For BCAJ December, 2007
CIC’s decisions :
● Disclosure of cabinet papers
The first proviso to S. 8(1)(i) of the RTI Act reads as under :
“Provided that the decision of
the 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.”
Smt. Aruna
Roy and Shri Shekhar Singh,
very senior RTI activists, made an RTI application to the Ministry of
Personnel, Public Grievances and Pensions, Department of Personnel and Training
(DOPT) requesting for disclosure of papers concerning amendment to the RTI Act.
The same was rejected under the above proviso, holding that the “matter is not
complete or over” yet. It was the contention of the applicants that “matter
is complete or over” as the decision has already been arrived at and that it
has already been notified through press.
To make the decision on this controversial matter, the
CIC called for the relevant records from DOPT on
“We find that the note for the
Cabinet was submitted on
Based on the above facts, the Commission held :
It is accepted that a decision on a Cabinet note cannot
be treated as complete, unless the matter of the decision has been completed,
which in this case would mean moving an amendment to the RTI Act, 2005 as per
the Cabinet decision. Till such
amendment is actually moved
or a decision taken, that no such amendment will be moved, the matter cannot be
treated as complete or over.
The decision of the First Appellate Authority, Dy. Secretary to Govt. of India, DoPT
rejecting the appeal petition by his order dated 13th October 2006, under
proviso to Clause (i) of Ss.(1) to S. 8 of the Right
to Information Act, 2005 is, therefore, upheld.
[Smt.
Aruna Roy and Shri Shekhar Singh v. DoPT,
● Investigation papers at CBI Anti-Corruption Unit
One Shri Hari Ram Naik sought certain
information from CBI which had registered a case against him. He was denied the
information, PIO holding that the disclosure of information/documents sought is
likely to endanger the life or physical safety of he persons who have provided such
information in confidence and further it would impede the process of
prosecution which is in progress in a Court of law. The Appellate Authority
also rejected the appeal on three grounds :
1. Disclosure of information
could identify the source of information or assistance given in confidence for
law enforcement — S. 8(1)(g)
2. The matter being under
trial, the disclosure could impede the prosecution — S. 8(1)(h)
3. The information sought has no relationship to any public interest — S. 8(1)(j)
The Commission held :
“Of the above, although points
1 & 2 have weight, point 3 is entirely misplaced. The prosecution is
obviously being conducted by the CBI in the public interest and it cannot,
therefore, be argued that the documents concerned with this prosecution are not
in the public interest or part of a public activity. On the other hand, as admitted
by the appellant Shri Hari
Ram Malik, the documents he has sought from the Court
have been provided to him, although the actual release of the documents has
been delayed.”
However, the Commission finally held that “The Commission cannot act as enforcement agency of a judicial authority. It advised the appellant to make an application to the appropriate Court for copies of any documents that he may require to assist in his defence. The Court may at its discretion take a sympathetic view in this matter because of the personal tragedies suffered by the appellant.
The appeal was dismissed.
[Shri
Hari Ram Malik v. CBI
Appeal No. CIC/WB/A/2007/00002, dated
● Disciplinary case before ICAI
On
During the hearing, the CPIO requested for an opportunity
to re-examine the application which was agreeable to the appellant.
Accordingly, a decision was given as under :
As agreed between the parties, the CPIO is directed to
review and examine the application for information afresh. And, accordingly
furnish a point-wise response as per the provision of the Act. In case, any
information is to be denied, the grounds for doing so should be clearly
mentioned for review by the Commission, if necessary. The CPIO is accordingly
directed to dispose of the matter within three weeks’ period from the date of issue
of this decision.
[Shri
Mukesh R. Shah v. The ICAI, Decision
No.1351/IC(A)/2007 F. No. CIC/AT/A/2007/00816 of
● Dispute re. allotment of bank audit
The appellant is one Mr. Vijay Kumar Khanna of
Facts :
The appellant has sought information under the RTI Act
by his letter dated
(i)
Provide a copy of the Constitution Certificate of the firm as on
(ii) Provide a copy of the CD
sent (containing the details of information about firms for the purposes of
allotment of Bank audit) or if sent in any other mode, the copy of the same in
which the information of the firm as on 1-1-2005 was sent to C&AG office
for the purpose of allotment/finalisation of panel
for allotment of bank audit prepared on the basis of data of the firm sent as
on 1-1-2005 for the purpose of allotment of Bank audit for the year ended 31-3-2006.
