In its decision No.CIC/SG/A/2012/ 001308/19379, the CIC had directed the MEA to transfer the RTI application to the Indian National Group of Permanent Court of Arbitration for providing information to the appellant - CIC: PCA is not a public authority
13 Nov, 2015ORDER
Facts
1. The complainant filed an application dated 12.01.2012 before the Central Public Information Officer (CPIO) in the Ministry of External Affairs (MEA) seeking information under the Right to Information Act, 2005 (the Act) on 23 points inter alia pertaining to the nomination of a candidate from India for appointment to the International Court of Justice (ICJ), information about the India chapter of the Permanent Court of Arbitration (PCA) and its role in sending information for India’s candidature at ICJ, mode of selection of members of PCA from India, information on approval of any other authority for recommendation made to the India chapter of PCA for a post at ICJ, etc.
2. The CPIO responded by a letter dated 08.02.2012. The appellant filed first appeal on 15.02.2012, which was disposed of by order dated 13.03.2012. The appellant filed a second appeal in this Commission on 26.04.2012, which was registered as case No. CIC/SG/A/2012/001308.
3. This Commission, in its decision No.CIC/SG/A/2012/ 001308/19379 dated 27.06.2012, disposed of the second appeal and directed the Union Ministry of External Affairs (MEA) to provide the information on certain points and also to transfer the RTI application to the Indian National Group of Permanent Court of Arbitration (PCA) for providing information to the appellant in respect of points 7, 9, 12 and 13 in the RTI request as per the provisions of the Act.
4. The respondent No.1 by a letter dated 08.08.2012 intimated this Commission that as per aforesaid direction dated 27.06.2012, the RTI application was transferred to the PCA through a message dated 02.07.2012. Shri B. Sen, the then Member of the PCA responded by a letter dated 26.07.2012, copy of which has been forwarded to this Commission by the respondent No.1. In this letter, Shri Sen referring to this Commission’s said order, stated that the Members of the Indian Group of the PCA are not a public authority and requested to withdraw the direction dated 27.06.2012 to the extent to transfer the RTI application to the PCA.
5. As the complainant did not receive any information from the respondent No.2 herein, he filed a complaint dated 16.08.2012 under section 18 of the Act before this Commission. In this complaint, he has requested for giving a direction to the respondent No.2 to provide the requested information free of cost. He has also requested to initiate penalty proceedings apart from providing him adequate compensation under section 19 (8) (b) of the Act.
6. This Commission in its order dated 31.12.2014, directed that a notice be sent to the relevant department/division of the Ministry of External Affairs to present its case in the matter before this Commission. This Commission in its order dated 09.02.2015 decided to discuss the issue whether the Indian National Group of PCA is a “public authority” under the Act. Accordingly, a notice dated 02.03.2015 fixing the date of hearing as 18.03.2015 was issued to both the respondents.
Hearing
7. The complainant and the respondent no. 1 participated in the hearing personally. The respondent no. 2 did not participate in the hearing.
8. The complainant stated that in response to his RTI application, the respondent No.1 had not provided the information taking a plea that the process of identification and appointment of the Indian nominee to the International Court of Justice (ICJ) was going on and that attracted the provisions of section 8(1) (a) of the Act. The complainant stated that now selection process is over, therefore, the information sought can be provided to him. He further stated that since all external affairs of the country are handled by the respondent No.1, they are under an obligation to make available the desired information to him.
9. The complainant further stated that the Indian National Group of the PCA performs important public duties in the public interest and contributes to the process of identification and appointment of the Indian nominee to the ICJ. He cited the judgement of the Supreme Court in the matter of Sukhdev Singh vs. Bhagatram (1975)1 SCC 421 and the judgement dated 10.03.2015 of the High Court of Delhi in W.P.(C) 1041/2013 Subhash Chandra Agrawal vs Office of the Attorney General of India wherein the court considered the meaning of “authority”.
10. The complainant further stated that the nature of works done by the Indian National Group of the PCA is clearly public function irrespective of the funding parameters. The group is carrying out public functions. The complainant further stated that as per reply to point no. 8 provided by the respondent no.1, the selection of PCA members is done by Member States. As such, India chapter of PCA is body constituted by the Government of India, therefore, it must be treated as public authority under the Act. He further submitted that the respondent no. 2 was defying this Commission’s order dated 09.02.2015 by not appearing during the hearing.
11. The complainant said that this Commission should exercise its powers of the civil court under section 18(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:- (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. of the Act and summon the Indian National Group of the PCA along with all documents to appear before this Commission.
12. The respondent no. 1 stated that the Indian National Group of the PCA had submitted a letter dated 26.07.2012 explaining why they are not a ‘public authority’ under the purview of the Act. In this letter, Shri B. Sen, stated inter alia that the PCA was established under the Convention for the Pacific Settlement for International Dispute adopted in the year 1907. Article 44 of this Convention provides that each contracting power selects four persons of known competence in questions of international law of the highest moral reputation and disposed to accept the duties of arbitrator. The persons, thus, selected are inscribed, as Members of the Court in a list which is notified to all contracting powers. The same person can be selected by different powers. In accordance with the Statue of ICJ they constitute national groups for nominating candidates for election as judges of the International Court of Justice. The request for nomination of members for election to the ICJ is directly made to the members of group by the Secretary General of the United Nations and the National groups also communicate with the United Nations in this regard. The members of the Indian National Group in the Permanent Court of Arbitration do not receive any emolument or expenses or any other benefit from the Government of India in any manner. Therefore, Indian National Group of the PCA is not a public authority under the purview of the Act. He has further requested to withdraw the direction of this Commission dated 27.06.2012 to the extent to transfer the RTI application to the PCA.
