Central Information Commission
Sundar Balakrishnan vs Ministry Of Home Affairs on 28 February, 2022
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली,
ली New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/MHOME/A/2020/119357
Shri Sundar Balakrishnan ... अपीलकता /Appellant
VERSUS/बनाम
PIO ... ितवादीगण /Respondent
Ministry of Home Affairs
Date of Hearing : 08.02.2022
Date of Decision : 28.02.2022
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 27.11.2019
PIO replied on : 24.12.2019
First Appeal filed on : O6.01.2020
First Appellate Order on : 13.02.2020
nd
2 Appeal/complaint received on : 16.07.2020
Information soughtand background of the case:
The Appellant filed an RTI application dated 27.11.2019 seeking information on the following points:-Page 1 of 6
The CPIO/Deputy Secretary, Centre- State Relations MHA, vide letter dated 24.12.2019 replied as under:-
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 06.01.2020. The FAA/JS (CS), MHA, vide order dated 13.02.2020 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from the CPIO and Director (CS), M/o Home Affairs vide letter dated nil wherein the replies of the CPIO/ FAA were reiterated.
The Appellant participated in the hearing through audio conference. He stated that the information sought was incorrectly denied u/s 8 (1) (e) of the RTI Act, 2005 as proposal note sent by the Hon'ble Governor of Maharashtra to the Hon'ble President of India with respect to the President's Rule imposed in Maharashtra on 12.11.2019 and revocation of the same on 22.11.2019 under Page 2 of 6 Rule 12 of the Government of India (Transaction of Business) Rules, 1961 should be disclosed in the public domain in view of the larger public interest involved.
The Respondent represented by Shri Shakti Prakash, Legal Officer (CS Division), M/o Home Affairs participated in the hearing through audio conference. He stated that the information sought was exempted from disclosure u/s 8 (1) (e) since the proposal is a privileged communication between the Hon'ble Governor of Maharashtra and Hon'ble President of India. Furthermore, as per Article 74 (2) of the Constitution of India the advice tendered by the Ministers to the President shall not be inquired into in any Court.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the issue required to be adjudicated in the present matter pertains to whether correspondence between the Hon'ble Governor of Maharashtra and the Hon'ble President of India regarding implementation/ revocation of President's Rule in Maharashtra in 2019 can be disclosed to the Appellant. A Division Bench of the Hon'ble High Court of Bombay at Goa in Public Information Officer Joint Secretary to the Governor Raj Bhavan, Donapaula, Goa & Ors. Vs. State Chief Information Commissioner, State of Goa, Writ Petition No. 478 of 2008 and Writ Petition No. 237 of 2011 decided on 14.11.2011 held as under:
"Whether the Report of the Governor made to the President under Article 356 of the Constitution is exempt from disclosure under clause (e) of section 8 of the RTI Act?
31................... In order to test the claim of exemption made by the appellant of exemption under section 8(1)(e) of the RTI Act, it would be necessary to examine (i) the nature of relationship between the President and the Governor, (ii) whether the report made by the Governor under Article 356 of the Constitution is made in pursuance of any fiduciary relationship between the two, and (iii) whether the person who is an author of the report (the Governor) can claim exemption under section 8(1)(e) or is it only the recipient (the President) who would be entitled to claim exemption under clause (e) of sub-section (1) of section 8 of the RTI Act.
34. Despite the vagueness of the term "fiduciary", attempts have been made by Law Dictionaries to define the word "fiduciary". The definitions indicate that a person would hold a fiduciary relationship with another if the former, in the scope of his relationship owes to the latter the duties of good faith, trust, confidence and candor. The fiduciary relationship can be best described not by definition but by illustrations. The relationship between a director of a company and the company; a lawyer and his clients; a doctor and his patients, a banker and its constituent, an executor and the beneficiary under a Will; are often cited as examples of fiduciary relationship. A common thread amongst these relationships is the position of a trust held by the former (fiduciary) in relation to the latter (beneficiary). A director of a company holds the position of trust for the company in the sense he must act in the interest of the company. In Sangramsinh P. Page 3 of 6 Gaikwad v. Shantadevi P. Gaikwad, (2005) 11 SCC 314, it was held that the director does not hold a position of a trust qua the shareholders except where any special contract or arrangement may have been entered into between directors and shareholders or any special relationship or circumstances exist in a particular case. As between a lawyer and his client, the lawyer acts for the benefit of his client and is not permitted to share the fruits of the litigation (champarty being prohibited in India). A doctor treats his patient and prescribes medicine for his benefit and not merely for a research, except where specific consent of the patient is so obtained. An executor of a Will administers the estate of the testator for the benefit of the legatees and not for his own benefit. If this test of existence of trust is applied, it is difficult to subscribe to the proposition that the President holds a fiduciary relationship qua the Governor.
