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Respondent: Disclosure of report on 2000 MW Lower Subsansiri Hydroelectric Project may fuel agitation, thereby endangering the life of the locals - CIC: Agitation is more likely to be fuelled by uninformed debate in the absence of authentic information

19 May, 2015

Order

This matter pertains to two RTI applications dated 5.11.2012 and 5.1.2013 filed by the Appellant, seeking a copy of the final report submitted to the Planning Commission by Shri C.D. Thatte and Shri M.S. Reddy on the 2000 MW Lower Subansiri hydroelectric project. The CPIO responded on 15.11.2012 & 29.1.2013 respectively stating that the above report was under consideration and could not be provided at that stage. Not satisfied with the response of the CPIO, the Appellant filed an appeal to the First Appellate Authority on 2.4.2013. In his order dated 29.4.2013, the FAA stated that “under Section 8 proviso (g) of the Act”, the report sought by the Appellant could not be provided as it was yet to be finalised and accepted by the Government. Not satisfied with the order of the FAA, the Appellant filed second appeal dated 5.7.2013 to the CIC praying for direction to the CPIO to provide the required complete information free of cost and action against the CPIO and the FAA under Section 20 (1) and (2) of the RTI Act for malafidely denying the information.

2. The matter came up before us on 12.3.2015. Advocate Preeta Dhar filed written submissions dated 12.3.2015 on behalf of the Appellant. The salient points made in these submissions, which were also reiterated by Advocate Dhar during the hearing, are as follows:

a) There is nothing in the RTI Act to indicate that the reports which are in the draft stage or under consideration cannot be disclosed. The CIC decision in G. Krishnan Vs. Ministry of Environment and Forests, upheld by the High Court of Delhi in its judgment dated 17.5.2012 in Union of India Vs. G. Krishnan [W.P. (C) 2651/2012], clearly states that draft report can be disclosed even when it is under consideration.

b) The CPIO denied the information without invoking any exemption provision of the RTI Act. The FAA invoked Section 8 (1) (g). Advocate Dhar questioned the decision of the FAA to invoke Section 8 (1) (g), which she maintained, has no relevance to this case. In this context, it was stated that it is not the case of the Respondents that the report would not be disclosed after it is accepted by the Government and that if the report can be disclosed after it is accepted by the Government, there is no justification for denying the information at this stage under Section 8 (1) (g).

c) The report pertains to the impact on the environment and downstream areas affected by the lower Subansiri Hydroelectric project. The disclosure of environmental information and the participation of the affected population in the decision making process of projects affecting the environment is an accepted principle. It has been widely recognised that information relating to environment relates to broader public interest. In this context, the following observation of the High Court of Delhi in UPSC vs. R.K. Jain [W.P. (C) 1243/2011] has been quoted:

“if the information has a bearing on the state of the economy; the moral values in the society; the environment; the national safety, or the like, the same would qualify as “larger public interest”. Therefore, even if the exemption of Section 8 (1) (a) is held to be applicable, the information sought by the Appellant should be made available under Section 8 (2) because the public interest in disclosure outweighs the harm to the protected interests.

3. The Respondents stated that the construction of the 2000 MW lower Subansiri Hydroelectric Project was commenced in 2003. It faced resistance from the local people on grounds of design safety and downstream impact. Therefore, under direction from the then PM, Shri C.D. Thatte was asked to prepare a report on the above issues in January, 2011. The report was submitted in July 2012 and NITI Aayog (the then Planning Commission) sent it to the Ministry of Power for their consideration, as NHPC is the executing agency. The matter is under consideration of a panel in the Ministry of Power. The Respondents further submitted that the dam design involves issues of safety of people and downstream impact. An agitation has been going on against the project and revealing the report, sought by the Appellant, would create confusion in the mind of the public. Further, since the project concerns generation of electricity for two States (Assam and Arunachal Pradesh), misconceptions concerning the project would also impact the economic interests of the State. Therefore, the disclosure of the report is also exempted under Section 8 (1) (a) of the RTI Act.

4. Advocate Preeta Dhar stated that Section 8 (1) (a) was not invoked by the Respondents earlier. She further submitted that what can pose harm to the people is the faulty design of the dam and not disclosure of the report sought by the Appellant. She stated that the first report on the design issue and downstream impact was made by the NHPC; another one was prepared by IIT Guwahati and the report mentioned in the RTI application is the third report on the issue. The Respondents reiterated their stand that until the report is finalised and accepted by the Government, it should not be made public.

Issues for consideration

5. We have considered the records and the submissions made by both the parties before us. The following three issues are under consideration before the Commission:

i) invocation of Section 8 (1) (g) by the Respondents.

ii) the plea of the Respondents that the report cannot be provided as it is yet to be finalised and accepted by the Government.

iii) invocation of Section 8 (1) (a) by the Respondents during the hearing.

6. Clause (g) of sub Section (1) of Section 8 exempts from disclosure information “the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes”. This clause is not germane to the case before us. The identity of the author (s) of the report is already known. Moreover, the issue of assistance given in confidence for law enforcement and security purposes does not arise in this case. The Respondents stated during the hearing that disclosure of the report may fuel further agitation, thereby endangering the life of the local people. In our view, agitation is more likely to be fuelled by uninformed debate in the absence of authentic information; rather than by revelation of expert comments contained in a report, such as the one that forms the subject matter of the RTI application. Accordingly, there is no ground to invoke Section 8 (1) (g).

