Everybody interested in RTIs must read it completely.
Given below is a decision which comes from a division bench of the
Allahabad High Court. This decision is landmark in the sense that it will
contribute immensely to the RTI law getting settled eventually at the Supreme
Court level – as and when that happens. Will just list the key issues settled at
this level at least.
1. No need for a citizen to give reasons why he seeks information, his
background is no reason for information to be denied to him under RTI
2. PIO cant take a plea that its third party info while denying info u/s
8.(1).(j), without first referring it to the third party
3. PIO to hear the third party and then to decide where is the larger public
interest – in disclosure or non-disclosure
4. The MOST important issue: It has ruled in favor what we have always believed
in and practiced in Gujarat. Section 18 to 20 are all interlinked and cant be
looked at in isolation. Therefore a complaint against denial / deemed denial of
information u/s 18 which empowers a SIC / CIC with powers vested in a civil
court under the code of Civil Procedure, cant be held hostage with section 19 of
1st appeal. The CIC has been guilty of holding this stand since the Act coming
into effect. This decision views all these 3 sections and their respective
sub-sections as having one objective – securing access to information and
keeping truant officers in check
5. A SIC / CIC can hearing a complaint can require a public authority to provide
information at the same time penalize him to ensure that its done
++++
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=633\
75
Writ Petition No. 3262 (MB) of 2008
Public Information Officer
Vs.
State Information Commission, U.P. and others.
Hon’ble Pradeep Kant, J.
Hon’ble Shri Narayan Shukla, J.
(Delivered by Hon’ble Pradeep Kant, J.)
Following two questions arise for determination in the present writ petition:
(1) Whether the information disclosing the names of the persons including
address and amount, who have received more than Rs.1 lac from the Chief Minister
Discretionary Fund, can be given to the information seeker or it is an
information, which stands exempted under Section 8 (j) of the Right to
Information Act.
(2) Whether the Chief Information Commissioner while considering the complaints
under Section 18 of the Right to Information Act, 2005 is competent only to
award the prescribed punishment, in case of failure of information being given
as per the provisions of the Act or while dealing with the said complaints, any
direction can also be issued for furnishing the information which has not been
provided, though it is not found to be exempted under the provisions of the Act.
Right to Information Act, 2005 (referred to as the ‘RTI Act’) enacted by the
Parliament, received assent of the President on 15.6.2005, and which came into
force w.e.f. 12.10.2005, is relatively a new legislation and, therefore, is
having its teething problem giving rise to various issues, which require
consideration by the Court.
Needless to mention that the Act is not meant for creating a new type of
litigation or a new forum of litigation between the information seeker and the
information giver, but may be that some of the informations asked for, be
inconvenient to the persons to whom it relates and, therefore, every effort
would be made to refuse divulgence of such an information and for that matter
either to refuse the information by delaying the process or passing a specific
order of refusal, may be some time by taking shelter under the provisions of
Sections 8 and 9 of the Act, which are the exemption clauses.
The information covered by the aforesaid provisions is either completely
exempted or it has been given limited protection i.e. though the information is
otherwise exempted but can be disclosed on the satisfaction of the Public
Information Officer, if he is satisfied that the disclosure of such an
information is in larger public interest.
Our Constitution establishes a democratic republic. Democracy requires an
informed citizenry and transparency of information which are vital to its
functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed. The revelation of information in
actual practice is likely to conflict with other public interests including
efficient operations of the Governments, optimum use of limited fiscal resources
and the preservation of confidentiality of sensitive information and, therefore,
with a view to harmonise these conflicting interests while preserving the
paramountcy of the democratic ideal, the Parliament enacted the Act of 2005 to
provide for furnishing certain information to citizens who desire to have it.
RTI Act in fact, has been enacted to provide for setting out the practical
regime of right to information for citizens to secure access to information
under the control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the constitution of a
Central Information Commission and State Information Commissions and for matters
connected therewith or incidental thereto.
‘Right to Information’ is the right to obtain information from any public
authority by means of, (i) inspection, taking of extracts and notes; (ii)
certified copies of any records of such public authority; (iii) diskettes,
floppies or in any other electronic mode or through printouts where such
information is stored in a computer or in any other device. Information in this
context means any material in any form relating to the administration,
operations or decisions of a public authority.
The Act provides for making information held by executive agencies of the State
available to the public unless it comes within any one of the specific
categories of matters exempt from public disclosure. Virtually all agencies of
the executive branch of the government are required by the Act to issue
regulations to implement the provisions of the Act. These regulations inform the
public where certain types of information may be readily obtained, however,
other information may be obtained on request, and what internal agency appeals
are available if a member of the public is refused the requested information.
The Right to Information Act is designed to prevent abuse of discretionary power
of the governmental agencies by requiring them to make public certain
information about their working and work product. Right to information or right
to know is an integral part and basic tenet of the freedom of speech and
expression, a fundamental right guaranteed under Article 19(1)(a) of the
Constitution. It also flows from Article 21 as enunciated by the apex court in
the case of *Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express
Newspapers Bombay Pvt. Ltd. And others, (1988) 4 SCC 592. The apex court in this
case while dealing with the issue of freedom of press and administration of
justice, held that “we must remember that the people at large have a right to
know in order to be able to take part in a participatory development in the
industrial life and democracy. Right to know is a basic right which citizens of
a free country aspire in the broader horizon
of the right to live in this age in our land under Article 21 of our
Constitution. That right has reached new dimensions and urgency. That right puts
greater responsibility upon those who take upon themselves the responsibility to
inform”.
It is thus, a fundamental right, which cannot be denied, unless of course it
falls within the exemption clause or otherwise is protected by some statutory
provisions.
The functioning of the State and its instrumentalities and functionaries under
the cover of darkness leave the citizens ignorant about the reasons and
rationale of any decision taken by the authorities or any policy made and the
implications thereof, whereas the citizens have a guaranteed ‘Right to Know’.
The legal and consequential corollary of the aforesaid right will be that a
person getting the required information may move for redressal of the wrong done
or any action taken, order passed or policy made by approaching the appropriate
forum, as may be permissible under law. The purpose and object of the act is not
only to provide information but to keep a check on corruption, and for that
matter confers a right upon the citizens to have the necessary information, so
that appropriate action may be initiated or taken against the erring officers
and also against the arbitrary and illegal orders.
The Supreme Court even before the advent of the Right to Information Act, 2005
had stressed upon the importance of transparency in administration and
governance of the country and for that matter time and again has entertained
writ petitions requiring the State to disclose the information asked for.
Reference can be made to the case of State of U.P. vs. Raj Narain, (1975) 4 SCC
428**. *A Constitution Bench of the apex court in this case, considered the plea
of privilege of not disclosing the information with respect to the tour
arrangement of Smt. Indira Nehru Gandhi for her tour programmes of Raebareli and
also the information disclosing any general order for security arrangement
during the general elections alongwith disclosure of all correspondence between
the Government of India and the State Government, and between the Chief Minister
and the Prime Minister, and held unanimously that the informations asked for,
are to be disclosed. The appeal against the judgement of the Allahabad High
Court was allowed. His Lordship Justice Mathew, in a separate concurring
judgement, in Para-74 observed as under:
“In a government of responsibility like ours, where all the agents of the public
must be responsible for their conduct, there can be but few secrets. The people
of this country have a right to know every public act, everything that is done
in a public way, by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. The right to know,
which is derived from the concept of freedom of speech, though not absolute, is
a factor which should make one wary, when secrecy is claimed for transactions
which can, at any rate,have no repercussion on public security. To cover with
veil of secrecy, the common routine business, is not in the interest of the
pubic. Such secrecy can seldom be legitimately desired. It is generally desired
for the purpose of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to explain and to justify
their acts is the chief
safeguard against oppression and corruption.”
