Central Information Commission
Shri George Fernandes, M.P. vs Ministry Of Defence (Mod) on 23 November, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01330 dated 29.7.2008
Right to Information Act 2005 - Section 19
Decision announced: 23.11.2009
Appellant - Shri George Fernandes, M.P.
Respondent - Ministry of Defence (MoD)
Facts:
By an application of 7.2.08 Shri George Fernandes, M.P. in a letter addressed to the CPIO, Prime Minister's Office sought the following information:
".. the supply of a complete copy (including annexures, schedules and appendices thereto, if any) of Part-1 of the Final Report (running into approximately 700 pages) submitted to the Government of India by the Hon'ble Mr. Justice S. N. Phukan (Retd) Commission of Inquiry on 4.2.2004. The said Commission of Inquiry, earlier headed by Hon'ble Mr. Justice K. Venkatswami (Retd) was appointed by the Government under the Commissions of Inquiry Act vide Order bearing No. SO 266(E) No. 403/1/2001-
AVD-IV dated 24.3.2001. After the resignation of Justice Venkatswami, the Government had appointed Justice S. N. Phukan (Retd) as the Chairman of the said Commission of Inquiry on 4.1.2003."
2. To this he received a response of 14.3.08 from Shri Bimal Julka, Jt Secretary, MoD as follows:
"Now therefore I, having satisfied myself that releasing these 15 volumes may cause breach of privilege of the Parliament as well as impede the process of investigation, hereby order that the request of the applicant for the release of the volumes pertaining to the Phukan Commission's detailed recommendations, in respect of the 15 Past Transactions, need not be acceded to. A copy of the Justice S. N. Phukan Commission's Report, Part-1, comprising of Prologue, Conclusions and Interim Recommendations consisting of 57 pages, as laid on the Table of the Parliament, be provided to the applicant subject to his paying requisite charges for supply of information."1
3. Not satisfied with this response Shri Fernandes moved his first appeal (undated) before Shri RK Rastogi, Special Secretary to the Govt. of India through his Advocate Shri Abhijat, pleading that the orders of CPIO be set aside and he be provided the information sought by him in his application of 7.2.08. Upon this, Shri P.K. Rastogi, Special Secretary to the Government of India and First Appellate Authority has dismissed the appeal on the following grounds:
"Further, as informed in the aforesaid order of the CPIO, 07 cases are still under the investigation of CBI and 03 cases under examination in the Ministry for arriving at logical conclusions. Issuing a copy of any portion of these cases to anybody before putting the same to the Parliament will be against the established procedure and will be breach of privilege of the Parliament.
In view of above, the decision of the CPIO dated 14.3.2008, to not to release the volumes pertaining to the Phukan Commission's detailed recommendations in respect of the 15 Past Transactions, is hereby upheld and appeal is rejected."
4. Appellate authority has, however, only obliquely addressed the question of exemption sought by CPIO u/s 8(1)(h). In his prayer before us in second appeal appellant Shri George Fernandes has pleaded as follows:
"a) allow the present appeal and set aside the impugned order dated 13.5.2008 passed by the First Appellate Authority under the Right to Information Act, 2005, Special Secretary to the Government of India, Ministry of Defence (Annexure A-3); and
b) as a consequence of the grant of prayer (a) above, issue directions for the supply of information to the Appellant as sought by the Appellant vide his Application dated 7.2.2008."
5. In a letter of 22.7.08 Shri Fernandes has then authorized Shri Abhijat and Ms. Fareha Ahmed Khan to represent him before us. The appeal was heard on 18.9.2008. The following are present:
Appellant Shri Abhijat, Counsel for appellant and authorized representative. Respondents Shri Ajay Tirkey, Jt. Secretary, Ministry of Defence Shri V.P. Varghese, Dy. Secretary, Ministry of Defence.2
Shri J. S. Bisht, S.O. (Spl. Cell)
6. Shri Ajay Tirkey, Jt. Secretary, Ministry of Defence presented written arguments but submitting that the Ministry of Defence had had little time to study the appeal, sought further time to prepare a comprehensive written submission.
7. Ld. Counsel for appellant Shri Abhijat presented detailed arguments and sought permission to submit rulings of Speaker and Courts on the question of breach of privilege.
