Allahabad High Court
Dr. Nutan Thakur vs State Of U.P.Thr.Prin.Secy.Deptt.Of ... on 2 November, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 26.05.2017 Delivered on 02.11.2017 Court No. - 24 Case :- MISC. BENCH No. - 1748 of 2013 Petitioner :- Dr. Nutan Thakur Respondent :- State of U.P. through Principal Secretary, Department of Vigilance, U.P. Government, Lucknow Counsel for Petitioner :- Dr.Nutan Thakur (In person) Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar-II, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This writ petition has been filed as a Public Interest Litigation (hereinafter referred to as "PIL") seeking following reliefs:
"a. Issue a writ of Certiorari thereby quashing the impugned Notification 2339/39-4-2010-21/05, dated 22/09/2010 issued by the Respondent, Principal Secretary, Vigilance, Government of Uttar Pradesh as contained in Annexure No. 1 through which the Vigilance Department and Uttar Pradesh Vigilance Establishment have been brought out of the purview of the Right to Information Act, 2005.
b. Issue a writ of Certiorari thereby quashing the impugned Notification 1679/39-4-2012-21-05 dated 03.08.2012 issued by Principal Secretary, Vigilance, Government of Uttar Pradesh as contained in Annexure No. 2 through which the Lokayukta agency has been brought out of the purview of the Right to Information Act, 2005."
2. While entertaining the writ petition on 01.03.2013, this Court found that so far as first relief is concerned, it was already negated in another matter, i.e, PIL No. 63607 of 2010 and in that view of the matter, prayer (a) stood rejected.
3. Dr. Smt. Nutan Thakur, petitioner, appearing in person could not dispute that this petition is presently alive only with respect to prayer (b) and accordingly parties addressed this Court on this aspect alone.
4. By Notification dated 03.08.2012 issued by State of U.P. published in U.P. Gazette Extraordinary and in purported exercise of power under Section 24(4) of Right to Information Act, 2005 (hereinafter referred to as "Act, 2005"), State of U.P. has put 'Lokayukta', established under provisions of U.P. Lokayukta and Up- Lokayuktas Act, 1975 (hereinafter referred to as "U.P. Act, 1975") beyond the purview of Act, 2005. Challenging aforesaid Notification, petitioner submits that 'Lokayukta' is not an Organization of the nature covered under Section 24(4) of Act, 2005 which can be excluded or exempted from Act, 2005, hence Notification dated 03.08.2012 is ultra vires of Act, 2005.
5. Petitioner submits, when something is for public benefit, and, community at large has some kind of interest therein by which their legal rights and liabilities are affected, the same cannot be curtailed by Government since citizens also share interest in general affairs of State. She referred to various authorities stating that right to information is an integral part of "right of free speech and expression" under Article 19(1)(a) read with Article 21 of Constitution of India and unless information is supplied, citizens would not be able to enjoy their fundamental rights effectively. The impugned Notification is nothing but renders such fundamental right illusory. It would result in curtailment thereof in a wholly unreasonable and arbitrary manner. It is contended that Section 24 (1) of Act, 2005 is applicable to Intelligence and Security organizations specified in Second Schedule established by Central Government or State Government and 'Lokayukta' does not satisfy the description of nature of Organizations which are referred to in Section 24(1) and 24(4) of Act, 2005.
6. Taking support from proviso to Section 24(4) of Act, 2005, petitioner further submitted that first proviso to Section 24(1) excludes the power of exemption where information is pertaining to allegations of corruption. 'Lokayukta' and its agencies are connected with information pertaining to allegations of corruption etc. of 'public servants', hence the said Organization could not have been excluded under Section 24(4) of Act, 2005 and impugned Notification is patently illegal and ultra vires of Act, 2005. She has also placed before us various provisions of U.P. Act, 1975 under which 'Lokayukta' and Up-Lokayuktas are constituted to show that this Organization is such, which, by no stretch of imagination, can be included within the ambit of Section 24(4) and hence could not have been excluded from the purview of Act, 2005. She contended that objective of Act, 2005 is to bring transparency in the system of public functionaries. Therefore, provisions of Act, 2005 insofar as the same relates to exclusion of certain institutions denying right to information to public in general, must be construed strictly. Looking from any angle, she argued that Organization of 'Lokayukta' has been illegally ousted or kept beyond the purview of Act, 2005, to cover up and suppress information regarding large scale bungling and corruption amongst public functionaries of State of U.P. and to block information of such matters to Public at large which is not in public interest and even otherwise wholly arbitrary and illegal.
7. Learned Standing Counsel, on the contrary, submitted that term "Intelligence" has to be given widest possible meaning having been used in a Legislative enactment and it will include within its ambit 'Lokayukta' establishment. State Government after giving due consideration to the matter has issued impugned Notification under Section 24(4) of Act, 2005, hence no interference is called for and this writ petition deserves to be dismissed.
8. Heard Dr. Nutan Thakur, petitioner in person and learned Standing Counsel for respondent.
9. U.P. Act, 1975 was enacted at a time when concept of right of public to get information and whether it could be included within the fundamental rights in Part-III of Constitution, was at a nascent stage. Having retrospect of this aspect, we find that in State of U.P. Vs. Raj Narain and others (1975) 4 SCC 428, Court made certain observations in respect of right of people of this Country to know every public act that is done in a public way, by their public functionaries. The relevant observations are as under:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security."
(emphasis added)
10. Right to information as a facet of freedom of speech and expression was not a well recognized right when U.P. Act, 1975 was enacted. In fact, public functionaries including Executives of Government or Governmental agencies and instrumentalities, invariably used to go behind colonial culture of secrecy taking shelter under Official Secrets Act, 1923. That is how, provisions were made in U.P. Act, 1975 by taking a step ahead constituting an independent investigating body when allegations of official misuse of power etc. are levelled against 'public servants', as defined under U.P. Act, 1975. Simultaneously power was conferred upon 'Lokayukta' to make public, such information, as it may deem fit.
11. Before proceeding further, it would be appropriate to examine nature of establishment of 'Lokayukta' and Up-Lokayukta under U.P. Act, 1975.
12. Provincial Legislature enacted U.P. Act No. 42 of 1975. It received assent of President on 07.09.1975 and came into force on 12.07.1977 vide Notification issued under Section 1(3) of U.P. Act, 1975. This Act was enacted to make provisions for appointment and functions of certain authorities for investigation of grievance and allegations against Ministers (excluding Chief Minister), Legislators and other public servants in certain cases and for matters connected therewith.
13. "Lokayukta" has been defined in Section 2(e) which says that 'Lokayukta' means a person appointed as 'Lokayukta' under Section 3.
14. "Up-Lokayukta" means a person appointed as 'Up-Lokayukta' under Section 3.
15. Section 3 lays down procedure of appointment of 'Lokayukta' and provides that a 'Lokayukta' shall be appointed after consultation with Chief Justice of Allahabad High Court and Leader of Opposition in Legislative Assembly. For appointment of 'Up-Lokayukta' State Government is under an obligation to consult 'Lokayukta'.
16. The eligibility and qualifications of 'Lokayukta' is that he shall be a person who has or has been a Judge of Supreme Court or High Court. Further a 'Lokayukta' or 'Up-Lokayukta' must be a person who is not and has never been a Member of Parliament or a Member of Legislature of any State.