(iii) Provide a copy of any
correspondence sent to the Office of the Comptroller and Auditor General of
(iv) Provide
the action taken by Institute on his grievance application dated
The CPIO furnished his reply vide his letter dated 14-8-2006,
by which he has refused to furnish the copy of the CD, since it is pertaining
to information of other firms. He has also said that there was no correspondence
entered into with the C&AG in connection with the appointment of Central
Auditor of a Bank. Dissatisfied with the reply furnished by the CPIO, the
appellant filed his first appeal before the AA. The AA reiterated the same
stand taken by the CPIO while giving his reply on
Aggrieved, the appellant filed present appeal before the
Commission on
2. Comments were called for from public authority,
vide letter dated
Decision :
3. This case came up for hearing on
provide the CD to the
appellant within 15 days from the date of receipt of this direction. On the above
lines, the appeal is disposed of.
[Appeal No. 1046/ICPB/2007 F. No. PBA/07/255 of
The RTI Act
Reporting on the judgment of the High Court of Gujarat
(the Court) — continuing from November issue.
The second issue decided by the Court is whether the
PIO should pass speaking order when he discloses information relating to or
supplied by a third party and what satisfaction must be arrived at prior to
such information treated as confidential by that third party is disclosed.
It was the contention of Shri
Mardia and the Gujarat SIC that no reasons are
required to be assigned u/s.7(1) of the Act, 2005, for
passing an order for grant of information. This contention is not accepted by
this Court, mainly for the reason that if the information supplied is
pertaining to third party, reasons for imparting such information to the applicant
ought to be given, otherwise the Appellate Authority
cannot know the mind of the Public Information Officer. An appeal is provided u/s.19(2) of the Act, 2005. Third party can prefer an appeal.
Reasons reveal the mind of the Lower Authority. Reasons of an
order is like soul of an order, without it, the same must be declared ineffective.
If the reasons are not given for disclosure of the information relating to
third party or supplied by third party, the order can be known as non-speaking
order. In the facts of the present case, the orders passed by the respondent authorities
are totally non-speaking orders and, hence, deserve to be quashed and set
aside.
Shri Mardia’s
counsel contended that the PIO’s act is
administrative in nature and relied on some Supreme Court’s decisions. However,
the Court relied on the Supreme Court’s decision in the case of Indian
National Congress v. Institute of Social Welfare and others, reported in
AIR 2002 SC 2158, especially in para-24, as under :
“The legal principles laying down when an act of a
statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these :
Where (a) a statutory authority is empowered under a
statute to do any act (b) which would prejudicially affect the subject (c)
although there is no lis or two contending parties
and the contest is between the authority and the subject, and (d) the statutory
authority is required to act judicially under the statute, the decision of the
said authority is quasi-judicial.”
In view of the aforesaid decision also, the Public Information
Officer is a quasi-judicial authority as he is empowered under the statute i.e.,
the Act, 2005 to do an act (disclosing of information), which would affect
prejudicially a third party. Third party can prefer an appeal u/s.19(2) of the Act, 2005. Therefore, such authority has to
pass a reasoned order.
On the point of satisfaction to be arrived at prior to
disclosure of information about third party, the Court held that the Act
imposes a duty upon the Public Information Officer to arrive at a conclusion that
public interest in disclosure outweighs the harm or injury to the protected
interest of such third party, or larger public interest warrants disclosure of
such information.
The Court relied on the decision rendered by the Supreme
Court in the case of Ashok Kumar Pandey v. State of West Bengal and others, reported in
AIR 2004 SC 280, especially in paras 12 and 14.
Extracts from the said two paras :
12. The attractive brand name
of public interest litigation should not be used for suspicious products of
mischief.
