Mr.Vinod Sunder R vs Department Of Space on 20 March, 2012

[Cites 23, Cited by 10]

Central Information Commission

Mr.Vinod Sunder R vs Department Of Space on 20 March, 2012

                   CENTRAL INFORMATION COMMISSION
 Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066

                             File No.CIC/LS/A/2011/003523
                             File No.CIC/LS/A/2011/003501
                             File No.CIC/LS/A/2011/003513
                             File No.CIC/LS/A/2011/003514
                             File No.CIC/LS/A/2011/003515
                             File No.CIC/LS/A/2011/003517
                             File No.CIC/LS/A/2011/003518
                             File No.CIC/LS/A/2011/003519
                             File No.CIC/LS/A/2011/003520
                             File No.CIC/LS/A/2011/003521
                             File No.CIC/LS/A/2011/003522
                             File No.CIC/LS/A/2011/003524
                             File No.CIC/LS/A/2011/003525
                             File No.CIC/LS/A/2011/003526
                             File No.CIC/LS/A/2011/003770
                             File No.CIC/LS/A/2011/003771
                             File No.CIC/LS/A/2011/003772
                             File No.CIC/LS/A/2011/003774


Appellant            :      Shri Vinod Sunder R.
Public Authority     :      Deptt. of Space/Antrix.
Date of hearing      :      20th, 21st & 23rd March, 2012
Date of Decision     :      ____________

Facts :-

The appellant has filed the above mentioned 18 appeals against the orders passed by CPIO and AA. The matter was initially heard on 1.3.2012. The proceedings of the day are extracted below :-

"File No.CIC/LS/A/2011/003523 Appellant : Vinod Sunder R Respondent : ISRO, Bangalore Date of hearing : 1.3.2012 Date of decision : 1.3.2012 FACTS Heard today dated 1.3.2012. Appellant present alongwith Shri Neeraj Sharma, Director, DEVAS and Adv. Roopali Singh. ISRO is represented by Shri S. Satish, Director (CPIO) and Shri K. A. Nagraj, Admn. Officer.

2. At the very threshold of the hearing, Shri Neeraj Sharma submits that the present appellant has filed 17 other appeals in the same matter and that it will be expedient if all the appeals are heard together and a consolidated order passed therein.

3. The Registry informs the Commission that the remaining 17 appeals have been fixed up for hearing on 20th March, 2012. The matter is adjourned. This matter, along with 17 other matters, will be heard on 20th March, 2012.

Notices to parties."

2. As scheduled, all the matters are called for hearing today dated 20th March, 2012. The appellant is present along with Shri Neeraj Sharma and Adv. Roopali Singh. The Department of Space/ISRO/Antrix are represented by Shri S. Satish, Director(CPIO); Shri H.N. Madhusudan, Director(Budget Planning) and Shri K.A. Nagaraj, AO. The parties are heard and the records perused.

3. For proper appreciation of the matters raised in these appeals, it would be expedient to give a brief background of the matter. The 'Department of Space' is a Department of the Government of India. It is synomymous with a Ministry of the Central Government. Antrix is a P.S.U. of the Department of Space. Devas Multimedia Pvt. Ltd.(to be called Devas here- in-after) is a private company having participation of certain foreign companies viz. Deutsche Telekom(German Company); Telecom Ventures(US Company) and Colombia Capital(US company). Besides, Devas Multimedia has certain Indian promoters, including some retired senior scientists of Department of Space/ISRO. Antrix and Devas had entered into an agreement on 28.1.2005. As per the terms and conditions of this agreement, Antrix was to lease S-Band Transponders on Board PS-I and PS-II satellites to Devas. This was subject to certain approvals to be obtained by Antrix from the competent authority. The requisite approvals were received by Antrix in February, 2006. The Antriksh was required to launch the satellite within a period of three years failing which it was obliged to pay liquidated damages to Devas. There were certain technological problems due to which the satellite could not be launched. When the matter stood thus, there was a realization at the Central Government level that S.Band Frequency Spectrum which had been agreed to be leased out to Devas was of strategic value and, therefore, on reconsideration of the matter, the Central Government annulled the said contract in February, 2011. These bare facts have been given by Shri Madhusudan which are disputed by Shri Sharma for the records sake.

4. The appellant had sought information on various aspects of the contract in question through his RTI applications cited above. As he was denied information both at the level of CPIO and AA, he has filed the impugned appeals before this Commission.

5. The appellant has consolidated his requirement for information in the form of a chart which is produced before the Commission. A copy thereof is also given to Shri Madhusudan. The parties agree that they have no objection if the request for information projected in this chart is taken parawise and appropriate orders passed thereon, without going into the details of information sought in the individual files. In view of this, the Commission has decided to take up the paras given in the chart one by one for appropriate orders.

6. Para-01 :-

"A copy of the original Satellite Communications Policy and procedures of the Government of India of 1997 ("SatCom Policy"); the amendments made thereto from time to time (if any) with specific dates of each amendment and justification/reason of the concerned department/body for the proposed amendment."

Shri Madhusudan submits that he has no objection to provide requested information. He also clarifies that there has been no amendment, whatsoever, in the Satcom Policy.

Ordered accordingly.

7. Para-02 :-

"Details of spectrum allocated or given to the Department of Space by the Government of India from time to time, including under the SatCom Policy."

Shri Madhusudan submits that he has no objection to provide this information.

Ordered accordingly.

8. Para-03 :-

"Please provide all file documents and communications between the Department of Space and any other department or part of the Government of India objecting to the allocation of spectrum to the Department of Space in each instance of allocation".

Shri Madhusudan submits that allocation of Spectrum is done by DoT and not by DoS and, therefore, as the requested information is not being held by DoS, it cannot be provided.

Shri Sharma, however, submits that if the DoS was not holding this information, CPIO should have transferred this para to DoT under section 6(3) of the RTI Act.

The contention of the appellant is upheld. The CPIO is hereby directed to transfer this para to DoT for appropriate action as per law.

9. Para 04 :-

"Details of spectrum utilized plan of the Department of Space since 1997 and amendments made thereto from time to time (if any) with specific dates of each amendment to the utilisation planned and justification/reason of the concerned department/body for the proposed amendment".

Shri Madhusudan submits that he has no objection to give details of Spectrum already utilized for commercial purposes. However, as regards the plan of DoS regarding utilization of Spectrum in future, he objects to the disclosure of this information as this involves strategic considerations.

Shri Sharma, however, submits that the plan for future has two components i.e. strategic component and the commercial component and that he is not interested in seeking information about the strategic component and is interested only in the commercial component.

