Central Information Commission
Shri Girish Chandra Mishra & Ors vs Ms Sonia Gandhi Mp, Shri Rahul Gandhi Mp, ... on 10 December, 2009
CENTRAL INFORMATION COMMISSION
Complaint No.CIC/WB/A/2009/00107 dated 7.2.2008 & CIC/WB/C/2008/00042
Right to Information Act 2005 - Section 18
Complainants - Shri Girish Chandra Mishra, Kanpur
Dr. Awadesh Mishra, Sultanpuri
Shri Sartaj Ahmed, New Delhi
Shri Radhey Shyam s/o Shri Ishwar Deen, Banda
Respondents - Ms Sonia Gandhi MP
Shri Rahul Gandhi MP
Shri Sahib Singh, MLA, Delhi
Smt Sunita Sharma, Municipal Councilor, Delhi
Decision Announced 10.12.'09
Facts:
We have received five complaints as follows:
1. Shri Sartaj Ahmed of Yamuna Vihar applied to Smt. Savita Sharma, Municipal Councilor on 12.10.2007 seeking information on development works and lighting arrangements in her constituency, but received no response. His complaint before is as follows :
"You are requested to kindly order for supply of information by the Municipal Councilor by using your Constitutional Power, so that powers vested in Right to Information Act and Constitution could be maintained."
2. Dr Awadesh Mishra made an application to Shri Rahul Gandhi, M.P., Amethi on 9.4.2007 seeking information on recommendations made by the M.P.or his representatives to Ministries/Departments recommending assistance to NGOs. On not receiving a response he approached the Speaker, Lok Sabha on 7.6.'07 pleading that a direction is given to the MP to comply with the provisions of the RTI Act 2005, to which he received a reply from Deputy Secretary Lok Sabha Secretariat on 21.6.'07 stating that the Lok Sabha Secretariat did not hold the information sought and implying that an MP was not a public authority. Dr Mishra's complaint before us is as follows:
"You are requested to kindly arrange to get the information from Shri Rahul Gandhi, MP from Amethi under the Right to Information Act 2005."
3. Shri Girish Chandra Mishra, Advocate from Kidwai Nagar, Kanpur made an application to Ms. Sonia Gandhi, MP, Chair, UPA on 20.8.07 seeking an 1 appointment, but received no response. His complaint of 11.1.08 before us is as follows:
"Sir, under the law for Public Welfare, kindly direct/order Smt. Sonia Gandhi to supply the desired information, which will be a kind act."
4. Shri Radhey Shyam s/o Ishwar Deen of Village Uttarhat, Distt. Banda made an application to Smt. Sonia Gandhi, MP on 16.10.07 seeking the following information :
"If my requests for information are illegal or non maintainable or I have no right to make such appeal, then matter ends in the hands of Ms. Archana on 16.10.2007. Sir, I am a small worker, neither I demand a post, nor respect, or Donation or grant. My all requests are in the interest of public. I don't want to go to Media. I just want to eradicate corruption."
In this case Shri Radhey Shyam 's complaint before us is as below:
"Sir, it is requested that Ms. Sonia Gandhi may be called immediately and asked to provide information besides paying penalty @ Rs. 250/- per day for delay in supply."
5. In a request of 12.12.07 Shri Sartaj Ahmed of Yamuna Vihar Delhi sought the following information from Shri Saheb Singh Chouhan, MLA, Yamuna Vihar :
• How much has been received during last four years for jobs relating to development.
• In which area, what work has been carried out. • How much money has been spent on each job? • Which Agency/contractor has undertaken the job? His name and address be furnished.
• Under which Department, these jobs were carried out. • Details of concerned Officer/Engineer be intimated.
On not receiving a response, the complaint of Shri Sartaj Ahmed before us is as follows:
"Although a period of 2-1/2 months have passed, yet neither the MLA has furnished the information nor shown any reaction. It is therefore, prayed that by using your constitutional powers, the B.J.P's proud M.L.A. may be directed to provide me the requisite information. So that RTI Act may survive and such MLAs may form the habit to respect Constitution and furnish replies to the general public."2
The issue before us is whether the information sought by these applicants from public representatives, mentioned above, can qualify as information sought under the Right to Information Act, 2005, and if so, whether the persons to whom the information is addressed will qualify as public authorities. Because the issue is one, all complaints have been grouped as one.
