Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Vanaja N. Sarna (Information Commissioner), observed that,

For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.

Appellant in the present matter stated that a 9-member committee was set up in April 2020 to ensure the adequate availability of medical oxygen in the wake of the COVID-19 Pandemic.

With respect to the above, applicant sought certain information.

Due to non-provision of the information sought under Section 8(1)(a) and (d) of the RTI Act, second appeal was filed.

Analysis, Law and Decision

Commission observed that,

“…life and personal liberty are the most valuable possessions of an individual. The value for life, liberty and property are not merely a norm or a policy of the State but an essential prerequisite of any civilized society.”

Coram relied on the decision of this Commission in Venkatesh Nayak v. Department of Defence, 24-07-2019,

“Commission remarked at this instance that the instant RTI Application has been filed on the grounds that it concerns life and liberty of a person, however, it is not clear from the facts on record as to how life and liberty of a third party Lt. Col. Dharamvir Singh concerns the Appellant.

 

 Commission clarified that it is not the locus standi vis-a-vis the RTI Act that is being questioned but locus standi of the Appellant vis-à-vis the life and liberty of Lt. Col. Dharamvir Singh. In other words, Commission inquired if the affected person or his wife who allegedly filed the FIR reached out to the Appellant to pursue their case or if the Appellant is aware of what prevented the affected party or his wife from seeking this information.

 

 It may be noted that since every case involving the life and liberty of an individual will not invariably concern human rights violation, the considerations advanced by the Appellant to contest locus standi on the claim of human rights violation of the said officer is deemed as extraneous in the instant case.

 

 For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.”

Further, in the matter of Sehar Singh v. PMO, while dealing with the query of “when is the question of life and liberty to be considered a matter of concern?” laid down the following parameters:

“-The RTI application be accompanied with substantive evidence that a threat to life exists (eg. Medical report).

-If, the claim of concern for life and liberty is not accepted in a particular case by the public authority, the reasons for not doing so, must be given in writing while disposing of the application.”

Conclusion

In the instant matter, in view of the above discussion, the Commission came to the conclusion that the Parliament has made a very special exception for cases involving “life or liberty of a person” so that it would be used only when an imminent threat to life or liberty is involved.

Coram added that appellant referring to the matter as being related to the public at large, and not ‘a person’ as specified in Section 7(1) proviso and in the interest of preventing the damage caused by pandemic is not sufficient to invoke this particular clause of 48 hours reply timelines, when apparently, the Appellant failed to substantiate as to how information sought in the instant RTI Application has a bearing on his life and liberty or of any other person.

Further, the Commission stated that the appellant also failed to quote any particular instance in which any individual related to him was affected due to non-disclosure of the information. Therefore, the life and liberty of whom the appellant was pleading for was non-existent.

Though, the Commission found the matter to be of greater public interest. 

In the opinion of Commission, the matter was unprecedented and hence the appellant’s plea that disclosure of information would have helped in holding discussions with the Government is far stretched.

Whether there were enough steps taken by the authority or not in ensuring supply of medical oxygen?

Commission answered that the above-stated question was outside its jurisdiction.

Now, since the matter of life and liberty was rejected, Coram found the CPIO’s response on time. Though the delay was due to the ill health of CPIO.

Concluding the matter, Commission could not find any relation nor as a matter of fact, any justification of concerns of life and liberty of any person and therefore, there was no question of applicability of the proviso of Section 7(1).

CPIO vide letter dated 11.06.2021 had provided a cursory reply claiming exemption u/s 8(1)(a) and (d) and had failed to amplify the same with reasons. The fact of the reply being timely is justified but the denial was not justified in his reply. Further, he also failed to record his reasons for rejecting the applicant’s request to consider the same under the clause of “life and liberty”. The CPIO is, therefore, cautioned to be careful in future and ensure that he follows the provisions of the RTI Act implicitly.

CPIO contended that “…the proposals considered by the empowered group contain commercial business, technological and strategical information pertaining to several government and private entities which qualifies as commercial confidence and/or intellectual property and the disclosure of the same would impair and irreparably harm the competitive position of such government and private entities constituting third parties. Thus, such information has been exempted from being disclosed u/s 8(1)(d) of the RTI Act.”

Further it was submitted that,  High level discussions of the empowered group frequently form part of the discussions within the highest decision-making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.

Lastly, the Commission directed the CPIO to provide a suitable point-wise reply to appellant within 10 days. Coram added that any information if denied completely should be suitably justified with the application of the relevant clause.

In view of the above discussion, appeal was disposed of. [Saurav Das v. CPIO, DPIIT; CIC/DOIPP/A/2021/625997; decided on 29-07-2021]


Advocates before the Commission:

Appellant: Present over phone

Respondent: Karan Thapar, Deputy Secretary and CPIO, present over the phone

Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of July, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.


Appellate Tribunal for Electricity

 

Solar Project

Whether there was bona fide delay in commissioning the solar power project?

“…allowed an appeal which was filed against the Order of Karnataka Electricity Regulatory Commission (Commission) whereby, the Commission has held that the Applicant/Appellant was not entitled to extension of time for commissioning of solar power project in terms of the Power Purchase Agreement and Supplementary power Purchase Agreement.”

Read more: https://bit.ly/3jbKtvP


Armed Forces Tribunal

War Injury Pension

Tribunal grants war injury pension to WW-2 soldier who suffered splinter wound injury in Italy

“…war injury pension to World War-2 veteran who suffered splinter wound injury in his right leg”

Read more: https://bit.ly/37cxXXi


Customs Excise & Service Tax Appellate Tribunal

Input Services

Whether distribution of credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants? Tribunal answers

“…issue involved was that the appeals was whether Parle Biscuits was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including Krishna Foods, under Rule 7(d) of the CENVAT Rules.”

Read more: https://bit.ly/2V5CYhG

Convenience Fee

“Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains

“Issue involved was related to to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.” 

Read more: https://bit.ly/3rKRvvg

Principles of Natural Justice

Revenue has miserably failed to discharge its onus; Tribunal finds impugned order opposed to principles of natural justice

https://bit.ly/37a5uB8

CENVAT Credit

Admissibility of the Cenvat Credit in respect of outward GTA; Tribunal allows appeal

https://bit.ly/3xcJKzf


Central Information Commission

Right to Information Act

Can S. 8(1)(d), RTI Act be invoked to deny copy of thesis in view of commercial viability and to protect interests of scholar and his guide?

“…thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.”

Read more: https://bit.ly/3fbpI23


Delhi State Consumer Disputes Redressal Commission

 

Deficiency of Service

Will Camera Manufacturer — Nikon be liable for deficiency of service caused to a consumer who lost all his photographs due to memory card getting corrupted?

“…Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.”

Read more: https://bit.ly/3fbqg87

Builder-Buyer Dispute

Builder handing over possession of plot with incomplete development beyond agreed time. Is buyer entitled to refund of deposit with interest? Commission decides

“Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.”

Read more: https://bit.ly/2WJUV6d


National Consumer Disputes Redressal Commission

Medical Negligence

  • Can Wheelchair injuries be covered under the ambit of medical negligence?

“Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.”

Read more: https://bit.ly/3fimrOy

  • In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent?

