Central Information Commission
Shri Sc Agrawal vs Prime Minister’S Office (Pmo) on 16 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/00038 & WB/C/08/868 dated 7-2-09 & 25-8-2008
Right to Information Act 2005 - Section 19
Appellant: Shri SC Agrawal
Respondent: Prime Minister's Office (PMO).
FACTS
By an application of 28-4-08 Shri S.C. Agrawal of Dariba, Delhi applied to the CPIO, Cabinet Secretariat seeking the following information:
"I will be obliged if your honour kindly provides informs me detailed information on assets/ wealth/ income of members of all the ministers in the Union Ministry for last two years data for which may be last available. Please also include similar information for family members of the ministers.
In case query/ queries relates to some other public authorities, kindly transfer this RTI petition to CPIOs there under section 6 (3) of RTI Act. Please attach file notings. Postal order number 59E 158200 for rupees ten is enclosed towards RTI fees.' The processing of this application has culminated with one complaint before us under file No. CIC/WB/C/2008/00868 and one appeal under file No. CIC/WB/A/2009/00038. Both petitions have been heard together:
File No. CIC/WB/A/2007/00038 On not receiving a response from Cabinet Sectt Shri S.C. Agrawal issued a reminder to that office on 21-7-08. Subsequently, he received a response on 17-12-08 from CPIO, Shri Amit Agarwal, Director, PMO informing him as follows:
"The information sought in your application is exempt from disclosure under the provisions of sub-sections (e) and (j) of section 8 (1) of the Right to Information Act, 2005. In this connection you may like to refer to the Central Information Commission's decision in appeal no. CIC/AT/A/2006/00134 dated 10.7.2006."
Aggrieved by this, appellant moved his first appeal before Ms. Vini Mahajan, JS, through e-mail on 27-12-08 upon which he received a response on 27-1-09 as follows:
1"I am of the view that action taken by the CPIO of the Prime Minister's Office is in accordance with the prescribed statutory provisions and he has appropriately dealt with your application.
No further action is called for on your appeal, which is disposed off accordingly."
Appellant's prayer before us both in the complaint and appeal are as follows:
CIC/WB/C/2008/00868 "I appeal that the CPIO at PMO may kindly be directed to respond to my RTI petition together with file notings"
& CIC/WB/A/2007/00038 "Honourable Central Information Commission may kindly decide which public authority (Union Cabinet Secretariat or PMO) has to provide me information as assets/ wealth/ income (or liabilities) of members of Union council of Ministers (including their family members) of which an updated list dated 15.5.2008 was forwarded by PMO to Union Cabinet Secretariat to deal with such RTI petitions ,as is clear from PMO's letter dated 19.5.2008 addressed to Union Cabinet Secretariat together with other queries/ documents sought in my RTI petition. Kindly also arrange file notings on movement of this RTI petition as also requested in my RTI petition. Late and improper replies from PMO may kindly be noted for necessary reformative directions to concerned public authorities."
CIC/WB/C/2008/00868 In response to the complaint /appeal notices the PMO through letter of CPIO Shri Amit Agarwal of 30-9-08 regarding the complaint and of 12-3-09 regarding the appeal has replied as follows:
"The fact of non-receipt of information has been brought to the notice of this office at this stage only. It would have been appropriate for the complainant to have approached the appellate authority in this office, in terms of section 19 of the RTI Act, if the information had not furnished to him, before filing this complaint. As regards his reminder letter dated 21.7.2008, no such reference could be traced."
Together with this he attached a copy of a letter dated 19-5-08 from then CPIO Shri Kamal Dayani, Director addressed to the CPIO, Shri Sunil Mishra, Director, Cabinet Sectt in which the then CPIO, PMO has stated as follows:
"The undersigned is desired to request that the Cabinet Secretariat may kindly furnish the information to the applicant under RTI. A copy of updated list as on 15.5.08, indicating the details of assets and liabilities from Members of Union Council 2 of Ministers is enclosed for record to deal with similar RTI applications in future."
