Right to Information

        

For BCAJ November, 2007

Narayan Varma

CIC’s decisions

Shri Rakesh Kumar Gupta, a Chartered Accountant in Delhi submitted RTI application to Shri R. V. Easwar, CPIO and Vice-President of the ITAT on 8-6-2006, seeking the following information concerning Appeal No. ITA No. 567/DEL/05-Bench-G of Escorts Limited for the A.Y. 2001-2002 and corresponding appeal of the Income-tax Department :

(i) Copy of daily proceeding of the minutes maintained by Members of the Bench in above-mentioned case;

(ii) Copy of ITAT decision in the above Income Tax Appeal No. 567; and

(iii) Inspection of all the case records.

2. The CPIO, vide reply dated 27-6-2006, declined all the requests of the appellant and stated :

(i) Daily minutes maintained by Members of the Bench are part of judicial proceedings and are meant only for the use of the Members;

(ii) Copy of the order in the case of Escorts Limited A.Y. 2001-2002, Appeal ITA No. 567/ Del./05-Bench G can be given only to the concerned parties or their representatives duly authorised to receive such order; and

(iii) Inspection can be granted only to the concerned parties or their representatives duly authorised in this behalf.

3. Aggrieved with the decision of the CPIO, the appellant filed his first appeal on 29-6-2006 before the President of ITAT and the first Appellate Authority, complaining against the CPIO that he had wrongly refused to provide the information. The appellant also submitted in a follow-up letter of 30-8-2006 to the President, ITAT that the case in respect of which the information is requested is a very old case and that none of the information requested by him is covered u/s.8(1) of the Right to Information Act, 2005 (RTI). The appellant cited judgment of the Supreme Court of India in Naresh Shridhar Mirajakar v. State of Maharashtra, AIR 1967 SC 1, wherein the Supreme Court had stated that in-camera proceedings should be done in rarest of cases and that all judicial proceedings should be held in open Court in order to curb corruption in administration of justice. The appellant asserted that there is no exemption under the Right to Information Act to any of the information sought by him. He also submitted that he is a party to the TEP Enquiry/Tax Evasion Case, and that all cases decided by ITAT are about tax evasion by the assessees and everyone knows the level of corruption in tax administration. He also said that the information that he had sought is to be disclosed by the public authority ‘u/s.4(1)(b)(iv) and (v) of the Right to Information Act, 2005’.

4. The appellant in the meantime received a communication from the Registrar, ITAT, dated 30th August 2006, requesting the appellant to indicate the statutory provisions under which :

(i) Copy of daily proceedings is required to be maintained by the Members of the Bench;

(ii) Third party may apply and obtain copy of ITAT decisions;

(iii) Third party may inspect the ITAT appeal records; and

(iv) A person not a party to the proceeding may be permitted to interfere with the Appellate proceedings of the Tribunal under the Right to Information Act or which authorises him to challenge the order of the ITAT.

The Registrar also asked the appellant to indicate whether Income-tax Assessment and proceedings before the ITAT are not confidential in nature and as such, not supposed to be disclosed to any 3rd party (who is not a party to the proceedings).

5. The appellant, vide his reply dated 4th September 2006, stated as under :

(i) The object of the RTI Act is to bring about transparency and accountability in the working of every public authority;

(ii) U/s.19(5) of the RTI Act, the onus is on the CPIO to justify any denial of request;

(iii) Not reproduced here

(iv) He is informer in this case and will be affected by the decision of the ITAT;

(v) There are specific provisions under the ITAT Rules under which information sought by the appellant can be given and referred to Rule 49(4) providing for fees for the publishers and Rule 33 under which proceedings before the ITAT are open proceedings in cases like this;

(vi) Rules 49 and 50 of the ITAT Rules under which inspection of ITAT records are free to everyone till the case is pending and free for the party forever. The proceedings before the ITAT are conducted in open hearing and, therefore, they cannot be confidential or private;

(vii) Under Rule 33 of the ITAT Rules, Income-tax assessments and proceedings before the ITAT are public in nature and open in cases like this;

(viii) Inspection of records is a fundamental right under Article 19 of the Constitution of India as laid down in AIR 1982 SC 149;

(ix) Right to know gives rise to the concept of an open government, which is implicitly contained in Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression. Disclosure of information regarding functioning of the government, therefore, must be the rule and secrecy an exception;

(x) U/s.138(1)(b) of the Income-tax Act, the Chief Commissioner or the Commissioner is bound to furnish the information asked for, if he is satisfied that the same is in public interest. However, rejection will have to be supported by reasons to justify that public interest demanded a rejection of the request; and

(xi) S. 22 of the RTI Act overrides every other law or any instrument for the time being in force.

