Central Information Commission
Shri Shanmuga Patro vs Department Of Revenue (Tru) on 31 July, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/01395 & 1396
Dated, the 31st July, 2009.
Appellant : Shri Shanmuga Patro
Respondents : Department of Revenue (TRU)
This matter came up for hearing on 20.05.2009 pursuant to Commission's notice dated 02.04.2009. Both parties were present.
2. The origins of these two second-appeals lie in appellant's RTI-applications dated 18.07.2008, which listed the following queries:-
"Subject: Notification No.30/2008 - Central Excise (NT) dated 1.7.08 [Rules notified by the Central Government through Ministry of Finance in exercise of the powers conferred under Section 3A of the Central Excise Act, 1944] Subject: Notification No.42/2008 - Central Excise dated 1.7.08 [Rules notified by the Central Government through Ministry of Finance in exercise of the powers conferred under Section 3A of the Central Excise Act, 1944]
(i) Copies of the material like reports, recommendations, representations, international conventions / treaties, minutes of the meetings, resolutions etc. which form part of the aforesaid draft rules, in other words, the material that was taken into consideration for framing the same.
(ii) Copies of the studies / expert reports / manufacturers' Association report or manual, if any, which were considered for framing the above mentioned rules.
(iii) Copies of the constitution / appointment letter of Standing Committees or any other Committee, which examined the aforesaid draft rules.
(iv) Copies of the minutes of meetings / resolutions / recommendations / proceedings of the Standing AT-31072009-36.doc Page 1 of 7 Committees or any other Committee, which examined the aforesaid draft rules.
(v) Copies of the minutes of meetings / resolutions / communication etc. showing consultation, if any, held between various Ministries / Departments prior to framing and / or finalizing the aforesaid draft rules.
(vi) Copies of the minutes of meetings / resolutions / communication / circulars etc. Showing consultation, if any, held between Govt. of India and various States prior to framing and / or finalizing the aforesaid draft rules."
3. Through his communications dated 21.08.2008, CPIO informed appellant that while there was no information held by the public authority corresponding to appellant's queries at Sl.Nos.III to VI; in regard to queries at Sl.Nos.I and II, exemption under Section 8(1)(a) was cited not to disclose the information.
4. Appellate Authority, in his orders dated 24.09.2008, recorded that the notification no.30/2008-C.E(N.T.) dated 01.07.2008 as mentioned by the appellant comprised the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules-2008, which apply to specified goods i.e. pan masala and pan masala containing tobacco. The provision regarding computation of compounded duty on the basis of number of packing machines was incorporated through Section 3A of the Central Excise Act. This Section was inserted in the Central Excise Act in the Union Budget 2008 -- 2009 through the Finance Bill of 2008, which became the Finance act number 18 after it received the presidential assent. A notification No.30 of 2008 dated 01.07.2008 was, thereafter, issued to operationalise the scheme introduced in the Union Budget 2008 2009 as part of the legislative process.
5. As regards the notification no.42/2008-C.E. dated 01.07.2008, the Appellate Authority informed the appellant that that notification specified the rates of duty on goods (pan masala and pan masala containing tobacco) notified for assessment under Section 3A of the Central Excise Act, 1944.
6. According to the reasoning of the Appellate Authority the queries the appellant had raised in his RTI-applications relate to the legislative process and cannot be accessed through a proceeding under the RTI Act.
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7. Appellate Authority has also endorsed the view of the CPIO that the type of information which appellant has solicited has a bearing on the budget-making process, which cannot be disclosed due to its potentiality for adversely affecting the economic interest of the State (Section 8(1)(a) of the RTI Act).
8. Appellant, in the second-appeal petition, had stated that respondents while providing partial information to him had withheld certain other important parts of information and material under Section 8(1)(a) of the RTI Act, which he contests. Appellant has also questioned the Appellate Authority citing Commission's decision in Amin Merchant's case in Appeal No.CIC/AT/A/2006/00456 to bar disclosure of the requested information. Appellant has, therefore, requested for the following relief:-
"a) Direct the respondents to provide the following information which they have withheld upon misreading of Section 8(1)(a) of the RTI Act;
"Material like reports, recommendations, representations, minutes of the meetings, resolutions etc. which were taken into consideration for framing the Notification."
b) Pass appropriate orders to ensure non-recurrence of denial of information by the Respondents on unsubstantiated grounds."
9. This matter earlier came up for hearing on 01.04.2009 during which appellant was directed to file his written-arguments and respondents to file counters, if any.
10. Appellant's main contention is that the Commission's decision in the above-mentioned Amin Merchant's case is inapplicable to the appellant's RTI-application because while in Amin Merchant's case the appellant had filed a series of interrogatories demanding explanations from the public authority, the information solicited by the present appellant is for a clearly identifiable information. According to the appellant, the range of information solicited by the appellant in Amin Merchant's case was substantially different from what has been requested in the present application. He has further urged that what he has asked for by way of information conforms to the definition of information in Section 2(f) of the RTI Act.
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11. About the respondents' position that the requested information falls within the bar of Section 8(1)(a) of the RTI Act, appellant had stated that the Finance Bill contains a declaration that it is being issued because it was expedient in public interest and it follows logically that what was in public interest could not be against economic interest of the State.
12. It is the appellant's further submission that the information he solicited falls within the ambit of the first proviso to Section 8(1)(i) of the Act, which enjoins that the decisions of the Council of Ministers, the reasons thereof and the material on the basis of the decisions were taken shall be made public after the decision has been taken, and the matter is complete or over. It is his case that the budget was approved by the Cabinet first and then taken to the Parliament. All the documentation relevant to the Cabinet's approval of the budget proposal, therefore, falls within the proviso to Section 8(1)(i) of the Act and is eminently disclosable.