As a result of constant demand of disclosure of information and to make the
people know about the functioning of the Government, its authorities and
functionaries and the manner in which, decisions are taken or even policy made,
including their implementation and to uproot corruption, redtapism and delay in
functioning of the State functionaries, apart from decisions taken in individual
cases the central legislation in the shape of Right to Information Act, 2005 has
been enacted, which prescribes the substantive as well as procedural provisions
for securing the information by any person, who seeks that information, without
requiring him to disclose the reason as to why this information is being asked
for.
The Act obligates every public authority as defined in Section 2(h) to designate
as many officers, as Central Public Information Officers or State Public
Information Officers, as the case may be, in all administrative units or office
under it as may be necessary to provide information to persons requesting for
the information under Section 5 of the Act.
Section 2(j) says that “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 the right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printouts where such
information is stored in a computer or in any other device,’
whereas Section 3 says that ‘subject to the provisions of this Act, all citizens
shall have the right to information. ‘
Section 4(1) obligates that* (a) every public authority shall maintain all its
records duly catalogued and indexed in a manner and the form which facilitates
the right to information under this Act and ensure that all records that are
appropriate to be computerised are, within a reasonable time and subject to
availability of resources, computerised and connected through a network all over
the country on different systems so that access to such records is facilitated.
(b) publish within one hundred and twenty days from the enactment of this Act-
(i) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels
of supervision and accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records, held by it or
under its control or used by its employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its
control;
(vii) the particulars of any arrangement that exists for consultation with, or
representation by, the members of the public in relation to the formulation of
its policy or implementation thereof;
(viii) a statement of the boards, councils, committees and other bodies
consisting of two or more persons constituted as its part or for the purpose of
its advice, and as to whether meetings of those boards, councils, committees and
other bodies are open to the public, or the minutes of such meetings are
accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees,
including the system of compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating the particulars of
all plans, proposed expenditures and reports on disbursements made;
(xii) the manner of execution of subsidy programmes, including the amounts
allocated and the details of beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations
granted by it;
(xiv) details in respect of the information, available to or held by it, reduced
in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining
information, including the working hours of a library or reading room, if
maintained for public use;
(xvi) the names, designation and other particulars of the Public Information
Officers;
(xvii) such other information as may be prescribed, and thereafter update these
publications every year’. Apart from the informations aforesaid, the Act permits
any person to seek information in the prescribed manner by moving an application
to the Public Information Officer, giving the details of the information asked
for and also depositing the requisite fee, as may be prescribed.
Section 6 of the Act says that a person, who desires to obtain any information
under this Act, shall make a request in writing or through electronic means in
English or Hindi or in the official language of the area in which the
application is being made, accompanying such fee as may be prescribed, to-
“(a) the Central Public Information Officer or State Public Information Officer,
as the case may be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public
Information Officer, as the case may be, specifying the particulars of the
information sought by him or her. Provided that where such request cannot be
made in writing, the Central Public Information Officer or State Public
Information Officer, as the case may be, shall render all reasonable assistance
to the person making the request orally to reduce the same in writing.
Sub-clause (2) says that an applicant making request for information shall not
be required to give any reason for requesting the information or any other
personal details except those that may be necessary for contacting him.”
Section 7 of the Act provides the mode and manner of disposal of request made,
seeking information, which prescribes a maximum period of thirty days for
providing such information from the date of receipt of the application on
payment of such fee, as may be prescribed. It also says that the application may
either be accepted or may be rejected for the reasons specified in Sections 8
and/or 9.
The proviso annexed to Section 7(1) says that where the information sought for
concerns the life or liberty of a person, the same shall be provided within
forty eight hours of the receipt of the request.
Sub-clause (2) says that if the Central Public Information Officer or State
Public Information Officer, as the case may be, fails to give decision on the
request for information within the period specified under sub-clause (1), the
Central Public Information Officer or State Public Information Officer, as the
case may be, shall be deemed to have refused the request.
Section 7 in effect prescribes not only the procedure, which is to be adopted
after receipt of the request of seeking information but also prescribes the time
limit, in which such information is to be given, the payment of requisite fee
and various other procedure, which may be required to be fulfilled while seeking
and giving the information.
The present controversy does not relate to the prescription of fee and the
manner in which additional fee can be asked for, but is confined to the
questions, formulated in the opening part of this order. If the information is
not given within the time period prescribed for giving information, it would be
deemed to have been refused, even if information is not specifically refused or
denied. The information can be refused only in case there exists any reason
specified in Section 8 or Section 9. Sub-clause (8) of Section 7, makes it
mandatory to communicate the person making the request; (i) the reasons for such
rejection; (ii) the period within which an appeal against such rejection may be
preferred; (iii) the particular of the appellate authority.
Section 8 provides exemption from disclosure of information and it categorically
provides the specified informations, where disclosure of the information shall
not be obligatory notwithstanding the provisions of the Act, 2005..
A perusal of the aforesaid provisions of Section 8, reveals that there are
certain informations contained in Sub-clause (a), (b), (c), (f), (g) and (h),
for which there is no obligation for giving such an information to any citizen;
whereas informations protected under sub-clause (d), (e) and (j) are though
protected informations, but on the discretion and satisfaction of the competent
authority, that it would be in larger public interest to disclose such
information, such information can be disclosed. These informations thus, are
having limited protection, the disclosure of which is dependent upon the
satisfaction of the competent authority that it would be in larger public
interest as against the protected interest to disclose such information.
Sub-clause (i) protects the information with respect to cabinet papers including
records or deliberations of the Council of Ministers, Secretaries and other
officers, for a definite period after which protection umbrella stands eroded
when the decision is taken and the matter is complete or over, provided further
that those matters which come under the exemptions specified in this section
shall not be disclosed. There can be no quarrel or any dispute with respect to
the information which are completely protected or to say totally exempted from
being disclosed as no citizen can claim a right to have such an information, but
the dispute arises where exemption is being claimed under any of the aforesaid
provisions of Section-8, but the question arises as to whether information asked
for is covered by any of the exemption detailed in the said section or not.
The controversy arises where exemption is claimed under limited protection
provided under sub-clause (d), (e) and (j), and the information seeker requests
for disclosure of the information, but the Public Information Officer refuses to
supply such information on the ground that information stands exempted. In such
cases, the role of the appellate authority or that of the Commission including
that of the Chief Information Commissioner is very important, depending upon the
jurisdiction exercised and the satisfaction arrived by such authority in
deciding as to whether;
(i) information asked for, at all stands exempted under any of the aforesaid
provisions; and (ii) even if it is exempted, should it be disclosed in larger
public interest as against the protected interest of the individuals. In case of
third party information, the provisions of Section 11 are to be taken into
account, which prescribe a procedure of affording opportunity to the third party
to whom the information relates, or who has given the information and who has
treated the said information in confidentiality, by giving him notice to have
its views and, thereafter, it is to be decided as to whether the information
should be disclosed or not, as per the satisfaction of the competent authority.