The complaint was scheduled for hearing on admissibility on 18.7.2008 under File No CIC/Temp/2008/0001. Only complainant Dr. Awadesh Mishra is present. Although informed of the hearing by our notice of 06.06.'08. the other complainants have opted not to be present. Complainant Dr. Awadesh Mishra submitted that an MP being a public servant, elected and paid by the public, is a public authority. The definition of a public authority under the RTI Act is as follows:
Sec. 2(h) "public authority" means any authority or body1 or institution of self-government established or constituted--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;
It is the plea of complainant Dr. Awadesh Mishra that an MP is an authority constituted under the Constitution. The question before us then is whether an individual can constitute an authority in himself, which can then be defined as a Public Authority. Under Article 105 of the Constitution of India, the provision regarding MPs is as follows:
105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. -- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be 3 so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
106. Salaries and allowances of members. -- Members of either House of Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law and, until provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the Dominion of India.
An MP has therefore been conferred a specific authority by the Constitution, in return for which he receives remuneration from public funds. By an interim decision therefore, we decided to admit the complaints, as a single case assigned File No. CIC/WB/A/2009/00107, concluding that before we take a decision in this regard, it is important that the interested parties in the present complaints are given an opportunity to be heard as to whether they can be so considered. Since the Lok Sabha Secretariat has already taken the stand by implication that an MP is not a public authority as defined u/s 2 (h) of the RTI Act, 2005 the CPIO Lok Sabha Secretariat will appear before us on 15.9.2008 at 4.00 pm. In addition, a public notice will be issued for the attention of all elected representatives of Parliament or the GNCT Assembly who may personally, or through a representative duly authorised, wish to appear before us on the same date and time.
The matter was then heard on 15.9.2008. In this case, a Public Notice had been given asking all interested parties, persons and organization to file verified written submissions so as to reach this Commission on or before 4 30.8.2008. A copy of this notice was served on the Secretary General, Lok Sabha Secretariat; Secretary General, Rajya Sabha Secretariat; Secretary, Delhi Vidhan Sabha and the appellants. The Commission also requested Shri Goolam E. Vahanvati, Solicitor General of India, to send a representative to assist the Commission on the day of hearing. Shri Prashant Bhushan, Advocate, Supreme Court of India, was also requested to appear and assist the Commission.
The Lok Sabha Secretariat was also requested to circulate a copy of the Notice to all the Members of Parliament, but the Lok Sabha Secretariat declined to do so under Direction 125 of the Directions of the Speaker, Lok Sabha.
On the day of hearing, Shri Prashant Bhushan, Advocate, Supreme Court, appeared before us. The Commission also requested Registrar of this Commission Shri L. C. Singhi to make submissions and to assist the Commission. The matter was accordingly heard. Submissions were made by Shri Prashant Bhushan and by the Registrar. During the course of hearing, it was submitted that the question was as to whether an elected representative, which includes a Member of Parliament, a Member of the Legislative Assembly and a Municipal Councilor, would also include an elected representative at the Gram Panchayat Level to be "public authorities" within the meaning of Section 2 (h) of the RTI Act.
It was submitted that an elected representative does not have an organized office and, as such, he/she does not have any mechanism either to receive RTI applications or to receive RTI fee. The elected representative would have nobody who could be notified either as PIO or First Appellate Authority by him. It was submitted that the RTI Act intended to make only such functionaries "public authorities", which have an organized office and an established hierarchy of officers.
It was decided that the matter should be further examined and heard and the Commission should also invite jurists and legal luminaries to assist in arriving at a decision. It was also decided that a Public Notice would also be 5 given requesting public/ organizations in general to submit duly verified written submissions concerning the above aspects. Consequently a public notice was issued and a D.O. letter addressed to following:
Shri Goolam E. Vahanvati, Solicitor General of India, 28A, Canning Lane, Kasturba Gandhi Marg, New Delhi-110001 Hon'ble Mr. Justice V. R. Krishna Iyer, Former Judge, Supreme Court of India, "Satgamaya", Mahatma Gandhi Road, Ernakulam, Cochin-682001.
Kerala.
Hon'ble Mr. Justice P. N. Bhagwati, Former Chief Justice of India, S-296, Greater Kailash Part-II, New Delhi.
