Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, 2022 SCC OnLine Ori 2014, decided on 20-06-2022]


Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Saroj Punhani, Information Commissioner addressed a matter with regard to the disclosure of the inspection reports of the law colleges in the public domain.

The appellant filed an RTI application seeking the following information:

  • How frequently the inspection of colleges is done by BCI.
  • Provide the list of colleges which are not found fit after inspection between 2016-20.
  • Provide the list of colleges whose affiliations were cancelled by BCI between 2016-20.
  • Provide the list of all the colleges and the members who inspected along with date and time.

Being dissatisfied with the delay in getting the information, the appellant filed a First Appeal. Further, FAA’s order upheld the reply of CPIO.

Feeling aggrieved and dissatisfied, the appellant approached the Commission with an instant appeal.

Appellant contended that the as on the date of hearing the BCI website did not contain any updates and urged to the Bench that the decadent lack of transparency in the functioning of BCI and the absence of inspection reports of the law colleges in the public domain caused immense agony to the student community as they were unable to make an informed decision for taking admission to the various law colleges and cited instances with respect to a bunch of law colleges in Patna wherein the High Court had to intervene and issued directions to the BCI to conduct the inspection of the colleges.

Commission took exception to the disdainful conduct of the FAA and closed the hearing proceedings.

Decision

The Commission fund no infirmity in the reply of CPIO in as much as the appellant was provided with a factual reply while also being offered an inspection of the available and relevant records.

Further, the Commission expressed that the disclosure of the inspection reports of the law colleges in the public domain would benefit the student community at large and significantly reduce the burden of RTI Applications.

For the above-stated reason, the Commission directed the FAA to place the present order before their competent authority to ensure that action is expedited with respect to the up gradation of the BCI website while also incorporating the stipulations of the Commission in H.N. Pathak v. PIO, BCI, CIC/SA/C/2016/000164, 2-1-2017.

Coram directed the CPIO to reiterate the opportunity of inspection with respect to the information sought and facilitate the same on a mutually decided date and time. Additionally,  the intimation of the date & time of the inspection shall be provided to the appellant telephonically and in writing by the CPIO.

Copy of documents, if any desired by the Appellant during the inspection shall be provided free of cost upto 25 pages and beyond this limit, prescribed fees may be charged as per RTI Rules, 2012 by the CPIO.

The above-said directions shall be complied within 15 days. [Prasoon Shekhar v. CPIO, BCI; 2022 SCC OnLine CIC 238; decided on 25-5-2022]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka, Chief Information Commissioner, noted that the RTI application seeking very pertinent information with regard to COVID-19 pandemic was shuttled between one public authority to another and held that the Ministry of Health and Family Welfare shall collate all the information and furnish the same to complainant and on its’ website.

Complainant sought records by way of his RTI application on the following points:

  • Date when the Government of India first received information on the coronavirus/Wuhan virus/ virus affecting China.
  • Whether any communication was received by the Government of India about a possible pandemic like situation in India between the period of November 2019 to March, 2020?
  • Copy of the minutes of meeting that took place into the possibility of declaring coronavirus a health emergency or not between the period of March 5th to March 14th, 2020.
  • Whether the Government of India/any of its ministries or departments had received warnings/alerts/communication from the World Health Organisation on the possibility of coronavirus affecting India?
  • Whether any internal reports on a possibility of a pandemic like situation arising in India was communicated within the Ministry or its departments?
  • Any intelligence information on the coronavirus diseases originating from China possibly affecting India in future?
  • Whether the Government of India/this Ministry or its various departments sought China’s assistance in getting the sample of Virus?
  • Was China requested to share virus genetic sequence?
  • On which date did ministry of health first communicated the information of Virus possibly affecting India to PMO?
  • When was the issue of inadequate PPE discussed in the Ministry?
  • Whether additional funds were sought to fight against the virus. If so the date on which the first request and subsequent requests were made and to whom be furnished?
  • Whether the Ministry proposed a ban on incoming Chinese citizens to India?
  • Whether the ICMR received any reports/communications/internal warnings/memos/internal reports during the period of November 2019 to March 2020 about the possibility of a pandemic like situation in India due to the virus: To this ICMR responded that all the information pertaining to circulars, notifications, etc, is available on the ICMR website.
  • Whether the Government of India/this Ministry or its various departments was monitoring the situation in China and its possible effects on India?