8. In light of the above, therefore, the hearing was adjourned to 30th September, 2008 at 1.00 p.m. Copies of the written submission of respondent Shri Ajay Tirkey, Jt. Secretary, MoD were also directed to be endorsed to Ld. Counsel for appellant Shri Abhijat to enable him to prepare a more effective hearing. Accordingly the appeal was heard again on 23.10.08. The following are present:
Appellant Shri Abhijat, Advocate & authorized representative Respondents Shri S. R. Amin, Under Secretary Shri J. S. Bisht, Section Officer Shri S. K. Dubey, Govt. Counsel.
9. Learned counsel for appellant Shri Abhijat submitted that the interim report placed before the Parliament was only in response to the direction to provide a status report before Parliament, which was then given to Secretary General, Lok Sabha on 26.2.08. This is despite the fact that Sec. 3 sub sec. (iv) of the Commission of Enquiries Act demands that such a report should be placed before Parliament. This not having been done, Parliament was obliged to ask for the same in response to which only a summary was provided. Shri Abhijat also contended that Parliament was told that this was the whole report, which was moreover not classified.3
10. Shri Abhijat also pleaded that he had sought only MoD files and had not asked for any other files which have gone to CBI, which could thereby have raised apprehension of investigation being impeded u/s 8(1)(h). He also cited the ruling of Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors. in which Hon'ble Ravindra Bhat, J.
has dealt extensively with the question of seeking exemption u/s 8(1)(h).
11. Shri S. K. Dubey, Learned Counsel appearing for Govt. submitted written arguments, a copy of which he had already been provided to Learned Counsel of appellant Shri Abhijat. Shri Ajay Tirkey submitted that the interim report was provided to Parliament only because the Speaker had asked for the same. However, learned Counsel for the Ministry of Defence has submitted that Hon'ble Mr. Justice S. N. Phukan himself clearly and unambiguously recommends that the aforesaid reports are marked as "secret as they contained highly sensitive and secret information relating to those equipments." Learned Counsel for respondents Shri S. K. Dubey submitted that what appellant is seeking was that information that had not been placed before Parliament, be placed before him. On the other hand, since the appellant's case is that the Ministry has not complied with the law regarding submission of documents to Parliament, it is for Parliament to enforce its privileges not for this Commission. In his written submission received through the Learned Counsel Shri S. K. Dubey, Shri Ajay Tirkey has also invoked sec. 8(1) (a) in justifying denial in the following words:
"That from bare perusal of this Notification it is clearly evident that the matter is of utmost importance and of national security relating to the purchase of defence equipments and information relating thereto are "sensitive information".
The terms of reference of the appointment of Justice Venkatswami, Commission, subsequently known as Hon'ble Mr. Justice S. N. Phukan (Retired) itself records that the matter pertaining to the transaction relating to the defence and other procurement referred to in the videotape and transcript and as to whether the transaction relating thereto are in terms of the prescribed procedure and imperative of national security.
4It is further submitted that even the Hon'ble Delhi High Court in Writ Petition (Civil) No. 1448/2001, decided on 2.3.2007, titled as 'Vibha Jain vs. Director, National Board of Examination has unambiguously and clearly inter-alia held that:
"Right to Information Act - Obligation on public authorities to disclose information - Exemption from, scope - By virtue of Section 8, authorities are exempted from disclosing such information where sovereignty and integrity of India may be prejudicially effected by such disclosure or where public safety and order would be effected by said disclosure,"
12. This point was contested by Learned Counsel for appellant arguing that sec. 8(1)(a) was not pleaded either by CPIO or by First Appellate Authority and this becomes a new ground for the appeal, which cannot be raised at this stage.
13. Having perused the documents and heard Learned Counsels for both parties and having taken into account the ruling of Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors. we come inexorably to the conclusion that the question of disclosure of the report, as sought by appellant Shri George Fernandes, MP hinges only on the question of breach of privilege of Parliament. In seeking exemption u/s 8(1)(h), CPIO has not given any reason as to how he feels the disclosure sought will impede investigation. Moreover the first Appellate Authority Shri Rastogi has not addressed this issue at all which quite clearly indicates that it is not the issue in refusing the information sought. On the plea of exemption u/s 8(1)(a), if the threat of National Security was of such grave concern, as is made out in the written argument of learned Counsel Shri S. K. Dubey, surely it would have been cited by both CPIO and FAA even before addressing the issue of breach of privileges. We cannot, therefore, on this ground alone, give weight to these arguments on application of Section 8(1) either of sub-sections (a) or (h).