Hon'ble Mr. Justice J. S. Verma, Former Chief Justice of India, House No. 474, Sector 15A, Noida.
Hon'ble Mr. Justice P. B. Sawant, Former Judge, A-6 Paradise Towers, Opp. S-Mart (Sapphire Chambers), Baner Road, Pune-411045, Maharashtra.
Shri F. S. Nariman, F-21-22, Hauz Khas Enclave, New Delhi.
Shri Soli J. Sorabjee, Former Attorney General for India, A-128, Neeti Bagh, New Delhi-110049 Shri L. Nageswara Rao Senior Advocate, 304, Sector 15-A, Nodia-201301.
Shri Prashant Bhushan, 6 301, New Lawyers Chamber, Bhagwan Das Road, Supreme Court, New Delhi-110001.
Shri Shanti Bhushan, C-67, Sector 14, NOIDA.
Shri K. K. Mittal, 41C, Pocket C, MIG Flats, Ashok Vihar Phase III, New Delhi-110052.
Prof. K. K. Nigam, Legal Advisor, Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi-110066.
Shri Mohan Parasaran, Additional Solicitor General of India, Supreme Court, R-20, Greater Kailash Part-I, New Delhi- 110 148.
Shri V. T. Gopalan, Additional Solicitor General, "Ammu Niwas", 14, Bharathi Nagar, 1st Street, T. Nagar, Chennai-600 017.
Shri P. P Malhotra, Additional Solicitor General, 21, Uday Park, New Delhi-110 049 Shri R. B. Raghuvanshi, Additional Solicitor General of India, Room No. 12, 1st Floor, Bombay High Court Extension Building, Flora Fountain, Mumbai- 400 032.
Shri Gopal Subramanium, Additional Solicitor General of India, B-5/7, Safdarjung Enclave, Africa Avenue, New Delhi-110 029.7
Dr. Ashok Nigam, Additional Solicitor General of India, 4/35, Vishal Khand, Gomti Nagar, Lucknow-226 010.
We have received written submissions from Shri P.B. Sawant, former Judge, Supreme Court of India, Shri Nageshwara Rao, Senior Advocate. On the other hand, whereas we had received regrets from some legal Experts addressed by us, there are others who have offered to give their advice given further time.
Shri K. K. Mittal, Advocate appeared before us in the hearing on 5.12.2008. The views received from Justice Sawant and Shri Nageswara Rao were read out in brief. Shri Mittal also submitted a copy of his own opinion on the subject dated 24.11.08, which has been brought on record. To allow for the purpose of availing of the advice offered, this hearing was then adjourned to 20.2.2009.
In the meantime a further appeal was received, which was registered as complaint No. CIC/WB/C/2008/00042. In this matter we received a note from Information Commissioner Shri Shailesh Gandhi of 1st January, 2009 stating that "I believe that the same question of law is pending before your honour in some other matter. It would be appropriate if both the matters could be clubbed and heard together since the question of Law involved is identical."
In this case by an application of 19-10-07 Shri Sartaj Ahmed of Yamuna Vihar, Delhi already a complainant in the appeals pending before us, had applied to Smt. Savita Sharma, Councillor, Subhash Mohalla Ward No. 257, Delhi-53 seeking the following information:
"Concerning Development works:
i) How much fund has been granted to you for the Ward during the year 2007-08;
ii) How much fund has been spent till now on development of area;
iii) Which work has been got completed in which Gali and Mohalla, please give detail;8
iv) Which agency or contractor has done the work, please give detail;
v) Under which Circle/officer's supervision the work was undertaken, please give detail;
vi) How many works have been completed and how many are remaining, please give detail;
Concerning street/High Mast light
i) How many street and high mast lights are there in Ward No. 257;
ii) How many street and high mast lights are defective in Ward No. 257;
iii) How many electricians/supervisors are deputed for setting right the street and high mast lights;
iv) What is the schedule for maintenance of street and high mast lights;
v) Is it the duty of public to make a complaint for defective light or the responsibility of Department to see it.
vi) After making the complaint in how many days it should be rectified;
vii) There are many street and high mast lights which have not be rectified for months together even after making complaints. Whether company pays the compensation.
viii) Whether you have made any recommendation to the Government for stopping the payment of erring company due to their negligence."
