Central Information Commission
Ms.Vatsala Kak vs Ministry Of Communications And ... on 26 April, 2013
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No.CIC/BS/A/2012/000083/2330
Date of hearings-08 March 2013
08 April 2013
25 April 2013
Date of Decision-26 April 2013
Relevant Facts emerging from the Appeal
Appellant : Ms. Vatsala Kak
3/28, East Patel Nagar,
New Delhi-110008
Respondent : CPIO & Director (AS-I)
M/o Communication and IT
Department of Telecommunications
(Access Services-I Section)
1203, Sanchar Bhawan, Ashoka Road,
New Delhi
RTI application filed on : 20/10/2011
PIO replied on : 14/11/2011
First appeal filed on : 13/12/2011
First Appellate Authority order : 12/01/2012
Second Appeal received on : 14/02/2012
Information sought:
The appellant had sought copy of the entire files bearing no. 20-231/2003-BS.III, File no. 20- 231/2003-BS.III/Pt. and File no.20-225/04-GenlMts/Dishnet/BS.III from the department of Telecommunication falling under Ministry of Communication and IT. She had also sought a copy of office circular dated 16-06-2005 wherein Secretary(T) has directed that all spectrum related files should be put before him for clearance and three letters dated 04-04-2005, 03-05-2005 and 01- 06-2005 written by Mr. C. Sivasankaran to Department of Telecommunication.
Apart from the above mentioned files she had also sought a copy of entire files in relation to the following:-
a. Grant of UAS License to Dishnet Wireless Ltd. for UP(E) & UP(W). b. Grant of UAS License to Dishnet Wireless Ltd. for Madhya Pradesh. c. Grant of UAS License to Dishnet Wireless Ltd. for Kerala.
d. Grant of UAS License to Dishnet Wireless Ltd. for Punjab.
e. Grant of UAS License to Dishnet Wireless Ltd. for Haryana. f. Grant of UAS License to Dishnet Wireless Ltd. for Kolkata. g. Grant of UAS License to Dishnet Wireless Ltd. for Karnataka. h. Grant of UAS License to Dishnet Wireless Ltd. for Maharashtra.Page 1 of 8
i. Grant of UAS License to Dishnet Wireless Ltd. for Mumbai.
j. Grant of UAS License to Dishnet Wireless Ltd. for Rajasthan. k. Grant of UAS License to Dishnet Wireless Ltd. for Gujarat. l. Grant of UAS License to Dishnet Wireless Ltd. for Andhra Pradesh. m. Grant of UAS License to Dishnet Wireless Ltd. for Delhi.
Grounds for the Second Appeal:
The PIO while informing that the matter under investigation/examination by CBI & JPC has denied the information under Section 8(1)(h) of the RTI Act. The appellant claims that mere existence of an investigation cannot be a ground for refusal of information. The CPIO ought to have shown satisfactory reasons as to why the release of such information sought by the appellant should hamper the investigation process. Such reasons should be relevant and the opinion of the process of investigation being hampered should be reasonable and based on some evidence.
Relevant Facts emerging during the hearing held on 08/03/2013: The following were present Appellant: Mr. Chandra Pratap Sharma appellant's representative M: 9555739451 Respondent: Mr. Paramjeet Chadha CPIO's representative M: 9013134443 The CPIO's representative stated that the information requested by the appellant relates to the grant of UAS licenses and all the relevant file/records are with the JPC (Joint Parliament Committee) and the CBI and hence, the information sought is exempt from disclosure under Section 8(1)(c)&(h) of the RTI Act. He also cited the Commission's earlier decision in appeal no. CIC/LS/A/2011/003529 dated 20/03/2011 (Mr. Rajeev Chandrasekhar V/s DoT) to canvass his case.
The appellant's representative handed over a written request dated 08/03/2013 by the appellant seeking an adjournment due to personal difficulty.
