The privacy of public servant is becoming a highly contentious issue since the advent of Right to Information Act, 2005 enabling citizen to seek information about public authorities and their officers. An employee of the state is legally defined as public servant and every citizen will be a virtual employer in electoral democracy. Can privacy hamper the regime of transparency and scrutiny of public conduct of the public servant? If government employees privacy is limited, to what extent? The conflict between right to privacy and need for transparency is the centre of controversy in many cases before the information Commissions and Constitutional courts, more so in Girish Ramachandra Deshpandy case, which travelled from second appeal in CIC to SLP before Supreme Court has set a controversial standard for ‘personal’ information causing serious damage to right to information. The apex court’s order of dismissing SLP in Girish Ramachandra Deshpande is being very frequently used as apex court’s judicial declaration of law to deny any information about the memos, complaints, disciplinary action or conduct of the public servant.
Government employees are resisting the disclosure demands using exemption clause under Section 8(1)(j) of RTI Act. The conflict between important right of privacy and statutorily recognized need of transparency of persons involved in administration is the premise of decision in Girish case. This case revolves around the section 8(1)(j) of RTI Act, which says:
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(j) 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.
(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub‑section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened 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:
A close study and analysis of Section 8(1)(j) and 8(2) would legally mean: The information could be exempted from disclosure if two essential components existed: a) Where the Information requested is (i) a personal information; and (ii) the nature of information requested has apparently no relationship to any public activity or interest; (b) Where the information sought is (i) personal information; and (ii) the disclosure of information would cause unwarranted invasion of privacy of the individual concerned. There can be seven occasions even if information sought was personal it could be given under this exception:
Facts of the case before the CIC: Mr Girish submitted an application on 27th August 2008 before Regional Provident Fund Commissioner (Ministry of Labour, Government of India) calling for various details relating to third respondent. The response of the public authority was:
CIC order in Girish: Deciding the second appeal on 18th June 2009, the CIC said:
The question for consideration is whether the aforesaid information sought by the Appellant can be treated as ‘personal information’ as defined in clause (j) of Section 8(1) of the RTI Act. It may be pertinent to mention that this issue came up before the Full Bench of the Commission in Appeal No.CIC/AT/A/2008/000628 (Milap Choraria v. Central Board of Direct Taxes) and the Commission vide its decision dated 15.6.2009 held that “the Income Tax return have been rightly held to be personal information exempted from disclosure under clause (j) of Section 8(1) of the RTI Act by the CPIO and the Appellate Authority, and the appellant herein has not been able to establish that a larger public interest would be served by disclosure of this information. This logic would hold good as far as the ITRs of Shri Lute are concerned. I would like to further observe that the information which has been denied to the appellant essentially falls in two parts – (i) relating to the personal matters pertaining to his services career; and (ii) Shri Lute’s assets & liabilities, movable and immovable properties and other financial aspects. I have no hesitation in holding that this information also qualifies to be the ‘personal information’ as defined in clause (j) of Section 8(1) of the RTI Act and the appellant has not been able to convince the Commission that disclosure thereof is in larger public interest.”
Before Bombay HC: Aggrieved by the CIC order, the petitioner filed a writ petition which was dismissed by Single Judge of Bombay High Court, Nagpur Bench. Then he filed Letters Patent Appeal before the Division Bench, Bombay High Court at Nagpur and that also was dismissed. Appellant filed special leave petition before the Supreme Court. Petitioner contended that some documents sought for were pertaining to appointment and promotion, some related to disciplinary action, assets and liabilities and gifts received by the third respondent and the disclosure of those details, would not cause unwarranted invasion of privacy. He argued that the privacy appended to Section 8(1)(j) of the RTI Act widens the scope of documents warranting disclosure and if those provisions are properly interpreted, it could not be said that documents pertaining to employment of a person holding the post of enforcement officer could be treated as documents having no relationship to any public activity or interest. He also pointed out that in view of Section 6(2) of the RTI Act, the applicant making request for information is not obliged to give any reason for the requisition and the CIC was not justified in dismissing his appeal.
