not to appear before the Commission. This confrontation stand is an act challenging the right to the people to know and be informed about the performance of various bodies that are being vested with many constitutional functions. An application for obtaining a copy of the resolution has been moved and it is proposed to challenge this posture of the PSC in High Court.

 Another experience presently being confronted is with the PIO of the Kerala Legislative Assembly. An application was moved for getting the transcription and vedio tape of the speech made by MLA Sri. T.M.Jacob  in the Assembly while addressing the non confidence motion moved against the ministry headed by the then Chief Minister Sri .Oommen Chandy. The application was filed on behalf of the Human Right Defence Forum.PIO furnished the transcription of the speech but refused to give the vedio tape.Matter was taken up in appeal. The Appellate Authority confirmed the order. In second appeal before the Commission,the Commission ordered to give copy stating that the plea of the legislative privilege is without any bona fides as the PIO has already furnished the transcription and too when the proceedings of the Parliament and Assemblies are allowed to be telecasted alive. The direction,  instead of being complied , was referred to the Speaker of the Assembly by the PIO and the PIO refused compliance of the order stating that the Speaker has referred the matter to the Privilege and Ethics Committee of the Assembly. This stand of the PIO is an act questioning the very authority of the Commission and also the right of the public to know and to have the information. The case was therefore taken before the State Information Commission in a petition for execution of the order. The Commission has ordered that the PIO should appear and show cause as to why action should not be taken under section 20 of the Act.

The Competent authorities vested with powers to make rules for implementation of the Act has been successful to put as many hurdles as possible to protect their institutions from the agony of disclosing informations honorably. The rules framed by the High Court of Kerala is one of such example. Rule 12 and 13 of the Kerala High Court (Right to Information) Rules, 2006 reads thus:

“12. No application for information or document relating to any judicial proceedings hsall be entertained under these rules.”

“13. No application for information or document relating to a policy matter under consideration shall be entertained.”

 The above two provisions in the rule are directly in conflict to the provisions of the Right to Information Act. Section 22 of the Act reads thus:

“22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

As per Section 22 of the Right to Information Act the provisions of R.T.I.Act will have effect notwithstanding anything in consistent therewith in any other law for the time being in the force or in any instrument having effect by virtue of any law other than this Act.

In the circumstance, the provisions of the Kerala High Court Rules is no impediment to make application for information or document relating to judicial proceedings. This rule therefore is ultra vires of the Act. 

Further under the provisions of the Right to Information Act, Section 4 (1) (c) all Public Authorities are required to publish all relevant facts while formulating important policies or announcing the decisions which affect public. This being the mandate of the Act the High Court cannot make a rule denying “information or document relating to a policy matter under consideration”. In fact, all relevant facts while formulating important policies are matters to be published or made available on request. The Rule 13 of the Kerala High Court (Right to Information) Rules 2006 is therefore ultra vires of the Act. 

Further the Rule 16(f) of the Kerala High Court (Right to Information) Rules 2006 mandate payment of Rs. 50/- for preferring Appeal. In fact, the Act does not contemplate any fee at the appellate stage and/or at the complaint or second appeal stage before the State Commissions. In fact, the rule making power under the Act does not authorize the competent authority to prescribe fee for entertaining Appeal under section 19 of the Act. It only empower to lay down the procedure to be adopted in deciding the appeals. The rule prescribing  Rs. 50/- as fee to entertain appeal is therefore unauthorized by the Act.

It is now a herculean task for a citizen seeking information from various public authorities to make the prescribed fee as no uniformity is maintained by these public authorities in the matter of collecting fees. It is necessary to allot a head separately to each public authorities for making payment of fees which should be allowed to be drawn by the designated State Information Officers on production of a copy of the receipt indicating payment of the required fee and cost for supplying information under the said head. This would enable each State Public Information Officer to draw the money for meeting the expenditure at the local level from the fund remitted by the applicant without waiting for sanction orders in the matter. The simplification of the procedure will go a long way in minimizing the difficulties now faced by the State Public Information Officers of various public authorities who often complains paucity of fund to meet the cost of the information. Even budgetary allocation can be a better solution to the present problem. 