Shri Madhusudan objects to disclosure of information about future plans regarding the utilization of the commercial aspects of the Spectrum for reasons of 'commercial confidence'.

I am broadly inclined to agree with the submission of Shri Madhusudan.

10. Para 05 :-

"Details of the orbital slots coordinated by India since 1997 with the International Telecommunication Union in respect of spectrum allocated to Department of Space with specific dates of each coordination and any amendment/extension thereto, including the date of the original application, slot position(degrees), power parameters, frequencies and expiry dates."

Shri Madhusudan submits that he cannot disclose the entire information for strategic reasons. However, part information can be disclosed, namely : orbital locations of satellites regarding which ISRO has coordinated with International Telecommunication Union.

Shri Sharma, however, disputes the contention of Shri Madhusudan. He submits that when this information can be accessed by the Member countries of ITU, there is no reason why it cannot be supplied to the appellant. Shri Madhusudan's response to it is that this information is accessible only to the Member countries and not to every information seeker.

I find merit in the submission of Shri Madhusudan. Hence, it is ordered that part information regarding orbital locations for satellites coordinated by ISRO only may be disclosed to the appellant.

11. Para 06 :-

"What was the DOS/ISRO plan for utilization of the S-Band Spectrum at the various orbital positions that have been co-ordinated by ISRO/DOS/Government of India in the year 2009 ?"

During the hearing, the appellant narrows down his requirements to the following:

Whether it is a fact that the spectrum required as per the agreement entered into between Antrix and Devas, was a part of the plan of utilization of Spectrum in the year 2009.

In my opinion, this information is disclosable to the appellant. Ordered accordingly.

12. Para 07 :-

"What is the DOS/ISRO plan for utilization of the S-Band Spectrum at the various orbital positions that have been co-ordinated by ISRO/DOS/Government of India on date ?"

The appellant wishes to know as to whether the utilization plan of DoS for S-Band, included the Spectrum required for Devas, as on the date of filing the RTI application.

Shri Madhusudan agrees to provide this information. Ordered accordingly.

13. Para 08 :-

"As of the last day of each of the years 2001, 2005, 2009 and 2010; please provide the names of all parties (government/public/private) with whichd Antrix/ISRO/DOS had entered into written understanding or agreement (including any understanding or agreement that may have expired without being performance by either party thereto) for lease of space segment capacity/transponders in the 2.502.69 GHz (S-Band Spectrum); also provide the extent of the Spectrum available to these parties under these understandings/agreements; Please provide cospies of each understanding/agreement and amendments made thereto from time to time (if any) with specific dates of each amendment."

During the hearing, Shri Sharma clarifies that the appellant wishes to know the names of parties with whom Antrix entered into commercial contracts (as distinguished from strategic contracts) in the years 2001, 2005, 2009 and 2010 in S-Band. The appellant also wishes to have copies of such contracts.

In my opinion, information regarding contracts entered into by Antrix with other parties in commercial matters is fully disclosable to the appellant. Hence, the CPIO is directed to provide copies of such contracts, including MoUs, for commercial purposes to the appellant limited to S-Band only.

14. Para 09 :-

"Please provide all file documents and communications between the Department of Space and any other department or part of the Government of India objecting to any of the understandings/agreements by the Department of Space in each instance."

Shri Sharma clarifies that the appellant wishes to know whether the contracts entered into by Antrix with other agencies/parties from 2001 onwards were ever objected to by any Ministry/Department of the Government of India.

It is ordered that this information may be disclosed to the appellant as per available records with DoS/Antrix/ISRO.

15. Para 10 :-

"Please also provide copies of Antrix/DOS/ISRO to the objection by any Government Department."

Shri Sharma clarifies that the appellant wishes to know whether Antrix/DOS had sent any response/reply to the objections, if any, filed by any other Ministry/Department of the Government of India.

It is ordered that this information may be provided to the appellant on the basis of records.

16. Para 11 :-

"Please provide details of the approval process for construction of a satellite and confirm whether Cabinet approval is required for satellite construction."

Shri Madhusudan submits that this information was placed on the website i.e. isro.gov.in in February, 2011.

The appellant may access this information from the website.

17. Para 12 :-

"Please provide details of the approval process for transponder leases and confirm whether Cabinet approval is required for lease. Are there is any project cost limits below which approvals do not have to be sought from the Cabinet, and, if any, please provide project parameters and details of such limits existing since the year 2000 till date with particulars of limit's amendments, if any."

Shri Sharma clarifies that the appellant wishes to know whether the Antrix was the final authority for leasing out the transponders or it was required to obtain approval of any other authority, including the Union Cabinet.

During the hearing, the officers representing DoS/ISRO/Antrix submit that Board of Directors of the Antrix was the final authority for leasing out the transponders.

Shri Sharma, however, is not satisfied with this response. According to him, in Article 27 of the Agreement signed between Antrix and Devas, there is stipulation that Antrix will receive all the required approvals and communicate it to Devas. The relevant para is extracted below :-

"The contract becomes effective on the date that Antrix is in receipt of all required approvals and communicates to Devas in writing regarding the same."

It is, thus, Shri Sharma's plea that Antrix, indeed, was required to seek approvals from some other authorities.

In the premises, the CPIO is hereby directed to revisit the matter and provide factually correct information to the appellant, as per available records.

18. Para 13 :-

"If approval the Cabinet is required for satellite construction or lease of transponders, are the parties, (government/public/private), who will utilize the satellite or lease transponders specifically named in the note sent for Cabinet approval; if yes please provide the names of all parties who have been named in each Cabinet note sent for approval of satellite construction or transponder lease since 2000."

Shri Sharma clarifies that the appellant wishes to know whether DoS ever specifically mentioned the name of any party for leasing out of transponders to it for seeking Cabinet approval.

This query may be answered on the basis of available records and if the answer is yes, then, the name(s) of the party/parties may be disclosed.

19. Para 14 :-

"If approval the Cabinet is not required, then which department or body in the Government of India sanctions the satellite construction or lease of transponders ? Is the name of the parties, public or private, who will utilize the satellite or lease transponders specifically named in the request sent for approval; if yes please provide the names of all parties who have been named in each request sent for approval of satellite construction or transponder lease since 2000."

This information may be disclosed on the basis of available records.

20. Para 15 :-

"Is there any limit on the satellite capacity that a single party can request or be provided altogether, whether through single or multiple leases of satellite capacity ? Please provide complete list of customers of DOS/ISRO/Antrix who have single or concurrent multiple leases of satellite capacity in excess of 60 MHz in one or more satellites."

