Why the Gujarat High Court's Reasoning in the Modi MA Degree Matter Is Flawed

The judge did not ask how Gujarat University could proactively disclose information about the degree of its student – as it did in 2016 and 2022 – while denying the same under the RTI Act.

New Delhi: In allowing Gujarat University’s plea against a direction of the Central Information Commission asking it to disclose Prime Minister Narendra Modi’s MA degree, Justice Biren Vaishnav of the Gujarat high court noted that Arvind Kejriwal had failed to justify what larger public purpose would be served in disclosing the degree through the RTI route, when the same was already available in the public domain.

But Justice Vaishnav ignored the fact that the answer to his question was implicit in the Gujarat University’s decision to proactively upload Modi’s degree details on its website in September 2022. Earlier, in 2016, it had released his marks to the media. In other words, if the university saw clear public interest in the disclosure of the prime minister’s degree details, the same consideration should have prevailed if an applicant sought this information through the RTI route.

Section 6(2) of the RTI Act makes it clear that an applicant requesting information is not required to give any reason for doing do.

Yet, Justice Vaishnav notes that the only justification which came forward was that all information about candidates contesting elections must be available in the public domain for it to be scrutinised. Making a distinction between information which is already in the public domain, and that which is not, Justice Vaishnav suggested that a request under the Act with regard to the former is bereft of public interest, and therefore can be denied.

The judge relies on the Supreme Court constitution bench’s judgment in Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agarwal, authored by Justice Sanjiv Khanna and delivered on November 13, 2019, for his understanding of the concept of public interest. In Paragraph 75 of this judgment, Justice Khanna  observed that “something which is of interest to the public” and “something which is in the public interest” are two separate and different parameters. Elaborating on this, Justice Khanna said that the public may be interested in private matters with which the public may have no concern and pressing need to know. However, such interest of the public in private matters would repudiate and directly traverse the protection of privacy, he held.

The object and purpose behind the specific exemption vide clause (j) to Section 8(1) of the RTI Act is to protect and shield people  from unwarranted access to personal information and to protect facets like reputation, honour, etc. associated with the right to privacy, Justice Khanna observed. Explaining the significance of Section 6(2), Justice Khanna said that the ‘motive’ and ‘purpose’ for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, he added that these may be relevant factors while applying the public interest test in case of qualified exemptions.

The Supreme Court’s judgment in Subhash Chandra Agrawal is invoked by Justice Vaishnav to hold that there is no public interest in seeking information which is already in the public domain. But the Supreme Court’s judgment in this case, pronounced  by Justice Khanna on behalf of five judges on the bench, and the ones by Justice N.V. Ramana and Justice D.Y. Chandrachud separately in this case, do not at all buttress Justice Vaishnav’s reasoning that there is no public interest in seeking disclosure of information which is already in the public domain.

On the contrary, Justice Chandrachud’s judgment in this case is a repudiation of the argument that information can be denied on the ground that it is held in fiduciary capacity. Justice Vaishnav accepted Gujarat University’s contention that it held information about the degrees of its students in a fiduciary capacity, and therefore cannot disclose it under the RTI Act. Section 8 (1)(e) of the Act exempts from disclosure 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.

If the university’s contention is valid, why did it proactively disclose the prime minister’s degree on its website, Justice Vaishnav should have asked, but didn’t. In Subhash Chandra Agrawal, the Supreme Court did not accept the argument of the appellant (the Supreme Court Registry) regarding the existence of the fiduciary relationship between the Chief Justice of India and puisne judges.

Judges, Justice Chandrachud held in this case, hold the citizens’ interests in public trust, guided by fiduciary standards.  A judge’s public fiduciary obligation towards the citizen, he held, includes a duty of loyalty, duty of care and the cluster comprising the duties of candour, disclosure and accounting. The duty of loyalty for a judge, he added, entails them being loyal to the citizenry by remaining impartial towards the litigants before them. The duties of candour, disclosure, and accounting are based on the premise of judicial transparency and judicial honesty, he elaborated.  Seen in this light, can a university proactively disclose information about the degree of its student, while denying the same under the RTI Act, on the ground of fiduciary relationship?

Justice Vaishnav refers to the 2016 CIC order which noted that the information about Modi’s educational degrees was already in the public domain and the same was merely a matter of curiosity in the public domain which could not be equated with ‘public interest’.

The CIC’s order, authored by the then information commissioner, M. Sridhar Acharyulu, also makes a distinction between curiosity among the people and public interest, and held that just because the public is interested in it, it does not mean that it is in public interest.  The order then suggested that public interest will kick in where there is a prescribed educational qualification for a position, and its existence was doubted. That is not the point in this case, the order conceded.  However, when a citizen holding the position of chief minister wants to know the degree related information of the prime minister, it will be proper to disclose this, the order said.

Obviously, the CIC order was a poorly reasoned one, and it could not be cited as a justification for drawing a distinction between information which is already in the public domain and something which is not, to determine when public interest will kick in. Justice Khanna, while distinguishing “something which is of interest to the public” and “something which is in the public interest”, did not suggest that these two are inherently contradictory, even though they are two separate and different parameters. The public can be curious to know more about the prime minister’s degree, if the University already uploaded the same in the public interest.

In other words, being curious about what is deemed to be in the public interest by an institution, cannot be cited as a ground to deny information. Public curiosity about the prime minister’s degree cannot be interpreted as being inconsistent with public interest. Instead of asking Kejriwal about what is the public interest, Justice Vaishnav should have asked the Gujarat University authorities how a disclosure about the PM’s degree under the RTI Act would harm public interest – given that the University has already uploaded this information, including his marksheet, on its website.

Justice Vaishnav has rightly quashed the poorly reasoned CIC’s 2016 order. Acharyulu was clearly wrong in invoking non-existent suo motu powers to direct the university to disclose information, based on Kejriwal’s submissions in another case. But Justice Vaishnav erroneously used the poor reasoning of that order to justify non-disclosure under the RTI Act by Gujarat University.

Justice Vaishnav has ignored the Supreme Court’s 2019 judgment rejecting the Centre’s preliminary objections against relying on leaked documents in the Rafale case. Like the prime minister’s degree, the Rafale documents were already in the public domain, and the Centre had raised preliminary objections against relying on these leaked documents, claiming privilege. Relying on the judgment delivered in S.P. Gupta vs Union of India, the Supreme Court made it clear in this case that a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure, the Court may even inspect the document in question though the said power has to be sparingly exercised. The factual matrix in the Rafale case may be different from the one which Justice Vaishnav adjudicated, but the underlying principle favouring disclosure with regard to documents which are already in the public domain is clear.

In S.P. Gupta, a seven-judge Constitution bench of the Supreme Court clearly held against treating certain documents as belonging to a class, and therefore being entitled to non-disclosure, without identifying a clear public interest in such non-disclosure. In S.P. Gupta, the bench observed thus:

“There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.”

By considering the information pertaining to one’s degree or a prime minister’s qualification as non-disclosable under the RTI Act, the Gujarat high court has conferred class immunity from disclosure on such information. This is a setback to the implementation of the RTI Act, which requires timely correction.