RTI Judgement Series
RTI Judgement Series: Public interest cannot be overlooked while disclosing information

Merely because disclosure of information may adversely affect public confidence in defaulting institutions, it cannot be a reason for denial of information under the RTI Act, the CIC ruled. This is 170th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the Central Public Information Officer (CPIO) of Reserve Bank of India (RBI) to provide complete information about investigation report based on the appellant’s complaint against Thane Bharat Sahakari Bank Ltd. The CPIO had claimed exemption using Sections 8(1)(a) and (e) of the Right to Information (RTI) Act and also cited decision of the full Bench of the Commission in RR Patel vs RBI (CIC/MA/A/2006/00406 and 00150, dated 7 December 2006) case.

 

While giving the judgement on 4 November 2011, Shailesh Gandhi, the then Central Information Commissioner said, "The RBI is a regulatory authority which is responsible for inter alia monitoring subordinate banks and institutions. Merely because disclosure of such information may adversely affect public confidence in defaulting institutions, it cannot be a reason for denial of information under the RTI Act. If there are certain irregularities in the working and functioning of such banks and institutions, the citizens certainly have a right to know about the same. In view of the same, this Bench is of the considered opinion that even if the information sought was exempted under Section 8(1)(a) or (e) of the RTI Act, as stated by the PIO, Section 8(2) of the RTI Act would mandate disclosure of the information. The Full Bench had also concluded that there was a public interest in disclosure and I concur with its finding."

 

Thane (Maharashtra) resident Vivek Madhukar Shirvalkar, on 27 November 2010, sought from the PIO information regarding his complaint dated 17 November 2009 to the regional director of RBI, as chairman of Task Force on Co-operative Urban Banks (TAFCUB) (Maharashtra) against Thane Bharat Sahakari Bank Ltd (Ref: CRC Case No 20/ 27 July 2010).Here is the information he sought and the reply provided by the PIO under the RTI Act...

 

1. Copy of report submitted by officer(s) of RBI on the investigation carried out by them in the matters/ issues stated by the Appellant in his complaint against the Bank.      

PIO's reply- No separate investigation was carried out on the issues raised by the Appellant, as the financial issues were covered in the inspection of the bank conducted under Section 35 of the B.R.Act, 1949 (as applicable to co—operative societies) with reference to its position as on 31 March 2010.The inspection reports contain information held/received by banks in a fiduciary capacity and cannot be disclosed to outsiders, as disclosure of such information may harm the interest of the bank and banking system. Such information is exempt from disclosure under Sections 8(1)(a) and (e) of the RTI Act. The other issues were referred to Registrar of Co—operative Societies, Maharashtra.

 

2. Copy of reply/explanations submitted by Thane Bharat Sahakari Bank Limited, Thane to RBI on various facts reported by the Appellant in his complaint against the Bank.           

PIO's reply—No reply has been received from the bank till date. A reminder was issued to the bank of 8 December 2010.

 

3. Copy of letter addressed by RBI to Thane Bharat Sahakari Bank Ltd, Thane stipulating the action taken, if any, against the said bank with respect to various irregularities in its functioning as stated in his complaint against the Bank.               

PIO's reply—Copies of the letters dated 1 February 2010 and 8 December 2010 issued to the bank by the Mumbai Regional Office were provided to the Appellant.

 

Not satisfied with the PIO's reply, Shirvalkar filed his first appeal.

 

Based on the contentions of the Appellant, the First Appellate Authority (FAA) made the following observations inter alia:

(i) As regards query 1 of the RTI application, reliance was placed upon the Bench decision of the Commission in RR Patel vs RBI (CIC/MA/A/2006/00406 and 00150 dated 7 December 2006). On this basis, the reply of the PIO was upheld.

(ii) The FAA upheld the reply of the PIO as regards queries 2 and 3 of the RTI application.

 

Dissatisfied with the FAA's order, Shirvalkar then approached the CIC with his second appeal.