To almost all the above queries, ICMR responded with a standard response — Not pertains to ICMR.

Complainant remained dissatisfied with the respondent’s response.

RTI Act

Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception.

Another significant observation was that, an open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Accountability

Several decisions are being made by the Governments involving huge interventions in the healthcare impacting daily lives of billions of people, hence it is essential that the decisions are thoroughly documented in order for the Government to remain accountable.

Information pertaining to COVID-19

Complainant sought very pertinent information with regard to COVID-19 situation, which could not be made available by the Ministry of Health and Family Welfare.

Commission held that authentic, verified and cogent reply based on factual information needs to be furnished to the complainant as also disclose on the Public Authority website for the benefit of public at large.

Secretary, Health & Family Welfare was advised to have this matter examined at an appropriate level and the Nodal Authority so notified should furnish all the details sought by the Complainant in a clear, cogent and precise manner within a period of 30 days.

In view of the above complaints were disposed of. [Saurav Das v. CPIO, 2020 SCC OnLine CIC 626, decided on 23-07-2020]

Hot Off The PressNews

Union Minister Dr Jitendra Singh, who is also the MoS In-Charge Department of Personnel & Training (DOPT), which is the nodal department for Central Information Commission of India dealing with the Right to Information (RTI) appeals clarified that RTI  can be filed locally in  the Union territories of Jammu & Kashmir and Ladakh, even after the new arrangement comes into existence after the 31-08-2019. He denounced the mischievous rumours that, because J&K will become a Union Territory, the applicant will have to travel to Delhi to file an RTI.

Some of the clarifications in regard to the above were as follows:

Procedures to file an RTI appeal have been immensely simplified and definite timelines have been laid down. This will apply equally as much to Jammu & Kashmir and Ladakh after these become Union territories.

The first RTI application is made to the Public Information Officer (PIO) locally and in matters involving “life and liberty”, the time limit for the PIO to provide the information is 48 hours. For the PIO to reply to the application, a timeline of 30 days has been laid down from the date of receipt of the application. For an applicant to make the first appeal after the receipt of PIO’s reply, the first Appellate authority in the form of the designated officer will also be available locally, whether it is the State or Union territory.

In case of the second appeal, the application has to be submitted to the Information Commission and even if the Information Commissioner is not available locally, in case of Union territory, the second appeal can be sent to the Central Information Commission on-line within 90 days from the receipt of the first appeal orders or from the date the orders were to be received.

Facility of making second appeal before the Central Information Commission through portal:

To make the procedure much simpler, an RTI applicant does not have to wait for the office hours and can file his appeal even from his mobile phone anytime during the day or night, at his convenience, and even while sitting at his home or anywhere else.


Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 16-09-2019]

Case BriefsHigh Courts

Delhi High Court: The Single Bench of Sanjeev Sachdeva, J. has stayed the order of Central Information Commission, whereby, it has directed the Public Information Officer of Tihar Jail to pay compensation to the respondent for keeping him under extra detention. The CIC, by the impugned order, had also directed the petitioner to frame policy/guideline/regulation for a system of resolving disputes regarding remission and paying compensation to prisoners who lost their personal liberty due to extra detention.

