Central Information Commission
Kirti Azad vs Ministry Of Youth Affairs & Sports on 15 November, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
Second Appeal No.: CIC/KY/A/2016/001025
ShriKirti Azad Appellant
Versus
CPIO,M/o Youth Affairs & Sports Respondent
Order Sheet: RTI filed on 13.09.2015, CPIO replied on 09.10.2015, FAO on 13.11.2015, Second
appeal filed on 16.06.2016, Hearing on 14.09.2018;
Proceedings on 28.08.2018: Appellant present along with his representatives Mr. Aditya Kumar
Chaudhary, Advocate, Mr. Ajit Kumar Pathak, Advocate and Mr. Sameer Bahadur at CIC, Public
Authority represented byMs.ShyelTrehan, Advocate and Ms. Sonali Malik, Advocate at CIC; Directions
for compliance.
Proceedings on 14.09.2018: Appellant represented by Mr. Aditya Kumar Choudhary, Advocate,
Mr. Sameer Bahadur at CIC; Public Authority represented by Ms. ShyelTrehan, Advocate and Ms.
Sonali Malik, Advocate at CIC;
Proceedings on 09.11.2018: Appellant absent, Public Authority represented by Ms. Sonali Malik,
Advocate at CIC;
Date of Decision - 15.11.2018: Adjourned.
ORDER
FACTS:
1. The appellant Mr. Kirti Azad, MP,filed RTI application on 13.09.2015 seeking following information:
1. Please provide a copy of Hockey India League (HIL) certificate of registration, with details whether it is registered under Society Act or Companies Act;
2. Please provide details of sponsorship amount received by Hockey India League in the last 2 years.
3. Amount of commission paid for getting sponsorships during the past three years along with names, addresses of the persons / agencies who were paid the commission.
4. Please provide details of total expenditure incurred by Hockey India & Hockey India League in the last 2 years.
5. Expenditure incurred on consultancy and legal expenses in the last two years with name of each consultants and lawyers engaged by Hockey India and Hockey India League.
CIC/KY/A/2016/001025 Page 1
6. Expenditure incurred on TA/DAof board members in the last 2 years with name of members and expenditure separately.
7. Please provide names of permanent/life members of Hockey India and Hockey League.
2. The CPIO on 09.10.2015 responded as follows:
1. The Hockey India League is organized under the aegis of the Hockey India as such is not a separate body per se. The details about HIL are available on the website of Hockey India at the following link: http://league.hockeyindia.org
2. The asked for information is already in public domain as voluntary disclosure and may be seen from the website of the Hockey India (annual accounts) at http://hockeyindia.org.
3. All the information to be provided under RTI Act has already been placed in public domain both at the website of Hockey India and hockey India League (http://hockeyindia.org and http://league.hockeyindia.org). It may be noted that the holding of the events has commercial & trade angle and also involves third parties who have competitive positions. Kind attention is invited to Clause 8(d) of the RTI Act which exempts from disclosures of which are of commercial trade secret or intellectual property and disclosure of which would harm the competitive position of the third party. I am as a CPIO satisfied that the information asked is of commercial confidence, trade secret of intellectual property and disclosures of which would harm the competitive position of the third party - the sponsors and organizers of the event. I am also satisfied that disclosure of such information will also not serve any public interest.
4. The asked for information is already in public domain as voluntary disclosure and may be seen from the website of the Hockey India (annual accounts) at http://hockeyindia.org.
5. The details of expenditure incurred on consultancy and legal expenses in the last 2 years has already been placed in the public domain by posting the annual accounts/annual reports on the website of the Federation as stated above. The further information asked for is of commercial confidence and trade secret, as such is exempted from disclosure. Further, the information also involves third parties.
6. The details of expenditure incurred on TA/DA in the last 2 years has already been placed in the public domain by posting the annual accounts/annual reports on the website of the Federation as stated above. The further information asked for is of commercial confidence and trade secret, as such is exempted from disclosure. Further, the information also involves third parties.
However, we are still providing below details in relation TA/DA, travelling expenses and accommodation expenses on the hockey India Board Members. In the year 2013-2014 Hockey India expenses towards TA/DA, travelling and accommodation were incurred on the following E.B. Members only and the total amount was Rs. 27,23,919.00/-*. In the year 2014-2015 Hockey India expenses towards TA.DA, travelling and accommodation were incurred on the following E.B. Members only and the total amount was Rs. 44,00,006.00/-.
7. Life Members:
Mrs.Vidya Stokes CIC/KY/A/2016/001025 Page 2 Dr. NarinderDhruvBatra Mr. Rajeev Mehta
3. Claiming dissatisfied, the appellant filed first appeal on 16.10.2015, stating as under:
"Kindly refer the insufficient and misleading given to me by your CPIO, Sh. Ranjit Gill. As advised by him, I have gone to your two websites and am still to find my answers:
1. Refer my question no. 2 wherein I had specifically asked about the amount of sponsorship money that HI and HIL have got in the last two years. By directing me to your sites, I have only learnt that Hero Motocorp, Bharti Airtel and Yes Bank are your sponsors. Are you sure that only these three are your sponsors? Is there any other corporation/company, whether a Public Sector company or in the private sector which has paid you sponsorship money, or is contracted to pay you in the coming years? Please specify the names of all such companies, and how much each of them has paid you in the last two years and has contracted to pay you in the next two years - year wise?
2. To point no. 3, the CPIO has conveniently cited issues such as Commercial confidence, Intellectual Property or trade secret which is seemingly the reason for not disclosing such information. I fail to understand how details of commercial sponsorship cannot be disclosed and how commercial confidence, Intellectual property or trade secret will be adversely affected by such a disclosure. In fact, in the interest of transparency, such information should be made public, particularly when crores of sponsorship are being collected, and such money is being spent on running a national sport. Certainly, such a disclosure cannot harm the competitive position of any third party, who is in the business of making an existence out of their business.
3. To my point no. 5, the CPIO has again avoided a direct answer. Hockey India is conducting a national sport and it is absolutely imperative for it to be open and transparent about payments that it makes to consultants of all hues, auditors - Internal and statutory, legal consultants, tax consultant, lawyers etc. My questions remains - How much and to whom, have been paid by Hockey India/HIL during the last two years? I am sure that you would be required to give a utilization certificate to your sponsors for the various amounts that you would have taken from them.
Please note that all my questions serve public interest and are strictly under the four corners of RTI Act, 2005.
4. The First Appellate Authority vide his response dated 13.11.2015, provided the following information:
"I have, as Appellate Authority of Hockey India, received the First Appeal under Section 19(1) of the RTI Act. I have gone through your RTI application dated 13.09.2015, which was received in the office of Hockey India on 16.09.2015. I have also reviewed the response you received dated 9.10.2015.
CIC/KY/A/2016/001025 Page 3 On review of the RTI application and reply given by CPIO as referred to above, information pursuant to 1, 4, 6 and 6 of your RTI application have been provided to you to your satisfaction. It appears that the scope of your appeal therefore is with regard to 2, 3 and 5. It appears that you are not satisfied with the information provided to you under point 2 of your application. Further, it appears that you seek reconsideration of the decision under point 3 and point 5 of your application, whereby disclosure of the information was denied by the CPIO.
Text of RTI Issues/information asked Information provided and/or reply to the application under the first appeal issues raised in the first appeal 1 2 3
2. Please .... By directing me to your Sir I have gone through the Information sought provide details sites, I have only learnt that under RTI application and reply provided by CPIO. of Hero Motocorp, Bharti Airtel and From the First appeal it appears that you have sponsorship Yes Bank are your sponsors. gone through the Web site and audited accounts amount Are you sure that only these posted thereon and notes the names of sponsors. received by three are your sponsors? Is As such I am of the opinion that CPIO has rightly Hockey India there any other corporation/ provided you the information asked for by League in the company, whether a Public drawing your attention to the web site and annual last 2 years. Sector company or in the audited accounts posted thereon which contains private sector which has paid details of sponsorship amount received by Hockey you sponsorship money, or is India and Hockey India League in the last 2 years. contracted to pay you in the coming years? Please specify It is noted that in the first appeal under this the names of all such question, you have asked for new information companies, and how much each which were not in the RTI application dated of them has paid you in the last 13.09.2015 as such as Appellate Authority, under two years and has contracted to RTI Act, I am not mandated to supply the pay you in the next two years - information which were not asked in the RTI year wise? application.
3. Amount of To point no. 3, the CPIO has .....
commission conveniently cited issues such
paid for as Commercial confidence, The CPIO has also drawn your attention to Clause
getting Intellectual Property or trade 8(d) of the RTI Act; information asked for is of
sponsorships secret which is seemingly the commercial confidence, trade secret or intellectual
during the past reason for not disclosing such property and disclosure of which would harm the
three years information. I fail to understand competitive position of the third part - the
along with how details of commercial sponsors and organizers of the Event; and CPIO
names, sponsorship cannot be is of the opinion that disclosure will not serve
addresses of disclosed and how any public interest.
the persons / Commercial confidence,
agencies who Intellectual property or After examining the material on record and your
were paid the trade secret will be RTI Application, reply given by CPIO and your first
Commission. adversely affected by such a appeal I am of the considered view that CPIO has
disclosure. In fact, in the properly invoked Clause 8(d) of the RTI Act
interest of transparency, such which exempts from disclosures of the information
information should be made which are of commercial, trade secrets or
public, particularly when crores intellectual property and disclosure of which would
of sponsorship are being harm the competitive position of the third party. I
collected, and such money is am also of the view that disclosure of such
being spent on running a information will affect the sponsors and
national sport. Certainly, such a strategies being drawn in the competitive
disclosure cannot harm the sports world which may also affect the future
competitive position of any third preparation of the Indian players for various
party, who is in the business of international events including Olympic Game. I also
making an existence out of their agree with CPIO that disclosure will not serve any
business. public interest.
5. Expenditure To my point no. 5, the CPIO has You sought information with regard the legal
incurred on again avoided a direct answer. expenses of Hockey India over the past 2 years. I
consultancy and Hockey India is conducting a find that the CPIO has already directed your
legal expenses national sport and it is attention to the website of Hockey India, wherein
in the last two absolutely imperative for it to the annual accounts are published, and the overall
years with be open and transparent about legal expenses for each year are already
name of each payments that it makes to disclosed. I agree with the CPIO that the details
consultants and consultants of all hues, of legal fees disclosing the names and fee
CIC/KY/A/2016/001025 Page 4
lawyers auditors - Internal and charged by each lawyer/law firm cannot be
engaged by statutory, legal consultants, disclosed as it constitutes information of
Hockey India tax consultant, lawyers etc. commercial confidence to the legal professionals
and Hockey My questions remains - How involved, and also to Hockey India/Hockey India
India League. much and to whom, have been League. The CPIO has denied disclosure of this
paid by Hockey India/HIL during information as being of commercial confidence, the
the last two years? I am sure disclosure of which would harm the competitive
that you would be required to position of a third party. I agree with the decision
give a utilization certificate to of the CPIO in this regard, and hold that the your sponsors for the various information is exempted from disclosure under amounts that you would have Section 8(1)(d).I also agree with CPIO that taken from them. disclosure will not serve any public interest.
5. The appellant on 01.01.2016 wrote a letter to Cdr. R.K. Srivastava, Appellate Authority titled "Inadequate and misleading answer to my RTI dt 13/09/15", which categorically explains the points in the third column of above table, and insisted justification from appellant. Appellant reiterated his stand that public interest goaded him to seek this information which legally need to be disclosed, if not he would approach CIC.
6. On 15.01.2016, Shri Cdr. R.K. Srivastava, Appellate Authority wrote a letter to the appellant, justifying the reply given by the CPIO and gave another copy of reply dated 15.10.2015.
The Commission holds: The First Appellate Authority Shri Cdr R K Srivastava did not apply his mind to the contentious issues and blindly upheld the denial by CPIO.CPIO & Authority agreed that commission was paid for obtaining sponsorships, which is against their policy and norms. When such a huge amount is paid for commissions, the public authority has a duty to explain whom it paid and what result it has achieved? The money earned by monopoly in Hockey is held by Hockey India in trust for the benefit of Hockey and every hockey lover has a right to know how such money has spent? Is it according to ethical policy and norms of Constitution of HI? Had Authority understood Section 19(5) he would have written letter to CPIO to explain and justify which competition he was speaking about, and what commerce was going to be affected? He wanted the appellant to discharge the burden to prove that what he wanted was in public interest in complete ignorance of Section 19(5) which says:
In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.
The Commission considers this as abdication of responsibility prescribed under RTI Act, and recommends the public authority to either train the First Appellate Authority in basics of RTI Act or appoint another responsible person who knows the statutory duties attached to his designation and apply his mind instead of blindly endorsing reply of CPIO. Because of such officers in the middle level, very purpose of creating a CIC/KY/A/2016/001025 Page 5 first appeal within the public authority would be defeated. The copy of this stricture be circulated to top executive administrators of HI for necessary action.
7. Claiming dissatisfied, applicant filed second appeal. It was posted to31.08.2016 for hearing. The Hockey India sought transfer of this second appeal to another bench to be heard together with CIC/KY/A/2015/000938, S.C. Aggarwal vs. CPIO, Hockey India &Anr., involving similar issues is pending before the full bench of this Hon'ble Commission. The HI filed followingpoints among others in their response to CIC:
A. .... The Appellant was satisfied with the information provided by the CPIO with respect to serial no. 1, 4, 6 and 7. ...
C. The Appellant has failed to cite any public interest for which he seeks the information. In the absence of any public interest being cited, the present appeal is not maintainable, as the remaining information sought, is exempted from disclosure under Section 8(1)(d) of the RTI Act.