“…The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”

Read more: https://bit.ly/3idk4hG


National Company Law Appellate Tribunal

 

Insolvency Proceedings

An Arroyo for OYO | While allowing it to work independently, closed insolvency proceedings; Disallowed external parties to impinge

“We are of the considered view that before Constitution of Committee of Creditors (CoC) mere filing of a ‘Claim’ does not constitute a default per se. It is only on the basis of the ‘Claims’ that the CoC is constituted. In a catena of Judgments, the Supreme Court has reiterated that the prime objective of the Court is not recovery, but revival”.

Read more: https://bit.ly/3rO12BU


National Company Law Tribunal

Personal Guarantor

Personal Guarantor not liable to be prosecuted under S. 95 IBC where corporate debtor concerned is not under corporate insolvency resolution process

https://bit.ly/2Vmxnn0


National Green Tribunal

No Odour control system required to prevent odour from Sewage Treatment Plant. Why? NGT imposes costs on Delhi Jal Board: Why DJB is shirking its responsibility?

Mere spraying of chemical solution and other superficial steps is not effective in installing an effective odour control unit.”

Read more: https://bit.ly/3rMxOTD


National Human Rights Commission

Fr. Stan Swamy | Medical Treatment

  • Ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights: NHRC

https://bit.ly/3yk7ov5

Manual Scavenging

  • Manual scavenging and hazardous cleaning still remain a stinking truth of our nation: NHRC

https://bit.ly/3yi3seb

Post-Poll Violence in West Bengal

  • NHRC refutes allegations in a section of media regarding leakage of report relating to post poll violence in West Bengal

https://bit.ly/3BZMT9h


Securities Exchange Board of India

Fraudulent Scheme

 Manipulation in prices, fraudulent scheme results in debarment-Global Infratech, Directors and 12 other entities ousted from the market

https://www.scconline.com/blog/post/2021/07/23/manipulation-in-prices/

Insider Trading

Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries

https://bit.ly/2V0zFZq


 Securities Appellate Tribunal

 

Collective Investment Scheme

Unregistered Collective Investment Scheme violative of S. 12(1)(b) of SEBI Act and Regulations, order to pay 10% p.a. interest on refundable amount not vitiated

https://bit.ly/3j728EJ


Tribunals/Regulatory Bodies/Commissions Monthly Roundup | June 2021

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Saroj Punhani (Information Commissioner), harmonised the conflicting interests of the parties keeping with the letter and spirit of the Right to Information Act.

Following information was sought by the appellant:

  1. “Provide a copy of Thesis titled ‘Studies on some nitrogen fixing genes of Azotobacter vinelandi submitted/authored by Umesh Kumar Bageshwar which is catalogued in Dr Zakir Husain Library of Jamia Millia Islamia University under Access No. 130906. 
  1. If the said Thesis is not available for circulation, provide the reason(s) for inaccessibility/restricted circulation of the said Thesis with a copy of instructions, if any restricting such circulation.
  1. lf the said Thesis circulation is restricted, provide the guidelines/policy that govern restricted access in Dr. Zakir Husain Library of Jamia Milia Islamia University with a copy of categories of items that can be placed in restricted access.”

CPIO submitted that the thesis sought for by the appellant pertains to the work of a third party who had categorically informed the University not to disclose the thesis without having an NDA signed with him by the requestor concerned.

Further, CPIO explained that the averred scholar has already got a US Patent and he intends to file for an Indian Patent too with respect to the research wok documented in the averred thesis and has also apprehended that a number of foreign companies are trying to gain unrestricted access to the said work for commercially exploiting it without his consent.

In view of the commercial viability of the said thesis and the protected interest of the scholar and his guide, the FAA invoked Section 8(1)(d) of the RTI Act in order to deny the information to the appellant.

Adding to the above, emphasis was laid on the point that the research scholar informed the University that if any request for access to the said thesis comes that should be facilitated through him.

Analysis, Law and Decision

Commission observed that the appellant primarily harped on the relevant University Ordinances to insist that the thesis of the averred research scholar ought to be disclosed in the public domain as once the scholar submits the thesis to the University, it ceases to be the property of the scholar and hence the consent or dissent of the said scholar is not consequential to the disclosure of the thesis in the public domain.

In Commission’s view, the arguments of the representative of the Appellant questioning the originality of the said thesis or challenging the Patent filing on the grounds that the idea invested in the thesis is no more ‘novel’ are more in the nature of self-serving arguments or at best calls for the intervention of the University administration to assess if any procedural or ethical lacunae is pertinent in the award of degree based on the averred thesis in the context of the serious allegations of the Appellant.

Coram stated that the appellant may note that merely because University Ordinance prescribes publication of the thesis does not take away the protection available to the disclosure of the same under the RTI Act if exemption of Sections 8 and 9 therein is applied and justified.

thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.

Further, adverting to the peculiarity of the instant case in the context of the serious allegations of the Appellant and the admitted stance of the CPIO that the third party intimated that the thesis be withheld from public disclosure or publication, the Commission deemed it expedient to harmonise the conflicting interests of the parties concerned in keeping with the letter and spirit of the RTI Act.

In view of the above discussion, Commission directed CPIO to provide a copy of the relevant and available instructions received from the third party requesting for the complete confidentiality of the said thesis. or in the absence of said record, any other corresponding document as available should be provided to the Appellant.

CPIO was also directed to provide the relevant and available guidelines governing restricted access of thesis submitted by the scholars of the University to the Appellant, in case the same was not available, a categorical statement shall be stated in the CPIO’s reply.

Appellant was at liberty to approach the University for the purpose of facilitating access to the thesis subject to the signing of NDA in consultation with the concerned research scholar.

Note for UGC

Instant case impliedly suggests that despite relevant University Ordinances stipulating access permission to the submitted thesis of scholars, the prerogative lies with the University to withhold one such thesis in absolute confidentiality on the grounds of commercial viability and market competition. If that be the message that the Respondent University is conveying, it may be assessed if the said prerogative of the University is backed by any UGC Regulations and if the same is conducive to the interests of the research community at large.

Hence, in regard to the above, Vice-Chancellor, JMI shall consider placing in the public domain any exceptions to the rule of granting access to the submitted thesis of the scholars in order to dispel the apprehensions of other fellow research scholars or the general public at large and to avoid casting aspersions on the work of the scholars.

In view of the above discussion, appeal was disposed of. [Rajeev Kumar v. CPIO, Jamia Milia Islamia; 2021 SCC OnLine CIC 4459; decided on 12-04-2021]


Advocates before the Commission:

Appellant: Represented by Varun Sharma, Advocate through the intra-video conference.

Respondent: Dr Shakeb Ahmad Khan, Professor & CPIO present through intra- video conference.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Uday Mahurkar, Information Commissioner, reiterated that the candidates/students have the right to access their own answer sheets as per the provisions of the Right to Information Act.

In the present matter, the appellant sought the information regarding his own answer sheets which were evaluated and marked for all the subjects under the Limited Departmental Competitive Examination for promotion to the cadre of Assistant Accounts Officer.

Appellant submitted that he should be provided with the same as per the Supreme Court decision. Further, he added that there has been adequate suspicion that the respondent may destroy the Answer Sheets related to the LDCE – AAO, 2018 exam citing its record retention policy. But the same was denied by the respondent and an assurance was provided that no such act had been undertaken to destroy the answer sheets related to the said exam.