The Court observed that perusal of the order, prima facie, showed that the CIC has exceeded the jurisdiction conferred upon it by the Right to Information Act, 2005. Therefore, the operation of order was stayed till the next date of hearing. [Public Information Officer, Tihar Jail v. Om Prakash Gandhi, Writ Petition No. 621 of 2017, decided on January 24, 2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has directed Department of Land Resources (Ministry of Rural Development) to disclose the records relating to the promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement (Amendment) Ordinance, 2014. Earlier, an RTI request was filed by the applicant before President’s Secretariat seeking photo copies of (i) all materials on the basis of which the President of India was satisfied that circumstances existed for him to take immediate action by promulgating the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement (Amendment) Ordinance, 2014 and (ii) all file notings available on record in relation to the matter. Said application was transferred to the Department of Land Resources which intimated the applicant that the information sought was not available in the department, and further transferred the application to the Legislative Department. Then, Legislative Department informed the complainant that the subject matter of the information sought falls under the administrative ambit of the Ministry of Rural Development and records relating to the promulgation of the said Ordinance would be available with the Department of Land Resources. Feeling aggrieved, applicant approached the Commission. After perusal of material on record, CIC ordered Department of Land Resources (Ministry of Rural Development) to disclose all records, including copies of file notings, related to the promulgation of land ordinance to the applicant within four weeks. [Venkatesh Nayak v. Ministry of Rural Development, 2016 SCC OnLine CIC 8310, decided on June 20, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has directed Chief Minister Office, Delhi to provide all relevant documents before the Chief Minister to facilitate him to consider a uniform policy of providing compensation to families of government employees including doctors killed on duty. Said directions of CIC came upon an appeal filed by the mother of a doctor who met an untimely death due to exposure to swine flu during his service. She sought information about compensation for death of her son. Earlier on March 3, 2015, the son of appellant who was a Senior Resident (Anaesthesia) at Chacha Nehru Bala Chikitsalaya, died because of exposure to swine-flu while on duty. The appellant was earlier denied information in the matter by Health & Family Welfare Department as well as by the Chief Minister Office. The Commission noted that Delhi State Government has enhanced compensation to Rs 1 crore for officers in uniform if killed on duty but it is not clear whether the policy of the Delhi State covers a doctor’s family to get compensation for his death due to decease. “Like a police officer a doctor is also risking life by exposure to deadly deceases, which is no less than facing bullets. For any family, loss of doctor son will be an irreparable damage. Either police or doctor, both serve and sacrifice for state and thus need to be treated equally. No policy can discriminate life of a doctor from that of soldier for purposes of compensation,” the Commission further noted. After perusing the documents and hearing both the parties, Commission observed, “Deadly decease like swine flu is as worse as a killing assailant. If there is no such security measure, it is difficult to give moral strength to young doctors to treat suffering citizens. The state has a duty to form uniform policy and inform the people about it to provide compensation to the family for unforeseen death of employee during service.” While observing that, “In this case the young doctor’s family has right to know whether they are entitled to compensation, if so, why not one crore rupees as given to officer killed on duty? State has to explain reasons for not treating a doctor on par with police,” CIC directed Chief Minister Office to provide the information sought by the appellant and in case her application is rejected, the reasons for rejection. CIC also directed Chief Minister Office to help the Chief Minister of Delhi to consider forming a uniform policy of providing compensation to families of government employees. [Anita Singh v. Health & Family Welfare Department, GNCTD, 2016 SCC OnLine CIC 7169, decided on May 31, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has held that Bhagyanagar Gas Ltd., which is a joint venture company constituted with participation of GAIL India Ltd. and Hindustan Petroleum Corporation Ltd. (HPCL), two public sector undertakings, is not a public authority under the RTI Act. The Commission came upon the said finding while hearing an appeal filed by a person who sought a copy of the Hook-Up Agreement with Reliance Gas Transportation Infrastructure Ltd. (RGTIL) entered into in 2010 by Bhagyanagar Gas