Last fortnight, on a Bangauru based RTI applicant’s second hearing appeal for seeking income-tax (I-T) details of her estranged husband, chief information commissioner (CIC) Neeraj Kumar Gupta upheld the public information officer’s (PIO’s) denial of information stating that, she is not entitled to seek the details of the I-T returns of her husband as it is exempted under Section 8(1)(j) of the RTI Act, 2005.
Contrast this with the CIC order by Prof Shridhar Acharyulu in 2015, who slammed a show-cause notice on the PIO on the penalty clause and stated in his order that the PIO cannot reject the request for such information, as it becomes information of larger public interest if filed by the spouses, as the issue has a bearing on prevention of domestic violence in the society and maintenance of wife and children.
CIC Neeraj Kumar Gupta, in his 10 July 2020 order, quoting a Delhi High Court order, states: “wherein it has been clarified that in a private dispute between husband and wife, the basic protection afforded by virtue of the exemption from disclosure enacted under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in ‘public interest’. In the matter at hand, the appellant has not succeeded in establishing that the information sought is for larger public purpose.’’
In sharp contrast, CIC Acharyulu in his 3 February 2015 order, has interpreted that maintenance of the wife and children and prevention of domestic violence constitutes larger public interest and, hence, cannot fall under the exemption clause of the RTI Act. His order states: “the PIO cannot reject the request for such information, if filed by spouses, on the ground of Section 8(1)(j) saying it is personal information, because the protection of privacy is overridden by the huge public interest in maintaining wives, as provided in the proviso to exception 8(1)(j). The larger public interest in maintenance of wives and children, prevention of domestic violence, etc for the purposes of the disclosure of such information, which was strongly established by the Delhi High Court in two landmark judgments.’’
CIC Gupta in his order, stated: “The act of filing returns with the department cannot be construed as public activity. The expression “public activity” would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression "public activity" would denote activity done for the public and/or in some manner available for participation by public or some section of the public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assessee could not be disclosed.’’
In sharp contrast, CIC Acharyulu gave this information utmost urgency, that is in 48 hours, when he stated in his order that: “The information related to income details in the context of non-maintenance of the spouse, becomes the life related information which should be given within 48 hours according to proviso to Section 7(1) of RTI Act, 2005.’’
Mr Gupta, in his CIC order observed that I-T details comes under 'fiduciary capacity' and hence information is private. His order elaborates that, “a Bombay High Court order of 2015 titled as Shailesh Gandhi vs The Central Information Commission, wherein, it has been observed as follows:- “the Petitioner possibly being aware of the said position has therefore sought to contend that filing of the income tax returns is a public activity. I am afraid the said contention is thoroughly misconceived as filing of income tax returns can by no stretch of the imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the income tax department in a fiduciary capacity, the same cannot be directed to be revealed unless the pre-requisites for the same are satisfied.”
CIC Acharyulu in his 2015 CIC order took the reference of another High Court Order when he stated: “In Kusum Sharma case referred above (Jan 14, 2015), the Delhi High Court stated that the maintenance is not merely a legal right but it is part and parcel of basic human right. Depending on the financial conditions and non-availability of support from parents, when husband does not maintain his wife, it challenges her right to live, and thus information related to maintenance becomes life related information. In this case, the appellant alleged that she lost 15 kilos weight as she was not given food for 15 days by the husband, who took lot of dowry wealth from the parents in law. The allegation that he advertised for second wife during the sustenance of his marriage with first wife, which is being investigated into is proof of the fact that he neglected his wife. It proves prima -facie that he was not maintaining his wife. The public authority did not go into these questions, and the PIO did not bother to give her information asked for in reasonable period.’’
CIC Gupta also cited the Supreme Court of India vs Subhash Chandra Agarwal of 2019 wherein he stated that, “reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive.’’
a. CIC Acharyulu in his order insisted that, as per the 2015 Delhi High Court order: “as depending on the financial conditions and non-availability of support from parents, when husband does not maintain his wife, it challenges her right to live, and thus information related to maintenance becomes life related information. This information about assets, income and investments of spouses is no more private or personal information as against spouses, even if that information could be personal or private information as against any person other than spouse. The proviso to Section 8(1)(j) read with Section 8(2) of the Right to Information Act entitled the appellant to get information which she sought because of overwhelming public interest in securing the lives of deserted wives. The Commission thus holds that: The spouses have right to information between them as listed by Delhi High Court.’’
b. The husband in this case, has a duty to provide all that information listed above to his wife, and the appellant wife has right to information as established by Delhi High Court based on rights of marriage as provided by various statutes of family law whom he is not maintaining and public authority has authority and power to enforce that duty…
c. Though certain documents like annual returns of assets, investments, I-T returns etc were earlier declared as private/ personal or third-party information, as far as spouses are concerned they are not private or personal or third-party information between them in the context of marital disputes especially for maintenance purposes.
d. The PIOs cannot reject the request for such information, if filed by spouses, on the ground of Section 8(1)(j) saying it is personal information, because the protection of privacy is overridden by the huge public interest in maintaining wives, as provided in the proviso to exception 8(1)(j). The larger public interest in maintenance of wives and children, prevention of domestic violence, etc, for the purposes of the disclosure of such information, was strongly established by the Delhi High Court in two landmark judgements referred to above.
e. The information related I-T details in the context of non-maintenance of the spouse, becomes the life-related information which should be given within 48 hours according to proviso to Section 7(1) of RTI Act, 2005.
However, at the end of it, the estranged spouse, be it the wife or the husband, remains at the receiving end of such contradictions. Earlier too CIC Deepak Sandhu had given favourable CIC orders in this regard.