Central Information Commission
Simmi Kohli vs Directorate Of Enforcement on 9 October, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DIREN/A/2017/158234-BJ
Ms. Simmi Kohli
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Directorate of Enforcement, 6th Floor,
Lok Nayak Bhawan,
Khan Market, New Delhi 110003
... ितवादीगण /Respondent
Date of Hearing : 08.10.2018
Date of Decision : 09.10.2018
Date of RTI application 27.06.2017
CPIO's response 05.07.2017
Date of the First Appeal 12.07.2017
First Appellate Authority's response 08.08.2017
Date of diarised receipt of Appeal by the Commission 23.08.2017
ORDER
FACTS The Appellant vide her RTI application sought information on the following 02 points:-
1) Copies of all the seniority list in respect of LDCs for the period from 1991 till date.
2) Copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.
The CPIO vide its order dated 05.07.2017 denied the information under Section 24 r/w second schedule of the RTI Act. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA vide order dated 08.08.2017, concurred with the reply of the CPIO.
Page 1 of 7HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Ms. Simmi Kohli;
Respondent: Mr. Manoj Singh, Legal Consultant (Enforcement Directorate) and Mr. Vipin, Assistant / CPIO;
The Appellant reiterated the contents of her RTI application and stated that she had not been given the desired information, till date. It was further alleged that the CPIO/FAA had erroneously rejected her RTI application/Appeal solely on surmises and conjectures which was against the Principles of the Natural Justice and the same should be set aside. The Respondent explained that the RTI application as well as the First Appeal were rejected after due consideration since the requisite information/ documents could not be provided in view of the exemption to the Directorate of Enforcement under Section 24 read with Second Schedule of the RTI Act, 2005 where the name of Enforcement Directorate had figured. It was further argued by the Appellant that her matter fell under the category of human rights violations and violative of provisions of Article 14 and 21 of the Constitution of India since the matter was related to the proposal for promotion of LDCs and that the CPIO/FAA had erred while claiming exemptions u/s 24 r/w Second Schedule of the RTI Act, 2005.
The Commission was in receipt of a written submission from the Respondent dated 04.10.2018 wherein while explaining the background of the case, it was submitted that the requisite information / documents could not be provided in view of the exemption of the Directorate of Enforcement under Section 24 r/w Second Schedule of the RTI Act, 2005. It was categorically stated that the Respondent Public Authority as listed in the exempted group of Authorities under Second Schedule had suitably denied disclosure of information in the present matter. Further he relied upon the decision of the Hon'ble Delhi High Court in the matter of Mr. Bimal Kumar Bhattacharya judgment dated 19.02.2018 to substantiate his case. In view of the above, it was prayed to the Commission to pass an order for dismissing the Appeal filed by the Appellant or as deem fit in the interest of justice.
Considering the submissions made by both the parties and on perusal of the documents available on record, the Commission noted that the information sought by the Appellant pertained to the Administrative matter and not related to any Security and Intelligence setup of the Country and therefore the same should be disclosed to her as per the proviso of Section 24(1) which is read as under:-
"Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section"
The Commission further observed that the information sought by the Appellant pertained to generic issues in larger public interest concerning the details of the proposals for promotion of LDCs placed before the DPC along with the copies of the Minutes of the Meetings and Page 2 of 7 exemption claimed under Section 24 on the ground that the information was sought from the Exempted Public Organization was untenable. It was observed that even in the context of organization exempted from the purview of the RTI Act, 2005 under Section 24, the High Court of Punjab and Haryana in the decision of the First Appellate Authority and another v. Chief Information Commissioner and Anr., CWP No. 10067 of 2010 dated 21.01.2011 had held that the exclusion provided under Section 24 to an organization was only related to matters dealing with security and intelligence and not other matters. The relevant extracts of the judgment are mentioned below:
"7. What is not disputed here is that the notification (Annexure P-7) was issued under Section 24(4) of the Act, which postulates that nothing contained in this Act shall apply to such intelligence and security organization being organization established by the State Government as that Government may from time to time by notification in the official gazette specify.
8. Proviso to this section posits that the information pertaining to the allegation of corruption and human right violation shall not be excluded under the sub section. The words "Such Intelligence" and "Security" in this section are of great considerable significance in this context.
9. A co-joint reading of these provisions would escalate, only that information is exempted which is directly co-related and relatable to intelligence and security of the State and not otherwise. Moreover, the information sought by respondent No.2 pertains to the allegations of corruption and against those persons who have grabbed and illegally constructed building on the Government land and action taken against them on the complaint of the complaint. Such information pertaining to allegation of corruption and human rights violations is not otherwise covered under the exemption clause as urged on behalf of petition."
In this context, the Commission referred to the matter of Esab India Limited v. Special Director of Enforcement, WP (C) No. 1138/2010 dated 08.03.2011, the Hon'ble High Court of Delhi while dealing with a petition challenging the validity of Section 24 read with Second Schedule to the RTI Act, 2005 had held as under:
"27. In the case at hand, as far as Section 24 is concerned, it is evincible that the said provision excludes the intelligence and security organizations specified in the Second Schedule. We have already reproduced the Second Schedule. The petitioner is concerned with the Directorate of Enforcement which comes at serial No. 5 in the Second Scheule. What has been denied in first part of Section 24 is the intelligence and security organizations. The first proviso adds a rider by stating that an information pertaining to allegations of corruption and human right violations shall not be excluded under the sub-section. Thus, it is understood that information relating to corruption and information pertaining to human rights are not protected. In our considered opinion, the restriction on security and intelligence aspect cannot be scuttled as the same has Page 3 of 7 paramountancy as far as the sovereignty and economic order is concerned. Article 19(1)(2), which deals with reasonable restriction, mentions a reasonable restriction which pertains to security of the State, integrity of India and public order. ."
The Commission drew its reference to the objective of promulgation of the RTI Act, 2005 which was enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:
"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."
Much before the legislative enactment of the RTI Act, 2005, our Judiciary, in a progressive interpretation of the Constitutional provisions, had paved the way towards delineating the Right to Information. In 1975, in State of UP vs. Raj Narain (1975 AIR 865, 1975 SCR (3) 333), Justice Mathew had ruled:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries."
The Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 observed as under:
Page 4 of 7"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy"
The High Court of Delhi in General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 regarding the disclosure of information for public interest, held:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance."
The High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
Moreover, the Hon'ble Supreme Court of India vide its important and significant decision passed by way of resolution dated 03.10.2017 declared that decisions regarding uploading of collegiums resolutions should be uploaded on website for ensuring transparency of collegium system.
" THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the Page 5 of 7 post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the mater...
The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."Page 6 of 7
Moreover, in the case law cited by the Respondent, the Hon'ble High Court itself has inter alia decided "the only exception carved out from the exclusionary clause of Section 24 (1) of the Act relates to information pertaining to allegations of corruption and human rights violation". Thus the Respondent was not able to justify or substantiate his claim further with regard to denial of information u/s 24 of the RTI Act, 2005.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in light of the aforesaid decisions, the Commission directs the Respondent Public Authority (ED) to provide the desired information to the Appellant, within a period of 15 days from the date of receipt of this order and maintained that the exemption sought by the Respondent under Section 24 (1) of the RTI Act, 2005 was unjustified and untenable. The Appeal stands disposed with the above direction.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 09.10.2018
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