In this case the complaint was that no response had been received. Shri Sartaj Ahmed has also moved an application before Shri Sahib Singh Chauhan, MLA, Yamuna Vihar on 12-10-07 seeking the following information:
i) How much fund has been sanctioned for the development for last four years;
ii) What work has been done in which area;
iii) How much money is spent on which work;
iv) Which agency/contractor has done the work, give details of
name and address;
v) Under the supervision of which Department the work was
undertaken;
vi) Give the detail of concerned officer/engineer."
To this too he had not received a response, thus leading him to make complaint before us which has been clubbed with the earlier complaint in file No. 0042. Accordingly it was decided to constitute a Bench consisting of Chief Information Commissioner and Information Commissioner Shri Shailesh Gandhi to hear the cases de novo in Division Bench. Accordingly, 9 the hearing was held after several adjournments on 5th October, 2009 when the following were present:
Appellants Shri Bindeshwar Sah, Advocate.
Dr. Awadesh Mishra.
Shri Bindeshwar Sah has also submitted his arguments in writing, pleading as follows:
"It is admitted fact that all the MPs and MLAs are public servants defined u/s 21 description 12(a) of the Indian Penal Code 1860 and leading Judgment of A.R. Antule (Reported as AIR 1984 SC 718 - matter of Public Interest) is to be taken into account.
Another leading judgment M.P. Bribery Case P.V.Narsimha Rao vs. State (CBI etc. reported as AIR 1998 SC 2120 very well holds in note B at page 2122 that in the light of Article 84, 99, 101, 173 & 190, a Member of Parliament holds an office and is required to perform public duties, thereby he is a public servant (Prevention of Corruption Act (44 to 1988) Sec. 2(c)(viii). Note G of the judgment at page 2125 states that "Office" means a position to which certain duties are attached esp. a place of trust, authority or service under the Constituted authority (per Agrawal J), PARAS 65, 66, 67, 70 & 90 of the judgment relevant.
Authority - means - A legal body invested with some power. A body of persons who are not recognized by law as a legal entity cannot be considered to be am authority within the meaning of the word in the Constitution of India. Badri Prasad vs. President, District Board AIR 1952 All 681.
Authority Means - a right, an official or judicial command, as a legal power to Do or act given by one man to another, Wharton Law Lexicon. It may be express or implied.
An authority of an agent may be express or implied - Indian Contract Act 1872 Sec. 186.
An authority is said to be express when it is given by words, spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case. Indian Contract Act 1872 Sec. 187.
Public Authority - A public authority is a body not necessarily a country council, municipal Corporation or the local body authority, which has public or statutory duties to perform; and which performs those duties and carries out its transactions for 10 the benefit of the public and not for the private profit. Such an authority is not precluded from making a profit for the public benefit; but commercial undertakings acting for profit and trading corporations making profits for their corporate are not public authorities even if conducting undertakings of public utility. - Halsbury's laws of England 3rd Ed. Vol. 30 Pg. 682.
Public policy - Public policy is a variable thing. It must fluctuate with the circumstances of the time. May be Benson & Co. Ltd. vs. Krainische Industries Gesells Chaft (1918) 1-KB 331.
Public Policy is a principle law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good which may be termed as it sometimes has been the policy of the law or public policy in relation to the administration of the law. - Egarton vs. Brown Tow (1853) & HL Case 1.
Apart from the constitutional provisions - various provisions of the Representation of the People Act 1950 and also 1951 and its rules are binding upon the MPs and MLAs before election and after election and there is also model code of conduct during election process to be observed restrict and Right to Information is apparent a various Courts whereby and whereunder public can have access to information permissible thereunder."
Learned counsel Shri Bindeshwar Saha has then gone on to argue as below:
"The other relevant point is An MP and an MLA are equipped with residential premises in the capital city as well as provided with various electronic means of communication, personal assistance and body guards, driver of the vehicle and other facilities on the State.
The MP and MLA are ex-officio member of so many bodies, organizations, committees wherein policy decision as well as supervisory work is done for public purpose and their work is very important in these regards.
For the development of the local area of an MP, MP Local area development fund similarly MLA Local Area Development fund are provided from the consolidated funds of India which is totally a matter of policy and decision as well as supervision."
In another submission dated 2-9-09 Shri Bindeshwar Saha has sought to remind this Commission of its responsibilities under the Act in accordance with Constitution of India. In this matter he has sought to argue the wider 11 definition of the concept of State and has sought to establish with illustrations as follows:
"Further I humbly submit that all the political parties registered u/s 29 of the R. P. Act 1951 are also other authorities of Article 12 of the Constitution of India 1950.