D. ....
E. The remaining information, which are the subject matter of the present
appeal, and pertain to Point No. 2, 3 and 5 of the application, are dealt with separately below:
(i) Point 2 - Appellant seeks, "Please provide details of sponsorship amount received by Hockey India and hockey India League in the last two years."
The information sought by the Appellant was provided to him by the CPIO and the Appellate Authority. Sponsorship amounts received are reflected in the audited statement of accounts available on the Hockey India website at "http://hockeyindia.org/accounts". Accounts are available from 2010 to 2015. The RTI request cannot be expanded from the original application at the Appellate stage, to seek additional information. It is submitted that the request at Point No. 2 of the application stands answered in full by the CPIO and Appellant Authority.
(ii) Point 3 - Appellant seeks, "Amount of commission paid for getting sponsorships during the past three years along with names addresses of the persons/agencies who were paid the commission."
In this regard, it is important to note the following:
1) The information sought is exempt from disclosure under Section 8(1)(d).
CIC/KY/A/2016/001025 Page 6
2) Disclosure of such information would affect the competitive position that the Hockey India League wields, with regard to its competitor leagues and organizations. Such information is likely to be misused by competitors.
3) Agreements relating to sponsorships are confidential in nature. The agreements executed with third parties contain confidentiality clauses, clearly demonstrating the intention of the third parties and Hockey India to maintain the terms of such agreements as confidential.
4) This Hon'ble Commission, has held in the case of Sh. Anil Kumar vs. Indian Telephone Industries Ltd., Appeal No. 25/ICPB/2006 that disclosure of the information sought in that case would be in the breach of the confidentiality clause and as such the CPIO & Appellate had rightly declined to furnish the information.
5) The Hockey India League does not receive any public funds. The HIL does not avail of any government subsidies.
6) The Appellant does not cite any public interest for which the exemption under Section 8(1)(d) ought to be waived.
(iii) Point 5 - The Appellant seeks "Expenses incurred on consultancy and legal expenses in the last 2 years with name of each consultants and lawyers engaged by Hockey India and Hockey India League".
In this regard, it is important to note the following:
1) The expenditure incurred on consultancy and legal expenses in the last 2 years are already been placed in public domain by posting the Hockey India at "http://hockeyindia.org/accounts".
2) The remaining information sought is exempt from disclosure. All correspondences between a legal consultant/advocate and their client is information treated as confidential and is shared through the process of a fiduciary relationship. Therefore, the information sought is therefore exempt from disclosure under Section 8(1)(e) of the Right to Information Act.
3) It is well settled that all communications between an advocate and a client are confidential in nature and protected from disclosure by attorney-client privilege.
4) The information sought is also exempt from disclosure under Section 8(1)(d), as it is information of commercial confidence and trade secret (i.e. legal strategies for various case), cannot be made available to the general public.
5) The information is also protected under Section 8(1)(d) as it pertains to third parties (legal counsels/advocates/consultants) to whom the said information is of commercial confidence, and would hurt their competitive position if disclosed.
6) The information sought also constitutes the personal information of the concerned advocates/legal consultants and would cause CIC/KY/A/2016/001025 Page 7 unwarranted invasion of the privacy of these persons, and is therefore exempt from disclosure under Section 8(1)(j).
7) Given the fact that no public funds are utilized towards the legal expenses of Hockey India or the Hockey India League, no public interest could be served by such disclosure.
8) It is well settled in law that information received in a fiduciary capacity (as in the case of an advocate and client) is protected from disclosure. Case law supporting this proposition is annexed as Annexure 2 (colly) in Pradeep Pachikara vs. SEBI, Mumbai (CIC/MP/A/2016/0003660 &RajanVerma vs. UOI (2007 SCC Online P&H 1161).
F. The Appellant, in the present appeal makes a bald statement that there is an overriding public interest for which the exemption under Section 8(1)(d) or Section 8(1)(e) should be waived in view of "the shocking exposures made in respect to BCCI and IPL relating to cricket". It is respectfully submitted that the said "exposures" have no relation to matters pertaining to the Answering Respondent, and no case of an overriding public interest has been made out.
G. The Appellant relies on the case of Sh. S C Aggarwal vs. Alliance Air (CIC/SS/A/2010/000931 and CIC/SS/A/2010/000933) dated 23.2.2011 in support of his appeal. The said decision however, does not aid his case. The case of Alliance Air has no applicability to the present case as, the Hockey India League does not receive Government funds, grants or avail of any kind of government subsidies. The HIL is run on a commercial basis. Given the fact that there are no public funds involved in the Hockey India League, no public purpose could exist in disclosure for disclosure of its commercially sensitive information. In the case of Alliance Air, this Hon'ble Commission directed disclosure of information on the ground of violation of rules, which is not the Appellant's case in the present appeal.
8. The CPIO's answer has been reiterated as the reply to second appeal. The Commission disposed of the matter vide its decision dated 01.09.2016 saying:
"5. During hearing of the second appeal on 31.08.2016, it is submitted by Shri Sameer Bahadur, on behalf of Appellant, that appellant has received the complete and satisfactory information against all issues except issues no. 2, 3 & 5 of his RTI application dated 13.09.2015. Therefore, he wants to press issues no. 2, 3 & 5 only of the RTI application dated 13.09.2015. For this, Shri Sameer Bahadur has also given his hand written submissions dated 31.08.2016 during hearing of the appeal.
6. On careful perusal of the nature of issues no. 2, 3 & 5, as raised by the appellant in his RTI application dated 13.09.2015 and respondent's response dated 09.10.2015, it is revealed to the Commission that the respondents have denied the required information to the appellant by stating that the information is already available in Public Domain i.e. http://hockeyindia.org&http://league.hockeyindia.org/, against these CIC/KY/A/2016/001025 Page 8 issues (i.e. issues no. 2, 3 & 5). On this, it is submitted by Shri Sameer Bahadur that respondent's portal (http://hockeyindia.org) , is quite incomplete, however, the respondents are taking such plea for the name sake an to deprive the appellant from having the required information. On this, it is submitted by Ms. ShyelTrehan, LearnedAdvocate that her client's portal is quite complete and she is even ready to give a print thereof containing the complete information on issues no. 2, 3 & 5, if need be. As such, the Commission thinks that it is not only appropriate but also seems to be justified to accede the learned advocate's request in the circumstances of the case. Thus, acceded to.
7. The Commissioner heard the submissions made by appellant as well as respondents at length. The Commission also perusedthe case-file thoroughly; specifically, nature of issues raised by the appellant in his RTI application dated 13.09.2015, respondent's response dated 09.10.2015, FAA's order dated 13.11.2015, other material made available on record respondent's written submissions dated 31.08.2016, appellant's written submissions dated 31.08.2016 and also the grounds of memorandum of second appeal.
8. The Commission is of the considered view that the appellant has been deprived by the respondents deliberately from having the benefits of the RTI Act 2005, even after lapse of more than eleven months period. As such, the Commission feels that appellant's second appeal deserves to be allowed partly i.e. against issues no. 2, 3 & 5. Therefore, it is allowed accordingly.
9. In view of the position above, the Commission feels that it would be appropriate and even justified to direct the respondents to take out the print containing the complete information, against issues no. 2, 3 & 5, of the appellant's RTI application dated not complete, the respondents are hereby directed to provide the complete & categorical information against issues no 2, 3 & 5 to the appellant, within 30 days from the date of receipt of this order under intimation to this Commission. If need be, Section 5(4) of the RTI Act 2005 may also be invoked in the matter.
The Appeal is disposed of accordingly.
9. The Hockey India approached the Hon'ble High Court of Delhi challenging the decision of this Commission vide W.P. (C) 8997/2016, which remanded the matter back to the Commission on 10.07.2018, saying:
"1. The petitioner has filed the present petition impugning an order dated 01.09.2016 (hereafter the 'impugned order') passed by the Central Information Commission (hereafter 'the CIC') allowing respondent no.2's second appeal under Section 19(3) of the Right to Information Act, 2005 (hereafter 'the Act').
CIC/KY/A/2016/001025 Page 9
2. Mr. Nayyar, learned senior counsel appearing for the petitionercontended that the impugned order was passed by erroneously recording theconcession stated to have been made by the learned counsel for thepetitioner. He submitted that an affidavit indicating that no concession wasmade with respect to information sought at point nos.3 & 5 (the amount ofCommission paid for getting sponsorship during the past three yearsalongwith the names, addresses of the persons/agencies who were paid theCommission; and expenditure incurred on consultancy and legal expenses inthe last two years with name of each consultants and lawyers engaged byHockey India and Hockey India League) has been filed by the counselappearing for the petitioner before the CIC. He further submits that theimpugned award is, essentially, unreasoned and, therefore, liable to be setaside.
3. The learned counsel appearing for the respondents seriously disputethe contention that the concession as stated was not made by the learnedcounsel for the petitioner. However, this Court is not inclined to enter intothe said controversy. Undisputedly, the CIC has not provided any reasonsofallowing the appeal. This is apparent from a plain reading of paragraphno.6 of the impugned order, which is set out below:
"6. On careful perusal of the nature of issues no.2, 3 & 5, asraised by the appellant in his RTI application dated13.09.2015 and respondent's response dated 09.10.2015,it is revealed to the Commission that the respondentshave denied the required information to the appellant by stating that the information is already available in PublicDomain i.e. http://hockeyindia.org &http://league./hockeyindia.org/ against these issues (i.e.issues no.2, 3 & 5). On this, it is submitted by ShriSameer Bahadur that respondent's portal(http://hockeyindia.org. &http://league.hockeyindia.org), is quite incomplete,however, the respondents are taking such plea for thename sake and to deprive the appellant from having therequired information. On this, it is submitted by Ms. ShyelTrehan, learned Advocate that her client's portal isquite complete and she is even ready to give a printthereof containing the complete information on issuesno.2, 3 & 5, if need be. As such, the Commission thinksthat it is not only appropriate but also seems to bejustified to accede the learned advocate's request in thecircumstances of the case. Thus, acceded to."
4. In view of the above, this Court considers it apposite to set aside theimpugned order and remand the matter to the CIC to consider it afresh after hearing all the parties. It is so directed.
5. This Court further requests CIC to consider the said appeal anddispose of the same within a period of 12 weeks from today.
6. It is clarified that this Court has not expressed any opinion on thequestion whether the information as sought for by respondent no.2 is exemptfrom disclosure in terms of Section 8 of the Act and nothing stated hereinshould be construed as such.
7. The petition is disposed of in the above terms. All pendingapplications are also disposed of"
CIC/KY/A/2016/001025 Page 10 CIC Proceedings on 28.08.2018:
10. The Commission took up the remanded matter on 28.8.2018 and heard the matter on 28.8.2018. Learned counsel for HI, Ms. ShyelTrehan(along with Ms. Sonali Malik, advocate)argued on points 2, 3, and 5 of RTI application could not be given to secure the interest mentioned in Section 8(1)(d),(e) and (j) of RTI Act. She argued that there was no public interest but a private interest behind RTI application to target a senior cabinet minister and other office bearers of Hockey India.
11. Learned counsel for appellant Mr. Aditya Kumar Chaudhary, Mr. Ajit Kumar Pathak and Mr. Sameer Bahadur, representative of appellant were present. Learned counsel Mr. Choudhary argued on behalf of appellant at length contending huge public interest in the interest of transparency and claimed that as a citizen interested in sports promotion, the appellant has a right to know under RTI Act and even right to contest to any office of the respondent authority.
12. The learned counsel for HI invoked section 8(1)(d), (e) and (j) with reference to points 2, 3 and 5 of the RTI application, to secure the interests mentioned therein and wanted the Commission to examine whether information sought under points 2, 3 and 5 would harm the interests as claimed; and to facilitate such examination, agreed to submit the documents relevant in a sealed cover to the Commission along with a written note explaining how each of such information should be protected from disclosure, by 10th September, 2018 through an authorized representative. The Ld Counsel for HI also agreed to provide the certified copies of:
a. original constitution/memorandum of association at the time of its registration and amendments to it if any;
b. the public authority's policy of conflict of interest and confidentiality; c. the commercial policy/guidelines or norms, if any, if there is no such policy, certification that there is no such policy;
d. anti-corruption policy;
e. code of conduct for office bearers;
f. the policy with reference to HIL and rules regarding tickets; and CIC/KY/A/2016/001025 Page 11 g. any other policy documents relevant for the subject matter under question, before 10th September, 2018.
13. The learned counsel for appellant sought time up to 10th September, 2018 to file response to case law and other arguments of HI. After completing the arguments, the hearing was completed, and a date was given for presenting above papers, making required written submissions to explain themand for summing up on 12th September, 2018 at 12:00PM.
THE CONTENTIONS
14. The appellant in his written submissions on 10.09.2018 further explained certain aspects that arose during arguments on 28.8.2018:
1. That during the course of hearing, the Hon'ble Commission posed a query as to how the queries asked for by the applicant is in public interest. In this context, it is submitted that the game of Hockey is India is a popular sport and a large number of Indian citizens have got immense interest in the game. Even as per the database of Hockey India, the estimated viewership of Hockey India League, which was a purely commercial venture, was up to 5.8 Million. The viewership of Hockey matches in general would be much more. Since emotions of large number of public in India are attached to the game of Hockey the same become of public importance. Secondly, the respondent Hockey India has been projecting the huge public interest of Indians in the game of Hockey before several PSUs and other Corporates to seek sponsorship and has in fact been able to get huge amounts running into crores in the form of sponsorship etc. and therefore, there is lot of public interest involved. Furthermore, the Applicant himself is a representative of People being a Member of Lok Sabha and the Applicant being a sportsman himself, strongly feels that every sport in India should be run in a proper, transparent, fair and corrupt-free manner. The Applicant is a public spirited person by nature and has been fighting for transparency and eradication of corruption from sports in India. Like in Cricket, interest of large number of people is involved in the game of Hockey and having regard to the overwhelming public emotions attached with the game, the applicant submits that the purpose espoused by the applicant is totally in public interest.
