Central Information Commission
Saurav Das vs National Disaster Management ... on 19 May, 2021
Central Information Commission
,
Baba Gangnath Marg, Munirka
, New Delhi-110067
/ Second Appeal Nos. CIC/CABST/A/2020/696949
CIC/CABST/A/2020/696951
CIC/NDM AU/C/2021/616841
Shri Saurav Das ... /
Appellant/Complaina
nt
VERSUS/
PIO, Cabinet Secretariat ... /Respondent
Through: Sh. S K Das Gupta - US for
Health
PIO, Ministry of Home Affairs
Through: Sh. Pawan Kumar - DS(DM-I)
PIO, NDMA
Through: Sh. Abhishek Sharma- Sr.
Research Officer, NDMA and Sh. Ambuj
Vajpayee- US, Mitigation Cell
Date of Hearing : 17.05.2021
Date of Decision : 19.05.2021
Chief Information : Shri Y. K. Sinha
Commissioner
Relevant facts emerging from appeal:
Note: The present batch of Appeals as listed above has been preferred
by the same Appellant and is being heard now given the present
situation. The Commission proposes to club these matters and
adjudicate upon them all together through the present order for the
sake of brevity and avoidance of multiple proceedings.
Case RTI Filed CPIO reply First FAO 2nd Appeal
No. on appeal received
on
Page 1 of 11
696949 12.08.2020 19.08.2020 28.08.2020 08.09.2020 20.12.2020
696951 12.08.2020 27.08.2020 28.08.2020 08.09.2020 20.12.2020
616841 23.09.2020 21.10.2020 --- --- 11.05.2021
Information soughtand background of the case:
(1) CIC/CABST/A/2020/696949 The Appellant filed an RTI application dated 12.08.2020 seeking information on 10 points in respect of a meeting the Cabinet Secretary had conducted with Chief Secretaries of all states and UTs held on March 22/23, 2020 relating to lockdown measures to contain the spread of corona virus in the country. Information sought was as under:-
(1) Furnish the details of this meeting that took place. Furnish the certified true copies of the minutes of the meetings. (2) Furnish the decision reached at the end of the meeting. (3) Furnish the agenda of the meetings.
(4)Furnish the annexures, additional documents, supporting documents, presentations that were sent or used in the meetings.
(5) Furnish the action taken a fter the meetings were concluded.
(6) Furnish the certified true copies of the entire file rela ting to theproposal for lockdown measures that was put up before the competent authority by theCabinet Secretary. (7) Furnish the certified true copy of the final report that was made a fter this consultation process with the states and UTs on the lockdown measures.
(8) Furnish the final list of districts and ci ties that were decided to be put on lockdown to contain the coronavirus a fter this consulta tion process.
(9) Furnish the details of the authority/Minister to which this final proposal for lockdown was sent after the consulta tion process.
(10) Whether any meetings took place with the states and UTs on lockdown measures before March 22/23, 2020. If so, furnish the certified true copies of the minutes of the meetings and the agenda and the decisions taken at the end of the meetings.Page 2 of 11
The CPIO vide online reply dated 19.08.2020 denied disclosure of information sought by the Appellant stating that the information sought is exempted under section 8(1)(i) of the RTI Act, 2005.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 25.08.2020. The FAA vide order dated 08.09.2020 disposed off the First Appeal, as incomplete.
Aggrieved and dissatisfied with the reply, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging during the course of hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through audio conference was scheduled after giving prior notice to both the parties. Both parties are heard through audio conference and submitted their respective contentions.
The Respondent averred that lockdown is continuing and series of measures announced thereafter are continuing and hence the matter is still pending. It is on this premise that the information sought by the Appellant could not be divulged, under the RTI Act.
