NDDB's Subsidiaries Mother Dairy and NDDB Dairy Services Are Covered Under RTI, CVC Acts: Govt
Mother Dairy Fruit and Vegetables Ltd (Mother Dairy or MDFVPL) and NDDB Dairy Services (NDS), the two subsidiaries of National Dairy Development Board (NDDB) are covered under the Right to Information (RTI) Act and Mother Dairy, being a government company, falls under the purview of Central Vigilance Commission (CVC), says the government. 
Responding to a question in the Rajya Sabha the ministry of fisheries, animal husbandry and dairying, says that it has advised NDDB to extend provisions of the RTI Act to its subsidiaries, including NDS.
Prof Manoj Kumar Jha, a member of Parliament (MP) from Rajya Sabha had asked questions about government's opinion on the status of Mother Dairy and diversion of funds by NDDB.
Citing opinion from the solicitor general of India and department of legal services, Dr Sanjeev Kumar Balyan, minister of state for fisheries, animal husbandry and dairying, says, "... in his considered opinion Mother Dairy should qualify under the semi-government’ dairy, if not a fully government dairy as all of its shareholding is government owned. A government company may either be a public company or a private one...MDFVPL, being a government company should fall under the purview of Central Vigilance Commission -CVC Act." 
As Moneylife had pointed out, although government organisations, NDDB and its subsidiaries were skilled at evading queries under the RTI Act. NDDB so far had managed a stay on the applicability of RTI and CVC Act on Mother Dairy.
In an order on 15 April 2011, the Central Information Commission had asked Mother Dairy to appoint a central public information officer (CPIO) and appellate authority (AA) as per mandate of RTI Act. The company, however, challenged the CIC order in the Delhi High Court. On 2 February 2015, the HC dismissed appeal filed by Mother Dairy.
The company, 100% subsidiary of NDDB, then challenged the single bench judgement before the divisional bench of Delhi HC, which on 17 March 2015 stayed the CIC order. 
Dr Balyan, the minister of state, in his written reply in the Rajya Sabha says, "This Ministry vide letters dated 10 December 2018 and 10 July 2019 has taken a view and requested NDDB Board, which owns 100% shares of MDFVPL (Mother Dairy) to suo moto accept the orders dated 15 April 2011 and 2 February 2015 of CIC and Delhi High Court and put the decisions of Mother Dairy in public domain in the interest of transparency, accountability and also to increase trust of consumers. The decision of the Board of NDDB in this regard, is awaited."
Interestingly, the National Stock Exchange (NSE) has taken exactly the same route of challenging both a CIC order and a single judge order of the Delhi High Court before a division bench That case too is pending in the court and allows the NSE to remain outside the purview of the RTI act. (Read: NSE Digs in Its Heels)
Ideally, the ministry concerned or the regulator ought to tell these government organisations to fall in line instead of allowing them to use the slow judicial system and multiple legal challenges to avoid the RTI Act. 
The minister’s statement in parliament ought to be followed up with an order to NDDB to withdraw it appeal in the Delhi High Court and adhere to the provisions of the RTI Act. That would be another battle for RTI activists to take up.  
Moneylife had also written how instead of taking care of farmers through the cooperative movement, NDDB has been busy ensuring the welfare of its retired senior executives through NDS. NDDB Dairy Services was re-incorporated as a not-for-profit company in the very year that it was first incorporated as a private limited and wholly-owned subsidiary of NDDB. Immediately thereafter, the Board transferred Rs199 crore to NDDB Dairy Services, in the form of contribution of capital for purchase of equity of an equal amount.
However, NDDB continued to evade questions under RTI on the Rs200 lying in NDDB Dairy Services as equity and all income accruing thereof. 
Responding to a specific question asked by Mr Jha, the MP, the government says, "NDDB has informed that it has contributed Rs200 crore towards equity of NDDB Dairy Services. The department has asked NDDB to supply a copy of the resolution of NDDB board in this regard, which is awaited. This ministry has advised NDDB to extend the provisions of the RTI Act to its subsidiary companies including NDDB Dairy Services." 
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    1 year ago

    Why MDFVPL (Mother Dairy Delhi) abetted by its owner NDDB is doing a Duck Tuck behind a Delhi High Court interim order about non-applicability of RTI Act and evading the CVC Act?