2. That the Applicant most categorically submits at the outset that he has no personal interest in becoming the President or to hold any post in the Hockey India.
He is just a representative of People and is already working and wants to keep working for the betterment of Sports in India and this is the reason why he seeks the information sought. In the present case, the applicant's purpose is only public interest i.e. to bring to the knowledge of the public that the game of hockey is being run in a transparent, fair and professional with honesty and integrity and without any undue favour, advantage or gain to any person. Furthermore, the applicant's bonafide intention is to gather public response to ensure that the income generated by Hockey India is spent on the players and is not utilized by the administrators of the game, to misuse the funds for their personal luxuries or the CIC/KY/A/2016/001025 Page 12 funds are not mis-utilised to pay huge amounts as Commission, legal fees etc. The fact that Hockey India is fighting tooth and nail not to reveal its financial dealings, despite claiming transparency, speaks volumes of and indicates to the illegal and corrupt system prevailing within Hockey India.
3. That in its Writ Petition bearing WP (Civil) No. 8997 of 2016, filed before the Hon'ble Delhi Court, the Respondent Hockey India in para 3 submitted that "The Petitioner has been granted recognition by the Government of India, Ministry of Youth Affairs and sports as the national Sports Federation Internationale de Hockey (FIH) on 14.06.2009 and is also recognized by the FIH as the national association for hockey in India. That the Respondent is also recognized by the Indian Olympic Association (IOA) as the central authority responsible for all matters relating to hockey in India. That the Respondent is responsible for fielding in the India hockey Team for both men and women, in all major international events, such as the Olympics, the Asian Games, the Commonwealth Games and the World Cup. That the Respondent enjoys an international for good governance, transparency and has been successful in revitalizing hockey in India. That the Respondent has also organized the "Hockey India League" which is a professional field hockey league. Players from 14 countries participate in this league, which is now in its 4th season." That though the Respondent claims to be an organization acting and promoting transparency and good governance, but in practice the truth is otherwise. The applicant craves the kind indulgence of this Hon'ble Commission to consider this aspect of the matter as well.
4. That during the course of arguments, the Ld. Counsel for Hockey India submitted that the applicant was wrecking vengeance against a Cabinet Minister and his family members/relatives and also against the President of Hockey India for personal reasons. The applicant takes strong objection to such an averment which in his humble submission is unfounded and deserves to be out rightly rejected. The applicant is surprised that such an argument was raised and for what reason. It appears that such argument was made only to exert some pressure on the Hon'ble Commission. The applicant has no concern whatsoever with any Cabinet Minister or his relatives and is not aware if any Cabinet Minister or his family members/relatives is involved is running the game of Hockey in India. The applicant's only purpose is public interest. If the argument of the Ld. Counsel for Hockey India is pondered over then it seems that there are big people involved in the big game behind the hockey field and the huge amounts collected by Hockey India including public funds is being misused for personal gains by influential persons. However, the applicant cannot say anything with certainty unless the information sought for by the applicant is made available to him. Now, it is all the more necessary that this Hon'ble Commission directs Hockey India to furnish all the information sought so that the truth comes out.
5. That it was argued by the Counsel for Respondent that no public Money is involved in affairs of Hockey India. In this regard it is submitted that Hockey India League, which is a child of Hockey India, was being conducted on the basis of sponsorship which also included huge amount of sponsorship received from Public Sector Undertakings like Coal India Ltd. (CIL), ONGC etc.
6. That it was further submitted on behalf of the respondent that Lawyer's Fee cannot be revealed as the relationship is fiduciary. It is submitted that an opinion of a lawyer to his client can be fiduciary if the client is a private individual but a public CIC/KY/A/2016/001025 Page 13 authority cannot plead even that, leave apart the fee paid. So far as payment of fee is concerned, since the Hockey India is a public authority for the purposed of RTI Act, they cannot take the plea of not revealing the fee as payment of fee to a lawyer is not a fiduciary relationship whatsoever. So, the payment of fee to a lawyer is not part of a fiduciary relationship. The manner in which Public money and the money received through sponsorship by Hockey India, by projecting to the sponsors about the interest of millions and millions of people of this country in the game, the Hockey India League is under a moral duty to spend the amounts in a pragmatic manner and therefore, it is of utmost public interest to know as to how the money available with Hockey India has been spent including the expenditure on lawyers. Hockey India is morally duty bound to show that it has paid/spent a particular amount on a particular lawyer depending upon the standing of such lawyer and has not shelved in crores to non-deserving legal professionals or has deliberately paid very huge amount in garb of paying professional charges. Example can be derived from newspaper articles relating to the case of the Murder of Judge Loya, where the information regarding fee charged by the Lawyer appearing for the State of Maharashtra was revealed by a RTI application. Likewise, there has been lots of media reports regarding the fee charged/raised by the Lawyer of Shri Arvind Kejriwal and such information is in public domain. In the humble submission of the applicant, there is absolutely no impediment in releasing the information regarding payment of fee to lawyers by Hockey India, especially when it claims of utmost transparency and good governance.
7. That another argument raised on behalf of the respondent was that payment of commission to the agents for getting sponsors is of commercial confidence and cannot be revealed. This plea, in the humble submission of the applicant is erroneous. Since Hockey India League has got the benefit of sponsorship of huge amount from Public Sector Undertakings, it cannot plead commercial confidence in paying commission for the reason that payment of commission is specifically barred in the case of sponsorship from government and public funds. Secondly, since Hockey India League is a public authority and represents India in Hockey at the World Forum by claiming that the sport is being run with utmost transparency and good governance. It does not lie in its mouth to plead commercial confidence in respect of commission paid to its agents. In fact by pleading so, Hockey India is trying to defend those who are paid huge amount of commission under the garb of getting of sponsorships from Private Companies/Corporates. Hockey India is fighting tooth and nail for concealing the information as it knows that revealing such an information will unveil a huge racket/scam running into crores in running the affairs of the noble game of Hockey in the country.
8. That another argument raised was that the information which has been sought regarding the payment of commission, legal fee etc. is pertaining to third party, which cannot be revealed without the consent of the third party under the RTI Act. This Argument is absolutely flawed as the Public Authority which claims of utmost transparency cannot plead exemption of third party information. In fact, the information sought is not a third party information vis-à-vis Hockey India rather the same is a first party information. The information sought is available only with the respondent and the respondent does not need to get the same from any third party so as to take the plea that before revealing such information, it will have to seek the permission of third party. A perusal of Section 11 of the RTI Act CIC/KY/A/2016/001025 Page 14 2005 would show that there is proper procedure prescribed and the intent of the provision is towards revealing the information sought. The applicant has not been made aware of any such proceeding by Hockey India where any third party has been issued any Notice within 5 days of the RTI application made by the applicant and/or any third party appeared before the CPIO and denied sharing of any such information, nor any such document has been produced on record during the first round or even now. In any case, the final discretion is with the CPIO and since the affairs of Hockey India is of public nature, the respondent cannot remain tight lipped on this aspect. Furthermore, the general public has a right to know how the funds available with Hockey India, including funds generated through sponsorship from Public Sector Undertakings i.e. Public funds have been spent and also have right to know whether the funds have been spent and also have a right to know whether the funds have been spent in a lawful manner or otherwise. Secondly, the agents/lawyers who are rendering their respective to the Public authorities cannot deny revealing such information.
9. That the judgments which have been relied upon by the Respondent are not applicable being distinguished on facts. Also, the judgments are of Single Member Bench and hence not binding on the Hon'ble Bench. Moreover, judgments are on both the sides, so this Hon'ble Bench is at liberty to rely upon any of the judgments. That also, the judgments which have been relied upon by the Respondent are old judgments and as the view of the Hon'ble Courts and tribunals was not very liberal back then and is liberalizing since, the latest judgments may please be taken into account by this Hon'ble Bench. Like in the judgment dated 28.07.2018 in "Shri Inderjit Singh Suri v. CPIO, Dena Bank, New Delhi Zone, 16", which had facts similar to the present case, the Hon'ble Central Information Commission decided that the legal opinion is exempted from disclosure under Section 8(1)(e) of the RTI Act because of the fiduciary relationship between the bank and it lawyers. However, the fee paid to the lawyer comes from the public funds, there is no ground not to disclose the information concerning the same. Accordingly, the CPIO was directed to provide the information concerning the lawyer's fee sought. It should also be considered by this Hon'ble Bench that an overwhelming public interest overweighs all exceptions as claimed by the Respondent.
10. That the Preamble of the RTI Act provides inter-alia, that the objective of the RTI Act is to provide to the citizens a "......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", and the Respondent also claims to be an organization which promotes transparency but the acts of the respondent andits CPIO are contrary to that of their own claims and also the Preamble of the RTI Act. On one hand they claim to be an organization having utmost transparency and on the other hand they are fighting tooth and nail to conceal the information sought by the Applicant.
11. That the exemptions as claimed by the respondent are not at all available to the respondent ant therefore the arguments raised in this regard deserves to be rejected, the orders passed by the Ld. Authorities below is liable to be quashed and the application of the applicant deserves to be allowed in the interests of justice and larger public interest.
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15. The respondent authority in herwritten submissions dated 14.09.2018, explained the status and character of Hockey India saying it has exclusive monopoly authority over the sport of Hockey, as such recognition was granted by MYAS, its NSF, etc, In their own words:
Hockey India is a society registered under the Societies Registration Act 1860, registered on 20.05.2009. It is the governing body for the sport of hockey in India. It is engaged in the promotion, organisation and development of hockey in India and is responsible for governance of the sport of hockey in India. Hockey India has been granted recognition by the Government of India, Ministry of Youth Affairs and Sports ("MYAS") as the National Sports Federation ("NSF") for the sport of hockey in India.2.Hockey India was granted affiliation with the Fédération Internationale de Hockey (FIH) on 14.06.2009 and is recognized by the FIH as the national association for hockey in India. Hockey India is also affiliated to the Continental Federation for the Sport, i.e., the Asian Hockey Federation. Hockey India is responsible for fielding the Indian hockey team for both men and women, in all major international events, such as the Olympics, the Asian Games, the Commonwealth Games and the World Cup. Hockey India is compliant with all its obligations under the RTI Act, and in fact provided al information it is required to disclose on its website, which is accessible to the general public.
3. In addition to its role as the NSF for the hockey, Hockey India organizes a commercial league i.e., Hockey India League ("HIL"), which first took place in 2013.
The League has had five seasons so far. The Hockey India League does not receive any public funding whatsoever. It is a self-sustaining commercial enterprise. Players and coaches from 14 countries have participated in the League. The League inducts Franchise Owners who purchase teams. The League is also funded by sponsors, who either sponsor the League as a whole, or parts of the League/team (for instance, stadium rights, parts of the player jersey, advertisements of equipment etc.). There are other commercial stakeholders in the league as well such as the broadcasters. 4. In a nutshell, the HIL is a commercial league with a series of commercial contracts between itself and various stakeholders, some of which are mentioned above. There is another similar league in India run by Nimbus Sports called the World Series of Hockey.
Regarding point of request for sponsorship amount received by Hockey India and Hockey India League in the last two years, the HI stated: note that the overall amount was provided to him. Sponsorship amounts received are reflected in the audited statement of accounts available on the Hockey India website "http://hockeyindia.org/accounts" from the year 2010 to 2015, which provides the total amounts received as sponsorships each year. However, the break-up of the amount and names of sponsors, are exempt from disclosure under Section 8(1)(d) of the RTI Act, for the following reasons-
a) Sponsorship amount forms part of pricing policy of the Respondent • The Hockey India League does not receive any monetary grants or financial subsidies from the Government of India. In such a scenario, the only source CIC/KY/A/2016/001025 Page 16 of funding/revenue for the HIL, is the amounts rendered as sponsorships, franchise fees etc. • Sponsorship amounts form a substantial part of the revenue for HIL. For a sports league such as HIL, sponsorships constitute their "pricing". Disclosure of the amounts paid by each sponsor would obstruct HIL's negotiating leverage with the ongoing and future sponsors.
• The Respondent submits that the present case is squarely covered by the law laid down by the Hon'ble Delhi Court in Naresh Trehan v. Rakesh Kumar Gupta: W.P. (C) 85/2010 (also titled as Escorts Limited v. R.K. Gupta :
W.P.(C) 206/2010), wherein the Court noted that the disclosure of pricing policy would negatively impact bargaining power as follows:
"14. As a matter of illustration, one may consider a case of manufacturer who manufactures and deals in multiple products for supplies to different agencies. In the normal course, an Assessing Officer would require an assessee to disclose profit margins on sales of such products. Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is thus, essential that assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.
In view of the foregoing, it is settled law that the information sought by the Appellant attracts Section 8(1)(d) of the RTI Act and hence, exempted from disclosure.
Commission holds:This judgement cannot come to rescue of the HI, because what was denied in Naresh Trehan's matter by Delhi HC was the profit margin on sale of products. The appellant is not asking for this information in this case. He is simply seeking to know how much of money was paid by a public authority to its lawyer, and which lawyer.
• Further, information forming part of pricing scheme or guideline has also been held to be exempt from disclosure by this Hon'ble Commissioner in multiple cases, including the case of Pramod Kumar Aggarwal v. Container Corporation of India : 2010 CIC 8781 at para 8. Similarly, in case of Shri Banarsi Rai v. Rajasthan Drugs & Pharmaceutical : 2013 SCC OnLine CIC 15506, in paras 5 and 6, this Hon'ble Commission held that disclosure of "invoice" and "price scheme" would harm the competitive position of the CIC/KY/A/2016/001025 Page 17 public authority in the marked and exempted from disclosure under Section 8(1)(d) of the RTI Act.
