Central Information Commission
Akhilesh Godi vs Department Of Legal Affairs on 5 June, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/DOLAF/A/2022/617797
Akhilesh Godi अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Department of Legal Affairs,
RTI Cell, 4th Floor, A-Wing,
Shastri Bhawan, New
Delhi-110001. ितवादीगण /Respondent
Date of Hearing : 15/03/2023
Date of Decision : 30/05/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/06/2021
CPIO replied on : Not on record
First appeal filed on : 06/09/2021
First Appellate Authority's order : 23/09/2021
2nd Appeal/Complaint dated : Not on record
Information sought:
The Appellant filed an RTI application dated 01.06.2021 seeking the following information:
"This is to bring to your notice that the Supreme Court of India vide its orders in WP(Crl.) 76/2016 Navtej Singh Johar & on. v. Union of India dated 6th 1 September 2018 has made several directions to the Union of India which include giving wide publicity to the judgment periodically, initiating and airing programmes to reduce and eliminate stigma associated with homosexuals via all public media periodically and also to start periodic training and sensitisation for all Govt officials, etc. Please refer to Pan 98 of the judgment of RF Nauman. The judgment may be downloaded from the website of the Supreme Court of India.
It has been stated vide RTI responses from Prasar Bharati and from the Ministry of Information and Broadcasting that no communication has been received from the Law Ministry with regards to the implementation/compliance of aforementioned directions and that it is for the Law Ministry to give effect to these directions which has been alluded to not having been done as of date. True copies of the RIT responses are attached for your reference.
With reference to the said judgment and specific directions referred therein, I may be provided information/documents under Section 6(1) and 7(1) of the RTI Act, 2005 (1) Whether the Ministry has given effect to the directions in the orders? If yes, please provide true copies of all the communications sent to various other departments and/or ministries in order to give effect to the directions referenced in the aforementioned judgment.
(2) If the answer to (1) is No, please provide the reasons thereof for not giving effect to the directions of the Supreme Court of India."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 06.09.2021. FAA's order, dated 23.09.2021, held as under:
" This First Appeal has been filed by you with reference to your RTI Application dated 01.06.2021 on the ground that information has not been provided by CPIO in time.
Your appeal has been examined. CPIO is directed to provide information available with him to the appellant within ten days of this order and he should be vigilant in providing information within the prescribed time period in future."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating inter alia as under:
2"The Second Appeal is being preferred now as there has been non- compliance of the directions in the First Appeal by the CPIO. The CPIO be directed to respond immediately and/or necessary action be taken against the CPIO at the earliest. Delay in filing second appeal if any, may be condoned on the above grounds as there has been no response by the concerned CPIO and this forum is being preferred for redressal of the said grievance.
xxx As the CPIO has not provided said information, no legal proceedings could have been conducted against the Ministry pertaining to said information for non- compliance which affects the members of the LGBT+ community and thereby not taking any steps towards reducing stigma against said persons as ordered by the Hon'ble Supreme Court."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: J P Dubey, DLA & CPIO present through intra-video conference.
The Appellant was heard at length and it will be expedient to reproduce all of his arguments as contained in the text of his written submissions as under:
The complainant along with 19 other LGBT persons from the Indian Institutes of Technology were petitioners in W.P(Crl.) 121/2018 Anwesh Pokkuluri & ors. v. Union of India which was tagged and heard along with W.P(Crl) 76/2016 Navtej Singh Johar & ors. v. Union of India before the Hon'ble Supreme Court of India. The landmark case while reading down Section 377 of the IPC also made several observations according LGBT persons equal rights in accordance with the Constitution of India...
xxx In light of the discrimination, prejudice and stigma faced by the petitioners including the complainant, Hon'ble Justice Rohinton Fali Nariman was pleased to order the following, to which the Union of India through its Secretary, Ministry of Law and Justice was the respondent. The paragraph in reference (Para 98) is reproduced verbatim for reference:3
98. We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at persons.
Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.
Aggrieved by the lack of visible efforts made by the Union of India in initiating either publicity or training/sensitization as directed by the Hon'ble Supreme Court, the complainant filed several RTI applications with the Ministry of Information & Broadcasting, Ministry of Law & Justice, Ministry of Home Affairs, Ministry of Social Justice & Empowerment on the status of the implementation of the order.
xxx
2. ...This is the subject matter for the Second Appeal before the Hon'ble Commission on 15.03.2023 which seeks to find if any communication was sent to any ministry or department by the Ministry of Law and Justice to give effect to the orders of the Hon'ble Supreme Court.
