Central Information Commission
Dr. Amit Sen Gupta vs Election Commission Of India (Eci) on 11 June, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/00559 dated 11-5-2009
Right to Information Act 2005 - Section 19
Appellant: Dr. Amit Sen Gupta
Respondent: Election Commission of India (ECI)
FACTS
On receipt of a complaint from Shri Somnath Chatterjee MP, the then Speaker, Lok Sabha that an appeal filed before the CIC on 14-6- 2006 challenging the decision of the Appellate Authority in the Election Commission of India has not been disposed of, a fresh appeal was registered and comments sought from the Election Commission of India. This was followed up with a complaint received through a letter of 8-5-09 of Shri Parsanna Kumar OSD with the Hon'ble Speaker submitting as follows:
"This has reference to the Chief Information Commissioner's recent tele-conversation with the Hon'ble Speaker, Lok Sabha when he had told the Hon'ble Speaker that there was no record available with the Central Information Commission with regard to an appeal filed by Dr. Amit Sen Gupta 1 before the CIC on 14th June 2006 challenging the decision of the Appellate Authority in the Election Commission of India.
Please find enclosed a copy of the acknowledgment/ receipt given by the CIC while receiving the appeal filed by Dr. Sen Gupta on 14th June 2006."
The genesis of the appeal of Dr. Amit Sen Gupta had arisen as follows:
"It appeared from the media that the Hon'ble Rashtrapatiji, has forwarded an alleged complaint supposed to have been made by Shri Mukul Roy against some Members of Parliament and the same has been referred to the Election Commission of India. As on adequate information was available in this regard, I duly submitted a request in writing on 27th March, 2006, addressed to the Public Information Officer (PIO), Election Commission of India, seeking relevant information and particulars and copies of the document or documents relating to this matter, under the provisions of the RTI Act 2005 (copy of my petition is enclosed). Subsequently, reminded 1 Emphasis added clarifying that the appeal was not from Hon'ble Shri Chatterjee.1
the PIO of my request in the telephonic conversations I had with him and also in writing through my letters dated 29th March, 2006 and 5th April 2006 (copies enclosed).
In response, I have received a purported communication (No. 4/RTI/25/2006/JS-II) dated 13th April 2006 from the PIO in his capacity as the Under Secretary of the Election commission stating that "The Commission has decided that copies of documents, decisions or pleadings relating to such reference cases can not be supplied until opinion is tendered and the President's Order in the matter is published. Accordingly, your request referred to in the above mentioned letter cannot be acceded to".
After tracing the trajectory of this application through its first appeal, Dr Sen Gupta therefore, concluded his appeal before us with the following remarks:
"With these facts placed before you, Sir, I pray for setting aside the order No. 4 /RTI/2006/JS-II/VOL-II/17 dated 1st June 2006 issued by Shri K. F. Wilfred, Appellate Authority under the RTI Act, 2005 in the ECI and for issuances of orders upholding my right to ask for and get the said information."
He has then gone on to describe in detail the grounds for his plea. On this basis the comments of the Election Commission were sought, in response to which Shri Ho Ram, CPIO & Under Secretary, Election Commission of India has after a brief description of the background submitted as follows:
"It appears from the contents of the documents enclosed vide your above said notice dated 13.5.2009 that your office has missed the record of the above said case. And, I am of the view that as the CIC had already decided the matter and the follow up action had also been taken by the then CPIO, there is noting to be added on part of the Commission in the matter.
However, you are requested to intimate the further course of action, if any, that needs to be taken on part of the Commission, before 11.6.2009."
We find that we have indeed disposed of this appeal by our decision notice of 26-12-2006 as follows:
Since the documents have been sought at a time when the matter was under investigation by no less than Hon'ble President of India, the Election Commission of India cannot be faulted for withholding it. Under Article 103(2) of the Constitution in deciding on questions of disqualification of 2 members; "Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion." Since the matter in question was at the time under investigation, and concerned sitting MPs the public authority could have examined whether disclosure would have been in breach either of Sec 8(1) (c) or (h). Appellate Authority has instead chosen recourse to only Sec 8 (1) (e) in describing the relationship between President and ECI in dealing with matters under Article 103(2) of the Constitution, and holding the information sought exempt. This has been further explained in the response received by us to the appeal Notice through Secretary, ECI's letter of 30/11/'06. The argument now becomes largely hypothetical as the information now being available; it may be made available to Dr. Sen Gupta appellant on payment of the requisite fee, provided he is still interested in obtaining it, since he did not appear before us in the hearing.
The only remaining issue is whether the responses sent by PIO and appellate authority to appellant Dr Sen Gupta were in violation of Sec 7(1). Although transgression of time limit is not cited as the basis of relief sought in appellant's appeal before us that is stated in the supporting documents submitted with the 2nd appeal. The RTI request was made on 27/3/'06. We find that the response from PIO, was completed by 18/4/'06, with two letters dated 13/4 and 18/4. The appeal dated 1/5/'06 has been disposed of on 1/6/'06. In his response to our Appeal Notice, Shri Wilfred has indicated that the appeal was in fact received by him on 2/5/'06, thus addressing a possible charge of a day's delay beyond the thirty days mandated. We cannot find any grounds to invoke penalty u/s 20."
As is clear from the above, appellant Dr. Amit Sen Gupta had opted not to appear in the hearing of the appeal. In the present case we had issued a hearing notice for 11th June, 2009, the copy was also endorsed to Dr. Amit Sen Gupta, in case he wished to appear. None of the parties are present, although we have the written response of ECI quoted above.
DECISION NOTICE Since the appeal of Dr. Amit Sen Gupta stands disposed of through our decision of 26-12-2006, a decision moreover that has remained unchallenged, 3 we find the present complaint/appeal infructuous and it is hereby filed. Announced in the hearing.
Notice of this decision be given free of cost to the parties. A copy of the decision specifically is sent to Shri Somnath Chatterjee, former Speaker, Lok Sabha at his present address at 20, Akbar Road, New Delhi.
(Wajahat Habibullah) Chief Information Commissioner 11-6-2009 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 K.P. Shreyaskar) Joint Registrar 11-6-2009 4