Commission holds;The CIC decision in Pramod Kumar's matter dealt with the information request for invoice and price scheme, which the CIC considered in its wisdom after considering facts of that case that it would affect competitive position. In this case Hockey India's claim of competition is totally missing, hence affecting the competitive position would not arise at all.
b) All sponsorship agreements contain confidentiality clauses- The Respondent submits that all agreements relating to sponsorships are confidential in nature and at the time of entering into such agreements, parties expressed their intent to maintain confidentiality of the commercial terms. This Hon'ble Commission in the case of Sh. Anil Kumar vs. Indian Telephone Industries Ltd., Appeal No. 25/ICPB/2006 in para 3, declined to disclose information in a collaboration agreement, which was protected by a confidentiality clause in the agreement. Similarly, in the case of P. Suresh v.
Central Public Information Officer, GAIL India Limited :
CIC/SH/A/2016/000755, this Hon'ble Commission held that since there is a confidentiality clause in the agreement between the parties, the information sought is a matter of commercial confidence between the parties, the disclosure of which would harm the competitive position of a third party and therefore, its disclosure is exempted.
Commission holds:The decision of CIC in Sh Anil Kumar v ITI Ltd.'s matter, to deny the disclosure of collaboration agreement is unfortunate. In P Suresh's matter, the CIC has reportedly denied some information on the ground of confidentiality clause, considering that it would harm the competitive position. On facts, this case is different from Anil Kumar and Suresh as what is sought by appellant is different, and there is no competition established, hence apprehension of causing harm to non- existing competition is baseless. On question of Law, the confidentiality clause has to yield to overriding RTI Act and public interest. Hence these two CIC cases failed to convince the bench.
c) Disclosure of such information is also of commercial confidence to third parties i.e. Hockey India's sponsors- The Respondent submits that a disclosure of the break-up of sponsorship amount given by each sponsor, will not only jeopardise of the business interests of Hockey India and the HIL, but also of the sponsors and hence, ought not to be allowed to be disclosed by this Hon'ble Commission. The Hon'ble Delhi High Court in case of Naresh Trehan v. Rakesh Kumar Gupta: W.P.(C) 85/2010 (supra), held as under:
"26. Further, the books of accounts would also record salaries and other payments to other individuals. Disclosure of such information would affect not just the assessee but also other parties. In the circumstances, it would be necessary to examine the details of information that are sought from the public authority. In the present case, the respondent seems to have sought for an omnibus disclosure CIC/KY/A/2016/001025 Page 18 of all records and returns. In my view, the same could not be allowed without examining the nature of information contained therein."
d) Disclosure of contracts with Government of India is exempt from disclosure -
It is well settled law that even disclosure of contracts with Government of India is exempt from disclosure. In the case of Ajay Laroia v. CPIO :
CIC/BS/A/2016/00059, this Hon'ble Commission held that merely because Government of India is a party to the a commercial agreement, does not render such an agreement as a public document, while denying the disclosure citing section 8(1)(d) of the RTI Act.
Commission holds:Most of the Government works are executed through contractors, and the details of contract agreements, and procurement process of those contracts, opening tenders or contracts, and terms after that opening, the price fixed, or reasons for price, if lowest price quoting contractor is rejected, justification for the same need to be placed in public domain on their own without even waiting for an RTI request. Most of corruption happens in contract execution. If that is allowed to be secret, it defeats the purpose of RTI Act and objective or preventing corruption through transparency. Hence the decision of CIC in Ajay Laroia's matter to deny disclosure of contracts with Government of India under section 8(1)(d) is per incuriam and totally against the written text of RTI Act, and its objectives mentioned in its preamble.
e) No larger public interest demonstrated by the Appellant- The Respondent submits that the onus to prove that such disclosure is in larger public interest, is with the Appellant and he does not cite any public interest for which the exemption under Section 8(1)(d) ought to be waived. Further, HIL is run on purely on commercial basis and given that there are no public funds involved in the HIL, no public interest could possibly exist in disclosure of its commercially sensitive information, which would seriously prejudice the commercial position of Hockey India and the HIL.
f) Additional material to be placed on record in a sealed cover- As directed by this Hon'ble Commission vide order dated 28.08.2018, the Respondent will further demonstrate that the nature of information being sought by the Appellant is of commercial confidence and exempted from disclosure under Section 8(1)(d) of the RTI Act, by placing before this Hon'ble Commission certain additional relevant material in a sealed cover.
Regarding request for "Amount of commission paid for getting sponsorships during the past three years along with names addresses of the persons/agencies who were paid the commission, the Ld Counsel for HI stated the following:
1) It is routine for all the organisers of events, sports or otherwise, to hire companies who assist them putting together the new concept, also help with raising funding for such events. This is particularly true for new events.
2) It is well established market practise that such sports agents/management companies receive a percentage of the sponsorship they raise, as their fee.
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3) Any organisation/organiser may have hired multiple agents for a single event,
all on different terms. The fee paid to such agents is not of any concern to the public, as no public monies are involved.
4) Agreements with third parties, governing sponsorships of HIL and Hockey India are confidential in nature, with each of them containing confidentiality clauses, clearly indicating the intention of the sponsors and Hockey India to maintain the terms of such agreements as confidential. Further, the agreements with the agents is also confidential, as shown from the confidentiality clauses. This Hon'ble Commission, in a decision rendered by a bench comprising of two members in the case of Sh. Anil Kumar vs. Indian Telephone Industries Ltd., Appeal No. 25/ICPB/2006 at para 3, reaffirmed that the information sought in such a case would be in the breach of the confidentiality clauses and as such the CPIO & Appellate had rightly declined to furnish the information. Similarly, in the case of P. Suresh v.
Central Public Information Officer, GAIL India Limited :
CIC/SH/A/2016/000755, this Hon'ble Commission, in light of the confidentiality clause between the parties, held that the "information sought is a matter of commercial confidence between the two parties, and it's the disclosure could harm the competitive position of a third party" and therefore, its disclosure is exempted.
5) The Respondent Authority also relies on the case of Shri P. Rajan v. Office of the Commissioner of Income Tax : 141/IC(A)2006F. No. CIC/MA/A/2006/00258, in which this Hon'ble Commission in para 2 upheld the decision of the CPIO, holding information such as remuneration to employees, commission paid to agents etc. as personal information, and having no relationship with public interest. It further upheld that the expression "Public Interest" refers to those interests which concern the public at large and do not refer to which is interesting as gratifying, curiosity or 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 right of liabilities are affected.
Commission holds:The Commission noticed that Ld counsel for HI has admitted that it is routine, market practice, to pay agents a percentage of sponsorship fee as commission. They why not they disclose it? The Ld. Counsel also said because public money is not spent for paying such commissions, it need not be disclosed. It's quite illogical to classify the expenditure by public money and non-public money, and that any expenditure from public money could be disclosed and others cannot. Paying commission could be an unethical practice or might even amount to bribe. If Ld. Counsel's argument is applied, if bribe is paid by public authority like HI from public money it could be disclosed, but if paid from their private commercial monies, it cannot be. It's an absurd logic to say the least. HI is generating huge money from monopoly granted by Government of India, paying commission from such pool which cannot be classified as private or public, if it is ethical they should not have any problem in disclosure; and if not ethical, that is why they have to disclose.
CIC/KY/A/2016/001025 Page 20 Regarding the request for "Expenses incurred on consultancy and legal expenses in the last 2 years with name of each consultants and lawyers engaged by Hockey India and Hockey India League", it was submitted the following:
1) The cumulative expenditures incurred on consultancy and legal expenses in the last 2 years are already been placed in public domain by posting the annual accounts/reports on the website of Hockey India at "http://hockeyindia.org/accounts".
2) The Respondent submits that the remaining sought is exempt from disclosure under Section 8(1)(e) of the RTI Act. All correspondence between a legal consultant/advocate and their client is based on a fiduciary relationship and treated as confidential. It is protected from disclosure by attorney-client privilege and thus, any demand for the disclosure of such information ought to be rejected. The above proposition was upheld by the High Court of Punjab and Haryana in case of RajanVerma vs. UOI : 2007 SCC Online P & H 1161, and by this Hon'ble Commission in the case of Pradeep Pachikara vs. SEBI: (CIC/MP/A/2016/000366).
Commission holds:The Commission was surprised to note as to how this case could be quoted in this instant second appeal. Here the appellant is not asking for correspondence between HI and its lawyers, he is asking the name of lawyer and amount paid to him or her. If the names and price paid to them should not be considered as top secret, it appears that HI fears exposure of some serious scandal as they might have paid to persons who are not eligible to receive or paid huge amounts more than they deserve. That exactly is the public's interest. It's not curiosity, but to allow public scrutiny into the way the HI is paying to some lawyers. If they are not doing anything wrong, they should prove it by allowing people to know it. RajanVerma's case of Punjab & Haryana High Court does not authorize the HI to keep name of advocate and fee paid to him/her secret. The CIC decision in Pradeep Pachikara also cannot help the HI.
3) Further, the information sought is also exempt from disclosure under Section 8(1)(d), as it is information of commercial confidence and trade secret to the concerned lawyers and would hurt their competitive position if disclosed. (i.e. legal strategies for various cases), and as such cannot be furnished under RTI., [See B.N. P. Srivastava v. Life Insurance Corporation of India :
2009 CIC 1304, para 9].
Commission holds:In BNP Srivastava's case, legal strategy related information was denied. It is astonishing that for Ld. Counsel for HI says that, the fee paid to Advocate is 'trade secret', it would hurt their competitive position if disclosed because it is legal strategy! This argument is basically unethical, immoral and illegal, because advocacy is a noble profession not a trade and fee is their rightful entitlement of consideration, which cannot be a trade secret and charging fee is not "a legal strategy". This kind of philosophy could be more harmful to the legal profession and justice system, besides being detrimental to HI.
4) Information on the legal fee of each advocate is akin to disclosing salary information of the advocate and constitutes confidential information CIC/KY/A/2016/001025 Page 21 pertaining to business affairs of the advocate concerned. In case of Naresh Trehan (Supra), the Delhi High Court held as follows-
"26... Further, the books of accounts would also record salaries and other payments to other individuals. Disclosure of such information would affect not just the assessee but also other parties.."
5) Further, the information sought also related to the personal information of the concerned advocates/legal consultants and would cause unwarranted invasion of the privacy of these persons, and is thus accordingly barred from disclosure under Section 8(1)(j) of the RTI. In case of Naresh Trehan (supra), the Delhi High Court with respect to 8(1)(j) of the RTI Act, in para 38, held as below-
"21..... Another very significant provision of the Act is Section 8(1)(j). In terms of this provision, information which related to personal information the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual would fall within the exempted category, unless the authority concerned is satisfied that larger public interest justifies the disclosure of such information. It is, therefore, to be understood clearly that it is a statutory exemption which must operate as a rule and only in exceptional cases would disclosure be permitted, that too, for reasons to be recorded demonstrating satisfaction to the test of larger public interest. It will not be in consonance with the spirit of these provisions, if in a mechanical manner, directions are passed by the appropriate authority to disclose information which may be protected in terms of the above provisions. All information which has come to the notice of or on record of a person holding fiduciary relationship with another and but for such capacity, such information would not have been provided to that authority, would normally need to be protected and would not be open to disclosure keeping the higher standards of integrity and confidentiality of such relationship. Such exemption would be available to such authority or department.
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 stature 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.)].
23. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of CIC/KY/A/2016/001025 Page 22 disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the constitution values under the Constitution of India."
Commission holds:Salaries and other payments made by a private company is different from fee paid to lawyer by a Public Authority. Hence in the matter of Narendra Trehan, wherein books of accounts was denied, cannot justify denial in this case by HI.
6) It is well settled law that individual fee paid to advocates by a public authority, cannot be done without the consent of the concerned advocates, and only total cumulative legal expenses are liable to be disclosed under the RTI. [See the paragraph titled Decision in Mr. M. Gowri Shankar v. State Bank of India: 2008 CIC 1133].
Commission holds:If the Ld. Counsel for HI sincerely believed that Gowrishankar's matter will apply to her case, and considered Fee paid to Lawyer as third party information, the HI should have consulted those lawyers, and decided after obtaining their view. There is no such attempt at all. How could HI consider that third party information is not always personal information or trade secret. And Section 11(1) of RTI Act says if the information sought is third party information, the PIO intends to disclose that, PIO has to consult that third party and after obtaining his views, he can decide to give or not. Sadly the HI failed to understand the purpose of Section 11 and misused it as an exception. When the fee is paid by the HI to a lawyer, it is its information, how could it be considered as information furnished by third party?
7) Further, it is pertinent to note that this Hon'ble Commission in case of Anil ChintamanKhare v. Shri A.K. Garg, in para 15 and 17, denied access to Income Tax Returns filed by a cricket association recognised by the BCCI to avail information such as tax returns, copies of assessment order, amount of taxes paid etc. on the same grounds as the Respondent is contending. Firstly, it held that it doesn't seem necessary that the information seeker must be allowed to access the I.T Returns filed by the cricket association, as such, the details sought by him were already available on the Annual Report. Secondly, it held that a mere allegation of wrong doing on part of the assesse by an interested person, cannot provide any rationale for invoking the public interest override under the RTI. Thirdly, the Commission, while refusing to disclose the information, paid heed to the history of dispute between the appellant and the cricket association, and acknowledged that if such CIC/KY/A/2016/001025 Page 23 information is revealed, it would be utilised to besmirch the reputation of the cricket board through propaganda and allusion.
