Bombay High Court
Securities And Exchange Of India vs Central Information Commission And Ors on 10 July, 2025
Author: M. S. Sonak
Bench: M.S. Sonak
2025:BHC-AS:28136-DB
WP-10909-2023+-J-F.DOCX
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10909 OF 2023
Securities and Exchange Board of India
Being a Regulatory Authority established
under the provisions of the Securities
and Exchange Board of India Act, 1992
Having its Head Office at SEBI Bhavan
Plot No.C4-A, G Block, Bandra-Kurla
Complex, Bandra (East), Mumbai 400
051 ... Petitioner
Versus
AMOL
1. Central Information Commissioner
PREMNATH CIC Bhawan, Baba Gangnath Marg,
JADHAV Munirka, New Delhi 110067
Digitally signed by
AMOL PREMNATH
JADHAV
Date: 2025.07.10 2. Shri. Subhash Chandra Agarwal
17:46:25 +0530
1775 Kucha Lattushah, Dariba,
Chandni Chowk, Delhi- 110006
3. National Stock Exchange of India
Ltd.NSE Corporate Office, Exchange
Plaza, Plot No.C/1, G Block, Bandra
Kurla Complex, Bandra (E),
Mumbai-400 051 ... Respondents
WITH
WRIT PETITION NO. 10910 OF 2023
Securities and Exchange Board of India
Being a Regulatory Authority established
under the provisions of the Securities
and Exchange Board of India Act, 1992
Having its Head Office at SEBI Bhavan
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Plot No.C4-A, G Block, Bandra-Kurla
Complex, Bandra (East), Mumbai 400
051 ... Petitioner
Versus
1. Central Information Commission
CIC Bhawan, Baba Gangnath Marg,
Munirka, New Delhi 110067
2. Shri Subhash Chandra Agrawal
1775 Kucha Lattushah, Dariba,
Chandni Chowk, Delhi 110006
3. Bombay Stock Exchange Ltd. A
recognized stock exchange
instituted under the provisions of
the Securities Contract (Regulation)
Act, 1956, having Address at
Phiroze Jeejeebhoy Towers Dalal
Street, Fort, Mumbai - 400001
4. National Stock Exchange of India
Ltd.NSE Corporate Office, Exchange
Plaza, Plot No. C/1, G Block,
Bandra Kurla Complex, Bandra (E),
Mumbai - 400 051
5. Multi Commodity Exchange of India
Ltd. A company incorporated under
the Companies Act, 1956, having its
registered Office at Exchange
Square, Suren Road, Andheri (E),
Mumbai -400 093.
6. Multi Commodity Exchange
Clearing Corporation Ltd
A company incorporated under the
Companies Act, 1956, having its
registered office at CTS No. 255,
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Exchange Square, Suren Road,
Andheri (E), Mumbai - 400 093. ... Respondents
WITH
WRIT PETITION NO. 10887 OF 2023
Subhash Chandra Agarwal, an adult
Indian Inhabitant, residing at 1775,
Kucha Lattushah Dariba, Chandni
Chowk, Delhi - 110 006 ... Petitioner
Versus
1. Central Public Information Officer,
Securities and Exchange Board of
India,
having its head office at plot No.C4-
A 'G' Block, Bandra-Kurla Complex,
Bandra (East), Mumbai- 400 051.
2. BSE Limited
having its registered office at 25th
Floor, PJ Towers, Dalal Street,
Mumbai-400 001
3. National Stock Exchange of India
Ltd
Having its registered office at
Exchange Plaza, C-1, Block G., BKC
Bandra, East, Mumbai- 400 051. ... Respondents
WITH
WRIT PETITION NO. 10888 OF 2023
Subhash Chandra Agarwal, an adult
Indian Inhabitant, residing at 1775,
Kucha Lattushah Dariba, Chandni
Chowk, Delhi - 110 006 ... Petitioner
Versus
1. Central Public Information Officer,
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Securities and Exchange Board of
India,
having its head office at plot No.C4-
A 'G' Block, Bandra-Kurla Complex,
Bandra (East), Mumbai- 400 051.
2. BSE Limited
having its registered office at 25th
Floor, PJ Towers, Dalal Street,
Mumbai-400 001
3. National Stock Exchange of India
Ltd
Having its registered office at
Exchange Plaza, C-1, Block G., BKC
Bandra, East, Mumbai- 400 051. ... Respondents
______________________________________________________
Mr. J. J. Bhatt, Senior Advocate, a/w Ms. Shivani Kumbhojkar
a/w Mr. Omprakash Jha, for The Law Point, Petitioner in
WP 10909/2023 and WP 10910/2023 and R.No. 1 in WP
10887/2023 and WP 10888/2023.
Mr. Ashish Venugopal, a/w Ms. Mitravinda Chunduru a/w Mr.
Valentine Mascarenhas i/by RHP Partners for Petitioner
in WP 10887/2023 and WP 10888/2023 and Respdt. No.
2 in WP 10909/2023 and WP 10910/2023.
Mr. Sunip Sen, Senior Advocate, a/w Mr. Akshay Vani a/w Mr.