7. Another ground cited by the Respondents is that the report cannot be provided as it is yet to be finalised and accepted by the Government. This aspect was considered at some length by the High Court of Delhi in its judgment dated 17.5.2012 in Union of India vs. G. Krishnan [W.P. (C) 2651/2012]. In the above judgment, the High Court considered an order passed by the Commission on 9.4.2012 in file No. CIC/SG/A/2012/000374, whereby a direction was issued to the Respondents in that case (Ministry of Environment & Forests) to provide an attested copy of the summary of the Western Ghats Ecology Expert Panel (WGEEP) Report and the report on the Athirappilly Hydroelectric Project, Kerala to the Appellant. The High Court made the following observations:

“17. It is not the petitioners contention before me that the said WGEEP report is not the final document prepared by the panel headed by Prof. Madhav Gadgil in relation to the western ghats ecology and Athirappilly HEP Kerala. So far as the said panel is concerned, they have tendered their report to the MOEF. Now, it is for the MOEF, in consultation with the affected Sates, to act on the said report. It is for the MOEF and the affected States to either accept/reject, wholly or partially, or with conditions/qualifications/modifications the said report, by taking into account the interests of all stakeholders, and by taking into account the relevant laws, including those applicable in relation to the protection of environment and ecology.

18. If there are any shortcomings or deficiencies in the said report, inter alia, for the reason that the same is based on incomplete or deficient data, or for any other reason, the said factor would go into the decision making process of the MOEF and the concerned States. But it cannot be said that the said report is not final. What is not final is the governmental policy decision on the aspects to which the WGEEP report relates. The said report is one of the ingredients, which the MOEF and the concerned States would take into consideration while formulating their policy in relation to the western ghats ecology.

19. The consultative process and the involvement of the civil rights groups and all those who are concerned, and who may be affected by the policy that may eventually be made, does not stop after the making of the said report by the WGEEP. In fact, after the making of the said report, the said consultative and participatory process, ideally speaking, should become even more interactive and intense.

20. The endeavour of the petitioner appears to be to withhold the WGEEP report, so as to curb participation of the civil society and the interested environmental groups as also the common man, who is likely to be affected by the policy as eventually framed, in the debate that should take place before the policy is formulated. Before the formation of the policy, all the stakeholders should be able to deal with the report and consider whether to support or oppose the findings and recommendations made therein, and the policy should be eventually formulated after due consideration of all points of view.”

The above observations of the High Court are germane to the case before us and the submission of the Respondents regarding the report, sought by the Appellant, not having been finalised and accepted by the Government cannot become the ground of denial of a copy of the report to the information seeker.

8. The Respondents invoked Section 8 (1) (a) during the hearing. This aspect was also considered by the High Court of Delhi in its judgment in Union of India Vs. G. Krishnan. The High Court made the following observation:

“23. The scientific, strategic and economic interests of the State cannot be at cross purposes with the requirement to protect the environment in accordance with the Environment Protection Act, which is a legislation framed to protect the larger public interest and for promotion of public good. Policies framed with the sole object of advancing the scientific and economic interests of the State, but in breach of the State's obligations under the Environment Protection Act, and other such like legislations, such as the Water (Prevention and Control of Pollution) Act, Air (Prevention and Control of Pollution) Act etc. would be vulnerable to challenge and may eventually not serve the purpose for which such a policy is framed. Therefore, while formulating its policies, the State is obliged to take into account all the relevant laws and the statutory obligations which the State is obliged to fulfill, lest the policy of the State which becomes one sided and imbalanced. A policy evolved in the largest public interest and public good can certainly not be said to be against the strategic, scientific or economic interest of the State.”

9. In view of the foregoing, there is no ground to deny the report sought by the Appellant in his RTI applications dated 5.11.2012 and 5.1.2013. Accordingly, the CPIO is directed to provide to the Appellant a copy of the final report submitted to the Planning Commission (NITI Aayog), Government of India by Shri C.D. Thatte and Shri M.S. Reddy on the 2000 MW Lower Subsansiri Hydroelectric Project. The above information should be provided free of cost, within twenty days of the receipt of this order, under intimation to the Commission.

10. The Appellant has also sought imposition of penalty on the CPIO and the FAA under Section 20 of the RTI Act. Section 20 contains no provision for imposition of penalty on the FAA. Further, there is no ground to establish that denial of information by the CPIO was malafide. Therefore, we would not consider imposition of penalty in this case.

11. With the directions contained in paragraph 9 and the above observations, the appeal is disposed of.

12. Copies of this order be given free of cost to the parties.

(Sharat Sabharwal)

Information Commissioner

Citation: Shri Rohit Choudhury v. Niti Aayog in File No. CIC/SS/A/2013/002100

Respondent: Disclosure of report on 2000 MW Lower Subsansiri Hydroelectric Project may fuel agitation, thereby endangering the life of the locals - CIC: Agitation is more likely to be fuelled by uninformed debate in the absence of authentic information

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