3. MOSJE/R/E/21/00194 was an RTI filed with the Ministry of Social Justice and Empowerment regarding information on publicity given as per the orders; this was transferred to the Law Ministry with application number MOLAW/R/T/21/00058. This was then further transferred by the Law Ministry to the Home Ministry with application number MHOME/R/T/21/00882. The Ministry of Home Affairs responded that the judgement was sent to the States directly by the SC Registry. This was not the information that was sought in the application, and hence a first appeal was filed bearing number MHOME/A/E/21/00327. The application was forwarded to the Law Ministry (Dept. of Justice). The Administrative Section of the Department of Justice in their response bearing F. No. 15011/47/2107-Jus(AU) then manually forwarded this back to the CPIO, Department of Legal Affairs with application number MOLAW/R/P/21/00436. The CPIO responded that the response to this had been provided physically, which was not true. This was appealed in MOLAW/A/E/22/00111 where the appellate authority responded that no information is available with the CPIO and disposed of the case.
4Rejoinder After no response to the RTI application MOLAW/R/E/21/00402, a first appeal (MOLAW/A/E/21/00111) was preferred on 06.09.2021 and directions were made to the CPIO to comply and respond to the RTI Application within 10 days of the order dated 23.09.2021. However, no response had been received as of the filing of the second appeal. The CPIO had also been sent an email dated 02.12.2021 as a reminder. (True copy of response in MOLAW/R/E/21/00402 marked as P-7 in annexure) (True copy of response in MOLAW/A/E/21/00111 marked as P-8 in annexure)
- After no response from the CPIO after the first appeal too, a second appeal CIC/DOLAF/A/2022/617797 was filed on 25.03.2022. The case is listed before the Hon'ble CIC for hearing on 15.03.2023
- A response was filed in the original RTI Application by the CPIO finally on 02.09.2022 stating that: "The information has been provided physically." This response is wholly incorrect, misleading and malafide.
- That the submission made by the CPIO that the files in relation to this RTI application are irretrievable or untraceable cannot be an acceptable explanation for withholding information or incorrectly stating that the information was made available physically when it was not. This was done in not one but two RTI applications.
That the submission made by the CPIO that MOLAW/R/P/21/00436 was filed with the same content is wholly incorrect. The subject matter of both the queries were related but not the same. The referenced application dealt with questions on whether publicity was done by the Ministry and is completely different from the present subject matter which is on the files in relation to the communication between the Law Ministry and other Ministries to give effect to the orders of the Hon'ble Court.
It is incorrectly submitted by the CPIO that as per Government of India (Allocation Business Rules), 1961, the subject matter of publicity lies with the Ministry of Home Affairs. It in fact lies with the Ministry of Information & Broadcasting as per the same rules - who in their response have stated that it is for the Law Ministry to give effect to the said orders. Even if the submission of CPIO was assumed to be true for the sake of argument, the response in a different RTI application which was referenced by the CPIO viz. MOLAW/R/P/21/00436 was in fact transferred by the Home Ministry to the CPIO, Legal Affairs stating that it is 5 the subject matter of the Ministry of Law & Justice as they were the respondent in the said case before the Hon'ble Supreme Court of India.
It cannot be the submission of the CPIO, Department of Legal Affairs that the information requested by the complainant is not available. The CPIO must state that no effect has been given by the Ministry of Law & Justice as ordered by the Hon. Supreme Court. The CPIO ought to have forwarded the said application to the concerned CPIO of Home Ministry under Section 6(3) of the RTI Act, if he so believed. That in either case, this would have led to the Home Ministry sending back the application to the Law Ministry as seen in MHOMEWE/21/00327 and discussed earlier above.
The multiple transfers between the ministries and circularly in the manner shown above along with the lack of response clearly shows that the pith and substance of the RTI Act is completely defeated by such a cavalier attitude by the Union of India in answering questions which affect the life and liberty of a large population of the country that has been forced to live in the margins due to continued stigma.
That the applicant has suffered greatly due to the continued operation of stigma and non-sensitization of the officers as ordered by the Hon'ble Court. Further delay in response only prevents the applicant from gathering true and bonafide information from the relevant CPIOs that has also inhibited him from either making a representation with the concerned ministry and/or filing a relevant writ under the provisions of the Constitution seeking implementation of the orders in the courts or from filing a contempt application.
The delay of about 1.5-2 years in filing response by the CPIO, Department of Legal Affairs and the misleading and incorrect information provided may not be condoned. The concerned persons responsible for said delay may be proceeded with disciplinary action and imposed with costs under Section 20(1) and Section 20(2) of the RTI Act..."
The CPIO's written submissions of 21.02.2023 that was being referred to by the Appellant contained the following contents:
"1. That, the instant appeal pertains to the RTI application with Registration No. MOLAW/R/E/21/00402 dated 01.06.2021 in which First Appeal being 6 MOLAW/A/E/21/00111 dated 06.09.2021 filled by the Applicant was disposed of by the First Appellate Authority vide Order dated 23.09.2021.