Sunilkumal Pillai i/by MLS Vani & Associates, for R.No. 3
in WP 10909/2023 and R.No. 4 in WP 10910/2023 and
R. No. 3 in WP 10887/2023 and WP 10888/2023
Mr. Zerick Dastur, a/w Ms. Archana Uppulliri i/by M/s. Zerick
Dastur Advocates, for R.No. 5 & 6.
Mr. Pesi Modi, Senior Advocate, a/w Ms. Kalpana Desai a/w
Mr. Ritvik Kulkarn a/w Ms. Kanika Sharma, i/by Khaitan
& Co. For R.No.2 in WP 10887/2023 and WP
10888/2023 and R.No.3 in WP 10910/2023.
______________________________________________________
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CORAM : M.S. Sonak &
Jitendra Jain, JJ.
RESERVED ON : 25 JUNE 2025
PRONOUNCED ON : 10 JULY 2025
JUDGMENT :
(Per M. S. Sonak, J.)
1. Heard learned Counsel for the parties.
2. Having regard to this Court’s order dated 14 March
2023, we issue Rule in each of these Petitions. With the
consent of and at the request of the learned Counsel for the
parties, the Rule in each of the Petitions is made returnable
immediately.
3. All these Petitions challenge the Central Information
Commission’s (CIC) order dated 27 December 2022 partly
allowing Mr Agarwal’s application dated 18 June 2021
seeking some information from the Chief Public Information
Officer (CPIO), Securities and Exchange Board of India (SEBI)
under the Right to Information Act, 2005 (RTI).
4. The SEBI has instituted Writ Petition No. 10909 of 2023
and Writ Petition No. 10910 of 2023 to challenge the
impugned order, to the extent it directs the CPIO, SEBI, to
furnish a revised reply to Mr Agarwal on points 1, 3, 4 and 5
under the RTI Act. Mr Agarwal has instituted Writ Petition No.
10887 of 2023 and Writ Petition No. 10888 of 2023 to
challenge the impugned order to the extent that it does not
furnish the entire information sought in the application dated
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18 June 2021 made to the CPIO, SEBI. Accordingly, it is only
appropriate that all these Petitions be disposed of by common
judgment and order. The learned Counsel for the parties agree
to the adoption of this course of action.
5. Mr Agarwal, in his application dated 18 June 2021 had
raised nine queries. In the synopsis submitted in Writ Petition
No. 10887 of 2023, such queries and the
observations/findings in the CIC’s impugned order have been
set out in a tabular form. Accordingly, they are transcribed
below for the convenience of reference: –
Information sought Observations under the Impugned
(extracted verbatim from Order
the Application)Query No. 1: [see: Pg. 27]
Complete information The CPIO was directed to provide
including policy, guidelines workable links to the Petitioner.
etc on role of SEBI for
appointment of Public- [This is not challenged by Mr
Interest-Directors (PIDs) on Agarwal as well as SEBI]
boards of
Market Infrastructure
Institution (MII)
Bombay Stock
Exchange (BSE)
National stock
Exchange (NSE)
Multi Commodity
Exchange (MCX)
MCX ClearingPage 6 of 35
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WP-10909-2023+-J-F.DOCXCorporation Limited
(subsidiary of MCX)Query No. 2: [see: Pg. 27]
File notings, correspondence Applying the exemption under
and other documents on Section 8(1)(e) of the RTI Act, the
framing policy, guidelines information sought was not
etc as referred in query (1) provided on the ground that the
above for SEBI having its information with SEBI was held in a
role in appointing PIDs on ‘fiduciary’ capacity.
boards of MII, BSE, NSE,
MCX and MCX Clearing [This is challenged by Mr Agarwal
Corporation Limited as well as SEBI]
Query No. 3: [see: Pg. 27]
File-notings, correspondence Applying the exemption under
and other documents on Section 8(1)(j), the information
granting approval by SEBI to sought was not provided on the
appoint PIDs on boards of ground that the documents
MII, BSE, NSE, MCX and pertaining to grant of approval for
MCX Clearing Corporation appointment of PIDs was personal
Limited from 01.01.2019 till information of the applicants.
15.06.2021
However, the CPIO was directed to
provide a list of selected and
rejected candidates, invoking the
severability principle of Section 10
of the RTI Act and ensure the
personal information and sensitivie
information is redacted and
masked.
[This is challenged by the Mr
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Agarwal as well as SEBI]
Query No. 4: [see: Pg. 29]
Copies of annual inspection- Applying the exemption under
reports made by SEBI in Section 8(1)(d), full inspection
respect of BSE from the year reports were not provided and only
2017-18 till 2019-20 if not concluding comments/final findings
available on SEBI website. (year-wise) of annual inspections
concluded during the period
Query No. 5:
mentioned in queries no. 4 and 5
Copies of annual inspection-
was provided in public interest.
reports made by SEBI in
respect of NSE from the year
2014-15 till 2017-18 if not
[This is challenged by the Mr
available on SEBI website.
Agarwal as well as SEBI]
Query No. 6:
Inspection of all records,
Note 1: In Reserve Bank of India vs.
documents files etc on
Jayantilal N. Mistry (2016) 3 SCC
subject-matter of query-
525, the Hon’ble Supreme Court, in
numbers (1) to (5)
relation to RBI and banks, held that
reports of inspections, statements of
the banks, information related to
the business obtained by RBI are
not under the pretext of confidence
or trust and neither RBI nor the
banks act in interest of each other.