Shri Sharma fairly submits that some information has been provided to him but it is not categorical. In the premises, the CPIO is directed to revisit the matter and provide factual information as available in the official records in regard to the commercial contracts from 2005 onwards.

21. Para 16 :-

"What are the specific measures taken by DOS/ISRO/Antrix within India and with international bodies (such as the ITU) to protect the frequency bands that are allotted for Space services."

Shri Madhusudan submits that the requested information has strategic value and disclosure thereof would compromise the strategic interests of the country.

I accept Shri Madhusudan's submission and order that no information needs to be provided on this para.

22. Para 17 :-

"At the time of execution of the agreement dated January 28, 2005 with Devas Multimedia Pvt. Ltd., what was DOS's/ISRO's plan for utilization of the balance 10% transponder capacity on GSAT-6 and GSAT-6A retained by DOS/ISRO under the Agreement."

23. Para 18 :-

"At the time of execution of the agreement dated January 28, 2005 with Devas Multimedia Pvt. Ltd., what was DOS's/ISRO's plan for utilization of the balance approx 80 MHz of S Band Spectrum remaining after the planned utilization of the 70 Mhz through GSAT-6 and GSAT-6A.

In regard to these paras, Shri Madhusudan submits that vide letter dated 14.7.2011, the appellant was informed that part of the transponder capacity was envisaged for experimentation and demonstration of new satellite based mobile communication techniques and technologies by ISRO. He submits that he is not in a position to disclose any more information for strategic and scientific reasons.

I accept Shri Madhusudan's submission.

24. Para 19 :-

"Copies of all the approvals taken by DOS/ISRO/Antrix from various government agencies/departments for effectuating the agreement with Devas Multimedia Pvt. Ltd. which are referred to by Antrix in its letter dated February 2, 2006 addressed to Devas."

Shri Madhusudan fairly submits that he has no objection to disclose the requested information. However, he expresses his reservations about that part of information which may be of strategic interest and requests that he may be permitted to apply severability clause in this regard.

Ordered accordingly. The CPIO will give brief reasons for applying severability clause.

25. Para 20 :-

"Are all the understandings/agreements executed by Antrix/ISRO/DOS reviewed and vetted by the Law Ministry ?"

The appellant does not press this point.

26. Para 21 :-

"Did the Law Ministry review and vet the agreement between Devas Multimedia Pvt. Ltd. and Antrix Corporation Ltd ? If not then please provide us names of the legal advisors who advised Antrix on the agreement dated January 28, 2005 with Devas Multimedia Pvt. Ltd."

Shri Sharma submits that the information provided by the CPIO vide letter dated 14.7.2011 is as follows :-

"The Antrix-Devas agreement was vetted by M/s K.S. Ravi Shankar and Advocates".

He wishes to know whether the aforesaid Law Firm vetted the agreement in its personal capacity or as an empanelled advocate of the Ministry of Law.

The query raised by the appellant is apt. This needs to be responded to by the CPIO in clear terms.

27. Para 22 :-

"Please provide all file documents and communications between the Department of Space/ISRO/Antrix and any other department or part of the Government of India, including the Law Ministry and/or legal advisors, related to the agreement between Devas Multimedia Pvt. Ltd. and Antrix Corporation Limited."

Shri Madhusudan submits that Antrix had not consulted either the Law Ministry or any other Ministry of the Government of India. He clarifies that Antrix had not consulted any Legal Advisors either in this regard.

Notwithstanding the above, he undertakes to scrutinize the relevant documents again to supply firm information on this point.

Ordered accordingly.

28. Para 23 :-

"Please provide all file documents and communications, including drafts and notings, prepared in respect of GSAT-6 and GSAT-6A which are a part of the approval process for the construction of GSAT-6 and GSAT-6A, including the project report submitted by the ISRO Satellite Centre."

Shri Sharma submits that Devas entered into a contract with Antrix in January, 2005. He wants to know whether for the performance of the contract, the ISRO had factored in the technical parameters specified under the contract and if there was any change in the design parameters of the satellites in deviation from the contracts.

The CPIO may respond to this query on the basis of records.

29. Para 24 :-

"Copies of all financial analysis and return on investment analysis for the Devas Agreement along with comparative details for all other commercial satellite capacity lease contracts between 2000 and 2010."

Shri Madhusudan submits that disclosure of financial details in connection with the contract in-question has certain sensitivities in the present day context and he, therefore, objects to the disclosure of this information.

In my view, the stand taken by Shri Madhusudan is not correct. The appellant is the Company Secretary of Devas. He is seeking certain information about the contract entered into by this Company with Antrix. In my opinion, he is entitled to seek the requested information about this contract. Hence, the CPIO is hereby directed to disclose information limited to financial/commercial matters about this contract to the appellant.

The appellant also has sought information about other contracts entered into by Antrix with other private entities during the period 2000 and 2010. The appellant, however, has not specified any contracts regarding which he is seeking this information. He is, thus, making a rambling enquiry. Hence, this information is not disclosable to him.

30. Para-25 :-

"Have approvals and consents granted by the government agencies to private parties for lease capacity on GSAT-6 and GSAT-6A other than Devas ?"

Shri Sharma submits that after the cancellation of contract between Antrix and Devas, the transponder capacity has since been allotted to other private entities on G.SAT-6 and G.SAT 6A. He wishes to know whether any approvals/consent were taken from the Government before leasing out these capacities.

The query raised by the appellant is apt and needs to be replied to by the CPIO in categorical terms. The information, however, will be confined only to commercial matters as distinguished from matters of strategic interest.

31. Para-26 :-

"Copy of the complaint received by DOS/ISRO/Antrix which as stated in the press conference dated February 8, 2011 and referred to in ISRO's background note on the Agreement between Devas Multimedia Pvt. Ltd. and Antrix Corporation Limited issued on its website on February 10, 2011 that led to the formation of the one man committee namely the B.N. Suresh Committee on December 8, 2009."

On a query from the Commission, Shri Madhusudan submits that a copy of the complaint in-question is not readily available with him and that he will be able to produce it before the Commission tomorrow.

32. The hearing remained inconclusive and the matter was adjourned to 23.3.2012 at 1730 hrs.

33. As scheduled, the hearing is resumed today dated 23.03.2012 at 1730 hrs. Shri Neeraj Sharma and Adv. Roopali Singh are present. Antrix/DoS/ISRO are represented by Shri S. Satish, Director; Shri H.N. Madhusudan, Director and Dr. Namita Priyadarshi, Director(Legal).

