New Delhi: In a major leg up for the transparency movement, the Delhi high court has issued notice on the intervention filed by right to information (RTI) activists in the matter relating to information about students who graduated from Delhi University in 1978 – the year Prime Minister Narendra Modi is said to have graduated, according to his election affidavit.

Justice Rajiv Shakdher issued the notice despite Delhi University, represented by additional solicitor general Tushar Mehta, strongly opposing the request filed by Anjali Bhardwaj, Nikhil Dey and Amrita Johri from the National Campaign for People’s Right to Information.

While Mehta insisted that RTI activists should not be allowed to intervene in the case, the counsel of the intervenors said this was an issue of grave public importance and that the interpretation by the court would have serious ramifications on the RTI regime in the country. Further, it was highlighted that similar interventions had been allowed by the Delhi high court in matters relating to the appointment of the chief information commissioner of the Central Information Commission (CIC) under the Lokpal and Lokayuktas Act.

As reported earlier by The Wire, RTI activists had contended that Delhi University’s challenge to the CIC order directing it to disclose the names of all students who graduated with a BA degree in 1978, was bad in law. They had noted that while such information was readily provided by prominent foreign universities, Delhi University had also erred in citing various provisions of the RTI Act in trying to block the disclosure of information, which is over 20 years old.

Delhi University had challenged the CIC’s 2016 order on the grounds that it violated the RTI Act’s provision pertaining to privacy (Section 8(1)(j)) that it is in possession of the information being sought in a fiduciary capacity under section 8(1)(e) of the Act.

CIC had allowed inspection of DU’s 1978 BA degree records

In his order of December 21, 2016, central information commissioner M. Sridhar Acharyulu had allowed inspection of Delhi University’s 1978 BA degree records. Hearing the RTI application by one Neeraj, Acharyulu had overturned the DU central public information officer’s (CPIO) decision to deny the sought information. The university then contended that disclosure of its 1978 university records would invade the privacy of students and that the information “has no relationship to any public activity or interest”.

The CIC held that the university could not provide any evidence or explain how such information causes any “invasion of privacy”, and allowed for inspection of records.

Soon after he passed the order in the case, Acharyulu was divested of the charge of the human resource development ministry. Though the chief information commissioner later issued a notice allowing him to retain the power to intervene in HRD ministry matters, RTI activists have urged that the reasons behind the move, widely assumed to have been prompted by a nudge from outside the commission, be disclosed.

Kejriwal had accused PM of influencing departments

The issue had also kicked up a political storm as Aam Aadmi Party leader and Delhi chief minister Arvind Kejriwal wrote to the CIC alleging that the prime minister was influencing the departments concerned not to release details about his degrees.

Treating his letter as an RTI application, the CIC had then directed both Gujarat University (GU) and Delhi University to give Modi’s roll numbers so that they could find out the necessary details. Later, both DU and GU confirmed what Modi had stated in his election affidavits. Copies of his degree certificates showed that he had completed his BA from Delhi University in 1978 with a third division and finished his MA in ‘Entire Political Science’ with a first division in 1983.

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Shah, Jaitley had jumped to PM’s defence

But the controversy did not end there. Soon after BJP leaders Amit Shah and Arun Jaitley triumphantly flashed Modi’s degrees at a press conference and blamed AAP for stooping to a new low, Team Kejriwal retaliated by pointing to discrepancies in the degrees.

AAP leader Ashutosh alleged that Modi’s name in the marksheets and the degree were different, and that names could be changed only through an affidavit. He demanded that the BJP produce the affidavit. He also pointed out that the final year mark sheet was awarded in 1977 while the degree stated that Modi graduated from DU in 1978.

The BJP responded by saying that Modi had failed his examinations in 1977 and had therefore taken the final year exams in 1978, the year the degree was awarded.

DU opposed the CIC order citing privacy clause

The CIC order was expected to provide finality, but DU opposed it and moved the Delhi high court in appeal. The court on January 23, 2017 stayed the CIC order directing disclosure of Modi’s degree records.

In its petition, Delhi University had stated that the CIC order of December 21, 2016 had directed the “University of Delhi to facilitate inspection of relevant register where complete information about result of all students, who have passed in Bachelor of Arts (B.A.), in the year 1978 along with roll number, names of students, father’s name and marks obtained is available and provide certified copy of the extract of pages from the register”.

The Delhi University, therefore, “sought exemption from provision of the said information under Section 8 (1)(e), (j) and Section 11 of the Act”, citing clauses pertaining to privacy and its fiduciary capacity. In granting a stay, the high court stated that Delhi University had contended it had “no difficulty” in providing information on three points that concern the total numbers but when it came to the fourth point, it objected to the demand saying that this concerned “personal information” of all students and was thus exempt from disclosure.

The high court noted that the additional solicitor general, while appearing for Delhi University, had contended that even if the said information was not held in fiduciary capacity, disclosure of personal information could only be directed after compliance of provisions of sections 8(1)(j) and section 11 of the Act, which require issuance of a notice and provision of an opportunity of hearing to the individual concerned about whom the information is sought.

RTI activists plea says DU’s stand based on incorrect interpretation of law

Before the matter was listed again for hearing toward the end of 2017, the three RTI activists filed an intervention plea in the matter. They stated that DU’s stand was at variance with major universities across the globe which freely share information on their students’ performance.

The RTI activists also claimed that Delhi University’s petition was based on an incorrect interpretation of law and ran contrary to the manner in which Delhi University dealt with such information at present. They also pointed out that the university had at the time of obtaining the stay ignored section 8(3) of the RTI Act, which provides for the lifting of most of the exemptions if the information sought for pertains to matters that are over 20 years old.

At the hearing on February 28, after issuing the notice, the Delhi high court has now listed the matter for May 22, 2018.

Note: This article has been edited as the previous version stated that the high court had allowed the activists’ intervention. It has, in fact, issued notice on the intervention plea.