Ltd. Earlier, Bhagyanagar Gas Ltd. had denied the said information stating that BGL was not a public authority under the RTI Act and was not covered under the Act. In appeal, it was stated that Bhagyanagar Gas Ltd. have substantial shareholding of 99% approximately of GAIL India Ltd. and HPCL and is headed and controlled by Directors provided by the above public sector undertakings, therefore, Bhagyanagar Gas Ltd. is a body substantially controlled and financed by Government. The Appellant also challenged the involvement of commercial confidence in this matter and stated that the Bhagyanagar Gas Ltd. got into an agreement with Reliance Gas Transportation Infrastructure Ltd., involving public money and, therefore, the public has right to get information concerning the agreement. In its defence, Bhagyanagar Gas Ltd. stated that the information sought by the appellant concerns an agreement involving commercial confidence, which cannot be revealed to third parties. It referred to S. 2 (45) of the Companies Act, 2013 as per which a Government company means any company in which not less than 51% of the paid-up share capital was held by the Central Government or by any State Government or Governments and added that Bhagyanagar Gas Ltd. does not fall in this category. It was further stated that in the Board of Directors of Bhagyanagar Gas Ltd., there were two directors each from GAIL India Ltd. and HPCL and, at the moment, one independent director; though as per the Companies Act, there should be two independent directors. After hearing the parties, CIC observed that, “From the information obtained from the websites of GAIL India Ltd. and HPCL, it is seen that the shareholding of Government of India in these entities is 56.11% and 51.11% respectively. The remaining shareholding is of financial institutions, banks, mutual funds, employees and others. Further, these entities also generate income from their commercial activities. Therefore, shareholding of approximately 98% by these organizations in Bhagyanagar Gas Ltd. does not qualify as substantial financing by the appropriate Government within the scope of Section 2 (h) (d) (i) of the RTI Act.” CIC further observed that even though four of the five directors of Bhagyanagar Gas Ltd. were from GAIL India Ltd. and HPCL, because of what is stated above regarding the shareholding of GAIL India Ltd. and HPCL, their presence on the Board of Directors cannot be regarded as substantial control by the appropriate Government. “In view of the foregoing, we decide that Bhagyanagar Gas Ltd. is not a public authority under the RTI Act,” Commission noted and disposed of the appeal. [K. C. Unnikrishnan v. Bhagyanagar Gas Ltd., 2016 SCC OnLine CIC 4847, decided on April 26, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While declaring an RTI applicant as misuser of social media and RTI, CIC warned him to stop misusing the law to harass his colleagues in a Delhi college. The Commission was hearing an appeal filed by an employee of Ambedkar Polytechnic, who filed RTI application seeking wide range of information about his colleagues and Principal and even of the officers who were supposed to inquire into complaints filed against him. He sought copies of integrity certificate of committee members those were involved in the inquiry. Appellant had already filed number of complaints, grievance representations, RTI applications, almost chocking entire administration. He also videographed the lecture of one of his lady colleagues in the class room without permission and put it on social media with reckless allegations. She complained against him before Delhi Commission for Women, which was dismissed on the ground that the Principal should have given a memo. She was upset with invasion of her privacy and reputation by wide circulation of abusive comments with video giving an impression there was some scandal. After perusal of documents and hearing the parties, CIC observed that the appellant is, “a misuser of every mechanism” and “every misuse of system like, PGMS, RTI and Social media shall be considered as an item of misconduct that invite disciplinary action.” “The head of the institute need to examine if it (actions of appellant) amounts to any offence under IPC or IT Act, and shall report to appropriate authorities including police,” CIC noted. The Commission also observed that the women colleagues were also entitled to get compensation for invasion of their privacy. The Commission further recommended the Delhi Commission for Women, to take necessary action on complaints of the lady colleague and report the compliance to the Commission. [Mohd. Shakeel Saifi v. Bhai Parmanand Institute of Business Studies, 2016 SCC OnLine CIC 3673, decided on March 3, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): “Voice transcripts/CDR of a subscriber fall under the category of personal information and cannot be disclosed to third party,” observed CIC while rejecting an appeal filed by a person who sought call details of his BSNL post paid mobile for a particular period. Earlier, the appellant approached CPIO, BSNL stating