 

The CIC directed both the parties to appeal before the Bench of Mr Gandhi, via video conferencing on 1 November 2011. However, neither party appeared nor gave any written submissions. Mr Gandhi then reserved his order.

 

During the next hearing on 4 November 2011, the Bench noted that based on perusal of papers, it appeared that information as per record on queries 2 and 3 of the RTI application, has already been furnished to the appellant and therefore, it was not in dispute before the CIC.

 

As regards query1 of the RTI application, information was denied by the PIO on the basis of Sections 8(1)(a) and (e) of the RTI Act. This was upheld by the FAA and reliance in this regard was also placed on the Commission's Full Bench decision in RR Patel vs RBI (CIC/MA/A/2006/00406 and 00150, dated 7 December 2006) case.

 

Section 8(1)(e) of the RTI Act exempts from disclosure "information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information".

 

Mr Gandhi said, "This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship."

 

"Information provided by banks or institutions subordinate to RBI is done in fulfilment of statutory compliance. This would not create any fiduciary relationship as such between RBI and the subordinate banks or institutions. The criteria defining a fiduciary relationship, as described above, must be satisfied which does not appear to have been done in the present matter. Inspections, audits and investigations are done by RBI officers as part of statutory duty and banks have to undergo this in compliance with statutory requirements. Therefore, the denial of information on query 1 on the basis of Section 8(1)(e) is rejected," he said.

 

The PIO has denied information on query 1 on the basis of Section 8(1)(a) of the RTI Act and stated in his reply dated 3 January 2011 that disclosure of such information may harm the interest of the bank and banking system. The FAA upheld the reply of the PIO and further placed reliance on a Full Bench decision of the Commission in RR Patel vs RBI (CIC/MA/A/2006/00406 and 00150, dated 7 December 2006) in this regard.

 

Mr Gandhi said, "In RR Patel's Case, the Full Bench was considering the issue of disclosure of RBI's inspection report of a Co—operative Bank. One of the issues before the Bench was whether the inspection report was exempt from disclosure under Section 8(1)(a) of the RTI Act. The Full Bench relied on a decision of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 7 May 1958) which had observed that 'In an integrated economy like ours, the job of a regulating authority is quite complex and such an authority has to decide as to what would be the best course of action in the economic interest of the State. It is necessary that such an authority is allowed functional autonomy in decision making and as regards the process adopted for the purpose'."

 

Based on the above, the Full Bench, in paragraph 16, ruled inter alia that, "In view of this, and in light of the earlier discussion, we have no hesitation in holding that the RBI is entitled to claim exemption from disclosure u/s 8(1)(a) of the Act if it is satisfied that the disclosure of such report would adversely affect the economic interests of the State. The RBI is an expert body appointed to oversee this matter and we may therefore rely on its assessment. The issue is decided accordingly".

 

"It appears that the Full Bench was of the view that if RBI concluded that disclosure of inspection reports would adversely affect the economic interests of the State, the said information may be denied under Section 8(1)(a) of the RTI Act. There is no observation that the Full Bench had come to this conclusion by itself. Further, the observations of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 7 May 1958) relied on by the Full Bench were made much before the advent of the RTI Act and cannot therefore, be a guide for deciding on exemptions under the RTI Act," the Bench noted.

 

Furthermore, the RBI in RR Patel's case claimed that if inspection reports of banks were to be disclosed it would affect the economic interests of the state. The Full Bench decision appears to rely on the submissions of the Deputy Governor of RBI provided vide letter dated 21 November 2006 and were as follows:

 

"(i) Among the various responsibilities vested with RBI as the country's Central Bank, one of the major responsibilities relate to maintenance of financial stability. While disclosure of information generally would reinforce public trust in institutions, the disclosure of certain information can adversely affect the public interest and compromise financial sector stability.

 

(ii) The inspection carried out by RBI often brings out weaknesses in the financial institutions, systems and management of the inspected entities. Therefore, disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect.