34. At the threshold of the hearing, Dr. N. Priyadarshee files a written representation dated 23.3.2012 wherein she has raised the following issues :-

(i) that M/s Devas Multi Media Pvt. Ltd. is the information seeker and being a body corporate, it is not entitled to seek information under section 3 of the RTI Act;

(ii) That the complaint lodged by a senior officer is barred from disclosure under section 8(1)(g) of the RTI Act;

(iii) That information requested for at Sl. Nos. 02, 03 & 04 of para 01 of her representation is barred from disclosure under section 8(1)(a) of the RTI Act;

(iv) That the ASG's opinion is a privileged document which cannot be disclosed in terms of section 124 of the Indian Evidence Act read with section 8(1) of the RTI Act.

35. Her representation is extracted below :-

"Sub: Disclosure of information / documents during hearing under RTI Act, 2005 on 23.3.2012 - reg.

Kindly refer to the subject mentioned above wherein a hearing took place on 21.3.2012 at 03.30 PM in your chamber at Central Information Commissioner, New Delhi pertaining to the RTI application filed by M/s Devas Multimedia (P) Ltd. The Department was asked to present the following documents before the Commission:

1. A copy of complaint made to the joint Secretary regarding the Antrix Devas Agreement.

2. Suresh Committee Report.

3. Observation made by Additional Secretary on the Suresh Committee Report.

4. DOS note seeking the opinion of ASG regarding the proposal for annulment of Antrix Devas Agreement and the reply from the ASG on the same.

2. The documents mentioned at S. No. 2 to 4 were submitted to you, after perusing which the Department was directed to disclose these documents to the M/s Devas Multimedia (P) Ltd. with regard to the document mentioned at S. No. 1 the Hon'ble Commission had directed the Department to submit a copy of the recorded version of the complaint during the next hearing.

3. In response to the above, the Department would like to submit the following;

(a) M/s Devas Multimedia (P) Ltd. who is seeking the information, is a body corporate and is thus not entitled to the information under section 3 of the RTI Act which clearly mentions, ". All citizens shall have the right to information" (highlighted for emphasis). The right to information under the RTI Act is thus available only to citizens. M/s Devas is a body corporate and thus does not qualify under definition of a citizen. Under section 2(f) of Citizenship Act, 1955, "person does not include any company or association or body of individuals, whether incorporated or not". It is worth mentioning here that M/s Devas is majority foreign controlled company and hence does not qualify as a citizen as per the section 2 (f) of Citizenship Act, 1955. It hence does not have any claim to seek information under the RTI Act 2005.

(b) With regard to the document mentioned at S. No. 1, it was stated during the aforesaid hearing that the document cannot be made available as it a recorded complaint and not a written complaint by the applicant. In response to this the Commission had ordered for submission of a copy of the recorded version of the complaint in the next hearing i.e. 23.3.2012. It is submitted that as per section 8 (1) (g) of RTI Act, 2005, "information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes". Copy of the document under question can therefore not be disclosed to M/s Devas Multimedia (P ) Ltd.

(c) Regarding the information sought at S. No. 2, 3 & 4 above, it is submitted that the concerned information involves national interest including national security and therefore cannot be disclosed under the 8 (1) (a) of RTI Act.

Furthermore, it is submitted that disclosure of information contained in these documents may adversely affect the economic interest of the country and compromise the economic sovereignty of the State. M/s Devas, a private corporate entity is in arbitration with M/s Antrix Corporation (a Public Sector Undertaking under Department of Space). The information sought is purely for private purpose to influence the ongoing case in their favour. Disclosure of the sought information therefore will not serve any larger public interest. On the contrary it may cause immense prejudice and harm to the ongoing case against the State causing loss to the Government exchequer running into billions of dollars. Also as per section 124 of the Indian Evidence Act, 1872, "No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure".

(c ) It is also submitted that ASGs opinion is a privileged document between client and lawyer which cannot be disclosed under section 124 of The Indian Evidence Act, 1872 read with Section 8 of the RTI Act, 2005. It is reiterated that any disclosure of this information is highly likely to cause immense prejudice and harm to the ongoing case against the State, and may cause economic losses to the State running into billions of dollars.

The undersigned hereby makes a written submission before the Hon'ble Commission.

This issues with the approval of the competent authority."

36. After the conclusion of the hearing, Dr. Priyadarshee submitted another representation dated 4.4.2012 in which she has raised the following additional issues :-

(i) that greater public interest has to be kept in mind in deciding the issue of disclosure of information to M/s Devas which is seeking this information for a private purpose to bolster its case.

(ii) that RTI Act cannot over-ride section 126 of the Indian Evidence Act.

(iii) That the right to information under section 3 is not an absolute right.

37. Para 02 of her representation is extracted below :-

"2. In continuation to the same, the Department would like to submit a few case citations to the kind notice of Hon'ble Commission that would throw some more light on the averments made in our written submission:

(a) Company being an artificial legal person is not a citizen. Therefore M/s Devas Multimedia (P) Ltd request under section 3 of RTI Act cannot be entertained (Annexure A1, A2, and A3).

(b) Greater public interest has to be kept in mind as against the public interest while disclosing the documents to an entity such as M/s Devas Multimedia (P) Ltd which is seeking these documents for a private purpose for its case before the arbitrators and also the claims against the Government running into billion of dollar as (Annexure B-4).

(c) RTI Act cannot undoubtedly override Section 126 of the Indian Evidence Act.

It must also be noted that rules framed under Section 49 (1) of the Advocate Act 1961 clearly prohibit a counsel directly or indirectly from committing breach of obligation imposed by Section 126 of the Indian Evidence Act (Annexure C-5).

(d) Section 3 of RTI Act, which confers on every citizen the right to information is manifestation of fundamental rights under Article 19 (1) (a) of the 19 Constitution. Like all rights, right to information, which flows from Article 19 (1) (a), 14 and 21 of Constitution, is not at all times and always absolute right. Being a penumbral right to freedom or speech, right to information is subject to State's reasonable restriction on exercise of such right. Interests of sovereignty, integrity, security of India, foreign relations, public order, decency or morality are some of the factors, which might encumber exercise of right to information. Devas Multimedia being a company and particularly being majority owned and controlled by foreign entities cannot seek information under RTI specially in view of the fact that in pending proceedings it is seeking damages from Antrix Corporation and Government of India running into billions of dollar. The claims of Devas Multimedia are contrary to law and the agreement and information sought will be used by Devas against Antrix and Government in the pending matters. Devas request therefore should be rejected by the Hon'ble Commission."