In case of refusal of information either by specific order by Public Information
Officer or under the deeming provision of refusal, the matter can be taken up in
appeal under Section 19, before the first appellate authority as may be
prescribed and further in second appeal to the Central Information Commission or
the State Information Commission, as the case may be. The provision of appeal
has been made for third party also under sub-clause (2) of Section 19. The
period for deciding the first appeal is thirty days with total extended time of
45 days. The limitation for filing the appeal is also thirty days, but this
period can be condoned on sufficient cause being shown by the appellant, by the
appellate authority. The second appeal has to be filed within 90 days from the
date on which the decision should have been made or was actually received. The
Central Information Commission or State Information Commission, as the case may
be, may admit the appeal
after the expiry of the period of ninety days if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal in time. In
appeal, reasonable opportunity is to be given to the third party also, if the
matter relates to third party.
Sub-clause (7) of Section 19 says that the decision of the Central Information
Commission or State Information Commission, as the case may, shall be binding,
and sub-clause (8) says that in its decision, the Central Information Commission
or State Information Commission, as the case may be, has the power to-
“(a) require the public authority to take any such steps as may be necessary to
secure compliance with the provisions of this Act, including-
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or a State Public
Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
iv) by making necessary changes to its practices in relation to the maintenance,
management and destruction of records;
(v) by enhancing the provision of training on the right to information for its
officials;
(vi) by providing it with an annual report in compliance with clause (b) of
sub-section (1) of Section 4;
(b) require the public authority to compensate the complainant for any loss or
other detriment suffered.
(c) impose any of the penalties provided under this Act;
(d) reject the application. ”
Section 19 (8) thus, authorises the Commission to require the public authority
to take any such steps as may be necessary to secure compliance with the
provisions of the Act, and sub-clause (c) also permits to impose any of the
penalties provided under this Act. The penalty has been provided under Section
20 of the Act, which can be imposed in the given circumstances mentioned
therein.
Sub-clause (1) of Section 20 gives the circumstance, under which the penalty can
be imposed and it permits a penalty of Rs.250/- each day till application is
received or information is furnished, so however, the total amount of such
penalty shall not exceed Rs.25000/-. Sub-clause (2) of Section 20 gives power to
recommend for disciplinary action against the Central Public Information Officer
or a State Public Information Officer, as the case may be, under the service
rules applicable to him, in case the Central Information Officer or the State
Information Officer, as the case may be, has denied the request for information
or knowingly given incorrect, incomplete or misleading information or destroyed
information which was the subject of the request or obstructed in any manner in
furnishing the information.
Section 18 is the provision for making complaint and lays down the procedure for
entertaining a complaint and making enquiry.
Section 18 reads as under:
“18(1) Subject to the provisions of this Act, it shall be the duty of the
Central Public Information Commission or State Information Commission,, as the
case may be, to receive and inquire into a complaint from any person- (a) who
has been unable to submit a request to a Central Public Information Officer or
State Public Information Officer, as the case may be, either by reason that no
such officer has been appointed under this Act, or because the Central Assistant
Public Information Officer or State Assistant Public Information Officer, as the
case may be, has refused to accept his or her application for information or
appeal under this Act for forwarding the same to the Central Public Information
Officer or State Public Information Officer, or senior officer specified in
sub-section (1) of Section 19 or the Central Public Information Officer or State
Public Information Officer, as the case may be;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information or access to
information within the time limit specified under this Act;
d) who has been required to pay an amount of fee which he or she considers
unreasonable;
(e) who believes that he or she has been given incomplete, misleading or false
information under this Act; and
(f) in respect of any other matter relating to requesting or obtaining access to
records under this Act.
(2) Where the Central Public Information Commission or State Information
Commission, as the case may be, is satisfied that there are reasonable grounds
to inquire into the matter, it may initiate an inquiry in respect thereof..
(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.
(4) Notwithstanding anything inconsistent contained in any other Act of
Parliament or State Legislature, as the case may be, the Central Information
Officer or State Information Commission, as the case may be, during inquiring of
any complaint under this Act, examine any record to which this Act applies which
is under the control of the public authority, and no such record may be withheld
from it on any ground.”
Section 18 thus is a provision which is a consciously introduced section, so as
to exercise complete control over the functioning of the Public Information
Officers, at the time of receiving application, and at the time of giving
information or during the appeal under the Act. Any applicant who has not been
given a response to a request for information or access to information within
the time limit specified under the Act, or who has been required to pay an
amount of fee which he or she considers unreasonable, or has been given false
information, and in respect of any other matter relating to requesting or
obtaining access to records under the Act, may approach the Commission, who
would enquire into the complaint, and while making an enquiry, it has all the
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 matters enumerated therein.
The Commission under sub-clause (4), which begins with a non obstante clause,
during enquiry of any complaint under the Act, can examine any record to which
this Act applies which is under the control of the public authority, and no such
record shall be withheld from it on any ground. In the light of the aforesaid
provisions of the Act, the matter in issue requires consideration. Learned
counsel for the petitioner has argued that the information asked for, namely,
names and details of all the persons who have received more than Rs.1 lac from
the Chief Minister’s Discretionary Fund during the period 28.8.2003 upto
31.3.2007, cannot be provided as it stands exempted under Section 8(j) of the
Act.
The second argument is that the Commission while dealing with the complaints
under Section 18, could not direct the Public Information Officer to supply the
information within a specified time, regarding which complaint has been made, as
under Section 20, it is only the penalty which can be imposed on the erring
officer, but information cannot be directed to be given, as such a direction
could be issued only in appeal, whether first or second and the present
applicant having not preferred the second appeal, his prayer for disclosure of
the information asked for, in proceeding under Section 20 could not have been
entertained.
Section 8 (j) of the Act gives limited protection. The information asked for
under the aforesaid clause, can stand protected, if it satisfies, either of the
following conditions :
(i) it should be an information which relates to personal information, and the
disclosure of such information has no relationship to any public activity or
interest
(ii) or it would cause unwarranted invasion of the privacy of the individual.”
The discretion, which has been given to the Central Public Information Officer
or State Public Information Officer or the appellate authority, as the case may
be, is to the effect that on their satisfaction that the larger public interest
justifies the disclosure of such information, the same may be supplied. It means
that though the information asked for is otherwise exempted from being supplied,
but it can be disclosed if larger public interest justifies the disclosure of
such information. Who will decide this larger public interest? It is not the
applicant or the person against whom the information is asked for, but the
information officer or the competent authority, as the case may be. Of course,
while deciding the aforesaid question, the views of both the parties can be
taken into account or so to say have to be taken into account by the concerned
authority under the RTI Act, for the reason that the person who is asking for
the information, would
say it is in larger public interest to disclose the information, whereas the
person against whom the information is being asked for shall dispute the
aforesaid fact.
The information regarding the money advanced beyond Rs.1 lac to any person from
the Chief Minister’s Discretionary Fund, apparently is not an information which
could be said to be protected under the provisions of Section 8 and in
particular Section 8(j) of the Act. The petitioner’s case is that if such an
information is disclosed, it would cause unwarranted invasion of the privacy of
the individual. The individual means the person who is the beneficiary of such
amount. Elaborating the aforesaid plea, reliance has been placed upon the
application /objections filed by the petitioner before the ommission, wherein it
has been said that the persons who have received or would have received the
discretionary fund of the Chief Minister also have a social status and self
respect and if their names are disclosed, that will be an unwarranted invasion
in their privacy.