Note 2: The judgment in Jayantilal
N. Mistry (supra) has been cited
and affirmed by a 5-Judge Bench of
the Hon’ble Supreme Court in
Central Public Information Officer,
Supreme Court of India vs. SubhashPage 8 of 35
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WP-10909-2023+-J-F.DOCXChandra Agarwal (2020) 5 SCC
481.Note 3: By an Order dated
28.04.2021, the Hon’ble Supreme
Court dismissed the miscellaneous
applications seeking recall of the
judgment in Jayantilal N. Mistry
(supra).
Query No. 7: No findings
Web-links if any providing [This is challenged by Mr Agarwal
information as sought under as well as SEBI]
query-numbers (1) to (5)Query No. 8:
Any other related No findings
information [This is challenged by Mr Agarwal
as well as SEBI]
Query No. 9:
File-notings on movement of No findings
the RTI petition [This is challenged by Mr Agarwal
as well as SEBI]
8. As some of the information applied to the functioning of
the Bombay Stock Exchange Limited (BSE) and the National
Stock Exchange of India Limited (NSE), they were ordered to
be impleaded as Respondents in these Petitions. Pleadings
have been completed, and with the consent of the learned
Counsel for the parties, the matters were heard finally on 25
June 2025 and reserved for orders.
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9. Mr J.J. Bhatt, the learned Senior Advocate appearing for
SEBI, submitted that apart from the information already
furnished by the CPIO to Mr Agarwal, the rest of the
information was exempted from disclosure under the
provisions of Section 8(1) and its various sub-clauses. In
particular, he submitted that most of the information applied
for by Mr Agarwal was obtained by the SEBI in its fiduciary
capacity, and there was no larger public interest warranting
the disclosure of this information. He submitted that
disclosure of the information applied for would also
prejudicially affect the State’s economic interest. Mr Bhatt
further submitted that the information sought relates to
personal information, the disclosure of which has no
relationship to any public activity or interest. He submitted
that the furnishing of such information would cause an
unwarranted invasion of individual privacy, and there was no
larger public interest justifying its disclosure.
10. Mr Bhatt submitted that much of the information
applied for by Mr Agarwal pertains to third parties like BSE,
NSE and other stock exchanges. The CIC, in making the
impugned order, had completely ignored the provisions of
Section 11 of the RTI, and for this reason, the impugned order
is also vulnerable.
11. Mr Bhatt submitted that Mr Agarwal had raised no
specific queries or had sought no specific information. The
entire exercise, he submitted, was more like a fishing
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expedition. He submitted that while an RTI applicant may not
be required to disclose their motives for seeking the
information, it was still highly challenging for SEBI to deal
with such applications bereft of any particulars. He submitted
that by suggesting that the declined information be furnished
to Mr Agarwal, a disproportionate burden was being imposed
upon the SEBI.
12. Mr Bhatt refereed to certain decisions and made his
submissions to distinguish the decision of the Hon’ble
Supreme Court in the case of Reserve Bank of India Vs
Jayantilal N Mistry1 relied upon by Mr Agarwal. He relied on
the order dated 30 September 2022 in Interim Application No.
68597 of 2021 (HDFC Bank Ltd Vs Union of India) 2 in which
some prima facie observations were made regarding the
decision in the case of Jayantilal N Mistry (supra).
13. Based on all this, Mr Bhatt submitted that the SEBI’s
Petitions may be allowed, and Mr Agarwal’s Petitions
dismissed.
14. Mr Sunip Sen and Mr Pesi Modi, learned Senior
Advocates for NSE and BSE respectively and Mr Zerick Dastur
for Multi Commodity Exchange of India by adopting the
submissions of Mr J J Bhatt referred to certain provisions of
the Securities and Exchange Board of India Act, 1992,
Securities and Exchange Board of India Regulations 2018, the
Securities Contracts (Regulation) Act, 1956 and the Rules of
1
2016 3 SCC 525
2
2022 SCC OnLine SC 1337
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1957 to submit that the information sought by Mr Agarwal
could not be granted under the RTI. They pointed out that
information regarding the functioning of share markets is
extremely sensitive economic information. By revealing such
information, the regulation and operation of stock exchanges
would be rendered extremely difficult. Such information
would be capable of the greatest abuse and therefore, such
information was exempted from disclosure under the RTI Act.
15. The learned Counsel for the stock exchanges also relied
upon certain decisions which will be considered during this
judgment and order. They submitted that the decision in
Jayantilal N Mistry (supra) was in the context of banks, and
there was a marked difference between the functioning of the
banks and the stock exchanges. They submitted that the
observations in Jayantilal N. Mistry (supra) cannot be
mechanically applied when dealing with stock exchanges.
16. The learned Counsel for the stock exchanges submitted
that no information relating to stock exchanges, including the
information that may have been supplied by the stock
exchanges to the SEBI in its fiduciary capacity, can be
disclosed. They further pointed out that the provisions of
Section 11 of the RTI were never followed, even though the
information mainly relates to the stock exchanges, which are
third parties in relation to Mr Agarwal and SEBI. They
submitted that without following the provisions of Section 11
of RTI, no information could have been directed to be
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furnished to Mr Agarwal.