Commission in a plethora of earlier decisions decided that answer sheets should be furnished to the applicants in his own case and the same stand was taken by the Commission in the present matter also.

Respondent had been citing the Supreme Court’s decision in UPSC v. Agnesh Kumar, (2018) 4 SCC 530, which was limited to the Competitive Exams and did not cover the Departmental Exams per se held by the Public Authorities nor was applicable to situations where it was prima facie made out that larger public interest was involved.

Analysis, Law and Decision

Commission stated that the issue involved in the present matter of candidate’s access to his/her own answer sheet has been long settled by the Supreme Court in the decision of CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497, wherein following was held:

“…every examinee will have the right to access his evaluated answer-books, by either inspecting them or taking certified copies thereof unless the same was exempted under Section 8 (1) (e) of the RTI Act, 2005.”

Relevant observation from the above decision:

“11. The definition of „information‟ in Section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term „record‟ is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore, the evaluated answer-book is also an ‘information’ under the RTI Act.”

In the Supreme Court decision of Mradul Mishra v. Chairman, UPSC, Civil Appeal 6723 of 2018 it was held that:

“14. In our opinion, permitting a candidate to inspect the answer sheet does not involve any public interest nor does it affect the efficient operation of the Government. There are issues of confidentiality and disclosure of sensitive information that may arise, but those have already been taken care of in the case of Aditya Bandopadhyay where it has categorically been held that the identity of the examiner cannot be disclosed for reasons of confidentiality.

  1. That being the position, we have no doubt that the Appellant is entitled to inspect the answer sheets. Accordingly, we direct the Respondent – U.P. Public Service Commission to fix the date, time and place where the Appellant can come and inspect the answer sheet within four weeks.” 

What is the link between the permission to access the answer sheet and the candidate’s right to life and livelihood?

Hence, in view of the above elaborative discussion, Commission held that the present issue involved larger public interest affecting the fate of all the students/candidate who wishes to obtain information regarding their own answer sheet which would have a bearing on their own career and in turn would ostensibly affect the right to life and livelihood.

Therefore, allowing a student to inspect their own answer sheet ought to be allowed as per the provisions of the RTI Act, 2005.

Decision

Therefore, in the present matter, the Commission directed the respondent to furnish a copy of the candidate’s own answer sheet as sought in the RTI Application within a period of 30 days from the receipt of this order.

In view of the above, appeal was disposed of. [Venu C v. CPIO, General Manager (Finance) Postal Accounts, Department of Post; 2021 SCC OnLine CIC 4306; decided on 24-05-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amita Pandove (Information Commissioner) held that,

“…information which is available in record or accessible by a public authority can only be provided under the RTI Act.” 

“Appellant is not just pressurizing the Respondent public authority by seeking clarification/confirmation, but also harassing them by filing multiple queries followed by reminders, e-mail communications etc.” 

“…under the provisions of the RTI Act, disclosure of information is a rule and non-disclosure is an exception.”

Information was sought by the appellant through an RTI Application. On being dissatisfied, the appellant had filed the first appeal in October, 2018 which had not been adjudicated by the First Appellate Authority.

Appellant filed a second appeal under Section 19 of the RTI Act and sought information.

On query by the commission, appellant informed the Commission that two written submissions had been filed on his behalf, to which the Commission cautioned the appellant to desist from such practice as the same was not in accordance with the letter and spirit of the RTI Act.

Respondent submitted that the information sought by the appellant was voluminous and the same was scattered in many files. He added that providing photocopies of all the information required collection/collation of data, which attracted Section 7(9) of the RTI Act.

Appellant interjected to state that how the Commission can adjudicate the aspect of voluminous information. Upon query by the Commission as to on what authority he is making this statement, he failed to provide a substantiating reply. The Commission yet again cautioned the Appellant for vitiating the proceedings of the instant hearing.

Commission’s Decision

Coram noted that the appellant adopted a convoluted method to express the facts of the instant case.

Commission expressed that it is of the view that,

 As much as the CPIO has a statutory responsibility to comply with the provisions of the RTI Act, applicants filing a request under RTI Act should also keep in mind that they should not transgress the letter and spirt of the RTI Act by flooding RTI Applications, which are cumbersome, protracted and circumlocutory in nature.

 Commission admonished the appellant for going beyond the stipulated word limit, which troubled the respondent to ascertain what information had been sought and pertained to which Department.

Therefore, in Coram’s opinion the appellant instead of seeking information in a reasonable and comprehensible way resorted to adopting a tortuous method containing quite a lot of issues/queries in a disorganized manner, resulting in unfathomable hurdles on the part of the respondent.

Word of Caution by the Commission

“…Appellant being a responsible citizen who poses to be concerned about the functionality of the Respondent public authority must impliedly know his limitations while filing an RTI query before any Respondent public authority.  

 Commission strictly cautions him that in future, he shall holistically adhere to the relevant provisions of the RTI Rules, 2012 while filing any RTI Application before any public authority.”

Bench stated that the Appellant’s contention was rather preposterous because mere statements such as ‘involving larger public interest’ and ‘national interest’ do not suffice and the onus to prove the same lies with the Appellant.

Commission was put into doubt about the intention of the appellant whether he genuinely wants information or just wants to harass the Respondent public authority.

Majority of queries sought by the appellant were in respect to the PIO’s confirmation regarding certain aspects such as dates pertaining to commencing and concluding of certain constructions at Naval/Coast Guard berths, names of the vendors who were awarded contracts for the aforesaid construction, date of execution of the lease agreement etc. from the Respondent.

Information: Can the appellant seek any information under the sky?

Commission pointed out that though it is not mandatory to provide reasons for seeking information under the RTI Act, but the same does not mean that an applicant can seek all/any information under the sky.

 Further, it was observed that appellant relatively misinterpreted the term “information”.

Photography: Is it allowed under the RTI Act?

In the present matter, appellant has argued that photography is allowed under the RTI Act under Section 2(j)(iv) of the RTI Act.

Bench while considering the importance of the services rendered by the respondent public authority to the country as well as considering the information sought by the Appellant in the instant RTI Application, held that photography of the averred documents/records/information cannot be allowed because the question of photography arises only if the condition of the document/record is in a dilapidated state and cannot be photocopied anymore by repeated handling.

Commission elaborated that the appellant in a cyclostyled manner framed the queries of the instant RTI Application, wherein he had specifically asked the PIO to ‘CONFIRM’ the commencing and concluding date of certain constructions, ‘CONFIRM’ whether the Respondent has a copy of the NGT’s Order pronounced on 02.09.2016 concerning to the dredging and other expansions of MPT etc., which is beyond the purview of Section 2(f) of the RTI Act.

Commission opined that the appellant was only on a mission to seek vengeance or has some personal vendetta against the respondent public authority.

Appellant understood that the provisions of the RTI Act can be twisted according to his whims and fancies as well as to his requirements.

 It was added to the observations during the hearing, the Appellant rather made an attempt to mystify both the Commission as well as the Respondent by taking refuge on unconnected events or mentioning certain things without any proof.

