Central Information Commission
Umesh Chandra Lavania vs Indian Science Congress Association on 11 May, 2017
CENTRAL INFORMATION COMMISSION
(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Phone: 011- 26181927 | Fax: 011- 26185088
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Central Information Commissioner
CIC/ISCAS/A/2017/109282
Umesh Chandra Lavania v. PIO, Indian Science Congress
Association, Kolkata
RTI : 14.12.2015
FAO : 24.06.2016
Second Appeal : 08.02.2017
Hearing : 04.05.2017
Appellant : Present
Public authority : Ms. Indrani Das, CPIO,
Mr. Uttam Kumar Singh and
Mr. Tapas Mukherjee, Advocate,
Decided on : 11.05.2017
Result : Show cause notice issued.
ORDER
(Show-Cause Notice + Directions) FACTS:
1. The appellant filed RTI application seeking information of: (1) the names of the voters (council members) who have sent their filled ballots to the ISCA office for election to the office of the General President of ISCA along-with the specific date on which the said ballots were received in the ISCA office from the individual voters. (2) the Photostat copy (both sides) of all the sealed envelopes those contained the filled postal ballots bearing address of the sender and postal mark (i.e. Speed Post Number I Courier waybill number etc.).
2. The CPIO denied stating that the Executive Committee of Public Authority considered appellant's applications and noted that in ISCA Rules and Regulation there was no provision of providing names of the voters who had sent the ballots to the ISCA office for election to the office of General President or any other post of Office Bearers. Moreover, there is also no CIC/ISCAS/A/2017/109282 Page 1 provision of providing Certified or Xerox copies of envelopes containing ballots or of signed counter foils or marked ballots that are cast for the election of the General President or any Office Bearers or allowing candidate or his representative to be observer during the election of the Association. The CPIO's reply was upheld by FAA on 24.06.2016.
Analysis & Decision:
3. During the hearing today through video conference Mr. Tapas Mukherjee, advocate of the public authority and the CPIO Mrs. Indrani Das contended that the information sought could not be furnished as there was no provision under ISCA Rules and Regulation to provide names of the voters or Council Members. When the Commission asked whether any prohibition against disclosure in Rules, the advocate and CPIO said 'there was no prohibition too'.
4. Mr. Umesh Chandra Lavania, Ph.D, D.Sc, FNA, FNASc, CSIR Emeritus Scientist and AcSIR Emeritus Professor (CSIR-CIMAP) raised issues of secrecy and non-transparency in election process recently and suspected rigging too. The appellant is one of three contestants in recent elections to the top position- General President of Indian National Scientists Congress.
He alleged that the public authority built iron curtains around entire election process and not even disclosing split votes, i.e., votes secured by each contestant. Though the number of voters, which included past presidents, EC and Council Members etc, who are not more than 80, the public authority is refusing to give any information. He has also alleged that the public authority is shielding all information only to hide the irregularities and manipulations. He claimed to have written to Registrar of Firms, Societies & Non-trading Corporations West Bengal, Kolkata on 8th December 2016 before process elections began requesting to introduce transparency, which was not at all considered. He further wrote: since (i) the ballot papers issued by ISCA for this election are merely printed copy on plain paper without any serial number and are just signed by one person, (ii) the contesting candidate or his representative is not allowed to be observer at the time of counting (iii) the number of votes polled candidate wise are not disclosed even to the contesting candidate, entire CIC/ISCAS/A/2017/109282 Page 2 election process is being done in closed door spear-heading manipulation in the election process, and (iv) the ballot papers printed for election of Executive Committee and Council are also manipulated as duplicate ballot papers have been issued with the same serial number. He pleaded for stopping election process and for conducting election process afresh by an independent neutral body following standard election procedures.
5. The appellant also stated that Prof. Vibhuti Rai of the University of Lucknow has also made a complaint alleging massive irregularities in the election process by ISCA during June 2016. The appellant has also annexed the 'ballot paper' for General President printed on A4 size ordinary paper without any serial number and another for election of Members of the Council that are printed in duplicate. He said such ballots could be easily duplicated to rig the results. The appellant, being a candidate for General President, was not permitted to observe counting of votes on 2nd January 2016, in spite of his specific request. He says the candidates or his agents will be allowed to be present at vote counting during general elections also.
6. The CPIO Mrs. Indrani Das, Section Officer, sent a reply on 24.2.2016 saying that "Information sought absolutely pertains to internal and confidential affairs of the Association. The association is not under any obligation to supply any such information touching its internal and purely confidential affairs".
7. This reply is absolutely against the letter and spirit of RTI Act, 2005, as the public authority is under a legal obligation to be transparent to prevent corrupt practices in election to the office bearers and members of EC and Council. The information sought does not fall under any of exemptions under Section 8 and 9 of RTI Act. Neither the CPIO, nor the President nor the EC could cite any exception under which they were denying the information. They have also not explained 'purity' or 'confidentiality' or 'internality' of the election process and why it should be kept as top secret.