2. That, at the outset it is humbly submitted that the Respondent, the instant CPIO, recently joined the Department of Legal Affairs, New Delhi on transfer in the month of January, 2023 and is assigned with the work of the CPIO, Judicial Section vide Office Order No. 22/2023 under F. No. A-60011/2812010- Admn.I (I-A) dated the 16th January, 2023. There is no deliberate inaction on the part of this CPIO. However, the Respondent unconditionally begs pardon for any action/inaction/delay caused in the matter.
3. That, it is further submitted that, upon receipt of the Notice of the Hon'ble Commission in the matter, the respondent has made effort, however, as informed by the concerned section, the physical file pertaining to said RTI matter is rot traceable. Therefore, the Respondent is unable to further apprise the Hon'ble Commission to the action taken therein to which the respondent is deeply regretted.
4. That, it is pertinent to mention that, as revealed from the available record, another RTI application bearing MOLAW/R/P/21/00436 dated 25.08.2021 was filed by the appellant with same queries, in which the appeal filed under Section 1,9(1) 3f the RTI Act, 2005 bearing Registration No. MOLAW/A/E/22/00111 dated 02.09.2022 was disposed by the First Appeal Authority vide Order dated 26.10.2022 in terms, "It is hereby informed that no information is available in this department. Therefore, no further information is required to be provided against the said appeal filed by you. The appeal stands disposed of.
5. That, it is pertinent to mention here that as per Government of India (Allocation of Business Rules), 1961 the subject matter of the judgment on which the Appellant has sought information pertain to Ministry of Home Affairs and as such giving publicity of the Judgment of the Hon'ble High Court lies with the Administrative Ministry i.e. Ministry of Home Affairs. As such there is no information available in the Department of Legal Affairs in respect of the queries of the said RTI Application."
In furtherance of these submissions being reiterated during the hearing, it transpired that the CPIO was perhaps confused between two RTI Applications of the Appellant and he was also unable to categorically state if he was able to gather any further details in the matter in terms of tracing out the file related to the instant RTI disposal or the SC judgment under reference. However, he urged to submit that the omission, if any, on the part of the then CPIO in not having provided a reply to the instant RTI Application at the relevant time may be 7 attributed to the unprecedented chaos and upheaval caused within the government agencies in the face of the COVID-Delta exigencies.
The Appellant insisted that 'It cannot be the submission of the CPIO, Department of Legal Affairs that the information requested by the complainant is not available. The CPIO must state that no effect has been given by the Ministry of Law & Justice as ordered by the Hon. Supreme Court' because it is only based on such confirmation, he will be in a position to approach the competent Court for remedying the inaction of the authorities.
Considering the confusion pertinent in the case records and the paucity of time, the CPIO was directed to file written submissions in the matter afresh and to provide a reply specific to the instant RTI queries based on the availability of the records as on date.
Decision:
The Commission received the revised written submissions of the CPIO vide his letter dated 31.03.2023 addressed to the Appellant stating as under:
"Considering the direction of the Hon'ble Information Commission during hearing on 15.03.2023, the CPIO called for record and after extensive search found the file tagged with another file, from which it revealed that, after instructions from the First Appellate Authority, attempt was made by the then CPIO to collect the information from the concerned Section (Copy enclosed).
(ii) As it appears, the then CPIO did not dispose the RTI application. Hence, considering the direction of the First Appellate Authority, the instant CPIO disposed of the request of RTI Application vide letter being dated 31.03.2023. The copy of the same is annexed herewith. It is to state here that there has been no deliberate intention of the CPIO, either to withhold and/or delay in providing the RTI request.
(iii) It is further to submit that, the Writ petition No. 76/2016 (Navtej Singh VS Union of India) was heard along with other Writ Petitions where the Ministry of Home Affairs was made party and disposed of with common Judgment mentioned dated 06.09.2018. It is further to be submitted that under paragraph 98 as referred by the Applicant, there is no specific direction upon the Ministry of Law and Justice Department of Legal Affairs to give effect of publicity as sought by you.
(v) It is pertinent to mention here that, as per Government of India (Allocation of Business) Rules, 1961, the Ministry of Law & Justice is to provide 8 legal assistance to various Ministries/departments of Union of India. Therefore, when any case is filed against the Union of India, the Ministry of Law and Justice is generally made a party. Further, upon receipt of such notice of filing of case against Union of India, the Ministry of Law and Justice, Department of Legal Affairs only engages the Counsel and forward the case to the concerned administrative Ministry for effective defending the matter at their end.