    1. Mother Dairy finds it impossible to explain why Rs. 190.84 crore of farmers dues were invested in IL&FS by MDFVPL in a callous and irresponsible manner?
    a. MDFVPL has tried to shrug off its accountability by saying the investments in IL&Fs were initiated in February 2016 under the previous Chairman and Managing Director. By implication MDFVPL is stating that Mr. Dilip Rath current Chairman of MDFVPL or Mr. Sanjeev Khanna, ex-Managing Director were never involved? Yet, MDFVPL by its own admission says that “the deposits were for 16 days only”. Since the defaults happened in August/ September 2018 it is irrefutable that only Mr. Dilip Rath and Mr. Sanjeev Khanna, ex-MD along with other nominee Directors of NDDB, including in particular Mr. D Tikku who, barring a small period, has continuously been Director of MDFVPL for the last 19 years since the company was incorporated are directly and wholly accountable. Another implication is that Mr. D Tikku who has a deep and pervasive control over the affairs of MDFVPL, having returned to being Director of MDFVPL, after a short period when Mr. Dilip Rath as MD, NDDB had asked MDFVPL to remove Mr. D. Tikku coincides with the month of February 2016?
    b. MDFVPL’s view seems to show that it had absolutely no internal mechanism of scanning market and media reports about IL&FS and blindly relied only on rating agencies. It also conveys that MDFVPL does not require the current Board of Directors since they claim to only rubber stamp decisions of the previous Chairman and the previous MD? No prudent investor does so and if this has been done in the manner claimed by MDFVPL then there is more than what meets the eye. It was reported that in July 2018 that IL&FS founder Ravi Parthasarathy had stepped down. Media also reported that the first sign of trouble came in June when the SPV tied to IL&FS Transportation Networks Ltd., a group subsidiary, defaulted on its debt obligations and even just before MDFVPL invested in IL&FS in August there were more defaults being reported in the IL&FS empire by the media. All these facts would have been known to any investor and most certainly to the senior management in MDFVPL. However, perhaps to fix responsibility and scuttle any allegations in the matter the MD of MDFVPL Mr. Sanjeev Khanna either chose to quit or was made to quit perhaps even before he wrote that famous SOS letter to PM on 13th February 2019 for getting back MDFVPL’s Rs. 190.84 crore that was sunk in IL&FS as ICD. And now to add insult to Mr. Sanjeev Khanna’s letter, MDFVPL’s latest reply says there are no problems in making farmers payments?