38. Before proceeding further with the matter, I would like to deal with the issues enumerated herein above.

(a) The appellant in the impugned cases is Vinod Sunder R, Company Secretary. He has filed the RTI applications in the letter-head of Devas Multi Media Pvt. Ltd. The appellant has clearly mentioned his name in the RTI applications. That he is a Company Secretary of Devas Multi Media is additional information that he has furnisheded in the RTI applications. It would be rather implausible to argue that if he files the RTI application under his name, he is entitled to information but if he also mentions therein that he is Company Secretary, he become disentitled to seek information. Besides, use of letter-heads of Devas Multi Media Pvt. Ltd. also appears to be of no consequence. Use of letter-heads, in my opinion, does not disqualify the appellant from seeking the requested information. In fact, this issue had come up before another coordinate Bench of this Commission and vide its decision dated 17.5.2007 in File No. CIC/WB/C/2007/00104 & 00105, this Commission had repudiated this contention. The operative para of the decision is extracted below :-

"In conclusion we direct that an application/appeal from an Association or a Partnership Firm or a Hindu Undivided Family or from some other group of individuals constituted as a body or otherwise should be accepted and allowed. The CPIO, CPWD, Kolkata will dispose of the present application of Shri Talukdar 20 accordingly, as mandated by Secs. 6 and 7 of the RTI Act, 2005 within thirty days of the receipt of this Decision Notice."

In view of the above, the contention of Dr. Priyadarshee is rejected and it is held that Shri Vinod Sunder R. is a citizen of India in terms of section 3 of the RTI Act and is entitled to seek information as per the provisions of the RTI Act.

(b) Another issue raised by Dr. Priyadarshee is that M/s Devas is seeking information for personal reasons to bolster its case in the judicial fora. Suffice it to say that there is no law under which Devas can be barred from seeking information for its personal purposes. In fact, the purpose of seeking information is not relevant in the scheme of RTI Act.

(c) Yet another issue raised by Dr. Priyadarshee is that the Right to Information is not always an absolute right. If I understand her right, perhaps, she is implying that RTI is a relative right, even though she has not said so in so many words in her representation. I fail to appreciate this contention. A citizen has right to seek information as per the provisions of this Act and, therefore, it is not necessary for me to go into the question of whether it is an absolute right or a relative one.

(d) Dr. Priyadarshee has also contended that the following three documents have a bearing on national security and are not discloseable to the appellant viz : Suresh Committee Report; Observatrion made by Additional Secretary on the Suresh Committee Report and DOS note seeking the opinion of ASG regarding the proposal for annulment of Antrix Devas Agreement and the reply from the ASG on the same. This issue will be dealt with at an appropriate place in the succeeding paras of this order.

(e) Dr. Priyadarshanee has also contended that the provisions of RTI Act do not over ride the provisions of section 124 & 126 of the Evidence Act. Sections 124 & 126 are extracted below :-

"S. 124. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure."

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"S. 126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment :

Provided that nothing in this section shall protect from disclosure--

(1) any such communication made in furtherance of any illegal purpose; (2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation. - The obligation stated in this section continues after the employment has ceased."

As per section 22 of the RTI Act, the provisions of this Act shall have an overriding effect. The said section is extracted below :-

"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."

That sections 124 & 126 of the Indian Evidence Act are not relevant in the matter in hand. Assuming, for a moment, their relevancy, it is to be borne in mind that RTI Act is a later enactment in as much as it was enacted in 2005 whereas the Indian Evidence Act was enacted way back in 1872. Obviously, the non-obstante clause of the subsequent law i.e. section 22 of the RTI Act will prevail over the provisions of section 124 & 126 of the Evidence Act. Hence, this contention also has no merit.

After the above observations, I will now proceed with the remaining paras of the chart under reference.

39. Shri Madhusudan powerfully contends that the contents of so called 'complaint' cannot be disclosed to the appellant as it contains secret information which has a direct bearing on the conduct of certain senior scientists of Antrix/ISRO/DoS. He also contends that, infact, what the appellant had requested for is not a 'complaint'. Rather, it is a source information which has been given by a senior officer of DoS. The officer has filed this report as a whistle blower and it will not be desirable to disclose his identity. He also submits that the source information contains name of a very senior scientist who has contributed a lot in the ISRO programme and it will not be wise to disclose his identity.

On the other hand, Shri Sharma submits that if the name of the senior scientist is already in public domain in connection with the ongoing controversy, there is absolutely no point in concealing his identity. However, if it is otherwise, then he has no reason to controvert the submission of Shri Madhusudan.

I have carefully perused the source information report. A senior officer of DoS has filed the report. He has done so in good faith to protect the interests and reputation of DoS. In my opinion, it will not be wise to disclose his identity. As regards the identity of the senior scientist mentioned in first two lines of the source information report, in my opinion, there is no harm in withholding his identity also. It is, therefore, ordered that a copy of the impugned report/complaint may be provided to the appellant after obliterating the name of the senior scientist appearing in the first two lines of the document. Besides, the name of the officer who prepared the document may also be obliterated.

40. Para 27 :-

"Copy of the terms of reference of the B.N. Suresh Committee constituted on December 8, 2009."

Shri Madhusudan submits that he will provide this information to the appellant.

41. Para 28 :-

"Copy of the final report submitted by the B.N. Suresh Committee."

As directed, Dr. Namita Priyadarshi produces a copy of the report. Perusal of the terms of reference of the said Committee indicates that the Committee had examined the legal, commercial, procedural and technical aspects relating to the licensing of spectrum/frequency and leasing of transponders to Devas.

Shri Sharma fairly submits that he is not interested in the technical aspects of the report of the Committee. He is, however, entitled to the legal, commercial and procedural aspects of the Committee's report.

Shri Madhusudan, however, submits that apart from technical aspects, this report also contains information about strategic aspects and disclosure thereof would not be in the interest of national security. He, therefore, objects to the disclosure of any part of the Committee's report.

I have perused the report. It deals with legal, commercial, procedural and technical aspects relating to the licensing of spectrum and leasing out of transponders to Devas. In my opinion, the technological aspects of the spectrum cannot be disclosed to the appellant in the interest of the national security in terms of section 8(1)(a) of the RTI Act. Hence, in the facts and circumstances of the case, it is ordered that Shri Madhusudan would personally scrutinise the report carefully and apply severability clause in regard to the technological and strategic aspects of the report and disclose rest of the report to the appellant.