Commission holds:In Anil Chintaman's matter, what was rejected by BCCI and CIC was copy of ITR filed by BCCI on the logic that it doesn't seem 'necessary'. Appellant is not asking for ITRs. And ITR of an organization like BCCI is not protected like ITR of an individual. One cannot say that BCCI or HI will have privacy as to their ITRs. CIC in Anumeha'scase held that ITRs of organizations like political parties are not personal information and could not be denied.
In Ms. Anumeha, C/o. Association for Democratic Reforms v. Chief Commissioner of Income Tax-XI, New Delhi and Ors. Decided on 29.04.2008 by Former Central Information Commissioner Shri A.N. Tiwari,held as under:
39. In fact provision for disclosure of such information exists in the Income Tax Act itself. Section 138(1)(b) of the Income Tax Act empowers the Commissioner of Income Tax to disclose, "in public interest", any information which comes into the hands of the public authority. That Section reads as follows:-
"(b) Where a person makes an application to the [Chief Commissioner or Commissioner] in the prescribed form for any information relating to any assessee [received or obtained by any income-tax authority in the performance of his functions under this Act], the [Chief Commissioner or Commissioner] may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for and his decision in this behalf shall be final and shall not be called in question in any court of law."
40. What this Section states is that any information in the hands of the Income Tax authorities would be ordinarily held as confidential, but can be made public, if in the judgement of the Commissioner of Income Tax, it serves public purpose. Therefore, the contention that all Income Tax Returns ― an information provided by assessees to Income Tax authorities ― are permanently barred from disclosure, is not correct. This information can be disclosed in public interest, either in a given case, or a class of cases, under Income Tax laws. As has been shown in the preceding paragraphs there is public interest in disclosing the class of information, viz. Income Tax Returns of the Political Parties.https://www.incometaxindia.gov.in/Documents/RTI% 20Case%20Laws/RTI%20Judgments/Ms-Anumeha-Association-for-Democratic
-Reforms-RTI-Judgments.pdf Then the Ld Counsel for HI submitted on three points of arguments by the Appellant that the sponsorship amounts ought to be disclosed because:
i. The public watches hockey matches;
ii. Respondent is a Public Authority;
iii. Some of the sponsors are public sector undertakings
20. With regard to the first argument, it is submitted that merely because the public enjoys watching a particular sport, that does not mean that every document generated relating to that sport, is a public document or a document for which an overriding public interest justifies disclosure. The CIC/KY/A/2016/001025 Page 24 Respondent organisation uploads all documents on its website that are subject to disclosure. It cannot be a justification for disclosure of exempt information than the public watches events organised by the Respondent.
21. Second, Respondent is an autonomous organisation as mandated by the Olympic Charter. The Respondent is not an instrumentality of the state or the government. The Respondent is required to comply with RTI Act under Section 9.3(x) of the National Sports Development Code of India, 2011, and not because it is an instrumentality of the government. In fact, to the contrary, the Olympic Charter mandates that NSFs (NAs) remain free from political interference.
22. Third, public sector undertakings are largely self-funded and self-sustaining.
They do not involve commitment of public monies. Irrespective however, this Hon'ble Commission has taken the view in the case of Ajay Laroia v. CPIO (supra), that even the contracts with the government are exempt from disclosure under Section 8(1)(d) of the RTI Act.
The Ld Counsel for HI alleged that the Appellant is using the RTI machinery to further his personal agenda and there is no discernible public interest in disclosing the information sought by the Appellant and explained:
23. At the outset, the Respondent submits that all the information that is subject to disclosure under the RTI Act has already been disclosed by the CPIO of the Respondent Authority. The Appellant has failed to demonstrate any overriding public interest which would warrant disclosure of additional information under Serial No. 2, 3 and 5, which otherwise is squarely exempted from disclosure under the RTI Act under Section 8(1)(d), 8(1)(e) and 8(1)(j) of the RTI Act. It is reiterated that since no public monies are involved indeed there could be no public interest. The Appellate has not discharged his burden of demonstrating public interest.
24. The Appellant has been running an agenda against Hockey India for some time now and has been holding a brief for the rival Indian Hockey federation. Additionally, the Appellant being a member of a political party and a member of parliament is seeking information against one specific Union Minister, who he has repeatedly targeted. A series of letters written by the Appellant to the Minister for Youth Affairs and Sports and the Finance Minister, demonstrate the personal agenda with which the Appellant is seeking the information through the present application. There is no public interest governing the requests instead there is his own political agenda.
25. Moreover, the parties concerned are already in litigation against each other. A suit being CS (OS) 72/2016 was filed against the Appellant by Dr. NarinderBatra and Hockey India before the Delhi High Court. The application for summary dismissal filed by the Appellant has been dismissed. It is therefore extremely improper for a litigant on the opposite side of litigation to seek details of opponent's legal expenses. In a sealed cover, the Respondent is also providing certain letters authored by the Appellant that indicate the ulterior motives with which he is pursuing the present application.
CIC/KY/A/2016/001025 Page 25
26. In view of the foregoing, the Respondent submits that the history of dispute between the parties ought to be considered by this Hon'ble Commission and any misuse of RTI mechanism should also not to be permitted by this Hon'ble Commission.
27. The petition therefore deserves to be dismissed in light of the above cited reasons and in view of the fact that the present application is a complete abuse of process. The Appellant has not been able to demonstrate any overriding public interest justifying disclosure of information that is otherwise exempt under Section 8(1)(d), 8(1)(e) and 8(1)(j) of the RTI Act, in fact to the contrary, his ulterior motives are apparent on the face of the record.
Commission holds:It is the burden of the CPIO or Public Authority under Section 19(5) of RTI Act to prove or justify the invocation of any exception to deny the information. They also have a duty to disclose, if there is any larger public interest. Motives of applicant behind filing RTI applications with HI are irrelevant. Even the competitor to HI, if any, has a right to information under RTI Act. The CPIO, First Appellate Authority and Information Commissions have to examine whether information sought was hit by any exception, or any proviso to exception permits disclosure, or comparative public interest mentioned in 8(2) allows disclosure and then decide.
16. Saying that appellant raised fresh contentions the Ld Counsel for HI submitted on 26.9.2018:
1. It is submitted that Hockey India is a transparent, accountable and fair organisation and abides by all the laws to maintain transparency and accountability. This is evident from the information available on the website maintained by Hockey India, which even discloses the financial statements.
Further, contrary to the arguments made by the Appellant, the overall heads of the expenditure incurred on commissions for sponsorships and legal expenses are published on the website. It is pertinent to note that no other sports authority or federation has displayed information regarding their income and expenditure on the website as published by Hockey India.
2. It is incorrectly contended that Hockey India bids for players at the Hockey India League auction. This is false. All the players participating in Hockey India League are auctioned and the proceeds generated are retained by the concerned player as per their respective contracts with the Franchise owner. The Respondent submits that in this regard as well, false statements are made by the Appellant, contending that during the first season of Hockey India League, auction of the players was not conducted. In response, it is submitted that in all seasons of Hockey India League held so far, players have been auctioned and proceeds from such auction have been retained by the players as per their respective contracts with the franchise holders and Hockey India is not a party to these contracts which are directly between the player and the franchise holder. In fact, the auction for the first season was also broadcast on national television (Star Sports
- ESPN).
3. Appellant has argued that there is overriding public interest in the disclosure of information sought on account of the following reasons:
CIC/KY/A/2016/001025 Page 26 a. Appellant contends that public watches hockey matches - It is submitted that simply because the public enjoys watching a particular sport, it cannot be a justification for disclosure of information which is otherwise exempt from disclosure.
b. Appellant contends that Hockey India received monies from Ministry of Youth Affairs by relying on an RTI reply at p. 31 of the written submissions filed by the Appellant - In response, the Respondent submits that this allegation is false. The document relied upon itself states that the payment was made to SAI (Sports Authority of India). Further, Hockey India had not role in financial matters related to the Hero Honda FIH World Cup 2010.
c. The Appellant alleges that Hockey India receives sponsorship money from PSUs ad therefore, details of sponsorships are liable to be disclosed. In response, the Respondent submits that sponsorships obtained by PSUs, the Respondent reiterates that public sector undertakings are largely self-sustaining and self-funded. The amount to be spent in sponsorship activity for any organisation is a business decision undertaken by the PSU and is either part of their commercial activities or part of CSR spend. In this regard, the Respondent places reliance on the decision of P. Suresh v. Central Public Information Officer, GAIL India Limited:
CIC/SH/A/2016/000755, wherein this Hon'ble Commission gave due importance to the confidentiality clause in the agreement executed between a PSU and a private entity, and held that the information sought is a matter of commercial confidence between the parties, the disclosure of which would harm the competitive position of a third party and therefore, its disclosure is exempted. The Respondent also places reliance on the case of Ajay Laroia v. CPIO (supra), wherein this Hon'ble Commission held that even the contracts with government are exempt from disclosure under Section 8(1)(d) of the RTI Act.
d. The Appellant alleges that because the salary of the Coaches of Hockey India is funded by SAI, all information sought is to be disclosed.
In response, it is clarified that SAI pays salaries of coaches of the National Hockey team directly to the Coaches, and not to Hockey India, as organisation at times. Additional Coaches and experts are also engaged by Hockey India at its own expense. Hockey India does not receive any amounts on behalf of the Coaches engaged by SAI.
4. The Appellant alleged that Respondent receives enormous assistance from the Ministry of Youth and Affairs on the basis of the RTI response at p. 33 of the written submissions filed by the Appellant.
The Appellant has relied upon the communication dated 28.04.2016 from Ministry of Youth Affairs and Sports (Please refer to pg. 31 and 33 of the written submissions filed by the Appellant) to allege that enormous financial aids and grants are received by Hockey India from Ministry of Youth and Affairs. The document at p.31 is already addressed at para 3(b) above.
With regard to the document at p.33 of the written submission, it is submitted that the amount of Rs. 4,39,731 released to Hockey India for U-21 Hockey team in Jr. World Cup, 2009 held in Singapore and Malaysia, and amount of Rs.
CIC/KY/A/2016/001025 Page 27 12,84,728 released for the participation of India at U-18 (Men) team in the Junior World Cup, are in the nature of reimbursement payments made to Hockey India for the expenditure incurred by it during the aforesaid championship tours. These amounts were sanctioned by the Ministry of Youth and Affairs for the specific and well defined purpose of meeting the day to day expenditure including the expenditure on food, accommodation, pocket allowances etc. incurred on the hockey team during the above mentioned championships. If was only upon submission of an audit report declaring that the above expenditure was utilised for the purpose for which it was sanctioned that Hockey India could claim reimbursements for the same. The said transaction illustrates the nature of assistance Hockey India receives from the Government, wherein certain expenses are reimbursed for travel/participation of the Government, wherein certain expenses are reimbursed for travel/participation of the national trams. Hence, no monies received from Government possibly relate to the information sought.In conclusion, in light of the above, and the exemptions invoked in the written submissions filed on 14.09.2018, information sought is exempted from disclosure. Ld Counsel for HI reiterated their contentions for denial.
Commission holds:
17. The various documents submitted by the respondents, Hockey India, such as copies of agreements with sponsorers, claim that it is a society registered under the Societies Registration Act, 1860 having its registered office at B1/E3, Ground Floor, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi - 110044. The Hockey India has represented that it is the apex body engaged in the promotion, organization and development of Hockey in India and is sole body for the control of Hockey in India. Hockey India has represented that it is a member of Federation Internationale de Hockey (FIH) and duly recognized as the sole governing body for Hockey in India. Hockey India has established HIL, a sub-committee which shall be responsible to implement and oversee the operation of a domestic men's hockey league competition.
18. The documents also stated that "pursuant to the request of invitation and on the basis of the representations of HI, the Franchisee has approached HI through TCM, HI's sole marketing representative, to secure the right to operate the Franchise in the area of Lucknow.
"Invitation" shall mean the document entitled "Offer document" issued by HIL pursuant to which HIL seeks offers from potential franchisees to establish and operate a team forming part of the League.
CIC/KY/A/2016/001025 Page 28 Grant of Franchisee:
Subject to the terms and conditions contained in this Agreement, HIL hereby grants the Franchisee the exclusive license to operate the Franchisee in the Territory.
It is hereby agreed by the Franchisee that except as provided herein below in clause 2.2. and 2.4, the rights granted under this Agreement are non-exclusive, and HIL retains the following rights, including without limitation, in its sole discretion:
i. To continue to open and operate Other Franchisees and to use the rights at any location outside the Territory, and to license others to do so.
ii. To develop, use and franchise the rights to any trade names, trademarks, service marks, trade symbols, emblems, signs, slogans, insignia or copyrights not designated by HIL as rights.
i. To retain all of the Gate Receipts and revenues in respect of the Play-Off Matches, and all revenue generated from such Matches shall belong to HIL".
19. As per these documents, HI assures the Franchisee that each Franchisee shall get a minimum of 8 matches in the League stages. HI knows and understands that the financial commitment of the Franchisee is based on this representation of HI that a minimum of matches are not provided to Franchisee then the payments (Including all fees etc.) made by the Franchisee will also be proportionately reduced and refunded back to the Franchisee (if applicable) as soon as possible.