Interim Decision notice dated 08/03/2013:
In view of the foregoing it is decided to grant adjournment and also invite written submissions, if any, from both the parties detailing their respective stands on the issue at hand so that full facts are brought on record. Accordingly, both parties should furnish their submissions, if any, to the Commission (endorsing a copy to each other) by 28/03/2013.
The hearing is adjourned for 08/04/2013 at 04.00 PM.
Relevant Facts emerging during Hearing on 08/04/2013:
The following were present Appellant: Ms. Vatsala Kak, Mob 9958761614 Respondent: Mr. Paramjeet Chadha CPIO's representative M: 9013134443 The appellant stated that she has just received a copy of the written submission dated 02/04/2013 of the respondent and has noted that the annexures are missing. The CPIO's representative stated that the annexures, inter-alia, contains details of all files given to the JPC and he will provide copy(s) of the annexures which are relevant to the appellant's own RTI application including copy(s) of annexure VII & VIII. He further stated that all the relevant files relating to Dishnet Wireless Ltd. sought by the appellant are under examination by the CBI and also by the JPC, hence, the information sought is exempt from disclosure under Section 8(1)
(h)&(c) of the RTI Act.Page 2 of 8
The appellant requested that since she has received the respondent's written submissions just before the hearing she needs some time to study the papers and furnish her response in the matter specifically, on the applicability of Section 8(1)(c) of RTI Act.
Interim Decision notice:
As requested by the appellant it is decided to grant an adjournment to enable her to furnish written submissions as above in the matter.
The hearing is adjourned for 25/04/2013 at 02.30 PM.
Relevant Facts emerging during Hearing on 25/04/2013:
The following were present Appellant: Ms. Vatsala Kak, Mob 9958761614 & Mr. Sumesh Dhawan appellant's representative Respondent: Mr. Paramjeet Chadha CPIO's representative M: 9013134443 The appellant's representative submitted that the OM dated 22/11/2011 issued by the JPC Cell; Lok Sabha Sectt is a mere clarification and the option to the CPIO to disclose the information is still open. The OM only states the provision of law in so far it relates to the rules and procedure of Parliament and also to Section 8(1)(c) of the RTI Act. It is not an order which prohibits or bars the disclosure of information and after quoting the relevant provisions has left the discretion to the CPIO as to what information he can disclose.
The appellant's representative further submitted that Justice Patil Committee was provided access to all the records for the period 2001 to 2009 and its report along with all the annexures are in public domain, however, at that time also investigations of CBI was going on. He requested that access to those parts of the annexures which are not in public domain and are related to grant of UAS licence to Dishnet Wireless Ltd may be provided.
The CPIO's representative stated that the information sought by the appellant is contained in two specific files and the entire files have been provided to the CBI/JPC. He further stated that the OM dated 22/11/2011 specifically clarifies the position with respect to the request for information on 2G spectrum related matters by the RTI applicants from the department wherein, inter-alia, it has been clearly stated that "As such, keeping in view the provision of the said section of RTI Act and the rules and directions governing the proceedings of the Committee, the information, the disclosure of which would cause a breach of privilege, can be declined." He fully relies on the above OM not to disclose the information sought as it would cause breach of privilege of the Parliament and the matter has already been decided in the department's favour in several previous orders of the Commission. He added that he relies on the Commission's earlier decision(s) in appeal no. CIC/LS/A/2011/003529 dated 20/03/2011 (Mr. Rajeev Chandrasekhar V/s DoT) & CIC/LS/A/2012/000646/BS dated 07/02/2013 (Mr. Sahil Sharma Advocate vs. DoT) The appellant contended that the issue regarding the nature of OM has not been decided in any previous order as in those orders it has been assumed that the OM is an order whereas the OM is only a clarification and not an order.