Undoubtedly, the appointment of a Governor is made by the President and is terminable by the President, though the President acts in doing so on the advice of Council of Ministers. The President in a sense holds some authority on the Governor. He can call for a report from the Governor if one is not made suo motu by the Governor under Article 356 of the Constitution regarding the situation in a State so as to ascertain whether a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. But the President does not act as a trustee for the Governor nor does he act to protect the interest of the Governor. In that sense, there is no relationship of a trustee and a beneficiary. There is no duty in the President to act for the benefit of the Governor and the relationship between them cannot be regarded as fiduciary stricto sensu.
35. The report which the Governor makes to the President under Article 356 of the Constitution is about the situation and state of affairs in the State of which he is the Governor. Under sub-clause (1) of Article 356 of the Constitution, the Governor makes a report to the President as to whether a situation has arisen in the State in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The report of the Governor is made in pursuance of his constitutional duty to inform the President where a situation arises that the Government of the State of which he is the Governor is unable to or otherwise cannot carried on in accordance with the provisions of the Constitution. This report is not made in performance of any fiduciary duty. In fact, the President or the Governor do not hold any fiduciary relationship in relation to the report to be made by the Governor under Article 356 of the Constitution. In making the report the Governor performs his constitutional obligation, an obligation far higher than an obligation in trust. It therefore cannot be said that the report of the Governor made under Article 356 of the Constitution is an information received by the President in a fiduciary capacity.
Page 4 of 636. For the sake of arguments, even if it is assumed that the report made by the Governor to the President under Article 356 of the Constitution, is sent in a fiduciary capacity, the exemption available under section 8(1)(e) of the RTI Act would be available only to the recipient of the information (report), i.e. the President. The exemption under clause (e) of sub-clause (1) of section 8 of the RTI Act can be claimed only by the recipient and cannot be claimed by a person who is an author of the information or who gives the information. Clause (e) of subclause (1) of section 8 of the RTI Act says "information available to the person in fiduciary relationship". Even if it is assumed that the report is available with the President in a fiduciary relationship, it is he who can claim exemption when a disclosure is sought from him. Clause (e) of sub-clause (1) of section 8 of the RTI Act does not exempt the giver of an information to claim an exemption. For all these reasons, it must be held that the Governor cannot claim an exemption under clause (e) of sub-clause (1) of section 8 of the RTI Act in respect of disclosure of a report made by him under Article 356 of the Constitution."
The above mentioned judgement was challenged before the Hon'ble Supreme Court in PIO vs Manohar Parikar and Ors., in SLP No 33124/2011 decided on 30.01.2018 wherein the following was held:
1. "It is submitted at Bar that nothing further survives in these matters. As the matters have become infructuous, information would serve no purpose. The special leave petitions are accordingly dismissed as having become infructuous. Pending applications stand disposed of.
2. Since the matters have become infructuous, the impugned judgment is not to be enforced and not to be treated as a precedent for any other case.
Question of law is kept open."
Subsequently, a fresh writ petition on similar issues was filed before the Hon'ble High Court of Bombay. Thus, a Transfer Petition (TP (Civil) No 151/2019) was filed before the Hon'ble Supreme Court for transfer of the writ petition to the Hon'ble Supreme Court which was decided vide order dated 04.02.2019 as under:
"Having regard to the circumstances which have been set out above, we are of the view that it would be appropriate and proper if the writ petition pending before the Bombay High Court is transferred to this Court. We order accordingly.
Learned counsel appearing on behalf of the second respondent, who is the original petitioner, has submitted that since the issue has effectively remained pending a decision for nearly ten years, it would be appropriate if it is resolved expeditiously so as to bring finality to the matter.
The Registry is directed to communicate a copy of this order to the Registrar (Judicial) at the Seat of the Bombay High Court at Goa so that the papers can be transmitted to this Court expeditiously. The transfer petition is accordingly disposed of."Page 5 of 6
As per the records available on the website of the Hon'ble Supreme Court, diary no 8960/2019 was registered with the Court on 11.03.2019 in furtherance to its abovementioned order which is still pending adjudication.
In view of the above legal position, it is evident that the issue regarding existence of fiduciary relationship between the Governor of a State and the Hon'ble President of India with regard to correspondence pertaining to implementation of President's Rule is presently before the Hon'ble Supreme Court and any direction by the Commission till finality is arrived at in the said matter would not be prudent. Thus, adjudication in the instant Second Appeal stands adjourned sine die.
Y. K. Sinha (वाई.
वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 6 of 6