 

(iii) While the RBI had been conceding request for information on actions taken by it on complaints made by members of the public against the functioning of the banks and financial institutions and that they do not have any objection in giving information in respect of such action taken or in giving the substantive information pertaining to such complaints provided such information is innocuous in nature and not likely to adversely impact the system.

 

(iv) However, disclosure of inspection reports as ordered by the Commission in their decision dated 6 September 2006 would not be in the economic interest of the country and such disclosures would have adverse impact on the financial stability.

 

(v) It would not be possible to apply section 10(1) of the Act in respect of the Act in respect of the inspection report as portion of such reports when read out of context result in conveying even more misleading messages."

 

Mr Gandhi noted that the RBI argued that that it did not wish to share the information sought as some of it could "adversely affect the public interest and compromise financial sector stability". RBI was unwilling to share information, which might bring out the 'weaknesses in the financial institutions, systems and management of the inspected entities'. It was further contended that ”disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect”.

 

He said, "It appears that the RBI argued that citizens were not mature enough to understand the implications of weaknesses, and RBI was the best judge to decide what citizens should know. Citizens must be given selective information about weaknesses exposed in inspection, to ensure that they have faith in the banking sector. They must see the financial and banking sector only to the extent, which RBI wishes. If the RBI made mistakes, or there was corruption, citizens would suffer. This appears to go against the basic tenets of democracy and transparency."

 

The CIC cited a clarion call in State of Uttar Pradesh vs Raj Narain (1975) 4 SCC 428, by Justice Mathew that stated...

 

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security".

 

Mr Gandhi said, "The idea that citizens are not mature enough to understand and will panic is repugnant to democracy. The exemptions under Section 8 and 9 of the RTI Act are the constraints put by Parliament and adjudicating bodies have to carefully consider whether the exemptions apply before denying any information under the RTI framework."

 

"It is pertinent to mention that in RR Patel's case, the Full Bench did not come to any specific conclusion that disclosure of inspection reports would prejudicially affect the economic interests of the State. Instead it left it to RBI to determine whether disclosure of the said information would attract Section 8(1)(a) of the RTI Act. This was primarily on the basis that RBI is an expert body and that any decision taken by it should be relied upon by the Commission. No legal reasoning whatsoever was given by the Bench for concluding the above. There is no evidence or indication that the Commission after taking cognizance of RBI's views had come to the same conclusion."

 

"If the position of the Full Bench is to be accepted, it would lead to a situation where RBI would have the final say in whether information should be provided to a citizen or not. Extending this logic, all public authorities could be the best judge of what information could be disclosed, since they are likely to be experts in matters connected with their working. In such an event the Information Commission would have no role to play. Parliament evidently expected that the Information Commission would independently decide whether the exemptions are applicable. The Full Bench did not give any independent finding that the disclosure of information would affect the economic interests of the State in its decision. This would completely negate the fundamental right to information guaranteed to the citizens under the RTI Act. In the case being considered by the full bench, it decided to accept the judgment of RBI. It is open to a Commission to defer to a judgment of another body, but this does not establish any principle of law, and would apply only to the specific matter," Mr Gandhi said.

 

The Bench said, "It is apparent from the scheme of the RTI Act that the Commission is a quasi-judicial body which is responsible for deciding appeals and complaints arising under the RTI Act. While deciding such cases, the Commission would necessarily have to consider whether there were any cogent reasons for denial of information under Sections 8 and 9 of the RTI Act. Since the Full Bench has not recorded any comment which shows that it consciously agreed that Section 8 (1)(a) of the RTI Act was applicable in such matters, it does not establish any legal principle or interpretation which can be considered as a precedent or ratio. Thus the decision is applicable only to the particular matter before it, and does not become a binding precedent."

