Central Information Commission
Venkatesh Nayak vs Bharat Electronics Ltd. on 31 August, 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/BELBL/A/2019/145677
In the matter of:
Venkatesh Nayak
... Appellant
VS
CPIO/Sr. DGM (HR)
Bharat Electronics Ltd.
Jalahalli Post, Bangalore - 560 013
...Respondent
RTI application filed on : 28/03/2019 CPIO replied on : 23/04/2019 First appeal filed on : 28/05/2019 First Appellate Authority order : 27/06/2019 Second Appeal filed on : 13/09/2019 Date of Hearing : 23/08/2021 Date of Decision : 31/08/2021 The following were present: Appellant: Present over phone
Respondent: Hema Ragavendra Rao, Senior DGM (HR) and CPIO, present over phone Information Sought:
The appellant has sought the following information w.r.t. ECI publication of August 2018 - Status Paper on EVM, Edition-3:
1. Copy of all reports of the Technical Evaluation Committees received since 1990 till date regarding EVMs and VVPATs, along with annexures, if any.
2. Copy of the report of the forensic examination of EVMs conducted by the Central Forensic Science Laboratory (CFSL) pursuant to the direction of the Bombay High Court in EP No. 15 of 2014 along with annexures, if any.1
3. The complete list of manufacturers of micro-controllers used in the latest generation (M3) EVMs along with their postal addresses.
4. List of names and designations of engineers who have developed the M3 EVM software.
5. List of names and designations of members of the independent testing group, which carried out testing and evaluation of the software of the M3 EVMs and VVPAT units.
6. And other related information.
Grounds for filing Second Appeal The CPIO did not provide the satisfactory information.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that his appeal pertains to points no. 1,4-9 and 13 of the RTI application which forms its basis because he is satisfied with the rest of the 5 points. He further submitted that he had sought copies of the reports Technical Evaluation/Expert Commitee (TEC) regarding Electronic Voting Machines and Voter Verified Paper Audit Trail (VVPAT) units since 1990 at point no. 1 of the RTI application. However, as he has obtained TEC Reports from 1990 to 2016 from the Election Commission of India, he is willing to narrow down the request to TEC reports available with the respondent public authority from 2017 onwards, till date.
He further submitted that a copy of one such TEC report was received from the ECI pertaining to another second appeal matter in file no. CIC/STAQC/A/2019/148958 on 28.07.2021. Therefore ,he firmly believes that the TEC reports prepared since 2017 if any are, in the nature of information that is fit to be disclosed under the RTI Act. Therefore the contention of the respondent public authority that the said information attracts Sec 8(1)(d) of the RTI Act deserves to be set aside.
He further submitted that the information sought at point no. 4 of the instant RTI application is in the nature of information that ought to be proactively disclosed in public domain for two reasons:
a) First, the Respondent public authority had submitted information about the person who was responsible for designing EVM to the office of the Patents Controller under the Patents Act, 1970 in 2001 while applying 2 for grant of the patent. He further submitted that the patent application submitted was for patenting EVMs which the respondent public authority, the TEC and the ECI have christened as M1 generation machines. The name of the said person who designed the said M1 generation EVMs is publicly disclosed in the patent application summary currently uploaded on the website of the Government of India at:
Https://ipindiaservices.gov.in/publicsearch/publicationsearch/patentdet ails A copy of the said patent application summary was attached with his submissions.
b) Similarly, the names of persons who designed the VVPAT units for which the respondent public authority's application for grant of patent is currently pending before the office of the Patents Controller, Chennai are also listed in the Patent office Journal No. 39/2019 dated 27.09.2019 at page no. 45231. A copy of the said patent application summary is displayed on the website of the Government of India at:
https://ipindia.gov.in/writeaddata/portal/IPOjournal/1 4791 1/part-
2.pdf A copy of the said patent application summary was attached with the submissions. This is the reason why this appellant has deliberately not included a reference to VVPATs in point no. 4 of the instant RTI application. Point no. 4 of the instant RTI application is limited to the name and designation of the designers of EVMs of M3 generation only.