14. On the question of exemption u/s 8 (1) sub-section (c) citing breach of privilege of Parliament Shri Abhijat has sought to explain the exact meaning and, 5 therefore, application of the term 'breach of privilege'. In this context he has submitted the following documents:
1. Erskine May's Treatise on THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT - Eighteenth (1971) Edition.
2. The LAW OF PARLIAMENTARY PRIVILEGES IN U.K. AND IN INDIA by Shri P.S. Pachauri, M.A., LL.M., AND
3. M.L. Kaul , S. L. Shakdher - PRACTICE AND PROCEDURE OF PARLIAMENT (with particular reference to Lok Sabha) - Dr. Subhash C. Kashyap, Editor, Fourth Edition.
4. Chapter XI - Powers, Privileges and Immunities of Houses, their Committees and Members.
15. In Chapter V of Erskine May's Treatise learned Counsel Shri Abhijat has especially invited our attention to the following:
15 (a) The particular privileges of the Commons have been defined as:
"The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of he Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.' 15 (b) The ancillary nature of privilege has been defined by May as follows:
"The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights, which are "absolutely necessary for the due execution of its powers". They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity."
.15(c ) He has invited our attention to the following in Pachauri's work,:
FREEDOM FROM ARREST;
PRIVACY IN DELIBERATIONS ;
FREEDM OF SPEECH ;6
FREEDOM OF ACCESS.
15 (d) Under "PRIVILEGES IN INDIA" the book states as follows:
The Constitution of India, which came into operation on January 26, 1950, has introduced into India, along with the privileges of the House of Commons, three other broad features of law in the United Kingdom. One of these is the express conferment of the same rights on the people, as their fundamental rights, which had been enjoyed by the people there since a few past centuries and the second is conferment on all the High Courts the power to issue within their territorial jurisdictions special writs, called the prerogative writs, for not only the enforcement of the fundamental rights but also of other statutory rights while the Supreme Court's powers to issue these writs have been confined to cases alleging violation of fundamental rights only. Thirdly, Article 32 of the Constitution has made the right to move the Supreme Court for enforcement of these fundamental rights itself a fundamental right.
On the other hand, the Houses of Legislatures in India had only two statutory privileges in restricted forms before the commencement of the Constitution. Sections 28 and 71 of the Government of India Act, 1935, had only conferred on the Houses of Legislatures a limited immunity in respect of freedom of speech and freedom of publication of its proceedings. They had been denied all powers to punish those offending against breaches of this immunity. The only step they could take was to exclude from their precincts such offenders."
16. He has also invited our attention to Chapter XI of Practice and Procedures of Parliament titled "Powers, Privileges and Immunities of Houses, their Committees and Members". In this under the heading of 'Papers made under the statutes', he has invited our attention to the following:
"Reports required to be laid under the statutes should be laid as per requirement of the statute. Similarly, reports under the Commission of Inquiry Act should be laid together with the Memorandum of action taken thereon within a period of six months of submission of the report by the Commission to the Government."
17 In this case he has argued that Government has defaulted in laying the statute before the House, as required by this Code of Practice and Procedures.
718. From the above, it appears that both the parties agree that the Full report of the Phukan Commission alongwith Annexure etc. was indeed not laid before Parliament. The question, therefore, arises as to whether it was denied to the Parliament. If the Report of Phukan Commission was denied to the Parliament, disclosure under the RTI Act at this stage would constitute breach of privilege and, as such, exemption provided for under section 8 (1) (c ) would apply. If it was not denied and the concerned Respondent Public Authority did not place it before the Parliament out of their conclusion, exemption under section 8 (1) (c ) is not attached.
19. Subsequently in a letter dated 23.1.09, Ministry of Defence has reported as follows:
(i) From the Inquiry Report submitted by the Phukan Commission of Inquiry only Part I comprising Prologue, conclusion to respect of 15 Past Transactions and Interim Recommendations were laid on the Table to the Lok Sabha.
