Some of the Central Information Commissioners are subverting the object of RTI Act
‘The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assures, by Article 19, everyone
the right, to seek, receive and impart information and ideas through any media, regardless of frontiers? In Secretary Ministry
of Information and Broadcasting, Govt. of India and Others v. Cricket Association of Bengal and others (1995 (2) SCC 161]
the Supreme Court remarked about this right in the following terms: “The right to freedom of speech and expression includes
the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary
that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy
posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive
at informed judgment on all issues touching them.” This right, to information, was explicitly held to be a fundamental
right under Article 19(1) (a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain,
(1975) 4 SCC 428.
This view
was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was
enacted and brought into force. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly
knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power.
Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke,
under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside.
The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters
in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs,
the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable
to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section
8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be
interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information the
authority withholding information must show satisfactory reasons. Such reasons should be germane, and the opinion of the process
being hampered should be reasonable and based on some material. Sans this consideration, Section 8 (1) and other such provisions
would become the haven for dodging demands for information.
A rights
based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background
and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to
provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions
have to be construed in their terms; there is some authority supporting this view (
See Nathi Devi -vs- Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor -vs- State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma
-vs- Sesha
Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction
on the rights under the Act, which is unwarranted. (Extract from the Judgment in WP(C) No.3114/2007 pronounced on 3rd December,
2007, by Hon’ble Mr. Justice S. Ravindra Bhat).
But CIC in
some of its decisions adopting a complete different approach by inserting its own interpretation thus resulted in narrowing
the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted:
FIDUCIARY RELATIONSHIP
This is a circumventing practice by the Public Authorities with intent to deny the Information on the alleged pretext
that the respective Information received by them were exempted under fiduciary relationship.
Initially with reference to one of my application
under RTI Act, Supreme Court CPIO refused to supply some information on the very same pretext. I filed Appeal before the Appellate
Authority of SC, wherein a detailed Note relating to the interpretation for the ‘Fiduciary Relationship’, prevailing
world wide, was submitted. This was accepted by the AA of SC with the result that respective Information was supplied to me.
The related portion of the aforesaid decision of the AA of SC interalia was: “On the date of hearing appellant has produced
written arguments stating that amendment made in Supreme Court Rules, 1966 in the year 1997 vide GSR 407. w. e. f. 20 December,
1997 was not in accordance with the powers provided to the Supreme Court under Article 145(1)(c) of the Constitution of India,
stating that such amendment changes thecomplete meaning to move the Supreme Court, and getting remedy guaranteed under Article
32 of the Constitution of India, which effects the fundamental Right of the appellant. Therefore, it is contended that under
Article 19(1)(c) of the Constitution of India, appellant is fully entitled to know the complete process adopted to make such
amendment, besides his statutory rights protected under Right to Information Act,
2005.” “It s further stated that when powers of the Court has been assigned to the Registrars by such amendment,
it opens the door for manipulators embrace the concerned Officer and affect the administration of Justice with serious magnitude. He is referring the power of refusal of the Registration of the Writ Petition
by the Registry. He further contended that the information relating to such amendment is also a matter of larger public interest,
as the Powers of the Supreme Court had been assigned to the Registrars, contrary to the Scheme, object, meaning, and ambit
of the Article 32 of the Constitution of India. Therefore, he seek the Information in the mode of the copies of entire file
including noting parts, from the respective file from the date of initiation of the amendment and till the approval given
by His Excellency President of India under Article 145 of the Constitution of India
to such amendment.”
“He
has also submitted a written note regarding the meaning, concept and details about 'fiduciary' and related terminology from
different sources like investopedia, encyclopedia Britannia, legal encyclopedia etc., fiduciary if considered with reference
to a person, it is referring to a person appointed and authorized to hold assets for the benefits of the other person rather
than for his or her own profit. If we go through the entire details regarding the word fiduciary, as provided and submitted
by the appellant, in a single line it can be said that it relates to trust put on some one by some other person for doing
some thing faithfully.”
“The
example given are Trustee and Beneficiary, Director and Company, Liquidator and Company Lawyer and Client, Partner and Partner,
Agent and Principal, Sock Broker and Client, Senior Employee and Company, Doctor and Patient, Parent and Child and so on.
Thus, I do not find anything which restrain the CPIO to disclose that how the information asked for by the appellant is subject
to exception referred by him in his reply dated 19th January, 2007 while referring to Section 8(1)(e).”