c) He further pointed out that according to the ECI, the respondent public authority is supplying EVMs belonging to M3 generation to the ECI for use during the elections to parliament and state legislatures. A narrative of the journey made from the M1 generation to M3 generation of EVMs in India has been published by the ECI in its status paper on EVMs which is accessible on its website at https://eci.gov.in/files/file/12297-manual- on-electronic-voting-machine-and-vvpat/. However, the name and designation of the engineers who designed M3 generation of EVMs is not available in public domain. Therefore, there is no justifiable reason why information sought at point no. 4 of the instant RTI application, namely the names and designation of engineers who designed M3 generation of EVMs should be withheld under the RTI Act.
d) Second, the said information sought at point no. 4 of the instant RTI application is in the nature of information that ought to be disclosed by the respondent public authority suo motu under Sec 4(1)(b)(ix) of the RTI Act namely the directory of officers and employees. Therefore, there 3 is no justifiable reason why information sought at point no. 4 of the instant RTI application, namely the names and designation of engineers who designed M3 generation of EVMs should be withheld under the RTI Act.
g) that the information sought at point no. 5 of the instant RTI application is also in the nature of information that ought to be disclosed by the respondent public authority suo motu under Sec 4(1)(b)(ix) of the RTI Act, namely the directory of officers and employees. However, this appellant is willing to narrow down the request for information described at point no. 5 of the instant RTI application to merely the designations and number of engineers employed, if this Commission takes the view that disclosure of names may be withheld under the RTI Act. Therefore, there is no justifiable reason why at least some of the information sought at point 5 of the instant RTI application, should be withheld under the RTI Act.
h) that the information sought at points 7-9 of the instant RTI application is in the nature of information that is required to be disclosed suo motu u/s 4(1)(b)(iii), (iv) and (v) of the RTI Act. All the information sought at the aforementioned points of the instant RTI application are in the nature of manuals, records, norms, criteria and procedure followed for making decisions with regard to the quality control of EVMs and VVPATs. Further, the principle of public examinability of every step of the electronic voting process except the actual use of the machines by voters to indicate their preference for a contesting candidate lies at the very foundation of the instant RTI application. As the respondent public authority has not placed such information formally, therefore the appellant firmly believes, there is no justifiable reason as to why such information cannot be made public under the RTI Act.
i) That the information sought at point 6 of the instant RTI application is only a product generated as part of the norms and procedures followed by the Respondent public authority during quality testing of the software of the EVMs and VVPATs. Therefore he firmly believes , there is no justifiable reason as to why such information cannot be made public under the RTI Act.
4j) He further argued that in relation to a similar RTI application submitted by the appellant to another Central Public Sector Enterprise which manufactures EVMs and VVPATs, namely, Electronics Corporation of India Ltd. (ECIL), this Commission was pleased to record the acquiescence of the CPIO to provide a sample of the information described at points no. 6-9 of that RTI application which is similar to the information sought at points 6 to 9 of the instant RTI application. This Commission has recorded this fact in its decision issued in relation to the second appeal filed by this appellant in case no.
CIC/ECOIL/A/2019/145542, decided on 06.08.2021 ( Venkatesh Nayak vs PIO, Electronic Corporation of India Ltd.) This appellant is willing to narrow down his request at points 6-9 of the instant RTI application to sample documents instead of the whole bulk of records created by the respondent public authority in the course of the conducting the independent software audit of the EVMs and VVPAT units.