(ii) It is stated that the Phukan Commission Report (running into approximately 650 pages), the only part referred in answer to the query (i) was laid on the Table of the Lok Sabha. With regard to the matter of laying of the remainder Reports, the then Hon'ble Defence Minister had informed the Hon'ble Speaker of the Lok Sabha, 'it is my bounden duty and obligation not to disclose any or all of such documents that were regarded as secret or confidentially the Phukan Commission and which are also regarded as secret or confidential by the Government.' It may further be added that the case was referred to the CBI which has not yet concluded the investigation."
20. A copy of this letter was sent to appellant asking for his comments. In response, in his letter of 8.5.09 Shri Abhijat, Learned Counsel for appellant Shri George Fernandes has submitted not receiving the letter of 12.12.'08 as under :
"A copy of letter bearing No. CIC/Legal/Misc./2008 dated 12.12.2008 issued the communication on which the comments of my client have been elicited."
21. He has gone on to elucidate as follows:
8"1. It is the case of the appellant that the Government acted in bad faith by suppressing the entire report from Parliament. It is the further case of the appellant that the complete document running into 650 pages, which admittedly forms part of the Government record, is required to be made available to the appellant under the Right to Information Act, 2005. The fact that the Government did not inform Parliament that the entire report was not being tabled is clear from a perusal of the 'Accompanying Note on the Phukan Commission' of the then Minister of Defence, while tabling the said portion of the report before Parliament. A copy of the said note is annexed hereto as Annexure-1
2. The respondent has failed to submit any credible documentary evidence in support of his assertion that the remainder of the report was directed to be kept secret by either the author of the report or by the Government of the day.
3. This appellant reiterates that mere pendency of investigation is not a tenable ground for rejection of request under the Right to Information Act."
22. Consequently a copy of the letter of 12.12.08 issued by this Commission to the Ministry of Defence was directed to be sent to appellant. The case was listed for hearing on 7.8.09 but was adjourned on the request of respondent Shri P. K. Gupta, Director (Vigilance) dated 3.8.09. This was agreed to after obtaining "No Objection" from learned Counsel for Appellant Shri Abhijat.
23. The following appeared before us on 27.8.2009 :
Appellant Ms. Fareha A. Khan, Proxy Counsel for Mr. Abhijat, Respondents Shri S. K. Dubey, Advocate Shri P. K. Gupta, Director (Vig) MOD Shri S. R. Amin, Shri Akhtar
24 Ms. Fareha A. Khan, Proxy Counsel for Shri Abhijat, authorized representative of Shri George Fernandes, submitted that Learned Counsel Shri Abhijat has been held up in hearings and has, therefore, been unable to attend. He has, therefore, prayed an adjournment. Learned Counsel for respondents Shri S. K. Dubey has no objection and submitted to any decision of the 9 Commission. He, however, emphasized that on the basis of the documents now before the Commission, the entire case rests on exemptions sought u/s 8(1)(c). In this context, he invited our attention to the terms of reference of the appointment of the Venkataswamy Commission, subsequently known as Justice S. N. Phukan Commission, in which "imperative of National Security" is featured. He also emphasized the following from the remarks of 24.8.2009 of CPIO Shri P. K. Gupta, Director (Vigilance) :
"Accompanying Note on the Phukan Commission" of the then Minister of Defence, while tabling the said portion of the report before Parliament".
Hence in learned counsel Shri Dubey's view, mentioning that "Parliament was made to believe that the 57 pages tabled was the entire report authored by Justice Phukan" itself is contradictory on behalf of the Appellant.
25. On the request of appellant, the hearing of this appeal was then adjourned to 25th September, 2009 at 4.00 p.m. After further adjournments, one on the request of learned Counsel for appellant Shri George Fernandes and the other from learned Counsel for respondents Shri S. K. Dubey, the matter was finally heard on 18.11.09. The following are present:
Appellant Sh. Abhijat, Advocate Ms. Fareha Ahmad Khan, Advocate Respondents Sh. P. K. Gupta, Director (Vigilance), MOD Sh. S. R. Amin, U.S. (Vig.) MOD Sh. Sanjeev Kumar Dubey, Advocate.
26. Learned Counsel for Appellant Shri Abhijat invited our attention to the initial response from CPIO Shri Bimal Julka, Jt. Secretary to the Government, in which we have quoted in Para 2 He submitted that this response with regard to impeding the process of investigation and thereby seeking exemption u/s 8(1)(h) seems a mechanical response, since it has not been spelt out as to how this would impede the process. The First Appellate Authority who rested his case of refusal purely on sub sec. (c) of Sec. 8(1) therefore, dropped this matter.