Decision of the Supreme Court: Apex court judges, Mr K S Radha Krishnan and Dipak Misra, JJ dismissed the SLP October 3, 2012 saying:
Because of a division Bench of Supreme Court dismissed the SLP and while doing so agreed with the conclusions of the DB of Bombay High Court, naturally it assumed high significance and each PIO started using it to deny the information about complaints filed against public servant and also about action taken if any.
In another second appeal by Mr Manoj Arya, RTI Activist versus PIO Cabinet Secretariat, Learned Commissioner Shri Satyanand Misra, the then Chief Information Commissioner, refused to provide the copies of complaints and other related information about a public servant quoting the Division Bench order of the Hon’ble Supreme Court in Girish.
Guidelines from DoPT: The Department of Personnel and Training issued an Office Memorandum No. 11/2/2013-IR (Pt.) on disclosure of personal information under RTI Act on 14th August 2013, quoting an operative part of the order of the Supreme Court in Girish. The Office Memorandum stated:
The Central Information Commission in one of its decisions has held that information about the complaints made against an officer of the Government and any possible action the authorities might have taken on those complaints, qualifies as personal information within the meaning of provision of Section 8(1)(j) of RTI Act, 2005.
The impact of this OM is tremendous and widespread among public authorities as any request for information about assets/income, service book details, complaints against public servant during service and action taken thereon are being refused. With three orders of CIC issued by CIC Shri Satyananda Mishra (two before and one after Girish), upheld by Bombay HC single judge bench, Division Bench at Nagpur and it reached finality as the Supreme Court dismissed Special Leave Petition which was well supported by the Office Memorandum from the nodal agency DoPT, its natural that such information is totally denied by PIOs across the country. The citizens are generally seeking information about public servants like certified copies of complaints filed against, and action taken on disciplinary proceedings under Civil Servants Conduct Rules, their Income Tax Returns, Annual Property Statements, ACRs, etc. All of those applications are hitting this iron wall erected by Girish.
Legally the matter of seeking copies of Income Tax Returns filed by public servants is settled as the apex court and the Commission declared they were ‘personal information’. There is also clarity about ACRs, as the apex court declared every public servant had a right to know remarks about his performance through ACRs and also a right of appeal against adverse remarks. However the court held that citizen or other parties cannot seek the ACR of another public servant. Regarding the annual assets statements, the hide and seek game is continuing though the Parliament made its intention obvious that every public servant has to declare the assets every year under Lokpal Act. The only point remained in Girish is whether the copies of complaints and action taken thereon in any disciplinary proceedings over the charges framed under Civil Service Conduct Rules could be shared with the citizen or to be secured as personal information under Section 8(1)(j) of the RTI Act.
Before getting into the character of such information and its disclosability, it is necessary to understand the binding nature of the order of Hon’ble Supreme Court in Girish as a precedent.
The point to be noted is that the order of the Supreme Court in Girish is that his SLP was dismissed. Dismissal of Special Leave Petition means the Supreme Court did not permit the appellant to file an appeal over the order of division Bench of Bombay High Court. It is clear that there was no hearing of appeal on merits. The Hon’ble Supreme Court was given discretionary powers under Article 136 to decide whether an appeal from order of the High Court could be taken up for hearing or not. In its discretion it has decided to dismiss this SLP.
The Article 141 of Indian Constitution says that the law declared by Supreme Court to be binding on all courts.
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
This Article is the Constitutional source of law of precedent in India. In a landmark case State of Orissa & Ors. vs. M.D. Illyas, the Supreme Court explained that “a decision is a precedent on its own facts and that for a judgment to be a precedent it must contain the three basic postulates. A finding of material facts, direct and inferential, (an inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts); (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) Judgment based on the individual effect of the above.
Special Leave Petition and Discretion of Supreme Court
Appeal is different from Special Leave Petition. The petition for special leave to appeal (SLP) is filed before the Supreme Court under Article 136 of the Constitution. The Supreme Court may accept or reject the same. Article 136 says:
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.
