New Delhi: Even as Delhi University’s challenge to a CIC order directing it to disclose the names of all students who graduated with a BA degree in 1978 – the year Narendra Modi also says he graduated – comes up for hearing in the Delhi high court on Thursday, RTI activists critical of the university’s stand have pointed out how such information is readily provided by prominent foreign universities. They also contend that Delhi University had 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 has challenged the CIC’s 2016 order on the grounds that it violates the RTI Act’s provision pertaining to privacy (section 8(1)(j)) that it is in possession of the information being siught in a fiduciary capacity under section 8(1)(e) of the Act.

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 overturned the DU central public information officer’s (CPIO) decision to deny the sought information. The university 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.

Acharyulu divested of HRD

As a central information commissioner, Acharyulu was divested of the charge of the human resource development ministry soon after he passed his order in Prime Minister Modi’s degree case. 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 revealed.

Political upheaval before CIC order

The issue had earlier kicked up a lot of political dust as the Aam Aadmi Party had contended that Modi might have lied about his degrees in his election affidavits. Delhi chief minister Arvind Kejriwal had also written to the CIC alleging that the prime minister was influencing the concerned departments not to release details about his degrees.

Treating his letter as an RTI application, the CIC had 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.

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 mark sheets 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.

CIC order was expected to provide finality, but DU opposed it

In this light, the CIC’s order, it was felt, would provide a finality to the issue. But instead of clearing the air, DU 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”.

In its plea before the high court, DU accordingly “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 the “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 concerned individual about whom the information is sought.

Foreign universities easily provide such information

As the matter now comes up for hearing again, Amrita Johri of the Satark Nagrik Sangathan – who, along with RTI activists Nikhil Dey and Anjali Bharadwaj, has filed an intervention plea in the matter – notes that DU’s stand was at variance to major universities across the globe which freely share information on their students’ performance. “We had filed an RTI request to the University of Oxford seeking a list of students who graduated in a particular year. Initially the university denied the information but later in the appeal process admitted that these in fact constitute a public record and hence can’t be denied and thereafter, provided the requisite information. The RTI and replies under the UK Freedom of Information Act show that it is a global practice to publicly provide a list of students who have graduated from university.”

Johri said the query filed in February this year had asked for the names of all students who graduated from Oriel College in 1999 after having completed their postgraduate studies from the University of Oxford, and also a copy of the degree awarded to Anjali Bhardwaj, who studied for her M.Sc. Degree in Environmental Change and Management and graduated in 1999.

On her part, Bharadwaj, who has been closely associated with the Right to Information movement and is a co-convenor of the National Campaign for Peoples’ Right to Information, charged that Delhi University’s petition is based on an incorrect interpretation of law and also runs contrary to the manner in which Delhi University deals with such information at present.

No bar on information over 20 years old

Bharadwaj said that DU 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.

The section states:

“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 20 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.”

Therefore, she said, exemptions under 8(1)(b), (d), (e), (f), (g), (h) and (j) cannot be invoked if the information sought is more than 20 years old. This provision, Bharadwaj said, had also been reinforced by the Supreme Court in Central Board of Secondary Education And Another vs. Aditya Bandopadhyay & Others in 2011, where it held:

“Section 8(3) provides that information relating to any occurrence, event or matters which has taken place and occurred or happened 20 years before the date on which any request is made under section 6, shall be provided to any person making a request. This means that where any information required to be maintained and preserved for a period beyond 20 years under the rules of the public authority, is exempted from disclosure under any of the provisions of section 8(1) of RTI Act, then, notwithstanding such exemption, access to such information shall have to be provided by disclosure thereof, after a period of 20 years except where they relate to information falling under clauses (a), (c) and (i) of section 8(1). In other words, section 8(3) provides that any protection against disclosure that may be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to be available after 20 years in regard to records which are required to be preserved for more than 20 years.”

Exemption pertaining to fiduciary relationship also does not apply

Since in the current case the information sought pertains to the year 1978, which is more than 20 years before the date on which the request for information was made, as per section 8(3), exemptions related to fiduciary relationship (section 8(1)(e)) or causing unwarranted breach of privacy (section 8(1)(j)) cannot be invoked, she added.

Also, Bharadwaj said, since in view of Section 8(3), information cannot be exempted from disclosure on the grounds that it is personal information (section 8(1)(j)), the issue of invoking Section 11 – which pertains to the rights of a third party – does not arise. She said this section does not by itself make any information exempt from disclosure and can only be invoked when the public information officer intends to disclose information “which relates to or has been supplied by a third party and has been treated as confidential by that third party”.