For testing the aforesaid plea, the nature of such grant has to be seen and it
is also to be tested, whether the Chief Minister’s Discretionary Fund is immune
to any sort of scrutiny or audit or that such fund can be used or diverted in
any manner, as the Chief Minister desires and that no limitation or restriction
has been imposed under the scheme, under which this fund is to be provided or
its disbursement stands protected under the provisions of Section 8. A keen look
upon the scheme of Chief Minister’s Discretionary Fund, and the Rules which
govern it, is necessary for dealing with the issue involved.
In supersession of the U.P. Chief Minister’s Discretionary Fund Rules, 1989,
Rules of 1999 were enforced by the Governor of the State in exercise of his
powers under Article 283(2) of the Constitution of India. Article 283 (1)…
Article 282 and 283, which fall under Chapter-I, Part-12 of the Constitution
dealing with finance, has been placed under the heading ‘Miscellaneous Financial
Provisions’.
Article 282 deals with the expenditure defrayable by the Union or a State out of
its revenues, lays down as under: “*The Union or a State may make any grants for
any public purpose, notwithstanding that the purpose is not one with respect to
which Parliament or the Legislature of the State, as the case may be, may make
laws.”
Article 283 is about the custody, etc, of Consolidated Funds Contingency Funds
and moneys credited to the public accounts, wherein sub-clause (2) provides that
*’Consolidated Fund of the State and the Contingency Fund of the State and the
custody of public money other than those credited to such funds received by or
on behalf of the Government of the State, their payment into the public account
of the State and withdrawal of moneys from such account and all other matters
connected with or ancillary to matters aforesaid shall be regulated by law made
by the Legislature of the State, and, until provision in that behalf is so made,
shall be regulated by rules made by the Governor of the State’. It is in
pursuance of the aforesaid power vested with the Governor, the Rules of 1989 and
thereafter, the Rules of 1999 have been framed.
The Rules of 1999 were amended by notification issued on 22.11.2005, with
respect to certain clauses and again vide notification dated 22.11.2006, issued
by the Governor in exercise of his powers under Article 283(2) of the
Constitution of India. Amendments / modifications made in the Rules of 1999 are
only with respect to the entitlement category and the amount which can be
awarded to the person entitled for such discretionary fund, rest of the Rules of
1999 are still in force. In the Rules of 1999, Rule-2 provides that the adequate
or sufficient amount, with the sanction/consent of the Legislature of the State
(Rajya Vidhan Mandal), shall be placed in the Chief Minister’s Discretionary
Fund, which shall be granted to the individuals or to the institutions by the
Chief Minister. The explanation given therein deals with the situation when
there is President’s Rule in the State.
Rule-3, lays down the conditions under which the grant/payment from the Chief
Minister’s Discretionary Fund can be given. Sub-clause (1) says that the grant
shall be made to such persons or institutions, who are eligible for such a grant
from the State fund. Sub-clause (2) says that the grant shall not be recurring
and it would not mean that it would be spent in any personal type of expenditure
nor such an expenditure would be borne by the discretionary fund. Sub-clause (3)
of Rule-3, lays down the category of persons to whom the grant can be made and
also the maximum amount which can be paid to such persons including the
institutions.
Sub-clause (4) gives the discretion to the Chief Minister to award the amount in
excess of the amount prescribed to any person in any special matter, as per his
or her discretion, as the case may be, whereas sub-clause (5) prescribes for
audit of the discretionary fund by the Accountant General, making it obligatory
for the Chief Minister’s office, to forward him a copy of the order of grant
made in favour of any person. Sub-clause (6)(Ka) and (6)(Kha) confers power upon
the Chief Minister or the officer nominated by him to make inspection of the
record of the person, to whom the grant has been made, if it is a grant of more
than Rs.5,000/-. Sub-clause (6)(Kha) says that the District Magistrate shall
make verification and shall certify about the utilization of the grant made and
he will make relevant records available at the time of audit. The District
Magistrate shall also ensure that the grant has been made to the eligible
persons.
Sub-clause (7) requires the beneficiary to give a certificate that he has not
taken the benefit of any discretionary fund of any Minister and has not applied
for any discretionary fund of any Minister and that in the relevant year, he is
not a beneficiary of such a grant. It is only after giving such a certificate,
the grant shall be disbursed. Sub-clause (8) says that the beneficiary has to
utilise the amount of grant from the Chief Minister’s Discretionary Fund within
the prescribed period and if he fails to do so, he will have to return the
unused money in one go. Sub-clause (9) obliges the District Magistrate to give
utilization certificate of the amount paid to the beneficiary, and sub-clause
(10) says that the order of sanction form the discretionary fund and the account
disbursed, shall be maintained in the Account Section of the Chief Minister’s
office.
Sub-clause (11) says that where the amount of such discretionary fund is more
than Rs.500/-, the beneficiary will have to give a stamp receipt in
acknowledgement thereof. By means of the amendment/modificat ion by the
notification dated 22.11.2005, sub-clause (3) which deals with the category of
persons entitled for the grant and the amount which can be given to a particular
person including institutions has been amended, enhancing the said amount to
certain extent and lastly by the amendment of 2006, amendments have been made in
sub-clauses (3), (4) and (6) to the same effect, i.e. the category of persons to
whom the grant can be made from the discretionary fund of the Chief Minister and
the maximum amount that can be paid to such persons, etc.
The Chief Minister’s Discretionary Fund thus, is a part and parcel of the
Consolidated Fund of the State, subject to all constitutional sanctions and
statutory bindings. It is in fact the public money and, therefore, public has a
right to know about it. The Chief Minister’s Discretionary Fund thus, is not and
cannot be treated as personal fund of the Chief Minister, but it is the
discretionary fund, which has to be disbursed, at his/her discretion, as the
case may be, which disbursement again is governed by the Rules. The discretion
has to be exercised in the manner as may be prescribed under the Rules.
The amount of Rs.1 lac or more can be given to persons, who are enumerated in
Rule 3(b) to 3(f). Rule-3 read as under: “(3)This grant may be given by the
Chief Minister to the persons upto the limit mentioned below according to his
discretion: (a) to helpless, Disabled, persons of poor classes or boys or
widows: Not more than Rs.1,00,000/ – (b) to institutions involved into social
and cultural activities (other than institution based on caste or religion : Not
more than Rs. 5,00,000 /- (c) to poor persons suffering from illness : Not more
than Rs. 5,00,000/- (d) to for the construction of building of non governmental
educational institutions : Not more than Rs. 5,00,000/- (e) to poor families
whose earning member is killed in a brutal murder / crime or died due to
accident, snake bite or drowning of boat: Not more than Rs. 5,00,000/- (f) to
persons suffering from massive fire breakout, land sliding, snowfall or other
natural calamities : half of the loss
occurred on general standards or Rs. 200,000/- whichever is less. (g) to person
seriously injured in (one) accident and is in need of money: Not more than Rs.
1,00,000/- (h) to needy person injured in (two)accidents: Not more than Rs.