Thereafter,
in compliance of the aforesaid Order from AA of SC, I got the Certified Copy
of the respective file Noting. This is a glaring example, wherein the Personnel holding the Office of the Appellate Authority
of the Supreme Court, having judicial background could take a just and rational decision, unlike the Appellate Authority of
the Government Departments. The basic question is that how any Information received by any Public Authority in compliance
of any law, can be considered as received under fiduciary relationship?
In this context,
I am referring one recent Order Passed by the Hon’ble Chief Information
Commissioner Shri Wajahat Habibullah, wherein in order appears to have been passed to oblige his ex-Boss Smt. Sonia Gandhi,
thus he has tried to give a new meaning of the ‘Fiduciary Relationship’, by taking a cue from the Preamble of
the Act.
He has taken
about 38 days to found reason to refuse to intervene to ensure supply of the respective Information ignoring the important
point of law that he should not have been added the additional meaning to the ‘‘Fiduciary Relationship’
in the garb of the Preamble of the Right to Information Act, 2005, when exemption is specifically inserted under the said
Act, beyond any doubt and ambiguity. In fact to maintain his Honesty the Hon’ble CIC should have suo-motto relieved
himself the said Appeal on the bonafide grounds relating to his earlier connection with Smt. Sonia Gandhi, by transferring
the Appeal for hearing to another Bench or alternatively to a larger Bench. The aforesaid Order casts serious doubts sending
out a message that he has failed to maintain fairness and freeness in the working of the Central Information Commission.
One may wonder
as to what could be the reason for the prim-facie bias of the Hon’ble Chief Information Commissioner Shri Wajahat Habibullah.
The reason is very simple and clear, that if the respective Information could have been supplied by the President’s
Secretariat, then the same would have exposed the very aura of the so-called claim of Smt. Sonia Gandhi, that she had sacrificed
the Office of the Prime Minister of India, that the fact is far from the ground realities. Since the very inception of Rajiv
Gandhi Foundation Smt. Sonia Gandhi has been its Trustee and during the period of Oct 1991-July '93, Shri Wajahat Habibullah,
was Secretary of Rajiv Gandhi Foundation, meaning thereby that during that period he used to report to Mrs. Sonia Gandhi as
his Boss. This prima-faciely explains as to why Shri Habibullah failed to perform his Legal Duty in accordance with the provisions
of the RTI Act, 2005, and was obliged to import a far fetched interpretation of the ‘Fiduciary Relationship’ from
the Preamble of the RTI Act, 2005, to ensure protection of such Information relating to the larger Public as well as National
Interests.
For instances,
in CIC/WB/A/2006/01003, Appeal, I have submitted interalia with reference to
3 applications under RTI Act, before the President’s Secretariat in which I have mentioned that on 17th Ma 2004, at
about 10.00 AM (morning) I forwarded Fax Message to His Excellency President of India Shri A. P. J. Kalam, referring therein
interalia that under the Constitution of Italy and citizenship of Italy of Smt.
Sonia Gandhi is still exists and her allegiance to the Constitution of Italy cannot be discontinued and shall prevails, and
wanted to know that what action was taken by His Excellency Shri A. P. J. Kalam, on my aforesaid representation through Fax
Message to see that compliance of the Article 102 of the Constitution of India should be ensured, so one having Italian Citizen
by Birth”, even if he or she might be claiming to be renounced his/her Italian Citizenship, should be disqualified for
being chosen as, and for being a member of either House of Parliament under Article 102 of the Constitution of India”,
and referring some fact relating to Italian Constitution and Citizenship law of Italy, I submitted that “In view of
the aforesaid Italian provisions Smt. Sonia Gandhi and Shri Rahul Gandhi are Italian Citizen by birth, and their allegiance
to the Constitution of Italy is not only acknowledged but prevails permanently, irrevocably, unequivocally and forever, even
they might have renounced their respective ‘CITIZENSHIP OF ITALY’. While under the scheme of the Indian Citizenship
read with Article 102 of the Constitution of India under which any person having
right to citizenship of any other country means he or she have allegiance to such other country, even if he/she gets citizenship
of India, under dual citizenship or otherwise, should not have been allowed to hold any Constitutional Office in India. in view of the aforesaid provision whether His Excellency President of India got examined
or contemplating to get examined the legal implication of the fact that though Smt. Sonia Gandhi and Rahul Gandhi might have
renounced her/his Italian Citizenship, why ought not to be disqualified for being chosen as, and for being a member of either
House of Parliament as debarred by Article 102 of the Constitution of India.”
In response
to 2 of the oapplications both dated 23rd August 2006, I received half Information through Memo Letter No. E-6/DPS/20/08/2006
dated Sept. 1, 2006 contending therein that “all communications addressed to the President following the 14th General Elections containing
various suggestions on the formation of the Government including your letter of 17th May, 2004 were accorded due consideration
by the President.”
