Central Information Commission
Mr.B S Malik vs Election Commission Of India on 15 April, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000212 dated 26.2.2009
Right to Information Act 2005 - Section 19
Appellant - Shri B. S. Malik
Respondent - Election Commission of India (ECI)
Decision announced: 15.4.2010
Facts:
By an application of 4.7.08 Shri B. S. Malik of Karnal (Haryana) applied to
the CPIO Election Commission of India seeking the following information:
"(i) Whether the amendments made in the year 1996 in the
Haryana Prevention of Defacement of Property Act were
taken into consideration while issuing instructions by the
Hon'ble Election Commission of India vide letter No.
3/7/2004/JSII/2358 dated 24.12.2004.
(ii) Whether Shri K. R. Rao brought to the notice of Hon'ble
Election Commission of India, the wide ranging amendments
in the Haryana Prevention of Defacement of Property Act,
1989 carried out in the year 1996 which were brought to the
notice of Shri K. J. Rao during his visit to Hissar on
19.1.2005.
(iii) In case these were not brought to the notice of Commission
by Shri K. J. Rao, what action the Commission has taken/ or
propose to take on these amendments, as some of the
important of these amendments were brought to the notice
of Hon'ble Commission vide Annexe to C.W.P. No. 1416 of
2005 in the Hon'ble Punjab & Haryana High Court titled
Balbir Singh Malik vs. Election Commission of India etc.
(iv) Is there any proposal to amend the instructions issued by
Hon'ble Election Commission of India vide letter No.
3/7/2004/JSII/2358 dated 24.12.2004 in view of these
amendments and also in view of another letter wherein the
earlier instructions issued by the Hon'ble Election
Commission of India regarding defacement of property were
amended, which has been issued by the Hon'ble
Commission vide letter No. 3/10/2004/JS-II dated 23.4.2004,
on the request of political parties etc.
(v) In case there is no proposal to amend the instructions as
mentioned in (iii) above the whether the defacement of
private property wherein consent of the owner of the
property have been obtained for such defacement whether in
the opinion of Hon'ble Election Commission of India still
continues to be a criminal offence under the Haryana
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Prevention of Defacement of Property Act, 1989 and as
amended in 1996.
(vi) What action the Hon'ble Election Commission has taken on
the letter addressed to Commission by Shri Srinivasan the
then Observer in Hissar district as reported by Shri K. J. Rao
and Shri Lalit Mohan in their report dated 20.1.2005. the
copy of letter of Shri Srinivasan the then Observer may also
be provided and copy of the clarifications issued by the
Election Commission of India if any issued by the Hon'ble
commission on that letter may also be provided.
(vii) In case ear marking of places under section 3 of Haryana
Prevention of Defacement of Property Act 1989 (As
amended in 1996) is the violation of the instructions of
Hon'ble Election Commission of India issued vide letter No.
3/7/2004/JS-II dated 24.12.2004 then what action the
Hon'ble commission has taken against those District Election
Officers, who has also ear-marked such places as per
Annexure P-9 and P-10 to replication by undersigned to the
reply of the Election Commission of India in Writ No. 1416 of
2005 in Hon'ble Punjab & Haryana High Court.
(viii) Is the instructions issued by Election Commission vide letter
No. 3/10/2004/JS-II dated 23.4.2004 has ceased to be
operative.
(ix) How many FIRs were lodged by District Administration Jind
on the directions of Shri K. J. Rao, against the political
parties who have violated the Haryana Defacement of
Property Act, as mentioned in his report wherein consent of
the owner has been obtained under Haryana Defacement of
Property Act, what is the status of these FIRs, if any?
(x) How many FIRs were lodge by District Administration
Rohtak and Jhajjar on the directions of Shri K. J. Rao
against political parties mentioned in his report with respect
to defacement of private properties wherein consent of the
owner has been obtained under Haryana Defacement of
Property Act, what is the status of these FIRs, if any?
(xi) Copies of noting sheet of office of Election Commission of
India which deals with the report submitted by Shri K. J. Rao,
advisor and Shri Lalit Mohan Under Secretary dated
20.1.2005, wherein the order of directing the Govt. of
Haryana for transferring the undersigned from the post of
Deputy Commissioner, Hissar has been passed and issued
vide letter no. 1A/2005 dated 20.1.2005 may be provided.
(xii) Whether the Hon'ble Election Commission of India has
attached any stigma to the order mentioned in (xi) above for
transferring undersigned from the post of Deputy
Commissioner, Hissar.
(xiii) Whether any report on the conduct of the undersigned was
sent to Govt. Of Haryana after the transfer of the
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undersigned from the post of Deputy Commissioner, Hissar.
If so the copies of such report are provided.
