Central Information Commission
Shri Suhas Chakma vs Ministry Of External Affairs on 1 December, 2009
Central Information Commission
CIC/AD/A/2009/000778
Dated 1 December, 2009
Name of the Applicant : Shri Suhas Chakma
Name of the Public Authority : Ministry of External Affairs
Background
1. The Applicant filed an RTI application dated 06.02.2009 with the CPIO/ Jt. Secretary, MEA seeking information pertaining to commission rogatoire - a set of questionnaires sent by Mr. Marc Tappolet, Juge d'instructiion, Geneva Canton, Switzerland to be asked by Indian Judiciary on his behalf pertaining to the criminal investigation (N P/14993/2006) being conducted by Judge Tappolet against one Mr. Ravi Nair. Precisely the Applicant sought the following information:
1. Confirmation whether the Ministry of External Affairs (MEA) received commission rogatoire from Judge Tappolet;
2. Copy of the commission rogatoire, and
3. Action taken on the commission rogatoire
2. The CPIO/Under Secretary (CPV - RTI) replied on 09.03.2009, upon receipt of the RTI application on 12.02.2009 on transfer from the O/o Jt. Secretary. The CPIO/Under Secretary denied information to the Appellant, seeking exemption under Section 8 (1) (a) and 8(1) (f) of the RTI Act 2005.
3. Dissatisfied with the reply, the Applicant filed an appeal on 17.03.2009 with the Appellate Authority reiterating his request for the information. The Appellant further submitted that Juge d'instruction, Geneva Canton, Switzerland, Mr. Marc Tappolet is conducting a criminal investigation against one Mr. Ravi Nair (an Indian national), following complaint filed by the International Association - South Asia Human Rights Documentation Centre, Geneva, Switzerland. The Appellant further pointed out that Judge Tappolet had sent the set of questionnaires - commission rogatoire to be asked by Indian Judiciary on Judge Tappolet's behalf since Mr. Nair had refused to appear before Judge Tappolet. The said questionnaire was sent through diplomatic channels of the Swiss Foreign Ministry through Indian Embassy in Berne sometime during 2007 or 2008. The Appellant has further submitted that even if the set of questionnaire in itself is to be considered exempt under provisions of Section 8 (1) (a) and 8 (1) (f) RTI Act 2005, being confidential in nature; the questions number (1) and (3) asked by the Appellant needed only a response in affirmative or negative. In his detailed submissions contending that the order of the CPIO was bad in law, the Appellant has elaborately argued as to how the provisions of Section 8 (1) (a) and 8 (1) (f) of the RTI Act 2005 are completely inapplicable to the instant case.
4. The Appellate Authority replied on 28.04.09 upholding the decision of the CPIO and rejecting the appeal since she found that the queries of the Appellant were tainted by the Appellant's motive - to settle his problems with one Mr. Ravi Nair. The Appellate Authority/JS (CPV) further added that while examining the matter the CPIO had stated that the information as sought by the Appellant, apart from being exempt under Section 8 (1)
(a) and (f) was also personal information and hence should not be disclosed even under provisions of Section 8 (1) (j) of the RTI Act 2005. Thus completely denying that any public interest was involved in the Appellant's query and holding that the information was sought only for the personal use to appease some vested interest of the Appellant, the Appellate Authority rejected the Appeal. Being aggrieved with the reply, the Appellant was compelled to seek redressal before the CIC by filing the Second Appeal dt. 04.06.09 before the CIC, reiterating and recapitulating the entire chronology of events leading thereto.
5. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for August 20, 2009.
6. Shri P. Roychaudhuri, Advocate represented the Public Authority.
7. The Applicant was present in person alongwith Sh. Prantap Kalra, Advocate during the hearing.
Decision
8. The Appellant vide subsequent submissions dated 20.08.2009 further contended that the stashing of Indian Funds in Swiss Banks is adverse to public interest. He further stated that the Hon'ble Supreme Court had admitted a Petition filed by the former Law Minister Mr. Ram Jethmalani and five others including former Punjab DGP Mr. K P S Gill alleging that the Government of India was not taking appropriate action in this regard. It has also been contended that necessary and adequate information was not being supplied to the Swiss Government and substantiated his argument with clippings of press reports indicating that documents submitted by the Government in 2007, in connection with yet another accused, one Mr. Hasan Ali Khan, were forged. The Appellant has furthermore elaborated on the non applicability of the exemptions provided under Section 8(1) of the RTI Act 2005 in this case as also stating that the exemptions under Section 8 (1) are not absolute by citing various decisions of the CIC passed on this issue from time to time. Each of the decisions quoted by the Appellant indicate that the exemptions under Section 8(1) in itself do not attain absoluteness and have to be weighed against the provisions of Section 8 (2) of the RTI Act 2005 in order to determine whether "larger public interest" outweighs the need to exempt the information from disclosure. It is also the case of the Appellant that the Public Authority has failed to demonstrate as to how the disclosure of the information would be prejudicial to national security or sovereignty and integrity, and has simply quoted the section without explaining the same.