13. The respondent no. 1 further stated that in response to the notice of hearing on 18.03.2015 Shri Sen sent a letter dated 15.03.2015 stating that his term as a Member of the PCA has expired more than two years back in September 2012. He stated that the written submission made vide letters dated 26.07.2012, 25.08.2012, 20.07.2013 and 08.12.2014 to the Commission have not been taken note of while passing the orders or issuing the notice by this Commission.
14. The respondent no. 1 further stated that under Articles 4, 5 and 6 of the Statute of the ICJ, the nomination of candidates for election to ICJ are made by National Group in the PCA. The Government of India does not recommend candidates for nomination to the ICJ. The respondent no. 1 further stated that the points mentioned by the Indian National Group of the PCA are sufficient and convincing to say that they are not a public authority under the Act.
Discussion
15. The Member of the Indian National Group of PCA in the communications dated 26.07.2012, 25.08.2012, 20.07.2013, 08.12.2014 and 15.03.2015 had submitted that the Group is not a legal entity and that the Group is not a public authority within the purview of the Act. It has been further mentioned that no Member of the Group receives any emoluments, expenses or any other benefit from the Govt. of India. In its functioning, the Group neither takes any instructions nor reports to the Govt. of India. The Govt. of India does not have any supervisory function over the working of the Members of the Group which may relate not only to matters relating to India but also of other countries. The Group considers the requests from prospective candidates from other countries as well as their governments and considers nominating them as nonofficial candidates for election to the ICJ. In respect of nomination of candidates for the ICJ, it communicates directly with the Secretary General of the UNO and not with the Government of India. The role of Government of India comes in, in cases where the Group nominates an Indian candidate and the Govt. of India decides to extend diplomatic support for election of that candidate. The work of the Group is of an international character and involves relations between countries.
16. From the above, it may be said that the Group is the driver of the process for nominating a candidate from India for appointment to the ICJ. However, the respondent no.1 does not recommend candidates but is at liberty to forward the names of potential candidates for consideration of the Group for nomination to the ICJ. After the nomination by the Group, the respondent no.1 canvasses in favour of the election of the candidate for which the Government of India will be depending on the outside agencies/circles for getting feedback or inputs about the Indian candidate. Therefore, certain information pertaining to the recommendations of the Group and regarding the canvassing of a candidate would be available with the respondent no.1.
17. This Commission, in the aforesaid order dated 27.06.2012, inter alia, observed as under:
“ As regards queries 07, 09, 12 & 13 the PIO states that this information is not available with MEA. From the submissions of the PIO, the Commission concludes that there may be a possibility that this information may be available with the Indian National Group of Permanent Court of Arbitration (PCA). The Commission understands from the PIO that the National Body of the PCA actually nominates India’s representative for the International Court of Justice and it was also admitted that the Country canvasses for the candidate. The Commission asked the PIO about the structure of PCA and its Constitution. PIO revealed that the same has been explained in detail in CPIO’s reply. It has been stated that MEA has no official knowledge about whether Indian Chapter of PCA is a Public Authority or not under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act.”
The PIO was directed to transfer the RTI application along with a copy of this order to Indian National Group of Permanent Court of Arbitration (PCA) before 05 July, 2012. The Indian National Group of Permanent Court of Arbitration (PCA) was directed to provide information to the appellant on query 07, 09, 12 & 13 as per the provisions of the RTI Act.
18. When the directions to transfer the RTI application to the Group were issued on 27.06.2012, it appears that this Commission was under the impression that the Group is a public authority within the purview of the Act.
19. The following issues emerged in this case:
(a) whether the Indian National Group of PCA is a public authority under section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the Act; and
(b) whether the requested information may be directed to be provided, if the same is available with the respondent no. 1.
20. Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the Act is reproduced below:
"public authority" means any authority or body or institution of self government established or constituted(a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) nongovernment organization substantially financed, directly or indirectly by funds provided by the appropriate Government;”
From the above discussion, it may be said that the Indian National Group of the Permanent Court of Arbitration (PCA) is neither a legal entity nor is it under the control of the Government. It also does not receive any funding from the Government.
Decision
21. The Indian National Group of the Permanent Court of Arbitration (PCA) is not a public authority under the purview of the Act.
22. The respondent No.1 is directed to provide to the complainant within 30 days of receipt of this order, the requested information in respect of points 07, 09, 12 and 13 of the RTI request dated 12.01.2012, as available with it.
23. The complaint is disposed of. Copy of this decision be given free of cost to the parties.
(Vijai Sharma)
Chief Information Commissioner
Citation: Shri Subhash Chandra Agrawal v. M/o External Affairs, The Indian National Group of the Permanent Court of Arbitration in Decision No.CIC/SM/C/2012/000911/VS/09394