PM Cares Fund has right to privacy under RTI Act even if it is govt entity: Delhi High Court

The Delhi High Court on Tuesday remarked that even if the PM Cares Fund is run or controlled by the government, it would not lose the right to privacy under the Right to Information Act (RTI Act) [Girish Mittal v CPIO Dy Commissioner of Income Tax].

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia clarified that it is not talking about the right to privacy flowing from Article 21 of the Constitution, but the right available to third parties under Section 8(1)(j) of the RTI Act, which bars disclosure of personal information. 

“Even if it is State, merely because it is State, it does it lose its right to privacy… How can you say that? Merely because there is an entity discharging certain public functions, or if it is managed, supervised and controlled by the government, it is still a juristic personality. How can you deny such a right [right to privacy] conferred on it merely because it is a public authority,” the High Court remarked. 

Chief Justice Upadhyaya explained that the RTI Act forbids information to be provided about third parties and there cannot be any difference between the privacy rights of a public or a private trust under the Act. 

“Suppose there is a society or a trust running a school or a football club. Would that society have a right to privacy [under RTI Act] or not… Can you say that without notice to that trust, this information can be given to you? You can't different between the third parties. It can be a private individual, trust, body, society or a cooperative society. It can be anything. Public or not, that would not differentiate, as far as third-party rights under the RTI Act is concerned,” the Court stressed. 

The Bench made the remarks while hearing an appeal seeking disclosure of information and documents submitted by the PM CARES Fund while seeking exemption under the Income Tax Act.

The Central Information Commission had allowed the plea and directed the Income Tax Department to disclose the information sought.

However, a single judge of the High Court set aside the CIC directive.

In January 2024, the single-judge ruled that CIC does not have the jurisdiction to direct furnishing of information provided for in Section 138 of the Income Tax Act. It added that Section 138 (2) of the Income Tax Act prevails over Section 22 of the Right to Information Act (RTI Act). 

The RTI applicant Girish Mittal then moved the Division Bench against the single-judge directive.

Today, advocate Pranav Sachdeva appeared for Mittal to argue the case. He said that PM Cares Fund is not covered under the exemption granted in Section 8(1)(j) of the RTI Act and that a public charitable trust established by the government cannot have the right to privacy under this statute. 

“Privacy of individuals is to be protected. But this sort of entity [PM Cares Fund] will not have any privacy,” he said. 

Sachdeva added that the protection under Section 138 of the Income Tax Act would not apply to the PM CARES Fund, and even if it did, it would be overridden by Section 22 of the RTI Act. 

After hearing Sachdeva, the Court listed the case for further hearing on February 10 when Additional Solicitor General N Venkataraman will make the submissions for the Income Tax Department.