CIC/WB/A/2007/00 038 In this case CPIO Shri Amit Agarwal has traced the processing of this application as below:
"(i) The appellant's right to information application dated 28.4.2008 relating to assets and liabilities of the members of Union Council of Ministers and their family members was received from the Cabinet Secretariat vide their OM No. F-12015/119/2008- RTI Dated 5.5.2008. The matter was referred to the officer concerned in PMO who informed that the Cabinet Secretariat circulates the code of conduct to all Ministers, which includes, inter alia, submission of the information on assets and liabilities by the Ministers every year. Information available in this office on the subject is shared with the Cabinet Secretariat. against this background, with approval at the appropriate level in the office, the CPIO was advised by the office to return the application to the Cabinet Secretariat for furnishing the requisite information to the applicant, while sharing the records available in this office with the Cabinet Secretariat. Accordingly, the then acting CPIO vide PMO ID No. 815/21/C/1/2005/Pol. (Vol. III) dated 19.5.2008 (copy enclosed) requested the CPIO, Cabinet Secretariat to furnish the information to the applicant while also sending the Cabinet Secretariat a list updated as on 15.5.2008 indicating the details of assets and liabilities received from the members of the Union Council of Ministers.
(ii) No response was received by the CPIO, PMO on this till the CPIO, Cabinet Secretariat vide OM No. F-
12015/240/2008-RTI dated 2.12.2008 (received as per record in PMO on 8.12.2008 and submitted to the CPIO on 10.12.2008) transferred the application back for appropriate action, citing a decision communicated on 14.11.2008 that requests relating to information on assets and liabilities of the Union Ministers would be handled by the PMO. The office was requested on the same day for furnishing inputs the same day i.e. 10.12.2008. the inputs furnished by the office vide note dated 16.12.2008 invited attention to CIC order No. CIC/aT/A/2006/00134 dated 2.12.2008 in which the Hon'ble Commission had held that information furnished to various Public Authorities by public servants shall be covered by exemption under section 8 (1) (j) and 8 (1) (e) and was, therefore, non-disclosable. In light of this, a reply of even number dated 17.12.2008 invoking exemption under sub 3 sections (e) & (j) of section 8 (1) of the Right to Information Act, 2005 and giving reference to the said order was sent to the appellant.
Both the cases i.e. appeal and complaint were heard together on 13-3- 2009. The following are present.
Appellants Shri SC Agrawal.
Ms. Madhu Agrawal.
Ms. Kamini Jaiswal Advocate, assisting appellant. Shri Abhimanyu Shreshtha, Advocate, assisting appellant.
Respondents Shri Amit Agrawal, Director & CPIO, PMO.
Shri Agam Agrawal, Section Officer, PMO.
There are two issues of concern to us that emerge from both cases.
Issues:
1. Whether the information sought i.e. details of assets, wealth and income of all Ministers and their families is disclosable;
2. Which Public Authority holds this information particularly in light of the letter of Shri Kamal Dayani, Director, PMO of 19-5-08 addressed to the Cabinet Secretariat.
Shri Amit Agarwal, CPIO, PMO readily clarified Issue 2 submitting that there had been considerable confusion with regard to the Public Authority that holds the information. In many cases information had been submitted to the Cabinet Secretariat and in others to the PMO. Thanks to the RTI request from appellant Shri S.C. Agrawal, it has been decided by orders in the PMO of 14-11-08 that this information will be held in the PMO. Accordingly, CPIO, Cabinet Secretariat has transferred the matter to the PMO which has, in turn, responded to the appellant through CPIO's order of 17-12-08.
On the question of disclosing the information so held CPIO, Shri Amit Agarwal referred to the Lok Sabha Declaration of Assets and Liabilities Rules, Rule 4 (4) of which lays down that such information is to be treated 4 as confidential and disclosed only under specific orders of the Speaker, Lok Sabha.
He, however, admitted that with regard to response to the transfer of RTI application from the PMO of 19-5-08 appellant Shri S.C. Agrawal had not been informed of the decision contained in letter of 19-5-08 addressed by the CPIO, PMO to the CPIO, Cabinet Secretariat.