Under Section 24 of the Right to Information Act certain intelligence and security organizations have been exempted from the provisions of the Act. But even in the case of these organizations information pertaining to allegations of corruption and human rights violations are not excluded. The Government of Kerala issued a Notification S.R.O. 127/06 dated 7.2.2006 under Section 24(4) of the Act enlisting the organizations to which the provisions of the Act have been exempted. In the said list it is seen mentioned “Confidential Branch in the Police Headquarters, Kerala and confidential sections in all Police Offices in Kerala” alongwith Special Branch C.I.D., Crime Branch C.I.D. etc. The Confidential Branch in Kerala Police Headquarters and confidential sections in all Police Offices do not form part of intelligence and security organizations. Such a wing infact never existed before the implementation of the R.T.I. Act. A confidential wing is provided to deny information regarding various crimes registered by the Police by referring the same to these confidential sections in the Police Stations. It is an act to subvert the object of the Act and therefore the State Information Commissions have to take exemption of such a category from being included under the list of intelligence and security organizations. 

  Further it is not known under what justification the District and Crime Record Bureau of the State Government have been included in the list of Intelligence and Security Organizations. In fact, this bureau is concerned with the statistics of various crimes committed in the State and therefore has absolutely no rational to seek exemption from the provisions of the Act. 

 These hurdles are artificially created and could be removed with certain amount of dynamism on the part of State Information Commissions and Governments/competent authorities who have a constitutional and statutory obligation to ensure transparency in all field save those deals with intelligence and security of the nation. Public awareness will also help the Government to act in proper direction lest they may become unpopular. 

Effect of Deviation Clause in A Charter Party

(By V.B. Hari Narayan, Advocate, High Court of Kerala)*

The owner’s duty to pursue the contract voyage is best known by the name of its breach, i.e. deviation. The duty not to deviate is one of the most important parts of the contract of carriage, largely because of the consequences which it is reputed to have upon the ability of the shipowner to protect himself through exclusion clauses. Deviation in simple terms is any intentional departure from the usual route, i.e. the direct geographical route, for the contract voyage. Under a Charter, especially in voyage and time-trip charters the owner is under an implied duty not to deviate from the contract voyage.  However, in most of the standard charter parties there is usually a clause giving the master a liberty to deviate for specified reasons. But, there are circumstances recognized under common law where deviation from the geographical route of the voyage is justifiable (For example, clause 3 of Gencon Charter).  For instance, the owner is permitted to deviate in order to save life at sea and to avoid possible damage to the vessel, its cargo or crew.  In Scaramanga v. Stamp ((1880) 5 CPD 295.) it was held that though deviation for the purpose of saving life is protected, any such deviation in order to salve a ship in distress so as to claim salvage is not justified and the ship owner was found liable for the loss of cargo. Therefore, to amount to an unjustifiable deviation, it must be proved that it was on account of a deliberate act on the part of the owner or master of the vessel.

In Kish v. Taylor ((1912) AC 604.), the House of Lords held that a deviation, resulting from an initial unseaworthiness  of the vessel is justified.  The common law has also approved deviations as justifiable, resulting from the breach of contractual obligation on the part of the charterer (Walams v.Muller (1927) 2 KB 99.).  Therefore what is permitted under the common law is only justifiable deviations. But when a contract of carriage is terminated on account of an unjustifiable deviation, the carrier looses protection of all exclusion clauses in the contract, whether or not the loss complained of by the charterer was a result of the deviation. An unjustifiable deviation is a breach giving the charterer the right to claim damages from the owner for any loss suffered as a result of the deviation and also entitles the charterer to terminate the charterparty.  The most crucial and controversial consequence of unjustifiable deviation is that where an owner deviates, he loses the protection of all exclusion and limitation clauses contained in the charter, whether or not the loss complained of by the charterer was a result of the deviation. This consequence of deviation will have the effect of leaving the owner in serious difficulties in as much as the protective shield of his charter falls away, as does the safety net normally provided by his P & I Club. In Hain v. Tate & Lyle ((1936) 2 All E.R.597), it was held that the consequence of any unjustifiable deviation is the non applicability of exclusion clauses in so far as it protects the rights of the carrier.