This discretionary power of the Supreme Court is not subject to any constitutional limitation, and is left entirely to the discretion of the Supreme Court. It is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of the judgment or order made by the Court or Tribunal in any case or matter and the jurisdiction can be exercised in spite of other specific provision for appeal contained in the Constitution, Cr P C or other statute. This jurisdiction of the apex court cannot be whittled down by any legislation subordinate to the Constitution, as held in Mahendra Saree Emporium II vs. G.V. Srinivasa Murthy. Conclusiveness or finality given by a statute to any decision of a Court or Tribunal cannot deter the Supreme Court from exercising this jurisdiction. When special leave is granted the issues raised only can be contested and the entire case is not open at large. That is why the decision in SLP cannot be said to have been heard on merits like that in appeals. No rules or principles as to when such leave ought to be granted and when it ought to be refused can be laid down, as each case would depend on its own peculiar facts. Supreme Court observed:
..it is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by Art. 136…….. It being an exceptional and overriding power, naturally, it has to be exercised sparingly and with caution and only in special and extraordinary situations.
The SLP cannot be granted generally, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.
The SLP and res judicata
In Delhi Administration vs. Madan Lal Nangia it was held that if a SLP is summarily dismissed, this cannot prevent other parties from filing a SLP against the same judgement. It is a settled law that when the SLP is dismissed, whether by a speaking or non-speaking order whether in limine or on contest, second SLP would not lie. However the statement cannot be stretched and applied to hold that such an order attracts applicability of doctrine of merger and excludes jurisdiction of the court or authority passing the order to review the same.
In all cases of admission of the SLP the further decision on merits follow whereas in every case of dismissal there is no question of further decision or proceedings from the Supreme Court and effectively the order of the lower Court/ authority which is challenged before the apex Court is affirmed and becomes final. In such a situation the question whether the person/s aggrieved by the order of the lower Court could agitate his grievance by way of an application for review or rectification of mistakes apparent from record so as to persuade the lower authority to modify its final order in the light of the application for rectification or review, to the extent and in the manner found appropriate is still open for consideration. The respondent often pleads that the order of the lower Court having been affirmed by the Supreme Court it is no more open to the lower authority, after the dismissal of the SLP to entertain any application and/or decide the same for the purpose of review, revision or modification of the order which has been upheld by the Supreme Court. The controversy is not free from doubt. The effect of dismissal of SLP by the Supreme Court is that the order of the Supreme Court does not constitute res judicata to deny the petitioner the right to agitate matters on merits before the competent Court/Tribunal.
The Supreme Court in Indian Oil Corporation Ltd. vs. State of Bihar & Ors has clarified that the dismissal of a special leave petition by the Supreme Court by a nonspeaking order would not operate as res judicata. It said:
When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding, namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principles of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
If SLP is admitted, appeal follows that can lead to a decision on merits whereas in every case of dismissal there will be no possibility of any proceedings in Supreme Court and effectively the order of the lower Court/ authority remains final. The order of the Supreme Court does not constitute res judicata to deny the petitioner the right to agitate matters on merits before the competent Court/Tribunal.
Doctrine of Merger
The apex court may dismiss the appeal on any grounds, that would result in superseding the decision under appeal attract doctrine of merger. But if same reason has prevailed with the Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant the leave to appeal.
A petition for leave to appeal to the Supreme Court may be dismissed either by a non-speaking order or by a speaking order. Speaking order explain the reasons and non-speaking order could be a dismissal of SLP in limine (at threshold), without assigning any reason. A non speaking order cannot be considered as a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. Even if the order of dismissal was supported by reasons, still the Article 141 would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but just a discretionary jurisdiction in refusing to grant leave to appeal. It neither lays down the law nor operate as res judicata, as stated by Patna High Court (Full Bench) in Smt Tej Kumari v CIT. In this case the Patna High Court quoted V. M. Salgaocar & Bros. v. CIT (2000) 243 ITR 383 (SC), wherein the Supreme Court considered the difference between dismissal of special leave petition and civil appeal in limine. The Supreme Court observed:
Different considerations apply when a special leave petition under article 136 of the Constitution is simply dismissed by saying 'dismissed', and an appeal provided under article 136 is dismissed also with the words 'the appeal is dismissed'. In the former case it has been laid down by this court that when a special leave petition is dismissed this court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of article 133. This doctrine of merger does not apply in the case of dismissal of a special leave petition under article 136. When an appeal is dismissed the order of the High Court is merged with that of the Supreme Court.