25,000/-”
The rules aforesaid thus prescribed the category of persons, who are entitled
for the benefit of discretionary fund of the Chief Minister with the maximum
amount that can be given to them, of course subject to discretion of the Chief
Minister, who is authorised to give an amount even in excess of the prescribed
limit, but it does not lay down anywhere that the discretionary fund can be
given to persons not entitled under the rules. Even supposing (though the Rules
do not permit) that the Chief Minister has the power to extend the benefit of
the discretionary fund to any class of person/persons with discretion of any
such amount being paid, none the less, it is governed by the rules and,
therefore, if any amount is paid to a person, as enumerated under the rule or
that the amount has been paid in excess of the amount prescribed, the amount
paid even then cannot be treated to be an action of the Chief Minister or the
Chief Minister’s Secretariat, which is
not amenable to the public knowledge.
The discretion which is governed by the rule cannot be treated as insulated with
immunity so as to cover it up and not to make it known to the person,* *who is
asking for such an information. No rule or provision, either constitutional or
statutory has been placed before us to draw a presumption of secrecy with
respect to the amounts disbursed and the details of such person or in other
words, with respect to the disbursement of the discretionary fund from the Chief
Minister Secretariat, to the persons who are the beneficiary of such
disbursement. In the case of Coimbatore District Central Coop.. Bank v.
Employees Assn. (2007) 4 SCC 669, the court dealing with the doctrine of
proportionality, a principle where the Court is concerned with the process,
method or manner in which the decision maker has ordered his priorities, reached
a conclusion or arrived at a decision, observed that the doctrine of
proportionality has its genesis in the field of administrative law. The
Government and its departments, in administering the affairs of the country, are
expected to honour their statements of policy or intention and treat the
citizens with full personal consideration without abuse of discretion. There can
be no “pick and choose”, selective applicability of the government norms or
unfairness, arbitrariness or unreasonableness. The very essence of decision
making consists in the attribution of relative importance to the factors and
considerations in the case. The doctrine of proportionality thus steps in focus
true nature of exercise, the elaboration of a rule of
permissible priorities. “Proportionality” involves “balancing test” and
“necessity test”, whereas the former (balancing test) permits scrutiny of
excessive onerous penalties or infringement of rights or interests and a
manifest imbalance of relevant considerations, the latter (necessity test)
requires infringement of human rights to the least restrictive alternative.
The Chief Minister while distributing the amount to the persons entitled to have
the benefit of the aforesaid public fund, has the discretion to make such grant
to the eligible persons and while exercising the discretion, he/she as the case
may be, has the discretion to enhance the amount as against the amount normally
prescribed for each category, but the discretion to whom the amount under the
discretionary fund should be paid and what amount should be paid also has to be
exercised with caution and care and on a reasonable basis, e.g., in any special
matter where the amount specified is found to be very low, so as to meet the
exigency for which the amount is to be paid, the Chief Minister would have the
discretion to make a larger payment which means that the discretion of giving
enhanced amount is also circumscribed by the requirement of it being a ‘special
matter’. For example, in case a poor person needs to have the medical expenses
for kidney
transplant, lever transplant, bypass surgery or any other disease like cancer
etc. requiring huge expenditure in his treatment, the enhanced amount can be
given. Illustrations aforesaid are not exhaustive, as there may be many more
cases, under different entitlements, where the Chief Minister could exercise the
discretion of providing any enhanced or increased amount as against the one
prescribed. Whenever a discretion is vested with any authority to do or not to
do a thing, it has to be done by exercise of sound discretion, as per the rules
and guidelines given under the rules.
When the Rules themselves prescribe the categories of persons to whom the
benefit can be extended with the eligibility criteria, the maximum amount which
can be paid to such defined persons, there being requirement of making audit by
the Accountant General, U.P., of the Chief Minister’s Discretionary Fund with
powers to the Chief Minister and District Magistrate to look into the records of
the beneficiaries and verify that the amount has been received by the eligible
persons, coupled with the fact that the beneficiary is also under the obligation
to utilise the fund given to him within the prescribed period for the purpose it
was given, failing which, unused amount has to be refunded in one go, it cannot
be said that there can be any secrecy in the matter either with respect to the
disbursement of the discretionary fund to any particular person or his/her
entitlement for the same nor it would be a case of infringing any right of
privacy of a person, to
whom the benefit has been extended.
There appears to be no reason for not making such information known to the
public or atleast not making it known to the persons, who asks for such
information, when the disbursement is made under the Rules notified by the
Governor. Extending the benefit to the eligible and deserving persons, is a
laudable object and a highly appreciative function of the Chief Minister and,
therefore, also the disclosure of such an information would not affect the
credibility of the Chief Minister’s Secretariat or its functioning, but would
make the entire functioning transparent, which would enable the applicant to
know that the discretionary funds have been properly utilized. In a democratic
set up, every organ of the State including the legislature and the executive is
answerable and accountable to the public. There cannot be a bar nor any
impediment can be placed in disclosing such an information which relates to the
benefits extended from the discretionary fund of
the Chief Minister to the persons entitled to such benefit. Chief Minister’s
Discretionary Fund is a name, but none the less it is a public fund and public
money. The citizens have a right to know that in what manner, the said
discretionary fund has been used and utilized. From the category of persons to
whom this benefit can be extended, it is clear that it takes into account not
only the destitute, disabled weaker section of people, widows, children, but it
also prescribes the given amount for social and cultural organizations, poor
person suffering from disease, for construction of the school building of any
non-governmental educational institution etc. etc. That being so, there cannot
be any plausible reason for not disclosing the information regarding
disbursement of the discretionary fund to any person.
The plea that if such an information is disclosed, it would cause unwarranted
invasion of the privacy of the person who is a beneficiary is concerned, the
same is wholly untenable and devoid of substance. The person who is extended the
benefit of discretionary fund does not compromise with his honour and prestige
nor acceptance of such a benefit belittles his status. The Chief Minister while
extending the benefit of the given amount from the Chief Minister’s
Discretionary Fund, discharges his/her, as the case may be, social obligation,
in consonance with the socio economic policy of the State to the person, who is
entitled under the rules for having the said benefit. The extension of the
economic assistance to the persons entitled, is a step towards discharging the
functions of a welfare State by providing monetary help to the deserving under
the Rules.
The benefit is supposed to be extended possibly to the maximum number of
persons, who fall within the category of entitlement, which care has been taken
by providing the maximum amount against each category of person, which can be
normally provided. This has been done with a view to meet the economic capacity
and the amount, available in the Chief Minister’s Discretionary Fund. The amount
appears to have been prescribed against each category, with a view to make the
funds available to maximum possible number of people and not allowing the
discretion to be exercised in a manner, so that it concentrates into the hands
of few beneficiaries. Of course, those who are not entitled for the
discretionary fund, may not be allowed the money from the said fund, if the rule
or the law otherwise does not permit. The beneficiary of the discretionary fund
cannot feel any inconvenience or discomfort, in case the information is given
about the amount, that has been given
to him under the said rule. Of course, if any undue advantage has been derived,
it cannot stand protected by simply hiding or by not disclosing the information
to the person, who asks for the same.
