Central Information Commission
Shri.Sanjay Sitaram Kurhade vs National Bank For Agriculture And Rural ... on 21 December, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/002405/16514
Appeal No. CIC/SG/A/2011/002405
Relevant facts emerging from the Appeal:
Appellant : Mr. Sanjay Sitaram Kurhade
Shop No.23, Opp. Raheja Complex,
Suryamukhi Co.op Hsg. Soc. Ltd.,
Near Patri Pool, Kalyan(W) - 421301.
Respondent : Mr. P. Satish
PIO & Chief General Manager, NABARD O/o The PIO, Plot No. C/24, G-Block, Bandra-Kurla Complex, Bandra (E), Mumbai - 400051.
RTI application filed on : 19-04-2011 PIO replied on : 10-06-2011 First Appeal filed on : 17-06-2011 First Appellate Authority order of : 06-08-2011 Second Appeal received on : 17-08-2011 Information Sought:
I. The report made by NABARD regarding 86 N.P.A. Accounts for Rs.3806.95 Crore of Mahahrashtra State Co-operative Bank Ltd. (If any information of my application is not available in your Office/ Department/ Division/ Branch, transfer this application to the concerned Office/Department/Division/Branch and convey me accordingly as per the provision of Section 6 (3) of Right to Information Act, 2005.
II. The period of which the information relates :
III. Description of the information required :
1. Give the certified copy for the same.
2. Give the certified copy of all the correspondence made between NABARD and the Bank for the same.
3. Give the certified copy of all the correspondence made between NABARD and any other Department of Maharashtra State and Central Government for the same. IV. Whether information is required by post or in person.
V. In case by post (specify).
4. Whether the applicant is below poverty line.
The PIO reply:
1. Please refer to your application dated 19Apr11 2011 seeking information under the RTI Act, 2005 which was received by us on 06 May 2011. In this connection, we advise that the questions put forth by you relate to the observations made in the Inspection Report of NABARD pertaining to MSCB which are confidential in nature. Since furnishing the information would impede the process of investigation or apprehension or prosecution of offenders, disclosure of the same is exempted under Section 8(1) (h) of the Act, ibid.
Grounds for the First Appeal:
Unsatisfactory reply was given to the appellant by the PIO.
Order of the First Appellate Authority (FAA):
"This is appeal dated 17 June 2011 preferred by the appellant, Shri Sanjay Sitaram Kurhade under Section 19 (1) of the Right to Information Act, 2005 against reply to his RTI application dated 19 April 2011, forwarded vide letter No.NB:MRO:S-379:RTI(2):2011-12 dated 10 June 2011 of the National Bank for Agriculture & Rural Development, Maharashra RO, Puné.
I have gone through the case papers including the appeal preferred by Shri Sanjay Sitaram Kurhade. CPIO, Maharashtra RO (MRO) vide his letter dated 18 July 2011 has explained the delay in furnishing of reply and expressed his regret. They have assured of timely submission of information in future. I accept the reply of CPIO and direct that a copy of reply dated 18 July 2011 may be furnished to the appellant. As regards the stand taken by the CPIO, MRO on denial of information regarding MSCB and related aspects, I am in agreement with the stand taken by CPIO".
Ground of the Second Appeal:
Unsatisfactory information had been provided by the PIO.
Relevant Facts emerging during Hearing:
The following were present Appellant: Absent;
Respondent: Mr. P. Satish, PIO & Chief General Manager on video conference from NIC-Mumbai studio;
The PIO states that a stay has been obtained on the Commission's decision in CIC/SG/A/2011/002793 decided on 14/11/2011. In this matter also, the PIO appears to be denying the information on the basis of the grounds claimed in CIC/SG/A/2011/002793. From the submissions of the PIO, it appears that the stay order stays the operation of the decision in CIC/SG/A/2011/002793 only. In the present matter, information appears to be denied on the basis of Sections 8(1)(a) and (h) of the RTI Act.
Section 8(1)(a) of the RTI Act exempts-"information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence". From a plain reading of the said provision, it is unlikely that disclosure of the information sought would prejudicially affect the sovereignty and integrity of India, the security, strategic or scientific interests of the State, or relation with a foreign State or lead to incitement of an offence. Therefore, the issue to be examined is whether disclosure of the information sought is likely to prejudicially affect the economic interests of the State.
The Appellant has sought certified copies of the inspection report made by NABARD regarding 86 NPA accounts of Rs. 3806.95 crores of MSCB along with correspondence exchanged between NABARD and MSCB or any of its departments or with the Central Government. At the outset, this Bench is unable to agree with the PIO that disclosing this information would prejudicially affect the economic interests of the Indian Nation. Moreover, even if the information sought was exempt under Section 8(1)(a) of the RTI Act, this Bench is of the considered view that disclosure of the inspection reports and related correspondence of a co-operative bank such as MSCB must be shared with the public in a proactive manner. This kind of disclosure would certainly serve public interest, as mandated under Section 8(2) of the RTI Act.
