The Right to Information
For BCAJ January, 2008
Narayan
Varma
CIC’s decisions :
● Provisions of S. 6(3) of the RTI Act :
Very often the information sought by an applicant is
not in the possession of the PIO or the subject matter is not within the
jurisdiction of that public authority. In such cases, S. 6(3) has made very important
and interesting provision. The same
reads as under :
6(3) Where an application is made to a public authority
requesting for an information, :
(i) which is held by another public authority;
or
(ii) the
subject matter of which is more closely connected with the functions of another
public authority,
the
public authority, to which such application is made, shall transfer the
application or such part of it as may be appropriate to that other public
authority and inform the applicant immediately about such transfer :
Provided that
the transfer of an application pursuant to this sub-section shall be made as soon
as practicable, but in no case later than 5 days from the date of receipt of
the application.
An interesting issue came in appeal before the Central
Information Commission. The information was sought as under by one Mr. Jagdish Rana from the Ministry of
Personnel, Public Grievances & Pensions, Department of Personnel &
Training (DoPT) :
1. “Copy of the ‘Noting’ and
Copy of the compliance Report is requested under the RTI Act, 2005 made and
issued by the Ministry of Finance, etc. as per directions of the Jt. Secy., Govt. of India in Para No. 6 of the Office
Memorandum No. 28034/7/86-Estt/T, dated 3-4-1985 or 3-4-1986, issued by the
Ministry of Personnel, Public Grievances (Dept. of Personnel & Training), New
Delhi, regarding “Posting of Husband and Wife at the same Station”.
2. “Any other corrigendum, if
any, issued/circulated in regard to the reference mentioned above, may also be
clarified and supplied, whether the joint posting is applicable in our case
when my wife Smt. Sushma Kumari is employee of Rajasthan State Govt. since July 1974
and I am employee in the Delhi Police (Essential Services) and in service as
handicapped, wife is also facing long illness ?”
In response, the DoPT
forwarded photo copy of the Department’s
At the appeal hearing before the CIC, the Appellate Authority
was asked why, where the question did not pertain to his Ministry, they did not
transfer the request u/s.6 (3). To that, he responded by stating that the
Based on the above, the CIC decided as under :
It was not clarified in the response of either the CPIO or the first Appellate Authority that the OM in question applied only to the Government of India and was, therefore, not applicable to the State Governments. This now stands clarified in the CPIO’s response to the appeal notice. This was, no doubt, the ground for the plea that the DoPT ‘had no role’, but this could have been clarified in the first instance for the convenience of the applicant.
On the other hand the CIC found that the Delhi Police
does come under the authority of the Ministry of Home Affairs, decidedly a
Central Government organisation. Hence this matter
could have been transferred to the Ministry of Home Affairs. The appeal was
therefore allowed and the case was transferred to the CPIO Shri
N. M. Krishnan, Director (Police), Ministry of Home Affairs, for disposal u/s.7(1) of the RTI Act, 2005.
From the above, it appears that provisions of S. 6(3)
would not apply when the application is to the public authority of the Central
Government, but the subject matter pertains to the public authority of a State
Government and vice-versa.
(Shri Jagdish Rana v. DoPT, Appeal No. CIC/WB/A/2007/00106, decided on
● Information on Income-tax return :
One Shri Anil Khare of Nagpur made an RTI application
to the Income-tax Department, seeking copies of Income-tax returns, assessment
orders, taxes paid and so on of the Vidarbha Cricket Association,
Nagpur (VCA). Both the CPIO and AA declined to
disclose the information, on the ground that this pertained to confidential
information of a third party.
The appellant, before the CIC, argued extensively the
justification for providing such information which according to him was in
public interest. VCA on the other hand argued that most of the information
sought is already in public domain and in the published annual reports; it
further said that VCA was a public body, deeply conscious of its reputation and
would not like anybody to impeach its reputation on the basis of contested
Income-tax assessments, etc.
Before the CIC, the points of decisions were :
(a) whether
the Income-tax Returns filed by VCA could be said to be exempt from disclosure u/s.8(1)(d)
and u/s.8(1)(j) of the RTI Act.
(b) whether the public interest override proviso u/s.8(1)(j) and u/s.8(2) applies in this case.
The CIC decided vide the order dated
“It has been the decision of
this Commission in the cases Mrs. Shobha R. Arora v. Income-tax, Mumbai, (Appeal
No. CIC/MA/A/2006/00220; Decision No. 119/IC(A)/2006;
date of decision :
“The question now is whether
those exemptions could be superseded by the public interest override u/s.8(1)(j) and u/s.8(2) provisos. As has been pointed out by
the third-party’s representative, all information which forms the basis of the
Income-tax return filed by VCA already figures in the Annual Reports of the Association.
These are audited documents and are publicly available. All the information
which the appellant needs — for that reason any other person
— can be had from the Annual Reports of the VCA. It doesn’t seem necessary that
he should be allowed access to the Income-tax returns of the VCA to obtain the
same information which is otherwise available to him. The Commission is also in
agreement with the third party that extreme caution has to be exercised before
an Income-tax return of an assessee and the
corresponding assessments be allowed to be made
public.”