17. Section 4 further provides that a 'Lokayukta' or 'Up-Lokayukta' shall not hold any office of trust or profit or be connected with any political party or carry on any business or practice any profession. It further says that before entering the Office, a person appointed as 'Lokayukta' or 'Up-Lokayukta' shall resign from the Office of Judge, if he was a sitting Judge or holds any Office of trust or profit and sever his connection with political party if connected. It further says that if he is carrying on a business, would have to seize his connection with conduct and management of such business and if he is practising any profession, would have to suspend practice of such profession.
18. Section-5 provides term of 'Lokayukta' and 'Up-Lokayukta' and Section 6 provides procedure of Removal of 'Lokayukta' and 'Up-Lokayukta'.
19. The matters which may be investigated by 'Lokayukta' or 'Up-Lokayukta' are provided in Section 7 and it reads as under:
"7. Matters which may be investigated by Lokayukta or Up-Lokayukta. - (1) Subject to the provisions of this Act and on a complaint involving a grievance or an allegation being made in that behalf, the Lokayukta may investigate any action which is taken by or with the general or specific approval of, -
(i) a Minister or a Secretary; and
(ii) any public servant referred to in sub-clause (ii) or sub-clause (iv) of clause (j) of Section 2; or
(iii) any other public servant being a public servant of a class or sub-class of public servants notified by the State Government in consultation with the Lokayukta, in this behalf.
(2) Subject to the provisions of this Act and on a complaint involving a grievance or an allegation being made in that behalf, an Up-Lokayukta may investigate any action which is taken by or with the general or specific approval of any public servant not being a Minister, Secretary or other public servant referred to in sub-section (1).
(3) Notwithstanding anything contained in sub-section (2), the Lokayukta may, for reasons to be recorded in writing, investigate any action which may be investigated by an Up-Lokayukta under that sub-section.
(4) Where two or more Up-Lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act:
Provided that no investigation made by an Up-Lokayukta under this Act, and no action taken or thing done by him in respect of such investigation shall be open to question on the ground only that such investigation related to a matter which is not assigned to him by such order." (emphasis added)
20. Section-7 uses two words, i.e. complaint involving a "grievance" or "allegation". The term "allegation" as well as "grievance" are defined in Section 2(b) and (d) respectively and read as under:
"(b) "allegation", in relation to a public servant, means any affirmation that such public servant -
(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person,
(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motive, or
(iii) is guilty of corruption, or lack of integrity in his capacity as such public servant;"
"(d) "grievance" means :-
(i) a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration, or
(ii) a complaint to the effect that an authority empowered to make appointments to a public service or post in connection with the affairs of the State of Uttar Pradesh has after the commencement of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 1989 made any appointment in breach of the quota of reservation for members of Scheduled Castes or Scheduled Tribes laid down by the State Government." (emphasis added)
21. The term "Maladministration" is also defined in Section 2(f) which reads as under:
"(f) "mal-administration" means action taken or purporting to have been taken in exercise of administrative functions in any case, -
(i) where such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) where there has been negligence or undue delay in taking such action, or the administrative procedure or practice governing such action involves undue delay;"
22. Section-8 provides the matters which are not subject of investigation by 'Lokayukta' or 'Up-Lokayukta'. Section 9 deals with the procedure for making complaints to 'Lokayukta'/Up-Lokayukta. Section 10 lays down procedure in respect of investigation by 'Lokayukta' and reads as under:
"10. Procedure in respect of investigations. - (1) Where the Lokayukta or an Up-Lokayukta proposes (after making such preliminary inquiry, if any, as he deems fit) to conduct any investigation under this Act, he -
(a) shall forward a copy of the complaint to the public servant concerned and the competent authority concerned;
(b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint; and
(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit (2) Every such investigation shall be conducted in private, and in particular, the identity of the complainant and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation :
Provided that, the Lokayukta or an Up-Lokayukta may conduct any investigation relating to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.
(3) Save as aforesaid, the procedure for conducting any such investigation shall be such as the Lokayukta or, as the case may be, the Up-Lokayukta considers appropriate in the circumstances of the case.
(4) The Lokayukta or an Up-Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or, an allegation, if in his opinion -
(a) the complaint is frivolous or vexatious, or is not made in good faith; or
(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
(5) In any case where the Lokayukta or an Up-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned.
(6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation."
23. Third Schedule, which is referable to Section 8, contains matters not subject to investigation and reads as under:
"(a) Action taken for the purpose of investigating crime or protecting the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter shall go to, or shall continue to be prosecuted in a Court or not.
(c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration of the Government or of the local authority or other corporation, company or society, as the case may be, with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligations.
(d) Action taken in respect of appointments other than an appointment referred to in clause (ii) of clause (d) of Section 2 removals, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims, for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service.
(e) Grant of honours and awards."
24. Section 11 deals with the evidence and power of 'Lokayukta'/Up-Lokayukta in collecting such evidence. It would exercise same power as that of a Civil Court while trying a suit under Code of Civil Procedure.
25. Section 12 provides procedure on a report submitted by 'Lokayukta' and 'Up-Lokayukta'. It reads as under:
"12. Reports of Lokayukta and Up-Lokayukta. - (1) If, after investigation of any action in respect of which a complaint involving a grievance has been made, the Lokayukta or an Up-Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta or Up-Lokayukta shall by a report in writing recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(2) The competent authority to whom a report is sent under sub-section (1), shall within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, or as the case may be, the Up-Lokayukta, the action taken for compliance with the report.
(3) If, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lokayukta or an Up-Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendation alongwith the relevant documents, materials and other evidence to the competent authority.
(4) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Up-Lokayukta, the action taken or proposed to be taken on the basis of the report.
(5) If the Lokayukta or the Up-Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned, but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complainant concerned.
(6) The Lokayukta and the Up-Lokayuktas shall present annually a consolidated report on the performance of their functions under this Act to the Governor.
(7) On receipt of a special report under sub-section (5) or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(8) Subject to the provisions of sub-section (2) of Section 10, the Lokayukta may at his discretion make available, from time to time, the substance of cases closed or otherwise disposed of by him or by an Up-Lokayukta, which may appear to him to be of general, public, academic or professional interest, in such manner and to such persons as he may deem appropriate."
26. Section 13 empowers 'Lokayukta' and Up-Lokayukta to take appropriate action when a false complaint is made and Section 14 deals with staff of 'Lokayukta' and 'Up-Lokayukta'. Thereafter Section 15 provides for secrecy of information and Section 18 talks of conferment of additional functions on 'Lokayukta' and 'Up-Lokayukta'. These two provisions i.e. Sections-15 and 18 are reproduced as under:
"15. Secrecy of information. - (1) Any information obtained by the Lokayukta or the Up-Lokayukta or members of their staff in the course of or for the purposes of any investigation under this Act and any evidence recorded or collected in connection with such information, shall, subject to the provisions of the proviso to sub-section (2) of Section 10, be treated as confidential and notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872), no Court shall be entitled to compel the Lokayukta or an Up-Lokayukta or any public servant to give evidence relating to such information or produce the evidence so recorded or collected.
(2) Nothing in sub-section (1) shall apply to the disclosure of any information or particulars, -
(a) for purposes of the investigation or in any report to be made thereon or for any action or proceedings to be taken on such report; or
(b) for purposes of any proceedings for an offence under the Official Secrets Act, 1923 (Central Act 19 of 1923), or an offence of giving or fabricating false evidence under the India Penal Code, 1860 (Central Act 45 of 1860) or for purposes of any trial of an offence under Section 13 or any proceedings under Section 16; or
(c) for such other purposes as may be prescribed.