Considering
such Information, as half Information, I submitted supplementary application dated 7th October, 2007 wants “certified
copies of all communications in connections with and following the 14th General Elections containing various suggestions including
letter forwarded by Smt. Sonia Gandhi, the then newly elected leader of the Congress Party in the Parliament to His Excellency
President of India Dr. A. P. J. Kalam claiming formation of the Government headed by herself or by some one else, and reply
made by His Excellency to Smt. Sonia Gandhi on or after 16th May 2004, till formation of Government headed by the Prime Minister
Dr. Man Mohan Singh.”
But, when
order was passed on 16.12.'06 after 38 days from the date of hearing in the aforesaid Appeal filed by me against President's
Secretariat, Hon’ble Chief Information Commissioner to give a twist to language of the application recorded the Facts of the case interaiia as follows:
“The appellant Shri Milap Choraria of Rohini, Delhi submitted an application on 23.08.2006 under Section 6 of the Right
to Information Act, 2005 seeking to know as to what action was taken under Article
102 of the Constitution of India by the President of India on a representation submitted by the appellant through fax message
regarding the citizenship of Smt. Sonia Gandhi, MP.” and “2. The appellant submitted another application on the
same date seeking to know as to whether the President of India got the aforesaid matter examined or is contemplating to get
the said matter examined from the legal perspective. The appellant sent a third application on 7.10.2006 through post seeking
certified copies of all communications addressed to the President following the Fourteenth General Elections containing various
suggestions on the formation of the Government including the letter forwarded by Smt. Sonia Gandhi, the then newly elected
Leader of the Congress in Parliament to the President of India.” and that “The PIO of the President Secretariat
informed the appellant that all communications addressed to the President following the Fourteenth General Elections containing various suggestions on the formation of the Government including the letter
from the appellant were given due consideration by the President. The PIO vide his letter dated 21.11.2006 refused to disclose
the information sought by the appellant seeking exemption under Section 8(1) (e) of the Right to Information Act, 2005. The
First Appellate Authority also upheld the CPIO's decision and rejected the appeal.”
With my utter
surprise the CPIO and Appellate Authority of the President’s Secretariat nowhere claimed in any of their responses that
the documents sought by me were confidential and or sensitive in nature. They had refused to supply the documents by just
having claimed that it is matter of
fiduciary relationship. But, a new dimension was added by the Hon’ble CIC, bringing the sheer imagination in
to play that the documents were of confidential and sensitive nature.
Under ground
“B” of my aforesaid Appeal before CIC, I had mentioned “That the reply made by the Respondent 2 through
aforesaid letter dated 21st November, 2006 and order passed by the Respondent No. 1 dated 28th November, 2006 was without
considering the fact that the subject matter of the information sought by the Appellant is very much relating to Larger Public
Interests, and therefore in view of Section 8(2) of the Right to Information Act, 2005 cannot be exempted under any provision
of the Section 8(1)(e) of the Right to Information Act, 2005, since such information cannot be considered as supplied under
fiduciary relationship, which are not relating to any monetary or otherwise transactions or correspondence between the two
individuals relating to their personal relationship, rather very much relating to larger public interests and constitutional
proprietary.”,
which under his serious bias Hon’ble CIC, by adopting the method of chose and select tilted and referred to
in his aforesaid Order that “The appellant further submitted the respondents cannot claim exemption under the provisions of Section 8(1) (e) of the RTI Act, 2005, since such information cannot be considered as
supplied under fiduciary relationship, which are relating to any monetary or other transactions or correspondence between
the two individuals relating to their personal relationships.” Now, the question arises that wherefrom the CIC has found
that the documents were claimed as confidential and sensitive in nature?
It is most
surprising fact of his bias that he has further observed in his Order that “We
feel that the word “fiduciary relationship” appearing in Section 8(1)(e) has to be read with the objectives of
the Act and must be interpreted taking into account what has been spelt out in the preamble of the Act. Sensitivity of the
information and necessity to preserve confidentiality should, therefore, be treated as the determining factors for determining
the ambit and scope of the term Section 8(1) (e). If read in the context of the Preamble of the Act this will, therefore,
justify exemption from disclosure claimed by the CPIO in the instant case.”, ignoring the fact that interpretation of
any exemption cannot be imported from the Preamble, when the exemption is specifically provided separately in the Act, covering
the scheme and object of the preamble without any ambiguity.