The Appellant contended in response that he sought information pertaining to the national lockdown which came into force in the March 2020, in the wake of the corona pandemic. He emphatically argued that since the national lockdown was lifted in 2020 itself, the denial of information by the Respondent stating that the process of lockdown is still continuing is incorrect and the exemption claimed under Section 8(1)(i) of the RTI Act is legally erroneous. The Appellant has contended that the privilege of exemption of the information sought, ceased to exist once the final decision was taken and the matter attained finality. He went on to submit that meetings of the Cabinet Secretary were held to decide restrictions that were to be imposed on parts of the country, amongst other things. A final decision was taken on March 24, 2020, after getting inputs from the meetings and it was decided that a national level lockdown would be announced. Therefore, once this announcement was made on March 24, 2020, the availability of exemption under Section 8(1)(i) of the RTI Act ceased to exist. The second wave of the pandemic which has surfaced in 2021 has resulted in lockdown, in almost all the States and UTs. However, it is distinct from the national lockdown of 2020, because it was not the decision of the Central Government in 2021, but announced by the States at different points of time. Further corroborating his argument, the Appellant placed reliance on the decision of the Delhi High Court in the case of CPIO, Department Of Personnel and Training Vs. Central Information Commission & Anr. dated 25/08/2017.Page 3 of 11
Decision Upon hearing the averments of the parties and perusal of records, it is important to revisit the factual premise. The nationwide lockdown was announced on 24th March 2020 which was extended in a phased manner from time to time as follows:
Phase 1: 25 March 2020 - 14 April 2020 (21 days)
Phase 2: 15 April 2020 - 3 May 2020 (19 days)
Phase 3: 4 May 2020 - 17 May 2020 (14 days)
Phase 4: 18 May 2020 - 31 May 2020 (14 days)
On 30th May, 2020 it was announced that lockdown restrictions were to be lifted from then onwards in a calibrated manner, while the ongoing lockdown would be further extended till June 30 for only containment zones.
Despite a second and more severe outbreak of the COVID pandemic in 2021, a nationwide lockdown has not been imposed, while varying restrictions are in place across 28 states and eight union territories in India. As such there is no national lockdown. In the given scenario, the averments of the Respondent claiming exemption from disclosure of information about "meeting of Cabinet Secretary with Chief Secretaries of all states and UTs held on March 22/23, 2020 relating to national lockdown measures", needs to be weighed carefully.
The Appellant has in his Second Appeal challenged the PIO's reply dated 19.08.2020 of outright denial of information invoking exemption under Section 8(1)(i) of the RTI Act, without assigning any reasons or substantiating the rejection. He has averred during the hearing that since no national lockdown was in place in August 2020, the reply of the PIO was legally incorrect.
Discussing the scope and ambit of the Section 8(1)(i) of the RTI Act, the Hon'ble Delhi High Court, in its decision dated 25.08.2017 in the case of CPIO, Department Of Personnel and Training Vs. Central Information Commission & Anr.held as follows:
"...26. The first proviso to Section 8(1)(i) of the Act is applicable not only to the decisions of the Council of Ministers but also to all material on the basis of which such decisions are taken. The word 'material' is of a very wide import and would cover not only the deliberations of the Secretaries and other officers, which form a part of the 'cabinet papers' but also any other information or Page 4 of 11 material taken into account by the Council of Ministers in arriving at its decision. Thus, it is apparent that the width of the information covered under the first proviso to clause (i) is not narrower than the width of said main clause. The proviso restricts the applicability of clause (i) not in the context of the width of the information covered but in the context of time. Thus, exemption from disclosure in relation to 'cabinet papers' would be available to the fullest extent by virtue of clause (i) till the relevant decisions pertaining to those cabinet papers are taken. It is clear that the legislative intention in enacting the first proviso to clause (i) is to remove the exemption available in totality, once the decision making process corresponding to the cabinet papers is complete. Thus, the applicability of clause (i) of Section 8(1) of the Act is confined only to the period when the cabinet papers are under consideration and not thereafter. Once the deliberations are over and the decisions have been taken, the subject information contained in the cabinet papers is no longer exempt from disclosure.
27. It is also relevant to mention that the cabinet papers may still continue to be exempt from disclosure if the nature of information contained therein is covered under any of the clauses o f Section 8(1) of the Act. This is made explicitly clear by the second proviso to Section 8(1)(i) of the Act."
Emphasis supplied In the light of the above facts which have emerged on perusal of records of the case and after hearing the detailed averments of the Appellant, the Commission is not convinced by the bland response of the PIO, denying disclosure of information. The PIO's reply is unsubstantiated, particularly because applicability of the provision of Section 8(1)(i) of the RTI Act, 2005 to the facts of this case has not been established by the Respondent. The FAA has not dealt with the contentions put forth by the Appellant, challenging the PIO's reply and instead passed a rather cryptic order.
Under the circumstances, the Commission deems it necessary that the First Appeal filed by the Appellant should be adjudicated by the FAA, appropriately, upon hearing the parties. Hence, the matter at hand is remanded to the FAA/Deputy Secretary - Sh. Niranjan Chandrashekhar Cheryamane for reconsideration of the First Appeal and to pass a reasoned speaking order, in terms of the provisions of the RTI Act, upon hearing both parties and on factual analysis of the issues. The Respondent is directed to submit a copy of the FAA's order before the Commission by 31.07.2021, after supplying the same to the Appellant.