(xiv) Whether the Commission has ordered any enquiry on the
complaints of political parties against the undersigned as
mentioned by Shri K. J. Rao and Shri Lalit Mohan in their
report. If yes, the copies of that enquiry report are provided.
(xv) The copies of the noting sheet of the Hon'ble Commission
on the basis of which the orders of directing the Govt. of
Haryana for transferring the undersigned from the post of
Deputy Commissioner, Karnal dated 22.5.2008 has been
issued.
(xvi) Whether any order to the effect that undersigned may not be
assigned work relating to conduct of election in future has
been passed after the transfer of undersigned from the post
of Deputy Commissioner, Hissar. If so, the copies of the
order be provided.
(xvii) Has the Hon'ble Commission initiated any action against the
District Election Officer or any of Returning Officers of
District Jind wherein not only private properties but even
public properties were found defaced as per report of Shri K.
J. Rao and Shri Lalit Mohan dated 20.1.2005, as no action
has been initiated by these officers, till Mr. Rao's visit.
(xviii) Did the Hon'ble Election Commission of India monitor the
action taken by the various Distt. Election Officers/ Returning
Officers on the directions of Shri K. J. Rao, Advisor to the
Election Commission of India and if so with what result.
(xix) Whether the flags of political parties on hose tops put by
owner of houses also amounted to defacement of property
under the Haryana Prevention of Defacement of Property
Act as per Mr. K. J. Rao's report dated 20.1.2005, if it was
so, what was the final decision of the Election Commission
of India regarding allowing flags of political parties on the
house-tops of individual houses by the owners. If these
amounted to defacement of property under the Act ibid
under what provisions of law, the Hon'ble Election
Commission of India competent to relax the law.
(xx) Provide the copy of final report of the Observer (General)
appointed by the Election Commission of India to conduct of
11-Indri Vidhan Sabha bye-election held on 22.5.2008.
(xxi) As per your letter dated 27.6.2008 it has been mentioned in
item No. 1, that copies enclosed. However, only one
complaint of Shri Jai Prakash Kamboj has been found
enclosed. It may be clarified that, is there any other
complaint also. If there is any other complaint copies of the
same may be provided."
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To this, Shri B. S. Malik received a response dated 4.8.08 (mistakenly, as
acknowledged in subsequent correspondence, entered as 4.7.08,) in which CPIO
Shri Virender Kumar, US ECI replied pointwise, as follows
"Item no. (i)
The Commission has considered the Haryana Prevention of
Defacement of Property Act, 1989 while issuing the commission's
letter No. 3/7/2004/ J. S.II. dated 24.12.2004. Subsequently, the
said instructions were partially modified in view of the
representations received from political parties of the Commission at
Chandigarh vide the Commission's letter No. 3/7/2004/J.S.II dated
27.1.2005. (copy enclosed)
Item No. (ii)
No paper relating to visits of Shri K. J. Rao, the then Consultant is
traceable in the Commission. However, the Commission has
modified the Commission's aforesaid letter dated 24.12.2004 by
permitting hoisting of party flag in private property vide the
Commission's aforesaid letter dated 27.1.2005.
Item No. (iii), (iv), (v) and (viii)
The Commission has already issued consolidated instructions in
modification of the earlier instruction regarding the prevention of
defacement of property vide the letter No. 3/7/2007 J. S. II dated
16.10.2007. (copy enclosed)
Item No. (xiii)
File related to information whether any report on the conduct of Shri
B. S. Malik IAS was sent to Govt. of Haryana after his transfer from
the post of D.C. Hissar by the Commission, is not traceable in the
Commission.
Item No. (xv)
Copy of the requisite noting is enclosed herewith.
Item No. (xvi)
No such order has been passed by the Commission.
Item No. (xx)
Information soughtunder this item can not be supplied as it is exempted from disclosure under Sec. 8(1)(g). Hence your request is hereby rejected.
Item No. (vi) to (xii), (xiv), (xvii) and (xxi) File / documents related to defacement of property and report of Shri K. J. Rao is not traceable in the Commission even after making ample effort to trace the same.
Item No. (xiv) You may refer to the Commission's letter No. 3/7/2004/JS-II dated 27.1.05 referred to above against the item No. (i)."
However, not satisfied Shri Malik moved an appeal before Shri Shangara Ram, Principal Secretary, ECI with the following plea:
4"the Public Information Officer of the Hon'ble Election Commission of India has not supplied the information on the pretext or the other. Even the information stated to be attached under item No. xv has not been found enclosed.
The most of the information has been denied on the ground that the file relating to the visit of Shri K. R. Rao is not traceable or other file relating to transfer of the appellant is not traceable. In case if officer are allowed not to supply the required information on the ground that the file is not traceable, then the citizens are likely to be deprived of the valuable right of obtaining information from public officers under the RTI Act, on this pretext alone."