(vi) It is further stated that in the RTI Applications, the essence of request made were regarding steps taken to give effect to the direction of the Hon'ble Supreme Court under Para 98 of the Navtej Singh Johar -vs.- Union of India. In this regard it is further stated that, as per RTI Act the CPIO is to provide information available on record. The CPIO is not to create the information. Since, there is no information available with the Judicial Section of the Department of Legal Affairs, the information sought for cannot be given.
(vii) It is pertinent to mention that earlier, your one RTI application being MOLAW/R/T/21/00058 08.03.2021 was forwarded to Ministry of Home Affairs on 13.04.2021 which registered at their end as MHOME/R/T/21/00882. In response the various Divisions of the Ministry of Home affairs replied to you. The department of Justice had also replied to the same. In this regard, the annexures of the Rejoinder filed by you may please be referred to."
Subsequently, the Commission has also received counter submissions of the Appellant stating inter alia that:
"It may be placed on record that the appellant partly accepts the fresh submissions of the CPIO.The appellant accepts that the CPIO is not to create any information. And that the CPIO is not bound to give reasons to query (2) as it would not fall under the purview of Section 2(f) of the RTI Act.
xxx However, the appellant wishes to submit that the CPIO is bound to coordinate with the Central Agency under the Ministry of Law & Justice and necessarily transfer the current application which is the subject matter before the CIC to the correct CPIO under Section 6(3) of the RTI Act to the appropriate department in the appropriate ministry if he so believes that Union of India through the Ministry of Law & Justice was not the respondent in the case to whom the said directions were made to. It is humbly submitted that there has been grave delay in responding to the RTI Application and therefore the CPIO must expeditiously forward the application and enable me to get a response from the 9 concerned department which the Central Agency believes is the correct ministry to whom those directions were made to.
It is also submitted that filing of a fresh response may not be a reason to condone the CPIO, and the then CPIOs from filing incorrect and misleading responses such as them claiming that the information was provided physically; or that the files being irretrievable in the Ministry. The delay of 1.5 years in filing this response may not be considered as acceptable."
After dwelling extensively on the case records, the key findings of the Commission are as under:
1. The then CPIO, L C Dabaria (ALA) acted upon the FAA's order of 23.09.2021 by writing to the In-charge, Central Registry Section & Dy. Govt. Advocate, DOLA vide letters dated 24.09.2021 and 05.10.2021, respectively stating the following request:
2. As for the omission of the then CPIO to provide a reply to the Appellant within 30 days of filing the RTI Application, the Commission cannot lose sight of the extraordinary circumstances rendered in the wake of the COVID pandemic at the time of the original date of filing of the instant RTI Application.
3. The present CPIO has vide letter dated 31.03.2023 informed the Appellant that no information is available in their department regarding giving effect to the averred SC directives and the same suffices the clarificatory nature of 10 the queries raised in the RTI Application that do not conform to Section 2(f) of the RTI Act in a strict sense.
4. The Appellant contesting the argument of the Respondent office regarding not being the primary Respondent before the Apex Court and not being aware of who was the concerned Respondent etc. are issues that are not amenable to the jurisdiction of the Commission under the RTI Act.
The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(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;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and 11 should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...." (Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 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; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of 12 adjudicating authorities and cannot properly be classified as information."
(Emphasis Supplied) Similarly, the Appellant is advised about the powers of the Commission under the RTI Act by relying on certain precedents of the superior Courts as under:
The Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 has held as under:
"6. ....proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied) The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) Adverting to the foregoing observations, the Commission is unable to appreciate the further argument of the Appellant stating that the CPIO should coordinate with the Central Agency under their Ministry to transfer the RTI Application as per Section 6(3) of the RTI Act to the concerned public authority. The Appellant may note that the CPIOs cannot be mortified for not transferring the RTI Application under Section 6(3) of the RTI Act to other concerned authorities when the request for information does not even conform to Section 2(f) of the RTI Act and requires 13 the CPIO to drawn inferences and speculate the availability of records or speculate the identity of the concerned record holder. Besides, such aimless transfer of the RTI Applications under Section 6(3) of the RTI Act merely cause more inconvenience to the RTI applicants.
The Appellant is therefore advised to approach the appropriate forum in case of his grievance against the alleged inaction of the Union of India as brought out in the case background of the instant RTI Application.
Lastly, the Commission based on the strength of the material on record does not find any malafides or deliberate omission on the part of the then CPIO or the present CPIO is not having provided timely reply to the instant RTI Application, therefore no action is warranted under Section 20 of the RTI Act.
However, J P Dubey, DLA & CPIO is expected to exercise due diligence in ascertaining records related to action taken on RTI matters by him or his predecessor so as to avoid a similar situation in the future where he has to await the directions of the Commission to find out the trajectory of the action taken on a particular RTI Application despite being afforded with adequate time from the issuance of the notice of hearing untill the date of hearing.
With the above observations and remarks, the appeal is disposed of.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 14