17. Mr Venugopal, the learned Counsel for Mr Agarwal,
clinically analysed the SEBI’s response to the RTI application,
the orders made by the first and second appellate authorities
and the impugned order made by the CIC. He submitted that
SEBI and others are now attempting to raise grounds other
than those on which their initial arbitrary rejection was based.
He submitted that this was clearly impermissible, and the
parties should not be allowed to add new grounds to sustain
the otherwise arbitrary rejection of the information sought by
Mr Agarwal.
18. Mr Venugopal submitted that no information sought for
by Mr Agarwal was received by SEBI in its fiduciary capacity.
In any event, there was a larger public interest in
transparency in the functioning of the SEBI and the stock
exchanges involved. He submitted that the principles set out
in Jayantilal N Mistry (supra) clearly apply, and based upon
the same, the information could not have been denied to Mr
Agarwal.
19. Mr Venugopal submitted that there was no issue of
competitive secrets or personal information involved in this
matter. He submitted that SEBI, as a regulator, appoints public
interest directors to the boards of various stock exchanges.
Such appointments are in the public interest and for the
proper regulation of the stock exchanges. He submitted that
there can be no secrecy regards policy, guidelines, mode of
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selection and parameters of selection of such public interest
directors. Therefore, the denial of information under queries 2
and 3 was contrary to the provisions of RTI.
20. Mr Venugopal submitted that SEBI annually inspects the
stock exchanges. However, there is no transparency regarding
such reports, and therefore, the public has no means of
knowing the deficiencies or concerns, if any, reflected in the
annual inspection reports. The public is also deprived of
knowledge about the action taken, if any, based on the issues
flagged in such reports. He submitted that such reports should
be published on the SEBI’s website, and there was no good
ground to resist supplying such information.
21. Therefore, Mr Venugopal submitted that the denial of
information in response to queries 4 and 5 was contrary to the
provisions of the RTI.
22. Mr Venugopal stressed on Jayantilal N Mistry (supra)
and pointed out that the said decision still holds the field and
has not been set aside or reviewed. He submitted that the RBI,
which is also the regulator of banks, has resisted providing
identical information. Still, the Hon’ble Supreme Court held
that such resistance was not valid given the provisions of the
RTI. He submitted that no qualitative difference in the
information applied for by Mr Agarwal under queries 4 and 5,
and therefore, consistent with the decision of the Hon’ble
Supreme Court in Jayantilal N Mistry (supra), such
information had to be supplied to Mr Agarwal.
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23. Mr Venugopal also relied upon certain decisions,
including the decision of the Hon’ble Supreme Court in the
case of Central Public Information Officer, Supreme Court of
India vs. Subhash Chandra Agarwal, which shall be
considered in this judgment and order.
24. Based on all these submissions, Mr Venugopal
contended that the Petitions instituted by SEBI be dismissed
and the Petitions instituted by Mr Agarwal be allowed.
25. The rival contentions now fall for our determination.
26. In the context of the issues raised in this Petition, a brief
reference to some of the relevant provisions of the RTI Act
would be appropriate. Section 2(f) of the RTI Act defines
“information”. Section 2(j) defines “Right to Information”.
Section 3 provides that, subject to the provisions of this Act,
all citizens shall have the right to information. Section 4
addresses the obligations of public authorities, and Section 5
concerns the designation of Public Information Officers.
27. Section 6 deals with requests for obtaining information.
Section 6(2) provides that an applicant requesting
information shall not be required to give any reason for
requesting the information or any other personal details
except those that may be necessary for contacting them.
Section 7 addresses the disposal of requests for information.
Section 7(8) requires the furnishing of the reasons where
information is being rejected. Section 7(9) provides that
information shall ordinarily be provided in the form in which
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it is sought unless it would disproportionately divert the
resources of the public authority or would be detrimental to
the safety or preservation of the record in question.
28. Section 8 is one of the most crucial provisions
concerning the issues raised in this petition. This deals with
the exemption from disclosure of information and shall be
dealt with in greater detail during this judgment and order.
Section 9 deals with the rejection of access in some instances
involving infringement of copyright subsisting in a person
other than the State. Section 10 deals with severability.
29. Section 11 deals with third-party information, which is
also crucial to the determination of the issues raised in this
Petition. Therefore, even this provision will be dealt with in
some detail during this judgment and order.
30. Section 8 of the RTI Act reads as follows: –
“8. Exemption from disclosure of information.–(1)
Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen,–
(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity of India,
the security, strategic, scientific or economic interests of
the State, relation with foreign State or lead to incitement
of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence,
trade secrets or intellectual property, the disclosure ofPage 16 of 35
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party, unless the competent authority is satisfied that
larger public interest warrants the disclosure of such
information;
(e) information available to a person in fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrens the disclosure of
such information;
(f) information received in confidence from foreign
Government;
(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;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers,
the reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or
over:
Provided further that those matters which come
under the exemptions specified in this section shall not be
disclosed;
(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:
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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:
Provided that where any question arises as to the
date from which the said period of twenty years has to be
computed, the decision of the Central Government shall be
final, subject to the usual appeals provided for in this Act.”