Page 5 of 11(2) CIC/CABST/A/2020/696951 The Appellant filed an RTI application dated 12.08.2020 seeking information on 11 points about details of decision-making process relating to announcement of national lockdown on 24.03.2020. The queries raised by the Appellant were as under:-
(1) Furnish the certified true copies of the entire file relating to the announcement of the national lockdown on March 24, 2020 in order to contain the corona virus spread.
(2) Furnish the certified true copies of the advice given to the concerned Minister and his office for lockdown in the country. (3) Furnish the certified true copies of the proposal that was put up before the concerned Minister and his Office for lockdown in the country.
(4) Furnish whether any expert advice was sought on the decision for a national lockdown to be put in place, as was announced on March 24, 2020 by the Prime Minister. If so, furnish certified true copies of the advice as received including the exact details of the paragraphs that recommended a national lockdown. (5) Furnish the file notings, remarks, etc. made by the concerned Minister and officers of his Office on the proposal for lockdown measures to be put in place.
(6) Furnish all the communications, memos, documents, details of the meetings that took place to decide the national lockdown on March 24, 2020.
(7) In relation to the above, kindly furnish the names and designations of the experts/officers/persons that advised/recommended/decided for the nationa l lockdown as was announced on March 24, 2020 (8) Furnish the names and designations and details of the epidemiologists that were consulted in order to reach the decision of the national lockdown.
(9) Whether the Ministry of Health and its various departments and experts had been consulted for the national lockdown by the Cabinet Secretariat. If so, furnish the certified true copies of the advice/recommendations as provided by them. Etc. The CPIO vide online reply dated 27.08.2020 informed the Appellant that points number 1 to 8 and 11 has been transferred to Ministry of Home Affairs Page 6 of 11 as it pertains to them. In respect of point 9, the Appellant was informed that for lockdown measures deliberations took place with Ministry of Health etc., in the Cabinet Secretariat. The records of deliberations of the Committee of Secretaries is exempted under Section 8(1)(i) of the RTI Act, 2005. In respect of point 10, the Appellant was informed that for lockdown measures deliberations took place in the Cabinet Secretariat with all concerned stakeholders, Departments, agencies. The records of deliberations of the Committee of Secretaries is exempted under Section 8(1)(i) of the RTI Act, 2005.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 28.08.2020. The FAA/Cabinet Secretariat vide order dated 08.09.2020 disposed off the First Appeal holding as follows:
It may be mentioned at the outset that records of deliberations of the Committees of Secretaries are classified documents. Further, Section 8(1)(i) of the RTI Act provides that there shall be no obligation to give any citizen "cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers.."
In view of the above, I find that the reply of the CPIO (as pertained to his jurisdiction) is just and proper.
Aggrieved and dissatisfied with the reply, the Appellant approached the Commission with the instant Second Appeal.
Facts arising during the course of hearing:
Written submissions dated 13.05.2021 have been received from PIO/Under Secretary(CA-III), Cabinet Secretariat, with respect to both the cases mentioned above, reiterating the facts already noted above.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through audio conference was scheduled after giving prior notice to both the parties. Both parties are heard through audio conference and the PIO, Cabinet Secretariat claimed that they are not the implementing authority of the decision arrived at on 24.03.2020 about the national lockdown and hence information is not held by them. When questioned about holding the information in the capacity of the convening authority, the PIO cited provisions of Section 8(1)(i) of the RTI Act, 2005.
The Appellant reiterated his arguments, which have been discussed at length in the appeal number CIC/CABST/A/2020/696949, hereinabove contending that the national lockdown having been announced on 24th Page 7 of 11 March 2020, the exemption claimed by the Respondent is no longer applicable. The Appellant has during the course of hearing sent vide email, response received by him from MHA. The online response dated 10.09.2020 received from MHA reveals that the Appellant was informed as follows:
"...The information sought by you does not form part of the records held by this office. However, it is to inform you that, based on the information available, National Disaster Management Authority (NDMA) vide order dated 24 thMarch, 2020, a fter assessing the threatening situa tion of spreading of COVID-19 in the country and in exercise of its power under Section 6(2)(i) of the Disaster Management Act, 2005, directed Na tional Executive Committee (NEC) to issue necessary guidelines to the Ministries/Departments of Government of India, State Governments and State Authorities to take measures for ensuring social distancing so as to prevent the spread of COVID-19 in the country. In compliance of above referred order of NDMA, the Home Secretary in his capacity as Chairperson of NEC issued an order dated 24 thMarch, 2020 under Section 10(2)(I) of Disaster Management Act, 2005 along with the guidelines on the measures to be taken by the Ministries/departments of Government of India, States/UT Governments and States/UT authorities for containment of COVID-
19 epidemic in the country vide order of MHA dated 24 thMarch, 2020. (Both orders can be accessed at website linkhttps://www.mha.gov.in/notifications/circulars-covid-19).