    2. Mother Dairy will no longer be able to evade answering questions about alleged fraud in utilizing contributions received from NDDB in illegally setting up more than 15 subsidiaries and grand-daughter companies, channeling funds into them and making companies disappear
    a. Starting 2000, when NDDB decided that MDFVPL should set up subsidiaries (which were step 2 and step 3 subsidiary companies of NDDB as the holding company), Dr Kurien had already ceased to hold any official or informal position or influence in the affairs of NDDB. Dr Kurien had retired as Chairman of NDDB in 1998. Thereafter, all affairs of NDDB were managed exclusively by the succeeding Chairman Dr Amrita Patel and MD Mr D Tikku who were also the Chairman and lead Director on the Board of MDFVPL.
    b. If MDFVPL (on behalf of Dr Amrita Patel then Chairman of NDDB & MDFVPL and Mr Tikku, then MD, NDDB and Director of MDFVPL) now claims that they shut down MDFVPL’s step 2 and step 3 subsidiaries because Dr Kurien was opposed to it then it is a blatant lie. If they were so concerned about the views of Dr Kurien then why did then not then seek his permission before opening even the first subsidiary of MDFVPL? Why did they secretly open so many subsidiary companies? Why do they now invoke the name of the late Dr Kurien (may his soul rest in peace) when he is no longer around to tell his version?
    c. If Dr Kurien’s version needs to be placed on record, please see this video https://www.youtube.com/watch?v=D__mJtgirrA (specifically from 15.30 minutes to 16.2 minutes) where he asks to go into NDDB and in reply his wife tells him that it will take half a day to get permission for him to go into NDDB and then he scoffs! Thereafter, in his own words, Dr Kurien says, “Many of those I had built turned their back upon me. But that is life”.
    d. The above clip is irrefutable evidence that not only did Dr Amrita Patel and Mr Tikku never care about anything that Dr Kurien said, particularly after he ceased to be Chairman NDDB in 1998, but they reduced Dr Kurien to a person who had to seek permission (with cooling time of half a day) to just enter NDDB, an institution he had founded and built over 33 years.
    e. MDFVPL says all the monies it spent in opening and shutting down its dozen odd subsidiary companies were through its own funds and not those of NDDB? It avoids giving any numbers in this regard. In other words, having utilized money from NDDB to set up operations, received loans, grants, assistance, subsidised dairy commodities and assets, all of which run into hundreds and hundreds of crores, MDFVPL believes it can use its surplus to do what it pleases regardless of the fact that all of that money is owed to and held in trust for and on behalf of its 100% owner which is NDDB? This is bizarre? And yet NDDB further pumped some Rs. 10 crore plus into MDFVPL’s subsidiaries? To what end? MDFVPL’s reply makes light of the opening and closing of the dozen odd subsidiaries, stating that a decision was taken to create such subsidiaries and then a decision was taken to close such subsidiaries? What was the output, what was the outcome, what were the results achieved? Nothing has been said since MDFVPL has perhaps remained perpetually unaccountable?

    3. Mother Dairy will no longer be able to preach the moral high ground and look anybody in the eye if the alleged fraud in utilizing funds of Central Government to set up milk producer companies for dedicated supply of milk to Mother Dairy is exposed
    a. If MDFVPL claims that producer companies are legal entities in their own right why is it that from the setting up of these producer companies to their management and policy, NDDB Dairy Services, a subsidiary company of NDDB has deep, pervasive and complete control? Why is it that the expert directors on these producer companies are all nominated from amongst the current employees of NDDB Dairy Services or ex-employees of NDDB or IRMA, the Chairman of all these three organizations being none other than Mr. Dilip Rath. Not coincidental that the Chairman of MDFVPL is also Mr. Dilip Rath. Is it also co-incidental that previous to Mr. Dilip Rath, the Chairman of NDDB Dairy Services for over 6 years was Mr. D Tikku who was also at that time Director on the Board of MDFVPL? Is it a co-incidence that the MD of MDFVPL is on the Board of NDDB Dairy Services? And is it a coincidence that the majority of the Directors on NDDB Dairy Services comprise the officials mentioned along with at least other nominee Directors who are employees of NDDB --- making Mr. Dilip Rath the omnipotent and complete master of all these organizations? The whole structure and arrangement is conveniently circular (there are better words but they cannot be used here!) and nothing is independent or accountable to a bonafide external entity,
    b. It is in the above scheme of things that MDFVPL carried out this fraud of utilizing hundreds of crores of Central Government funds under the National Dairy plan to create, for MDFVPL, captive (slave) milk procurement organizations called Producer Companies. This is because MDFVPL did not want to purchase milk from dairy cooperatives as they would not be able to have complete hegemony and control on milk purchase to the exclusion of the milk producer in either the management or control of MDFVPL or for that matter even provide a nominal space for the voice of the milk producer in their management. MDFVPL states that the Producer Companies have sold 85 crore litres of milk under their brand cleverly evading and dodging the basic issue that this volume is hardly 20% of the total milk procured by the Producer Companies and that the remaining 80% milk (340 crore litres) which was procured went unbranded (read zero value add) to MDFVPL at cheap prices so that MDFVPL could reap the profits! Why has MDFVPL not provided the specific numbers on the volume and value of milk purchased from dairy cooperatives and others for the last 10 years?
    c. While MDFVPL aligns it selling prices of milk with Amul, which are always highest in the country, it never reveals the prices at which it purchases milk from different channels? Unlike dairy cooperatives, MDFVPL never pays any price difference or bonus for the little milk which it purchases from dairy cooperatives. This makes all the monies which flow from NDDB to MDFVPL to be susceptible to a higher degree of malafide, misuse, and corruption when compared to dairy cooperatives.

