Central Information Commission
Saurav Das vs Department Of Industrial Policy & ... on 31 July, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच
ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: - CIC/DOIPP/A/2021/625997
In the matter of:
Saurav Das
... Appellant
VS
CPIO / Dy Secretary
Department for Promotion of Industry and Internal Trade (DPIIT),
IPR - Copyright Section,
Udyog Bhawan, New Delhi - 110011
... Respondent
RTI application filed on : 24/04/2021 CPIO replied on : 11/06/2021 First appeal filed on : 07/05/2021 First Appellate Authority order : Not on record Second Appeal Filed on : 23/06/2021 Date of Hearing : 22/07/2021 Date of Decision : 29/07/2021
Note: Being a Covid-19 related matter, the second appeal has been accorded early hearing.
The following were present:
Appellant: Present over phone Respondent: Karan Thapar, Deputy Secretary and CPIO, present over phone 1 Information Sought:
The appellant has stated that in April 2020, a 9-member committee was set up under the Chairmanship of DPIIT, Secretary Mr. Guruprasad Mohapatra to ensure adequate availability of medical oxygen in the wake of Covid-19 pandemic. In relation to the same, appellant has sought the following information:
1. Provide the list of exact dates on which the said Committee has met till date.
2. Provide the certified copies of detailed agenda of all the meetings.
3. Provide the certified copies of presentations made before the group and detailed information about each of them.
4. Provide copies of the Minutes of each meeting held along with all notes, annexures, etc. put before the Committee for consideration.
5. And other related information.
Grounds for Second Appeal The CPIO did not provide the desired information u/s 8(1)(a) and (d) of the RTI Act.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that he received the written statement of the CPIO on 19.07.2021 and 20.07.2021. Therefore not enough time has been provided to him for providing his rejoinder to the Commission but however, the same was filed by him on 21.07.2021.
In respect of the maintainability of the second appeal, he reiterated his submissions that the present RTI application relates to life and liberty of a person and the disclosure of information would have helped save several lives and fixing accountability during the time it was asked for. He also submitted that proper remedial action by way of litigation and public interaction with the Government could have been done if the information was revealed at that time.
He also submitted that action/non-action by this very important Committee of the Government could result in mass deaths and mass chaos, both of which the country was a witness to during the second wave of COVID. However, this case is requested to be not treated as an adverse case. It is only in larger public interest and transparency that this case has been filed so that such situations like that seen during the second wave could be avoided in future.
2Had the public been properly informed with all documents and minutes of the meetings of this Committee, a proper and healthy interaction between the public could have ensured better preparation. Any pressure from the public to act could have saved several lives and livelihood. It is rather unfortunate that such details are being denied.
He further pointed out that the second wave of the pandemic was the deadliest. Several people died and the Government of India could not manage the situation as well as it was expected. The Government of India herein, also includes the sub-committee relevant to this case.
As a result of this mismanagement, several High Courts across the country and the Supreme Court had to step in to fix the broken system and alleviate the suffering of the masses.
He further submitted that the Commission should note that most of these cases were in fact taken up by the Courts as suo-motu cognizance. Suo-motu cognizance is invoked only when the larger public interest so demands. Therefore, this case also needs to be seen in that context of larger public interest. Larger public interest has been established by all the High Courts and even the Supreme Court of this country. The same is indisputable. The CPIO contended that the appeal is liable to be "outrightly dismissed" on account of the fact that a first appeal dated 07.05.2021 against the impugned RTI dated 24.04.2021 filed under life and liberty was filed with the concerned FAA of the public authority within 12 days from the filing of this RTI, without waiting for the statutory time frame of 30 days.
The second argument of the CPIO is that the appellant had filed another first appeal on the same case with the FAA on 08.06.2021 and he did not wait for the 45 days period before filing of second appeal on 23.06.2021.
The appellant reiterated that the present RTI is a matter of life and liberty, in support of which arguments have been made above. On this account, after the RTI was filed on 24.04.2021, no response was received from the CPIOs of DoIPP. He submitted that it is a settled principle under the RTI Act that after receipt of an RTI application under "life and liberty" clause, the CPIO concerned is required to provide a decision on whether, in their opinion, the same is indeed a matter of life and liberty or not. Notwithstanding the fact that one can disagree with such a decision of the CPIO, in the present matter, no 3 response with such a decision on acceptance or rejection of the RTI filed under life and liberty was conveyed to the appellant.