Apart from the common law as stated above, the Hague Visby Rules (Article IV Rule 4 of the Hague Visby Rules,1968.), also recognizes two types of deviations, i.e. deviation in saving or attempting to save a property at sea and any reasonable deviation. But, English courts have given a restricted interpretation to the word “reasonable deviation" although the question whether what amounts to a reasonable deviation is a question of fact.  In Stag Line v. Foscolo, Mango & Co ((1932) AC 328), the House of Lords held that a slight deviation taken for the purpose of landing two fuel testing engineers was not a reasonable one and refused the ship owner protection under the Hague Rules.  Infact, there are only very few instances where the English Courts have afforded protection of the Hague Visby Rules to the carriers when it comes to the interpretation of reasonable deviation. In Al Taha ((1990) 2 Lloyd’s Rep. 117), the Court held that a deviation for repair was reasonable within the terms of Art.4 Rule 4 of the Hague Visby rules, even though the same was planned prior to the voyage.

 As stated earlier, it is true that Charter parties often contain liberty clauses to deviate from the contract voyage which are inserted for the ship owner’s benefit. In common law such liberty clauses are valid, but since the same is inserted for the benefit of the ship owner, the courts will apply the principle of contra proferentem to give a narrow interpretation to such deviation clauses. The English courts have for years taken a very hostile approach to liberty to deviate clauses, interpreting them strictly in accordance with the central purpose of the charter, even where the clause seeks to include the deviation route within the contract route. In Glynn v. Margetson ((1893) AC 351), although the bill of lading contained a liberty clause permitting the owner to proceed to ‘any port or ports in any rotation’, it was held by the court that the ship owner is liable for damages to the loss of cargo as a result of the deviation to a port not on the geographical route.

Therefore it is now clear that such liberty clauses will be construed strictly applying the principle of ‘contra proferentem’ usually implying freedom to call at ports within the course of the voyage as held in Leduc v. Ward ((1888) QBD 475). But as held in Frenkel v. Macandrews ((1929) AC 545.) such freedom cannot be construed as to call at any port as the owner decides, unless commercial practice dictates a greater freedom. It is also worth mentioning at this juncture that, even if it is found that the deviation is justifiable, as held in The Isla Fernandina((2000) 2 Lloyd’s Rep.15.),  the carrier is only exempt from liability for losses caused by that justifiable deviation and he is still liable for all other breaches.

By virtue of the introduction of Hague Visby Rules into the provisions of Carriage of Goods by Sea Act, 1971    (Section 1(2) of the Act.) the same now apply by force of law. If the provisions of the above Act is made applicable, clauses allowing deviation beyond the limits set in Art.IV, Rule 4 of the Hague Visby Rules, will be null and void hit by Art.III, rule 8. However, if the Act does not apply then the liberty clause is valid, subject to interpretation.

In Suisse Atlantique  ((1967) 1 AC 361.), it was held that the exemption clauses must be viewed in the context of the entire contract, its terms, language and intention of the parties. Therefore, the question as to whether the owner can claim the protection of an exemption clause in the charter party, by and large depends on the construction of the clause taking into consideration all the circumstances of the contract and the requirement of reasonableness. But this view has not gained support over the traditional view. Which way is the wind blowing ?

*   LL.M (Southampton), Governing Council Member, Maritime Law Association of India.