Shri Malik has, therefore, prayed as follows:
"It is, therefore, prayed that the PIO of the Hon'ble Election Commision of India may kindly be directed to:-
i) Trace out the file, which is alleged to untraceable.
ii) In case the PIO of the Hon'ble Election Commission of India fails to trace out the file, the Hon'ble Election Commission of India may kindly be directed to lodge an FIR against the employee responsible for loss of file.
iii) The PIO of the Hon'ble Election Commission of India may kindly be directed to supply the copy of noting sheet which has not been found attached with information supplied by the Hon'ble Election Commission of India under point xv.
iv) The rejection of appellant's request by the PIO of the Hon'ble Election Commission of India for supplying the copy of the report of the Observer(General) appointed by the Election Commission of India about the bye-election to Indri Vidhan Sabha, be quashed by accepting appeal of the appellant and the PIO of the Hon'ble Election Commission of India may be directed to supply the copy of the above report.
v) The information supplied by the PIO of the Hon'ble Election Commission of India under point (xix) of applicant is also incomplete. No information whether the Election Commission of India is competent to grant relaxation to what amounted to defacement, under Haryana Prevention of Defacement of Property Act, has not been provided to the appellant (vi). The Public Information Officer of the Hon'ble Election Commission of India has not considered the point No. xxi and supply the details of the information as asked for."
Upon this Shri Shangara Ram passed orders on 15.10.08, on detailed examination, as follows:
"I have perused the appeal, office records, background note herein above and the comments of the PIO in the matter. It is observed that PIO furnished the correct information, which was available with him. Most of the information sought by appellant is related to the 5 file, if any, which is not traceable, wherein the report of Shri K. J. Rao the then Advisor would have been dealt with. Therefore, the requisite information could not be supplied to him.
As regards his request for providing a copy of note sheet of the Commission's record on the basis of which the orders directing the Govt. of Haryana for transfer of the appellant from the post of Dy. Commissioner, Karnal is concerned, the same has already been supplied to the appellant vide the PIO's letter dated 4.8.2008. However, PIO should supply a copy of the same to the appellant again. The PIO should also inform the appellant about the other complaints received in the Commission against him, if any.
The efforts were made by the concerned Sections Officers in the Commission to trace out the file and an extensive search was done. In this process a lot of time has been consumed. Due to this the appeal is finalized in 45 days from the date of receipt of the same in the Commission.
Besides above, I see no reason to interfere with the decision of the PIO."
Appellant Shri BS Malik's prayer before us in second appeal is as below:
"The Public Information Officer of the Hon'ble Election Commission of India may kindly be directed to :-
i) Trace out the file, which is alleged to be untraceable.
ii) In case the PIO of the Hon'ble ECI fails to trace out the file, the Hon'ble ECI may kindly be directed to take criminal action by lodging an FIR against the employee/s responsible for the loss of file.
iii) The rejection of appellant's request by the PIO of the Hon'ble ECI and the appellate authority for supplying the copy of the report of the Observer (General) appointed by the Election Commission of India about the bye election to Indri Vidhan Sabha be quashed by accepting appeal of the appellant and the Public Information Officer of the Hon'ble Election Commission of India may be directed to supply the copy of the above report in public interest.
iv) The information supplied by the PIO of the ECI under point (xix) of applicant is also incomplete. No information whether the Election Commission of India is competent to grant relaxation to what amounted to defacement, under Haryana Prevention of Defacement of Property Act, has not been provided to the appellant.
It is, therefore, prayed that appeal of the appellant be accepted and necessary penal action against the PIO of the ECI may kindly be taken for not supplying the complete information and withholding information which he was supposed to provide under the law as stated above."
6We have subsequently received a reminder on 29.5.09 requesting for an early hearing from Shri Malik, by then Administrator HUDA. The appeal was heard on 15.4.2010 by videoconference with Hissar. The following are present:
Respondents Shri Shangara Ram, Principal Secy.
Shri A. N. Das, U.S. & CPIO Shri Varinder Kumar, U.S. Although arrangement had been made to hear the appeal through videoconference at NIC Studio, Hissar and appellant Sh.B. S. Malik had been informed by Notice dated 26.3.2010 regarding the hearing, he has opted not to be present.