The plea that if such an information is given, it would cause unwarranted
invasion of the privacy of the individual beneficiary is otherwise also not
available to the petitioner or the Public Information Officer or the State nor
to the department concerned, as it may be the individual defence, if at all
available, to the beneficiary. The information asked for, is only to provide the
information with respect to the discretion of the Chief Minister’s Secretariat,
where the funds have been released to the beneficiaries, and not the information
from the beneficiaries, as to what they have done to the funds given to them. In
case, any such information is asked for, which relates to third person, namely,
the beneficiary, and if, he or she had claimed confidentiality of such an
information, and if such an information can at all be treated as confidential,
only in that case, provisions of Section 11 would apply, but it would also not
mean that such an
information would stand absolutely exempted from being disclosed.
It is to be noticed that when the beneficiary of the grant from the Chief
Minister’s Discretionary Fund is under an obligation to use the money so paid
for the same very purpose, for which, it has been paid with the obligation upon
the beneficiary to return the unused money in one go, and that too within the
prescribed period, for which utilization certificate has to be furnished by the
District Magistrate after making necessary verification, it cannot be said that
it is an information, which can seek confidentiality within the meaning of
Section-11 of the Act of 2005 or can be treated as confidential by the
beneficiary, treating it to be a third party information. One cannot forget,
that the monetary assistance extended to the beneficiary is from the public
fund.
In our considered opinion, the information asked for regarding the names and
details of the persons, who have been paid an amount of more than Rs.1 lac from
the Chief Minister’s Discretionary Fund for the period in question, is not an
information, which is covered under Section 8(j) nor it stands exempted
otherwise. This takes us to the next question regarding the authority of the
Commission/Chief Information Commission to direct the Public Information Officer
to give the information asked for within a specified period, while dealing with
a complaint under Section 18 of the Act.
The petitioner in support of his plea, that the Commission cannot direct for
supply of the information, in proceedings under Section 18, has relied upon the
case of *Reliance Industries Ltd. vs. Gujarat State Information Commission and
Ors., reported in AIR 2007 GUJARAT 203. A learned Single Judge of the High Court
of Gujarat in this case, while considering the effect of information asked for
relating to third party, taking into account the provisions of Sections 11 and
19 of the Act, also had an occasion to consider the scope of Section 18 of the
Act, wherein the Court observed that a third party information cannot be given
unless the rules of natural justice are followed in the manner prescribed under
the Act.
The legal proposition as enunciated by the Gujarat High Court with respect to
affording of reasonable opportunity to the third party to whom either the
information relates or who had supplied the information and which information is
being treated as confidential by such a person, is not only the tenet of the
principles of natural justice but it also flows from the statutory provisions of
Section 11 1) itself. In case where Section 11 applies, of course, due
opportunity, as provided under the Act, has to be afforded to the third party
and only after following its rules, the information can be supplied or refused
and that too by giving reasons.
We, therefore, are in respectful agreement with the aforesaid view of following
the rules of natural justice, expressed by the Gujarat High Court.
The view expressed otherwise in respect of locus standi of a person to seek an
information and also on the scope of Section 18 of the Act, requires
consideration. The Gujarat High Court while dealing with the aforesaid
proposition of law, took into consideration the judgement of the apex court in
the case of Ashok Kumar Pandey vs. State of West Bengal and others, reported in
AIR 2004 SC 280, for holding that care has to be taken that the information is
not asked for by the persons, who seek the information with an intention to
blackmail the person against whom the information is asked for and that the
nature of the information asked for and the person who asked for information are
the relevant considerations.
In regard to the observations of the Gujarat High Court, suffice would be to
mention that the Court proceeded on the assumption that the right to seek
information is like filing writ petition in the nature of public interest
litigation. In a public Interest litigation, care has to be taken that it is not
a petition for settling the personal score or satisfying the personal vendetta
or is not a publicity interest litigation or pecuniary interest litigation. The
essence of the grievance raised and the bona fide of the person in bringing the
issue to the Court, are such key factors, which play an important role in the
public interest litigation.
The Supreme Court even in a petition of PIL has held in the case of T.N.
Godavarman Thirumulpad (98) vs. Union of India and others, (2006) 5 SCC 28 and
Vishwanath Chaturvedi (3) vs. Union Of India and others, (2007) 4 SCC 380, that
even if the person bringing the cause to the Court has no locus standi to pursue
the matter or he is not a bona fide person or a public spirited person or may
have approached the Court with political reasons but still in such a case the
grievance raised can be looked into and if found genuine and worth being
enquired into, the same can be entertained.
Under the Right to Information Act, the locus standi of the person is of no
avail. Any citizen can ask for any information, which is not protected under the
relevant clauses of exemption. The Public Information Officer is under the legal
duty to supply the information so asked for. Sub-clause (2) of Section 6 itself
says that an applicant making request for information shall not be required to
give any reason for seeking the information or any other personal details except
those that may be necessary for contacting him. This leaves no room of doubt
that the information cannot be refused on the ground that the person asking for
information is not a bona fide person and it cannot also be enquired from him as
to why he is seeking the information.
The view, therefore, expressed by the Gujarat High Court in this regard without
adverting to the scheme of the Act, 2005 and without noticing the provisions of
Section 2(j) and Section 3 of the Act, are contrary to law. Section 2(j), says
that the 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
Section 3, says that subject to the provisions of this Act, all citizens shall
have the right to information.
We thus find that the Gujarat High Court did not take into consideration the
provisions of Section 2(j) and Section 3 and also sub-clause (2) of Section 6,
which specifically prohibits from making any enquiry from the applicant for
giving reasons for seeking the information or any other personal details except
his address, where he could be contacted. Thus, the view expressed by the
Gujarat High Court in respect of the locus standi of the applicant, asking for
any information cannot be said to be a binding precedent.
We, therefore, with utmost regard to the learned Judge of the Gujarat High
Court, are unable to subscribe to the said view. Gujarat High Court also held
that the information cannot be directed to be given under Section 18, but
recourse can be taken in appeal for having the information, which has been
either illegally withheld or has been specifically refused.
For finding out the true meaning, import and scope of Section 18, we have to
make purposive interpretation of the provision, keeping in view the object and
purpose of the Act. On seeing the scheme of the Act, the relevant extracts of
which, we have reproduced earlier, it is beyond doubt that the object and
purpose of the Act is to provide information to the citizen (applicant), who
makes a request for having such an information, which can be given under the Act
and which does not stand exempted or so to say is not prohibited from being
furnished under the provisions of the Act.
Normal rule of interpretation is, to give such meaning to the provisions of the
Act, which furthers the object of the Act and does not restrict its
applicability so as to defeat its very object and purpose. The intention in
making a provision, the principle which guided for such an enactment and the
mischief which is intended to be rectified cannot be lost sight of, while
discovering the true meaning and import of the provisions of the Act.
While interpreting any statute, normally a literal construction of the provision
has to be made and if the language is clear, unambiguous and meaningful, which
forwards the cause of enactment, the Court would restrain itself from making an
effort to interpret the provisions in any different manner, which would have the
effect of amending the rule or rewriting the provision.. The literal rule of
construction is the normal rule of interpretation, which does not infringe upon
the statute or the statutory provision and carries forward the intention, object
and purpose of the Act. Any hardship to any person or any lacuna in the Act can
also not be filled in, unless of course the provision militates against the
object and purpose for which it has been enacted or leads to absurdity.
In the case of A.N. Roy, Commissioner of Police and another vs. Suresh Sham
Singh, reported in (2006) 5 SCC 745, the Supreme Court observed as under: “*it
is now well-settled principle of law that the court cannot enlarge the scope of
legislation or intention when the language of the statute is plain and
unambiguous. Narrow and pedantic construction may not always be given effect to.