DS(DM-I). MHA- Sh. Pawan Kumar present during the hearing further submitted that despite the overwhelming crisis due to the pandemic which has affected a large number of officials from MHA as well, all possible steps are being taken to not only ensure uninterrupted operations but also furnish substantial information from time to time, since March 2020, in larger public interest. Dissemination of information about the various measures and guidelines adopted for containing and preventing the spread of the pandemic are being made available not only on the website of the MHA but are being circulated on social media and other public platforms on a regular basis. The Respondent further contended that such information is being supplied to create awareness and to prevent unverified and incorrect news from creating chaos or panic among citizens.
Decision Perusal of records of this case reveals that relevant information has indeed been provided by the Ministry of Home Affairs, upholding the spirit of the RTI Act, despite the current situation, which is commendable. However, Page 8 of 11 queries number 9 and 10 seem to suffer from the same lacunae as has been observed in the previous appeal, dealt with earlier.. Hence, in the light of the detailed discussion in the earlier case, the appeal pertaining to queries number 9 and 10 is remanded to the FAA/Deputy Secretary, Cabinet Secretariat - Sh. Niranjan Chandrashekhar Cheryamane for revisiting the reply given to queries 9 and 10 by the PIO and for adjudication of the issues raised by the Appellant with a reasoned speaking order, upon hearing both parties. The Respondent is directed to submit a copy of the FAA's order before the Commission by 31.07.2021, after supplying the same to the Appellant.
(3) CIC/NDM AU/C/2021/616841 The Complainant filed RTI application dated 23.09.2020 seeking information on 5 points seeking to know details of the decision making process and preparedness relating to large scale migration in the country in respect of national lockdown announcement on 24.03.2020. The queries raised by him are as under:-
(1) During the decision making process for March 24 national lockdown announcement, whether the topic of large scale displacement of people discussed. If so, furnish the details of the meeting that took place on this topic, agenda of the meetings, minutes of the meetings and the decisions reached. (2) Furnish the details of any meetings that took place for discussing the immediate consequences of the national lockdown as announced on March 24, 2020.
(3) Furnish the details of any relief measures that were decided to be put in place, prior to the national lockdown announcement.
Furnish the date of such meetings, minutes of the meetings and decisions reached.
(4) Furnish the details of any relief measures that were decided to be put in place FOR large scale movement of people from one state to another, prior to the national lockdown announcement. Furnish the date of such meetings, minutes of the meetings and decisions reached.
(5) Whether the Government of India a nticipated the migrant labourers mass movement after the March 24 announcement. If so, furnish the details of the meetings/communications/correspondences/file records in which this issue was discussed.
The CPIO vide an online reply dated 21.10.2020 informed the Complainant that no such information sought by the Applicant is available with the Mitigation Division.
Page 9 of 11Aggrieved and dissatisfied with the reply, the Complainant approached the Commission with the instant Complaint.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through audio conference was scheduled after giving prior notice to both the parties. Both parties are heard through audio conference and the Respondent from NDMA claimed that being the authority responsible for laying down the policies, plans and guidelines for Disaster Management, it does not hold the information sought by the Complainant. The authorities likely to be in custody of the information are either MHA or the Ministry of Labour. However the Respondents from the NDMA were unable to explain why the RTI application was not transferred to the actual custodian of information, likely to be in possession of the desired data.
Decision:
In the light of the facts of the case at hand, it is noted that the desired information has not been made available to the Complainant. In spite of the fact that in the current situation the public authority is battling an unprecedented pandemic, in order to protect and safeguard lives of the people, the mandate of law cannot be overlooked. In the event that the public authority did not hold the information, it was imperative upon the PIO to transfer the RTI application to the appropriate public authority, which is likely to hold information against the queries raised by the Complainant, which has not been done in this case.
Therefore, it is hereby directed that the PIO, NDMA should: i) provide an explanation as to why the RTI application was not transferred to the actual custodian of information, if known, under Section 6(3) of the RTI Act and ii) transfer the RTI application to the actual custodian of information, if known to the respondent. The explanation must reach the Commission by 31.07.2021, for consideration thereof.
The above cases are thus disposed off with these directions.
Y. K. Sinha( )
Chief Information Commissioner
Authenticated true copy
Page 10 of 11
S. K. Chitkara ( )
Dy. Registrar ( - )
011-26180514
Page 11 of 11