6. The First Appellate Authority and President of the ITAT, Shri Vimal Gandhi, after providing a personal hearing to the appellant and considering subsequent representations of the appellant dated 30th August 2006 and 4th September 2006, decided the appellant’s first appeal and vide order dated 5th September 2006, communicated his decision to the appellant Shri Gupta. In the course of hearing of the appeal, the appellant agreed that he would be satisfied if he is given the following information :

(i) Certified true copy of the order in ITA No. 567/Del./2005 of Escorts Limited; and

(ii) Inspection of all the records mentioned by him in his RTI Memo.

7. The First Appellate Authority held that there are specific provisions under the Income-tax Act to supply certified copy of the order in ITA No. 567/Del./2005, as asked for by the appellant and directed the Registry to supply the same to theappellant. As regards the second request of the appellant pertaining to inspection of all the records at (ii) above, the First Appellate Authority said a similar matter relating to the same appellant is under consideration of the CIC and it is settled law that a lower authority being aware of this fact is under an obligation to wait for the orders of the superior authority and comply with the same. They are, therefore, waiting for the directions of the Central Information Commission and as soon as they receive such direction, they would comply with that direction and pass their orders in line with that direction.

8. In the meantime, this Commission passed its orders on 18th September 2006 in Appeal No. CIC/AT/A/2006/00185 of the same appellant, wherein the appellant had asked for similar information regarding permission to inspect records of the ITAT. The CIC held that permission to inspect records of the ITAT relates to discretionary power of a quasi-judicial body and the PIO is not expected to give his version of how the ITAT would exercise that power. There is no obligation to transmit any such information. The CIC further held that the proper forum to test the order of a Tribunal is as laid down under the appropriate Act or as provided in the Constitution. It would be wholly inappropriate to invoke the provisions of the RTI Act for the interpretation of Laws and Rules. It should be made clear that the Laws and Rules are themselves information and being in public domain are accessible to all citizens of the country.

Shri Gupta’s second appeal before CIC was heard on 15th February 2007 by one Commissioner Shri A. N. Tiwari. He recorded that the request for three items of information sought (as noted above) raises a very important question about whether under the RTI Act it is permissible to access information held by another public authority which acts in a judicial capacity, especially when the information pertains to its orders in that judicial proceeding and actions related thereto. There may be other similar Tribunals whose orders and records could similarly be sought to be accessed through the RTI Act. This matter should, therefore, be considered by the Full Bench of the Commission.

On 19th June 2007, the appeal was heard by a three - Member Bench. Both the parties vehemently argued their case. Finally, the Full Bench listed three issues for determination :

(i) Whether this Commission, under the RTI Act, can order the ITAT to disclose information which that Tribunal has decided not to disclose under the Income-tax Act, 1961, as amended from time to time and rules made thereunder ?

(ii) Whether the RTI Act applies to a judicial proceeding and, if so, does it override the existing law concerning dissemination of information in respect of a judicial proceeding ?

(iii) Whether the information, which the respondents say is prohibited under the Income-tax Act, can be given under the RTI Act ?

The Bench has recorded elaborate reasons and has cited certain provisions of the Constitution and of the RTI Act and few decisions of the Supreme Court. The Commission decided and directed as under :

(i) S. 4(1)(d) does not apply to judicial proceedings conducted by a Court or a Tribunal, as it refers only to administrative and quasi-judicial decisions of public authorities.

(ii) The non-obstante clause in S. 22 of the RTI Act does not repeal or substitute any pre-existing law including the provisions of the Income-tax Act concerning dissemination of information.

(iii) The appellant cannot take recourse to the RTI Act to challenge a judicial decision regarding disclosure of a given set of information, which properly belonged to the jurisdiction of that judicial authority. If the appellant is aggrieved with the decision of the ITAT, the remedy lies elsewhere.

(iv) It is reiterated and made clear that the RTI Act is not intended to come into conflict with a judicial decision regarding disclosure of information. S. 8(1)(b) of the RTI Act, 2005 makes it very clear that the information which has been expressly forbidden to be published by any Court of law or Tribunal cannot be disclosed as any such disclosure is also within the

exemption clause.