The Courts should avoid a construction, which would reduce the legislation to
futility. It is also well settled that every statute is to be interpreted
without any violence to its language. It is also trite that when an expression
is capable of more than one meaning, the court would attempt to resolve the
ambiguity in a manner consistent with the purpose of the provision, having
regard to the great consequences of the alternative constructions. ”
In the case of Southern Petrochemical Industries Co. Ltd. vs. Electricity
Inspector and ETIO, (2007) 5 SCC 447, held that only in case a literal
interpretation gives rise to anomalous situation, purposive interpretation may
be resorted to, and again in the case of S.B. Bhattacharjee vs. S.D. Majumdar,
(2007) 10 SCC 513, it was said that for giving effect to the legislative intent
in the face of draftsman’s unskillfulness or ignorance of law, the court must
consider executive instructions or office memorandum as executive interpretation
based on the doctrine of contemporanea expositio.
In the case of *Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC 230,
the Supreme Court held that the literal rule of interpretation really means that
there should be no interpretation. In other words, we should read the statutes
as it is, without distorting or twisting its language. The literal rule of
interpretation is not only followed by judges and lawyers, but it is also
followed by the layman in his ordinary life. The meaning of the literal rule of
interpretation is simply that we mean what we say and we say what we mean. The
first and foremost principle of interpretation of a statute in every system of
interpretation is the literal rule of interpretation. The other rules of
interpretation e.g. The mischief rule, purposive interpretation, etc. can only
be resorted to when the plain words of a statute are ambiguous or lead to no
intelligible results or if read literally would nullify the very object of the
statute. Where the words of a
statute are absolutely clear and unambiguous, recourse cannot be had to the
principles of interpretation other than the literal rule. Even if the literal
interpretation results in hardship or inconvenience, it has to be followed.
The Supreme Court had an occasion to consider the principle of purposive
interpretation in the case of State of U.P. and others vs. Jeet S. Bisht and
another (2007) 6 SCC 586, wherein two Hon’ble Judges have delivered the
judgement separately, but the out come of the petition is the same, though
reference to Larger Bench has been made, on the reasoning given by them.
In paragraphs 72 and 73, Justice S.B. Sinha, held as under: “72.With the advent
of globalisation, we are witnessing a shift from formalism to a value-laden
approach to law. In the contemporary scholarship, especially with the decimation
of law as purely an autonomous discipline (with the emergence of cross-cutting
realms such as Law and Economics, Law and Philosophy, Law and Society, IPR et
al), we see that laws embody a goal, which may have its provenance in sciences
other than law as well. It is no more the black letter in the law which guides
the interpretation but the goal which is embodied by the particular body of law,
which may be termed as the rationality of law.
73. Law, in its value-laden conception, is not entirely endogenous in its
meaning and purpose, the construction thereof also depends on the statement of
purport and object. There is a spillover of the aforementioned shift in
philosophy of law to statutory interpretation. Purposive interpretation, of
lately, has gained considerable currency, which is relevant for the sake of
maximising the efficiency in respect to the point behind the rule. There may be
a situation when purposive interpretation is required even in the context of
deciphering the constitutional mandate by invoking the notion of active liberty
discovered by Justice Stephen Breyer of the American Supreme Court. This is the
precise role which was exhorted by Bruce A. Ackerman in the famous Storrs
Lecture.”
Despite reference to Larger Bench, the rule of purposive interpretation, can
still be made applicable to understand the provisions in the instant case..
Section 18 of the Act is a provision, which allows the applicant who has been
refused information or who believes that complete information has not been
given, or who has been denied the information by simply delaying the
information, to make a complaint to the Commission, Central or State, as the
case may be, who would make an enquiry into the said complaint.
Section 19(8)(a) is in general terms, which confers power upon the Commission,
may be the Central or the State, to require the public authority to take any
step as may be, necessary to secure compliance under the said Act including
providing access in a particular form to the information asked for. This means
that the Commission can direct for supplying the necessary information in such
form, as may be required, therefore, there cannot be any dispute that in the
appeal proceedings, the information which has not been given by the Public
Information Officer can be directed to be supplied.
What would be the position, in case a complaint has been made under Section 18
of the Act, regarding refusal of information etc. is a matter which requires
consideration.
Section 18 is a provision which gives a statutory avenue for vindicating the
grievance of the persons, who asked for such information, but the same has not
been given. To keep a check and control upon the functioning of the Public
Information Officers, so that they may not go berserk and violate the statute,
capriciously and arbitrarily, Section 18 has been enacted. In case the
Commission finds that the concerned officer has violated the provisions of the
Act, in discharging the duties under the Act and has illegally, wrongfully or
malafidely refused the information, he can be subjected to a penalty, which may
be, namely, Rs.250/- per day, till the information is provided or to a maximum
of Rs.25000/-.
In case the intention of the provision of the aforesaid Act was only to punish
the guilty information officer, there would have been no occasion under Section
18(3) to confer powers upon the Commission, which are vested in a civil court
while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908),
requiring discovery and inspection of documents and requisitioning any public
record or copies thereof from any court or office, and for specifically
providing under sub-clause (4) of Section 18 that notwithstanding anything
inconsistent contained in any other Act of Parliament or State Legislature, as
the case may be, the Central Information Commission or the State Information
Commission, as the case may be, may, during the inquiry of any complaint under
this Act, examine any record to which this Act applies which is under the
control of the public authority, and no such record may be withheld from it on
any grounds.
The obvious intention and the purpose of the aforesaid powers being vested with
the Commission in the matter of enquiry is to confer all such powers upon the
Commission, which can compel the erring officers to disclose and supply the
information, which cannot be withheld for any reason whatsoever under the
provisions of the Act. Of course, an enquiry on such a complaint naturally would
mean to enquire as to whether the information was rightly refused, delayed or
was incorrectly given, and for that matter, the power, as given in sub-clauses
(3) and (4) of Section 18 the Act, have to be used and on finding that the
information was wrongly refused or illegally withheld or was incorrectly or
malafidely refused, the Commission cannot be stopped from issuing direction for
giving the necessary information.
The purpose of holding enquiry would be of no meaning if only punishment is
given to the erring officer, as it would not serve the purpose of the Act and
the power so conferred upon the Commission, requiring requisitioning of any
public record or copies thereof from any court or office, shall also have only a
limited purpose to find out as to whether the punishment should be awarded to
the erring officer or not. This is not the intention of the Act or the
provisions of Section 18.
Section 20 which prescribes the penalties, takes into account both ‘complaint’
and ‘appeal’, says that the Central Information Commission or the State
Information Commission, as the case may be, while deciding any complaint or
appeal, if satisfied that the application has wrongly been refused from being
entertained or the information has not been given for the reasons given therein,
impose the penalty as prescribed, meaning thereby that at the time of either
deciding a complaint or an appeal, the Commission has the power to impose
penalty and that this penalty would be imposed till the application is received
or information is furnished. This clarifies that the penalty can be imposed by
the Commission while deciding the complaint or while deciding the appeal. Such
penalty can be imposed for such term, till the application is received or
information sought for is given, as the case may be, @ Rs.250/- each day,
subject to a maximum of Rs.25,000/-.