31. Section 11 of the RTI Act reads as follows:-
“11. Third party information.–(1) Where a Central Public
Information Officer or a State Public Information Officer,
as the case may be, intends to disclose any information or
record, or part thereof on a request made under this Act,
which relates to or has been supplied by a third party and
has been treated as confidential by that third party, the
Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within five
days from the receipt of the request, give a written notice
to such third party of the request and of the fact that the
Central Public Information Officer or State Public
Information Officer, as the case may be, intends to
disclose the information or record, or part thereof, and
invite the third party to make a submission in writing or
orally, regarding whether the information should be
disclosed, and such submission of the third party shall be
kept in view while taking a decision about disclosure of
information:
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Provided that except in the case of trade or
commercial secrets protected by law, disclosure may be
allowed if the public interest in disclosure outweighs in
importance any possible harm or injury to the interests of
such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information Officer, as
the case may be, sub-section (1) to a third party in respect
of any information or record or part thereof, the third
party shall, within ten days from the date of receipt of
such notice, be given the opportunity to make
representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7,
the Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within forty
days after receipt of the request under section 6, if the
third party has been given an opportunity to make
representation under sub-section (2), make a decision as
to whether or not to disclose the information or record or
part thereof and give in writing the notice of his decision
to the third party.
(4) A notice given under sub-section (3) shall include
a statement that the third party to whom the notice is
given is entitled to prefer an appeal under section 19
against the decision.”
32. The scheme of Sections 8 and 11 of the RTI Act was
analyzed by the Constitution Bench of the Hon’ble Supreme
Court in CPIO Vs Subhash Chandra Agarwal (Supra). The
Court explained that the RTI Act operationalizes the disclosure
of information held by “public authorities” to reduce the
asymmetry of information between individual citizens and the
State apparatus. The RTI Act facilitates transparency in the
decisions of public authorities, holds public officials
accountable for any misconduct or illegality, and empowers
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individuals to bring to light matters of public interest. The RTI
Act has provided a powerful instrument to citizens and
individuals engaged in advocacy and journalism. It fosters a
culture of assertion among citizen-activists, whistle-blowers,
and, above all, each citizen with a general interest in the
affairs of the State.
33. The Constitution Bench observed that when enacting the
RTI Act, Parliament was cognizant that the unrestricted
disclosure of information could be fiscally inefficient, result in
real-world harms and infringe on the rights of others. The
Bench referred to the preamble to the RTI Act, which also
states: “and whereas revelation of information in actual
practice is likely to conflict with other public interests,
including efficient operations of the Governments, optimum
use of limited fiscal resources and the preservation of
confidentiality of sensitive information;”.
34. The Constitution Bench explained that to address the
harms that may result from an unrestricted disclosure of
information, the legislature included certain qualified and
unqualified exemptions to the general obligation to disclose
under Sections 3, 4 and 7 of the RTI Act. Section 8(1) sets out
certain classes of information, the disclosure of which, the
legislature foresaw, may result in harm to the nation or the
rights and interests of other citizens.
35. The Constitution Bench, after quoting the provisions of
Section 8 of the RTI Act explained that the non-obstante
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phrase with which Section 8(1) begins carves out an
exception to the general obligation to disclose information
under the RTI. Therefore, where the conditions set out in any
of the sub-clauses to Clause (1) of Section 8 are satisfied,
Information Officers are under no obligation to provide
information to any applicant. The Constitution Bench has also
explained that clauses (a), (b), (c), (f), (g) and (h) to note
sub-section (1) of Section 8 provide an absolute exemption
from the obligation of disclosure under the RTI Act. However,
clauses (d), (e), (i) and (j) to sub-section (1) of Section 8
provide a qualified exemption from disclosure. For example,
clause (a) to sub-section (1) of Section 8 provides an
unconditional exemption where it is determined that
disclosure of the information sought “would prejudicially
affect the sovereignty and integrity of India”. On the other
hand, while clause (d) to Section 8(1) similarly provides that
information is exempt from disclosure where such disclosure
“would harm the competitive position of a third party” the
exemption is further qualified by the phrase, “unless the
competent authority is satisfied that larger public interest
warrants the disclosure”. Thus, the exemption under clause
(d) is not absolute but is qualified and cannot be invoked
where a “larger public interest” exists. Where the Information
Officer determines that the “larger public interest” warrants a
disclosure, the exemption in clause (d) cannot be invoked,
and the information must be disclosed.
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36. Similarly, the Constitution Bench, in the context of
Clause (j) of Section 8(1) explained that it provides a
qualified exemption from disclosure where the information
sought relates to “personal information the disclosure of
which has no relationship to any public activity or interest” or
the disclosure of the information would cause an
“unwarranted invasion of the privacy”. However, the
exemption may be overridden where the Information Officer
is “satisfied that the larger public interest justifies the
disclosure”. Clause (j) is not an absolute exemption from the
disclosure of information on the ground of privacy, but states
that disclosure is exempted in cases where “personal
information” is sought and there exists no “larger public
interest”. Where the Information Officer is satisfied that the
existence of the “larger public interest” justifies the disclosure
of the “personal information”, the information must be
disclosed.