The common law doctrine “doctrine of merger” is founded on principles of propriety in the hierarchy of justice delivery system. The Supreme Court in Kunhayammed and Ors v. State of Kerala and Anr, said that the doctrine of merger is not a universal doctrine with unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. The Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction under Article 136 disposing petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. The Supreme Court also observed in Dhakeswari Cotton Mills that it is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by Article 136 of Constitution of India. It being an exceptional and overriding power, naturally, it has to be exercised sparingly and with caution and only in special and extraordinary situations. No rules or principles as to when such leave ought to be granted and when it ought to be refused can be laid down, as each case would depend on its own peculiar facts. The Supreme Court in CIT vs. M/s. Vinay Cement Ltd. had dismissed the SLP, as it was not a fit case for grant of a SLP therefore cannot be said to be the law decided on the subject and it was not a binding precedent as per Article 141 of the Constitution of India. Further, in the case of Hari Singh Etc v State of Haryana, the Supreme Court said:,
The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition. Any such order cannot be held to be stare decisis so that it is a binding on the Court. The mere rejection of the Special Leave Petition of co- accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court. The appellants to whom leave has been granted can urge all questions within the framework of Article 136 of the Constitution for consideration. By this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that a Special Leave Petition In respect of co-accused persons with more or less similar charges, evidence and convictions has already been rejected.
In Supreme Court Employees Welfare Association Vs. Union of India and Another 1989 (4) SCC 187, and Yogendra Narayan Chowdhury and Others Vs. Union of India and Others 1996 (7) SCC 1, both decisions by Two-Judges Benches, Supreme Court has held that a non-speaking order of dismissal of a special leave petition cannot lead to assumption that it had necessarily decided by implication the correctness of the decision under challenge. Referring above two cases, in Kunhayammed case the Supreme Court said:
We may refer to a recent decision, by Two-Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.
A few decisions which apparently take a view to the contrary may now be noticed. In Sree Narayana Dharmasanghom Trust Vs. Swami Prakasananda and Others 1997 (6) SCC 78, it was held that a revisional order of the High Court against which a petition for special leave to appeal was dismissed in limine could not have been reviewed by the High Court subsequent to dismissal of S.L.P. by Supreme Court. This decision proceeds on the premises, as stated in para 6 of the order, that It is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties. In our opinion, the order is final in the sense that once a special leave petition is dismissed, whether by a speaking or non- speaking order or whether in limine or on contest, second special leave petition would not lie. However, this statement cannot be stretched and applied to hold that such an order attracts applicability of doctrine of merger and excludes the jurisdiction of the Court or authority passing the order to review the same.
In State of Maharashtra and Anr. Vs. Prabhakar Bhikaji Ingle 1996 (3) SCC 463, the view taken by a Two-Judges Bench of this Court is that the dismissal of special leave petition without a speaking order does not constitute res judicata but the order dealt with in S.L.P., disposed of by a non-speaking order cannot be subjected to review by the Tribunal. In our opinion the law has been too broadly stated through the said observation. Learned Judges have been guided by the consideration of judicial discipline which, as we would shortly deal with, is a principle of great relevance and may be attracted in an appropriate case. But we find it difficult to subscribe to the view, as expressed in this decision, that dismissal of SLP without a speaking order amounts to confirmation by Supreme Court of the order against which leave was sought for and the order had stood merged in the order of Supreme Court.
On the point of dismissal of SLP by reasoned order, the Supreme Court in this case said:
Dismissal of SLP by speaking or reasoned order - no merger but Rule of discipline and Article 141 attracted. The efficacy of an order disposing of a special leave petition under Article 136 of the Constitution came up for the consideration of Constitution Bench in Penu Balakrishna Iyer and Ors. Vs. Ariya M. Ramaswami Iyer and Ors. - AIR 1965 SC 165 in the context of revocation of a special leave once granted. This Court held that in a given case if the respondent brings to the notice of the Supreme Court facts which would justify the Court in revoking the leave earlier granted by it, the Supreme Court would in the interest of justice not hesitate to adopt that course. It was therefore held that no general rules could be laid down governing the exercise of wide powers conferred on this Court under Article 136; whether the jurisdiction of this Court under Article 136 should be exercised or not and if used, on what terms and conditions, is a matter depending on the facts of each case. If at the stage when special leave is granted the respondent- caveator appears and resists the grant of special leave and the ground urged in support of resisting the grant of special leave is rejected on merits resulting in grant of special leave then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. However, if the respondent/caveator does not appear, or having appeared, does not raise a point, or even if he raised a point and the Court does not decide it before grant of special leave, the same point can be raised at the time of final hearing. There would be no technical bar of res judicata. The Constitution Bench thus makes it clear that the order disposing of a special leave petition has finality of a limited nature extending only to the points expressly decided by it.