13. When the matter came up for final hearing on 20.05.2009, the appellant and the Respondents repeated most of their arguments as summarized above.
Decision:
14. From the discussion, it is seen that the main ground on which the information requested by the appellant has been declined to him is that it was against economic interest of the State thereby attracting the bar under Section 8(1)(a) of the RTI Act. Appellant has in his second-appeal petition cited an interesting ground that since the Finance Bill itself was issued ⎯ as stated therein ⎯ in public interest, any request for disclosure of the information relating to that, even if barred under Section 8(1)(a), would still be disclosable within the provision of Section 8(2) of the RTI Act. The latter Section of the RTI Act obliges disclosure in public interest even if certain information comes within the bar of the exemption-Sections of the RTI Act.
15. The above argument overlooks the fact that all acts of a representative government are all done in public interest. But whether when everything the government does it in public interest, there should at-all be any confidentiality about government's actions is a point for debate. In the context of specific actions of the government, it is necessary that the specific public interest that would be promoted by the disclosure of a given information will need to be clearly brought out AT-31072009-36.doc Page 4 of 7 before application of any exemption sub-section of the Act is abrogated through the application of Section 8(2) of the Act. Supreme Court in S.P.Gupta Vs. Union of India; AIR 1982 SC 149, have laid down the broad parameters of what would constitute 'public interest' whenever a plea for overriding an exemption provision on the basis of the requested information sub-serving public interest is made by party. The Apex Court stated as follows:-
"As distinct from private interest, the principle on which protection is given in that where a conflict arises between public and private interest, private interest must yield to the public interest. In S.P.Gupta & Ors. V. Union of India and Ors (AIR 1982 SC 149) this court by seven Judges' bench held that the court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non- disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document."
16. It follows from it that whenever a party demands that any exemption-subsection of the RTI Act ⎯ Section 8(1)(a) in the present case ⎯ be overridden through reference to Section 8(2) of the RTI Act, it is necessary to clearly establish the overriding public interest before any disclosure of information is authorized. A mere mention of public interest being the underlying and overt reason for the Finance Bill cannot be considered for invoking the public interest override of Section 8(2) to deny the claim of exemption under Section 8(1)(a) of the Act.
17. I, therefore, find no merit in the appellant's submission that because the Finance Bill itself was issued in public interest, all budget- related information ⎯ the factors that were taken into account in formulating the budget, the consultations and processes, expert advice and so on ⎯ must be made public.
18. Respondents have emphatically argued that all budget-related activity of the government is conducted in secrecy and secrecy of information is not given up even after the budget is enacted and passed by the Parliament. Disclosure of the information including the process that goes into the making of the budget, has the potentiality to clearly AT-31072009-36.doc Page 5 of 7 compromise the process and thereby impact the nation's economic interest.
19. More importantly, however, as spelt-out by the Appellate Authority in his order, the Finance Notification mentioned in appellant's RTI-application was issued only as a sequel to the approval of the budget and the Finance Bill by the Parliament, in order to give effect to the legislative approval of the budget. It follows from it that the Finance Notification was not the result of any consultation as assumed by the appellant, but it was issued as per the extant legislative process in which the provisions of the Finance Bills are implemented through the notification issued by the Ministry of Finance. The sequence of activity, therefore, leads little room for consultations, meetings and so on as assumed by the appellant. It is customary for the Ministry of Finance to engage in elaborate consultations prior to formulating the budget proposals to be submitted to the Parliament. But this exercise is not the subject-matter of this appellant's query. And, even if it were to be so, it would have been fully covered by the exemption under Section 8(1)(a) of the RTI Act. Any disclosure of how the budget-making exercise was conducted in respect of previous projects or is being conducted in respect of the present one, has the potentiality to impact the budget-making exercise and thereby impair the nation's economic interest. It would be facetious to argue that the process of the past budget exercise cannot be seen as impacting future budget-making. Disclosure of information regarding the budget-making exercise in respect of even past budgets, can potentially promote rumour- mongering, innuendos and speculation about why the government engaged in a certain type of exercise and not the other in respect of a given past budget, which can seriously compromise economic interests of the nation at any given point in time. It is, therefore, better to be safe than sorry and not to venture into the uncharted territory of directing disclosure of budget exercise-related information ⎯ no matter whether past or present ⎯ which can lead to unforeseen consequences to the nation's economy.
20. It was also pointed out during the hearing by the respondents that it is quite common for Finance Notifications to be called in question through court proceedings by interested parties. These proceedings linger long after budgets are prepared and approved by Parliament and their provisions implemented through Finance notifications. Bringing out into the open the processes through which government prepares the budget proposals for approval of Parliament, given the complexity and the elaborate nature of these processes, can be used selectively by AT-31072009-36.doc Page 6 of 7 interested parties to sow confusion and, to misinterpret government decisions for promoting Private agendas. According to them, the notification about "the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) and the rates of duty on Pan Masala" was one such which generated considerable debate and legal activity much after the notification was issued largely because the action of the government made it impossible for certain unscrupulous elements to evade taxes due to the State.
21. I am firmly of the view that all information relating to Union Budget ⎯ past or present ⎯ must not be allowed to be brought into public domain given the serious consequences it can entail for the National economy. In regard to the appellant's query for the details of consultations, etc. preceding the Finance notification, I agree with the Appellate Authority that there is no scope to disclose such consultations as the Finance notification is only the next step in the chain of implementation of the Parliament's approval of the budget and the Finance Bill. There was no preceding consultation relating to this notification.
22. In view of the discussion above, I'm not in a position to allow this appeal, which is rejected.
23. Copy of this direction be sent to the parties.
( A.N. TIWARI ) INFORMATION COMMISSIONER AT-31072009-36.doc Page 7 of 7