The modus operandi adopted by the Appellant is nothing but a classic example of systematic persecution as well as wasting precious time of the public authority as well as the Commission at the cost of the public exchequer.

Commission finds that the Respondent has provided an opportunity to the Appellant to inspect the relevant records, which the Appellant is contesting till date, which is rather bizarre to note.

Commission further counselled the appellant that as per Section 6(1) of the RTI Act, Parliament made amply clear that while enacting the RTI Act it had categorically provided a right to an Indian citizen that he/she shall make a request and not requests.

Adding more to its remarks, Coram noted that Appellant rather appeared to have converted the provisions of the RTI Act as a tool of oppression/intimidation, which the Commission discourages outrightly.

Enough opportunity had been provided to the appellant to inspect the relevant records which he did not avail till date, hence no illegality was found on the part of the respondent for seeking proof of citizenship because considering the importance and sensitivity of the information sought in the instant RTI Application as well as the alleged antecedents of the appellant, the respondent public authority has on a selective basis and as a matter of abundant caution sought proof of citizenship from the Appellant.

Public authority has the liberty to seek proof of citizenship from an applicant, when he/she is seeking information, at times may be sensitive from security perspective and this concern can never be disregarded.

 Keeping in view the totality of circumstances discussed above, the Commission found no infirmity in the information provided by the Respondent.

Therefore, the appeal was dismissed in view of the above terms. [Samir Sardana v. CPIO, Mormugao Port Trust; 2021 SCC OnLine CIC 4310; decided on 10-05-2021]

Case Briefs

Delhi High Court: In a petition seeking direction to quash the order of Central Information Commission, Jayant Nath, J. observed, “…where a public authority takes recourse to Section 8 (1) (h) of the RTI Act to withhold information, the burden is on the public authority to show that in what manner disclosure of such information could impede the investigation.”

Petitioner filed an RTI application on 05-09-2016 under Rule 6 of the RTI Act, 2005, seeking pointwise disclosure of information mentioned at serial no. 5(i) to 5(xxv). It is the case of the petitioner that the CPIO did not provide the correct information in respect of point 5(i) of the RTI application and further misled on other issues. The first appeal was filed by the petitioner on 10-10-2016 followed by a second appeal before the second appellate authority CIC. The grievance of the petitioner is precisely that, the respondent believed verbal submissions of the CPIO instead of the written submissions of the petitioner and allowed them to sustain their stand for non-disclosure by claiming exemption under Section 8(1) (h) of the RTI Act.

Court made a passing remark on the default committed by the petitioner, by not giving the entire personal details relevant in seeking the information so made. However, it decided to examine the impugned order of the CIC only on merits.

The order of the CIC dismissing appeal rested on the fact that disciplinary proceedings, as initiated by CBI, were pending against the petitioner and therefore the matter was covered under Section 8(1)(h) of the RTI Act, 2005. In light of the said finding, Court referred a catena of judgments based on non-disclosure of the information under Section 8.

  1. Director of Income Tax v. Bhagat Singh, MANU/DE/9178/2007; Court observed in the words, “Under Section 8(1)(h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason.” [Reiterated in Union of India v. Manjit Singh Bali, 2018 SCC OnLine Del 10394] 
  2. Bhagat Singh v. CIC, (2008) 100 DRJ 63; Court made a significant observation with respect to the interplay of Section 3 and Section 8 of the RTI Act, 2005 and further remarked, “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 is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. 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) (h) and other such provisions would become the haven for dodging demands for information.”
  3. S. Mathur v. Public Information Officer of Delhi HC, 2011 SCC OnLine Del 2592; is a case wherein the petitioner was placed under suspension pending disciplinary action and the Court therein held, “The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought “would impede the process of investigation.” The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act.”

The Court conclusively said that the impugned order only reveals that a chargesheet has been filed but no reasons are spelt out as to how the investigation might get hampered by disclosing the information as asked by the petitioner. In the absence of the same, Court directed back the matter to the CIC for consideration.[Amit Kumar Shrivastava v. Central Information Commission,2021 SCC OnLine Del 336, decided on 05-02-2021]


Suchita Shukla, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., upheld that order of the Central Information Commission whereby a penalty of Rs 10000 was imposed on the petitioners for changing stands while not providing the information as sought by the applicant under the RTI Act.

The instant petition was filed by two officers working with the Union Bank of India as Central Public Information Officers (CPIO).

The above-two officers challenged the impugned Order passed by the Central Information Commission vide which penalties amounting to Rs 10,000 were imposed upon them.

Background

An RTI application was filed by the applicant who was the Chief Manager at the Union Bank of India wherein he sought the following information:

Details of the Board approval along with justification for giving exemption with regard to 3 years branch head service.

The Office of the CPIO had informed the applicant that copy of the board note, being an internal document of commercial confidence would be exempted from disclosure.

Even the appellant authority stated that the copy of the board approval was exempted from being disclosed under Section 8(1)(d) of the RTI Act.

In the second appeal with regard to the matter, CIC found that there was no reason why complete information was not provided to the applicant and held that the responses provided were rather incomplete and evasive. Therefore, a show-cause notice to the CPIOs of the bank was issued.

On receiving the above show cause notice, the CPIOs responded stating that the information which was sought could not be found on record. Due to the change in stand by the petitioners, CIC imposed a penalty of Rs 10,000 under Section 20 of the RTI Act.

Analysis and Decision

Bench referred to this Court’s decision in R.K Jain v. Union of India, 2018 SCC OnLine Del 10957  wherein it was recognized that the CPIO, being the custodian of information or documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information, and in cases of default, the penal action is to be invoked against the CPIO only.

In the decision of Registrar of Companies v. Dharmendra Kumar Garg (WP(C) 11271/2009, decided on 1st June, 2012), the role of CPIOs under the RTI Act was elaborately dealt with.

Further, in the decision of J.P. Agrawal v. Union of India, (WP(C) 7232/2009, decided on 4th August, 2011) the Single Judge recognized that:

CPIOs/PIOs are not merely “post offices” and have a crucial responsibility in facilitating the purpose of the RTI Act.

 In light of the above decisions, the High Court laid down the following principles:

i)  CPIO/PIOs cannot withhold information without reasonable cause;

ii)  A PIO/CPIO cannot be held responsible if they have genuinely rejected the information sought on valid grounds permissible under the Act. A mere difference of opinion on the part of CIC cannot lead to an imposition of penalty under Section 20 of the RTI Act;

iii)  Government departments ought not to be permitted to evade disclosure of information. Diligence has to be exercised by the said departments, by conducting a thorough search and enquiry, before concluding that the information is not available or traceable;

iv) Every effort should be made to locate information, and the fear of disciplinary action would work as a deterrent against the suppression of information for vested interests;

v) PIO/CPIO cannot function merely as “post offices” but instead are responsible to ensure that the information sought under the RTI Act is provided;

vi) A PIO/CPIO has to apply their mind, analyze the material, and then direct disclosure or give reasons for non-disclosure. The PIO cannot rely upon subordinate officers;

vii) Duty of compliance lies upon the PIO/CPIO. The exercise of power by the PIO/CPIO has to be with objectivity and seriousness the PIO/CPIO cannot be casual in their approach.

viii) Information cannot be refused without reasonable cause.