He also submitted that no response to an RTI is akin to denial of information. However, the appellant chose to file a first appeal restricted to the non-answer of the CPIO with the FAA, DoIPP on 07.05.2021. It is important to note here that the appellant waited for more than 12 days to get the information or even a response with the decision of the CPIO on acceptance/rejection of "life and liberty". Several emails were sent to the CPIOs concerned and none of them were answered. The appellant cannot be expected to magically know that the CPIO is on medical leave, unless informed.
Therefore, after all bonafide attempts were made to seek a decision and a response to the RTI, the appellant was left with no choice but to file a first appeal restricted to the non-answer of the CPIO in the matter. Even after filing the first appeal, the FAA Mr. Anil Agarwal chose to not respond to the appeal or even the several e-mails of the appellant. Had the FAA informed the factual scenario of the situation, the appellant would have been more than understanding and waited for the CPIO to respond. But however, no such response was forthcoming from the CPIOs and the FAA.
He further submitted that as per the interim reply of the CPIO on 05.06.2021, the CPIO informed this appellant that he was unwell and infected with COVID and just received the RTI and will answer shortly. The appellant had no intention to file a first appeal, which also technically could not be filed, and had acknowledged the interim reply of the CPIO accepting his response that he will be furnishing the information and was requested to expedite the response. Further, RTIs from Ministry of Health were being mindlessly transferred to public authorities which were not concerned with the subject matter of the RTI and two complaint cases are currently pending before the Bench of CIC Y K Sinha against the Nodal Officer, MoHFW. Such frequent transfers and multiplicity of RTIs, caused confusion and this inadvertent filing of second first appeal.
He pleaded that he had no intention to file a first appeal for the second time when his first appeal was already pending since 07.05.2021. And even though the same was filed inadvertently, the same cannot be claimed to be a reason 4 for dismissal of this second appeal as the second first appeal was not maintainable in the first place and any applicant, as per the statutory rules, would have had to follow the second appeal / complaint route after filing of a first appeal, which this appellant had filed in May, 2021. The same statutory rules were followed and the appellant filed the present second appeal. However, the appellant submits that the second first appeal that was inadvertently filed is not maintainable before the FAA, DoIPP, if the Commission so holds.
Therefore, only the first appeal dated 07.05.2021 is relevant to the present case. The present second appeal ought not to be dismissed as all the statutory rules were followed and the fault lies with the FAA, DoIPP and the CPIO for not having replied to several emails and the RTI and First Appeal. However, the inadvertent filing of second appeal is regretted. The larger public interest in the present matter ought to be kept in mind for this case.
Furthermore, he submitted that the CPIO failed to explain or substantiate as to how if the information were disclosed, it can cause harm to the interest as claimed by invoking the clause.
He pointed out that if entities from the private sector were roped in for the discussions of this Committee, the same would amount to discharging a public duty. It was and is the responsibility of this Committee to manage so many essential duties focal to the fight against coronavirus, including supply of medical oxygen. The functions and duties of the Committee has to serve the larger public interest and not any private interests. The functions, decisions, and how such decisions were reached, need to be provided to the nation and the officers in this Committee are responsible for such accountability to the people of this country. By refusing to disclose anything, the CPIO is trying to evade accountability and answerability to the public, and under the RTI Act, this is grossly improper.
He also contended that invoking a blanket exemption on all the points of the RTI application is not justified. He further submitted that no economic, scientific and strategic interests of India would be harmed if the public finds out the work done till date by the Committee on purchasing and maintaining adequate supply of PPE kits, RT-PCR kits, N-95 masks, gloves and liquid medical 5 oxygen. He further refuted the CPIO's claim that the deliberations contain details of "technologies, strategies and processes to be adopted" and stated that such parts can be severed u/s 10 of the RTI Act and whatever portions are redacted while giving the information should be informed to the applicant.
He specifically challenged the invoking of Sec 8(1)(d) and informed the Commission that he is not interested to know about any commercial strategy and Sec 10 may be applied and information which are redacted should be informed. Challenging the applicability of Sec 8(1)(i) of the RTI Act he submitted that the "highest decision making body" is currently the NEGVAC, under which this sub-committee was constituted. The NEGVAC is not the cabinet nor is privy to any cabinet papers. He also stressed on the fact that the information sought for is of the past, all the decisions have been taken and those specific matters are over.