    4. Mother Dairy will no longer be able to evade not just the applicability of the RTI Act but also the CVC Act.
    a. An RTI query (and now even a PQ answer by the MOS) has revealed that based on the comments received from the Department of Legal Affairs, the Solicitor General of India has classified MDFVPL as a semi-government organization. MDFVPL too had accepted this classification and demonstrably endorsed this view by using its classification as a semi-government organization to participate in the tender put out by the Government of India for the long term lease of the Delhi Milk Scheme. MDFVPL wants to run with the hares and hunt with the hounds. When it suits MDFVPL they are semi-government, or an off-shoot of a statutory body etc. Otherwise, even as they claim to be a company under the Companies Act, they want to compare themselves with IFFCO, NAFED and KRIBHCO which are not companies but are registered under a total different Cooperative Act.

    5. Mother Dairy will be unable to explain why it is keeping on perpetual lease large office complex of NDDB in Noida at highly subsidized rent.
    a. NDDB needs to comply with the CVC Act. Therefore, MDFVPL built the whole office complex on a turnkey basis for NDDB more than 10 years ago in order that NDDB can evade the applicability of the CVC Act. This by itself is illegal since MDFVPL’s Memorandum of Association and Articles do not have scope to build office buildings. By stating that MDFVPL is paying a lease rent of Rs. 909/- per square feet per month which is about Rs. 2.4 crore per annum and that it is in line with market rates is untrue. Any independent certified valuer will prove that this rate is perhaps 50% or less than the prevailing market rate.

    6. MDFVPL can no longer do a Duck and Tuck strategy to mislead and mis-inform various authorities and individuals about the relevant sections of the NDDB Act under which subsidiaries are formed.
    a. Mr. T Nanda Kumar (IAS retd.) was Chairman of NDDB from 2014 to 2016. In 2014-15, Mr Nanda Kumar (and Mr. Dilip Rath the then MD) felt it fit and proper for NDDB to seek previous approval of the Central Government under section 43(1) of the NDDB Act for NDDB’s step 1 subsidiary company Indian Immunologicals Limited to, in turn, promote a step 2 subsidiary of NDDB called Pristine Biologicals Ltd. Clearly, if the Central Government gave approval to NDDB as the Holding Company for the formation of its step 2 subsidiary company namely Pristine Biologicals in 2014-15 what was the reason that NDDB neither sought Central Government approval, nor the Central Government felt it appropriate to question why NDDB did not seek its previous approval, to spawn a dozen or so step 2 subsidiary companies between 2000-01 and 2009-10 and fund them with large funds that were entirely originating from NDDB? And why did this major illegality not get highlighted by NDDB’s Statutory Auditors during 2000-01 and 2009-10?
    b. Mr. Nanda Kumar’s bonafide actions, contrary to those of his predecessor, was rooted in the legality that since the NDDB Act does not explicitly state the role of the Central Government if NDDB needed to set up step 2 subsidiary companies (i.e. subsidiary companies created by NDDB’s step 1 subsidiaries), the Central Government ought to have insisted that NDDB’s step 1 subsidiaries will not set up further subsidiary companies without previous approval of the Central Government. Further, the Central Government should have mandated NDDB to duly incorporate this condition in the Memorandum of Association and Articles of Association of every step 1 subsidiary company of NDDB.
    c. Also, a well settled principle of law is that if the NDDB Act explicitly states that previous approval of the Central Government is required for NDDB to form a subsidiary company then the converse i.e. the un-forming of the subsidiary company (through sale of equity, winding up, amalgamation, liquidation or otherwise) too requires previous Government sanction. This is where NDDB, and its powers that were, completely and unabashedly vitiated section 43(1) of the NDDB Act by making 14 odd subsidiary companies, either wholly owned or where NDDB was the holding company, simply disappear without any kind of “previous Government approval”. Linked with all this is the financial and institutional implications of this action of NDDB, which objectives of NDDB were the step 2 subsidiary companies meant to implement and how much money of NDDB got funnelled into them? Therefore, it is a fit case for a proper investigation to be carried out by the Central Government and for taking such further actions as may be warranted by law to prosecute all those who violated, misused and abused their positions in NDDB.
    d. Then there is the curious case of Safal National Exchange of India Limited which was set up by MDFPL with a paid up share capital of ₹ 24 crore around 2006. It appears this company never got mentioned in NDDB’s Annual Report merely because NDDB’s subsidiary Mother Dairy Fruit and Vegetable Limited had formed the said Company as a Joint Venture with Financial Technologies India Limited and commodity exchange MCX with the FTIL-MCX combine owning the majority 51% stake and NDDB’s subsidiary holding the rest. The Chairman of FTIL and MCX was Mr. Jignesh Shah who along with his companies such as FTIL came under the scanner of multiple probe agencies including the Enforcement Directorate. In fact, it is reported that by December 2013, the Forward Markets Commission declared FTIL and Mr. Jignesh Shah among others as “not fit and proper” to be shareholder/director in the management or board of any exchange!
    e. Importantly, the registered address of the Safal National Exchange was care of the Mother Dairy, Patparganj Delhi, implying that regardless of its minority shareholding in Safal National Exchange, Mother Dairy Fruit and Vegetable Limited must have had substantial management control duly incorporated in the Joint Venture Agreement. But it was curtains for the exchange on March 31, 2009, barely 18 months from inception. Not surprisingly not only most of its assets but even some of the senior executives of Safal National Exchange were absorbed by Mother Dairy Fruit and Vegetable Limited. Here was NDDB and its wholly owned subsidiary company in a JV with a set of entities that were the subject matter of intense probe by various national agencies and it was wound up like most of the other JVs within 2 to 3 years. Yet nothing about Safal National Exchange’s assets and financial condition ever got reported either in NDDB’s Annual Reports or perhaps in any other formal reporting to Parliament where NDDB’s activities are tabled in fulfilment of the Committee on Papers and the requirements of the NDDB Act. NDDB and Mother Dairy Fruit & Vegetable must have lost tens of crores of rupees in this venture and yet nothing was ever reported?