8. During hearing CPIO stated that Executive Committee rejected the request for information on the ground that there was no such provision in their rules and regulations. Assuming that the Executive Committee has approved a set of 'Rules and Regulation', which does not allow sharing of CIC/ISCAS/A/2017/109282 Page 3 information about election process, the Commission would like to point out that ICSA cannot deny a statutory right with the strength of EC resolution. When Section 22 of RTI Act clearly declared that Official Secrets Act or any other Act gets overridden by Section 22 of RTI Act, if they are in conflict with rights under this Act, it says:
S. 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.
9. The ballots, documents and files notes regarding the conduct of elections including envelops received by them in the form of postal ballots, report of returning officer, documents containing declaration of results, amount to 'information' under Section 2(f) of the Right to Information Act, which says:
2(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
10. This information can be denied only when exempted by Section 8 and 9 of RTI Act. It is not imaginable that the top scientists, president, executive members or council members or its CPIO or their legal advisers do not know that RTI Act made by Parliament prevails over their Rules and Regulations made by their body. It is a common sense issue that once election is conducted, the authority has to declare results giving details of votes obtained by each candidate, majority margin etc. Claiming it as internal and confidential affairs of the association is absolutely unscientific, illegal and not acceptable.
11. It is surprising that the body of top scientists is not willing to be to inform the number of votes obtained by each candidate who contested the elections to one of the contestant even under RTI. The public authority did not submit any document called the 'Rules and Regulations' to establish the claim that there was no provision to disclose the information. The Commission rejects the contention of CPIO as RTI Act has overriding act CIC/ISCAS/A/2017/109282 Page 4 on any other law or order or resolution, for the time being in force or in any instrument having effect by virtue of any law other than this Act and the CPIO is liable to furnish the information.
12. Only the information like who voted whom cannot be given because the secrecy of vote is a protected aspect. Every other information regarding elections shall be in public domain. It is shocking that a science organization of this great repute does not want to tell the candidate who contested for the post of President, the number of votes he secured. And the President denies it! Show-cause notice
13. As the CPIO Mrs. Indrani Das is a section officer, a small person in the hierarchy of scientist's body, it appears that she was not in a position to take appropriate decision independently on disclosure of information sought. She stated that she acted according to the instructions of the Executive Committee. The Commission finds no reason to disbelieve it. This means that the President of the Association, who contested along with appellant, has presided over the meeting of the Executive Committee and secured their resolution to reject the request for information. This makes it clear that the President, after resolution by Executive Committee might have directed the CPIO not to give information. Hence the Commission considers the President as deemed PIO and directs him to show cause why maximum penalty should not be imposed against him for wrongful and illegal obstruction to furnishing of information, which could have been given as a matter of Right under Right to Information Act, before 31st May 2017.
Compensation notice:
14. The Commission also directs the President, to explain why the ICSA should not be directed to pay compensation to the appellant for deprivation of his rights by wrongful denial of information, before 31st May 2017.
Disclosure direction:
15. In fact, the public authority has to place all the information such as total votes, votes polled, votes invalid, votes valid, votes polled by each candidate etc, in all elections conducted, along with report of the CIC/ISCAS/A/2017/109282 Page 5 Returning Officer, certified copies of official declaration of election of candidates, on their own, as per Section 4(1)(b) of RTI Act. Not only the candidate, but also every citizen has a right to know this information. As a candidate the appellant has not only right under RTI Act, but also under natural principles of justice and normal practice of conducting elections, entitled to know what all he asked for. The scientist's body should have learnt how to conduct elections in transparent manner at least by watching the news or website of Election Commission of India. The Commission directs the respondent public authority to furnish following information, and place the same on its website, before 31st May 2017:
a) total number of votes, votes polled, votes invalid, votes valid, votes polled by each candidate etc, in all elections conducted,
b) report of the Returning Officer or comprehensive note on conduct of elections.
c) certified copies of official declaration of election of candidates
d) certified photostat copies of envelops of postal ballots (both sides)
e) certified copy of Rules and Regulations, allegedly having the clause of confidentiality,
f) agenda for and minutes of the meeting of Executive Committee, which considered this RTI application along with resolution or direction to CPIO to deny the information sought, and
g) explanation as to why the secrecy or confidentiality of elections is introduced in elections.
16. Public authority shall file report of compliance of this order before 31st May 2017.
Sd/-
(M. Sridhar Acharyulu) Central Information Commissioner Authenticated true copy (Dinesh Kumar) Deputy Registrar CIC/ISCAS/A/2017/109282 Page 6 Copy of decision given to the parties free of cost.
Addresses of the parties:
1. The CPIO under RTI, Indian Science Congress Association, 14, Dr. Biresh Guha Street, Kolkata-700017.
2. Shri Umesh Chandra Lavania, Department of Botany, University of Lucknow, Lucknow-226007, UP.
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