The purpose of the definition of State under the Article 12 of the Constitute finding place in part III of the fundamental right chapter to protect/ enforce fundamental right of citizens from being vitiated pertained by the state action by way of writ in Hon'ble Court.
Article 12 reads as 'Definition- In this part, unless the context otherwise required, 'the state' includes the government and Parliament of India and the government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India.' That the definition of 'State' is not confined to a government Department and the legislature but extends to any action Administrative (Whether statutory or non- statutory), judicial or quasi-judicial, which can be brought within the fold of 'state action' being action which vitiated dates a fundamental right. Under mentioned decisions are very much relevant for kind consideration.
i. Ramana v/s International Airport Authority of AIR 1979 SC 1628, 1638 paragraphs 14-16.
ii. Gulam v/ State of U. P. AIR 1981SC2198 Para 23. iii. State of Punjab v/s Raja Ram AIR 1981SC1694 Para 5. iv. Som Prakash V/s UOI AIR 1981SC212 Para 34, 37 even a private body may be 'State' Mahabir Auto Stores v/s Indian Oil Corporation (1990) 3 SCC 952.
That judicial decisions have given a wide scope to the expression 'other authorities' in Article 12. The main theory evolved is that of 'instrumentality or agency of Government. This is a concept wider than a 'department of the government'. It embraces every public authority exercising statutory powers, every authority created under the statute and even a non- statutory body (authority) exercising public functioning."
He then goes on to assert that political parties are in themselves public authorities, and therefore, political parties having control over their members in their activities which include MPs, MLAs, MLCs and others become answerable as such under the RTI Act. He submitted that because the Election Commission of India has power to de-register political parties, 12 political parties can be stated to be under the control of the ECI. He has then concluded as follows:
(23) That M. P. (both Homes of Parliament), MLA and MLC owe their existence to the Constitution of India. (24) That the test laid down by Hon'ble Courts to determine an entity as authority within the inclusive meaning of State in Article 12 of the Constitution of India also apply to the present context.
(25) That even in RTI Act, 2005 the officer superior in ranks to the CPIO/ SPIO has been conferred with the power of the 1st Appellate Authority under the Act, although the officer superior in the part and parcel of the public authority and having no independent existence.
(26) That in democratic country like course, it is prevalent in the Constitutional provisions that appointments are made by selection as well as Selection. Even there is appointment by promotion and nomination as well as on the compassionate ground. Even there is provision of appointment by indirect election (by representative) and on recommendation as well as on the basis of extra ordinary merit."
He has quoted from the ruling of the apex court in P.V. Narasimha Rao Vs. State (CBI, SPE) & Ors. AIR 1998 SC 2120 as under:
"We are of the view that Members of Parliament is an 'office' in as much as it is a position carrying certain responsibilities which are of a public character and it has an existence. It must therefore, be held that the Member of Parliament holds an 'office.' Further having discussions in Para 66, 67, 68, 69 held in Para 70 that we are, therefore, of the view that Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A member of Parliament would, therefore, fall within the ambit of sub clause (viii) of clause (c ) of section 2 of the prevention of Corruption Act 1988."
Learned counsel Shri Bindeshwar Saha has gone on to cite the decision in Para 95 (ii) of this ruling in which an MP has been held to be a public servant u/s 2 (c ) of the Prevention of Corruption Act 1988. Finally Shri Bindeshwar Saha has concluded his argument as follows:
"65. That maintainability of RTI request application is the main issue to be decided in the present context and the sought for information whether concerned within the right to Information or not is not a big issue RTI talks of reform 13 and it is also fundamental duty of citizen to work for reform and right to information is a democratic right and also participatory right in democracy. The public authority comes in the direct contact of the citizens and right to information also includes right to give suggestion/ recommend to the public authority as well as to give information to the public authority as the preamble of the Act talks of transparency and accountability towards the public in functioning and these things could not be achieved in unilateral way of providing of information by public authority.
For example, in case of implementation of the concerned law and decision of the Hon'ble Court and query may be raised for enforcement/ compliance with the presentation of the same with the public authority. As it is not presumed that the public authority could be in possession of concerned law and decision of the Hon'ble Court."