42. Para 29 :-

"Copy of the decisions/recommendations of the Space Commission in its meeting of July 2, 2010."

Shri Madhusudan fairly submits that he has no objection to provide this information to the appellant. Ordered accordingly.

43. Para 30 :-

"Recommendations which were made to B.N. Suresh Committee by the Additional Secretary, DoS ?"

As directed, Dr. Namita Priyadarshi produces a copy of the comments of the then Additional Secretary, Department of Space, on the Dr. B.N. Suresh Committee Report before the Commission which is perused. Dr. Priyadarshi strongly objects to the disclosure of this report to the appellant on the ground that it is a secret report prepared by the Additional Secretary and disclosure thereof would prejudice the interests of Antrix/DoS/ISRO in the ongoing litigation in the Supreme Court/ICC.

I have carefully perused the report and find that the comments of the Additional Secretary are purely on commercial/procedural aspects. His comments do not contain any information regarding strategic or technological aspects. It is to be noted that the appellant is gravely aggrieved by the annullment of the contract and in this connection he is seeking a copy of this report. In my opinion, the report in-question is not barred from disclosure under any of the provisions of section 8(1) of the RTI Act. Hence, the objection raised by Dr. Priyadarshi are rejected and it is ordered that a copy of the report may be provided to the appellant after obliterating the name of the author thereof.

44. Para 31 :-

"Copy of the note/brief for opinion by ISRO/DoS/Antrix to the Law Ministry in respect of the Devas contract and any other government officer and the legal opinion given by the Law Ministry and any other government officer."

44.1 During the hearing, Shri Sharma submits that 06 page background note on agreement between Antrix and Devas had appeared on ISRO Website in February, 2011, after the termination of the contract in-question from where the appellant learnt that DoS had consulted the Ministry of Law and had taken opinion from it in connection with the annulment of the contract. He draws the Commission's attention to certain paras of the material that appeared on the website wherein the DoS has admitted of consultation with the Ministry of Law and the Addl. Solicitor General in connection with the annulment of the contract. The relevant paras of the website relied upon by Shri Sharma are reproduced below :-

"-----------------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------------Based on consultations with the Ministry of Law & Justice and Department of Telecommunications, the Department of Space recommended annulment of the agreement to the Space Commission.

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-----------------------------------------------------------------------------------------------

The Department sought legal advice from the Ministry of Law and Justice and the Additional Solicitor General, which were given as follows.

As per Article 3© of the Agreement, ANTRIX shall be responsible for obtaining all necessary Governmental and regulatory approvals relating to the orbit slot and frequency clearance. However, it does not mean that orbit slot shall be compulsorily given to ANTRIX by ISRO/Government. The Central Government/ISRO is not duty bound to provide orbit slot to ANTRIX for commercial activities, especially when there are strategic requirements.

The Ministry of Law and Justice opined that as per Article 7© of the Agreement, ANTRIX may terminate the Agreement in the event it is unable to obtain necessary orbit slot.

Therefore, the Government in exercise of its sovereign power and function may take a policy decision to the effect that due to strategic requirements, it would not be able to provide orbit slot in S-band for operating PS-1 to ANTRIX for commercial activities. In that event, ANTRIX in terms of Article 7© read with Article 11 dealing with Force Majeure may terminate the Agreement and inform DEVAS accordingly. However, on such termination ANTRIX shall be required to reimburse DEVAS all the Upfront Capacity Reservation Fees and corresponding service taxes received by ANTRIX till that date.

Additional Solicitor General also opined that the annulment should be done through a policy decision taken at the level of Government of India, acting in its Sovereign capacity.

Accordingly, the Department has prepared a Draft Note for submission to the Cabinet Committee on Security. The Note is under circulation for comments of the concerned Ministrries - Law & Justice, Telecom, Finance, Defence, Home Affairs and MEA, and will be placed soon before the CCS for a decision by the Government of India

-------------------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------"

44.2 It is, thus, Shri Sharma's contention that as the material requested for by him is already in public domain, it cannot be held back from him under any provision of law. He amplies that as DoS has voluntarily put a lot of information regarding the matter in hand in the Website, it cannot now be heard to say that it is a privileged information.

44.3 On the other hand, Shri Satish submits that DoS had not made any consultation with the Ministry of Law per se. They had simply taken opinion of a senior law officer of the Ministry of Law who had rendered his opinion to DoS in a fiduciary capacity and as such this opinion is barred from disclosure under section 8(1)(e) of the RTI Act. He also submits that information being held in fiduciary relationship can be disclosed only in the larger public interest but in the matter in hand, disclosure of requested information would harm the commercial interests of DoS/Antrix/ISRO and, therefore, the requested information is not disclosable. More importantly, Shri Satish also submits that some portions of the opinion rendered by a senior law officer contain material which is of strategic interest and, thus, this information is barred from disclosure under section 8(1)(a) of the RTI Act also. He also submits that the senior law officer had rendered his opinion in his institutional capacity and not in his personal capacity and, therefore, disclosure of his name would not be wise.

44.4 Shri Satish's submissions are countered by Shri Sharma as follows. His first and foremost submission is that the CPIO had denied this information vide letter dated 14.7.2011 under section 8(1)(d) of the RTI Act and a party cannot be permitted to take a new ground in respect of an administrative action by way of denying information under section 8(1)(e). Without prejudice to this submission, he also contends that even if this Commission permits Shri Satish to take a new ground that requested information is not disclosable as it has been obtained by DoS in a fiduciary capacity, this is not an inflexible rule. Information barred from disclosure under clause (e) can be disclosed in the larger public interest. He relies on the Delhi High Court judgment dated 30.11.2009 in Union of India -Vs- CIC & PD Khandelwal wherein it was held that the information barred under clause (e) can be disclosed if the competent authority comes to the conclusion that such disclosure is in the larger public interest. Para 19 of the judgment relied upon by Shri Sharma is extracted below :-

"19. The term ―competent authority‖ is a term of art which has been coined and defined for the purposes of the RTI Act and therefore wherever the term appears, normally the definition clause i.e. Section 2(e) should be applied, unless the context requires a different interpretation. Under Section 8(1)(e) of the RTI Act, the competent authority is entitled to examine the question whether in view of the WPC NO.7304/2007 + CONNECTED MATTERS Page 21 larger public interest information protected under the Sub-clause should be disclosed. The jurisdiction of PIO is restricted and confined to deciding the question whether information was made available to the public authority in fiduciary relationship. The competent authority can direct disclosure of 28 information, if it comes to the conclusion that larger public interest warrants disclosure. The question whether the of the competent authority can be made subject matter of appeal before the First Appellate Authority or the CIC has been examined separately. A decision of the PIO on the question whether information was furnished/available to a public authority in fiduciary relationship or not, can be made subject matter of appeal before the Appellate Authorities including the CIC."