Conclusion

Hence, the Court held that under the RTI Act, the CPIOs have a solemn responsibility.

Section 5(3) requires that every CPIO or SPIO shall deal with requests for information and `render reasonable assistance’ to the persons seeking information.

CPIOs or SPIOs can seek assistance from higher/other officials in the organisation in order to enable them to furnish the information sought for the `proper discharge’ of their duties, as per Section 5(4).

 In the present matter, CPIOs changed their stands which would go on to show that there was an intention to withhold certain important documents or information, leading to the finding of mala fides and unreasonable conduct.

In light of the above, Court opined that the penalty imposed could not be faulted with. However, considering the fact that both the CPIOs since retired from the service of the Bank, the penalty was reduced to Rs 5,000 each. [Rakesh Kumar Gupta (Erstwhile CPIO) Union Bank of India v. CIC, 2021 SCC OnLine Del 194, decided on 22-01-2021]


Advocates for the parties:

For the Petitioners: Mr O.P. Gaggar, Advocate.

For the Respondents: Mr Gaurang Kanth, Standing Counsel with Mr Aman Singh Bakhshi, Advocate.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner) decide whether a legally wedded wife can seek the information regard to income tax returns of her husband under the Right to Information Act, 2005.

The instant application was filed before the CPIO, Income Tax Officer seeking the following information:

  1. “The copy of Form 16 issued by the company at Micro Focus Software Development, ‘LAUREL’, Block ‘D’, 65/2, Bagmane Techpark, C.V. Raman Nagar, Bengaluru for the year filed for 2016- 17, 2017-2018 & 2018-2019 of my husband Mr Suman Chatterjee.
  2. The relevant documents/papers relating to the Gross Annual Income of my husband Mr Suman Chatterjee.
  3. The relevant documents/papers relating to the Gross salary of my husband Mr Suman Chatterjee.”

The appellant filed the first appeal dated 11-01-2019 which was disposed of by the first appellate authority on 05-03-2019.

Thereafter, she filed a second appeal under Section 19(3) of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO under Section 20 of the RTI Act, 2005 and also to direct him to provide the sought-for information.

Decision

Commission referred to the decision of Supreme Court in Girish Ramchandra Deshpande v. CIC, (2013) 1 SCC 212 with regard to the applicability of Section 8(1)(j) of the RTI Act, 2005.

Legal Issue to be decided

Whether the appellant claiming to be the legally wedded wife of Mr Suman Chatterjee is entitled to seek details of his income tax returns i.e. Form 16?

In regard to the above question, Commission referred to the Delhi High Court decision in Vijay Prakash v. UOI,2009 SCC OnLine Del 1731, wherein it was clarified that in a private dispute between husband and wife, the basic protection afforded by virtue of exemption from disclosure enacted under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in ‘public interest’.

Bench noted that in the present matter, the appellant did not succeed in establishing the information sought was for a larger public purpose.

Commission decided that since the filing of income tax returns by an individual is not a public activity and rather it is in the nature of an obligation which a citizen owes to the State. The said information cannot be disclosed to the appellant in the absence of any larger public interest.

Further adding to the above analysis, Bench stated that according to Section 2(n) of the RTI Act, 2005 any person other than the citizen making a request for information can be termed as ‘third party’. Therefore, appellant being a person other than the RTI applicant surely comes within the definition of ‘third party’.

Bench did not find any public interest which outweighs the harm caused in its disclosure.

In light of several decisions of the Supreme Court and High Court, Commission opined that in the absence of any larger public interest in the matter, the appellant was not entitled to seek the details of the Income Tax returns filed by the third party, Mr Suman Chatterjee which is exempted under Section 8(1)(j) of the RTI Act, 2005.

Another significant point to be noted was that the appellant sought the disclosure of at least the ‘gross annual income’ of her husband so that she could defend her matrimonial case. Considering the said marital discord between the husband and wife vis-à-vis her right of maintenance, Commission opined that the respondent should consider providing the numerical figures of the gross annual income of her husband.

In light of the above observations, appeal was disposed of. [Amrita Chatterjee v. CPIO, Income Tax Officer; 2021 SCC OnLine CIC 40; decided on 08-01-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Suresh Chandra (Information Commissioner) observed that disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

Facts of the Case

The appellant filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, State Bank of India seeking the following information:

  • Furnish me (Yearwise from 2017 to 2018) the relevant portion of Statutory Report/Audit Report/any other report/certificates submitted by Chartered Accountants relating to Electoral Bonds from the books of accounts of SBI.
  • Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act etc. issued to Statutory Auditor i.e. to Chartered Accountants to conduct relating to certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Name and Designation of Officer who is supposed to issue Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act relating to certification of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance by Statutory Report i.e. Chartered Accountants relating to Electoral Bonds.
  • Furnish me (Yearwise from 2017 to 2018) relevant portion Accounting Standards, Guidance Notes applicable to conduct the certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Whether the details of Donor and Donee are available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee made available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee of Electoral Bonds from the books of accounts of (a) SBI Mumbai Main Branch Code 00300 (b) SBI Chennai Main Branch Code 00800 (c) SBI Kolkata Main Branch Code 00001 d) SBI New Delhi Main Branch Code 00691.
  • Letter written by Election Commission to The Secretary, Legislature Department Ministry of Law and Justice, Shastri Bhavan New Delhi relating to Electoral Bonds and its impact on Transparency, corruption in India.
  • Details/Records, Correspondence and the impact of certain amendments in the Income Tax Act, the Representation of the People Act 1951 and the Companies Act 2013 to introduce/issue Electoral Bonds for funding political parties of Transparency, corruption in India.
  • Telephone No. and Email ID of CPIO and Appellate Authority as per Official Memorandum of Det of Personnel and Training available on www.rti.gov.in>Circulars.

Dissatisfied with the response, the instant second appeal was filed before this Commission.

Appellant submitted that CPIO’s response was wrong, incomplete and misleading.

Further, the appellant pleaded that the SBI was supposed to uphold public interest and not the interest of political parties and that the SBI was not in fiduciary capacity with any political party and hence had no legal duty to maximize the benefit of any public sector or private sector bank; there was no relationship of “trust” between them.

Adding to the above, appellant requested the Commission to direct the CPIO to provide the complete information and take necessary action as per Section 20(1) of the RTI Act.

With respect to point nos. 6 and 7 of the RTI application it was stated that the information in respect to those points was exempted under Section 8(1)(e) and (j) of RTI Act; information in respect of point no. 11 of the RTI application was not covered within the definition of “information” under Section 2 (f) of RTI Act and no link was maintained in respect of point no. 12 of the RTI Application.

The FAA held that the information relating to electoral bonds issued to various political parties sought by the appellant was held by the bank in fiduciary capacity and hence was denied to the appellant.

Decision

Commission of perusal of the facts and circumstances observed that the respondent revisited the RTI application and reiterated its earlier stand in respect of pint nos 6 and 7 of RTI application that disclosure of the information was exempted under the provisions of Section 8(1)(e) and (j) of the RTI Act.

Bench upheld the respondent’s contention that the disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

While parting with order, Commission stated that there appeared no larger public interest overriding the right to privacy of the concerned donor and donees.