Shri Bindeshwar Saha has also quoted from the Supreme Court Ruling in Indian National Congress Vs. Institute of Social Welfare & Ors. (2002) 5 SCC 685 in which Hon'ble Khare J. has held as follows in paragraph 21 (b):
"A judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial act."
The implication here is that if the body of which the individual is part empowers him, being a public servant, with certain authority the act done by that organisation is an act of the individual as constituted. Parliament being a public authority, which undoubtedly it is, as are the State Assembly, Municipal Council or Panchayats, therefore, would imply that each of its member is a public authority.
DECISION NOTICE Having considered the various arguments, submissions and comments received by us we would incline toward the view of Hon'ble P.B. Sawant, Former Judge, Supreme Court of India who in his opinion of 14-11-08 has held as follows:
14"The RTI Act 2005 does not extend to the individual representatives of the people, whether they are members of the parliament or of the local bodies. The accountability of all the public functionaries may not be ensured by the same means and methods. The manner of securing their accountability may differ depending on the nature and the character of the functions they discharge. At present the people's representatives are answerable to the collective demand or opinion of their constituents, whether expressed from time to time or at the time of the elections. Those who answer their constituents and satisfy a majority of them, may retain their seats in the respective bodies. Though it is a popular, and not a legal mandate, and not as satisfactory, it is the only safe guard of the people at present."
Shri L. Nageshwar Rao, Sr. Advocate has, in argument that would be supportive of the above, submitted as below:
"As is evident from a perusal of section 4 of the RTI Act, before the obligation under the said section can be imposed upon an entity it must fall within the definition of a public authority as defined under section 2 (h). Further, a perusal of section 2 (h) extracted hereinabove makes it clear that to constitute a 'pubic authority' within the meaning of the said section, the primary requirement is that the relevant entity must be one of the following:-
(i) an authority, or
(ii) body, or
(iii) institution of self-government
Elected representatives, whether they be Members of Parliament or Members of State Legislature or Members of Institutions of Local Self government such as Panchayats, etc., cannot obviously constitute a 'body' within the meaning of section 2 (h) of the RTI Act. The term 'body' is defined by Black's Law Dictionary (6th edition, 6th reprint 1995) as 'Used of a natural body, or of an artificial one created by law, as a corporation.' The same is defined in P. Ramanatha Aiyar's 'Advanced Law Lexicon' (3rd edition 2005) as 'a number of individuals spoken of collectively, usually associated for a common purpose, joined in a certain cause, or united by some common tie or occupation, as, a legislative body the body of the clergy a body corporate.' It is, therefore, evident that such elected representatives cannot individually constitute a 'body' for the purposes of section 2 (h) of the RTI Act, though the institutions of which they are members may be said to constitute such a 'body'. Furthermore, it is self-evident that elected representatives cannot constitute an 'institution of self- government' within the meaning of section 2 (h)" of the RTI Act, though in the case of elected representatives to Panchayats, 15 Municipal Corporations, etc they are members of such institutions of self government.
Therefore, the scope of examination to determine whether such elected representatives can be said to be public authorities so as to be subject to the obligations imposed by section 4 of the RTI Act necessarily requires a determination of whether they would constitute an 'authority' within the meaning of section 2
(h) of the said Act. The term 'authority' has not been defined in the said Act, however, the scope of the said term has been the subject of examination and determination by the Supreme Court in some cases pertaining to the scope of Article 12 of the Constitution of India. Thus, in Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors. (1967) 3 SCR 377 ( @ page 385), a Constitution Bench of the Supreme Court referred to the meaning of the word/ authority' as defined in Webster's Third New International Dictionary, and observed as under:-
"The meaning of the word 'authority' given in Webster's Third New International Dictionary which can be applicable, is 'a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue- producing public enterprise. This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions.' This definition of authority propounded in the Rajasthan State Electricity Board case was quoted and relied upon by Lahoti, J. (as the learned Chief Justice then was) in his dissenting judgment (on behalf of Raju, J. and himself) in Pradeep Kumar Biswas & Ors. V. Indian Institute of Chemical Biology & Ors. (2002) 5 SCC 111 (Para 74).