    It is for all the above reasons that there is a crying need to urgently call for a detailed examination of the above mentioned serious irregularities and illegalities by NDDB which is a Public Institution of National Importance, its subsidiary companies and a proper investigation into the role of the officers who were responsible. Meanwhile, it is settled law as per the Judgement of the Hon’ble High Court of Delhi dated January 27,2010 that CAG has jurisdiction to audit NDDB in a comprehensive manner i.e. both financial audit and performance audit. It is therefore most expedient that CAG be called upon to immediately commence financial and performance audit of NDDB starting from the financial year immediately after Dr. V. Kurien retired as Chairman of NDDB i.e. 1997-98 to the present i.e. 2017-18.



    In Reply to Vyas 1 year ago

    A Government owned Company fighting with Government in Court on interpretation of Government Law as interpreted by Solicitor General of Government on matter of transparency.. ... fighting to be opaque ... NDDB doesnt want to be transparesnt or accountable.

    The Government - who is the owner - directs that RTI be implemented in subsidiaries.... But NDDB Board does not listen.

    The Government owned Company Chairman is appointed by the Government. (Incidentaly who has worked in Government for many years as IAS).

    Still the Government does not understand the intentions and reasons of why NDDB Chairman Rath is resisting all this. Just using the legal system by appointing highly paid lawyers - who are paid from public money to protect that NDDB remains unaccountable.

    Wake up Government.

    Chairman, NDDB it seems thinks he is even above the elected Government of India.


    In Reply to AB 1 year ago

    Legal fees as per NDDB Annual Reports on its web site have gone up from Rs 12 lakh in 2010-11 to Rs 1.26 crore in 2017-18. Just factual data.

    What is Mother Dairy and other subsidiaries paying? will be a question mark as they not covered under RTI.