Decision Notice announced on 26/04/2013:
The Commission heard this matter on 8th March, 8th April and 25th April, 2013.Page 3 of 8
The appellant has filed a written representation dated 18.4.2013 to canvass her case, operative part whereof is reproduced below:-
"1. The reference to Lok Sabha Secretariat Office Memorandum dated 22.11.2011 is misplaced as the same is only a clarification and not an order. Even otherwise the clarification only states the information the disclosure of which would cause a breach of privilege can be declined." Therefore, there is discretion with the CPIO to decide which information, if divulged, would amount to breach of privilege, as the word used is 'can' and not 'shall'.
2. Assuming there is bar by JPC, it still has to be seen if the information sought by the Appellant has been exclusively provided to JPC.
3. In above scenario, applicability of proviso to Section 8 has to be seen before it can be seen that the information would fall within the ambit of section 8(1)(c).
4. In this regard it is stated that much before the JPC was constituted in early 2011, the Government of India had appointed Justice Shivaraj V. Patil, former Judge, Supreme Court of India (One Man Committee) by Office Memorandum dated 13.10.2010 to look into anomalies in the issuance of Licenses and allotment of spectrum during the period 2001-2009.
5. The One Man Committee had submitted its report on 31.01.2011 and there after the JPC was constituted.
6. It would also be relevant to note that the One Man Committee while submitting its report has annexed hundreds of documents from DOT records, which it obtained from DOT. The said report is in public domain and is matter of record.
7. It is important to note that CBI had registered an FIR way back on 21.10.2009 and inspite of the FIR having been registered, the One Man Committee was provided with All the DoT files from the year 2001-2009.
8. Since the One Man Committee has already annexed documents along with the report from the year 2001 onwards and the same are in public domain at best only the information pertaining to the year 1998-2001 can be denied.
9. In view of the above facts, it is amply clear that the defense of matter pending before JPC and CBI is not tenable. Alternatively inspection of the records can be provided."
In addition, it has been argued on behalf of the appellant that Office Memorandum dated 22.11.2011, issued by the JPC Cell, Lok Sabha Secretariat, is a mere clarification and not a mandate and that option to disclose information is still open to the CPIO. The Office Memorandum only states the provision of law in so far as it relates to the rules and procedures of the Parliament as also section 8(1)(c) of the RTI Act but it is not an order which prohibits or bars disclosure of information. It has further been contended on behalf of the appellant that Justice Patil Committee was provided access to all the records for the period 2001 to 2009 and its report along with all the annexures is in public domain. He, therefore, pleads for access to Page 4 of 8 those parts of the annexures which are not in public domain and are related to grant of UAS licenses to Dishnet Wireless Ltd.
On the other hand, Shri Paramjit Chadha has contended that information sought by the appellant is contained in two specific files and the entire files have been provided to the CBI/JPC. It is also his contention that Office Memorandum of 22.11.2011 specifically clarifies the position with respect to the request for information regarding 2G Spectrum related matter by the RTI applicants and, inter alia, states as follows :-
"As such keeping in view the provision of the said section of RTI Act and the rules and directions governing the proceedings of the Committee, the information, the disclosure of which would cause a breach of privilege can be declined."
It is Shri Chadha's forceful contention that disclosure of requested information would be in violation of the aforesaid Office Memorandum and would cause breach of privilege of Parliament.
Shri Chadha has also relied on this Commission's decision dated 20.3.2011 in Rajiv Chandershekhar -Vs- DoT (File No. CIC/LS/A/2011/003529). According to Shri Chadha, the above decision of the Commission is binding on this Bench.
In this context, it may be pertinent to extract clauses (c) & (h) of section 8(1) of the RTI ACT:-
"(c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders."
It is no doubt true that disclosure of information is the rule and non-disclosure an exception under the RTI Act but it would be pertinent to mention that this Act has two sets of provisions. While on the one hand, one set of provisions i.e. sections 3, 4, 6 & 7 provide for release of information, on the other hand, another set of provisions i.e. sections 8, 9, 10 & 11 forbid release of information in certain circumstances. It is not necessary for me to deal with the prohibitory provisions of the Act in extensor. In this context, I now proceed to examine whether clause (h) and/or clause (c) of section 8(1) of the Act is attracted in the present case.