37. Section 2(n) of the RTI Act defines “third party” to
mean a person other than the citizen requesting information,
and includes a public authority. Section 11 is concerned with
third-party information. The Constitution Bench explained
that “Third party information” is information which “relates to
or has been supplied by any other person (including a public
authority) other than the information applicant and has been
treated as confidential by such third party”.
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38. Where disclosure of “third party information” is sought,
and such information has been prima facie treated as
confidential by the third party in question, the procedure
under Section 11 of the RTI Act is mandatory. The Information
Officer shall, within five days of receiving the request for
“third party information” notify the relevant third party to
whom the information relates or which had supplied it. The
notice shall invite the third party to submit reasons (in writing
or orally) as to whether or not the information sought should
be disclosed. Section 11(2) provides the third party with a
right to make a representation against the proposed disclosure
within ten days of receiving the notice.
39. The provision expressly mandates the Information
Officer to consider the objections of the third party when
deciding whether to disclose or not disclose the information.
It encapsulates the fundamental idea that a party whose
personal information is sought to be disclosed is afforded the
opportunity to contest disclosure. The proviso to sub-section
(1) of Section 11 permits disclosure where the “public
interest” in disclosure outweighs any possible harm in
disclosure highlighted by the third party.
40. The Constitution Bench explained that Sections 8 and
11 must be read in conjunction with each other. Other than in
a case where the information applicant seeks the disclosure of
information which relates to the information applicant herself,
information sought that falls under the category of “personal
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information” within the meaning of clause (j) of Section 8(1)
is also “third party information” within the ambit of Section
11. Therefore, in every case where the requested information
is “personal information” within the meaning of clause (j) of
subsection (1) of Section 8, the procedure for notice and
objections under Section 11 must be complied with. The two
provisions create a substantive system of checks and balances
that seek to balance the right of the information applicant to
receive information with the right of the third party to prevent
the disclosure of personal information, permitting the latter to
contest the proposed disclosure.
41. The contention that Section 11 applied only to
situations where information sought was directly supplied by
a third party, and not to situations where the information
related to the third party but was not supplied by it, was
rejected by the Constitution Bench. The Court held that the
procedure under Section 11 must be complied with not only
in cases where information has been supplied to the public
authority by a third party, but also when the information held
by the public authority “relates to” a third party.
42. Section 11 is not merely a procedural provision, but a
substantive protection to third parties against the disclosure of
their personal information held by public authorities, without
their knowledge or consent. The mere fact that the public
authority holds information relating to a third party does not
render it freely disclosable under the RTI Act. A third party
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may have good reason to object to the disclosure of the
information, including on the ground that the disclosure
would constitute a breach of the right to privacy. By including
the requirement of inviting objections and providing a hearing
on the proposed disclosure of third-party information to the
very party that the disclosure may adversely impact, Section
11 embodies the principles of natural justice.
43. The Constitution Bench was concerned inter alia with
information regarding the declaration of assets by members of
the judiciary and the official file noting’s and correspondence
concerning the elevation of judges to the Supreme Court. The
Court held that the information sought regarding the assets of
Judges is not generated by the Supreme Court itself, but is
provided by individual Judges to the Supreme Court. The file
notes regarding the elevation of Judges do not merely contain
information about the operation of the Supreme Court, but
also relate to individual Judges being considered for elevation.
44. Thus, the Court held that the information sought both
“relates to” and “has been supplied by” a third party and “has
been treated confidentially by that third party”. The
procedure under Section 11 was held to be applicable
regarding the information sought by Mr Agarwal in the said
matter and had to be mandatorily complied with.
45. The Constitution Bench also explained the interplay
between the right to privacy, which is now accepted as one of
the facets of Article 21 of the Constitution, and the Right to
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Information Act. The Court explained that the RTI is a
legislative enactment that contains a finely tuned balancing of
interests between the privacy rights of individuals whose
information may be disclosed and the broader public interest
in ensuring transparency, accountability, and an informed
electorate. The overarching scheme of the RTI Act, and in
particular Sections 3, 4, and 7, constitutes a mandate to fulfil
the positive content of the “right to information” as a facet of
Article 19(1)(a) of the Constitution.
46. The privacy interest protected by clause (j) of subsection
(1) of Section 8 engages the principle of informational privacy
as a facet of constitutional privacy, as recognised by this Court
in K.S. Puttaswamy. Neither the “right to information” as a
facet of Article 19(1)(a) nor the right to informational privacy
as a facet of the right to privacy is absolute. The rights under
Article 19(1)(a) may be restricted on the grounds enumerated
in clause (2) of Article 19. The right to privacy and its
numerous facets may be permissibly restricted where the
abridgement is provided by law, pursues a legitimate State
objective and complies with the principle of proportionality.
47. The Constitution Bench, by referring to Subhash
Chandra Agarwal Vs Supreme Court of India3 (supra), in
which Mr. Agarwal had sought for details of medical facilities
availed by Judges and their family members in the preceding
three years, the Court held that certain category of
information such as medical information, details of personal
3
2018 11 SCC 634
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relations, employee records, and professional income can be
classified as personal information. The question of whether
such information must be disclosed has to be determined by
the CPIO on a case-to-case basis, depending on the public
interest demonstrated in favour of disclosure.
