Central Information Commission
Fortis India Law vs Ministry Of Health & Family Welfare on 22 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/ICOMR/A/2018/133863/MH&FW-BJ
Fortis India Law
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Scientist
Indian Council of Medical Research
V. Ramalingaswami Bhawan
Ansari Nagar, Post Box 4911
New Delhi - 110029
... ितवादीगण /Respondent
Date of Hearing : 17.05.2019
Date of Decision : 22.05.2019
Date of RTI application 01.11.2017
CPIO's response 17.01.2018
Date of the First Appeal 26.12.2017
First Appellate Authority's response 18.01.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 5 points regarding the copy of the comments/ objections/ suggestions received (including global comment) on draft guidelines for National Stem Cell Research 2017 upto 31.07.2017, copy of minutes of each meeting in which the aforesaid comments/ objections/ suggestions were taken up for discussion and subsequently finalized, etc. Dissatisfied by the non-receipt of a reply from the CPIO within the stipulated time given in the RTI Act, the Appellant approached the FAA. The FAA, vide his letter dated 18.01.2018 while enclosing the reply of the CPIO dated 17.01.2018 stated that the concerned CPIO was not responsible for the delay as she was on leave for 03 months. Aggrieved by the reply, the Appellant approached the Commission on the ground that there was delay on the part of the CPIO in replying to the RTI application and that as per Section 8 of the RTI Act, 2005; the information sought did not come within the purview of "Confidential Information".Page 1 of 9
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Dr. Hemangi Sane, MD, Ms. Pooja Kulkarni, Ms. Shreya Madali and Mrs. Manisha Jadhav in person;
Respondent: Dr. Geeta Jotwani, Dy. Dir. Gen. / Sci. F (Sr. Grade) and Mrs. Rajni Khurana, SO;
Dr. Hemangi Sane re-iterated the contents of the RTI application and stated at the outset that due to her inability to file the RTI application she had filed the application/ First Appeal/ Second Appeal through the Law Firm- Fortis India Law. Explaining that the reply was not received within the time frame stipulated under the provisions of the RTI Act, 2005, she submitted that the reply was enclosed with the order of the FAA wherein information on draft documents discussed/ deliberated with concerned subject experts during the last 03 years were incorrectly denied being confidential information. Explaining the purpose behind filing the RTI application, the Appellant submitted that the National Guideline for Stem Cell Research, 2017 were drafted after taking into consideration the comments/ objections/ suggestions received (including global comments) and that the public was entitled to know if the same were taken into consideration while framing the guidelines. In its reply, the Respondent at the outset submitted that since she was on leave at the time when the RTI application was filed hence the same was answered on 17.01.2018 wherein a detailed reply on the queries raised in the RTI application was provided.
While explaining the background behind the formulation of the draft guidelines for the National Stem Cell Research, 2017, the Respondent submitted that the information sought regarding the draft guidelines for the National Stem Cell Research, 2017 being sensitive and confidential and related to various comments/ objections/ suggestions received from Third Party Individuals/ Institutions/ Organizations, etc could not be disclosed in compliance with the instructions of the higher authorities. As regards the information relating to the criteria for selection of Non- Government Members of Committee for drafting the National Guideline for Stem Cell Research, 2017, it was stated that members were appointed at the discretion of the Secretary, D/o Bio Technology and Secretary, D/o Health Research, M/o Health and Family Welfare. On being queried by the Commission regarding disclosing the information held and available with the Respondent Public Authority in the Public Domain, the Respondent submitted that disclosing the information could result in its misuse since it revolved around various medico legal issues on a continuously evolving and dynamic field of research and in many instances patients were likely to be misguided about the benefits from the use of technology by misunderstanding the facts that it would act as a panacea for all ills and that unscientific or unethical stem cell therapy continued to pose a threat to the well-being of patients and other vulnerable individuals. It was also emphasized that at the time of finalization of the guidelines the views of various independent organization/ research think tanks/ individuals/ representatives of various Government Institutions/ Organization Bodies and other stakeholders were taken into consideration. On being queried regarding the suo motu disclosure of minutes of meeting where comments/ objections/ suggestions on guidelines were taken into consideration and minutes regarding criteria for selection of Non-Government Members of the Committee for drafting the impugned guidelines, in the public domain, no satisfactory response was provided by the Respondent. The Commission was in receipt of a written submission from the Respondent dated 20.05.2019 wherein it was submitted that the Appellant (Fortis Law) did not attend the hearing and had sent their client for the same. Thereafter, it was mentioned that the ICMR had followed all the norms of drafting and finalizing the National Guidelines for Stem Cell Research. The Final Draft was Page 2 of 9 placed in the public domain for the stakeholders to respond. As there were technical/ scientific guidelines for the directions to the Scientists and Clinicians working/ interested in the field of stem cell research, the aim was to harmonise the existing acts and rules and to make their scientists and clinicians aware of the regulatory requirements. It was further submitted that the document was published in the year 2017 and if the Appellant had any serious concerns he could challenge it through the course of law.