Hence, the appeal was dismissed. [Vihar Durve v. CPIO, SBI; 2020 SCC OnLine CIC 1327; decided on 21-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner) decided whether disclosure of income tax returns of the husband to wife under RTI Act is permissible or not.

Appellant had filed an application before the CPIO, Income Tax, Jodhpur seeking information with regard to the income tax returns filed by Mohammed Rafique for the period of 2017 to 2018.

Being dissatisfied from non-provision of the requested information, the appellant approached the Commission by filing a second appeal under Section 19(3) of the Right to Information Act.

Decision

Commission on perusal of the records observed that the information sought by the appellant regarding the copies of income tax return of her husband, etc. is personal information of the third party which cannot be disclosed under Section 8(1)(j) of the RTI Act.

Further, the Commission referred to the judgment of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commission, SLP (C) No. 27734 of 2012, decided on 03-10-2012wherein it was held that:

14. “The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.”

However, the Division Bench of the Madhya Pradesh High Court in Sunita Jain v. Pawan Kumar Jain, 2018 SCC OnLine MP 373 and Sunita Jain v. BSNL, WA No. 170 of 2015, decided on 15-05-2018, had in a matter where the information seeker had sought the salary details of her husband from the employer held as under:

“While dealing with the Section 8(1)(j) of the Act, we cannot lose sight of the fact that the appellant and the respondent No. 1 are husband and wife and as a wife she is entitled to know what remuneration the respondent No. 1 is getting. Present case is distinguishable from the case of Girish Ramchandra Deshpande (supra) and therefore the law laid down by their Lordships in the case of Girish Ramchandra Deshpande (supra) are not applicable in the present case. In view of the foregoing discussion, we allow the appeal and set aside the order passed by the Writ Court in W.P. No.341/2008. Similarly, the W.A. No.170/2015 is also allowed and the impugned order passed in W.P. No.1647/2008 is set aside.”

Bombay High Court’s decision in Rajesh Ramachandra Kidile v. Maharashtra SIC, WP No. 1766 of 2016, dated on 22-10-2018.

In view of the above-stated analysis and the judgments of the Higher Courts, the Commission directed the respondent to inform the appellant about the generic details of the net taxable income/gross income of her husband held and available with Public Authority for the period of 2017-18, within a period of 15 working days from the date of receipt of this order.

In view of the above observations, the appeal was disposed of. [Rahmat Bano v. CPIO, 2020 SCC OnLine CIC 1119, decided on 06-11-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner) addressed the instant matter and highlighted the essence of provisions of Right To Information Act, 2005 in regard to third-party information.

Appellant filed an application under the Right to Information Act, 2005 before the Central Public Information officer, the Principal Chief Commissioner of Income Tax, seeking information regarding last five years Audit Report (2012-2017) of Betsy Elizabeth Trust.

On not receiving the requisite information, appellant filed the first appeal, later the second appeal under Section 19(3) of the RTI Act before the Commission was filed on the ground of not receiving the information.

Decision

Commission observed that the appellant sought information related to Audit report (2012-2017) of Betsy Elizabeth Trust from the respondent public authority.

Further, the Commission noted that the respondent sought consent under Section 11 of the RTI Act from the third party and the said assesses denied disclosure of their information to the appellant.

Adding to the above, Commission opined that the information sought by the appellant in his RTI application is personal information of the third party, which is exempted from disclosure under Sections 8(1)(j) and 8(1)(e) of the RTI Act, 2005.

Issue regarding “Personal Information”

Bench noted that the issue regarding the “personal information” held by an individual in its personal capacity and the personal information held by the entities/corporations/trusts in their private capacity. In regard to the said point, Delhi High Court’s decision in Naresh Trehan v. Rakesh Kumar Gupta, (2015) 216 DLT was referred.

Commission also examined the nature of “fiduciary relationship” involved in the instant matter whereby the information of profitability of Prime Meiden Limited company was sought which is exempted from disclosure under Section 8(1)(e) of the RTI Act, 2005.

While concluding the instant matter, the Commission observed that no larger public interest was disclosed by the appellant, hence CPIO’s response was agreed by the bench.

Lastly, the Commission observed that there was a delay in seeking consent from the third party and even more the respondent waited for two long years for the reply of the third party. The respondent should have adhered to the timelines of the RTI Act.

In view of the above observations, the appeal was disposed of. [J. Vinoth Priyakumar v. CPIO, 2020 SCC OnLine CIC 1120, decided on 06-11-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Divya Prakash Sinha (Information Commissioner) considered whether Sri Vedapureeswarar Sri Varadarajaperumal Devsthanama will be a public authority under Section 2(h) of Right to Information Act.

M. Vaikunth, Counsel for the respondent stated that Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam, Pondicherry is not a Public Authority under Section 2(h) of the RTI Act in the light of a Kerala High Court judgment, hence they are not supposed to provide information.

Commission on 07-11-2019 had observed that PIO had already provided a response to the appellant with regard to renovation works, donation, details of costs for various preparation made for Kumbabishekam etc. at Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam.

At the stage of the second appeal, it was averred that Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam is not a Public Authority, hence, outside the purview of the RTI Act.

In view of the above-stated, Commission in its interim decision had directed the respondent to send a written submission highlighting the factum as to how the averred Devasthanam is exempt under Section 2(h) of the RTI Act alongwith relevant legal citation/proposition in support of their arguments.

FINAL DECISION

On perusal of the contentions of both the parties, Commission observed that appellant largely relied on conjecture suggesting the evasiveness towards transparency, alleged vested interest or rather deliberate conduct of the Executive Officer in withholding the information and has even questioned the merits of the appointment of the present Executive Officer.

Adding to the above, the Commission stated that no substantial submission was put forward by the appellant to prove that the respondent’s office is covered under Section 2(h) of the RTI Act.

Commission held that in the absence of any substantial argument of the appellant to prove that the respondent temple is a public authority as per Section 2(h) of RTI Act, the ratio laid down in Kerala High Court’s decision in A.C. Bhanunni v. Commr.,Hindu Religious & Charitable Endowments dated 11-03-2011, as well as Hyderabad High Court’s decision of G. Rajenderanath Goud v. Government of A.P. on 14-11-2018, restrict the amenability of Respondent temple to the provisions of RTI Act.

Hence, Sri Vedapureeswarer Sri Varadaraja Perumal Devasthanam cannot be deemed as a public authority under Section 2(h) of the RTI Act. [S Suresh v. CPIO, CIC/UTPON/A/2018/620714, decided on 31-08-2020]

COVID 19Hot Off The PressNews

Attention has been drawn to media reports regarding orders passed by Central Information Commission regarding an RTI query with regard to AarogyaSetu App. As per the orders, of the CIC, CPIOs of MeitY, NeGD and NIC have been directed to appear on 24-11-2020. MeitY is taking necessary steps to comply with the orders of the CIC.