(3) An officer or other authority prescribed in this behalf may give notice in writing to the Lokayukta or an Up-Lokayukta, as the case may be, with respect to any document or information specified in the notice or any class of documents or information so specified that in the opinion of the State Government the disclosure of the documents or information or of documents or information of that class would be contrary to public interest, and where such a notice is given, nothing in this Act, shall be construed as authorizing or requiring the Lokayukta, the Up-Lokayukta or any member of their staff, unless the Lokayukta or the Up-Lokayukta, for reasons to be recorded, is of the opinion that disclosure of such document or information involves no public interest to communicate to any person any document or information specified in the notice or any document or information of a class so specified."
"18. Conferment of additional functions on Lokayukta and Up-Lokayuktas etc. - (1) The State Government may, by notification published in the Gazette and after consultation with the Lokayukta, confer on the Lokayukta or an Up-Lokayukta, as the case may be, such additional functions in relation to the eradication of corruption as may be specified in the notification.
(2) The State Government may, by order in writing and after consultation with the Lokayukta, confer on the Lokayukta or an Up-Lokayukta such powers of a supervisory nature over agencies, authorities or officers set-up, constituted or appointed by the State Government for the eradication of corruption.
(3) The State Government may, by order in writing and subject to such conditions and limitations as may be specified in the order, require the Lokayukta to investigate any action being an action in respect of which a complaint may be made under this Act, to the Lokayukta or an Up-Lokayukta and notwithstanding anything contained in this Act, the Lokayukta shall comply with such order :
Provided that the Lokayukta may entrust investigation of any such action (being action in respect of which a complaint may be made under this Act to an Up-Lokayukta) to an Up-Lokayukta.
(4) When any additional functions are conferred on the Lokayukta or an Up-Lokayukta under sub-section (1) or when the Lokayukta or an Up-Lokayukta is to investigate any action under sub-section (3), the Lokayukta or Up-Lokayukta shall exercise the same powers and discharge the same functions as he would in the case of any investigation made on a complaint involving an allegation and the provisions of this Act shall apply accordingly."
27. Section 19 confers power upon State Government which is to be exercised in consultation with 'Lokayukta' for exclusion of certain complaints from investigation by 'Lokayukta' and 'Up-Lokayukta'.
28. Section 20 confers power upon 'Lokayukta' to issue a general or specific order in writing directing that any power conferred or duty imposed upon it by or under U.P. Act, 1975 (except the powers to make reports to the Governor under section 12) may also be exercised or discharged by such of the officers, employees or agents referred to in section 14, as may be specified in the order. Under Section 14 power has been conferred upon 'Lokayukta' to appoint or authorize an 'Up-Lokayukta' or any officer subordinate to the 'Lokayukta' or an 'Up-Lokayukta' to appoint, officer and other employees to assist the 'Lokayukta' and 'Up-Lokayuktas' in the discharge of their functions under U.P. Act, 1975. Sub-section (3) of Section 14 authorizes 'Lokayukta' or 'Up-Lokayuktas' to utilize services of officer or investigation agency of the State or Central Government for conducting investigation under U.P. Act, 1975 but with the concurrence of such Government. It may also employ any other person or agency for the said purpose. Section 14(3) of U.P. Act, 1975 reads as under:
"(3) Without prejudice to the provisions of sub-section (1), the Lokayukta or an Up-Lokayukta may for the purpose of conducting investigations under this Act utilize the services of -
(i) any officer or investigation agency of the State or Central Government with the concurrence of that Government,
(ii) any other person or agency."
29. Section 21 confers power upon State Government to make rules for carrying into effect the provisions of U.P. Act, 1975 and certain matters referred to in Sub-section (2) of Section 21. However, said rules have to be placed before each house of the State Legislature and such house would have power to approve modifications or annul such rule whereupon modified rule shall have effect or it will have no effect at all, but after expiry of period of 30 days, when each house of State Legislature was in Session, if no decision is taken, such rule shall become effective.
30. Section 22 is a clarificatory provision making it specific that U.P. Act, 1975 do not authorize 'Lokayukta' or 'Up-Lokayukta' to investigate any 'allegation' or 'grievance' against authorities specified in Clause (a) to (g), which are as under:
"(a) the Chief Justice or any Judge of the High Court or a member of a judicial service as defined in clause(b) of Article 236 of the Constitution ;
(b) any officer or servant of any court;
(c) the Accountant General, Uttar Pradesh;
(d) the Chairman or a member of the Uttar Pradesh Public Service Commission or any member of its staff;
(e) the Chief Election Commissioner, the Election Commissioners and the Regional Commissioners referred to in Article 324 of the Constitution and the Chief Electoral Officer, Uttar Pradesh;
(f) any member of the Secretariat staff of either House of the State Legislature;
(g) any member of the staff of Governor's Secretariat."
31. Section 23 is "Saving" clause and reads as under:
"The provisions of this Act shall be in addition to the provisions of any other enactment or any rule of law under which remedy in any other manner is available to a person making a complaint under this Act, and nothing in this Act shall limit or effect the right of such person to avail of such remedy."
32. The basic and fundamental purpose of constitution of 'Lokayukta' and 'Up-Lokayukta' is to constitute an independent body for making investigation when a person makes complaint alleging misuse of official position by a 'public servant' defined in U.P. Act, 1975 to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person for such purpose or when a public servant functions actuated by personal interest or improper or corrupt motive, or if he is guilty of corruption, or lack of integrity etc. Similarly, investigation into allegation of "grievance" includes grievance of a person who has sustained injustice or undue hardship in consequence of maladministration, or when any appointment is made in breach of reservation provisions. In effect a 'Lokayukta' is an independent authority, given power under U.P. Act, 1975 to make investigation against 'public servants', within ambit whereof, comes even Ministers (excluding Chief Minister), Members of Legislative Assembly, elected representatives of Local Bodies like Kshetra Samiti, Zila Parishad, Nagar Mahapalika, Municial Board, a Society registered under Co-operative Societies Act, who have occasions of dealing with public money and public functions but allegedly guilty of misuse of power or corruption. Broadly, power of investigation conferred upon 'Lokayukta' relates to the matters which are within the ambit of term ''corruption' if taken in wider sense.
33. Moreover, 'Lokayukta' or 'Up-Lokayukta', after making investigation into complaints are not competent themselves to take action but as per Section 12, report has to be submitted by 'Lokayukta' or 'Up-Lokayukta' recommending as to how unjust or undue hardship caused to a person shall be remedied or redressed and thereupon Competent Authority shall take action and submit action taken report to 'Lokayukta' or 'Up-Lokayukta', as the case may be.
34. Similarly in the matter of complaint involving an 'allegation', 'Lokayukta' or 'Up-Lokayukta' is to submit report along with findings and recommendations and relevant documents to Competent Authority who would examine the same and thereafter submit an intimation to 'Lokayukta' or 'Up-Lokayukta' about action taken or proposed to be taken on the basis of such report. If 'Lokayukta' or 'Up-Lokayukta' is satisfied, it may close the matter or if not, may submit a special report to Governor, whereupon Governor shall cause such special report to be placed before each house of State Legislature with an explanatory memorandum.