k) He further submitted that the respondent public authority has invoked section 8(1)(d) of the RTI Act to reject the request for information described at points 1 and 4-9 of the instant RTI application. In addition to the arguments submitted by the appellant at paragraphs 10.1.2-10.1.3 at pages 7-8 of this second appeal letter, he would like to place the following additional ground in support of his contention that the said exemption is not applicable to the information sought:
a) according to the Patents Act, 1970, a patent is granted to a successful applicant only for a period of 20 years for exclusive use. This fact is recorded in the FAQs published by the Office of the Controller General of Patents, Designs and Trade Marks, India on its website at:
https://ipindia.gov.in/writeraddata/Portal/Images/pdf/Final Frequently asked questions- patent.pdf (page 2 of the FAQs);
b) according to the information published by the office of the Controller General of Patents, designs and Trade Marks, India the legal term of the patent granted to the Respondent public authority for EVMs, the exclusivity of the patent has expired. A copy of the said information was attached with his submissions. Therefore it is this appellant's firm belief that the respondent public authority is no longer entitled to claim exclusive control over the intellectual property relating to EVMs. This is also a very pertinent reason for setting aside the respondent public authority's claim to Sec 8(1)(d) of the RTI Act.5
I) that respondent public authority claimed that the information sought at point 13 of the instant RTI application was still being compiled at the time of the CPIO sending a reply. It is reasonable to expect that such information might have been fully compiled more than two years hence.
As the respondent public authority has not invoked any exemption to reject access to this information, the Commission may direct the disclosure of all the information sought at point 13 of the instant RTI application.
The CPIO reiterated the reply given on 23.04.2019 and the FAA's order dated 27.06.2019.
Observations:
It is pertinent to mention here that this bench had decided a case on
28.07.2021 of the same appellant, in which the RTI was filed with Standardization, Testing and Quality Certification (STQC) and the following information was sought:
"1. Provide the name and designation of the members of the STQC team which carried out the testing of the firmware of Electronic Voting Machines (EVMs) of M3 and M2 generation and Voter Verified Paper Audit Trail (VVPAT) units manufactured by ECIL and BEL and used in 2019 Lok Sabha Elections.
2. Provide the exact dates on which the STQC team carried out the said testing and evaluation as stated in para 1 above.
3. Provide the geographical locations or the premises at which the STQC team carried out the said testing and evaluation.
4. And other related information.
The following are the relevant paras of the order passed in the above case by this bench:
"Based on a perusal of the record, it was noted that the CPIO vide letter dated 10.07.2019 had denied the information sought u/s 8(1)(d) of the RTI Act on all the points. Further, the appellant had filed a first appeal on 12.07.2019 being dissatisfied with the CPIO's reply. The FAA vide order dated 22.08.2019 concurred with the CPIO's reply and held that the same is justified. The Commission observed that Sec 8(1)(d) was not amplified or justified by the respondents in their reply and the same was therefore asked during the hearing. The involvement of third party independent testing/Audit organisations and providing of services by levying charges against contractual requests seems to be an issue of commercial 6 confidence. The appellant rightly pointed out that only ECIL and BEL are the two organisations involved in the manufacturing and supply of EVMs and VVPATs but that does not automatically mean that the testing also would be done only by them. The CPIO had categorically stated in his written submissions that the independent testing/Audit organisations provide services to them in compliance with contractual terms and conditions. Further, the broader picture is that any kind of speculation would be prejudicial to the interest of the nation and therefore, a suitable point-wise reply in respect of each point should be given by the CPIO in the letter and spirit of the Act. The appellant's plea that the information was sought to ascertain the role and duties of and the performance of such duties by the public authority while carrying out third party audits of the software/firmware embedded in the EVMs and VVPATs in compliance with the recommendations of the TEC is irrelevant and any citizen of India in his exercise of right to information can seek information. Further, the FAA should be careful in future and even if the same is an online order, the name and designation of the FAA should be invariably mentioned. The Commission finds the appellant's plea in respect of points no. 4,5,9 and 10 justified as statistical information can be given and there is no exemption applicable in disclosing the numbers. As far as point no. 1 is concerned, the names and designations need not be disclosed, being personal in nature and the same may influence the process of testing of EVMs and VVPATs. Therefore, the same is considered to be information of commercial confidence of the independent testing/audit organisations and hence exempted u/s 8(1)(d) of the RTI Act. As far as point no. 2 is concerned, the dates are eminently disclosable and can be given to the appellant. In respect of point no. 3, the geographical locations without specifying further details can be given. During the hearing, the CPIO stated that the testing was done at various locations including at BEL & ECIL. The specific locations can therefore be provided. As far as points no. 6,7 and 8 are concerned, the CPIO shall revisit the records vis-a-vis the RTI application and provide suitable replies amplifying the exemption clause applicability for those points with full justification where information is being denied and also shall examine the possibility of providing partial information on those points, where it is not covered under any exemption clause. In those 7 circumstances, the exempted portion can be masked by following the provisions of Sec. 10 of severability.