14. The Court has to be
satisfied about (a) the credentials of the applicant (b) the prima facie correctness
or nature of information given by him. The Court has to act ruthlessly while dealing
with imposters and busybodies or meddlesome interlopers impersonating as public-spirited
holy men. They masquerade as crusaders of justice. They pretend to act in the
name of Pro Bono Publico, though they have no
interest of the public or even their own to protect.
The aforesaid factors will be considered by the Public
Information Officer before disclosing the information relating to or supplied
by a third party and has been treated as confidential by that third party.
In conclusion, the Court held that in the facts of
the present case, no conclusion has been arrived at by the concerned respondent
authorities, and, hence, the orders passed by the concerned respondent authorities
deserve to be quashed and set aside.
Other News
● Mumbai Police Budget :
The information provided in response to an RTI application
reveals that the Mumbai Police spent more than 85% of its money just to pay
salaries to its workforce of 40,000. Thus, only small amount of funds are
available for modernisation and intelligence
gathering.
● RTI Act and transparency :
One of the objectives of the RTI Act is to boost transparency.
It got a boost in the decision of the CIC Bench of two members when it held
that Government departments would have to come clean when they give sensitive
assignments to employees despite a question mark over their integrity. Whenever
violation of the ‘agreed list’ containing names of employees kept under the
gaze of the Central Bureau of Investigation and internal vigilance on account
of doubtful integrity of employees is noticed and officers figuring on the list
were appointed to sensitive assignments, the names both of the officers taking
those decisions and of the officers figuring on the list and benefiting from
the action of the appointing authority, would be disclosed.
● Navi Mumbai
Police Commissionerate :
It is surprising that Navi
Mumbai Police Commissionerate has not heard a single
RTI appeal till date and has summarily dismissed 74 appeals without hearing a
single case. The State Information Commissioner has summoned the Commissioner, Mr.
Ramrao Wagh for an
explanation on receiving this information on a complaint from a Vashi resident.
● Judicial accountability :
Issues of judicial accountability and extending right
to information laws to the Judiciary have once again come to the fore in the
wake of certain allegations against former Chief Justice of India (CJI) Y. K. Sabharwal. On September 21, the Delhi High Court moved
against three Mid Day journalists for reporting about the former CJI.
Judges invoke the right to know when they find their
own interests in jeopardy. But why should the same right not be invoked when
people demand information or accountability from the Judiciary
? Judges generally take the plea that the functioning of the Judiciary
is transparent, as proceedings take place in the open Court and every judgment
is a public document which is subject to criticism. However, after the passage
of the RTI Act in 2005, decisions of other functionaries too have come under
greater scrutiny than before. Little is known about the administrative actions
of the Judiciary.
Most High Courts have not even appointed Public Information
Officers (PIOs) as required under the RTI Act. Those
which have appointed PIOs have framed their own rules
which clearly prohibit the disclosure of information on administrative matters
relating to expenditure on
Judges and procedures followed in appointments of class-III and IV employees of
the High Court This amounts to a violation of the Act as exemptions from
disclosures are permissible only on certain grounds specified u/s.8 of the Act.
The High Court rules have arbitrarily enhanced the application fees from the
nominal Rs.10 to even Rs.500. Penalty for non-disclosure has been reduced from
Rs.25,000 to a meager Rs.500 which can hardly act as a deterrent. The SC must realise that rights cannot be withdrawn once given. Whether
it is the Justice Sabharwal controversy or
functioning of the Judiciary at large, greater transparency is called for. (Extracts
from The Times of
● RTI Act review :
Two years after it came into force, the Government has
decided to conduct a detailed evaluation of the Right to Information (RTI) Act
which, it says, has won ‘immense’ public response.
The Personnel Ministry project, to be provided technical
support by the London-based consultancy Adam Smith International (ASI) and
Administrative Staff College of India (ASCI), has also been promised a grant by
the British Government’s Department for International Development (DFID). The
one-year study will be conducted by a firm or consultant to be selected through
a process.
The ambitious review will not only evaluate how the
RTI Act has worked at different levels from the Central Government down to the panchayats, but also identify the main problem areas and
actionable steps for making it more effective. The law, passed on