He challenged that applicability of the decision of the Delhi High Court relied upon by the CPIO and submitted that the facts of the cases are wholly different. He quoted para 15 of the same judgment where the court held as follows:
"15. However, on examining these case laws, it is clear that the factual scenario which were under consideration in these matters, were wholly different from the circumstances in the present matter. Even the slightest difference in the facts could render the ratio of a particular case otiose when applied to a different matter."
He also pointed out that the CPIO had relied on the decision of S.P Gupta and mentioned that even back in 1981, the Hon'ble Supreme Court gave way to disclosure of information, even if secret and privilege, if the public interest demands so. And therefore, this Commission is requested to keep this in mind while dealing with this case.
To buttress his argument relating to larger public interest he submitted that the second wave of pandemic was the deadliest, several people died and the Government of India could not manage the situation as well as it was expected to. The Government of India herein, also includes the sub-committee relevant to this case. As a result of this mismanagement, several High Courts across the 6 country and the Supreme Court had to step in to fix the broken system and alleviate the suffering of the masses.
He submitted that suo motu cognizance is invoked only when the larger public interest so demands. He further submitted that this case also needs to be seen in that context of larger public interest. Larger public interest has been established by all the High Courts and even the Supreme Court of this country. The same is indisputable.
He further relied on the decision dated 08.05.2021, of the Hon'ble SC in the matter of Union of India vs Rakesh Malhotra & Anr SLP (Civil) Diary No(s). 11622/2021, whereby constituted a National Task Force to formulate a methodology for scientific allocation of medical oxygen to States and UTs. The Court constituted the task force after noting deficiencies in the Centre's formula for oxygen allocation, which is based on hospital-beds in a State. The Court had earlier flagged that this formula required a re-look as it did not take into account individuals who may not have secured hospital admission, but are in need of oxygen support. One of the "Terms of Reference of the National Task Force" was to -
-Assess and make recommendations for the entire country based on the need for, availability and distribution of medical oxygen.
-Formulate and devise the methodology for the allocation of medical oxygen to the States and UTs on a scientific, rational and equitable basis.
-Make recommendations on augmenting the available supplies of oxygen based on present and projected demands likely during the pandemic.
-Review and suggest measures necessary for ensuring the availability of essential drugs and medicines.
The appellant requested for relief, by directing disclosure of information within 10 days. He also requested to direct severance of records u/s 10 of the RTI Act wherever felt, provided mandatory reasoning for redaction along with broadly saying what has been redacted, so as to ensure no misuse of this provision, and provide all the records sought for. He also requested to direct the CPIO to follow procedure u/s 11 and seek opinion of all third parties concerned so as to ensure that information that third-parties are okay to provide is not suppressed. He also requested to finally issue an advisory to the DoPT u/s 25(5) for expediting the implementation of "life and liberty" mechanism on the 7 online portal, to avoid the situation and confusion as was seen in the present case.
The CPIO submitted that the appellant had filed the RTI application on 24.04.2021 invoking Sec 7(1) that requires a CPIO to disclose information within 48 hours of receipt of the application if the information sought concerns life or liberty of a person. The application was transferred r from the CPIO, Ministry of Health and Family Welfare vide OM dated 03.05.2021 which was received on 06.05.2021 u/s 6(3) of the RTI Act. He further pointed out that without awaiting the response of CPIO, the appellant filed a premature first appeal on 07.05.2021. He further submitted that the appellant on 01.06.2021 made a representation by the way of an e-mail addressing the respondent quoting a violation of RTI Act as no response has been provided to him within 30 days. Vide e-mail dated 05.06.2021 an interim response was provided to the appellant, informing that the answering respondent has recently joined work after being infected with COVID-19 illness and was on leave of absence for the previous month on medical grounds and that in case the appellant's RTI application is alive, the same shall be replied to as per the specified procedure under law.
He further contended that on 08.06.2021, he preferred to file a first appeal before the FAA through online RTI portal under registration number DOIPP/A/E/21/00044 on the ground of not receiving a response from the CPIO. This fact has been apparently concealed by the appellant in his appeal before the Commission.