20. The documents of HI also say, "the Franchisee shall have no right to use in the Franchisee name, the words "Hockey India League", "HIL", "the Federation", "Hockey India" or any other names used by HI and/or HIL. If the Franchisee has obtained prior permission from HIL to use any such words in its name, then in the event of early termination or expiration of this Agreement for any reason whatsoever, the Franchisee shall immediately take all necessary steps to eliminate any such reference or use". These agreements also contain the following paragraphs:
Franchisee Fee:
In consideration of the Franchisee Rights and the representation of the HI as contained under this Agreement, the Franchisee shall pay to HIL the following amount in the manner provided hereunder for each Season (the "Franchisee Fee"):
i) For Season 1 and 2:
ii) For Season 3 to 6:
iii) For Season 7 to 10:
iv) For Seasons 11 and onwards:
CIC/KY/A/2016/001025 Page 29
20% of the Franchisee's total revenue.
Franchisee's total revenue shall at all times exclude share of Franchise from the Central Rights.
Confidentiality:
The Parties acknowledge that the content of this Agreement is confidential and agree to take whatever measures are reasonably necessary to preserve such confidentiality. Any public announcement of this Agreement can be done by either of the Parties only through a press release to be mutually agreed in writing by both the Parties. The terms of this Agreement shall not be released as part of any public announcement and shall be at all times treated as confidential information by the Parties.
Each party shall be entitled to refer to the fact that they have entered into this Agreement without being in breachof Clause 17.1.
The Parties hereto agree that the provisions of this Agreement shall be kept strictly confidential at all times. The Parties agree, however, that they may disclose the terms and conditions of this Agreement for their respective tax purposes or as required under law. The confidentiality obligation shall not affect the grant of rights to Claim in in terms of this agreement and usage of the same shall not constitute a breach of this clause.
21. The learned counsel for the respondent was equating Hockey India League (HIL) with Indian Premier League (IPL) of BCCI for Cricket to oppose certain disclosures. Hence, it is required to consider whether IPL of BCCI discloses any information which was similar to what was sought by the applicant in this case.
22. Team India (Board of Control for Cricket in India) sponsorship amount of Rs. 538 crore was set out to sell the rights for five years. The Cricket Board initiated the tender process and Star India owns the sponsorship from 01.04.2017 to 31.03.2022. In the five years starting April, team India was expected to play 259 matches, including 238 bilateral matches and 21 across ICC tournaments - ICC Champions Trophy in June 2017, 2019 ICC World Cup, 2010 ICC World T20 and 2021 ICC Champions Trophy.
23. The Board of Control for Cricket in India has disclosed the details concerning existing and previous official sponsors along with the amount enlarged. Star India as on date who is the official sponsor has set a base price of Rs. 2.2 crore for bilateral matches (totaling to Rs. 523.6 crore for 238 matches) and Rs. 70 lakh for ICC tournaments (totaling to Rs. 14.7 crore for 21 matches). The BCCI was gracious enough to disclose the details of previous sponsors right from 1993, i.e., CIC/KY/A/2016/001025 Page 30 ITC (Wills) Rs. 45 crore during 1993-1999; ITC Rs. 22 lakh for Test matches and Rs. 17.5 lakh for One Day International matches during 1999-2000 and Rs. 35 lakh for Test and Rs. 30 lakh for One Day International matches during 1999-2002; Sahara India 2002-2009 (the payout could not be ascertained); 2009-2012 Rs. 1.91 crore for Test and Rs. 2.09 crore for One Day International matches and during 2012-2013 Rs. 3.34 crore per match and lastly during 2014-2017, Star India were the official sponsors who had set a price of Rs. 1.92 crore per bilateral and Rs. 61 lakh per ICC match.
24. From the above, one can easily ascertain that the first agreement was between BCCI and ITC, which under its flagship brand 'Wills" sponsored the team for nine years. The company, however, had to pull out in 2002 when the former Prime Minister Atal Bihari Vajpayee led NDA government decided to ban advertising of all tobacco products. After ITC pulled out, Sahara India Pariwar became the team India sponsor. The agreement was renewed multiple times over the next 11 years. (https://economictimes.indiatimes.com/industry/services/advertising/team-india- sponsorship-may-fetch-bcci-over-rs-538-crore/articleshow/57174590.cms)
25. During January, 2018, the BCCI invited bids to appoint up to a maximum of six official partners, one strategic timeout partner and one umpire partner, for the forthcoming seasons of the Indian Premier League (IPL). The media rights were awarded for a period of three-to-five years and BCCI was estimated to make in excess of Rs. 60 crore from these sponsorship deals.
26. It has been published that the recently concluded IPL season was touted to be the biggest one so far, given that media rights for the popular T20 league were sold for an ambitious Rs. 16,347.50 crore for five years to broadcaster Star India. CEAT Tyres, part of RPG Enterprises, was the strategic timeout partner for IPL for the past three seasons while official partners included telecom firm Vodafone, lender YES Bank, auto maker Maruti Suzuki and digital payments platform Freecharge.
(https://www.livemint.com/Consumer/kAapoeL5Xk1vPfXH7rq5KO/BCCI-invites-bids-for-IPL- brand-sponsorships.html)
27. The above comparison shows that like IPL the HIL also should have been transparent. The above claim of learned counsel for respondents binds HIL and HI CIC/KY/A/2016/001025 Page 31 to be more transparent. Strangely, the BCCI and IPL are fighting tooth and nail either not to come under the purview of Right to Information Act, 2005 or to deny information without justification. The BCCI is disclosing on their own some information, which the HIL is denying though they are not contending that RTI will not apply to them. Thus, even if the contention of learned counsel for respondent that HIL is on par with IPL is accepted, the HIL and HI have to answer the points sought by the appellant.
28. The learned counsel for respondent tried to present that HIL is totally not connected with the HI and thus HI cannot be made obligated to disclose information about HIL. The documents submitted by HI and the claims of HI reveal that HIL is entering into contracts on behalf of HI and hence, HIL cannot be separated from HI. It is illogical to think, that one intrinsic part of a public authority has no links with that public authority and hence it can remain as private body within the public authority. Hence, this contention cannot be accepted.
29. Mrs. ShyelTrehan, learned counsel for respondent authority i.e. Hockey India submitted 3 sealed covers containing the copies of agreements with sponsors. Mrs. Trehan has requested for exclusive audience about documents given in sealed cover. The representative of the appellant and their counsel agreed and left the courtroom. Ld. Counsel explained their stand based on the copies of those documents. Later the Commission found that the documents in sealed cover are photostat copies of sponsoring agreements wherein the crucial information about consideration amount agreed upon was painted black. It means that the Hockey India does not want even the Commission to see the original documents, and complete contents of their photostat copies.
30. The RTI application of the appellant, among other points, specifically sought for disclosure of amount paid to sponsorers, which the Hockey India denying under section 8(1)(d), i.e., commercial confidentiality clause. It is not possible to hide the sponsorers names with whom Hockey India entered into contract because their names were generally displayed on jerseys, play grounds and TV telecasts. The Ld. Counsel also agreed that the names of the sponsorers were not hidden. The crucial information that was denied is the sponsorers fee, and also other terms of the contract citing non-disclosure condition. Though the Hockey India furnished the text CIC/KY/A/2016/001025 Page 32 of terms of agreement to the Commission, they denied disclosure of the consideration amounts by blocking relevant sentences in all the photocopies of agreements. When such information was hidden, why envelop was sealed? This act of redacting the crucial information from the eyes of the Commission is certainlyan act of non-compliance of the order of the Commission besides being a serious breach of undertaking given by the learned counsel to that extent. There is another sealed cover containing copies of letter written by appellant to Hon'ble Minister Shri ArunJaitley to Shri Ajit Sharan, Secretary of Sports and a copy of a judgment of Delhi High Court in Narendra Batra v/s. Kirti Azad. The copies of these letters, which were shared with the counsel for appellant on 14.09.2018 contain the file- notings of the receiving public office, i.e., either office of the Minister or the office of the Ministry. The respondent authority depended on these letters to point out that the appellant had some enmity with the Chairman of Hockey India and also to say that the appellant is interested in earlier Hockey Federation (Indian Hockey Federation (IHF) which was a governing body for field Hockey in India, formed in 1928 but in 2008 IHF was suspended by Indian Olympic Association because of the bribery case against federation General Secretary Mr. KandaswamyJothikumaran, where he was accused of accepted bribe for selecting certain players in the Indian Hockey team) and opposed to Hockey India. On perusal of these letters given in 'sealed cover' the Commission found that the appellant wrote five letters/emails to Mr. Sharan/Secretary-Sports, Mr.ArunJaitley, Hon'ble Finance Minister, the copies of which were having notings and signatures of various officers. These letters are not marked to Hockey India. The question is: How these letters reached the Hockey India and how are they relevant in this case?
31. Basing on these letters the Ld Counsel for Hockey India alleged that the appellant has an axe to grind against Hockey India and its Chairman and his request for RTI lacks public interest. She also alleged some other point of time that a senior cabinet minister is under attack by the appellant.
32. The learned counsel for appellant Mr. Aditya Kumar Choudhury countering these allegations said that as a sportsperson himself, besides being a Member of Parliament and a public spirited person advocating for corruption-free- administration, the appellant has been raising several issues of maladministration in sports and relentlessly fighting against the lack of transparency in sports CIC/KY/A/2016/001025 Page 33 governance, and hence he has every right in seeking information from Hockey India also.
33. The substantial point of contention of Ld. Counsel for respondent authority is that, if the sponsorship amount is disclosed, Hockey India will be in a disadvantageous situation, while negotiating for other sponsorers. She further contended that the bargaining power with sponsorersinter se for a particular year and for future events also will be affected by disclosure of the consideration amount, which might, according to her, cause serious financial loss for Hockey India, hence it should not be disclosed.
34. Disagreeing with this, Ld. Counsel for appellant contended that the sponsorers of Hockey India included both public sector undertakings and private sector organisations. The balance sheet submitted by the Hockey India showed that in a particular year they secured Rs. 59 crore from the sponsorers and out of which Rs. 30 crore was generated by public sector undertakings. The balance sheet also discloses that in one year Hockey India has paid commission up to Rs. 7 crore, the details of which the Hockey India is resisting to disclose. Mr. Sameer Bahadur, representative of the appellant pointed out that they are not supposed to pay commissions, especially to any public sector undertakings, and hence, such payments would be illegal. Assuming that they have not paid any commission to the public sector undertakings, the total amount of Rs. 7 crore might have been paid as commission for securing private sponsorships, which is equally questionable because paying commission itself is irregular that smacks of corruption. Hockey India is under an obligation to give the break-up of the payments made to any third parties/agents for securing sponsorships, he contended.
35. The Ld.Counsel for Hockey India was receiving instructions in several bits and pieces from Hockey India, through her colleague as other side was arguing. Initially Ld.Counsel said that they have not paid any commissions in securing sponsorships from public sector undertakings. Later, Mrs. Trehan'scolleague Ms. Sonali Malik, Advocate approached the Commission, on revised instructions from Hockey India,said that they want this Commission to note that "payments were made to third parties for procuring sponsorship either from private or public sponsorers". If that is so, the Hockey India has a duty to explain to whom, CIC/KY/A/2016/001025 Page 34 how much, why the amount was paid and explain how that benefitted the sports.
36. HI claimed that sponsorship consideration fee is protected under Section 8(1)(d) of the Act, without any justification. How can the Hockey India hide the break-up of payment of commission paid to third parties for securing sponsorship either for private or public enterprises, especially when the policy of the National Sports Federation is against payment of commissions?
Section 8(1)(d) says:Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-- (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
37. To invoke this provision the Hockey India is expected to show that it was confidential information and it would harm the competitive position of the third party. Assuming that the sponsorship consideration fee is in the nature of commercial confidence, the Hockey India has to prove whether there is any competition and by disclosing the same, what kind of harm will there. The Commission finds that this was not established. Further, the Commission noticed that the Hockey India has not created any competitive position, as they had approached selectively to the sponsorers and bargained with them. For instance an agreement copy says: "TCM has approached 'X' company on behalf of Federation (Hockey India) for sponsoring the team...". In another agreement it says, 'Y' company and Hockey India through TCM discussed the sponsoring..." The Hockey India is following pick and choose policy and there are no open invitations or no scope for participation of wide range of sponsorers and hence there is no competition at all. It is difficult to imagine something called competitive confidence, as such, in this context. Instead if the price of sponsorship is known, others might have offered higher than that. Transparent process in securing sponsorers would have generally created real competition and open market could have fetched more price for sponsoring event or team etc. The policy adopted by Hockey India appears to be totally against generating any competition but only those approached by their marketing agent will be benefitted. It is also not known whether there is any negotiation. The Hockey India will pick up some company and it could be windfall to CIC/KY/A/2016/001025 Page 35 him and someone who mattered. In this context, this pricing information assumed high importance and larger public interest mandating the disclosure.
38. There can be different sponsorers in Hockey India events for different kinds of rights, such as to publicize their logo during the match, on hockey sticks, jersey etc. (In one such agreement - it was mentioned as "...to display on the playing uniform the Logo on the front of the shirt (350 sq.cm), on both the sleeves (80 sq.cm) (However, if FIH allows only one sleeve for the advertisement or reserves either of the sleeves for itself or for any third party, then Sahara shall be entitled to display its Logo on only one sleeve), collars (40 sq.cm), the side panels (100 sq.cm), and front of shorts and skirts (80 sq. cm) subject to the existing dimensions specifications and regulations ...". The prominence of place and quantum of publicity can vary and different sponsors might pay different prices. E.g: 'X' company pays higher amount, it will get higher publicity rights and a company which pays less will get less publicity. There are, thus several fields of sponsorships, each of which could be left to market to achieve better price. Whether picking up one single sponsorer for a particular event or item of publicity is better or creating an open competitive position for each right? This also explains that disclosure of an amount paid to one sponsorer will not be an obstruction to Hockey India to negotiate a proper price with the other company for a different right. The Hockey India,it appears, is, not promoting any competition at all. Instead of being transparent and having open policy in securing sponsors, the Hockey India is choosing its own 'partners'. Then, where is the competition?