“A mere allegation of
wrongdoing on part of an assessee by an interested
person cannot provide the rationale for invoking the public-interest override
of S. 8(2). Nothing which the appellant has stated before the Commission would
qualify to be sufficient justification to invoke the public interest clause to
supersede the exemption and allow disclosure of the Income-tax returns of the VCA.
The Commission cannot also be oblivious of the concern of the VCA that given
the history of dispute between the appellant and the VCA, it is quite possible
that by allowing access to the appellant to the VCA’s
Income-tax returns, an opportunity would be provided to him to besmirch the
reputation of the VCA through propaganda and allusion. The VCA is understandably
not willing to be drawn into controversies where it would be required to give explanations
to unsubstantiated and motivated charges. The VCA also rightly stated that no return
is complete till its final adjudication is over. Any premature disclosure would
be liable to be misinterpreted and used as a tool to impeach the reputation of
the VCA.”
Based on the above, the appeal was rejected.
[Shri
Anil Khare v. CIT-I, CCIT and others, Appeal No.
CIC/AT/A/2007/00921, decided on
The RTI Act
Reporting on the judgment of the High Court of Gujarat
(the Court) — continuing from November and December, 2007 issues.
The third issue decided by the Court is regarding the
provisions and proceedings u/s.18 and u/s.19 of the RTI Act.
The Court ruled that the State Information Commissioner
has no power or jurisdiction to pass an order u/s.18 as he did, under which he remanded
the matter to the first AA. According to the Court there is no provision in the
Act remanding such application to AA, because it was a complaint u/s.18 and it
violates the principle of natural justice as it was so remanded without calling
the third party. The Court ruled as under :
“(i) The Information Commission has no authority or
jurisdiction to pass an order directing the Appellate Authority to part with
information u/s.18 of the Act.
(ii) The order clearly
indicates that the Appellate Authority is left with no discretion except to issue
suitable directions and to arrange to provide information.
(iii) No scope has been left
for the Assistant Public Information Officer or the Public Information Officer
to decide the matter considering the provisions of S. 11.
(iv)
Direction is given that the lower authorities should not only provide
information, but also furnish to the Commission the information so provided.
(v) The power u/s.18 is limited
to hold an inquiry into a complaint and if necessary, impose penalties u/s.20.
It is not an appellate power, for the appellate power is found in S. 19.
(vi) The
effect of the order dated
The Court did not much analyse
the scope of S. 18 read with S. 19 and the point was kept open whether S. 18
and S. 19 are working independently or not. A thing which cannot be done
directly can never be done indirectly. A right vested in the third party
directly u/s.11(1) read with S. 7(7) of the Act, 2005
cannot be taken away by the respondent No. 1, treating the application
preferred by the original applicant dated 7th September 2006 as the complaint
u/s.18 of the Act, 2005. In other words, information, which cannot be given
u/s.7, can never be given u/s.18. Because S. 7 is to be read with S. 11(1),
without hearing third party, no information can be supplied if it is relating
to or supplied by the third party and has been treated as confidential by the
third party. Thus, a grave error has been committed by the respondent No. 1 in
passing the order dated
Other News
● Governor of
One Pune-based teacher
sought the information about the travels of the Governor of Maharashtra
who had been making frequent trips to his home state Karnataka at the expense
of the State Government. In reply to the application under the
RTI Act, it is revealed that Rs.35 lakhs had been spent on these 31 trips in the last 2 years.
The Governor had been out of
As a result of such disclosure under the RTI Act, it is
interesting to note that stung by criticism, the Governor now has said that he
will foot the bill himself including for official visits.
● Stock exchanges :
As reported in earlier issues whether BSE and NSE are
covered under the RTI Act, the matter is to be decided by the
A Bench headed by the Chief CIC Mr. Habibullah had termed the Government’s control over the functioning
of stock exchanges as pervasive and said that bourses cannot be exempted from
sharing information under the provisions of the Act.
The Chief CIC now wants the Supreme Court to resolve
whether bourses can be brought under the purview of the RTI Act. The Commission
is moving to get both the cases transferred to the Supreme Court.
● Information on stolen mobiles from
Delhi-based social activist Subodh
Jain got a rude shock when he received a letter from Deputy Commissioner of
Police (West) Robin Hibu, asking him to deposit Rs.13,949 as advance for information he sought on the number of cases
of mobile thefts in the city, under the RTI Act.
“If I want information from each of the 10 police districts
and I pay the said amount for each police district, then I may have to shell
out Rs.1.5 lakh,” Jain said, quoting the letter.
Hibu, in his letter, said
the pointwise information sought by Jain was “lengthy
and time-consuming” to compile. “In addition, a considerable strength of manpower
of (Hibu’s) office as well as all police stations
will be utilised to compile this
information,” he said.
According to Hibu, a
sub-Inspector from his office would have to be deputed for the job for two
days, the cost of which was calculated at Rs.1,546.
Apart from it, Jain would also have to pay Rs.1,353
for deputing a head constable for three days while
another Rs.11,050 for 13 constables for their services for two days in this connection.