35. 'Lokayukta' also has power under Section 12(8) of U.P. Act, 1975 to make public, substance of cases closed or otherwise disposed of, as may appear to him, to be of general, public, academic or professional interest to make available such information to such person as he may deem appropriate.
36. The functioning of 'Lokayukta' did not attract much public attention for want of appropriate provisions under which people in general may have appropriate information about functioning of their representatives and bureaucrats etc. However, with the passage of time, concept of transparency expanded and from various corners, demands were raised to have some mode and manner in which people in general may have more participation in governance and functions of public servants also become more transparent.
37. In Dinesh Trivedi and others Vs. Union of India and others (1997) 4 SCC 306, Supreme Court stressed on importance of citizens' right of information and observed:
"In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognised limitations; it is, by no means, absolute. ... Implicit in this assertion is the proposition that in transactions which have serious repercussions on public security, secrecy can legitimately be claimed because it would then be in the public interest that such matters are not publicly disclosed or disseminated." (emphasis added)
38. Government of India appointed a Working Group on Right to Information and Promotion of Open and Transparent Government under the Chairmanship of Shri H.D. Shourie. This Group was required to examine feasibility and need for either full-fledged Right to Information Act or its introduction in a phased manner to meet the needs of an open and responsive Government. This group was also required to examine framework of rules with reference to Civil Services (Conduct) Rules and Manual of Office Procedure. Report was submitted by this Working Group in May 1997. Thereafter, this matter was discussed in Conference of Chief Ministers on 24.05.1997 held on subject 'Effective and Responsive Government'. Need to enact a law on the Right to Information was recognized unanimously in the said Conference. This ultimately led to enactment of Freedom of Information Act, 2002 (hereinafter referred to as "Act, 2002").
39. The aforesaid Statute was enacted to enable citizens to have information on a statutory basis. In the statement of object and reasons of Bill, it was stated that the aforesaid Statute was in accordance with Article 19 of Constitution of India as well as Article 19 of Universal Declaration of Human Rights, 1948. It further says that the law was enacted in order to make Government more transparent and accountable to Public. It was felt that in the present democratic framework, free flow of information for citizens and non-Government institutions suffers from several bottlenecks including existing legal framework, lack of infrastructure at the grass root level and an attitude of secrecy within Civil Services as a result of old framework of Rules. Act, 2002 was to deal with all such aspects and the purpose and object was to make government more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto.
40. Though Act, 2002 was a step ahead to the process of transparency in governance and accountability in administration, but it was realized that provisions of Act, 2002 were not sufficient to fulfill aspirations of citizens of India and did not make right to freedom of information more progressive, participatory and meaningful, hence it needed significant changes to the existing law. National Advisory Council suggested certain important changes in Act, 2002 to ensure smoother and greater access to information. After examining suggestions of Council, as also from public, it was decided to replace Act, 2002 by a new enactment providing an effective framework for effectuating right to information recognized under Article 19 of the Constitution. This gave rise to Act, 2005 which received assent of President on 15.06.2005.
41. One of the significant change made by Act, 2005 is replacement of word "Freedom" with the word "Right" in the title of the Statute. The Legislature intended to make seeking of prescribed information by citizens, a right, rather than a mere freedom. The two terms, hence, had subtle difference. Act, 2005 was enacted making a radical change in administrative ethos and culture of secrecy and control, which was legacy of colonial era. Parliament wanted to bring a new era of transparency and accountability in governance. The spirit of Act, 2002 was not altered since some of the provisions like Sections 3 to 11 in both the Statutes are similar except of minor variations, but Act, 2005 makes definition clause more elaborate and comprehensive. The definition of "public authority" under Section 2(h) was widened by including therein even an authority or body or institution of self-government, established or constituted by a notification, issued or order made by the appropriate Government, and, includes any body owned, controlled or substantially financed by the Government. It also included non-governmental organizations substantially financed by appropriate Government, directly or indirectly. Similarly, ''Right to Information' defined in Section 2(j) now includes right to inspection of work, documents, records, taking certified samples of material, taking notes and extracts and even obtaining information in the form of floppies, tapes, video cassettes, etc.
42. By Section 4(2), Parliament stressed that besides being a right of citizen to seek information, it would be obligatory upon State to provide information relatable to its functions for the information of public at large so as to avoid unnecessary invocation of such right by citizenry under Act, 2005. Appointment of Public Information Officer by every authority or department is made obligatory. There is a further Adjudicatory Forum in the form of State Information Commission and Central Information Commission.
43. However, following usual practice, certain provisions providing exemptions and power of exemption also exist in both the Statutes. Section 8 in both the Statues opens with a non-obstante language. It provides that there shall be no obligation to give any citizen the information specified in exempted clauses. Section-8 of Act, 2005, however, is wide and more elaborate to that of Act, 2002. Then there exists Section 24 read with Second Schedule containing organizations dealing with subject of "Intelligence" and "Security" which are exempted from the purview of Act, 2005. Section 24 confers power upon Government, Central and State, both, as the case may be, to get other agencies dealing in "Intelligence" and "Security" aspect, so as to oust from the purview of Act, 2005 but proviso to Section 24 makes it clear that such ouster shall not be in the matters relating to corruption.
44. Right to information is not only a statutory right recognized by Act, 2005 but its importance has also been stressed by Supreme Court in People's Union for Civil Liberties and another Vs. Union of India and others (2004) 2 SCC 476 observing that right of information is a facet of 'speech and expression' contained in Article 19(1)(a) of Constitution of India. It has further said that such a right, however, is subject to any reasonable restriction in the interest of security of State and subject to exemptions and exceptions. This has been reiterated in Central Board of Secondary Education and another Vs. Aditya Bandopadhyay and others (2011) 8 SCC 497 and Namit Sharma Vs. Union of India (2013) 1 SCC 745.
45. In Namit Sharma Vs. Union of India (supra), Court has gone to observe that value of any freedom is determined by the extent to which the citizens are able to enjoy such freedom. In India, we have a constitutional democracy and it is axiomatic that citizens have right to know about the affairs of Government which, having been elected by them, seeks to formulate some policies of governance aimed at their welfare. Court held that it is a settled proposition that Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India encompasses right to impart and receive information. It is one of the important facet of proper governance.
46. In Secretary, Ministry of Information and Broadcasting, Government of India and others Vs. Cricket Association of Bengal and another (1995) 2 SCC 161, on the issue of citizens' right to participate in affairs of polity of Country and for that purpose collect information, it was held:
"The democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolized either by a partisan central authority or by private individuals or oligarchy organizations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 1/2 per cent of the population has an access to the print media which is not subject to pre-censorship." (emphasis added)
47. Parliament has placed enactment relating to citizens right to information, i.e. Act, 2005 at a much high pedestal by making a declaration under Section 3 that subject to provisions of Act, 2005 all citizens shall have right to information.
48. In T.S.R. Subramanian and others Vs. Union of India (2013) 15 SCC 732, Court observed that while right to information has been conferred upon citizens, a corresponding obligation has been placed under Section 4 on every public authority to maintain records so that the information sought for can be provided. Reason being that oral and verbal instructions, if not recorded, can not be provided under Act, 2005 for enforcement of right to information conferred upon citizens and quasi judicial bodies namely State Information Commission and Central Information Commission with the power to hear appeal against the orders of Public Information Officer declining to grant requisite information or others have also been provided.