44.5 Further, Shri Sharma draws the Commission's attention to section 22 of the RTI Act which over-rides the provisions of any other law, including the provisions of the Official Secrets Act, 1923.

44.6 It is his case that reliance on sections 124 and 126 of the Evidence Act by Shri Satish is not sustainable in law in the context of the over-riding provisions of section 22 of the RTI Act. He, however, concedes that he has no objection to the application of severability clause under section 10(1) of the RTI Act, if the Commission were to hold that the requested information is covered under section 8(1)(a)(i). He also does not object to with-holding of the name of the law officer who rendered the opinion to DoS.

44.7 It needs to be recalled that the CPIO had initially invoked clause (d) of Section 8(1) to deny a copy of the Senior Law officer's opinion to DoS. However, during the hearing, Shri Satish has pleaded that the Senior Law officer of the Ministry of Law had rendered the opinion to DoS in a fiduciary capacity and, therefore, his opinion is barred from disclosure under clause (e) of section 8(1). In the written representation submitted before this Commission, Dr. Namita Priyadarshee has also invoked sections 124 and 126 of the Indian Evidence Act to justify denial of information to the appellant. Her representations have been reproduced in extensor here-in-before.

44.8 The real question is whether the Additional Solicitor General's opinion is protected from disclosure under clause (e) of section 8(1). Clause (e) is extracted below :-

"(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;"

39. In this context, we may quote the following observations from the Full Bench decision dated 23.04.2007 of this Commission in Rakesh Kumar Singh & Ors -Vs- Harish Chander, Assistant Director & Ors. (File No. MANU/CI/0246/2007) :-

"31. The word "fiduciary" is derived from the Latin fiducia meaning "trust, a person (including a juristic person such as Government, University or Bank) who has the power and obligation to act for another under circumstances which require total trust, good faith and honesty. The most common example of such a relationship is the trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators, directors of a company public servants in relation to a Government and senior managers of a firm/company etc. The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business. The Black's Law Dictionary also describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another. The meaning of the fiduciary relationship may, therefore, include the relationship between the authority conducting the examination and the examiner who are acting as its appointees for the purpose of evaluating the answer sheets. "

44.9 We may also extract para 13 of the order dated 30.11.2009 of the Delhi High Court passed in Writ Petition(Civil) No. 8396/2009 & Ors. (Union of India -Vs- Central Information Commission) :-

"The relationship of a public servant with the Government can be fiduciary in respect of a particular transaction or an act when the law requires that the public servant must act with utmost good faith for the benefit of the Government and confidence is reposed in the integrity of the public servant, who should act in a manner that he shall not profit or take advantage from the said act. However, there should be a clear and specific finding in this regard. Normal, routine or rather many acts, transactions and duties of a public servant cannot be categorized as fiduciary for the purpose of Section 8(1)(e) of the RTI Act and information available relating to fiduciary relationship. (The said reasoning may not be applicable to service law jurisprudence, with which we are not concerned)."

44.10 A bare reading of the above passage would indicate that normal and routine acts and transactions and duties of public servants cannot be categorized as fiduciary for the purposes of section 8(1)(e). Sections 124 and 126 of the Indian Evidence Act do not come to the rescue of the Public Authority in view of the over-riding provisions of section 22 of the RTI Act. More importantly, it has to be kept in mind that DoS volunteered to disclose the contents of the opinion rendered by the ASG as extracted herein above. I am, therefore, inclined to accept the submission of Shri Sharma that DoS cannot be permitted to withhold the opinion of ASG, particularly when it chose to place the contents of the said opinion in its website.

44.11 I have carefully perused the opinion rendered by the learned ASG. The final opinion rendered by the ASG has already been depicted in the website. It is a 04 page document. Regardless of what has been stated herein above, in my opinion, the entire document is not disclosable to the appellant. Besides, it would not be wise to disclose the name of the law officer. On a careful perusal of the document, I hold that the opinion rendered by the ASG may be disclosed to the appellant subject to the following :-

      (a)      lines 10 to 20 of page 01 may be severed;
      (b)      lines 03 to 07 of page 04 may be severed; and
      (c)      name of the Law officer may be obliterated.

45. In addition to the above, Shri Sharma urges that the appellant may be supplied a copy of the brief for consulting the Ministry of Law or its senior officers. The said letter is perused. In my opinion, there is no harm in giving a copy of the said letter to the appellant after obliterating the name of the officer who signed it and the name(s) of the law officers to whom it was addressed.

46. Para 32 :-

"Please provide copies of all replies/responses/justifications given by Antrix/DoS/ISRO to any objections by any Government Department to any of the understanding/agreements by Antrix/DoS/ISRO for lease of space segment capacity/transponders in the 2.5-2-69 GHz to any party (government/public/private)."

The issues raised in this para have already been addressed in the preceding paras of this order. Hence, the Commission need not pass on any orders herein.

47. The order is reserved and pronounced today dated _________________.

48. This order may be complied with in 08 weeks time. The appellant will pay the prescribed fee for the documents to be supplied to him.

( M.L. Sharma) Central Information Commissioner 32 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.

( K.L. Das) Deputy Registrar Address of parties :-

1. The CPIO, ISRO Headquarters, Antariksha Bhawan, New BHEL Road, Bangalore-560231.

2. Shri Vinod Sunder R, Company Secretary, Devas Multimedia Pvt. Ltd., 2nd floor, Prema Gardenia, 375/6, 1st Cropss road, I Block, Jayanagar, Bangalore-560011.

35. At the threshold of the hearing, Dr. N. Priyadarshee files a written representation dated 23.3.2012 wherein she has raised the following issues :-

(v) that M/s Devas Multi Media Pvt. Ltd. is the information seeker and being a body corporate, it is not entitled to seek information under section 3 of the RTI Act;

(vi) That the complaint lodged by a senior officer is barred from disclosure under section 8(1)(g) of the RTI Act;

(vii) That information requested for at Sl. Nos. 02, 03 & 04 of para 01 of her representation is barred from disclosure under section 8(1)(a) of the RTI Act;

(viii) That the ASG's opinion is a privileged document which cannot be disclosed in terms of section 124 of the Indian Evidence Act read with section 8(1) of the RTI Act.