Further, Section 8(1)(h) of the RTI Act provides as follows:
"8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
...
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
Section 8(1)(h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or prosecution of offenders is continuing, the bar stipulated under Section 8(1)(h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. If Parliament wanted to exempt all information relating to investigation or prosecution, it would not have imposed the condition that disclosure should impede the investigation or prosecution. Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. CIC W.P. (C) No. 3114/2007 has observed as follows:
"13. ... It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information."
It is clear from the ruling of Ravindra Bhat, J. that the PIO, who is denying information under Section 8(1)
(h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the PIO that by disclosing the information, investigation or prosecution of offenders shall be impeded should be reasonable. The opinion of the PIO must be based on some material and cannot be a mere apprehension not supported by any evidence.
In the instant case, the PIO has denied the information simply on the claim that such disclosure would impede the process of investigation or apprehension or prosecution of offenders. However, he has failed to explain how such disclosure would actually be an impediment to the process of investigation or apprehension or prosecution, as laid down above by the High Court of Delhi. The denial of information by the PIO appears to be a mere blanket statement not supported by any cogent evidence or material on the basis of which it can be clearly demonstrated that such disclosure would in fact attract the exemption contained in Section 8(1)(h) of the RTI Act. The PIO has failed to discharge the burden placed upon him under Section 19(5) of the RTI Act to prove that the denial of information under Section 8(1)(h) of the RTI Act was justified. Having said so, even if the information sought was exempt under Section 8(1)(h) of the RTI Act, disclosure of the information sought would certainly serve public interest, as mandated under Section 8(2) of the RTI Act.
Section 8 (2) of the RTI Act states, "Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests". It is pertinent to mention that significant amounts of public funds are kept with institutions including co-operative banks which are regulated by the apex co-operative banks. Therefore, it is only logical that the public has a right to know about the functioning and working of such entities including any lapses in regulatory compliances. Merely because disclosure of such information may harm the economic interest of the state, that cannot be a reason for denial of information under the RTI Act. If there are certain irregularities in the working and functioning of such banks and institutions, the citizens certainly have a right to know about the same. The best check on arbitrariness, mistakes and corruption is transparency, which allows thousands of citizens to act as monitors of public interest. There must be transparency as regards such organisations so that citizens can make an informed choice about them.
I would like to remember Justice Mathew's clarion call in State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428 - "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security".
It is also worthwhile remembering the observations of the Supreme Court of India in S. P. Gupta v. President of India & Ors. AIR 1982 SC 149:
"It is axiomatic that every action of the government must be actuated by public interest but even so we find cases, though not many, where governmental action is taken not for public good but for personal gain or other extraneous considerations. Sometimes governmental action is influenced by political and other motivations and pressures... At times, there are also instances of misuse or abuse of authority on the part of the executive. Now, if secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means, of information available to the public there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that' exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency...
This is the new democratic culture of an open society towards which every liberal democracy is evolving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands... Even though the head of the department or even the Minister may file an affidavit claiming immunity from disclosure of certain unofficial documents in the public interest, it is well settled that the court has residual powers to nevertheless call for the documents and examine them. The court is not bound by the statement made by the minister or the head of the department in the affidavit. While the head of the department concerned was competent to make a judgment on whether the disclosure of unpublished official records would harm the nation or the public service, he/she is not competent to decide what was in the public interest as that it the job of the courts. The court retains the power to balance the injury to the State or the public service against the risk of injustice, before reaching its decision on whether to disclose the document publicly or not."
The idea that citizens are not mature enough to understand and cannot understand information in a mature fashion is repugnant to democracy. For over 60 years citizens have handled their democratic rights in a mature fashion, punished leaders who showed tendencies of trampling their rights, and again given them power once the leaders had learnt their lessons not to take liberties with the liberties of the sovereign citizens of India. 'We the people' gave ourselves the Constitution, nurtured it and will take it forward. The fundamental rights of citizens, enshrined in the Constitution of India cannot be curbed on a mere apprehension of a public authority. The Supreme Court of India has recognized that the Right to Information is part of the fundamental right of citizens under Article 19 of the Constitution of the India. Any constraint on the fundamental rights of citizens has to be done with great care even by Parliament. The exemptions under Section 8 and 9 of the RTI Act are the constraints put by Parliament and adjudicating bodies have to carefully consider whether the exemptions apply before denying any information under the RTI framework. In the functioning of the government and other like authorities including the Respondent-public authority, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz. Sections 8 and 9.
In view of the same, this Bench is of the considered opinion that even if the information sought was exempted under Sections 8(1)(a) and (h) of the RTI Act,-as claimed by the Respondent,- Section 8(2) of the RTI Act would mandate disclosure of the information.
Decision:
The Appeal is allowed. The PIO is directed to provide the complete information to the Appellant before 15 January 2012.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 21 December 2011 (In any correspondence on this decision, mention the complete decision number.)(AS)