Learned counsel for appellant Ms. Kamini Jaiswal submitted that in case of information sought to be exempted from disclosure both u/s 8 (1) (e) and 8 (1) (j) public interest overrides exemption. She then contended firmly that it is very much in the public interest to know of the assets of the Ministers holding public office and particularly, what property they may have acquired after the declaration of their assets before the Election Commission of India before whom during the process of seeking election is under court orders, specifically the decision of Apex court in (2003) 4, People's Union for Civil Liberties (PUCL) & Another vs. UOI and another required not only to be held by the Election Commission of India but placed in the public domain. She also invited our attention to the letter of PMO to the Cabinet Secretariat of 19-5-08 and specifically the following sentence:
"The undersigned is desired to request that the Cabinet Secretariat may kindly furnish the information to the applicant under RTI."
Ms. Jaiswal, therefore, contended that the PMO had, in fact, directed the Cabinet Sectt. to disclose the information sought to appellant Shri S.C. Agrawal, but later reversed its decision She then went on to quote from the decision of the apex court on 13.3.2003 in (2003) 4, SC 399, People's Union for Civil Liberties (PUCL) & Anr vs. UOI & Anr. as follows:
"47. From the aforesaid observations learned Solicitor General Mr. Raval and learned Senior Counsel Mr. Jaitley contended that rights which are derivatives would be subject to reasonable restriction. Secondly, it was sought to be contended that by insisting for declaration of assets of a candidate, right would have right to privacy under Article 21. The Court itself has carved out the exceptions and restrictions on absolute right of privacy. Further, by declaration of a fact, which is a matter of public record that a candidate was involved in a various criminal 5 cases, there is no question of infringement of any right of privacy. Similarly, with regard to the declaration of assets also, a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation. Not only this, but once a person becomes a candidate to acquire public office, such declaration would not affect his right of privacy. This is the necessity of the day because of statutory provisions of controlling widespread corrupt practices as repeatedly pointed out by all concerned including various reports of the Law Commission and other committees as stated above."
Learned counsel also argued that what constitutes public interest has also been clearly defined by the apex court in Ashok Kumar Pandey vs. State of West Bengal (2004) SC 349; Nov 18 2003as follows:
"5. It is necessary to take note to the meaning to the expression "public interest litigation". In Stroud's Judicial Dictionary, Vol. 4, 4th Edn. "public interest" is defined thus:
Pubic Interest-(1) A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.
6. In Black's Law Dictionary, 6th Edn., "public interest" is defined as follows:-
Public interest-Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government."
7. In Janata Dal case this Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is public interest, the Court has laid down as follows (SSC p. 331) "53. The expression 'litigation' means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or 6 some interest by which their legal rights or liabilities are affected."1 In his response CPIO Shri Amit Agrawal, Director PMO submitted that returning the RTI application to Cabinet Secretariat by Director PMO was not a result of exercise of judgement on the disclosability of the information sought but only conveying of a decision as to which public authority should hold the information thus assigning responsibility to respond to a request for access to such information. It cannot constitute reversal of any decision DECISION NOTICE In the matter of declaration of assets this Commission has made several decisions with particular reference to property returns of govt servants. In CIC/AT/A2006/00134 of 10-7-06 this Commission has held as follows:
11. However, all public authorities are urged that in order to open the property returns of all public servants to public scrutiny, the public authorities may contemplate a new and open system of filing and retention of such returns.
The public servants may be advised in advance that their property returns shall be open and no more confidential. The property return forms may be so designed as to give only such transactions and assets related details, which may not violate civil servants' right to privacy. These steps may bring the curtain down on the rather vexed question of how private is the information given in "property returns" or that it is a public information, which is not private at all.
In an appeal disposed of in file no. WB/A/2007/00189 decided on 14- 5-08 this Commission has held as below:
"We have heard the parties and examined the record. We have also downloaded the decisions of the Hon'ble Supreme Court in the civil appeals cited above. In Writ Petition (Civil) 294/2001 Union of India vs. Association for Democratic Reforms, the Apex Court has in its judgment of 2nd May, 2002 dealt primarily with the jurisdiction of the Election Commission wherein the requirement of a public servant to provide declaration of moveable and immovable property under Rule 16 of All India Service (Conduct) Rules, 1967 is also discussed. In Peoples' 1 Underlined by us for ease of reference 7 Union of Civil Liberties vs. Union of India, however, in his judgment of 13.2.2003 Shri P.V. Reddy J. has ruled as follows:
"When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given."
