CIC: the correspondence between Executive Head of State & leader who staked claim to form the Government could not be disclosed when the decision is still in the process; Appointing a Chief Minister of a state is an open public activity
19 Mar, 2015Summary: Section 8(1)(c) Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; 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. Six judges of a 7member Bench in Bommai (1994) case 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.
In SP Gupta (1982) case, the SC held: The Government’s privilege to withhold disclosure of documents was considered as subject to the right to information of the individual.
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. The exemptions codified under Section 8(1) include only legislative privilege but not any other privilege as a ground for denial of information. Section 8(1)(c) Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; is also subject to the proviso at the end of Section 8(1) which should be read as a proviso for all exemptions. That proviso says: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The Law makers (the Parliament) intended to create a yardstick at end of listed exemptions which measures the possibility of disclosure of information. That test is, whether it can be given to legislature or not. An MLA or MP can seek the correspondence as sought under this appeal. Then another general qualification or test the nondisclosure should pass through is under Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. which, as discussed above, cannot be invoked for nondisclosure, but can come to the aid of disclosure.
Heard on 15.12.14. Appellant present. Respondent is represented by Shri J.P.Kothari and Shri Rakesh Gupta.
2. The appellant has filed RTI application for seeking
(1) copies of all communication made between Lt Governor and Mr. Arvind Kejriwal, Central Government, Commissioner of Police & Advocate General or Solicitor General in connection to Khirki Extn. Episode, Sagarpur till date of providing information;
(2) correspondence , emails, and other forms of communication exchanged between the Lieutenant Governor or his office and the Central Government (President, Prime Minister, Home Minister etc) or their offices together with certified copies of the connected files and file notings
(4) and communication between Lieutenant Governor and Advocate General or Solicitor General of India since 8.12.2013 to the date of providing information. He also sought (3) communication between LG and Commissioner of Police in connection with matters raised by the Council of Ministers eg Khriki Extn episode and Sagarpur etc.)
3. The CPIO on 26.3.2014 claimed the exemption of section 8 (c) of RTI Act on point no 1,2 & 4 and on point no 3 stated that no correspondence has been made between the Lt Governor and Commissioner of Delhi police. Being unsatisfied with the CPIO reply, the appellant made first appeal on 8.4.2014. FAA on 5.5.2014 disposed off the matter by stating that necessary action has already been taken by the PIO. Being unsatisfied with the FAA order, the appellant made second appeal before the Commission.
4. During the hearing, Respondent reiterated that it would cause of breach of privilege but did not explain how it would cause breach of privilege of Parliament, in spite of repeated questions from the Commissioner.
5. Appellant contended before the CIC that the government could not claim any privilege because Mr Arvind Kejriwal is no more a chief minister and the correspondence need not be a confidential. Moreover request for information has nothing to do with decision making process by the Hon’ble Lieutenant Governor at present. Under no stretch imagination the correspondence sought in this RTI request can attract any cover of privilege.
6. There is no absolute bar on its disclosure if disclosure serves public interest and nondisclosure would affect public interest.
Privilege no defense
7. Section 8(1)(c) Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; 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).
Communication under Article 74
Except to legislature, the Right to Information Act, 2005 does not accord any privilege to any other authority to deny communication. The situations prescribed under the Act. Article 74(2) of the Constitution of India prohibits the courts from inquiring into the question ‘whether any and if so what advice was tendered by Ministers to President’. Even here there is no bar against citizen from seeking such information. The question before Commission is: even if we assume that the information sought by the appellant would be such information like advise rendered or material sent by the executive to the Governor, will be there be any restriction on disclosure of such information based on ‘privilege’, as claimed by the respondents? We need to examine certain land mark decisions of the Supreme Court in which ‘right to information’ was recognized besides upholding the power of judicial review of executive action.
8. 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.
9. Six judges of a 7member 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:
10. 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.
11. Assuming for a moment that this communication is privileged, such ‘privilege’ is not expressly provided as ground for rejection of request for information under Section 8(1). Under Section 8(1) information, disclosure of which would cause of breach of privilege of Parliament or State Legislature cannot be given. The information sought has nothing to do with the privilege of Parliament or State Legislature. 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) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. comes to the aid of disclosure.
Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. says “…a public authority may allow access to information if public interest in disclosure outweighs the harm to the protected interests”.
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) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. 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.
No bar against scrutiny of material before President: SC
12. The Supreme Court in Bommai case (1994 SCC (3), 1) held that Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President has arrived at his satisfaction for issuing the Proclamation under Article 356(1). In Bommai case it was contended that Article 74(2) bars the inquiry into advice tendered by Council of Ministers to the President. Supreme Court held that although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The material on the basis of which advice was tendered does not become part of the advice.
Plea of privilege under Evidence Act
13. This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act, 1872. As and when such privilege against disclosure is claimed, the Courts will examine such claim within the parameters of the said section on its merits. In a matter under RTI, that privilege was not prescribed as ground of exemption.
Section 123 in The Indian Evidence Act, 1872
123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
124. Official communications.—No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
14. Section 123 deals with restricted immunity from giving evidence from unpublished official record. This also is subject to permission which again is based on discretion. There is no absolute immunity. This part of Evidence Act will not prevent disclosure. Section 124 offers immunity to public officer from being compelled to disclose communication in a limited way. He has to establish possibility of public interest suffering by such disclosure. This is an exception to the principle of accessibility to public records as envisaged under Sections 73 and 74 of Evidence Act. Anyway the Right to Information overrides Evidence Act, 1872 also by virtue of Section 22 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 in any instrument having effect by virtue of any law other than this Act. Even otherwise, public interest is the determining factor under both the laws – Evidence Act and RTI Act.
15. 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.
16. The exemptions codified under Section 8(1) include only legislative privilege but not any other privilege as a ground for denial of information. Section 8(1)(c) Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; Notwithstanding anything contained in this Act, 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; is also subject to the proviso at the end of Section 8(1) which should be read as a proviso for all exemptions. That proviso says: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The Law makers (the Parliament) intended to create a yardstick at end of listed exemptions which measures the possibility of disclosure of information. That test is, whether it can be given to legislature or not. An MLA or MP can seek the correspondence as sought under this appeal. Then another general qualification or test the nondisclosure should pass through is under Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. which, as discussed above, cannot be invoked for nondisclosure, but can come to the aid of disclosure.
17. The Commission after hearing the submissions requires the PIO to provide the information as sought as available to the points 1, 2, and 4 of the RTI application by 15th January, 2015.
18. The appeal is disposed with the above direction.
(M. Sridhar Acharyulu)
Information Commissioner
Citation: Rakesh Agarwal v. Lt. Governor Secretariat in Case No. CIC/SA/A/2014/000836