(v) In the present case, however, though the respondents have submitted during hearing that the Tribunal has passed an order rejecting the request of the appellant for inspection of the document, supporting documents have not been submitted before the Commission.

Under these circumstances, the matter is, therefore, remanded back to the First Appellate Authority with the following directions :

(a) He will determine whether there is any judicial order of the Tribunal pronounced under the Income-tax Act as regards disclosure of the information sought by the appellant, and if it is so, the remedy available to the appellant shall be under the Income-tax law and not under the RTI Act.

(b) If there is no such judicial order from the Tribunal, in that case, the First Appellate Authority will consider the appeal under the provisions of the Income-tax Act read with the Right to Information Act and will pass a speaking order within a fortnight from the date of receipt of this order.

As the decision is a landmark one deciding some basic issues and very much related to our profession, the text of the full decision is posted on our website www.bcasonline.org for members interested to read specially as the arguments of both the sides and the reasons of the Commission in deciding the issues are very interesting (running into 14 pages).

[Shri Rakesh Kumar Gupta, Delhi v. Income-tax Appellate Tribunal, New Delhi, CIC/AT/A/2006/00586 decided on 18-9-2007]

The RTI Act

S. 11(1) r.w. S. 7(7) of the RTI Act :

● Judgment of The High Court of Gujarat In the judgment dated 16-8-2007, the High Court of Gujarat (hereinafter referred to as the Court) has decided on very significant issues related to the RTI Act, especially on the interpretation and working mainly of S. 11(1) and S. 7(7) along with many other Sections of the RTI Act. The judgment runs into 44 pages and decides on five major issues. The reporting of this judgment is being done in parts.

Summarised facts of the case are :

About 55 RTI applications have been preferred by one Shri Rasiklal Mardia for getting information about Reliance Industries Ltd. and its group companies, (hereinafter referred to as RIL). In one such application, the Gujarat State Information Commission (Commission) passed an order on 9th March 2007 ruling that whatever information is demanded is to be given. Information sought and received mainly consisted of sales tax exemption for Reliance Petrochemicals Ltd. and compliance of various conditions attached to this exemption.

It is interesting to note that the order dated 9th March 2007 passed at Ahmedabad directing the PIO at Jamnagar at a distance of approx. 350 kms reached him on the same date and the information was supplied to Shri Mardia also on the same date. It is also interesting to note that never any of the authorities connected with the matter has given any notice to RIL, nor was RIL heard before supplying the information relating to RIL. It is averred by RIL that there is business/commercial rivalry between Shri Mardia and RIL. It was also pointed out by RIL that more than one dozen criminal cases have been filed on Shri Mardia.

In this case, one issue was whether the third party (RIL here) is entitled (a) to get written notice of request of the applicant (Shri Mardia here) and (b) to get an opportunity of personal hearing before disclosure of information relating to or supplied by

the third party and treated as confidential by it u/s.11(1) read with S. 7(7) of the RTI Act.

All the three parties (i.e., RIL, Shri Mardia and the Commission) extensively argued on this issue.

The Court first read and reread various provisions of the RTI Act and of the Gujarat RTI Rules, 2005 viz. S. 2(n), S. 7(1), S. 7(7), S. 8(d), S. 8(j), S. 11(1) to (4), S. 19 and Rule 6.

An interesting issue raised by Shri Mardia and the Commission was at what point of time the third party has to treat the information as confidential as referred to in S. 11(1); can it do so subsequently after the information is recorded or has it to be prior to or at the point of time the information is supplied or is prepared and recorded ?

The Court ruled : “Looking to the provision of S. 11(1) of the Act, 2005, the words, the information relating to or is supplied  by the third party are such that it is for the third party to point out to the Public Information Officer that the information sought for, to be disclosed/supplied is treated as confidential or not. It may happen that when a public body collects the information relating to or given by third party, it might not have been treated as confidential, but the third party can make a submission that now it is treating the said information as confidential. More so, when information is relating to third party, it may not even be known to that third party, when and what information relating to third party, was collected by the public body. Therefore, S. 11(1) of the Act, 2005, gives mandate to the Public Information Officer to give written notice to third party if he intends to disclose information relating to third party. Therefore, looking to the nature of information to be disclosed, third party can make written or oral submission whether the information is confidential or not and whether the information should be disclosed or not. Efflux or passage of time, sometimes allows that third party to treat the information as confidential.