Furthermore, he submitted that on 11.06.2021, upon examination of the issues raised under the RTI application, a response dated 11.06.2021 was provided to the applicant, whereby the appellant was informed that the information sought could not be disclosed as the same is exempted from being disclosed as per Sec 8(1)(a) and (d) of the RTI Act.
During the course of pendency of the appellant's first appeal dated 08.06.2021, he has again prematurely preferred a second appeal before the CIC. As per Sec 19(3) of the RTI Act, as second appeal before the CIC shall lie only against the decision of the first appeal made under Sec 19 and the same shall lie within ninety days from the date on which the decision should have 8 been made or was received. Due to this reason itself, the instant second appeal cannot lie before the CIC, is presently inadmissible and is liable to be dismissed at this stage.
The CPIO further submitted that he was infected with COVID-19 and, was undergoing medical treatment during the period of 28th April 2021 to 20th May 2021, and thus was on leave of absence on medical grounds. Even after joining back work, the respondent was incapable of attending work from office as was battling persisting post COVID symptoms. Therefore, the official work was managed online without physically reporting to office. The RTPCR COVID-19 positive report and other medical records of the respondent were annexed to substantiate his statement.
He pointed out that the pendency of the RTI application in question came to the notice of the answering respondent on 01.06.2021, after which an interim response was provided to appellant vide e-mail dated 05.06.2021 and the final response was provided vide letter dated 11.06.2021.
The appellant through his application 24th April 2021 has sought information pertaining to the functioning of the Empowered Group under the convenorship of Secretary DPIIT. As apprised earlier, this Empowered Group was tasked to ensure adequate supply of COVID 19 related medical equipment and essential items such as ventilators, personal protective equipment (PPE kits), RTPCR kits, N-95 masks and gloves, and subsequently with procurement and supply of liquid medical oxygen in India to mitigate the adverse impact of COVID-19 pandemic in the country. The Empowered Group was set-up by the Government of India to fast-track the decision making process for augmenting supply of essential medical equipment and other essential commodities and ensure rapid distribution across the country. During the first wave of COVID-19 the empowered group worked extensively with industry and Government organisations to scale up the production and distribution of these commodities. During the second wave, the Empowered Group while ensuring adequate availability of all other commodities, was primarily tasked to enhance the availability of liquid medical oxygen for treatment of those infected with COVID-19.
9In order to achieve the above objectives, the Empowered Group deliberated and engaged extensively with several organisations both domestic and foreign, as well as public and private entities, with the objective to augment the manufacturing and supplying of these medical equipment and commodities, including supply of liquid medical oxygen. In this time of extreme crisis with the objective of saving as many lives as possible, the empowered group set up to cut across the several arms of the Government, made sure that bureaucratic hassles did not impede the decision making process. Thereby, the group brought together several government and private entities to work together. From time to time, the empowered group considered and deliberated on the proposals of these government and private entities, both domestic and foreign. These proposals and deliberations contain highly sensitive information regarding technologies, strategies and processes to be adopted, regarding the commercial and costing aspects of different industries and commodities. The public disclosure of this information could greatly impede the scientific, strategic and economic interests of the state. It is for this reason that the empowered group deliberations are sought to be exempted from disclosure of information under the RTI Act, 2005.
Furthermore, he submitted that the proposals considered by the empowered group contain commercial business, technological and strategical information pertaining to several government and private entities which qualifies as commercial confidence and/or intellectual property and the disclosure of the same would impair and irreparably harm the competitive position of such government and private entities constituting third parties. Thus, such information has been exempted from being disclosed u/s 8(1)(d) of the RTI Act. In addition to the above, he drew attention of the Commission to the provisions of Sec 8(1)(i) which provides that records of deliberations of Secretaries and other officers which form part of cabinet discussions are also exempted from disclosure provided they are part of any of the exemption conditions provided u/s 8(1)(i) of the RTI Act. These high level discussions of the empowered group frequently form part of the discussions within the highest decision making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.
10Observations:
At the outset, the Commission noted that the maintainability of this second appeal is in question and is challenged by the CPIO stating that the same does not fall under the ambit of Sec 7(1) of the RTI Act and was therefore not required to be replied to within 48 hours of the receipt of RTI application. The Commission finds it pertinent to mention here that life and personal liberty are the most valuable possessions of an individual. The value for life, liberty and property is not merely a norm or a policy of the State but an essential prerequisite of any civilised society.