The Commission at the outset dealt with the plea of the Respondent that the hearing for the Second Appeal was not attended by the Advocate (Fortis Law) but by their client. In this context, the Commission referred to the judgement of the Hon'ble Delhi High Court in the matter of Union of India vs. Vansh Sharad Gupta in W.P(C) 4761/2016 wherein while deliberating on the issue that the RTI Fee was not paid by the applicant in the form stipulated under the RTI Act, 2005, it was held that the technical approach undertaken by the Public Authorities for not filing the RTI application in a prescribed form and with the RTI fees could not be allowed in the way of substantial justice. Moreover, the issues raised by the Appellant in this matter had elements of overwhelming public interest which cannot be deflected merely on the ground that the Second Appeal was not attended by the Appellant filing the Second Appeal. The relevant observations made in the judgement are as under:
"3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.
4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"
As regards the denial of information regarding the comments/ objections/ suggestions received (including Global Comments) on the draft Guidelines for the National Stem Cell Research, 2017 on the ground that it was 'confidential' information, the Commission observed that the response provided under the RTI Act, 2005 should be speaking and reasoned leaving no scope for ambiguity. As per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. Furthermore, as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. The CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
Page 3 of 9"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
In the context of providing the copy of the note sheets and decisions of expert committee, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 wherein it was held as under:
"This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. The Union of India cannot rely upon Section 8(1)(e) of RTI Act, to deny information to the Petitioner in the present case. This Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent's application with reference to either Section 8(1)(g) of RTI Act. The disclosure of information sought by the Petitioner can hardly endanger the life or physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension. As regards Section 8(1)(j) of RTI Act, there is no question that nothings made in the files by government servants in discharge of their Page 4 of 9 official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) of RTI Act was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Furthermore, in a recent decision the Hon'ble High Court of Delhi in its order dated 12.02.2018 in W.P.(C) 7845/2013 (Paras Nath Singh Vs. Union of India) had held as under:
10. The contention that notings made by a junior officer for use by his superiors is third party information, which requires compliance of Section 11 of the Act, is unmerited. Any noting made in the official records of the Government/Public Authority is information belonging to the concerned Government/Public Authority. The question whether the information relates to a third party is to be determined by the nature of the information and not its source. The Government is not a natural person and all information contained in the official records of the Government / public authority is generated by individuals (whether employed with the Government or not) or other entities. Thus, the reasoning, that the notings or information generated by an employee during the course of his employment is his information and thus has to be treated as relating to a third party, is flawed.
11. Section 8 of the Act provides for exemption from disclosure of certain information and none of the provisions of Section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file.
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to the name and designation of officers in the note sheets/ correspondences could be severed to provide the remaining information. In this context, a reference was made to the decision of the Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
Furthermore, the Hon'ble High Court of Delhi in the decision of KVS v. CIC and Anr. W.P.(C) 6892/2009 dated 15.09.2009 while upholding the decision of the Commission had held as under:
Page 5 of 9"The only objection raised by the petitioner against the supply of statement of witnesses was under Section 8(1)(g) of the Right to Information Act, 2005. The said provision stipulates that information disclosure of which would endanger life and physical safety of any person or identity, the source of information or assistance given in confidence for law enforcement and security purposes need not be supplied. The Information Commissioner keeping in mind Section 8(1)(g) of the Right to Information Act, 2005 has directed that the name of the witnesses need not be disclosed to the respondent No.2.
In fact the order passed by the Information Commissioner seeks to rely upon section 10, which permits withholding of certain portions of information by applying severability principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
As regards the disclosure of information regarding the comments/ suggestions/ objections received on the draft guidelines for National Stem Cell Research 2017, the Commission observed that the same should be disclosed proactively in the public domain to ensure openness and transparency in the working of the authority as also to ensure that the real purpose of a multi stakeholder model which harps on participatory and inclusive decision making is achieved. The Commission noted that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated Page 6 of 9 in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the 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. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Moreover, the Commission felt that the issues raised in the RTI application pertained to the larger public interest of research and further scientific development in the field of stem cell. The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
Page 7 of 9"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and considering the sensitivities and criticalities involved in the Stem Cell Research, the Commission instructs the Respondent to re-examine the RTI application and provide point wise information held and available with the Public Authority to the Appellant as also suo motu disclose the information on their website in the larger public interest of all the concerned stakeholders within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 22.05.2019
Page 8 of 9
Copy to:
1. Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. Secretary, D/o Bio Technology, 6th-8th Floor, Block 2 CGO Complex, Lodhi Road New Delhi - 110003
3. D/o Health Research, M/o Health and Family Welfare and Director General, ICMR, Indian Council Of Medical Research Ansari Nagar New Delhi - 110029 Page 9 of 9