It has been vehemently contended on behalf of the appellant that existence of investigation by itself is not a sufficient cause for denial of information. It is, in fact, the impediment to the process of investigation which can be the legitimate cause for denial of information. She has also contended that the CPIO and the Appellate Authority have not passed speaking orders demonstrating therein how release of requested information would impede the process of investigation. Coming to the applicability of clause (c), it is her contention that the Office Memorandum of 22.11.2011 is clarificatory in nature; it is not mandatory. This Memorandum leaves option open with the CPIO to disclose the information. This is based on her interpretation of the last line of para 03 of the Memorandum in-question wherein the word 'can' and not 'shall' has been used for denial of information.
Page 5 of 8On the other hand, it is the contention of Shri Chadha that the requested documents have been handed over to CBI/JPC and both these agencies are carrying out their 'investigations' thereby attracting clause (h). Besides, he has relied on Memorandum dated 22.11.2011 issued by the JPC (TLS Cell) of the Lok Sabha Secretariat which, according to him, prohibits disclosure of information in terms of clause (c). In other words, according to Shri Chadha, both clause (h) and clause (c) of section 8(1) are attracted in the present case.
The Joint Parliamentary Committee (TLS Cell) of the Lok Sabha Secretariat has issued an Office Memorandum dated 22.11.2011 which reads as follows:-
"The undersigned is directed to refer to the OM dated 14 November, 2011 of the Ministry of Communications & Information Technology (Department of Telecommunications) wherein the Ministry have sought clarification that whether the papers/documents as sought by the applicant may be considered secret/confidential as per the parliament procedure or can the same be disclosed to the applicant/put in the public domain.
2. In this connection, it may be mentioned that proceedings of the Parliamentary Committees are governed by the Rules of Procedure and the Directions by the Speaker. Under the provisions of the relevant Rules and Directions, proceedings of the Parliamentary Committees are treated as confidential. Under Rule 275(2) evidence report and proceedings of the Committees are treated as confidential and no part of the evidence, oral or written, report or proceeding of a Committee which has not been laid on the table shall be open to inspection by anyone except under the authority of the Speaker.
3. In this regard, attention may be drawn to the provisions of Section 8 of the RTI Act, 2005 which exempts certain public authorities from disclosure of certain categories of information. As far as parliament is concerned, under clause (c) of sub-section (1), there shall be no obligation to give any citizen information, disclosure of which would cause a breach of privilege of Parliament. As such, keeping in view the provisions of the said section of RTI Act and the rules and directions governing the proceedings of the Committees, Information, the disclosure of which would cause a breach of privilege can be declined.
4. The Ministry of Communications & Information Technology (Department of Telecommunications) may kindly see for information and necessary action. The receipt of the OM may kindly be acknowledged."
In this context, it may be pertinent to mention that Shri R.K. Soni(AS-I)(CPIO) has filed a written representation dated 2.4.2013 before the Commission wherein he has contended that as per Office Memorandum dated 22.11.2011 disclosure of requested information would cause a breach of privilege of the Parliament and, therefore, clause (c) of section 8(1) is attracted. In addition, he has relied on this Commission's decision dated 20.3.2012 in Rajeev Chandershekhar
-Vs- DoT (File No. CIC/LS/A/2011/003529) wherein in a similar matter, the Commission had held that in view of the Office Memorandum dated 22.11.2011 adverted to above, the requested information was barred from disclosure under section 8(1)(c) of the RTI Act. Para 04 of his representation is extracted below:-
Page 6 of 8"4. In this regard, it is submitted that this Department has already made available copy of the relevant files/documents to JPC (Annexure-IV) apart from CBI(Annexure-V & VI) and the information sought also falls under this category:-
(a) The Lok Sabha Sectt. Vide OM No. 1/1/JPC(TLC)/2011 dated 22.11.2011 (Annexure VII) has inter-alia informed that under Rule 275(2), the evidence are treated as confidential till the report of the Committee is laid in the Parliament. Drawing the attention to the Section 8(1)(c) of the RTI Act, 2005, the Lok Sabha Sectt. has also stated that disclosure of the information which would cause a breach of privilege can be declined.