Reliance is drawn to the decision of the previous bench of this Commission in the matter of Vekatesh Nayak vs Department Of Defence dated 24 July, 2019 wherein it was held as under:
"Commission remarked at this instance that the instant RTI Application has been filed on the grounds that it concerns life and liberty of a person, however, it is not clear from the facts on record as to how life and liberty of a third party Lt. Col. Dharamvir Singh concerns the Appellant.
Appellant urged that as per the provisions of RTI Act, he is not required to explain his locus standi for seeking the information.
Commission clarified that it is not the locus standi vis-a-vis the RTI Act that is being questioned but locus standi of the Appellant vis-à-vis the life and liberty of Lt. Col. Dharamvir Singh. In other words, Commission inquired if the affected person or his wife who allegedly filed the FIR reached out to the Appellant to pursue their case or if the Appellant is aware of what prevented the affected party or his wife from seeking this information.
Appellant admitted that he is not pursuing the case on behalf of the affected party but received a copy of the averred FIR from a human rights activist located in Imphal. He further stated that nonetheless, he would like to put on record his additional submissions to rebut the objections raised by the Commission regarding his locus-standi.11
It may be noted that since every case involving the life and liberty of an individual will not invariably concern human rights violation, the considerations advanced by the Appellant to contest locus standi on the claim of human rights violation of the said officer is deemed as extraneous in the instant case.
Further with respect to the import of life & liberty, Commission observes that the reliance placed by the Appellant on the division bench decision of the File No : CIC/MODEF/A/2018/150559/SD Commission in the matter of Shekhar Singh, Aruna Roy & Ors. vs. Prime Minister's office, Appeal No. CIC/WB/C/2006/00066 is far stretched. The fact that the division bench did not consider the question of locus standi while deciding the procedural requirement for seeking information under the proviso to Section 7(1) of RTI Act cannot lead to the conclusion that the bench has settled the law that locus standi has no role to play while adjudging a RTI Application filed by a citizen under the said proviso who has prima-facie no relation to the individual whose life and liberty is said to be at stake.
Now, to put the observations of this bench into perspective, reference shall be had of a decision of a coordinate bench of the Commission in the matter of Pratap Kumar Jena vs. PIO, Central Institute of Psychiatry, Ranchi in Appeal No. CIC/SG/A/2012/000814 on the aspect of life and liberty as under:
"Proviso of Section 7(1) states that where the information sought concerns the life or liberty of a person, the same shall be provided within forty- eight hours of the receipt of the request. This provision has to be applied only in exceptional cases and the norm is that information should be provided within thirty days from the receiving date. Whether the information sought concerns the life or liberty of a person has to be carefully scrutinized and only in a very limited number of cases this ground can be relied upon. The government machinery is not designed in a way that responses to all RTI Applications can be given within forty- eight hours. A broad interpretation of 'life or liberty' would 12 result in a substantial diversion of manpower and resources towards replying to RTI Applications which would be unjustified. Parliament has made a very special exception for cases involving 'life or liberty' so that it would be used only when an imminent threat to life or liberty is involved.
Similarly, on the question of who can invoke the life and liberty clause, we may refer to a decision of the J & K State Information Commission for persuasive value in the matter of Dr. Raja Muzaffar Bhat/ Dr. Mushtaq Ahmad vs. PIO, G.B Pant Hospital, Srinagar dated 01.12.2015, wherein the following was held:
"5. Similarly, there was a question, whether information sought for the life and liberty of a person has to be by the same person whose life or liberty is at stake. The nature of the situations for these two eventualities and situations makes seeking of information directly by the affected persons very difficult and at times impossible. If a person is unauthorizedly incarcerated, he may not be in a position to use his right of seeking information. Similarly, if a patient is admitted in the hospital and is not in a position to invoke his right personally, any close member of his family or any other person who has bonafied interest in the preservation and maintenance of life and liberty of that person can invoke the right to information which may ultimately ensure safety of the life and liberty of any person. Therefore, if after establishing genuine interest in preserving life and liberty of a person, the information can be sought by any other person who is otherwise qualified to seek information under J&K RTI Act, 2009."
Adverting to the aforesaid ratios, it is made adequately clear that Commission has not questioned the locus standi of the Appellant in seeking information under RTI Act but his locus standi when he seeks to invoke life and liberty clause of RTI Act with respect to another individual, as the said clause mandates provision of information within 48 hours.