49. Commenting upon importance of Act, 2005 in Cellular Operators Association of India and others Vs. Telecom Regulatory Authority of India and others (2016) 7SCC 703, Court has said that said Act has got a long way to strengthen democracy by requiring that the Government be transparent in its actions, so that an informed citizenry is able then to contain corruption, and hold Governments and their instrumentalities accountable to the people of India. In this regard, Court also referred to its earlier decision in Chief Information Commissioner and another Vs. State of Manipur and another (2011) 15 SCC 1 as also Preamble of Act, 2005. Disclosure of information should be read as a rule and secrecy an exception and this has been stressed by a Constitution Bench in S.P. Gupta Vs. Union of India and others 1981 Supp (1) SCC 87 observing as under:
"The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest."
50. In Global Energy Ltd. and another Vs. Central Electricity Regulatory Commission (2009) 15 SCC 570 Court said:
"The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the government. If the statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from Due Process requirement under Article 21, Equal Protection clause embodied in Article 14 and Fundamental Freedoms clause ingrained under Article 19. A modern deliberative democracy can not function without these attributes."
51. Section 22 gives the provisions of Act, 2005 an overriding effect and reads as under:
"22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, (19 of 1923) and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
52. Jurisdiction of Civil Court in respect of any order made under Act, 2005 has been barred by Section 23. Thereafter Section 24 of Act, 2005 excludes certain organizations relating to 'Intelligence' and 'Security' from the purview of Act, 2005. Such organizations are specified in Second Schedule which can be amended by Central Government by Notification in Official Gazette including any other 'Intelligence' and 'Security' organization established by it or omit from Second Schedule any organization already specified therein. With respect to 'Intelligence' and 'Security' organizations established by State Government, a power of exemption has been conferred vide Section 24(4) upon State Government concerned by publishing a Notification in Official Gazette.
53. However, proviso to Section 24(1) and (4) states that information pertaining to allegation of corruption and human rights violation shall not be excluded under Sub-section (1) and Sub-section (4) of Section 24 of Act, 2005.
54. Section 24 read with Section 8 of Act, 2005 justifies denial of information under Act, 2005, either with regard to nature of information or with regard to Organizations, by exempting from purview of Act, 2005. This exemption is with reference to reasonable restrictions which 'State' could have imposed under Article 19(1)(a) read with clause (2) thereof.
55. It is in this backdrop, we have to examine, "whether exclusion of establishment of 'Lokayukta' from the purview of Act, 2005 by State Government by impugned Notification issued under Section 24(4) comes within the ambit of Section 24 or is outside its ambit".
56. As we have already discussed above, establishment of 'Lokayukta' under U.P. Act, 1975 primarily is empowered to look into the complaints of 'allegations' and 'grievances' relating to activities which are within the term "corrupt activities" or "misuse of power" on the part of various functionaries which are within the ambit of definition of 'Public Servant' as defined under U.P. Act, 1975. Neither we find any provision under U.P. Act, 1975 nor learned Standing Counsel could show that 'Lokayukta' while exercising power under U.P. Act, 1975, at any stage, is engaged in such functions which may be termed as relating to 'Intelligence' and 'Security' of State. It is one thing to say that 'corrupt activities' or 'misuse of power', by a public servant defined under U.P. Act, 1975, may resultantly jeopardize some aspects relating to security of State or any constitutional functionary or otherwise but as such, investigation, inquiry and recommendations or action on the part of 'Lokayukta' relating to matter of 'grievance' and 'complaints of allegations' do not touch any aspect which may be said to be within the purview of terms 'Intelligence' and 'Security'.
57. The terms 'Intelligence' and 'Security' have not been defined in Act, 2005, therefore, we may refer to Dictionary meaning thereof.
58. The The New Lexicon Webster's Dictionary of the English Language, 1988 Edition, defines 'Intelligence' at page 502 as under:
intelligence. the ability to perceive logical relationships and use one's knowledge to solve problems and respond appropriately to novel situations //news, information// the obtaining of secret information, esp. for military purposes// (computer) capability of performing some functions usu. associated with human reasoning, etc.// an organization for the obtaining of such information.
59. In New Shorter Oxford English Dictionary, 1993 Edition, Volume 1, 'Intelligence' is defined on page 1387 as under:
1. The faculty of understanding; intellect 2. Quickness or superiority of understanding, sagacity. 3. The action or fact of understanding something; knowledge, comprehension (of something). 4. An intelligent or rational being, esp. a spiritual one; a spirit. 5. Knowledge communicated by or obtained from another; news; information, spec. of military value. Formerly also in pl., items of information. Exchange of knowledge, information, opinion, etc.; communication, esp. of secret information. A relation or basis of communication between people or parties; and understanding between or with. 6. (People employed in) the obtaining of information, esp. of military or political value; the secret service, espionage.
Attrib & Comb.: In the sense 'of or concerned with the gathering of information'; as intelligence agency, department, officer, service, etc.
60. P. Ramanatha Aiyar's 'The Law Lexicon' 3rd Edition 2012 defines 'Intelligence' on page 866 as under:
"Intelligence. Understanding as a quality admitting of degree; secret information
61. The term 'Security' has been defined in P. Ramanatha Aiyar's 'The Law Lexicon' 3rd Edition 2012 at page 1647 as under:
"...The state of being protected form unauthorized access or uncontrolled losses or effects. Absolute security is impossible to achieve in practice and the quality of a given security system is relative. Within a state-model security system, security is a specific "State" to be preserved under various operations. ... The term "security" signifies that which makes secure or certain. ... Dean Swift uses it as synonymous with "safety" or "certainty".
62. Black's Law Dictionary, Ninth Edition, defines 'Security' at page 1475 as under:
Security, 1. Collateral given or pledged to guarantee the fulfillment of an obligation, esp. the assurance that a creditor will be repaid (usu. with interest) any money or credit extended to a debtor 2. A person who is bound by some type of guaranty; surety. 3. The state of being secure, esp. from danger or attack. 4. An instrument that evidences the holder's ownership rights in a firm (e.g. a stock), the holder's creditor relationship with a firm or government (e.g., a bond) or the holder's other rights (e.g. an option)
63. In New Lexicon Webster's Dictionary of the English Language, 1988 Edition, 'Security' as been defined at page 903 as under:
Security: freedom from danger or anxiety// something given or pledged as a guarantee, esp. for the payment of a debt// a person who stands as guarantor// something which guarantees or safeguards// protective measures against espionage// a bond, stock certificate etc. given as evidence of a debt or of property.
64. The New Shorter Oxford English Dictionary, 1993 Edition, Volume 2, defines 'Security' at page 2754 as under:
Security 1 The condition of being protected from or not exposed to danger; safety; spec. the condition of being protected from espionage, attack, or theft. Also the condition of being kept in safe custody. The provision of exercise of measures to ensure such safety. A government department or other organization responsible for ensuring security. 2. Freedom from care, anxiety, or apprehension; a feeling of safety or freedom from danger. Formerly also, overconfidence, carelessness. 3. Freedom from doubt; confidence, assurance. 4. The quality of being securely fixed or attached, stability 5. Property etc. deposited or pledged by or on behalf of a person as a guarantee of the fulfillment of an obligation (as an appearance in Court or the payment of debt) and liable to forfeit in the event of default. 6. A thing which protects or makes safe a thing or person; a protection, a guard, a defence. 7. A person who stands surety for another 8. Grounds for regarding something as secured, safe, or certain; an assurance, a guarantee. 9. A document held by a creditor as guarantee of his or her right to payment; a certificate attesting ownership of stock, shares, etc.; the financial assets represented by such a document. Also (US) such a document issued to investors to finance a business venture. 10. A means of securing or fixing something in position.