39. If a public authority is negotiating with different sponsorers for an event, based on their tenders received in response to an open offer, the authority should have a free hand and confidentiality of such negotiations for a better price. If any citizen seeks information during such process of negotiation, they can surely invoke Section 8(1)(d) exception. In fact, that is the objective of this exception. After the sponsorship rights are finalized, the public authority has to put every negotiated contract in public domain to explain that they have entered into a fair deal and there is no hanky-panky in the negotiations. Others can assess the revenue generated and for same events scheduledin the ensuing year,new bidders might bid for a higher price than the price earmarked in previous CIC/KY/A/2016/001025 Page 36 event. The Commission finds no merit in contention against disclosure of amounts of sponsorship consideration fee after the event is over.
40. Section 8(1)(d) in its first point, authorize the public authority not to disclose information about commercial confidence only when such disclosure would have the competitive position of a third party, the learned counsel for Hockey India failed to establish this factor, as required to invoke Section 8(1)(d) of the Act, so that the public authority can explain that disclosure would harm that competitive position of third party. In this case the Hockey India failed to establish that the disclosure of information sought will harm any third party.
41. The appellant alleged payments of commission, which was corroborated with the entry of Rs. 7 Crore for that purpose in the certified table of accounts,submitted byHockey India. Whether commission was paid to third parties for securing sponsorers which included both PSUs and private enterprises? It was admitted by Ld.Counsel for Hockey India, that Commissions were paid to third parties. If those payments are legal and according to their announced policy, the HI need not hide it. They have to explain what kind of disadvantage they might have suffered if commission is not paid, and what advantages they gained by paying. The Commission finds that the public authority totally failed to justify their denial on this count.
42. While Section 8(1)(d) refers to larger public interest, another sub section (2) of 8 speaks about comparative public interest, it clearly says: Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.It says, access to information may be allowed if public interest in disclosure outweighs the harm to the protected interest. This section 8(2) will apply to all exemptions listed under sub-section (1) of Section 8 of the Act.
43. To fetch higher price in the events, the bidding should have been open giving equal opportunity to all willing and interested enterprises to bid, it should not have been confined to just one who is handpicked by the representative. When the bidding is opened to multiple parties through open notification, the process of CIC/KY/A/2016/001025 Page 37 receiving bids, their examination, and opening to find better bid, could be protected from disclosure under 8(1)(d); but, once the contract is finalized, there should be no secrecy about it. Considering these essential requirements and Section 8(2) of the Act, the Commission finds no merit or ground to agree with the contention of the Hockey India that "there is neither larger public interest [under Section 8(1)(d),
(e) and (j) of the Act] nor comparative public interest [under Section 8(2) of the Act] in disclosure".
44. Appellants contended that when more than 50% of sponsorship amount is collected from public sector undertakings (as figures of respondents revealed), the payment of Commissions by this public authority to other pubic authorities is highly objectionable and refusing to disclose amounts to covering up. The payment of Commission for several crores of rupees by the respondent authority (Rs. 8,567,500/- for the year 2011-12; Rs. 56,073,496/- for the year 2012-13; Rs. 53,011,609/- for the year 2013-14 and Rs. 57,607,772/- for the year 2014-15 as mentioned in the Hockey India's Balance Sheet and Income and Expenditure accounts), they are bound to disclose the break-up and names of beneficiaries as demanded by the appellant.
45. The avocation of Advocacy/lawyering is better described as profession, than as money-making enterprise. It could be an avocation but should never be acommerce! It is rather a noble profession. The Apex Court in Chairman, M.P. Electricity Board and Ors. vs. Shiv Narayan and Anr vide its Judgment dated 24.08.2005 in Appeal (Civil) 1065 of 2000, has held that "Legal profession is not a commercial activity". The relationship between clients and advocate is definitely a fiduciary relationship and any exchange of information between them including the advice of the lawyer or the facts revealed by the client are considered as privileged communication.This rule of privilege provides when lawyer and client are two individuals or private persons. But when the client is a public authority, and a lawyer is paid from public exchequer for public purpose, or when a trust paid to its lawyer, the members of public or trust have a right to know what opinion was given and at what price for representing before a court of law. Hockey India is a public authority, their money is generated from their privileged exclusivity as their monopoly in Hockey was sanctioned and approved by the State. Hockey India is a trust that has to work for the benefit of hockey which makes every hockey lover a CIC/KY/A/2016/001025 Page 38 beneficiary, whose interests the trust has to serve. If fee is not disclosed it is something like client (state) is not informed about fee he paid to his counsel, because the constitution declares that sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of people. The Right to Information Act 2005 specifically included 'opinion' as part of definition of 'information' under Section 2(f). Fee paid to lawyer can never be commercial and confidential information. Section 8(1)(d) of the Act cannot apply to a lawyer who is considered as a professional not a commercial entrepreneur. Seeking a refuge under that section to deny the information about fee paid to their lawyers is absolutely illegal and unethical. Variation in payments between lawyers engaged by same public authority has also need to be explained. If there is any doubt of conflict of interests between the important person of the Hockey India and the 'lawyer', the name of the lawyer and fee paid to him becomes necessary to disclose. The Commission finds no merit in the argument of the Ld. Counsel that information about fees paid to 'x' will put 'y' lawyer in a commercially disadvantageous position in a competition. Section 8(1)(d) of the Act talks about only commercial interest and competitive advantages which have no place in noble profession of advocacy. If a public authority like Hockey India has paid several crore of rupees to lawyers for fighting litigation, it should not hesitate to disclose the names of recipients and amount paid.
46. Appellant contended, based on respondent's documents, the HI got around 60 per cent of sponsorship fee from public sector undertakings (supposed to be out of their 2 per cent CSR funds) in a year; that is public money being paid by one public authority (PSU) to another public authority (HI); hence should be disclosed. The Hockey India countered saying PSU were giving from their 2 percent of turnover which they generated on their own and not on the investments of public money, and HI need not disclose that information because it was not receiving any public funds from the Government; and these public sector undertakings were also commercial organizations, which compete with other commercial competitors, hence funds given by them should not be construed as public money. This cannot be accepted because of following reasons: The HI is a national sports federation whose biggest resource is the monopoly in hockey, which is reason for their wealth today. It selects Indian hockey team for international events and eliminates other CIC/KY/A/2016/001025 Page 39 sports federations in the field of hockey, because HI is the recognized federation for hockey. The Sports Authority of India SAI is receiving grants from the Government of India, from which the cost of retail hockey player's travel, training and accommodation is being met with. In addition the fact that the public sector undertakings are sponsoring than 60% of funds for events of HI.
47. Whether PSU is public authority? The public sector undertakings which are involved in competitive business in the open market will contribute to the economy if they make profits, if they suffer loss - people of the country will suffer. All these public sector undertakings are established over a period of time with an infrastructure given by State and controlled by State. It is illogical, not proper, baseless and not truthful to say that the public sector undertakings money is not people's money. It is even absurd. If a PSU spends its 2% CSR funds to sponsor a hockey event they should not have any hesitation to give details of that expenditure, they cannot invoke Section 8(1)(d) of the RTI Act. The Law Commission of India in its 145th Report on Article 12 of the Constitution and Public Sector Undertakings have explained in the following words:
"3.2 Major objections We will deal with the problems seriatim, as stated in the reference material, to consider whether the judicial decisions holding the public sector undertakings to be "Authority" within the meaning of Article 12 have affected the efficiency of these undertakings or created serious hurdles in carrying on the activities of these undertakings in a business-like manner. Before doing so, we consider it necessary to examine the major objectives of public undertakings. In order to ascertain the main objectives of public undertakings, it is necessary to bear in mind the Directive Principles of State Policy enunciated in Part IV of the Constitution. Article 38 enjoins the State to promote the welfare of the people by securing and protecting effectively a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State is further directed to strive to minimize inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities, not only among individual, but also amongst groups of people residing in different areas or engaged in different vocations. This Article, and other Articles e.g. 39, 39A, 41, 42 and 46, lay down fundamental policies, which the State is required to follow in making laws with a view to securing a welfare State. Though Directive Principles are not justiciable and the Courts cannot enforce them, still those are binding on the various organs of the State. The Union government, with a view to securing a welfare State, prepared Five Year Plans for the transformation of society. It took steps for growth and increase in the sphere of industrial development, as stated in the Industrial Policy Resolutions of 1948 and 1956. The Industrial Policy Resolution of 1956 clearly stated that for the adoption of the CIC/KY/A/2016/001025 Page 40 socialistic pattern of the society as a national objective and also for planned and rapid development it was required that all sectors which are of basic and strategic importance, or which are in the nature of public utility services, should be in the public sector. In furtherance of the Industrial Policy, a number of public sector undertakings were constituted. The legislative history leading to the establishment of the public sector undertakings is discussed in detail in Chapter 1 of the 126th Report of the Law Commission. The public sector undertakings function under the control and direction of the Government; and, as such, they have to function in a manner expected from "State", even in its commercial sphere. No doubt, the primary purpose of the public sector undertakings is to promote economic growth by increased production and to secure adequate return which would help the State in providing social, economic, educational, medical facilities to the people.Nonetheless, unlike private undertakings, the public sector undertakings are not required to be profit-oriented only.Since some of the undertakings deal with public utility services, they have to frame and mould their policies to serve the people even though there is no profit. The Supreme Court in O.N.G.C v. The Association of Natural Gas Consuming Industries of Gujarat, 1993 (1) SCALE 900, para 31, held that "the notion that the cost plus basis can be the only criterion for fixation of prices in the case of public enterprises stems basically from a concept that such enterprises should function either on a no profit - noloss basis or on a minimum profit basis. This is not a correct approach. In the case of vital commodities or services, while private concerns must be allowed a minimal return on capital invested, public undertakings or utilities may even have to run at losses, if need be and even a minimal return may not be assured. In the case of less vital, but still basic, commodities, they may be required to cater to needs with a minimal profit margin for themselves.But, given a favourable area of operation, "commercial profits need not be either an anathema or forbidden fruit even to public sector enterprises."
48. Article 12 of the Constitution of India reads as under:
"In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India"
49. Here, we can notice that Article 12 does not, in so many words, provide that undertakings / companies in the public sector fall within the definition of "State". The Supreme Court of India has held in number of decisions that Public Corporations and Undertakings fall within the inclusive definition of "State". Therefore these corporation and undertakings are subject to Part - III of the Constitution. Consequently, the Supreme Court and High Courts have power of judicial review under Article 32 and 226 of the Constitution. The Supreme Court has interfered with the orders of Public Corporations and Undertakings in relation to service matters and also with regard to commercial transactions.
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50. The people are sovereign in democracy. They delegate sovereignty without losing it to the representatives, who form the government for them. The instrumentality of state like BCCI and Hockey India, are not sovereign entities and are responsible to people or citizens who are really sovereign. The organizations like Hockey India armed with power of monopoly granted by state in hockey amassing huge wealth through game of Hockey has duty to report to sovereign citizens like any other public servant in state. They cannot hide things from their masters. The monopoly sanctioned by state to them in hockey is not to make them monarchs building iron forts of secrecy. They have to respect sovereign citizen who is rightly demanding information by giving information, for which the RTI explained modalities. The right to information of citizen applicant/appellant does not just lie in the statute of RTI Act, but in Constitutional Right of Freedom of Speech and Expression under Article 19(1)(a) and Liberty of Thought mentioned in preamble of the Constitution. Rousseau, in the Social Contract (Rousseau, Social Contract, Book II, Chapter III) argued, "the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn in order to contain the Government," with the understanding that the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people, and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) - and furthermore predicated on the assumption that the people have an unbiased means by which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."(Stallybrass, William Teulon Swan (1918). "A society of states: Or, Sovereignty, independence, and equality in a league of nations")As Rousseau says in The Social Contract, "Those who are associated in it take collectively the name a people, and call themselves individually citizens, in that they share the sovereign power". Rousseau describes a republic as, "The public person thus formed by the union of all other persons."Using what I have classified as "citizens" it is clear to see that the republic is the union of all the citizens of a nation.According to Rousseau, "In its passive role it is called the state, when it plays an active role it is the sovereign." Therefore when the republic is active it is referred to as the sovereign.The sovereignty, which is made up of all the citizens of the republic, is ultimately vested in the general will and as Rousseau claims, "Sovereignty, being CIC/KY/A/2016/001025 Page 42 nothing other than the exercise of general will."The sovereign is as Rousseau puts it, "inalienable" and "indivisible." No member of the sovereign should be alienated from the rest. This is the reasoning behind equal citizenship.The sovereign is the republic, the republic is the citizens, and the citizens are the people! 'Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole' https://www.pace.edu/dyson/sites/pace.edu.dyson/files/media/files/pdf/tech/reactin g/Student_Work_Jacobin_Newspaper2.pdf
51. In both the Gandhian and Aristotelian sense, the State is not defined in the narrow, modern sense of an agency possessing a monopoly over the legitimised use of coercive force. Rather, the State (that Aristotle calls polis and Gandhi calls praja) is defined by Aristotle as "an association of citizens in a constitution." (The constitution is understood as a set of fundamental principles or established precedents according to which a state is governed.) A "State" clearly means the body of the people, and its end is not merely to survive, but to live a happy and fine life. In this normative framework, the State (and also the government contracted to govern it) is not an end in itself, but merely a means to an end, which is the fulfillment of a good life for each citizen. In this conception, every individual/citizen is the holder of inviolable rights (by virtue of being the sole custodian of sovereignty) and therefore has claims upon the government. Therefore the government must observe her/his rights, and guarantee conditions which are essential for individuals to live a good life.