 

Mr Gandhi said, the powers of the Commission are limited under the RTI Act and certainly do not confer upon it the power of review. "It is clear from the Full Bench ruling in RR Patel's case that it was reviewing the two decisions of Professor MM Ansari, then Information Commissioner on merits. The Full Bench certainly did not have the power to do so, given the provisions of the RTI Act and the law laid down by the Supreme Court in this regard. In fact, the Supreme Court in the Kapra Mazdoor Ekta Union Case clearly considered and clarified the ruling in the Grindlays' Bank Case (relied upon by the Full Bench). It appears that the Full Bench reviewed the issues based on merits in RR Patel's case in ignorance of the law laid down by the Supreme Court in Kapra Mazdoor Ekta Union Case. In other words, the RR Patel Case is per incuriam and is consequently, not binding on this Bench," he added.

 

"Having laid down the above, this Bench examines the contention of the PIO in the present matter that the information is protected by the exemption under Section 8(1)(a) of the RTI Act. Since I do not chose to defer to the RBI's judgment in this matter, I will evaluate whether the PIO's contention of exemption under Section 8 (1) (a) is tenable," Mr Gandhi said.

 

Section 8 (1) (a) exempts  "information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence".

 

The PIO and the FAA claimed that revealing the investigation and audit report of Thane Bharat Sahakari Bank Ltd would 'prejudicially affect the economic interests of the state'. "This Bench is unable to understand how disclosing the investigation and audit report of Thane Bharat Sahakari Bank Ltd would in any miniscule way affect the economic interests of the Indian Nation. Hence, there is no ground for refusing information with regard to query1. Declaring the audit, inspection and investigation reports of all co-operative banks, which have gone into liquidation, cannot do any further harm to such banks. If the banks have gone into liquidation, what more damage can come on them? The PIO perhaps rates the economic state of this nation as being extremely fragile to make such a claim. I therefore, cannot leave such a decision to the wisdom of RBI," Mr Gandhi said.

 

The CIC then referred to the conclusion and recommendation of the full Bench in paragraph 21, which stated...

 

"Before parting with this appeal, we would like to record our observations that in a rapidly unfolding economics scenario, there are public institutions, both in the banking and non-banking sector, whose activities have not served public interest. On the contrary, some such institutions may have attempted to defraud the public of their moneys kept with such institutions in trust. RBI being the Central Bank is one of the instrumentalities available to the public which as a regulator can inspect such institutions and initiate remedial measures where necessary. It is important that the general public particularly the shareholders and the depositors of such institutions are kept aware of RBI's appraisal of the functioning of such institutions and taken into confidence about the remedial actions initiated in specific cases. This will serve the public interest. The RBI would therefore be well advised to be proactive in disclosing information to the public in general and the information seekers under the Right to Information Act, in particular. The provisions of Section 10(1) of the RTI Act can therefore be judiciously used when necessary to adhere to this objective".

 

Mr Gandhi said, "The full Bench, clearly stated that a larger public interest was likely to be served by disclosure of the said information. It suggested that RBI should disclose most of this information in a proactive manner. The Full Bench of the Commission had effectively given a recommendation to RBI to disclose this information under Section 4 of the RTI Act. I agree with the conclusion arrived at by the bench that the disclosure of the appraisal of financial institutions by RBI and remedial measures must be shared with public in a proactive manner."

 

Section 8 (2) of the RTI Act states, "Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests".

 

While allowing the appeal, Mr Gandhi said, "Merely because disclosure of such information may adversely affect public confidence in defaulting institutions, cannot be a reason for denial of information under the RTI Act. There must be transparency as regards such organisations so that citizens can make an informed choice about them. In view of the same, this Bench is of the considered opinion that even if the information sought was exempted under Section 8(1)(a) or (e) of the RTI Act, as claimed by the PIO, Section 8(2) of the RTI Act would mandate disclosure of the information."

 

He then directed the PIO to provide the information as per records to Shirvalkar in relation to query 1 before 30 November 2011. 