35. Her representation is extracted below :-

"Sub: Disclosure of information / documents during hearing under RTI Act, 2005 on 23.3.2012 - reg.

Kindly refer to the subject mentioned above wherein a hearing took place on 21.3.2012 at 03.30 PM in your chamber at Central Information Commissioner, New Delhi pertaining to the RTI application filed by M/s Devas Multimedia (P) Ltd. The Department was asked to present the following documents before the Commission:

1. A copy of complaint made to the joint Secretary regarding the Antrix Devas Agreement.

2. Suresh Committee Report.

3. Observation made by Additional Secretary on the Suresh Committee Report.

4. DOS note seeking the opinion of ASG regarding the proposal for annulment of Antrix Devas Agreement and the reply from the ASG on the same.

2. The documents mentioned at S. No. 2 to 4 were submitted to you, after perusing which the Department was directed to disclose these documents to the M/s Devas Multimedia (P) Ltd. with regard to the document mentioned at S. No. 1 the Hon'ble Commission had directed the Department to submit a copy of the recorded version of the complaint during the next hearing.

3. In response to the above, the Department would like to submit the following;

(d) M/s Devas Multimedia (P) Ltd. who is seeking the information, is a body corporate and is thus not entitled to the information under section 3 of the RTI Act which clearly mentions, ". All citizens shall have the right to information" (highlighted for emphasis). The right to information under the RTI Act is thus available only to citizens. M/s Devas is a body corporate and thus does not qualify under definition of a citizen. Under section 2(f) of Citizenship Act, 1955, "person does not include any company or association or body of individuals, whether incorporated or not". It is worth mentioning here that M/s Devas is majority foreign controlled company and hence does not qualify as a citizen as per the section 2 (f) of Citizenship Act, 1955. It hence does not have any claim to seek information under the RTI Act 2005.

(e) With regard to the document mentioned at S. No. 1, it was stated during the aforesaid hearing that the document cannot be made available as it a recorded complaint and not a written complaint by the applicant. In response to this the Commission had ordered for submission of a copy of the recorded version of the complaint in the next hearing i.e. 23.3.2012. It is submitted that as per section 8 (1) (g) of RTI Act, 2005, "information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes". Copy of the document under question can therefore not be disclosed to M/s Devas Multimedia (P ) Ltd.

(f) Regarding the information sought at S. No. 2, 3 & 4 above, it is submitted that the concerned information involves national interest including national security and therefore cannot be disclosed under the 8 (1) (a) of RTI Act.

The undersigned hereby makes a written submission before the Hon'ble Commission.

This issues with the approval of the competent authority."

36. After the conclusion of the hearing, Dr. Priyadarshee submitted another representation dated 4.4.2012 in which she has raised the following additional issues :-

(iv) that greater public interest has to be kept in mind in deciding the issue of disclosure of information to M/s Devas which is seeking this information for a private purpose to bolster its case.

(v) that RTI Act cannot over-ride section 126 of the Indian Evidence Act.

(vi) That the right to information under section 3 is not an absolute right.

37. Para 02 of her representation is extracted below :-

"2. In continuation to the same, the Department would like to submit a few case citations to the kind notice of Hon'ble Commission that would throw some more light on the averments made in our written submission:

(e) Company being an artificial legal person is not a citizen. Therefore M/s Devas Multimedia (P) Ltd request under section 3 of RTI Act cannot be entertained (Annexure A1, A2, and A3).

(f) Greater public interest has to be kept in mind as against the public interest while disclosing the documents to an entity such as M/s Devas Multimedia (P) Ltd which is seeking these documents for a private purpose for its case before the arbitrators and also the claims against the Government running into billion of dollar as (Annexure B-4).

(g) RTI Act cannot undoubtedly override Section 126 of the Indian Evidence Act.

(h) Section 3 of RTI Act, which confers on every citizen the right to information is manifestation of fundamental rights under Article 19 (1) (a) of the Constitution. Like all rights, right to information, which flows from Article 19 (1) (a), 14 and 21 of Constitution, is not at all times and always absolute right. Being a penumbral right to freedom or speech, right to information is subject to State's reasonable restriction on exercise of such right. Interests of sovereignty, integrity, security of India, foreign relations, public order, decency or morality are some of the factors, which might encumber exercise of right to information. Devas Multimedia being a company and particularly being majority owned and controlled by foreign entities cannot seek information under RTI specially in view of the fact that in pending proceedings it is seeking damages from Antrix Corporation and Government of India running into billions of dollar. The claims of Devas Multimedia are contrary to law and the 37 agreement and information sought will be used by Devas against Antrix and Government in the pending matters. Devas request therefore should be rejected by the Hon'ble Commission."

38. Before proceeding further with the matter, I would like to deal with the issues enumerated herein above.

"In conclusion we direct that an application/appeal from an Association or a Partnership Firm or a Hindu Undivided Family or from some other group of individuals constituted as a body or otherwise should be accepted and allowed. The CPIO, CPWD, Kolkata will dispose of the present application of Shri Talukdar accordingly, as mandated by Secs. 6 and 7 of the RTI Act, 2005 within thirty days of the receipt of this Decision Notice."

(b) Another issue raised by Dr. Priyadarshee is that M/s Devas is seeking information for personal reasons to bolster its case in the judicial fora. Suffice it to say that there is no law 38 under which Devas can be barred from seeking information for its personal purposes. In fact, the purpose of seeking information is not relevant in the scheme of RTI Act.

(e) Dr. Priyadarshanee has also contended that the provisions of RTI Act do not over ride the provisions of section 124 & 126 of the Evidence Act. Sections 124 & 126 are extracted below :-

"S. 124. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure."

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"S. 126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has 39 become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment :

Provided that nothing in this section shall protect from disclosure--

(3) any such communication made in furtherance of any illegal purpose; (4) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation. - The obligation stated in this section continues after the employment has ceased."

As per section 22 of the RTI Act, the provisions of this Act shall have an overriding effect. The said section is extracted below :-

"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."

That sections 124 & 126 of the Indian Evidence Act are not relevant in the matter in hand. Assuming, for a moment, their relevancy, it is to be borne in mind that RTI Act is a later enactment in as much as it was enacted in 2005 whereas the Indian Evidence Act was enacted way back in 1872. Obviously, the non-obstant clause of the subsequent law i.e. section 22 of the RTI Act will prevail over the provisions of section 124 & 126 of the Evidence Act. Hence, this contention also has no merit.

After the above observations, I will now proceed with the remaining paras of the chart under reference.

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Mr.Vinod Sunder R vs Department Of Space on 20 March, 2012