that he wants the voice transcripts of his mobile no.944***259 for the period 20/02/2014 to 31/03/2014. The appellant pointed out that his brother-in-law is using the said mobile phone for the last five years and as certain miscreants in collusion with the police were trying to take over his properties, he is entitled to the information. The CPIO stated that as per their records the mobile telephone was registered in the name of his brother-in-law and not the appellant. CPIO further submitted that the information was personal in nature and cannot be disclosed being exempted under Section 8(1)(j) of the RTI Act. Before Commission, it was submitted by CPIO that voice transcript/CDR of a subscriber cannot be furnished to third party as it would cause unwarranted invasion of the privacy of the subscriber. While concurring with the viewpoint of CPIO, the Commission noted that voice transcripts/CDR of a subscriber fall under the category of personal information and cannot be disclosed to third party being exempted under Section 8(1)(j) of the RTI Act unless the seeker of information is able to show larger public interest to justify the disclosure. “In the matter at hand the appellant has not succeeded in establishing that the information sought is for larger public purpose. It being so, there is no need to interfere with the respondent’s decision,” observed CIC while closing the matter. [S. Sathiya Narayanan v. BSNL, 2015 SCC OnLine CIC 12992, decided on October 27, 2015]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While coming down heavily upon Director, General Health Services, Haryana for non-compliance of earlier orders of CIC, the Commission directed him to provide complete details about facilities and concessions given by the Government to Medanta Hospital, Gurgaon. Before the Commission, the appellant sought information in relation to medical lapses that allegedly resulted in the death of former Chief Justice of India, J.S. Verma. The appellant also sought complete file notings and correspondence including application for allotment of land to Medanta Hospital (where the former Chief Justice breathed his last) and prevailing market rate and circle rate of land in that area, at the time of allotment of land to Medanta Hospital. Earlier seeking the said information, the appellant had approached PIO, Directorate of Health Service, GNCTD, Delhi and the First Appellate Authority but was not satisfied with the response. Claiming non-furnishing of information sought, the appellant approached the Commission in Second Appeal. During the course of proceedings before CIC, the Commission directed Department of Health & Family Welfare, Govt. of Haryana and HUDA, Gurgaon to furnish the required information to appellant. When the matter came up before the Commission for compliance, the Commission directed CPIO of HUDA to produce the file notings of allotment of land, application of Medanta, and the prevailing market rate and circle rate of land in that area, at the time of allotment to Medanta Hospital before the Commission. While reprimanding the Director, General Health Services, Government of Haryana for non-compliance of earlier orders of CIC, the Commission further noted, “The Commission also directs CPIO/Director General Health Services, Government of Haryana to show cause why maximum penalty should not be imposed against him for not complying with the direction of the Commission, the explanation should reach the Commission within 3 weeks of receipt of this Order. He is also directed to provide complete details about facilities and concessions given by them to Medanta Hospital, Gurgaon.” [Subhash Chandra Agrawal v. Directorate of Health Services, GNCTD, Delhi,  decided on October 21, 2015]

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While taking note of the fact that CPIOs failed to mention their name in the replies to RTI applications, CIC reiterated that CPIOs and FAAs should mention their name, address, telephone and fax number in all correspondence on RTI matters. CIC was hearing an appeal filed by an RTI applicant seeking information with reference to a Notification published in the press, inviting applications for the post of House Keeper cum Peon. The appellant sought information regarding Government guidelines relating to above mentioned notification, name and designation of the appointing authority and also requested for personal hearing. He earlier approached CPIO, Union Bank of India but was not satisfied with the response he got. Even after filing appeal before First Appellate Authority, complete information was not furnished. It was also alleged in the appeal that the name of the concerned CPIO was also not mentioned in any of the correspondence in the matter. After hearing the parties, CIC directed Union Bank of India to provide all information to the appellant with name of the concerned CPIO and also to ensure that the appellant was given personal hearing. (Chayan Ghosh Chowdhury v. CPIO, Union Bank of India, File No. CIC/VS/A/2013/001508/SH, decided on May 23, 2014)

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