65. Prima facie, we find it difficult to comprehend the provisions of U.P. Act, 1975 so as to read the institution of 'Lokayukta' as an 'Intelligence' and 'Security' organization, more so in the light of organizations as specified in Second Schedule of Act, 2005. In the Schedule, various agencies which are mentioned also can be taken in aid to find out the kind of 'Intelligence' and 'Security' institutions which are contemplated under Section 24(1) and (4) of Act, 2005 which may be excluded from purview of the said Act and therefrom we find nothing common or any possible comparison to place the institution of 'Lokayukta' vis agencies mentioned in the Schedule.
66. Various Agencies which have been included in Schedule are as under:
1. Intelligence Bureau.
2. Research and Analysis Wing of the Cabinet Secretariat.
3. Directorate of Revenue Intelligence.
4. Central Economic Intelligence Bureau.
5. Directorate of Enforcement.
6. Narcotics Control Bureau.
7. Aviation Research Centre of the Cabinet Secretariat.
8. Special Frontier Force of the Cabinet Secretariat.
9. Border Security Force.
10. Central Reserve Police Force.
11. Indo-Tibetan Border Police.
12. Central Industrial Security Force.
13. National Security Guards.
14. Assam Rifles.
15. Shastra Seema Bal.
16. Directorate General of Income-Tax.
17. National Technical Research Organization.
18. Financial Intelligence Unit, India.
19. Special Protection Group.
20. Defence Research and Development Organization.
21. Border Road Development Board.
22. National Security Council Secretariat.
23. Central Bureau of Investigation.
24. National Investigation Agency.
25. National Intelligence Grid.
67. Moreover, Section 24(1) and (4) use phrase "Intelligence and Security" not as two alternatives but it is conjunctive. Meaning thereby in order to satisfy conditions for exemption under Section 24, an Organization must satisfy both the tests, namely, 'Intelligence' and "Security'. Legislature has not made the requirement of Organization either to satisfy as an 'Intelligence' Organization or 'Security' Organization, but organization must satisfy both the conditions, i.e. 'Intelligence' and 'Security'. The provision is very clear, unambiguous, admits no doubt, hence unless it can be shown that the Organization of 'Lokayukta' satisfies both the conditions, i.e., 'Intelligence' and 'Security', its exclusion by issuing Notification under Section 24(1) and (4) is clearly illegal. As we have already said, learned Standing Counsel attempted to justify exclusion of 'Lokayukta' from the purview of Act, 2005 by impugned Notification issued under Section 24(4) contending that it can be treated to be an Organization satisfying requirement of term 'Intelligence', but could not extend his argument so as to read the functioning of aforesaid Organization as satisfying the requirement of being a 'Security' organization as well, therefore, from the stand taken and argued before us on behalf of State also, it is evident that the Organization in question does not satisfy both the requirements of being 'Intelligence' and 'Security'. Hence also its exclusion in exercise of power under Section 24(4) is patently illegal and without jurisdiction.
68. From whatever angle we may examine U.P. Act, 1975, it leads to an inference that Office of 'Lokayukta' and 'Up-Lokayukta' is a body constituted to make investigation in the 'complaint' of a person relating to 'grievance' or 'allegations' which are within the realm of some kind of misuse of official power by a 'public servant' as defined in the said Act and is within the ambit of term ''corruption' when taken in its wid amplitude, particularly considering the fact that the term ''corruption' is not defined under U.P. Act, 1975, and, therefore, it should be looked into from its general meaning as known in common parlance.
69. 'Corruption' has been defined in different dictionaries and some of which, useful for our understanding, may be reproduced as under.
70. "The Concise Oxford Dictionary of Current English" published by Oxford University Press, first published in 1995, at page 301 defines corruption as under:
"Corruption: 1 moral deterioration, esp. widespread. 2 use of corrupt practice, esp. bribery or fraud. 3 a irregular alteration (of a text, language, etc.) from its original state. b an irregularly altered form of a word. 4 decomposition, esp. of a corpse or other organic matter. [Middle English from Old French corruption or Latin corruptio (as Corrupt)]."
71. In P. Ramanath Aiyer "Concise Law Dictionary With Legal Maxims, Latin Terms & Words and Phrases" published by Lexis Nexis Butterworths Wadhwa Nagpur, Third Edition Reprint 2010, at page 268:
"Corruption. Something against law; something forbidden by law, as certain acts by arbitrators, election or other officers, trustees; an act done with intent to gain an advantage not consistent with official duty and the rights of others."
72. In "Judicial Dictionary" by KJ Aiyer, 14th Edition, Lexis Nexis Butterworths India, New Delhi, 2007, at page 288:
"Corruption. The term covers 'criminal misconduct'. A public servant is said to commit an offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means, or by otherwise abusing his position as a public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantage.
An attempt to obtain a bribe in a single case, which was never paid, does not fall under cll (a), (b) or (d) of s 5, and therefore, is not 'corruption', within the meaning of the Prevention of Corruption Act 1947.
73. In "Encyclopaedic Law Dictionary (Legal & Commercial)" by Dr. A.R. Biswas 3rd Edition 2008, published by Wadhwa and Company, at page 369:
"Corruption. Corruption is impairment of integrity, virtue or moral principle, depravity; inducement to wrong by bribery or other unlawful or improper means; a departure from honesty, integrity or fair dealing."
74. In the context of some statutory provision or even otherwise the word "corruption" has been explained in various decisions by the Courts also and some of such may be referred as under.
75. In Secretary, Jaipur Development Authority Vs. Daulat Mal Jain, 1997 (1) SCC 34:
". . . . When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as 'corruption'."
76. In High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil, 1997(6) SCC 339:
"Corruption, appears to have spread everywhere. No facet of public function has been left unaffected by the putrefied stink of 'corruption'. 'Corruption' thy name is depraved and degraded conduct...... In the widest connotation, 'corruption' includes improper or selfish exercise of power and influence attached to a public office."
77. In B. R. Kapur Vs. State of T.N., 2001(7) SCC 231:
". . . . scope of 'corruption' in the governing structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate."
78. In State of A.P. Vs. V. Vasudeva Rao, 2004 (9) SCC 319:
". . . The word 'corruption' has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations."
79. In the context of the Prevention of Corruption Act and Section 161, Indian Penal Code, Courts were mainly concerned as to when it can be said to be an 'offence' and that is how it has been interpreted and some of such decisions may also be looked into i.e. 1942 Rangoon 30; State of Madras Vs. Rajagopala Ayyer, AIR 1956 Mad 613; and, Bishambhar Lal Vs. State of Punjab AIR 1966 Punj 175)
80. In general the well accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; lost of purity or integrity; depravity; wickedness; impurity; bribery. It further says, "the act of changing or of being changed, for the worse; departure from what is pure, simple, or correct; use of a position of trust for dishonest gain."
81. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords' William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely."
82. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.