    CIC slams DoPT for discrediting itself as RTI implementing agency
    Despite the Supreme Court having ordered transparency in the appointments of information commissioners, the Department of Personnel & Training (DoPT), which is also the implementer of the RTI Act, stonewalled information on this issue; only to be admonished by the Central Information Commission (CIC), which has ordered it to provide the details sought under RTI.
    CIC Divya Prakash, in his order, observed that  “. . . this kind of conduct amounts to stonewalling RTI applications and stifling the very letter and spirit of the RTI Act . By resorting to such unwarranted opacity, DoPT is setting a bad example for other public authorities and at the same time is discrediting its own footing as the nodal agency for the implementation of the RTI Act.’’
    While warning the CPIO of DoPT not to take the RTI applications so casually, he also observed in his order that,  “It is also ironic that the information that has been denied in the instant case pertained to the appointment of information commissioners under the RTI Act, who are ordained with the statutory authority of securing the regime of transparency.’’
    Information sought under RTI, relates to two complaints to the CIC made by the Delhi based RTI activist, Lokesh Batra, after the CPIO failed to provide information, citing the rejection clause in the Act.
    Batra requisitioned from the DoPT, certified copies of all communications (in the available format) between DoPT and PMO, concerning the appointment of information commissioners (ICs) in the CIC and; secondly, he sought certified copies of communication(s) seeking approval from PMO, regarding the framing of RTI Rules, 2017.’’
    In his reply, the CPIO replied that the matter related to the appointment of ICs in the CIC is under process and so, as per Section 8(1)(i) of the RTI Act, 2005, “the information cannot be given at this stage.’’ 
    Batra rued that despite the DoPT being the nodal agency for implementing the provisions of the RTI Act, the blatant application of exemptions of Section 8 by its CPIOs is akin to stalling RTI requistions.” 
    Batra appealed to the CIC to take strict action against the CPIO and consider imposing penalty on him.
    At the CIC hearing held recently, CIC Divya Prakash Sinha asked Sanjay Kumar, under secretary & CPIO of DoPT, for justification for the denial of information under Section 8(1)(i) of RTI Act. He passed the buck to the earlier CPIO, Preeti Khanna, (under secretary & CPIO). She had replied to Batra that the process of appointment of CIC and ICs was underway at that time. In addition, the documents, asked for by Batra, were to be submitted to the search committee (committee of secretaries); subsequently, it was to be submitted to the committee chaired by the prime minister, leader of the opposition and a union cabinet minister. 
    The CIC ruled that the both the CPIOs’ reasons for denying information appears 'incoherent' and  “does not convey any substantial justification for invoking Section 8(1) (i) of RTI Act.’’ CIC has slammed both the former and present CPIO on “their sheer evasiveness and non-application of mind in dealing with the instant RTI application.”
    Admonishing the then CPIO for invoking Section 8(1)(i) of the RTI Act without assessing its applicability, he warned the present CPIO against mindlessly endorsing the reply of the then CPIO.
    The RTI Act 2005, Section 8(1)(i) reads :
    cabinet papers including records of deliberations of the council of ministers, secretaries and other officers:
      Provided that the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: 
    Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; 
    Batra argues:
    • Under Section 12(3) of the RTI, Act, 2005; the selection of chief information commissioner and information commissioners in CIC, are made by the President based on the recommendations of committee consisting of the PM, the leader of opposition in Lok Sabha and a union cabinet minister to be nominated by the prime minister.
    • On the other hand, the cabinet papers are prepared for the union cabinet’s  consideration and approval, while that is not the case with process of selection and appointments of information commissioners in the CIC.
    • It makes it abundantly clear that documents concerned with the selection / appointment of information commissioners are in no way ‘cabinet papers’ as stated by the CPIO for exemption under Section 8(1)(i) of the Act.
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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    1 year ago

    Nice work, madam.