10However, respondents have now, in second appeal also taken recourse to sec. 8(1)(a) which would appear to be simply a means of finding whatever ground possible to refuse information upon the failure of the initial ground taken for exemption. His objective was, therefore, to test the validity of the said plea of refusal made as it is at the level of second appeal. Learned Counsel for respondents Shri Dubey, however, submitted that this is an additional ground being pleaded to clarify why the complete 650 pages of the Phukan Commission's Report were not placed before Parliament to which learned Counsel for appellant submitted that this was not the plea taken before the First Appellate Authority. Learned Counsel for respondents went on further to argue that what had been discussed in Parliament cannot be a subject of further judicial proceedings under the Constitution itself. In this context, he cited Article 105 sub article (2) read with Article 122 sub article (1), which read as follows:
Article 105 sub-article (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
Article 122 sub-article (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
27. He also submitted for our perusal a letter of 30.7.05 addressed by appellant Shri George Fernandes, then M.P. to Speaker Shri Somnath Chatterjee in which he has submitted that 700 pages constituted this report of which only 47 pages have been placed before Parliament. On the question of a further point of law being raised in his 2nd appeal, Shri Dubey cited the case of Sagar Shamsher Jung Bahadur Rana and Anr. Vs. Union of India & Ors. - AIR (1979) SC 118 (Delhi) in which the Hon'ble Supreme Court has held as follows:
"13. An appeal is a continuation of the suit and therefore, the provisions of S. 10 of the code of Civil Procedure apply to the previous suit, which may be at the stage of appeal. The plaintiffs in the present suit in Para 37 of the plaint have pleaded that all the defences raised by the defendants in the 11 previous litigation against the mare barred by the rule of res judicata and that adjudication of the same would now be barred under Section 11 of the Code of Civil Procedure. The plaintiffs claim that they are entitled to succeed in the present suit on the ground that there is no legal and factual which remains undecided and that the decision of the previous three suits completely bars all possible defences, on all points to the present suit whether or not they were actually raised in the previous suit. In view of these pleadings of the plaintiffs i see no ground t refuse stay of the present suit under section 10 of the Code of Civil Procedure."
29. He also cited the case of Jeevak Almast vs. Union of India 4 SCC 27 AIR (1988) SC 1812 in which the Hon'ble Court has held as follows:
"10. x x x The doctrine of promissory estoppels was also pressed into service. It is further contended that the Doctors satisfied the criteria laid in G.O. 4215. The High Court's order was justified on this base. Shri Yogeshwar Prasad, learned senior counsel for the State countered that this contention was not raised in the High Court and for the first time it cannot be raised. We find no force in the contention of the State. Though it was never raised, nor argued, since it is a pure question of law arises from record, it can be gone into. But on careful consideration of the record, we find no force in the Doctor's contention. Though the first press note omitted, before conducting examination the second press note specifically stated that securing minimum of 50% of the marks in the entrance examination was a condition as eligibility for admission. What paragraph 3(e) of the first notification postulates is the computation of 50% of the marks secured in the entrance examination of 50% of the marks secured at the M.B.B.S. qualifying examination to determine the eligibility for admission i.e. 50% total and also in the order of merit among the candidates that appeared in the examination. The letter dated Feb. 20, 1990 does not appear to have been published in the gazette. We refrain to give acceptance to the respondent's contentions, as was laid in Dr. Sanjay Kumar's case, for the scheme and procedure laid by this court was adopted to have uniformity of institutional 75% candidates too. The technicality would not be permitted to outweigh the salutary scheme in the larger public interest. The contention of Shri Satish Chandra that merit-cum-option is the criteria and no criteria to determine 50% of the minimum marks was prescribed in paragraph 8(f) of the second G.O. therefore, procedure prescribed in paragraph 3(e) of the first G.O. 4215 should be 12 followed and in calculating the candidates securing 50% cut off the marks would be eligible for admission is also devoid of force. The second G.O. expressly mentions that 50% minimum in entrance examination is a must for admission in postgraduate courses. Undoubtedly, the letter dated February 20,1990 and the prescription of qualification laid down therein are not notified in terms of s.28(5) of the Act. So they may be considered to be administrative instructions. The second press note, in pursuance of which the entrance examinations were conducted, did mention them, which