The High Court has ruled that correspondence between Lt Governor of Delhi and Arvind Kejriwal, the then CM, is privileged
On 4th February the Delhi High Court ruled against the Central Information Commission (CIC) order of 31 December 2014, which had directed Delhi’s Lieutenant Governor’s Secretariat to provide information sought by applicant Rakesh Agarwal of correspondence between the Lt Governor and the then Chief Minister Arvind Kejriwal by 15 January 2015.
A
report from DNA says, “It has said in the instant case, RTI applicant Rakesh Agarwal has sought information which is ‘advice’ rendered by the Council of Ministers and thus, ‘is barred from any form of judicial scrutiny’.” The LT Governor’s secretariat had gone to the Delhi High Court after the CIC order. The Delhi High Court order has asked the applicant to submit his response on the next date, which is 1st May.
Central Information Commissioner Prof M Sridhar Acharyulu, in his order of 31st December (hearing was on 15th December) has clearly stated that correspondence between Governor and CM does not fall in the category of exemption. He writes in his order:
“Section 8(1)(c) of the RTI Act says there shall be no obligation to give any citizen information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature. An example for this could be refusal to give information or document which contains words or sentences expunged by Speaker, which quite legal as per this exemption. A correspondence between Governor and CM would not fall under this category. This exemption is subject to proviso added at the end of Section 8(1) and (2). Except to legislature, the Right to Information Act, 2005 does not accord any privilege to any other authority to deny communication.”
CIC has further stated that, “The Correspondence between Executive Head and a Political Leader regarding appointment of Chief Minister is not privileged correspondence as per any provision of the RTI Act or Constitution of India. The Correspondence between the leader of AAP at that time and the Lieutenant Governor is about formation of Government, as sought by the appellant is now the history and the documents are related to a page in that history. The respondent could not adduce any reason to withhold such information. Many past Presidents and prominent persons wrote books wherein the correspondence between the President and Parliamentary Party leaders or coalition group leaders were quoted and discussed. Appointing a Chief Minister of a state is an open public activity.”
Applicant Rakesh Agarwal had filed a RTI application seeking copies of all communication between Lt Governor and Arvind Kejriwal; communication between Lt Governor and the President, Prime Minister’s Office (PMO) and union Home Minister; and communication between Advocate General or Solicitor General of India. The Chief Public Information Officer (CPIO) of Lt Governor’s Secretariat claimed exemption of information under Section 8 (C) of the RTI Act. Agarwal went into first appeal in April 2014 but the Appellate Authority upheld PIO’s decision not to provide the information. He filed second appeal with the Central Information Commission.
The representative of the Lt Governor’s secretariat, Kotharia, argued during the CIC hearing held on 15th December 2014, that providing such information would be ‘breach of privilege’. Agarwal countered that since Kejriwal is no more the CM, it need not be confidential and that ‘request for information has nothing to do with decision making process by the Lt Governor’.
The CIC stated in its order, “The Correspondence between Executive Head and a Political Leader regarding appointment of Chief Minister is not privileged correspondence as per any provision of the RTI Act or Constitution of India. It is not information given in fiduciary relationship. Assuming again for a moment that disclosure of such information would cause harm to ‘protected interest’, Section 8(2) comes to the aid of disclosure.
Section 8(2) says
“...a public authority may allow access to information if public interest in disclosure outweighs the harm to the protected interests”.
The CIC also remarked “Appellant is not seeking to know the advice rendered by Chief Minister to LG or LG's instructions to CM if any, which if sought, the respondent authority might find some reason to raise the questions of privilege. The Correspondence between the leader of AAP at that time and the Lieutenant Governor is about formation of Government, as sought by the appellant is now the history and the documents are related to a page in that history. The respondent could not adduce any reason to withhold such information. Many past Presidents and prominent persons wrote books wherein the correspondence between the President and Parliamentary Party leaders or coalition group leaders were quoted and discussed.
"Appointing a Chief Minister of a state is an open public activity. It is also not the case of respondent that the correspondence between Executive Head of State and leader who staked claim to form the Government could not be disclosed when the decision is still in the process. That phase is over. It is no more the context at all. No harm would cause to any interest whether public interest, protected interest or interest in protecting the communication. Respondents did not make any case to show that disclosure of information would cause breach of privilege of Delhi Legislative Assembly or would affect any public interest."
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| | | The CIC cited certain landmark decisions of the Supreme Court in which `Right to Information was recognized. | | | The order states...
"In case of SP Gupta vs Union of India, AIR 1982 SC 149, the apex Court held that while the exact advice given by the Council of Ministers to the President could not be examined by the court, the material on which such advice was based was not excluded from the judicial purview." | | | | "Six judges of a seven member Bench held that no privilege could be claimed with respect to the documents which constituted the material for forming opinion in the case of appointment and transfer of judges. Further immunity against disclosure claimed under the Section 123 of the Indian Evidence Act was not a Privilege, which could be waived by the State. It is an immunity, which was granted in order to protect public interest. Therefore, even if the State did not claim such immunity, it was the duty of the court to make sure that no document, the disclosure of which would harm public interest, was disclosed. The Court had to balance public interest in fair administration of justice against the public interest in the confidentiality of certain documents. Judicial discretion would be exercised so as to promote maximum openness and limit secrecy to the minimum.” | | | Right to Information upheld in 1982 by apex court:
"The Supreme Court finally gave a statement which gave life to the 'Right to Information' and removed the curtains of secrecy. ...where a document was withheld, a court could examine it, and only when it was convinced that its disclosure would prejudice public interest, could it allow such action. The Government's privilege to withhold disclosure of documents was considered as subject to the right to information of the individual." | | | As per the Supreme Court's dictum, the executive can claim protection to a document for protecting public interests or in other words, the executive should show public interest in claiming immunity from obligation of disclosure or public interest in not disclosing. There was no such attempt in this case. Thus, the Commission neither finds any justifying nondisclosure of what the appellant sought nor any public interest in protecting it. There is nothing to show that any interest would be protected by nondisclosure or any other protected interest would be harmed by disclosure. Section 8(2) of RTI Act, will come to the rescue of the appellant, as disclosure would not harm any protected interest and in fact, public interest in its disclosure would outweigh the probable harm, if any, to protected (if at all protected) interests." | | |
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(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”.)