Decision:
In view of the above observations, the CPIO shall comply with the Commission's directions as given above, within 10 days from the date of its receipt under intimation to the Commission."
In the present case also the subject matter is the same, though the information sought is different and the respondent is also different. The CPIO had provided a point-wise reply on 23.04.2019. The appellant was not satisfied with the reply and had filed a first appeal on 28.05.2019 contesting the CPIO's reply on points no. 1, 4 to 10. The FAA vide order dated 27.06.2019 rejected the first appeal and upheld the CPIO's reply. The appellant explained his contentions during the hearing and argued that in respect of point no. 1 TEC reports available with the respondent public authority from 2017 onwards, till date should be given, more so as he had already got the earlier ones from the Election Commission. In respect of point no. 4 of the RTI application he argued that the information sought should be proactively disclosed in public domain. In respect of Point 5 ,he submitted that the designations and number of engineers employed, should atleast be given in case disclosure of names are withheld by the Commission. Therefore, there is no justifiable reason why at least some of the information sought at point 5 of the instant RTI application, should be withheld under the RTI Act. He further submitted that the information sought at points 7-9 of the instant RTI application is in the nature of information that is required to be disclosed suo motu u/s 4(1)(b)(iii), (iv) and (v) of the RTI Act.
That the information sought at point 6 of the instant RTI application is only a product generated as part of the norms and procedures followed by the Respondent public authority during quality testing of the software of the EVMs and VVPATs.
He further argued that in relation to a similar RTI application submitted by the appellant to another Central Public Sector Enterprise which manufactures EVMs and VVPATs, namely, Electronics Corporation of India Ltd. (ECIL), this Commission was pleased to record the acquiescence of the CPIO to provide a sample of the information described at points no. 6-9 of that RTI application which is similar to the information sought at points 6 to 9 of the instant RTI application. This Commission has recorded this fact in its decision issued in 8 relation to the second appeal filed by this appellant in case no. CIC/ECOIL/A/2019/145542, decided on 06.08.2021 ( Venkatesh Nayak vs PIO, Electronic Corporation of India Ltd.) This bench took note of the decision dated 06.08.2021 of the coordinate bench of the Commission in respect of an identical RTI application, where identical information was sought from Electronics Corporation of India Ltd., which comes under the Department of Atomic Energy. Therefore, this bench is of the view that both the RTIs could have been heard together in case the appellant had informed this fact earlier to the Coordinate bench. Decision:
In view of the above observations, the order dated 06.08.2021 is reiterated by this bench:
"Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that exemption u/s 8 (1) (a) has been claimed by the CPIO for points 1, 3, 4, 7, 8 12 and 13 of the RTI application by merely stating that the information is classified without any further justification/ explanation. The Appellant has also argued that information sought in points 6 and 9 is not voluminous and even if it is so, the CPIO can provide a sample report to him. Thus, in the light of the above observations, the Commission remands the instant matter back to the FAA, ECIL to re-examine the matter and pass a reasoned/ speaking order after granting an opportunity of hearing to both the parties. The above-mentioned direction should be complied with by 30.09.2021 under intimation to the Commission.
With the above direction, the instant Second Appeal stands disposed off accordingly."
The above direction applies squarely in this case also and the FAA is directed to follow the said directions by 30.09.2021.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
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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
Copy to:
FAA
Bharat Electronics Ltd.
Jalahalli Post, Bangalore - 560 013
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