In Some Prakash Rekhi v. Union of India & Anr. (1981) 1 SCC 449 (Para 27), it was observed by Krishna Iyer, J. (Speaking for himself and Chinappa Reddy, J., with Pathak, J. delivering a separate but concurring judgment) As under:
"Authority in law belongs to the province of power:
'Authority (in administrative law) is a body having jurisdiction in certain matters of a pubic nature.' Therefore, the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons' must be present extra to make a person an 'authority'. When the person is 'an agent or instrument of the functions of the State' the power is public."16
The import of the term 'authority' has also attracted the attention of Calcutta High Court. In Calcutta State Transport Corporation v. CIT, (1977) 108 ITR 922 (Cal) (@ Para 38), a Division Bench of the said court, while dealing with the question of whether the Petitioner therein was 'local authority' within the meaning of section 10 (20) of the Income Tax Act, 1961 so as to be entitled to exemption there under, observed as under: -
"As indicated in Valjibhai Muljibhai Soneji v. State of Bombay (1964) 3 SCR 686, the assesses has first to be shown to be an 'authority' before it can claim to be a 'local authority'. As the General Clauses Act does not provide the definition of 'authority', were are left with the judicial decisions interpreting and construing this expression. In view of the law laid down by this court and the Supreme Court in the decisions considered earlier it does not appear to us that the assessees in the instant case satisfies the test and can be stated to be an 'authority' within the meaning of the expression as laid down in the above decisions. The assesses cannot be said to exercise quasi-governmental or governmental powers or perform governmental or quasi-governmental functions. No direction can be issued by the assesses which may be enforced with punishment. As such, the assesses cannot be said to be an 'authority'. The assesses also does not exercise any particular statutory power. There is no right vested in the assesses to command and be obeyed. The assesses also has no power to make regulations, rules or bye-laws having the force of law and the tests laid down in the case of West Bengal Small Industries Corporation (AIR 1967 Cal 231) are not satisfied."
Applying the test laid down by the Supreme Court in Som Pal Rekhi's case, viz., that there must exist the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations ,either of himself or of other persons' to make a person an 'authority', it would appear that an elected representative would not satisfy the tests laid down and would not constitute an 'authority'. This is so because an elected representative (be he a member of Parliament or Member of State Legislature or Member of Institutions of Local Self- government such as panchayats, etc.) has no power in his individual capacity to alter either his own or another person's rights, duties, liabilities or other legal relations though the isntituti8on of which he is a member may be so empowered. A fortiori, such an elected representative may not comprise an 'authority' as usually understood in law and therefore not be covered by the said expression as used in section 2 (h) of the RTI Act. In such an event, such an elected representative would not constitute a 'Pubic Authority' within the 17 meaning of the said section and therefore the obligations imposed by section 4 of the said Act upon 'Public Authorities' would not be applicable to such elected representatives."
In support of his arguments Shri L. Nageshwar Rao has cited the following from Venkatarama Aiyar, J. speaking for the Court in Tirath Singh vs. Bachittar Singh & Ors. (1955) 2 SCR 457 (page 464):
"But is a rule of interpretation well- established that where the language of a statute, in its ordinary meaning and grammatical construction, leads to as manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumable not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence."
Shri L. Nageshwar Rao has then made the following two points:
"(i) it is a well-known fact that most elected representatives and their offices function on the basis of political supporters and party workers and not of duly appointed officers or employees. There are also usually no well-
defined spheres of work, no fixed remuneration or budget, and no fixed hierarchy amongst such workers who are involved in the functioning of the office of an elected representative. Furthermore, even if such of those obligations as are incapable of performance by the very nature of an elected representatives' office were to be left out of consideration, even then other issues would remain such as that of appointment of the Public Relations Officers and First Appellate Authority by elected representatives.
(ii) A Member of Parliament (who would obviously be receiving maximum facilities and allocation in the hierarchy of elected representatives) receives, as per the Salary, Allowances and Pension of Members of Parliament Act, 1954 (as amended from time to time), a sum of Rs. 8500 towards office expenditure. Imposing an obligation of maintaining an establishment (which would be a necessary fallout of being held to be a 'Public Authority' and therefore being held liable to discharge the obligations imposed by section 4 (1) of the RTI Act would thus necessarily entail additional personal expenditure by elected representatives, which may not necessarily be made up by the statutorily prescribed fee that is required to be paid by information seekers."