came into force from August 1, 1987. It is settled law that administrative instructions would fill in the yawning gaps in the statutory rules. The statutory rules in paragraph 8(f) of the notification dated Oct. 9, 1990 , which was given retrospective effect from August 1, 1987, envisages 50% cut off marks. Para 3(e) of first notification dated August 22, 1989 merely provides the procedure for calculating the marks to determine the inter-se order of merit among all the candidates and nothing more. The instructions issued in the letter dated February 20, 1990, therefore amplifies prescribing the eligibility criteria among the candidates who have taken entrance examination. The prescription of the minimum of 50% marks as eligibility criteria would be applicable to the respondents. Fairly, the respondents had not disputed before us that the instructions in the letter dated Feb. 20, 1990 were issued much earlier to the date of holding of the examination and as notified in the second press note. Therefore, the instructions dated Feb. 20, 1990 are legal, valid and they would supplement the statutory rules. We hold that the candidates who fulfilled that qualification alone would become eligible for admission. The learned counsel in fairness conceded that the prescription of minimum marks is valid. The prescription of 40% to SCs and STs candidates obviously was done under Arts. 14, 15 (1) and (4) and 46 together with 1.65% of total entrance marks i.e. 50 as weightage to them as a measure of social justice to accord them equality of opportunity of admission in postgraduate courses. It is neither a source, nor an analogy to fall back upon or to rely, as wrongly applied by the High Court, as a criteria to select general candidates that secured below 50% of the marks."
DECISION NOTICE 13
30. We have in the above case examined in detail, the question of applicability of exemption u/s 8(1)(h) in the present case. It is our view that in light of the decision of the Delhi High Court in W.P. No. 3114/2007 Bhagat Singh vs. C.I.C. & Ors, there are no grounds for seeking such exemption in the present case. We have described our difficulty in Para 13 in accepting exemption u/s 8 (1) (a) on the plea that the matter concerns national security at this stage. On the other hand we cannot agree with the appellant that the plea u/s 8(1) (a) cannot be now taken on a point of law to further buttress respondent's refusal to provide the information sought to appellant, the basis of which remains sub sec. (c) of Sec. 8(1). Moreover, this very issue has been raised in the letter of 30.7.2005 from appellant Shri George Fernandes to then Speaker, which clearly has not received a positive response. The issue before us then is whether because the information sought impinges directly on national security, it can now be provided to appellant Shri George Fernandes even though it was at the time not placed before Parliament. Clearly then there is a third party to this case, which is the Lok Sabha.
31. Appellant Shri George Fernandes has through his letter of 30.7.'05 brought to the notice of then Speaker that the full report of the Phukan Commission had not been placed before the House. In light of the points submitted by respondent in support of his argument that the matter concerned national security, was it a conscious decision of the Speaker that the full report not be disclosed, or was it a simple decision that there was no necessity to place the remaining contents before Parliament? This matter has not been examined, without a determination of which in our view the argument of both parties is rendered specious, even hypothetical, since there is no document on our record that such a plea was made by the executive to Parliament to support the claim now made.
32. Let us reiterate at this stage our conclusion that the only viable grounds found by us on the basis of which the information sought can be exempted from disclosure is u/s 8(1) (c ). To take recourse to such exemption, however, it has to 14 be determined whether in fact a conscious decision was taken not to disclose the complete Phukan Commission report by the Home Ministry with the acquiescence of Parliament. The Ministry of Home Affairs has not been able to produce convincing evidence that such a recourse was taken. On the other hand, the third party, who is Speaker of the Lok Sabha has not been heard in the present case and would the be the only authority in holding documentation to establish that such information had been exempted from being submitted to Parliament on any ground. The decision of Appellate Authority Shri Bimal Julka, Jt. Secretary, Govt. of India of 14.3.08 is, therefore, set aside and this appeal remanded to him to seek the advice of the Office of Speaker, Lok Sabha to determine whether any such conscious decision was indeed taken and if not, to provide to appellant Shri George Fernandes the complete information sought within twenty working days of the date of receipt of this Decision Notice.
Reserved in the hearing this decision is announced in open chamber on this 23rd day of November, 2009 Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 23.11.2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 23.11.2009 15