It finally ruled : Whenever any information sought for is relating to third party or supplied by third party, as per S. 11(1) of the Act, 2005, and if the Public Information Officer intends to disclose the information, he has to give notice to the third party. Submissions can be made by the third party in writing or orally and this submission ought to be considered by the Public Information Officer, as per S. 7(7) of the Act. An opportunity of being heard ought to have been given by the Public Information Officer. There is no express exclusion of hearing process. Submissions can be made even orally. The Public Information Officer has to consider these submissions or representations. In view of these provisions, I am of the opinion that the Public Information Officer should give opportunity of personal hearing to the third party before imparting information. In the facts of the present case, no such hearing was ever afforded before imparting the information relating to the petitioner and, therefore, the orders passed by respondent Nos. 1, 2 and 4 deserved to be quashed and set aside.

Other News

RTI Birthday :

12th October is the birth date of RTI. It completes two years’ glorious existence. It has enhanced transparency at various levels and reduced the corruption thereat. India’s ranking in Transparency International’s 2007 corruption perception index improved by two places vis-à-vis last year, which is attributed to a great extent on account of the introduction and operation of the RTI Act.

NCPRI Review of the implementation of the RTI Act :

National Campaign for Peoples’ Right to Information, the organisation founded by Smt. Aruna Roy and others had arranged three-day First Peoples’ Review of the Implementation of the RTI Act. Based on a questionnaire issued to RTI activists in various States, a rapid survey was carried out and the finding presented at this meeting, which was attended by me. One interesting finding was about six most common constraints identified, some of them were :

1. Poor awareness

2. Lack of political/bureaucratic will

3. Mindset

Thus, it is very important that we professionals spread the RTI message more forcefully and extensively to increase the RTI awareness in the public. The booklet published by BCAS Foundation is towards that objective.

RTI working in Maharashtra :

It seems that awareness is no doubt increasing in Maharashtra. The statistics provided by SCIC Shri Suresh Joshi show that in Maharashtra the number of applications from Oct 05 to Dec 06 (15 months) was 123571, same in 8 months (Jan–Aug 07) is 93611, an increase of more than 40%. With this increase, the number of appeals before SICs also is mounting. BCAS Foundation wrote about this sad delay to the SCIC and gave 6 suggestions to improve the disposal. The same were discussed

personally at a one-to-one meeting and we are assured that action on all suggestions will be taken. As such, Maharashtra is the first State to have appointed Divisional Information Commissioners for better implementation of the RTI Act (3 SIC : one each at Pune, Nagpur and Aurangabad), but unfortunately they have not been given proper infrastructure yet. Once they start functioning properly, pendency would hopefully come down.

Conviction in riots cases :

RTI query revealed that out of 2700 cases filed against civilians after the riots, there have been convictions in only 13, which means a 0.05% conviction rate for a group of cases that deals with the killing of 900 people over a period of two months. Of these, in five cases, the only punishment was fine, in one of them involving a murderous assault, it was a mere Rs.500. What’s worse, several of the convictions are said to have been overturned on appeal in higher courts, but this information has not yet been disclosed by the police. This information was obtained by anti-communalism activist Teesta Setalvad from the Mumbai police through the RTI Act.

Juice stall in Juhu, Mumbai :

Residents of Juhu have used the RTI Act to expose violations of building rules by a snack and juice outlet at Irla junction. For the past few years, the residents have been complaining about the traffic jam near Cooper Hospital because of Mar Juice Centre, which has encroached on the footpath and road. The Juice Centre puts tables and chairs on the road for customers. The entire area gets blocked.

The stall owner had insisted that he has the permission to run business like that. All complaints to the civic authorities had gone unheeded. In response to RTI application, the PIO said that stall owner did not have such a permission to put chairs on the pavement and cook on the premises of Cooper Hospital. The stall still continues and is open till 1.30 a.m. Memorandum is now submitted to the Chief Minister to take action.

Penalty on PIO :

The State Information Commission has penalized the PIO, Assistant Registrar of University Institute of Chemical Technology for not providing information to a blind person. This penalty will definitely act as a deterrent to erring bureaucrats who withhold information out of vested interests or due to sheer inefficiency.

IT Department requested to limit RTI to them :

The Income-tax Department has asked the Department of Personnel and Training, Government of India to amend the RTI Act to shield itself from unsolicited queries on its investigations.

The investigation mainly involves search operations to nab tax evaders. These searches, and any other investigation activity, usually involves the Department’s trusted network of informers, whose information is crucial to cases. These informers could get into trouble if exposed under the RTI Act and could be harassed by the affected parties, the source said.