The judgment goes on to dwell at length not only with the requirement of disclosure of the property of candidates foe elections but to conclude that "It cannot be denied that the family relationship and social order in our country is such that the husband and wife look to the properties held by them as belonging to the family for all practical purposes, though in the eye of law the properties may distinctly belong to each of them. By and large, there exists a sort of unity of interest in the properties held by spouses. The property being kept in the name of the spouse benami is not unknown in our country. In this situation, it could be said that a countervailing or paramount interest is involved in requiring a candidate who chooses to subject himself/herself to public gaze and scrutiny to furnish the details of assets and liabilities of the spouse as well."
Appellant Shri Upadhyaya has argued that when such rigorous norms are fixed for candidates for elections, who are in service for only the limited term of their office, the government servants, engaged in life long service cannot be exempt.
We moreover find that this Commission has, in Shri Roshan Lal vs. Kendriya Vidyalaya Sanghathan, Appeal Nos. CIC/OK/A/2007/01493 & CIC/OK/A/2008/00027 dated 20th March, 2008 also ruled on the question of disclosure of property returns wherein respondents had denied disclosure on the ground of Sec. 8(1) (j). In these cases Information Commissioner Dr. O.P. Kejariwal has held as below:
"The Bench, however, holds that Annual Property Returns by government employees are in the public domain and hence there seems to be no reason why they should not be freely disclosed. This should also be considered as a step to contain corruption in government offices since such disclosures may reveal instances where property has been acquired, which is disproportionate to known sources of income. The Commission, therefore, directs the Respondents to provide copies of property returns asked for by the Appellant to him by 10th April, 2008."8
Under the circumstances, we see no reason to uphold exemption from disclosure sought."
It will be seen from the above that even in what may appear to be contrary decisions by this Commission, what should be made clear is that the Commission has directed/advised that every public authority should move towards making such information public in terms of Government servants. In the present case, we have gone beyond the question of Government servants, but to argue a fiduciary relationship in submission of such statements to PMO, when such statements have in any case under law also to be made available at t the time of election before the Election Commission of India, is not in our view a valid argument.
On the other hand we agree with CPIO that the note of 19.5.'08 sent by PMO to Cabinet Secretariat is only a forwarding note and not a direction, nor indeed an advisory in terms of the information sought by appellant Shri Agrawal. Nevertheless, at the time that Cabinet Secretariat received this reply from PMO, it was for that public authority to respond or give to appellant a reason for delay in response. There has therefore been a failure by CPIO Shri Sunil Mishra Director, Cabinet Secretariat, to fulfil his responsibility under Sec 7 of the RTI Act 2005. Since Cabinet Secretariat was not party to this appeal, no further action is proposed in this regard. However Cabinet Secretariat is advised to take note of this observation For the above reasons, the appeal of Shri S.C. Agrawal is allowed. But it is clear that the information sought, as is recognised by the Lok Sabha rules quoted above, is held in confidence, thus warranting of reference to third party u/s 11(1) before proceeding with any disclosure. However, because under the Lok Sabha Rules cited above such information is not disclosable except with the permission of the Speaker, the matter will be referred to Shri Somnath Chatterjee, Speaker of the Lok Sabha for disclosure of such information as relates to those Members of the Council of Ministers who are Members of the Lok Sabha. If there is any equivalent Rule with regard to the Rajya Sabha, this may also be 9 exercised, although, we were not told of existence of any such Rules during the hearing. If no such rules in fact exist, the matter will be referred to the third parties concerned as per the process mandated u/.s 11 sub- section (1) of the RTI Act 2005. This process may be completed within thirty working days of the date of issue of the Decision Notice.
Reserved in the hearing this decision is announced on Monday, the 16th March, 2009. Notice of this decision be given free of cost to the parties, including CPIO Cabinet Secretariat, together with a copy to the office of Speaker, Lok Sabha, for the latter's information.
(Wajahat Habibullah) Chief Information Commissioner 16-3-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 16-3-2009 10