9. On the other hand, the Appellant has clearly established in his arguments and submissions that the public interest outweighs personal interests and also the arguments and exemptions as sought by the CPIO by stating more than one reason. One of the foremost reasons cited by the Appellant for seeking the information against Mr. Ravi Nair, who happened to be a co founder with the Appellant of the organization SAHRDC, was that Mr. Nair had evaded taxes to the tune of 40% by receiving foreign grants which neither he nor the organization viz. SAHRDC was entitled to receive under the Foreign Contribution Regulation Act 1976. This irregularity, as alleged by the Appellant, has been stated in the order of the Swiss Court as acknowledged in the order of the Tribunal de Premiere Instance of Geneva Canton, Switzerland. The non appearance of Mr. Nair, despite repeated summons, before the Swiss Court to explain the source of funds transferred to the account of IA-SAHRDC, in the criminal case instituted against him for his involvement in many criminal activities apart from money laundering, led to the sending of the set of questionnaire by the Swiss Court and Judge Tappolet to India seeking assistance from the Indian Government. The Appellant concluded this part of his submissions stating that "...public interest to bring back public money outweighs the exemptions claimed by the public authorities....and does not harm the sovereignty of India.....rather refusal to take action against an accused is harming the relations". The inaction on the part of the Indian authorities has now made the Swiss Judge to contemplate a visit to India to interrogate Mr. Nair because of the failure of the Indian authorities to address the set of questionnaires, as per the Appellant. The Appellant has enlisted the various contracts signed by the said Mr. Nair and SAHRDC with donors in New Delhi, receiving the money/grants in Switzerland in order to avoid taxes and the provisions of FCRA, alongwith the supporting Bank Statements indicating the malafide of the parties to the transaction and the illegality of the transaction per se. The Appellant concluded his submissions reiterating that the rogatoire, information whereof is sought by him and public interest regarding stashing of Indian money in Swiss Banks, tax evasion, money laundering and violation of provisions of FCRA are directly connected as clearly enunciated in the foregoing submissions alongwith the various documentary evidences. It is also submitted by the Appellant that had the rogatoire been such a confidential document, he would not have possessed any knowledge thereof. Assuming though not admitting that the said rogatoire was a confidential document, the questions as asked by the Appellant at points 1. and 3. could not be exempted from disclosure since the point 3 pertained to "Action Taken Report" by the Government of India for which exemptions under neither Section 8 (1) (a) nor Section 8 (1) (f) could be sought.
10. After the detailed contentions of the Appellant, the Respondent's representative sought time to address each of the issues and arguments by filing his submission in reply. In the interest of justice, and since the issue involved was critical in nature, the Commission granted a month's time to the Respondent to file his reply. However, when no reply was received till 20th September 2009 from the Public Authority, the Public Authority was contacted and it transpired that they sought grant of additional time to submit their response, which was granted by the Commission.
11. When despite grant of adequate opportunities and repeated reminders, no submission was received from the Public Authority, the Commission was constrained to proceed with the decision in the matter based on the records available on record. It is already a known fact that the issue of stashing away of Indian money in the form of black money in the Swiss Banks has assumed national importance in the recent times. The press reports and extensive media coverage, the statements by the various leaders in this regard has made the issue an unavoidable matter of concern for the authorities concerned as also for the public. While deciding the matter, the Commission came across various reports which indicate that the money stashed away in foreign banks in their illegal personal accounts may be to the tune of hundreds of thousands of Dollars.
12. Considering that the Indian Government is itself trying to propagate a transparent disclosure of information and also in view of the fact that the issue at hand is not merely the concern of an individual but one which involves national interest there can be no doubt that public interest is paramount in this case. More so in the facts and circumstances of the case there can be no doubt that the Swiss Courts are seeking cooperation from their Indian counterparts in nailing the wrongdoers. The Commission, therefore, is unable to accept or agree with the contention of the Public Authority that disclosure of the information can in any way adversely affect the national sovereignty, security or integrity because national interest demands that all available information in this regard be disclosed and the perpetrators of such offences be traced and appropriate action be taken against them. No harm can befall in sharing information of this nature which involves the interest of the public at large, more so when the Appellant herein is already a party (witness) in the criminal investigation pending at the Swiss Courts. In fact non disclosure and/or inaction on the part of the authorities concerned will be seen in a poor light not only at the national but also at the international level in as much as it will be almost be assumed to be an attempt to shield the guilty. Hence, it is the considered opinion of the Commission that complete information as sought by the Appellant being of paramount public interest must be shared and disclosed forthwith. The Commission accordingly directs the CPIO to provide the information as sought by the Appellant by 25th December 2009. The Appeal is disposed off on the above terms.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Asst. Registrar CC:
1. Shri Suhas Chakma C-3/441-C Janakpuri New Delhi-110058
2. The Public Information Officer Ministry of External Affairs CPV Division Patiala House Annexe Tilak Marg New Delhi
3. The Appellate Authority Ministry of External Affairs CPV Division Patiala House Annexe Tilak Marg New Delhi
4. Officer incharge, NIC
5. Press E Group, CIC