(b) CIC vide order dated 20.3.2012(Annexure-VIII) (in another appeal of the said applicant before CIC in order No.CIC/LS/A/2011/003529) had inter-alia concluded that since the 2G spectrum matter is reported to be pending before the JPC, disclosure of any information in regard thereto would amount of a breach of the privilege of Parliament. In view of the clear direction of the JPC, it is held that the requested information is barred from disclosure u/s 8(1)(c) of the RTI Act. Recent CIC order dated 07.02.2013 issued in another appeal vide File No. CIC/LS/A/2012/000646/BS/1854 had held "as the relevant records are before the JPC the information sought is exempt under Section 8(1)(c) of the RTI Act. Having already held that the information is exempt as aforesaid we do not deem it necessary to form an opinion at this juncture on the applicability of the Section 8(1)(h) of the RTI Act(Annexure-IX).
(c) Therefore, now the information sought is also exempted under Section 8(1)(c)."
It bears repetition that in Rajeev Chandrasekhar case, a coordinate Bench of this Commission has upheld the contention of the DoT that in the light of Office Memorandum dated 22.11.2011, information relating to 2G scam could be declined under section 8(1)(c). Para 04 of this decision is extracted below:-
"4. As regards the submission of Adv. Anand that the public authority cannot raise a new plea in the appellant proceedings by way of seeking exemption under 8(1)(c) of the RTI Act, suffice it to say that he has not specified any statutory provision in this regard. It needs to be underlined that the Lok Sabha Sectt. has clearly mandated in the Office Memorandum dated 22nd November, 2011, that section 8(1)(c) is applicable on the information sought regarding 2G Spectrum. Clause (c) of section 8(1) is extracted below :-
"(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature"
As the 2G Spectrum matter is reported to be pending before the Joint Parliamentary Committee, disclosure of any information in regard thereto would amount of a breach of the privilege of Parliament. In view of the clear directions of the Joint Parliament Committee, it is held that the requested information is barred from disclosure u/s 8(1)
(c) of the RTI Act. After holding so, I need not dwell on the issue of the applicability of section 8(1)(h)."
Page 7 of 8In my opinion, the ratio of the above decision squarely applies in the present case. It bears repetition that as per the submissions of Shri Chadha, the relevant records have been handed over to the CBI/JPC for their investigation/enquiry. Besides, as per the Office Memorandum dated 22.11.2011 extracted herein-above, section 8(1)(c) is invokable. This finds corroboration from the recent Supreme Court Division Bench judgment dated 13/12/2012 in Civil Appeal No. 9052 of 2012 Bihar Public Service Commission Vs. Saiyed Hussain Abbas Rizwi & Anr. observing as under:-
"Section 8 attempts to provide exemptions and once the language of the Section is unambiguous and squarely deals with every situation, there is no occasion for the Court to frustrate the very object of the Section. It will amount to misconstruing the provisions of the Act."
Therefore, I do not see any merit in the submissions made by the appellant. In my opinion, the reliance placed by the CPIO on the Office Memorandum in-question for non-disclosure of information when the JPC is seized of the matter as per the parliamentary practices cannot be faulted. I may also add that the proceedings of the Patil Committee are not relevant in the matter. In sum, in my opinion, section 8(1)(c) is attracted in the present case.
The appeal is disposed of accordingly.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
(In any correspondence on this decision, mention the complete decision number.) (RM) BASANT SETH Information Commissioner Page 8 of 8