The underlying logic attaching efficacy to an order of the Supreme Court dismissing S.L.P. after hearing counsel for the parties is discernible from a recent three-Judges Bench decision of this Court in Abbai Maligai Partnership Firm & Anr. Vs. K. Santhakumaran & Ors. 1998 (7) SCC 386. In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the senior advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned single Judge was subversive of judicial discipline. The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under.
A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.
Finally in Kunhayammed the Supreme Court listed out following conclusions:
Thus the order in Girish will bind only on the points decided by it. But the order of Bombay HC (DB) does not get merged with the order of Supreme Court in Girish. The judgment of Supreme Court in 2010 is very significant in understanding how the dismissal of SLP in Girish cannot be considered as binding precedent. The Supreme Court has categorically stated 2010 case of Bhakra Beas Management Board v. Krishan Kumar Vij and Anr., 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. By referring to the judgment in Kunhayammed case authored by the most illustrious learned Judge (Hon’ble Mr. Justice R.C. Lahoti as he then was) it was held:
In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order.
Thus 2010 order of the Supreme Court made it clear that even if the dismissal of SLP is on merits, it could be merits of dismissal only and it cannot be equated with decision on merits in appeal, which is regarded as precedent. Whatever may be phraseology used in SC order in Girish, there is a need to cull out what kind of law was declared. Before that we should list out the substantive legal points which were either not brought to the notice of the Bombay High Court or Supreme Court or not found mention in the order, which are as follows:
Therefore mere dismissal of SLP cannot be said to be the law declared under Article 141 and consequently will not be a binding precedent. Assuming that the order is one where the two sides of the case were discussed and the apex court agreed with either of two and dismissed SLP, still it may not attract the doctrine of merger and become a precedent to be followed by the lower courts and tribunals because what was heard was not appeal but special permission to file an appeal. The Supreme Court may dismiss the SLP with one word order or one sentence order or it might have discussed the facts, as that happened in Girish. The Hon’ble bench of the SC in Girish discussed the facts in five or six paragraphs and held the matter need not be heard in the appeal. The mention and discussion of the facts give character of ‘speaking order’ to it. But the merits or facts discussed are only limited to the extent of allowing or dismissing the ‘special leave’ and it does not mean that all the facts – whether questions of law, of fact or mixed questions of law and fact were heard, discussed and decided for the purpose of laying down law on those questions. Truly facts were discussed and held in Girish that it was not worthy of discussing as a full-fledged appeal.
The order of Division Bench of Bombay High Court remains an order at that stage only and cannot be merged into the order of dismissal of SLP by the Supreme Court. Because this was speaking order on facts relevant to the extent of deciding SLP, it will operate as res judicata and prevents Girish to file another SLP, if anybody files SLP in similar circumstances the order of SC in Girish might operate as a precedent. A non speaking order of dismissal of SLP will not operate as res judicata, while the speaking order might. Speaking order dismissing SLP in Girish case operates as res judicata and precedent to prevent further filing of SLP in this and similar cases, not as a general precedent upholding what was held by Bombay High Court, from where SLP was sought but denied. It does not mean that the order of DB of Bombay High Court was totally approved by the Supreme Court, because there was no merger, as doctrine of merger cannot be invoked in this case. Thus Bombay High Court order on Girish is not merged with the judgment of the Supreme Court in dismissal of SLP.
Binding nature of HC order in Girish:
After concluding that the SC order in Girish cannot be a binding precedent, what will be the law on the points of asset statements, service records, complaints and action related information about the public servant? Whether Bombay High Court order will operate as precedent on the subject? This division bench order of Bombay High Court cannot replace the precedential value of various judgments of the Supreme Court whose ratio decidendi is discussed below.