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/A/2011/002033/15493

http://www.rti.india.gov.in/cic_decisions/CIC_SG_A_2011_002033_15493_M_70004.pdf

Appeal No. CIC/SG/A/2011/002033

 

Appellant                                           : Vivek Madhukar Shirvalkar,

                                                            Naupada, Thane (W),

                                                            Maharashtra - 400602

                  

Respondent                                        : Public Information Officer,

                                                            Reserve Bank of India,

                                                            Urban Bank Department,

                                                            Central Office, 1st Floor, Garment House,

                                                            Worli, Mumbai - 400018

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RTI Judgement Series: CBI is not above the law; PIO fined Rs5,000

Elementary principle of abiding by orders given by statutory authorities or Courts cannot be defied by anyone, including CBI, the CIC said, while imposing a penalty of Rs5,000 on the PIO. This is 169th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing a complaint, imposed a penalty of Rs5,000 on the Public Information Officer (PIO) of the economic offences wing (EOW) at Central Bureau of Investigation (CBI), Chennai for failing to comply with the order from the Commission. The CIC had directed to provide information before 20 June 2011, however, the PIO obtained a stay on 13 July 2011.

 

While giving this judgement on 25 July 2011, Shailesh Gandhi, the then Central Information Commissioner said, "Just as citizens are expected to follow, government agencies and their officers are equally bound to abide by all orders which have the sanction of law. Since the PIO has failed to comply with the order of the Commission, without a valid stay, she is liable to be penalized under Section 20(1) of the Right to Information (RTI) Act for the period between 21 June 2011 and 12 July 2011."

 

New Delhi resident PC Srivastava, on 6 July 2010, filed a complaint before the CIC contending that the PIO of CBI has not yet supplied the information as per the Commission's order. On 26 May 2011, the CIC had passed an order in the matter of PC Srivastava vs. PIO and SP, EOW, CBI (Chennai) (CIC/SM/A/2011/000309/SG/12557) directing the PIO to provide the information as available on record on queries 5 and 6 to the Complainant before 20 June 2011.

 

Subsequently, the CIC received a letter dated 20 June 2011 from Srivastava alleging that no information had been furnished by the PIO till date. The CIC registered this letter as complaint in accordance with Section 18(1) of the RTI Act.

 

Mr Gandhi, the then CIC, said, "From the facts before the Bench, it appeared that the PIO had failed to comply with the order of the CIC dated 26 May 2011 and not provided the requisite information within the time limit specified therein. The denial on the PIO's part in providing the information amounted to wilful disobedience of the Commission's order and raised a reasonable doubt that the denial may be mala fide."

 

The Bench then decided to initiate an enquiry in the complaint under Section 12(2) of the RTI Act, and summoned the PIO to appear on 25 July 2011.

 

During the hearing on 25 July 2011, Mr Gandhi noted that Thenmoezhi, the PIO has neither responded to the summons issued by the CIC nor provided any explanation for not furnishing the information to Srivastava in accordance with the Commission's order.

 

However, Srivastava, the complainant, informed the Bench, that a stay has been obtained subsequently on the CIC order dated 26 May 2011 by CBI- the public authority from the High Court of Delhi on 13 July 2011 in (WP (C) 4810/2011). He also requested the Bench to levy a penalty on the PIO for not providing information by 20 June 2011 as per the CIC order.

 

Mr Gandhi said, "Since the CIC's order has been stayed by the High Court on 13 July 2011, no order can be issued as regards the disclosure of information. However, the Bench will consider the complainant's demand for a penalty to be imposed on the PIO."

 

Section 20 (1) of the RTI Act states:

 

"20. Penalties.- Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees:

 

          Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

 

          Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."

 

From a plain reading of Section 20(1) of the RTI Act, it appears that the CIC, at the time of deciding any complaint or appeal, must impose a penalty in the following circumstances:

 

1) Refusal to receive an application for information.

2) Not furnishing information within the time specified under Section 7(1) of the RTI Act.

3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or misleading information or destroying information, which was the subject of the request.

4) Obstructing in any manner in furnishing the information.

 

All the above are prefaced by the phrase, "without reasonable cause".

 

"Therefore, Mr Gandhi said, "if complete information is not furnished without any reasonable cause, the Bench, at the time of deciding any complaint or appeal is duty bound to levy a penalty at the rate of Rs250 each day till the information is furnished."