Learned counsel Shri L. Nageshwar Rao then concludes his arguments as below:
18"It can, of course, be argued that the intention of the statute being to provide access to information to the individual citizen and thereby empower the citizens the same must be given the widest play and be made applicable to all possible entitles. Such approach, while not wholly incorrect, would be somewhat simplistic and one-dimensional inasmuch as it would not take into consideration all the possible consequences of the decision."
We have also examined the ruling of the Supreme Court of India in Civil Appeal No. 3003(NEC) of 1985 decided on 25-4-1985 in the case of Bhagwati Prasad Dixit Ghorewala Vs. Rajiv Gandhi in which learned Justices E.S. Venkataramiah and M.P. Thakkar have held as follows:
"In any event the membership of Parliament is not an office under the Government.1 So the fact that the Lok Sabha had not been dissolved on the date on which the election was held would not amount to a disqualification in the case of the respondent who was a member of the Lok Sabha for being a candidate at the next general election."
We have also examined the details of guidelines on Member of Parliament, Local Area Development Scheme (MP LADS). According to this each MP will recommend works up to the annual entitlement during the financial year preferably within 90 days of the commencement of the financial year in a prescribed format to the concerned District Authority. It is the District Authority that is expected to get the eligible sanctioned works executed as per the established procedure laid down by the State Government for implementation of such works subject to the provision in this Guidelines. Upon this further action would be taken as follows:
"3.12 On receipt of the recommendation from the MP, the District Authority should verify the eligibility and technical feasibility of each recommended work. All such eligible works should be sanctioned within 45 days from the date of receipt of recommendation. In case of delay due to genuine reasons ,a clarification for delay should be incorporated in the sanction letter. The same may be intimated to the MP and State/ UT Government. If a recommended work is not eligible or not feasible, the District Authority shall intimate the same with reasons to the MP concerned, the Government of India and State/ UT Government.1
Underlined by us for emphasis 19 3.14 Decision making powers in regard to technical, financial and administrative sanctions to be accorded under the Scheme, vest in the district level functionaries.2 To facilitate quick implementation of projects under this Scheme, full powers should be delegated by the State/ UT Government to the district functionaries. The District Authorities will have full powers to get the works technically approved and financial estimates prepared by the competent district functionaries before according the final administrative sanction and approval. The District Authority should, before sanctioning the work, ensure that all clearances for such works have been taken from the competent authorities and the work conforms to the Guidelines."
MP LADS, therefore, clearly does not place finance in the hands of MPs which would have rendered them public authorities as defined u/s 2 (h) sub sections (i) or (ii) as follows:
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,3 Under the circumstances, we must conclude that individuals whether MPs, MLAs, Councillors or members of Panchayats cannot in themselves be deemed public authorities. Nevertheless, the organisations and Committees in which they fulfil their obligations under the Constitution are indeed organisations defined as public authorities. Such information on activities as are performed by these named representatives as members of such organisations is, therefore, to be deemed accessible to the citizenry under the definition of "right to information" in Section 2 (j). It will, therefore, be necessary for such organisations to develop systems for making such information accessible. The simplest way of doing so is in our view is in the manner prescribed in Section 4 of the RTI Act itself. The Lok Sabha and Rajya Sabha, State Assembly of Delhi and Municipal Council of Delhi who are all parties to the present case are, therefore, directed under Section 19 (8) (a) to take such steps as are necessary to secure compliance with the provisions of this Act including providing access to information by full compliance with section 4 (1) (a), (b), (c) and (d). PIOs already stand appointed in these organisations but they will be required to review their practice in relation to 2 Emphasised by us 3 Underlined by us for specific reference 20 maintenance, management and destruction of records and enhancing provision of training on the Right to Information for their officials. Secretary General, Lok Sabha/ Rajya Sabha; Speaker, State Assembly of Delhi and Mayor, MCD will take action accordingly so as to ensure compliance within a period of six months from the date of receipt of this decision notice on the completion of which a compliance report will be sent to Secretary, Central Information Commission for perusal of the Commission.
Announced on this 10th day of December, 2009 in open chamber. Notice of this decision be given free of cost to the parties, including MPS, MLAs and Councillors mentioned by complainants.
(Wajahat Habibullah) (Shailesh Gandhi)
Chief Information Commissioner Information Commissioner
10-12-2009
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 Shreyaskar) Joint Registrar 10-12-2009 21