83. Corruption is not a crime committed in momentary passion but it is well planned act committed by a person who has some authority or engaged in duties relating to general public and for facilitating something or to allow some one to do something which is not permissible in law, the act of corruption is committed. For example, for Police, Statute empowers it to arrest a person during investigation or inquiry in respect of a crime and experience has shown that this very power has become a major tool of corruption in the hands of Police personnel.
84. In Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, commenting upon the manner in which concept of arrest is understood, practised and followed for the larger public harassment by Police personnel, Court observed that arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it, so also the police. There is a battle between the law makers and the police and to check arbitrary exercise of power in the hands of Police several times stern warnings have been administered but Police has failed to learn its lesson. It has not come out of its colonial image despite decades of independence. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Court further observed:
"... power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive."
85. The above authority has been referred to and followed in Rini Johar and others Vs. State of M.P. and others AIR 2016 SC 2679.
86. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that real impact of corruption is, the poor suffers most, the poverty grows darker, and rich becomes richer.
87. In the last 70 years of independence, if there is one field we can boast of a national allround development and that too multifold, it is the field of corruption. It has various shades. It is not confined to only one field of bribery, cash and kind, but has different colours and nuances.
88. In departmental transactions including execution of work relating to social welfare, construction activities, management of public funds, works involving public exchequer as also transfer and postings are now infected at a large scale of corrupt activities. We can take judicial cognizance of the fact that corruption has deep rooted intrusion not only amongst the executives, but even public representatives with whom huge public exchequer has been made available for public welfare activities and even Ministers are not untouched. Corruption has become a large chunk of non public related activities at the level of bureaucrats and public representatives. It is very difficult and in fact almost impossible to obtain a lawful and valid order from the authorities concerned unless they are made to move by approaching and pleasing them in different ways and means. The cases of corruption, to get it proved, by having a direct evidence of give and take is almost impossible except where some of the officials are trapped. But this is also possible only when the party who is asked to adopt such means is agreeable and willing to take the help of the machinery meant for prevention of such activities. Otherwise, these are private affairs, involving one and one, where both agrees. Hence is almost impossible to find out direct evidence. It is for this reason that judicial cognizance, this court can take of the fact that despite wide spread corruption throughout the country, we find handful of cases where public servants have actually been punished for such kind of charges. It is true that every day, in news and otherwise, we read several such cases where law enforcing machinery, responsible for prevention of corruption, have detected, and raided the premises etc. of public servants, recovered lot of wealth, but in actual execution of prosecution etc., we find almost negligible cases where the public servants have actually been prosecuted and punished. Sometimes on account of extraordinary delay, sometimes due to deliberate slow pace of the proceedings of investigation or prosecution or otherwise and sometimes for other reasons, we ultimately find, that, things have resulted in discharge of public servants without any meaningful and effective preventive measures/punishment.
89. When a person deals with the public having capacity as a public servant, his action is in public domain, even in respect of personal information of the candidates standing in election.
90. In Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294, Court said that in a democratic form of government it is Members of Parliament or State Legislature, who represents people of his Constituency in the highest law-making bodies at the Centre and State respectively and is capable to regulate the Society in various ways. He is representative of people in process of making laws and also in deciding how funds in Centre and State shall be spent. He also exercises sufficient influence and power in exercise of power by public servants who are not elected but otherwise. Dealing of all these persons is for the benefit of community at large and, therefore, community at large is also equally interested to know as to how the public servants are functioning and if they are causing anything wrong, whether they have been properly investigated and whether they are investigated or not and action taken or not and if not, what are the reasons.
91. In a respectable and elevated constitutional democracy purity of people elected as representative, probity in governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of institutions, integrity and respectability of those who run the institutions and prevalence of mutual deference among all the wings of the State are absolutely significant and, in a way, imperative. Eradication of criminalisation of public servants or their nexus with criminals and corruption in public life is equally imperative and obligatory. In our view, any form of criminalisation by the activities akin to criminal activities is also a shade of corruption and if is brooded in functioning of public servants, it is bound to erode the concept of good governance and it is a subject matter of investigation by 'Lokayukta' and 'Up-Lokayukta' for larger public interest. Corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. Corruption is an enemy of the nation. To track down corrupt public servants and punishing them is necessary and U.P. Act, 1975 is not a self content Statute to veil down such public servants but has been enacted in aid and assistance of such procedure by placing investigation in the hands of an independent body with the confidence that such independent body will make an objective, impartial, unbiased investigation and its recommendations will be appropriately and effectively taken care and acted by Competent Authority in words and spirits.
92. It is for this reason, the word "competent authority" has been defined under Section 2(c) and it reads as under:
"(c) "competent authority", in relation to a public servant, means,-
(i) in the case of a Minister or Secretary or member of the Legislative Assembly or of the Legislative Council - the Chief Minister,
(ii) in the case of any other public servant- Such authority as may be prescribed,
93. We may notice at this stage that in exercise of power under Section 2(c)(ii), Rule framing authority has framed U.P. Lokayukta and Up-Lokayuktas (Competent Authority) Rules, 1977 (hereinafter referred to as "Rules, 1977") and therein 'Chief Secretary' has been made 'Competent Authority' for Public Servants other than Ministers, Secretary, Member of Legislative Assembly or of Legislative Council as defined under Section 2(j) read with Section 7(1)(iii) of U.P. Act, 1975.
94. Provisions of Act, 2005 have been framed with an object to infuse concept of transparency and to have participation of public at large so that public servants may not continue to indulge in corrupt activities taking advantage of lack of transparency. We have no manner of doubt that State Legislature though has brought in institutions of 'Lokayukta' and 'Up-Lokayukta' in State of U.P. by enactment of U.P. Act, 1975 but the ultimate power of taking action having been vested in authority other than 'Lokayukta' and 'Up-Lokayukta', has rendered these authority a little bit lesser effective comparing the provisions of other Provinces where more powerful institutions of Lokayukta have been created and are functioning.
95. Looking to the purpose and object of Act, 2005, the background retrospect on the question of openness and transparency in governance and also object with which U.P. Act, 1975 has been enacted, we are of the view that an interpretation to the extent possible which leans in favour of disclosure of information to citizen confirming and recognizing their right of information must be given, unless exemptions or exclusion is strictly and necessarily comes within the purview of exclusionary provision, and it should be relied by reading such provision strictly, though, of course, taking into consideration the object and purpose as also public interest in reference whereof such an exclusionary clause has been enacted.
96. Provisions of U.P. Act, 1975 if we compare with similar institutions established in other States, e.g. State of Madhya Pradesh, we find that in State of U.P., U.P. Act, 1975 is very elastic, flexible and a legislation which does not give enough power to 'Lokayukta' to deal with the issue of corruption of public servants defined under said Act. 'Lokayukta' on its own, except making recommendations, cannot take direct action at all. However, whatever has been provided by Legislature by way of U.P. Act, 1975 if even that is allowed to be diluted by putting functioning in veil and keeping institution of 'Lokayukta' beyond the purview of Act, 2005, it will only further weaken this institution of 'Lokayukta'. It will render the said institution more a paper tiger, than an effective body, to cure and curtail menace of corruption which is enemy of nation and destroying the very roots of Country affecting its over all development and progress.
97. Statute i.e. U.P .Act, 1975 is very considerate and lenient to ensure a very long tenure to a person in the office of 'Lokayukta' but has not taken similar care to confer effective operational powers upon 'Lokayukta' by giving it more teeth, arms and ammunition.