    CIC Asks MHA to Provide Details of Mercy Plea to Mother of A Death-Sentenced Convict under RTI
    The central information commission (CIC) has asked the Union ministry of home affairs (MHA) to provide the mother of a death row convict lodged at Pune’s Yerawada Central Jail, file notings, relating to his mercy petition, but by making opaque the names of officials who have noted on those files, to guard their personal safety.
    Ujwala Kokde had filed an RTI application with the central public information officer (CPIO), judicial division, in the MHA seeking information pertaining to the mercy petition of her son, Pradeep Kokde, who is facing death sentence. The information she sought comprised (i) copy of any memo/note/comment made in relation to the mercy petition filed by Pradeep Kokde, (ii) copy of the entire mercy petition file of Pradeep Kokde, and (iii) copy of the file notings pertaining to the file of the mercy petition filed by Pradeep Kokde.
    The CPIO denied information on the ground under Article 74(2) of Constitution of India, which states that, “the question whether any, and if so what, advice was tendered by ministers to the President shall not be inquired into in any court.” 
    She filed her first appeal with the first appellate authority (FAA) of the MHA but did not receive any response and so filed a second appeal with the CIC.
    At the CIC hearing on 11 June 2019, Ms Kokde was represented by Ragni Ahuja through video conferencing. He stated that the CPIO denied Ms Kokde information under Article 74 (2) of the Constitution of India but this reason is invalid as the information she has sought does not pertain to any ministerial advice, which is protected under Article 74(2) of the Constitution.
    Mr Ahuja further stated that the material including file noting and correspondence on which the advice is based is not privileged and hence, not covered under the Article 74 (2). 
    Quoting two cases, he stated that the Supreme Court, a seven judge bench in one case and a nine judge bench in another, had not only allowed notings made by high constitutional functionaries but in one of the cases, directed CIC to provide complete information requisitioned under RTI.
    The CPIO, at the hearing, insisted that the ministerial advice, opinion and recommendation is made to the President on the basis of the documents, i.e. file noting, petition and letters and, hence, the same are privileged under Article 74 (2) of the Constitution of India and cannot be disclosed under the RTI Act.
    Sudhir Bhargava, the chief information commissioner (CIC), who was hearing the second appeal, passed an order stating that the MHA should provide all the file notings asked for by Ms Kokde but by scratching off all the names of the officials who have noted in the files, for their personal safety. 
    His order of 12 June 2019, states: “the file noting and correspondence received or sent by the ministry of home affairs pertaining to the appellant’s mercy petition which is not a part of the ministerial advice to the President as well as the file noting relating to the file of the mercy petition file by Shri Pradeep Yeshwanth Kokde as sought by the appellant (Ms Kokde) can be provided to the appellant.”
    “The Commission, however, observes that the file noting and the correspondence could contain the names of the officials recording the same, the disclosure of which would endanger the life or physical safety of these officials and hence its disclosure is exempted under Section 8(1)(g) of the RTI Act. In view of this, the Commission directs the respondent to provide the information sought for, after severing all the names and other references which could reveal the identities of the public officials concerned, to the appellant…”
    It may be noted that Ms Kokde filed her RTI application on 13 July 2017 with the CPIO in the MHA; her first appeal on 22 August 2017 with the FAA, MHA and her second appeal on 21 December 2017 with the CIC at Delhi. However, the second appeal’s hearing, that is the CIC hearing came up one year, 11 months later, that is on 11 June 2019!
    One of the court orders that CIC Bhargava cited to come to his decision, revolves around a court judgment. It mulls over which of the public interest is larger – whether the disclosure will cause unwarranted invasion of privacy or needs to be disclosed for larger public interest:
    “Moreover, regarding the documents/material which do not form a part of the advice and the consequent disclosure of the same in the interest of justice, the Hon’ble Delhi High Court in Union of India vs. P.D. Khandelwal case [W.P. (C) 8396 of 2009, judgment dated 30.11.2009] had also held:
    34. Possibly the only class of documents which are granted immunity from disclosure is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong.
    Other documents and information which do not fall under Article 74(2) of the Constitution cannot be held back on the ground that they belong to a particular class which is granted absolute protection against disclosure. All other documents/information is not granted absolute or total immunity.
    Protection from disclosure is decided by balancing the two competing aspects of public interest, i.e., when disclosure would cause injury or unwarranted invasion of privacy and on the other hand if non-disclosure would throttle the administration of justice or in this case, the public interest in disclosure of information. In such cases, the court/CIC has to decide, which of the two public interests pre-dominates.”
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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