 

This principle has been relied on by Justice Ravindra Bhat of the High Court of Delhi in Mujibur Rehman vs. CIC in (CWP 3845 of 2007 decided on 28/04/2009). Moreover, as per Section 20(1) of the RTI Act, the PIO shall have to discharge the burden of proving that he acted reasonably and diligently.

 

Mr Gandhi said, "In the instant case, the order of the CIC dated 26 May 2011 clearly stipulated the date i.e. 20 June 2011 within which the requisite information was required to be provided to the complainant. However, despite its clear order, the Bench noted that the PIO did not provide the information to the complainant within the said date. Stay on the CIC order was obtained only on 13 July 2011. Given the same, it prima facie appears that the PIO has flouted the order of the Commission and not provided the information from 21 June 2011 to 12 July 2011. No explanation whatsoever has been provided by the PIO for not complying with the order of the CIC. The PIO has also failed to respond to the summons issued by the CIC."

 

The PIO was required to comply with the order of the Bench, unless a stay has been obtained on such order within the time limit mentioned in the order. "In the present matter, the PIO has provided no reasons for disobeying the order of a statutory authority. It is pertinent to mention that departmental procedures and administrative hurdles or exigencies cannot be used as an excuse for disobeying the order of a statutory authority and consequently denying the citizen's fundamental right to information. At the very least the PIO should have approached the Bench before 20 June 2011 and requested for an extension in time giving reasons. However, the PIO neither approached the CIC nor appeared before the Bench on 25 July 2011. Moreover, no written explanations have been submitted by the PIO before the Bench," Mr Gandhi noted.

 

In this regard, he said, the Bench would like to place reliance on certain pronouncements of the Supreme Court of India. In Prithawi Nath Ram vs. State of Jharkhand & Ors (Appeal (Civil) No. 5024 of 2000), the apex court, in its judgement dated 24 August 2004 observed as follows:

 

"If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible." (Emphasis added)

 

Further, in Prakash Narain Sharma vs. Burma Shell Cooperative Housing (AIR 2002 SC 3062), the Supreme Court has observed that a judicial order, not invalid on its face, must be given effect entailing all consequences, till it is declared void in a duly constituted judicial proceedings. Reliance may also be placed on the observations of Justice SN Variava, in Ghaziabad Development Authority vs Balbir Singh (2004-002- CPJ-0012-SC) case, wherein he stated, “…unless there is a stay obtained from a higher forum, the mere fact of filing an appeal or revision will not entitle a person who is required to pay the penalty to not comply with the order of the lower forum. Even though the person may have filed an appeal or revision, if no stay is obtained or if stay is refused, the order must be complied with. In such cases, the higher forum should, before entertaining such appeal or revision, ensure that the order of the lower forum is first complied with.”

 

Mr Gandhi said, "The law laid down by the Supreme Court, as described above, is the law of the land and must be abided by all. The CBI is not above this law and in the absence of a stay, should have complied with the order of the CIC. Just as citizens are expected to follow this, government agencies and their officers are equally bound to abide by all orders which have the sanction of law.  Without this discipline, no rule of law can prevail. And if a police agency cannot follow this simple principle, it loses the moral authority to ask citizens to abide by its orders."

 

"The PIO's action is in clear violation of the principles laid down by the Supreme Court. Thenmoezhi, the PIO & SP, EOW, CBI (Chennai) has given no reasonable cause for not providing information for 20 days, before a valid stay was obtained on the Commission's order. Since no reasonable cause has been offered by the PIO for not providing the information from 21 June 2011 to 12 July 2011, i.e. for a period of 20 days, the Bench imposes a penalty on Thenmoezhi, the PIO, under Section 20(1) of the RTI Act at the rate of Rs250 per day of delay, i.e. 20X250 = Rs5,000," the Bench said.