With regard to the above, it is clarified that there should be no doubt with regard to the AarogyaSetu App and its role in helping contain COVID-19 Pandemic in India. As was announced through Press Releases and Social Media posts on 2-04-2020, AarogyaSetu App was launched by Government of India in public-private partnership mode to bring people of India together in its fight against COVID19. The AarogyaSetu App was developed in a record time of around 21 days, to respond to the exigencies of the Pandemic with Lockdown restrictions only for the objective of building a Made in India Contact Tracing App with the best of Indian minds from Industry, Academia and Government, working round the clock to build a robust, scalable and secure App. Since 2-04-2020, regular press releases and updates have been issued on AarogyaSetu App including making the source code available in Open-domain on 26-05-2020. The names of all those associated with the development of the App and management of the App ecosystem at various stages was shared when the code was released in Open/Public Domain and the same was shared widely in media also.

The same can be accessed on https://github.com/nic-delhi/AarogyaSetu_Android/blob/master/Contributors.md. On all such occasions, it has been clearly mentioned that the AarogyaSetu App has been developed by NIC in collaboration with volunteers from Industry and Academia. AarogyaSetu app has been developed in the most transparent manner and all details and documents including Privacy Policy and AarogyaSetu Data Access & Knowledge Sharing Protocols issued on 11th May 2020 has been uploaded on the AarogyaSetu Portal – aarogyasetu.gov.in. The portal has all details about the App including those regarding How the App works, COVID updates and Why one should use AarogyaSetu. Regular updates about AarogyaSetu App have been shared on all Social media platforms as also Government portals. Several TV shows and media briefings also have shared complete details about the App, it’s development and how it is assisting the fight against COVID19.

As has been mentioned earlier, the App has been developed in a collaborative effort of Government and Private Sector. The App has been downloaded by more than 16.23 Cr users and has greatly augmented the efforts of front line health workers in the fight against COVID-19. It has helped identify Bluetooth contacts of COVID positive users and issued alerts for helping people to stay safe. These Bluetooth contacts have been advised for caution, quarantine or testing depending on the extent of exposure to COVID-19 positive user. Amongst those who have been advised testing, almost 25% have tested positive. This is much higher compared to the overall positivity rate of 7-8%. Thus, the efficiency of testing has gone up with AarogyaSetu. In addition, AarogyaSetu ITIHAS interface with location data has helped identify emerging hotspots where proactive steps have been taken by Health authorities and administration in order to contain the spread of the Virus. Thus, AarogyaSetu has proved to be very useful in India’s fight against COVID-19. Recently, WHO has also appreciated the role of AarogyaSetu in containing the pandemic in India.


Ministry of Electronics & IT

[Press Release dt. 28-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amita Pandove (Information Commissioner), came down heavily on CPIO, All India Radio for abdicating his duties.

Appellant filed an RTI application seeking information on the following points:

  1. “Have the security personnel, i.e., armed and /or unarmed security guards and security supervisors ever been deployed in All India Radio Directorate premises through any private security agency sponsored by Director General of Resettlement (DGR).
  2. If so, was the extra amount such as Relieving Charges etc. paid to the security agency for the arrangement of substitute of the Guards availing weekly off or other holidays as admissible to him/them in accordance with DGR guidelines.
  3. In the event of payment of extra amount such as Relieving Charges etc., how were the substitutes of the Guards or by extra hours of duty by any other guards within the contracted strength of Guards.
  4. In the event of the arrangement of substitute of any Guard proceeding on admissible weekly off/holiday from within their contracted strength of Guard, how was the payment against extra hours of duty performed by such guards regulated by payment of overtime or from payment of Relieving Charges etc.”

Instant RTI application was transferred by the RTI Cell to S.K. Tiwary, DDA (Archives) DG: AIR. CPIO had informed the appellant that AIR: Installations/transmitters were covered under the Indian Official Secrets Act, 1923 and therefore were prohibited places. Further CPIO stated that the information sought at point 1 to 4 were in the form of query which could not be replied by the CPIO as per the relevant provisions of the RTI Act.

Present second appeal was filed in light of unsatisfactory reply being furnished by the respondent.

Bench observed that the denial of the information by the respondent was only based on the argument that the disclosure of information may jeopardize the safety and security of AIR: installations and accordingly he invoked Section 8(1)(a) of the RTI Act.

Section 22 of the RTI Act was referred, which stated as follows:

“22. Act to have overriding effect – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or instrument having effect by virtue of any law other than this Act.”

Bench stated that the implication of the above Section has to be read into the present matter, wherein, even if the protocol of any other nature subsisted, it was the statutory duty of the CPIO to respond on the RTI application by either providing the information or denying it under appropriate exemption clause of the RTI Act.

Since no reasonable justification was given by the CPIO, Commission attributes the mala fide intention of the CPIO per se in the deemed refusal.

Commission warned the CPIO to remain careful in future while dealing with the matter under the RTI Act.

CPIO is not at liberty to rely on other law/rules/orders/circulars for the time being in force, in matters of RTI Act. It is a statutory duty cast upon him to affect relevant provisions according to the circumstances and he cannot abdicate his powers enlarged unto him under RTI Act, as has been done in the instant case.

Supreme Court’s observation in the matter of CPIO, Supreme Court of India v. Subhash Chandra Agarwal,2009 SCC OnLine Del 2714, held that:

“There can be no doubt that the Act is premised on disclosure being the norm, and refusal, the exception.”

Hence, in view of the above CPIO was directed to provide relevant information to the appellant as sought in the RTI application. [Rajesh Babu v. CPIO, Asstt. DG (Security) Prasar Bharati, (India’s Public Service Broadcaster), Directorate General, All India Radio; Second Appeal No. CIC/DGAAR/A/2018/635823; decided on 07-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amit Pandove (Information Commissioner) while addressing the present appeal observed the essence of Section 6(3) of the Right to Information Act, 2005.

In the instant, RTI application information was sought pertaining to the Group-A officers who were drawing reimbursement of tuition fee for their children along with those who had adopted children.

CPIO provided a reply to the appellant and on being dissatisfied, appellant filed the first appeal, FAA upheld the CPIO’s reply.

Aggrieved by the above order, the second appeal was filed under Section 19 of the Right to Information Act on the ground that incomplete information was furnished by the respondent. By the second appeal, the applicant requested Commission to take disciplinary action against the CPIO concerned and sought direction towards CPIO to provide the information.

Appellant submitted that the respondent furnished partial information in response to his RTI application. It was further submitted that the adoption certificate was not provided to him till date on the ground that the original documents are not available in respondent’s office.

Appellant contended that if the service book was not available in their office, the respondent should have transferred the RTI application to the division concerned as per the provision contained in Section 6(3) of the RTI Act.

Respondent submitted that since the then CPIO, was not sure as to where the service book was, he did not transfer the RTI application.

Decision

Commission observed that as per Section 6(3) of the RTI Act, where an application is made to a public authority but the subject matter of the RTI application pertains to another public authority, the CPIO of the public authority receiving the RTI application has to transfer the same to the public authority concerned within 5 days of receipt of the application.

In the present case, the then CPIO instead of transferring of application to the authority concerned merely stated that the information sought for was not available in their office.

The above-stated merely indicates the vacuous and lackadaisical approach towards matters relating to RTI.

Commission taking every serious view of the lapse, stated that,

“Public information officers are entrusted with the responsibility of providing information to the citizen under the RTI Act and it is expected that the CPIO on receipt of a request shall as expeditiously as possible provide the information sought for by the applicant.”