Hon’ble
CIC has erred by mixing and equalising the Office of the Competent Authority
(In this Case His Excellency President of India) with the Office of the CPIO and AA of the President’s Secretariat by
observing that “Insofar as the public interest is concerned in the matter, the provisions of Section 8(1)(e) makes it
clear that it is for the competent authority to satisfy itself as to what the larger public interest warrants. In the instant
case, the concerned public authority, who is also the competent authority as defined u/s 2 (e) (iv) of the Act has taken a conscious decision that the larger public interest does not warrant disclosure of the information
which has been held by them to be confidential and sensitive. The Commission does not intend to interfere with this decision
of the competent authority unless such satisfaction is shown to be totally arbitrary or 'illusory'.”, while fact remains
that His Excellency the President of India Dr. A. P. J. Kalam at all has not
taken any such decision, nor such claim was made by the CPIO and AA of the President’s Secretariat. In fact Right to
Information Act has not empowers to any Competent Authority to take such a decision.
In any case
Section 2(e) of the Right to Information Act, 2005 nowhere in any way has mentioned that this empowers the Competent Authorities
to take a decision to interpret the law. Rather Section 28 of the Act only provides powers to Competent Authorities just to
make certain rules, which cannot be said to cover the authority to interpret the law.
Therefore,
this is a clear case of abuse and misuse of the powers by the Hon’ble Chief Information Commissioner Shri Wajahat Habibullah,
just to protect the entrenched interest of his Ex-Boss Smt. Sonia Gandhi, since the aforesaid disclosure might contain the
fact that was to why and under what circumstances she had no choice but to withdraw herself from the race of Prime Ministership
of India.
Similarly
almost all the Information Commissioners are ignoring the worldwide prevailing meaning, concept and details about the ‘public
interest' and related terminology from different sources like investopedia, encyclopedia Britannia,legal encyclopedia, answers.com
etc.:-
In Law Encyclopedia
(This entry contains information applicable to United States
law only)
Public Interest means: Anything affecting the rights, health, or finances of the public at large, and Public interest is a common concern
among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility
is regulated in the public interest because private individuals rely on such a company for vital services.
Answers.com definition for the public interest:
1. The well-being of the general
public; the commonweal.
2. The attention of the people
with respect to events.
Under the
other Web-Dictionaries: The public interest refers to the "common well-being" or "general welfare.”
Anything
adopted by any individual in violation of the aforesaid terminology, is also a matter concerning the larger public interest.
They are
misusing their Official Positions knowing fully that every individual cannot move and challenge their Orders before High Court.
BY adopting such an attitude are they not working as part of the Government machinery to protect wrong doings of the administration
thus seriously effecting the efficacy of the Right to Information Act, 2005.
CONFIDENTIALITY?
The condition of confidentiality is not absolute. Therefore the public authority should determine before deciding to refuse to supply any Information:-
1. Whether respective Document
was treated as ‘Confidential’ at the time of supply by a third party?
2. Whether respective public
Authority decided to disclose such document received treating under the tag of “Confidential” from third party?
3. In such a case prior approval
from the respective third party is a mandate.
Public Authority
from the Income Tax Department should understand that Section 138 of the Income Tax Act, 1961 has now become ineffective,
since this provision has been overriden by Section 22 of the Right to Information Act, 2005.
However, there is no dispute to the fact that the Income Tax Returns contain various personal
information of the Assesses and also such information that relates to commercial confidence, trade secret, which are protected
under Section 8(1) of the Right to Information Act, 2005. But, whenever, an Information seeker places some prima facie evidence
that certain Income Tax Returns contain untrue statement of Income and other related statement, the respective Tax Assesses
lost their sanctity to claim any protection against disclosure under RTI Act.
Remember,
in USA Tax Evasion is a national Offence,
and no one is authorised to immune a Person, responsible for Tax Evasion. That is also a Key policy for good governance.
Now time
is ripe for Transparent and Good Governance, and for a change in the colonial mind-set of Public Authority, who are still
prone to work with a whimsical attitude. Now, time is set to suggest that the Public Authorities are more accountable to their
real Boss i. e. the Public, rather than their Bosses sitting in the Office. The day, the Public Authorities become sensitive
to this reality, all the problems relating to RIGHT TO KNOW are bound to be vanished.
In this context, CIC has an important Role to play, it is not just limited to ensure the supply of the information
to Information Seekers, rather to play an affirmative role to bring a change in the mind-set of the bureaucracy. However,
before this change is able to come into play, some Hon’ble Members of the CIC, have to accept a challenging role having
in their hands to play to cultivate a REVOLUTIONARY SPIRIT against the Corrupt and the Corruption.