 

The CIC also directed the director of CBI to recover Rs5,000 from the salary of Thenmoezhi, the PIO and remit the same to the CIC before 10 September 2011.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SM/C/2011/000782/SG/13656Penalty

http://www.rti.india.gov.in/cic_decisions/CIC_SM_C_2011_000782_SG_13656Penalty_M_63515.pdf

Complaint No. CIC/SM/C/2011/000782/SG

 

 

Complainant                                                 : PC Srivastava,

                                                            New Delhi

 

Respondent                                        : Thenmoezhi,

                                                            PIO & SP,

                                                            Economic Offences Wing,

                                                            Central Bureau of Investigation,

                                                            III Floor, A- Wing, Rajaji Bhawan,

                                                            Besant Nagar, Chennai- 600090

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RTI Judgement Series: Environment ministry asked to display information on its website

Appreciating the positive attitude of the PIOs, the CIC directed them to ensure display of information on the MoEF website as mandated under Section 4 (1) (a) of the RTI Act. This is 168th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing a complaint, directed Public Information Officers (PIOs) of Ministry of Environment and Forests (MoEF) to display information on the website about certain projects as mandated under Section 4 (1) (a) of the Right to Information (RTI) Act.

 

While giving this judgement on 18 January 2012, Shailesh Gandhi, the then Central Information Commissioner said, "Disclosures in accordance with the Section 4 (1) (a) of the RTI Act are crucial to ensure transparency and accountability in institutions. This would reduce the load of RTI Applications being filed with each institution as information would be freely available to citizens and they would not have to apply for it. It further envisages that citizens would be required to specifically ask for information under section (6) only in a few cases. Citizens have been demanding that certain information is essential to them and should be available proactively in form of public notice boards, display boards."

 

New Delhi resident Shibani Ghosh, on 14 November 2011, filed a complaint under Section 18 of the RTI Act before the CIC contending that certain categories of information should be available on the website of the Ministry of Environment and Forests. She also contended that these documents/ details should be available suo moto. Here are points mentioned by her in the complaint...

 

1. Copies of applications and related documents submitted by the Project Proponent while seeking prior environmental clearance, particularly the following documents:

          a. Form 1

          b. Form 1A, where applicable

          c. Draft Terms of Reference suggested by the Project proponent

 

These documents are submitted by the Project proponent in accordance with para 6 of the EIA Notification 2006. This information should be made available on the website of the Ministry of Environment and Forests within 5 days of the Project being placed on the Agenda for discussion by the relevant Expert Appraisal Committee (EAC) to issue Terms of Reference.

 

2. Additional information submitted to the Expert Appraisal Committees by the Project proponent.

 

During the project appraisal stage, on certain occasions, the EACs direct the project proponent to provide certain additional information such as specific reports/studies on certain aspects of the project. This information should be made available on the website as it not only forms a basis of the EACs' recommendations but also allows citizens to verify whether the information provided to the EACs by the project proponent is correct. This information should be uploaded on the website of the Ministry within 10 days of receipt of the information.

 

3. Reports/ studies commissioned by the Expert Appraisal Committees from independent agencies/ sub-committees

 

In some cases, the EACs have either constituted sub-committees or requested independent agencies to submit a report on the project after undertaking a site visit and/or undertaking further analysis of the project. Reports submitted by these agencies/sub-committees including site visit reports should be made available on the website of the Ministry within 10 days of receipt of the reports/studies.

 

4. Following information relating to post-clearance compliance of conditions stipulated in the environmental clearance letter and monitoring of the same-

 

a. Six-monthly compliance reports that are to be submitted to the Ministry of Environment and Forests.

b. Reports of committees, which may have been constituted to monitor the compliance of conditions by the project proponent.

c. With regard to certain projects, the Ministry of Environment and Forests stipulates that certain additional studies/ reports such as mitigation plans have to be done after the clearance has been granted. These studies/ reports should be made available.

 

The afore-mentioned information should be displayed on the website before the 10th day of the following month during which they were received.