So far the power to issue direction for receiving the application or for
supplying the information is concerned, it is for one and the same purpose,
i..e., for supplying the correct information to the applicant, if it does not
stand exempted under the Act. In this regard, there can be no distinction, when
the Commission enquires into a complaint or hears an appeal under the aforesaid
power. This view also stands fortified by the fact, that Section 20, which gives
the consequence of enquiry being held under Section 18, on a complaint being
received, says in sub-clause (1) “…… It shall impose a penalty of Rs.250/-
per day, till the information is provided or to a maximum of Rs.25000/-“,
meaning thereby that the penalty is to be imposed for compliance of the
provisions of the Act.
The aforesaid clause in inverted commas, means beyond doubt that the Commission
on being satisfied about the complaint and while deciding any complaint or
appeal, if it is of the opinion that without any reasonable cause, the
application was refused, or the necessary information has not been given or the
same has not been furnished within time or has been malafidely denied or the
knowingly incorrect information has been given etc. etc., only then it shall
impose the penalty aforesaid. Since the penalty of Rs.250/- per day is to be
imposed till the application is received by the Public Information Officer,
Central or State, as the case may be, if they had refused to accept application
or the information asked for is furnished, it is apparent, that the very purpose
of this penal provision is to make the officer concerned to supply the
information.
In a given case, where a complaint has been made that the information has not
been furnished, the penalty of Rs. 250/- each day, shall be imposed till the
information is furnished, to a maximum of Rs.25000/-, which means that even
while dealing with the complaints, the Commission can ask for the disclosure of
the information, otherwise, the provision would not have contained the phrase
aforesaid, which prescribes the penalty of Rs. 250/- each day, till application
is received or information is furnished, as the case may be.
The intention of the provision is clear. The penalty is to be imposed for the
period during which either the application is not received or the information is
not given, but the moment, the application is accepted or information is given,
as the case may be, the penalty cannot be imposed any further.. Of course, the
maximum limit of penalty is Rs.25000/-, but that does not in any way fetter the
power of the Commission to issue a direction for furnishing the information. The
maximum amount of penalty does not qualify the main substantive provision, which
says that it shall be imposable till the information is given or the application
is received, as the case may be.
In a given case where no appeal has been filed or even after first appeal, the
information has not been given and if no second appeal has been filed, but a
complaint has been made, it would be the discretion of the Commission to pass
appropriate orders for furnishing of the information, in case the Commission is
satisfied and if it is established from the record that the information was
illegally refused or not given correctly etc. etc.
In the absence of any prohibition under Section 18 and there being no other
provision, which puts any embargo or curtails the jurisdiction of the Commission
to order for supply of the information not duly supplied, or to ask for
receiving of the application, which has been wrongly refused from being
entertained, the provisions of Section 18 has to be read in a manner, which does
not have the effect of curtailing the jurisdiction of the Commission, which
otherwise can be exercised under the provisions of the Act.
Section 18 is a substantive provision regarding lodging and enquiring into a
complaint, whereas Section 20 is the consequence of such an enquiry. The whole
purpose of making an enquiry on a complaint being given by the affected person,
shall stand defeated, if the two provisions are read in isolation or they are
given a meaning which does not further the object of the Act. From a harmonious
construction of the aforesaid provisions keeping in mind the purpose for which
they have been enacted, it can be safely concluded that the powers of the
Commission under Section 18 are not restricted only to make enquiry and award
punishment, but they also extend for issuing direction for receiving the
application or for giving the necessary information under the provisions of the
Act. Any other interpretation would not be in consonance with the scheme of the
Act and shall also amount to restricting and curtailing the power of the
Commission by judicial
interpretation.
The Act contains two types of information; first which is to be suo motu
provided without even being asked for under Section 4 and the other information,
which is to be given when asked for. Of course, there is a third classification,
which exempts certain information from being disclosed and a corollary to the
said exemption is such information, which though stands protected, but can be
disclosed by the competent authority, if satisfied that it is in larger public
interest to disclose such information. Any interpretation to any of the
provisions of the Act, if leads to absurdity or may lead to defeat the very
purpose of the Act, has to be avoided. There is no attempt to twist the words or
the phraseology used, but for correct interpretation of provision of Section 18,
it cannot be read in isolation, but has to be seen in the light of the
consequences of a complaint of Section 18, as given in Section 20 of the Act,
besides also the purpose and object of
the Act for which it has been enacted.
It shall be a futile exercise in case the enquiry as contemplated, on a
complaint is made, but remains confined only to the award of punishment with no
consequence of furthering the object of the Act, i.e. without requiring the
Public Information Officer to supply the information asked for. The meaning,
intention and import, therefore, is clear that if a complaint is made and if the
Commission is satisfied that the information has wrongly been withheld or has
been refused, etc., then in addition to the penal actions prescribed it can also
order for supply of such an information.
We, therefore, with deep respect are unable to concur with the view expressed by
the Gujarat High Court to the contrary in the case of Reliance Industries Ltd.
vs. Gujarat State Information Commission and Ors., reported in AIR 2007 GUJARAT
203, with respect to the scope of Section 18.
In view of above, we are of the considered opinion that neither the information
asked for regarding distribution of the discretionary fund viz. in the instant
case, information regarding the details of the persons, who have been given an
amount of more than Rs.1 lac can be refused nor it stands exempted under Section
8(j) of the Act. We are also of the view that the Commission while enquiring
into the complaint under Section 18, can issue necessary directions for
supply/disclosure of the information asked for, in case the Commission is
satisfied that the information has been wrongly withheld or has not been
completely given or incorrect information has been given etc.., which
information otherwise is liable to be supplied under the provisions of the Act.
Before parting, we will also like to put on record that all the information
regarding the Chief Minister’s Discretionary Fund, including the information
regarding the persons, who have been granted any amount from the discretionary
fund with their category and the amount paid/disbursed, may be treated such an
information, which requires to be made available to the public in terms of
Section 4 of the Act. The public has a right to know about the disbursement of
the Chief Minister’s Discretionary Fund to the persons and the amount which has
been paid with a further information that whether the amount has been properly
utilized in the given time or not.
We, however, refrain ourselves from issuing any such directive, but we hope and
trust that the State Government shall look into the matter and exercise its
discretion, particularly when there are specific rules, duly formulated by the
Governor, prescribing for audit by the Accountant General, U.P. of the
discretionary fund and also other provisions regarding the entitlement and
utilization etc., which we have already discussed above.
We have been persuaded to make these observations in accordance with the
provisions of the Rules of 1999, sub-clause (xvii) of Section 4(1)(b) and also
sub-clause (2) of Section 4 of the Right to Information Act, 2005, which says
that it shall be a constant endeavour of every public authority to take steps in
accordance with the requirements of clause (b) of sub-section (1) of Section 4,
to provide as much information suo motu to the public at regular intervals
through various means of communications, including internet, so that the public
have minimum resort to the use of this Act to obtain information. We, thus do
not find any illegality in the impugned orders dated 12.12.2007, 18.1.2008 and
15.2.2008, contained in Annexure Nos.1, 2 and 3 respectively to the writ
petition, passed by the Commission nor we find any reason for the petitioner not
to supply the information asked for.
The writ petition is devoid of merits and is dismissed.
July 1st, 2008
Ranjana Kumari brandishes her belly button
IPC 498A 
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