48. The Constitution Bench also dealt with the aspect of
“public interest” especially in the context of qualified
exemptions for disclosure of information. For example,
Section 8(1)(d) or (e) exempts disclosure of information
specified therein, unless the competent authority is satisfied
that larger public interest warrants the disclosure of such
information. The Court held that the factors that weigh in
favour of disclosure in “public interest” are specific to each
unique case.
49. The issues raised in this Petition will have to be
addressed in the light of the provisions of the RTI as explained
by the Hon’ble Constitution Bench in the above-referred
decisions.
50. Regarding the first query, the CPIO was directed to
provide workable links to Mr. Agarwal. This portion of the
impugned order has neither been challenged by SEBI nor by
Mr. Agarwal. Therefore, there is no need to address any issues
arising from the first query.
51. Even otherwise, we are satisfied that this information is
mainly contained in the Securities Contracts (Regulation) Act
1956 and Rules 1957 and the Securities Contracts
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(Regulation) (Stock Exchanges and Clearing Corporations)
Regulations 2018. Such information is thus available in the
public domain.
52. Query No. 2 concerns file notings, correspondence and
other documents on framing policy, guidelines, etc, as referred
to in query (1) above for SEBI having its role in appointing
PIDs on boards of MII, BSE, NSE, MCX and MCX Clearing
Corporation Limited. The SEBI invoked the exemption under
Section 8(1)(e) of the RTI Act by urging that this would
contain information held by SEBI in its fiduciary capacity.
53. In the body of the CIC’s impugned order, the
observations suggest that the CIC accepted SEBI’s contention
that the information which was sought was held by SEBI in its
fiduciary capacity. Such information includes commercial
information, the disclosure of which may harm the interests of
the suppliers of such information. The CIC assessed the
institutional impact of disclosing this information in the
instant case and opined that the possibility of harm or injury
emanating from the disclosure outweighed the public interest.
Therefore, the exemption under Section 8(1)(e) of the RTI, as
claimed by the SEBI, was upheld and allowed.
54. In the directions issued in the impugned order under the
caption of “decision”, there is no reference to any decision or
direction on point No. 2, which dealt with query No. 2. The
information sought by Mr. Agarwal under query No. 2 is a
little confusing and vague. The information sought relates to
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file noting, correspondence, and other documents ” on framing
policy, guidelines etc.” as referred to in query (1) above for
SEBI having its role in appointing PIDs on the Boards of “MII,
BSE, NSE, MCX and MCX Clearing Corporation Limited.”
Nevertheless, such information can be said to have been held
in fiduciary capacity by the SEBI. Because this would include
information supplied by candidates to be considered for
appointment as PIDs in good faith and candour, trusting that
confidentiality would be maintained. Therefore, we do not
think that any case is made out to interfere with the
impugned order to the extent it rejects information regarding
query No. 2.
55. Query No.3 concerns “File-notings, correspondence and
other documents on granting approval by SEBI to appoint
PIDs on boards of MII, BSE, NSE, MCX and MCX Clearing
Corporation Limited from 01.01.2019 till 15.06.2021” The
SEBI invoked the exemption under Section 8(1)(j) of the RTI
Act, on the ground that the documents about the grant of
approval of PIDs constituted personal information of the
Applicants. By the impugned order, the CIC has partially
upheld SEBI’s defence. However, the CPIO was directed to
provide a list of selected and rejected candidates, invoking the
severability principle in Section 10 of the RTI Act, after
ensuring that the personal information and sensitive
information was redacted and masked.
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56. The information sought under Query No. 3 could
include personal information about the various Applicants or
candidates desirous of being appointed as PIDs on the stock
exchange. The list of those appointed as PIDs would obviously
be in the public domain, and obtaining this information would
pose no difficulty. Similarly, if the Applicant had entertained
any doubts about the appointed PIDs not fulfilling the
prescribed qualifications, information in that regard could
have been sought, and the exemption under Section 8(1)(j)
would not have applied. However, seeking omnibus
information about not only those appointed as PIDs but also
those who may not have been appointed as PIDs could, in a
given case, cause an unwarranted invasion of the privacy of
such persons or candidates. The CIC has also taken into
account the public interest aspect. The CIC’s order is
vulnerable to the extent it directs the supply of a list of
rejected candidates, even though such rejected candidates
would be third parties as defined under Section 2(n) of the
RTI Act.
57. If information regarding the rejected candidates,
including their names, is to be disclosed, the third-party
procedure prescribed under Section 11 must be followed.
Once again, this is not a case of selection through a
competitive examination or by a departmental promotion
committee or departmental selection committee, where
considerations would differ. The subjective element in such
selections is minimal, and the results of written tests or marks
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obtained in interviews are usually made public. The
information is generally uploaded to the designated website
and is available for the concerned to access.