Ratio in Rajagopal: Main contention of the public authority and respondent in Girish case was that the information was personal to the public servant, unrelated to public activity and its disclosure would cause unwarranted invasion of his privacy. Expressions ‘privacy’ and ‘personal’ were defined and explained by the division bench of the Supreme Court consisting of B P Jeevan Reddy, S C Sen, JJ in R Rajgopal v State of Tamilnadu. The Supreme Court was required to balance the right of privacy against the right to free speech in this case, where the petitioner was a Tamil newsmagazine which had sought directions from the Court to restrain the respondent State of Tamil Nadu and its officers to not interfere in the publication of the autobiography of a death row convict–‘Auto Shankar’ which contained details about the nexus between criminals and police officers. The Supreme Court framed the questions in these terms: “Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorised writing infringe the citizen's right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such unauthorised account of a citizen's life and activities and if so to what extent and in what circumstances?” While answering the above questions, a bench of two judges of the Supreme Court, for the first time, directly linked the right to privacy to Article 21 of the Constitution but at the same time excluded matters of public record from being protected under this ‘Right to Privacy’. After analysing Supreme Court orders and some American decisions the Bench of Supreme Court held in Paragraph 9:
Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.
Then the Supreme Court summarised the law based on decisions in paragraph 26 of Rajgopal:
Part (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once 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. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/ media.
(3) There is yet another exception to the Rule in (1) above – indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”
Part 1 of the above order has an exception in Part 2. The information that formed part of public record or court record does not give rise to any privacy, except in cases of female victims of sexual crimes where her name shall not be revealed. This was not on the question of privacy but because there is a need to secure the victim and prevent further victimization by the society.
Question is what is public record?
Public record as defined in the Public Records Act is any record held by any Government office. The Rajgopal order is clear as to the areas of privacy – such as his family, marriage, procreation, motherhood, child bearing and education among other matters. Issuance of memos, initiating disciplinary action or imposing penalty does not fall in any of these categories and thus it cannot be said to be the personal or private information of the employee. Point 3 says that the acts and conduct relevant of public servant to discharge of their official duties cannot be treated as private information.
What is Personal? Conflict with Section 8 of RTI Act
The Supreme Court categorically stated that Point 3 was not just an exception to Point 1 but an independent rule by itself. This rule is similar to Section 8(1)(j) of RTI Act, which says the information which is related to public activity is not private information. The order in Girish is contrary to both express provision of law and well laid down ratio by the apex court in division bench. The order in Girish does not even mention R Rajgopal’s proposition and there was neither any analysis nor its overruling. When compared and analysed, the ratio in Rajgopal was in full-fledged writ appeal which was heard on merits was not over ruled by the order of dismissal of SLP in Girish. The ratio decidendi in Rajgopal is in tune with Section 8(1)(j) while dismissal of SLP in Girish is in conflict with that express provision of the law. The Girish order does not explain why the provision of RTI Act is not the law and by what rule of interpretation the new principle that employee related information is personal information has been evolved? Without over ruling the ratio in Rajagopal, it is not jurisprudentially possible to establish a different principle of law, that too in conflict with express provision of law. As it was not writ appeal there was no opportunity to bring the ratio in Rajagopal to the notice of the Division Bench of Supreme Court. Another vital point is that the memos, complaints or disciplinary action related information is not unconnected with public activity, which was also not discussed in the order. It might have happened because it was not a full writ appeal but a hearing on SLP only.
Privacy & Assets information of public servants
The assets and properties owned by a person, spouse and children could be private information of the public servant because this is in his personal domain as per Point 1, but when contrasted with Point 3 of Rajagopal ratio assets related information is not personal. The public servant is not expected to misappropriate the public money, with which he will be dealing in his day-to-day operations. In such background, the property he and his family members earned could be revealed. This became the law because of judicial pronouncements and also amendment to the Representation of People’s Act, and passing of Lokpal Act by the Parliament. The disciplinary action or complaints against a public servant, cannot fall under the categories of private domain such as family, marriage, procreation, motherhood, child bearing and education. Compared to an order of division bench of Supreme Court in dismissal of SLP in Girish under Article 136, the decision of the div