CIC: The Secretary, Ministry of Health & Family Welfare to examine the at an appropriate forum in respect of the implementation of PC&PNDT Act as also the FORMS which are to be filled in following IVF procedure in the larger public interest

O R D E R

FACTS:

The Appellant vide his RTI application sought information on 02 points regarding the details of Forms which have to be filled during IVF procedures, power of District Authorities to make their own rules to implement PC & PNDT Act, etc.

The CPIO, vide its letter dated 22.05.2018 provided a point-wise response to the Appellant. Dissatisfied with the response, the Appellant approached the FAA. The FAA, vide its order dated 26.06.2018, stated that the available information had already been provided to the Appellant well within the stipulated time limit and in the right manner. However, in addition, it was informed that after an advisory issued vide letter no. dated 09.10.2014, no further advisory superseding the previous was issued.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Dr. Rajnikant (Contractor) through VC;

Respondent: Absent;

The Respondent remained absent during the hearing despite prior intimation. The Appellant reiterated the contents of the RTI application and stated that clear, cogent and precise information was not provided to him, till date. He had specifically sought for the details of the FORMS which need to be filled/not filled in IVF procedure which was not clearly responded by the CPIO/FAA. It was further informed that in many States / District Authority, they demand to fill FORM F, E, D and G in various IVF procedure even when the patient is not pregnant at all and therefore, he desired to know the provisions/Rules of PC&PNDT Act, under which they were empowered to get these FORMS filled. Furthermore, he submitted that the provisions of the PC&PNDT Act were not followed by many States as well as the District Authority. It was informed that he is an Ex-member of CSB, PC&PNDT Act and Chairperson of National Infertility and ART Bill and PC & PNDT Committee and that it is his legal duty to protect innocent IVF specialist from wrong implementation of ART-PC&PNDT Act by the State Authority and therefore, it was requested to the Commission to take necessary action in the matter.

The Commission was in receipt of a written submission from the Respondent dated 05.02.2020 wherein the contents of the RTI application, reply/order of the CPIO/FAA were reiterated. The Commission noted that a similar matter was heard and adjudicated by it in Appeal No. CIC/YA/A/2014/000793 dated 29.07.2015.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:

35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

With regard to larger public interest involved in the matter, the Commission referred to the decision of the Hon’ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term “Public Interest” it was held as under:

“22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)].”

The Hon’ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of “public interest’:

“Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus: "Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."

In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows : Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government....”

In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon’ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :

“.............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country...........”

Every action of a Public Authority is expected to be carried out in Public Interest. The Hon’ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:

“Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest.”

Similarly, the Hon’ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:

“Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge.”

The Respondent was not present to contest the submissions of the Appellant or to substantiate their claims further.

DECISION:

Keeping in view the facts of the case and the submissions made by the Appellant and in the light of the criticality and sensitivity of the subject matter, the Commission advises the Secretary, Ministry of Health & Family Welfare to examine the suggestions made by the Appellant at an appropriate forum in respect of the implementation of PC&PNDT Act as also the FORMS which are to be filled in following IVF procedure in the larger public interest.

The Appeal stands disposed accordingly.

(Bimal Julka)

 (Chief Information Commissioner)

Citation: Dr. Rajnikant (Contractor) v. Ministry of Health & Family Welfare (PNDT Section) in Second Appeal No.:- CIC/MH&FW/A/2018/149642-BJ, Date of Decision : 23.03.2020