52. The public authorities like HI and some PSUs are unfortunately viewing the citizens as clients of government services (that can be arbitrarily withdrawn anytime), rather than as holders of inalienable rights. Government is not a shop, public servant is not salesman, citizen is not just consumer and governance is no market, which the public authorities like HI should understand.
53. Marquis de Lafayette, who tellingly argued that "true republicanism is the sovereignty of the people. There are natural and imprescriptible rights which an entire nation has no right to violate". https://www.huffingtonpost.in/pushparaj- deshpande/whatever-happened-to-the-sovereignty-of-indias-people_a_21603078/ CIC/KY/A/2016/001025 Page 43
54. Supreme Court in the case of RamanaDayaram Shetty v. International Airport Authority, AIR 1979 SC 1628, held that "where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licenses or granting any other form of largesse, the Government cannot act arbitrarily at its sweet will and like a private individual deal with any person it pleases, but its action must be in conformity with a standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the government in the matter of grant of largesse including award of jobs, contracts, quotas, licenses etc. must be confined and structured by rational, relevant and non- discriminatory standards or norms and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself is not irrational, unreasonable or discriminatory."Similarly the HI cannot hide details of expenditure of that amount given by public sector undertaking. This contention is totally contradictory to their public authority status and it amounts to saying they are not answerable under RTI Act.
55. Non-disclosure agreement: Another major contention of the Ld Counsel for HI was that they were not supposed to disclose any information from out of the contract as they agreed not to disclose. She said that not only the price amount but any part of terms of agreement also should not be disclosed. She has marked the 'clause of confidentiality' in agreement copies. One such clause says: "The Parties hereto agree that the provisions of this Agreement shall be kept strictly confidential at all times. The Parties agree, however, that they may disclose the terms and conditions of this Agreement for their respective tax purposes or as required under law. The confidentiality obligation shall not affect the grant of rights to claim in terms of this agreement and usage of the same shall not constitute a breach of this clause". It is clear that parties agreed to share the information if the law, in this case the RTI Act, requires. Hence, if the information sought is not hit by any exception, this clause will not prevent from disclosure.
56. But in some other agreements, the clause reads like this: The Parties acknowledge that the content of this Agreement is confidential and agree to take whatever measures are reasonably necessary to preserve such confidentiality. Any CIC/KY/A/2016/001025 Page 44 public announcement of this Agreement can be done by either of the Parties only through a press release to be mutually agreed in writing by both the Parties. The terms of this Agreement shall not be released as part of any public announcement and shall be at all times treated as confidential information by the Parties. Going by this clause, the HI cannot even disclose the name of the party with which it entered into an agreement, because that is 'part' of the terms of agreement! Whether this clause of agreement is valid? Can this clause in a contract invalidate the parliamentary enactment RTI Act 2005 and override it? Any term of contract that is in contradiction to law is not valid and does not remain effective. According to Contract Act this clause is invalid. Assuming it is valid, it is hit by Section 22 of Right to Information Act that overrides any rule or law, if in conflict with the provisions of law. None of these two kinds of clauses of non-disclosure agreement come to rescue the HI.
57. The contention of the HI that there is no funding from the Government is factually incorrect as the MoYAS and SAI release grants and bears the cost of travel of players, besides grant of monopoly to HI. There is neither logic nor merit in argument that for cumulative amounts related information was given because it is public money, but details are not given because HI was not fully funded by government. To say that they need not give any details because HI generated money not out of public funds but by commercial games of HIL sans any sense. Similarly contending that HIL is a separate entity is untrue as HIL is child of HI and every agreement declares that HIL is representing HI. Visualizing a private commercial non-transparent private body (HIL) within a public non-commercial transparent public authority (HI) isas good as day-dreaming and absolutely baseless. Entire money generated by HI through HIL is public money and the HI including HIL is public authority covered by Section 2(h) of RTI Act. The HI is a society, a trust and National Sports Federation, with an obligation to be transparent, spend every rupee for benefit of hockey and in their fiduciary capacity have a duty to account for. They have to prove to the people that they are not paying anybody in conflict of interest. Those who are in management shall convince the people that they are not deriving undue benefit from working of HI or HIL either directly or indirectly.
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58. The HI has just claimed 'competition' but everywhere it operated through "TCM, HI's sole marketing representative" without inviting open bids either for sponsorship or for any other 'trade', which proves absence of competition. Nowhere it is revealed how HI selected its TCM as its sole marketing representative. HI has to disclose what process they have adopted for selection of TCM as their sole marketing representative, terms of the agreement, who paid consideration for that etc, that immediately and the certified copy of agreement with TCM on the official website of HI.
59. The sport of hockey cannot be used as base for commercial profit generating by HI or HIL as both of them are in the nature of state or state instrumentalities performing public functions owing a duty to sovereign citizens of this republic.
60. The HI contentions and its documents
(i) proved (a) they paid huge commissions for sponsorships, (b) sponsoring bodies include public sector undertakings (c) payment of commissions to PSU also was not ruled out, (d) there is no competition as the sponsorers were selected by "pick & choose" method by its sole marketing representative.
(ii) not proved (a) that it was spending entirely from its private earnings,
(b) competitive commercial interests are affected, (c) lack of public interest behind the information requests,
(iii) not explained (a) why commissions are paid even to public sector undertakings who sponsored events, (b) how and why sole marketing agent was appointed, and (c) why huge amount was spent in litigation.
61. The Monopoly of HI over Hockey is an admitted fact. The Hockey India Constitution A-3.11 says: "Hockey India is the sole governing body for Hockey, Men and Women and has the exclusive right to govern Hockey in India". The money generated by this monopoly is public money that makes the public authority accountable to expenditure of each pie of that money. The Constitution of HI has another clause on conflict of interest.
A-4: All the income, earning, movable and immovable properties of the Society shall be solely utilized and applied towards its aims and objectives only as set forth in the Memorandum of Association and no profit or surplus there of shall be paid or CIC/KY/A/2016/001025 Page 46 transferred directly or indirectly by way of dividends, bonus, profits or any other manner whatsoever to the present or past members of the Society or to any person claiming through anyone or more present and past members of the society. No member of the Society shall have any personal claim on any movable or immovable properties of the Society or make any profit whatsoever by virtue of their membership.
Hockey India Conflict of Interest/Confidentiality Policy and Guidelines as available http://hockeyindia.org/images/stories/2012/09/Hockey-India-Conflict-of-Interest- and-Confidentiality-Policy-Guidelines1.pdf Rule 3, says:
3. DETERMINING WHAT IS A CONFLICT OF INTEREST A conflict of interest is considered to exist:
• in any situation where the personal or business interests of an Executive Board/Committee/staff member may influence his/her ability to put the interest and welfare of Hockey India or Indian Hockey before personal or business interests or where someone is likely to perceive that the Executive Board/Committee/staff member could be influenced.
• whenever an individual can benefit directly/indirectly from information received by, or a decision of the Executive Board/Committee or where someone might reasonably perceive there to be such a benefit.
• when an individual has two separate and competing interests and it is unclear as to which interest he/she is acting for.
4. COMMON INSTANCES OF CONFLICT OF INTEREST In assessing the situations descried in paragraph 3 above, direct as well as indirect interests must be taken into account. This also includes the interests of a third person such as a parent, spouse, relation or dependent.
The following non-exhaustive list shows examples of common instances of conflict of interest:
• Where Executive Board or Committee members or staff have personal interests in business transactions or contracts that Hockey India may enter into.
• Where Executive Board or Committee members or staff have an interest in other organizations that have dealings or relationships with Hockey India and when matter involving the interest of both Hockey India and the other organization are being considered.
• Where Executive Board or Committee members or staff have interest in any joint ventures with external parties which Hockey India may enter into.
• In recruiting staff with close relationships (i.e. those who are more than acquiantances) with current Executive Board, Committee or staff members.
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• Any employment or income received from work undertaken within sport.
• Any income received from sport as a partner, director or employee within a firm
or company.
• Any sponsorship personally received.
• Any contracts with a sport for the provision of services or goods for profit.
7. CONFIDENTIALITY
All discussions at meetings of the Executive Board and Committees are confidential.
Members of the Executive Board and members of Committees must not disclose any discussions that take place at meetings to any third parties.
The Chairs of the Committees are responsible to and report to the Executive Board on all deliberations and discussions that take place at meetings of their respective Committees.
62.This clause imposes a duty on the HI not to disclose all discussions that take place at meeting to any third parties. This clause comes straight in conflict with the RTI Act, and hit by Section 22 and Section 8(2) and hence it is not valid and cannot be followed. The Commission directs this clause to be amended to accommodate disclosure of discussions and decisions of the meetings of Executive Board & Committee Meetings according to RTI Act, 2005.
63. This policy also rightly imposes an obligation on persons to declare their conflict of interest. The Commission requires as per Section 19(8) to disclose the declarations of conflict of interest obtained by the HI.
64. The Commission noticed total absence of transparency provisions in the HI Purchase and Tender Committee Rules, which Commission requires to be introduced.
65. The Commission noticed that Article 11.1 of HI Anti Corruption Policy(http://hockeyindia.org/images/stories/2012/09/HI-Anti-Corruption-Policy-2016.pdf) says "HI may disclose information obtained in investigations and proceedings ..." with conditions and limitations. Article 2.5 of this Policy deals with transparency and accountability the members or state association shall be notified and kept informed of any investigations etc, but does not talk about general transparency. The CIC/KY/A/2016/001025 Page 48 Commission requires the public authority HI to make their transparency policy in tune with the RTI Act, 2005 as soon as possible.
66. The break-up of certain expenditures mentioned in the accounts of the public authority will help the public to scrutinize and check up whether this public money has been spent for the objectives of the HI. Unless the names of those persons who are paid how much commission, sponsorship fee, lawyer's fee, it is not possible for appellant or for any citizen to check up whether any payment is made in conflict of interest. Being opaque is not in public interest. Transparency in giving sponsorship and hence the information has to be given.
67. The CPIO's first response on 9.10.2015 to RTI request states: "The Hockey India League is organized under the aegis of the Hockey India as such is not a separate body per se". Astonishingly the Ld Counsel for HI pleaded exactly opposite of it. She says the "HIL is totally different from HI; the HIL being a commercial body cannot be treated as part of HI and its information cannot be given as that amounted to commercial confidence". The CPIO was right as he said Hockey India League is organized under the aegis of the Hockey India as such is not a separate body per se.
68. The CPIO gave some names of sponsorers and hidden the other sponsorers. Appellant asked: You gave that Hero Motocorp, Bharti Airtel and Yes Bank are your sponsors. Are you sure that only these three are your sponsors? Is there any other corporation/company, whether a Public Sector company or in the private sector which has paid you sponsorship money, or is contracted to pay you in the coming years? This is proof of giving incomplete information. When the HI has no objection to disclose names of some sponsorors why all names were not given. The Public Authority failed to justify this aspect,
69. The CPIO and First Appellate Authority claimed: The information sought is of "commercial confidence, trade secret or intellectual property". Neither of these officers has put up any reason or justification for invoking Section 8(1) (d) of RTI Act. Is it commercial confidence? Is it Trade Secret or Intellectual Property? It is interesting to note that they do not know which part of information was trade secret, which was commercial confidence or IP? None proved the 'competition' or CIC/KY/A/2016/001025 Page 49 'harm' that might have been caused by disclosure. It is obvious denial without any justification.
70. The CPIO Sh. Ranjit Gill and First Appellate Authority Shri CdrR.K. Srivastava failed in their statutory duties to provide complete information. In ordinary course the Commission has to direct the CPIO Sh. Ranjit Gill to show cause why maximum penalty should not be imposed against him. But Hockey India being such a rich and huge powerful public authority, it is not possible for these small offices to act independently. The Commission found that the decision makers of public authority did not respect the undertaking of their Ld Counsel Ms. ShyelTrehanand the direction of the CIC. A per that undertaking, to submit the original papers in sealed cover for examining the so called commercial element, confidentiality etc as claimed by the respondent authority. Thus the authorities of HI obstructed the statutory functioning of the Commission. The submission of those papers was necessary for examining the validity of the claim, according to them. The Commission holds the Presidentas on date of 28.08.2018 Mr.Rajinder Singh, (who is nowSecretary General)of the Hockey India responsible for this act of non- compliance and directs them to show-cause why maximum penalty should not be imposed against them for the same before 09th November 2018.
71. Democratic States, the world over, are engaged in finding solutions to the problem in transparency. In the light of issues involved, arguments advanced, authorities cited, the Commission is of considered view that the respondent authority holding such information, shall provide the following information to the appellant with intimation to this Commission:
a. Details of sponsorship amount received by Hockey India League for the year 2013 to latest season;
b. Amount of Commission paid for obtaining sponsorships for the year 2013 to latest season along with names of the persons / agencies who were paid the Commission; and c. Expenditure incurred on consultancy and legal expenses of lawyers engaged by Hockey India and Hockey India League from 2013 to latest season along with the names of the lawyers/attorneys.
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72. The Commission's order dated 22.10.2018:
72. It is, therefore directed that the complete information soughtshall be provided to the appellant and comply with other directions with intimation to this Commission, before 30th October 2018. The matter is posted for compliance and penalty proceedings on 09th November, 2018 at 12:30 PM.
Decision:
73. The Counsel for respondent authority submitted that the Order dated 22.10.2018 was challenged before the Hon'ble High Court of Delhi vide W.P. (C) No. 11761/2018 seeking directions for restraining from proceeding with or acting upon or taking any further steps. The Hon'ble High Court of Delhi vide its Order dated 02.11.2018 have stayed the instant matter. In view of the above, the Commission adjourns the matter till final disposal of the matter pending before the Hon'ble High Court of Delhi. Hence, ADJOURNED.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
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