13For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.
As rightly observed by the coordinate bench in Pratap Kumar Jena's case (supra) - "If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven." In other words, if an applicant seeks information pertaining to incarceration of a person or medical incapacitation of a person without any bonafide interest in the preservation and maintenance of life and liberty of such person, rather for purposes such as research, academic discourses or for that matter such information is accessed by journalists in the capacity of being citizens for the purpose of reporting and sensationalism, would it be prudent to insist on getting the information within 48 hours from the CPIO? Allowing such a proposition i.e tending to the proviso to Section 7(1) of RTI Act without any consideration of locus standi or outcome of disclosure will absolve the legislative intent behind inserting a proviso which carves a supplemental right to information within 48 hours of filing a RTI Application."
It is emphasized therefore that assessing the locus standi of a citizen who invokes life and liberty proviso of Section 7(1) of RTI Act to seek information regarding another individual who has prima-facie no relation to the information seeker is imperative to secure a balance between right to information and use of resources of the public authorities in attending to such RTI Applications within 48 hours. Even so, the RTI Act or specifically the proviso to Section 7(1) of RTI Act does not qualify the phrase life and liberty of a person with an inclusive or exclusive parameter, a purposive construction of the same is necessitated in cases such as the instant one. The following obiter dicta of the Hon'ble Supreme Court in the matter of Central Board of Secondary Education (CBSE) & Anr. vs. Aditya Bandhopadhyay and Ors. [(2011) 8 SCC 497] finds relevance here:
"34......The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive 14 construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act."
Further, the previous bench of the Commission, in Mr. Satish Kumar Gupta v. PIO & AR, University of Delhi in its decision in CIC/SG/A/2009/001781/4807 dated 15/09/2009, observed as follows:
"Proviso of Section 7(1) states that 'where the information sought concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.' This provision has to be applied only in exceptional cases and the norm is that information should be provided within thirty days from the receiving date. Whether the information sought concerns the life or liberty of a person has to be carefully scrutinized and only in a very limited number of cases this ground can be relied upon. The government machinery is not designed in a way that responses to all RTI Applications can be given within forty- eight hours. A broad interpretation of 'life or liberty' would result in a substantial diversion of manpower and resources towards replying to RTI Applications which would be unjustified. Parliament has made a very special exception for cases involving 'life or liberty' so that it would be used only when an imminent threat to life or liberty is involved.
In the matter of Sehar Singh and Ors vs. PMO while dealing with the query of "when is the question of life and liberty to be considered a matter of concern?" laid down the following parameters:
"-The RTI application be accompanied with substantive evidence that a threat to life exists (eg. Medical report).
-If, the claim of concern for life and liberty is not accepted in a particular case by the public authority, the reasons for not doing so, must be given in writing while disposing of the application."
In view of the above decisions of the Commission, the bench came to the conclusion that the Parliament has made a very special exception for cases involving 'life or liberty of a person' so that it would be used only when an imminent threat to life or liberty is involved. The appellant referring the matter as being related to public at large, and not 'a person' as specified in Sec. 7(1) proviso and in the interest of preventing the damage caused by pandemic is 15 not sufficient to invoke this particular clause of 48 hours reply timeline, when apparently, the Appellant has failed to substantiate as to how information sought in the instant RTI Application has a bearing on his life and liberty or of any other person.. Further, he also failed to quote any particular instance in which any individual related to him was affected due to non disclosure of the information. Therefore, the life and liberty of whom the appellant is pleading for is non-existent. However, undoubtedly it is a matter of great public interest. This bench is taking full cognizance of the plea that the information sought relates to public interest as the same is related to the COVID 19 pandemic vis-a-vis the arrangement of adequate availability of medical oxygen in the wake of Covid-19 pandemic. The matter itself is unprecedented and therefore, the appellant's plea that disclosure of information would have helped in holding discussions with Government is far stretched. To comment on the fact that as to whether there were enough steps taken by the authority or not in ensuring supply of medical oxygen is outside the jurisdiction of this bench. The appellant had pointed out that the Hon'ble Supreme Court had taken suo moto cognizance and had on 08.05.2021, in the matter of Union of India vs Rakesh Malhotra & Anr SLP (Civil) Diary No(s). 11622/2021, constituted a National task Force to formulate methodology for scientific allocation of medical oxygen to States and UTs. The Court constituted the task force after noting deficiencies in the Centre's formula for oxygen allocation, which is based on hospital-beds in a state. The Court had earlier flagged that this formula required a re-look as it did not take into account individuals who may not have secured hospital admission, but are in need of oxygen support. However, the Commission cannot go beyond its jurisdiction having limited power under the RTI Act. The power of the Commission is to ensure that the information sought is disseminated in time to the applicant.