98. Be that as it may, whatever provisions have been made, to wriggle out thereof, even to that extent, in our view is an attempt of dilution by taking away proceedings and information relating to 'Lokayukta' and 'Up-Lokayukta' from the concept of transparency, by exempting from Act, 2005. We enquired from learned Standing Counsel as to what is the purpose behind the issue of such Notification since no reason has been given but he could not explain anything to us except that power has been exercised since such a power is vested under Section 24(4) of Act, 2005.
99. It would have been appropriate for the State Government, instead of curtailing efficacy of Institution of 'Lokayukta' and 'Up-Lokayukta', to strengthen their hands by establishing a Special Task Force under administrative, control and supervision of 'Lokayukta' and 'Up-Lokayukta', not only to make investigation but also to prosecute the matter further in the light of findings of its investigation, by making appropriate provisions in U.P. Act, 1975. However, instead of doing so, State in its wisdom has tried to keep information relating to 'Lokayukta' and 'Up-Lokayukta', under the veil by excluding the provisions of Act, 2005. Whether this attempt is to protect and save 'public servants' indulged in corruption so that they may not be disclosed to the public at large or for some other reasons, is in the realm of conjectures as State has not come out to record its reasons for issuing Notification in question by either mentioning such reason in the Notification itself or by placing before us.
100. Harping upon the cleanliness of investigation in the matters of persons tainted with corruption etc., in Vineet Narain and others Vs. Union of India and another (1998) 1 SCC 226, Court observed that unless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition. Referring to certain principles recorded by a Committee headed by Lord Nolan in England on 'Standards in Public Life', Vol.-1 of Lord Nolan's Report (1995), Court said that those principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If conduct amounts an offence, it must be promptly investigated and offender against whom a prima facie case is made out should be prosecuted expeditiously so that majesty of law is upheld and rule of law vindicated. It is the duty of judiciary to enforce rule of law and, therefore, to guard against erosion of the rule of law.
101. In State of U.P., we can take judicial notice of the fact that a large number of matters have come up alleging huge corruption by 'public servants' but very rarely we find effective investigation and prosecution leading to appropriate punishment to guilty. A kind of confidence has developed in the entire section of those 'public servants', indulged in corruption, that whatever they can loot, will always be available to them and their representatives and successors, in perpetuity, and no one can divest them of their booty. Even the question of punishment, firstly will not arise, and if something happens, the unfortunate snail pace of investigation and then prosecution and judicial proceedings will be due safeguards for them not to get any punishment in their life and ultimately they and their family members will be beneficiaries and winners by all means. Adverse impact of lack of probity in public life thus has led to high degree of corruption and it is multifold. Everybody knows that every walk of life is severely affected by end result of corruption and corrupt activities, whether comes to the field of education, health, civic amenities etc. Still we find lack of will on the part of State to tackle situation with iron hands. There is no attempt to give a message, strong enough, to those who are indulged or inspired to indulge in corrupt activities that not only they may suffer due punishment, but would also lose their entire gains achieved by way of corrupt activities. A time has come that provisions should be made to seize/forfeit/confiscate gains of corrupt activities of persons indulged in such activities but probably number or resources of such persons exceeds those who don't have such opportunities. Hence, in democracy, majority prevails in preventing action in this direction. One find it difficult to explain that in a State, which has highest budgetary allocation of primary education and health, still such activities i.e. primary education and health service suffer to the maximum. Poor and deprived persons have no opportunity and facility of quality education in Primary Schools. It is confined only to those who have sufficient resources to provide quality primary education to their wards and only their rights are protected. This includes rich, richer and richest including Bureaucrats, Technocrats, Politocrates and Judicrats. Poor people cannot afford to send their wards in primary schools having better education standards. Thus ultimately only they suffer. They constitute majority of people, may be 80 or 90 per cent, and virtually for all practical purposes, are out of competition qua other fortunates. State is more concentrating to protect right of education of children of haves and not have nots.
102. Similarly on the health ground also, it is the section of poor people who actually suffer while those who have better resources, manage medical facilities in private sectors. Superior politicians and bureaucrats have no time to bother about it, for, whenever occasion arise, they believe in foreign medical treatment facilities than that is available in Country and that too on the expense of public exchequer. Therefore, right to have education and health is basically confined to elite section and actual needy people are beyond its reach. The policy makers or those whose duty is to enforce rule of law either have no time to look for this class or their priorities are different. They are confined to themselves and their family members, instead of looking for the class which Justice Krishna Iyer has termed as "Little Indian".
103. Petitioner also argued that Notification in question has been issued to protect certain powerful Political and Administrative Executives against whom numerous complaints of corruption and bungling of public funds were made and Government wanted to shield them. Proceedings before Lokayukta relating to investigation were getting delayed and when attempts were made by vigilant citizens by seeking information under Act, 2005 to expose such matters, in order to provide a cover and not to disclose information to public at large, State has come out with the impugned Notification to shield such corrupt Political and Administrative Executives and, therefore, the impugned Notification is also malicious in law having not been issued in a bona fide exercise of power.
104. Learned Standing Counsel vehemently opposed the submission and contended that neither there is any such pleading in writ petition nor material to substantiate the aforesaid submission, therefore petitioner cannot be allowed to challenge impugned Notification on this ground.
105. The allegations are serious, involve statement of facts also, therefore, a factual foundation had to be laid by appropriate pleadings in the writ petition and in absence thereof, we have no hesitation in holding that these allegations cannot be looked into and considered in this judgment so as to adjudge validity of Notification in question. However, this is also a fact that respondents have not disclosed or pleaded any reason whatsoever as to why Office of 'Lokayukta' has been sought to be excluded from the purview of Act, 2005 when entire endeavour on the part of State is towards transparency and to uphold right of information of Public. No doubt, a reasonable restriction is permissible but then in order to show that the restriction sought to be imposed is a reasonable one, reasons for such restriction must be spelled out or disclosed by State since it is the State who is attempting to veil this right by resorting to protection of reasonable restriction in the form of exclusion of 'Lokayukta' from the purview of Act, 2005. Except contending that power of exemption has been conferred under Section 24(4), therefore, State Government has issued Notification, we do not find any justification provided, pleaded or stated by respondents so as to show the necessity felt by respondents for excluding 'Lokayukta' from the purview of Act, 2005.
106. We may not hold this reason of malice in law as argued by petitioner alone to be sufficient to nullify impugned Notification, but at least this aspect is a relevant factor and goes against respondents in their attempt to justify impugned Notification without disclosing any reason therefor. Be that as it may, coming back to our issue, we have not deliberately entered into wild goose chase and probing in dark to find out uncertain and unknown reasons for keeping out 'Lokayukta' beyond the purview of Act, 2005 but having gone through the entire U.P. Act, 1975, we find that here is not an Organization or Institution in respect whereto Section 24(4), particularly with reference to its proviso, can be invoked. Therefore, in our view, Notification dated 03.08.2012 is an unlawful and illegal exercise on the part of 'State' by exempting from purview of Act, 2005, to the Institution of Lokayukta, hence we strike it down as illegal and beyond the authority of 'State' as also being outside the purview of Section 24(4) of Act, 2005.
107. The writ petition is, accordingly, allowed. Notification dated 03.08.2012 issued by Principal Secretary, Vigilance Department, Government of U.P. is hereby set aside.
108. Petitioner shall be entitled to cost which we quantify to Rs. 25,000/-.
Dt. 02.11.2017 PS