In the instant case, it is pertinent to note that, not only the then CPIO failed to comply by the provisions of the RTI Act, the FAA also disregarded the same.

In view of the foregoing, the Commission directs the respondent to furnish a categorical reply to the appellant with respect to the adoption documents sought by him, as per the provisions of the RTI Act. [Mallikarjun v. CPIO, 2020 SCC OnLine CIC 989, decided on 21-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Y.K. Sinha (Information Commissioner), reiterated the Commission’s position that, offices of President, Vice President, Prime Minister, Governors, Lt. Governors and Chief Ministers are not legally obliged under RTI Act to entertain RTI applications seeking information unrelated to it, or not held or controlled by these high offices.

Classical status to the Marathi Language

Appellant filed the instant RTI application seeking information on the following three points regarding granting classical status to the Marathi Language:

  1. Reasons behind such a speedy policy or quick administrative decisions, for granting classical status to Kannada, Telugu, Malayalam and Oriya languages, within a span of one or two years.
  2. Reasons behind the policies or administrative decisions, for the delay or denial to bestow the classical language status on the Marathi language, pending since from 2013, with the government.
  3. Reasons behind the discrimination, indignity and injustice inflicted by the government, on the Marathi speaking citizens in comparison to Kannada, Telugu, Malayalam and Oriya speaking citizens w.r.t. bestowing classical language status policy or decisions.

For the above-sought information, CPIO, PMO directed the appellant concerned to directly file his RTI with Public Authority concerned.

Dissatisfied with the CPIO’s response, appellant had filed the First Appeal and further on being dissatisfied with FA’s response, appellant approached the Commission with instant Second Appeal.

Analysis & Decision

Bench stated that appellant instead of filing the RTI application with the PMO should have filed it with the Public Authority concerned being the custodian of information.

With a view to addressing such a situation, at the very formative stage of the RTI Act, the entire scope of Section 6 of the RTI Act had been discussed and interpreted threadbare by a Full Bench of this Commission in Ketan Kantilal Modi v. Central Board of Excise and Customs, CIC/AT/A/2008/01280 and based on this decision, Commission’s Full Bench had decided in R.S Gupta v. L.G office, held that,

“…..The offices of President, Vice President, Prime Minister, Governors, Lt. Governors and Chief Ministers are not legally obliged under RTI Act to entertain RTI applications seeking information unrelated to it, or not held or controlled by these high offices….”

(Emphasis supplied)

Queries raised by the Appellant in points 2 and 3 of the RTI application are interrogatory/ clarificatory/ hypothetical in nature seeking the opinion of the Public Authority official which is clearly beyond the scope of the duties/ responsibilities of a CPIO under the Act.

Hence, in view of the above discussion, the instant second appeal was dismissed and the appellant advised to refrain in future from seeking information under the RTI Act by filing such applications before public authorities who are not the custodians of information.[S.V. Deshpande v. PIO, PMO; 2020 SCC OnLine CIC 1004, decided on 09-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amita Pandove (Information Commissioner) disposed of the second appeal filed seeking information regarding the tea stall that was issued to the father of the Prime Minister Narendra Modi.

Appellant filed an RTI application sought information on regarding following points:

  • What was the lease period of the tea stall of Shri Damodar Das, father of Prime Minister Shri Narendra Modi, located at Vadnagar Railway station under Ahemdabad Railway Division and when was the license for that tea stall issued?
  • Provide a certified copy of the relevant documents regarding the date on which permit and license was issued by the Railway Department to the said tea stall/shop, located at Vadnagar Railway station.
  • Provide a certified copy of the advertisement issued by the then Railway Authority for the establishment of the said tea stall/shop.
    And other related information.

Appellant did not receive any information for the above-stated and hence filed the first appeal which was not disposed of by the FAA.

Appellant filed the second appeal under Section 19 of the RTI Act on the ground of non-receipt of information by the respondent.

Bench on perusal of the submission of the parties and records directed the respondent to file an affidavit with the Commission deposing that RTI application and first appeal of the appellant were not received by him prior to 17-06-2020.

Commission, further directed the respondent to depose in his affidavit that no record relating to information sought is available with him as per RTI provision, hence no information can be provided to the complainant.

In view of the above-stated observations, the appeal was disposed of. [Pawan Prik v. CPIO, CIC/WRAIL/A/2018/168251, decided on 28-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Y.K. Sinha (Information Commissioner) addressed an RTI application filed seeking the following information:

  1. Names of students of Class 8th and 12th students who were given admission under EWS Quota for the session 2017-18. Provide information in detail.
  2. Names of Class 12th students who fall under EWS Quota in the final year.
  3. Provide the names of parents/Guardians of Class 8th and 12th students who were given admission under EWS Quota in the year 2017-18.
  4. Provide copies income certificates submitted by Class 8th and 12th students who were enrolled under EWS Quota in the year 2017-18?

Applicant on being dissatisfied with the response and aggrieved with the same approached the Commission with the instant second appeal.

Respondents stated that data about online registration of students is available since the year 2018-19, while the appellant seeks information pertaining to the academic year 2017- 18, hence the information could not be readily provided.

He further explained that before the implementation of the Right to Education Act, admissions to students from economically weaker sections were given under the freeship quota. The registration of students under EWS quota is not done at the stage of class 8 or 12, hence data sought by the appellant is not readily available.

Hence, in view of the above, the information sought by the appellant could not be readily provided.

Decision

Commission noted that the reply of the respondent that information about admissions under EWS[Economically Weaker Section] quota is not available in their office is totally unacceptable.

The respondent being the regulatory authority of all educational institutions cannot remain oblivious nor avoid questions relating to such crucial information which involves the implementation of the Right to Education Act.

Further, the commission added that information about names and particulars of students is personal information held by the school in a fiduciary capacity disclosure of which would invade the privacy of the concerned children.

RTE Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools, requiring all private schools(except the minority institutions) to reserve 25% of seats for children belonging to the economically weaker section of society.

Respondent was directed to provide information about the total number of students, if any, admitted under EWS quota in Class 8 and Class 12 for the academic year 2017-18.

Appeal was disposed of in the above terms.[Anita Chaudhary v. PIO, DDE-ZONE II, Dte, of Education, 2020 SCC OnLine CIC 731, decided on 09-06-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka, Chief Information Commissioner, instructed Ministry of Law and Justice.to examine the RTI Application to provide a clear, cogent and precise response to the appellant.

Appellant sought information regarding the photocopy of the request sent by the Government of India to Chief Justices of High Courts for ensuring due consideration to be given to suitable candidates belonging to SCs, STs, OBCs, Minorities and Women while sending proposals for appointment as Judges of those High Courts; photocopy of all replies received from Chief Justices, if any, till the date of RTI application.

Commission observed that RTI Act, 2005 stipulated time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. 

Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information.

Commission instructs the Respondent to FAA, D/o Justice, Ministry of Law and Justice to examine the RTI Application/ First Appeal and provide a clear, cogent and precise response to the Appellant within a period of 30 days.

In view of the above, appeal was disposed of. [Venkatesh Nayak v. CPIO & Secy., Ministry of Law and Justice, CIC/JUSTC/A/2018/153653-BJ, decided on 24-07-2020]