However, now that the matter of life and liberty is rejected therefore, the CPIO's reply is treated as on time. The delay in reply however, seems to be due to the reason of the CPIO's ill health, as the CPIO failed to reject the RTI application with reasons for not considering the same under "life and liberty"
clause. This indeed was an error on the part of the CPIO or his representative in his absence, who ought to have informed the appellant of the rejection of the 48 hour time limit for reply immediately, as laid down in Sec 7(1) . Whetever he is pleading has to be done in writing before the first appeal or 16 second appeal. Be that as it may, as the RTI Act provides for the following in Section 7:
"(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request."
For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.The Commission could not find any relation nor as a matter of fact, any justification of concerns of life and liberty of any person and therefore, there is no question of applicability of the proviso of Sec 7(1). However, as the second appeal was already filed and a hearing was granted, the bench within its discretion is not inclined to dismiss this appeal in limine and rather decided to take up the case on its merits and in larger public interest.
The CPIO vide letter dated 11.06.2021 had provided a cursory reply claiming exemption u/s 8(1)(a) and (d) and had failed to amplify the same with reasons. The fact of the reply being timely is justified but the denial was not justified in his reply. Further, he also failed to record his reasons for rejecting the applicant's request to consider the same under the clause of "life and liberty". The CPIO is therefore cautioned to be careful in future and ensure that he follows the provisions of the RTI Act implicitly. Further, the plea of Sec 8(1)(i) during the hearing appears to be an afterthought which seems far fetched also. As far as denial u/s 8(1)(a) is concerned the same was also not justified. Considering the provision of Sec 8(1)(d) exemption, the Commission found it relevant to examine the information sought closely, and found that the list of exact dates on which the said Committee has met till date, the certified copies 17 of detailed agenda of all the meetings, the certified copies of presentations made before the group and detailed information about each of them, the copies of the Minutes of each meeting held and put before the Committee for consideration, list of names and designations of the members currently in the group, amount spent, current stock of oxygen and the roll out plan was asked. It is relevant to mention here that the information sought being denied in a blanket manner was not at all justified. The CPIO should therefore, revisit all the points in the RTI application and after applying Sec 10 of the RTI Act as suggested by the applicant himself during the hearing , provide maximum information as discloseable in the letter and spirit of the RTI Act. Any exemption from sharing information on any point should clearly indicate the particular clause of the RTI Act and be duly justified.
Furthermore, he submitted that the proposals considered by the empowered group contain commercial business, technological and strategical information pertaining to several government and private entities which qualifies as commercial confidence and/or intellectual property and the disclosure of the same would impair and irreparably harm the competitive position of such government and private entities constituting third parties. Thus, such information has been exempted from being disclosed u/s 8(1)(d) of the RTI Act. In addition to the above, he drew attention of the Commission to the provisions of Sec 8(1)(i) which provides that records of deliberations of Secretaries and other officers which form part of cabinet discussions are also exempted from disclosure provided they are part of any of the exemption conditions provided u/s 8(1)(i) of the RTI Act. These high level discussions of the empowered group frequently form part of the discussions within the highest decision making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.
Decision:
In view of the detailed submissions of both parties and the comments/observations thereon, the CPIO is directed to provide a suitable point-wise reply to the appellant within 10 days from the date of receipt of this order with a copy to the Commission. Further, any point if denied completely 18 should be suitably justified with application of the relevant clause. The CPIO shall be careful in future while rejecting the plea of "life and liberty" and provide a reply with reasons within the time frame to avoid multiple appeals. The present case was heard on priority basis in view of the Madras High Court judgment in a case of the same applicant and keeping in view larger public interest and the same should not be treated as a precedent for those applicants who file second appeals after rejection of their plea of "life and liberty".
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
19