58. However, the position regarding the appointments of
PIDs is qualitatively different. Typically, professionals and
experts from the field are considered and evaluated. Those
not selected or appointed may not necessarily be disqualified
or less meritorious than those selected. But there might be
requirements concerning diversity or domain expertise. There
may be several factors relevant to their non-selection. They
may not want these matters to be made public. Their privacy
concerns cannot be disregarded without giving them an
opportunity to oppose such disclosures, if they so choose. The
provisions in Section 11, which are mandatory, cannot be
avoided or bypassed in such situations.
59. In the case of CPIO V/s. Subhash Chandra Agarwal
(supra), the Applicants had sought copies of correspondence
exchanged between constitutional authorities, together with
file-notings relating to the appointment of Supreme Court
Judges, superseding the seniority of some High Court Judges.
The Court held that such information falls within the meaning
of “third party information” and the procedure under Section
11 must be complied with in arriving at a determination.
Therefore, the matter was remanded to the CPIO to examine
it afresh, following the procedure prescribed under Section 11
of the RTI Act.
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60. Therefore, insofar as Query No.3 is concerned, we set
aside the CIC’s impugned order and remand the matter to the
CPIO to consider Mr Agarwal’s request afresh by following the
provisions of Section 11.
61. Query Nos. 4 and 5 concern the annual inspection
reports made by SEBI for a certain specified period. The
impugned order, by applying the exemption under Section
8(1)(d) has not granted full inspection but only directed that
concluding comments/final findings (year-wise) be provided
in public interest. Again, we note that the annual inspection
reports would include information about stock exchanges,
such as BSE and NSE.
62. Mr Bhatt argued that these annual inspection reports are
detailed and cover a variety of activities and parameters,
including cybersecurity and measures to prevent leaks of
sensitive pricing information. He contended that even
revealing concluding comments or final findings based on
vague and broad queries would not serve the public interest.
In any case, he maintained that such information could never
have been ordered for disclosure without following the
procedure required by Section 11 of the RTI Act.
63. Mr Venugopal, however, relied on Jayantilal N. Mistri
(supra) to submit that in this case, the RBI, which had raised
a substantially similar defence, was ultimately directed to
disclose its annual general reports concerning the banks.
While some of the observations in Jayantilal N. Mistri (supra)
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undoubtedly support Mr Agarwal‘s case, we must note the
observations made by the Hon’ble Supreme Court in HDFC
Bank Ltd And Ors. V/s. Union of India And Ors. (supra)
disposing of the Interim Applications filed by several banks in
the context of directions issued in Jayantilal Mistri (supra).
64. In paragraph 42 of HDFC Bank Ltd (supra), the Hon’ble
Supreme Court observed thus: –
“Without expressing any final opinion, prima facie, we find that
the judgment of this Court in the case of Jayantilal N. Mistry
(supra) did not take into consideration the aspect of balancing
the right to information and the right to privacy. The petitioners
have challenged the action of the respondent-RBI, vide which
the RBI issued directions to the petitioners/Banks to disclose
certain information, which according to the petitioners is not
only contrary to the provisions as contained in the RTI Act, the
RBI Act and the Banking Regulation Act, 1949, but also
adversely affects the right to privacy of such Banks and their
consumers. The RBI has issued such directions in view of the
decision of this Court in the case of Jayantilal N. Mistry (supra)
and Girish Mittal (supra). As such, the petitioners would have
no other remedy than to approach this Court. As observed by
Ranganath Misra, J. in the case of A.R. Antulay (supra) that,
this being the Apex Court, no litigant has any opportunity of
approaching any higher forum to question its decision. The
only remedy available to the petitioners would be to approach
this Court by way of writ petition under Article 32 of the
Constitution of India for protection of the fundamental rights of
their customers, who are citizens of India.”
65. Furthermore, the banks and the role of the RBI in
regulating their affairs cannot be equated with stock
exchanges and the role of SEBI in regulating the stock
exchanges. In any event, the annual general reports, based
upon information furnished by the various stock exchanges,
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can be said to constitute information related to third parties.
Therefore, without following the provisions of Section 11 of
the RTI Act, there was no question of directing even the
limited disclosures that have been made.
66. Query Nos. 6, 7, 8 and 9 seek general information like
inspection of all records, documents, files etc. on the subject
matters of Query Nos. 1 to 5, weblinks, if any, providing
information as sought under Query Nos. 1 to 5 and even file
notings on movement of the RTI Petition.
67. We agree with Mr Bhatt that furnishing such vague
information may not be possible. While there may be no
exemption as such provided in such situations, it is expected
of an applicant to seek information with a sufficient degree of
precision and clarity so that the request for information can be
processed within the timelines set out under the RTI Act. Mr
Venugopal advanced no serious contentions concerning Query
Nos. 6 to 9.
68. We therefore dispose of these Petitions by passing the
following order:
(i) The CIC’s impugned order in so far as Query Nos.
1, 2, 6, 7, 8 and 9 is not interfered with.
(ii) The CIC’s impugned order regarding Query Nos.
3, 4 and 5 is set aside, and the matter is
remanded to the CPIO for fresh consideration of
the Petitioners’ request for information on these
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queries, but after following the provisions of
Section 11 of the RTI Act.
69. There shall be no order for costs in these Petitions.
70. All concerned must act on an authenticated copy of this
order.
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