DECISION NOTICE There are two issues before us in this matter -
1. The question of a file processed in the Election Commission of India, which has remained untraced and
2. Whether a report of an ECI appointed election observer can be disclosed on conclusion of election process.
On Issue No. 1, Principal Secretary Shri Shangara Ram once more confirmed, with a measure of regret, that the file remains untraced despite the best efforts of the Election Commission of India. In this context, he submitted a file in which this matter has been discussed. In the context of the observations on the RTI Act and the directions of this Commission in exercising caution in administering the RTI law within the Election Commission of India in Appeal No. CIC/WB/C/2006/00306 dated 19.4.2006, the sum of this, however, in reference to the present case, is that the file has remained untraceable and, therefore, contents of the file now cannot be disclosed to appellant without amounting to expression of a personal opinion by the CPIO which is not the mandate of the law. We have taken a copy of the note sheet of file which can be shown to appellant Shri Malik, if he so wishes.
7On issue No.2, however, it is clear that the task of election observer in an area of intense, sometimes unscrupulous political rivalry, which is the election process, can, if disclosed to be adverse to one or the other party or individual, place the reporter at considerable personal risk. This should be clear from the very high security arrangements that require to be made in every election in India today. It has also been submitted by Principal Secretary, Election Commission of India in the hearing that at the time the observers are deputed to various States across the country, the risks are explained to them and it is also clarified to them that their reports will remain confidential so that they may report with the fullest confidence and honesty. In this context, Shri Shangara Ram also submitted a copy of the note file of the ECI in File No. 4/RTI/4/2005/JS-II in which the noting is as follows:
"The Statesman published an article dated 1.6.2005 captioned "Red's Poll Terror unveiled" based on the final report of Shri Afsal Amanullah, Special Observer o ECI deputed to West Bengal during the Lok Sabha Polls, 2004. This article has created a political controversy in the State of West Bengal and the opposition parties and organizations have been demanding publication of Shri Amanullah's final report. During the Lok Sabha Poll, 2004, for each Parliamentary constituency 3 Election Observers were deputed (2 GOs and 1 EO). To have a clear picture of the above issue the reports submitted by these observers have also been studied. An analysis of the reports of the observers and Shri Amanullah's final report has been made which has been annexed. Further course of action in this matter may kindly be considered.
Sd/-
(R.Balakrishnan), DEC / 17.10.2005 For your views please.
Sd/- R. Balakrishnan 17.10 / L.C./ (SKM) / I am of the view that the report of Shri Amanullah may not be made public, as the disclosure of such reports is, in my opinion, exempted under s. 8(1)(g) of the RTI Act 2005. The publication of the report would identify the source of information or assistance given in confidence to the Commission for enforcement of law relating to 8 conduct of free and fair elections within the meaning of the said sec. 8(1)(g) of the RTI Act.
Sd/-
Illegible 18.10.05 / DEC/(B) / This was discussed in the Commission's meeting today ( 21.11.05). Shri S. K. Mendiratta, Legal Advisor who was present in the meeting explained that the Commission may take a stand that the reports submitted by the Observers in confidence deserve to be exempted from disclosure as per the provision of Sec. 8(1)(g). Accordingly, it was decided that those who have asked for the disclosure of Shri Amanullah's report should be informed accordingly.
Sd/-
Illegible 21.10.05"
This noting carries the approval of the highest authority in the Election Commission. From the above, it is quite clear that contrary to the contentions of appellant Shri Malik that disclosure of such report is not going to endanger the life or physical safety of any persons, the issue has been considered with the fullest gravity. Therefore, the rejection of the information is decidedly justified on this ground under 8 (I) (f), but we will agree that this information falls also squarely within the purview of exemption u/s 8(1)(g). In any case, it is the responsibility of the Election Commission to ensure that elections proceed in accordance with the law. It is they who must decide on the basis of the report of the Observer whether the conduct of the election is conducive to such objectives. We cannot see the logic in the contention of appellant Shri Malik that disclosure of such information to the public at large will help in improving the drawbacks if any which were noticed by the Observer during the process of conduct of elections. The decision of the CPIO in this regard is therefore upheld. Issue No. 2 is decided accordingly.
9In conclusion, we are constrained to observe that the processing of this case has shown major lacunae in the record keeping of the Election Commission of India, which is in direct conflict with the RTI specifically with Sec. 4(1). Nevertheless we are also convinced that the Election Commission of India is making sincere efforts for rectification. In this context, however, it is to be recorded that the information sought by appellant Shri Malik cannot be provided to him since it is not held by the public authority, which is in this case the Election Commission of India. On the other hand, the ECI, which has both the finances and the staff strength, is directed u/s 19(8)(b) to ensure full compliance with Sec. 4 of the RTI Act within 150 days of the date of receipt of this order. Full compliance will be reported to Shri Pankaj KP Shreyaskar, Jt. Registrar, CIC by the Secretary, Election Commission in any case on or before 15.10.2010.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 15.4.2010 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 15.4.2010 10