 

5. Information relating to the Regional offices of the Ministry of Environment and Forests

 

The Ministry of Environment and Forests has six regional offices in different parts of the country which perform a significant part of the Ministry's functions particularly those relating to site inspection and monitoring. However, not much information relating to the functioning of these regional offices is available on the website of the Ministry.

 

6. General suggestions-

 

a. All information pertaining to one project such as Form 1, EIA reports, public hearing proceedings, minutes of EAC meetings when the project was considered, compliance reports, etc. should be made available at one place.

b. Important sections of the website of the Ministry particularly on the Environmental Clearances and the Forest Clearances are mostly not accessible after official working hours and during weekends.

c. There should be a system to track the movement of an RTI Application. As the Ministry has a centralized system of filing RTI Applications, the Applicant should be able to follow up with the concerned PIO directly.

d. The PIOs should be encouraged to contact the Applicant by email. For instance, applicants who have sent applications through post could be informed that the RTI Application has been received.

 

During the hearing, Mr Gandhi, the then CIC, observed the PIOs showed very positive attitude towards displaying information on the website. It emerges that the Ministry is putting a lot of information on the website, he noted.

 

He then directed the PIO to ensure that following information is displayed on the website of the Ministry:

         

1. Copies of applications and related documents submitted by the Project Proponent while seeking prior environmental clearance, particularly the following documents:

          a. Form 1;

          b. Form 1A, where applicable;

 

2. Additional information submitted to the Expert Appraisal Committees by the Project proponent.

 

3. Reports/studies commissioned by the Expert Appraisal Committees from independent agencies/ sub-committees.

 

4. Following information relating to post-clearance compliance of conditions stipulated in the environmental clearance letter and monitoring of the same-

a. Six-monthly compliance reports that are to be submitted to the Ministry of Environment and Forests.

b. Reports of committees which may have been constituted to monitor the compliance of conditions by the project proponent.

c. With regard to certain projects, the Ministry of Environment and Forests stipulates that certain additional studies/ reports such as mitigation plans have to be done after the clearance has been granted. These studies/ reports should be made available.

 

The Commission directed that these would be uploaded on the website for all projects from 1 April 2012 onwards. 

 

As regards with point-5 the PIO explained their practical problem and therefore it was agreed that the information with the regional office about the monitoring and site visit reports would be implemented from 1 June 2012 onwards, the Bench said.

 

As regards point-6 the PIO explained that since they are not able to host the complete data on the NIC website presently, they would be able to ensure 24x7 website availability only after NIC starts hosting it and this would happen within three months. The PIO stated that the proceedings of the public hearing are displayed by the State Pollution Control Bards on their website and this is a mandatory requirement.

 

Ghosh, the complainant stated that this is often not done.

 

Mr Gandhi, then directed the PIO to issue an order to all State Pollution Control Boards to ensure that the proceedings are displayed regularly on their website within seven days of the issue of the Minutes of the Public Hearing.

 

Section 4 (1) (a) of the Right to Information Act, 2005, which is a mandatory obligation, reads as

"maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated".

 

The CIC said it appreciates that the Department has made improvements and is moving towards better transparency.

 

While allowing the complaint, Mr Gandhi directed the PIO to ensure that details as listed above are displayed on the website of the Ministry before 1 April 2012. The Bench also directed the PIO to send a consolidated report of compliance of the above directions is sent to the CIC by 10 April 2012, with a copy to Ghosh, the complainant. 

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/C/2011/001398/16936

http://www.rti.india.gov.in/cic_decisions/CIC_SG_C_2011_001398_16936_T_74418.pdf

Complaint No. CIC/SG/C/2011/001398

 

Complainant                                     : Shibani Ghosh

                                                            New Delhi 110048

         

Respondent                                        : Sanchita Jindal

                                                            CPIO & Director

                                                            Impact Assessment (IA) Division

                                                            Ministry of Environment and Forests

                                                            Government of India, Paryavaran Bhavan

                                                            CGO Complex, New Delhi 110003

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COMMENTS

CA BRAJESH

4 years ago

Good order

CA Brajesh Agarwal
9818623388(m)

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