CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01644 dated 8.12.2007
Right to Information Act 2005 - Section 19
Appellant - Mr. Milap Choraria
Respondent - Central Vigilance Commission (CVC)
Facts
:
By an application of 9.7.07 Shri Milap Choraria of Rohini, Delhi applied to
Shri K. L. Ahuja, CPIO and Director, CVC seeking the following information:
“Under Section 6 of the Right to Information Act, 2005 I want
certified copy of the letter forwarded by CVC to CVO, CBDT, for
necessary action as was reported through Memo Letter No.
17837/07/60048 dated 21st June 2007 to me and file noting from
relating files on my representation dated 26th March, 2007, jointly
addressed to Mr. Pratush (sic) Sinha, Chief Vigilance
Commissioner, Mr. Sudhir Kumar, Vigilance Commissioner and
Smt. Ranjana Kumar, Vigilance Commissioner of the Central
Vigilance Commission.”
To this he received a response on 25.3.07, as follows:
“Copy of the Commission’s OM No. 17837/07/60049 dated
21.6.2007, addressed to the Chief Vigilance Officer, Central Board
of Direct Taxes, New Delhi, as enclosed. You are requested to
deposit an amount of RS. 2/- (two only) in cash against proper
receipt or by demand draft or bankers cheque or Indian Postal
Order payable to the Section Officer, Central Vigilance Commission
at New Delhi towards photocopying charges in terms of RTI
(Regulation of Fee &Cost) Rules.
Subsequent to your representation dated 26.3.2007, which was
addressed jointly to the Central Vigilance Commissioner and the
Vigilance Commissioners, the Commission has forwarded a copy of
the complaint received by it under the ‘Public Interest Disclosure
Resolution’ to the Additional Member (Vigilance), Railway Board,
New Delhi for a factual report in the matter, including the views of
the Ministry of Railways along with the policy on the issue. The
reply from the Railway Board is awaited. Copies of the internal
notes in this regard are denied under section 8 (1) (h) of the RTI
Act as the matter is under investigation.”
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Aggrieved with the withholding of part of the information Shri Milap Choraria
moved his first appeal on 7.8.07 before the Appellate Authority Shri V. Kannan,
Addl. Secretary, CVC, pleading as follows:
“The Central Vigilance Commission is not an Investigating Agency,
therefore, not empowered to conduct directly any Investigation,
thus not entitled to refuse any Information on the pretext of Section
8 (1) (h) of the RTI Act.
However, the aforesaid representation was relating to function of an
Important Institution like Central Vigilance Commission, thus was
very much relates to larger public interests. Therefore, relating
Information sought by the Appellant cannot be denied on the wrong
pretext of Section 8 (1) (h) of RTI Act.”
However, by his order of 19.9.07 Shri V. Kanan dismissed the appeal in the
following words:
“I have perused the relevant record and I uphold the decision of the
CPIO denying you information in respect of your representation
dated 26.3.2007 u/s 8 (1) (h) of the RTI Act as the matter is under
investigation. The CIC in the recent appeals no. 243/ICPB/2006
and 244/ICPB/2006 dated 27.12.2006 on the appeal of Shri
Sarvesh Kaushal has observed that the term investigation would
include inquiries/ search/ scrutiny which would be either
departmental or criminal and, therefore, when a departmental
inquiry is on, the information sought in relation to such an inquiry
can be denied in terms of Section 8 (1) (h) of the Act.”
The appellant’s prayer before us in his second appeal is as below:
“Hon’ble Information Commission should admit the complaint
under section 18 of the RTI Act, 2006 and pass the following
directions;
a) Upon the Respondents to ensure supply of the
information sought by the appellant at free of charges in
compliance of the Section 7 (6) of the RTI Act 2005;
b) Impose penalty upon the Respondents for the delayed
period per day Rs. 250/- per day with the maximum limit
of Rs. 25,000/-;
c) Pass any other order as may be deem fit and necessary
for the ends of justice.”
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In response to the appeal notice Shri K. L. Ahuja, in his letter of 9.5.08
recounted the processing of this RTI application and concluded as follows:
“Shri Choraria has now made a complaint to the CIC against the
CPIO and the first appellate authority stating that he wanted the
information to know whether CVC had acted in accordance with the
law and that the denial of information was in violation of the
‘fundamental right to know’ as flown from Article 19 (1) (a) of the
Constitution of India. The grounds of appeal, as above, are
irrelevant to the subject matter. The application was made to this
public authority under the RTI Act and denial of information was in
accordance with the provisions of that Act. Whether the provisions
of the Act are in conformity with the provisions of the Constitution of
India, or not, is the matter to be debated by the Parliament and to
be decided by the judiciary. Denial of information by this public
authority was in accordance with the provisions of the RTI Act.
Thus, the complaint made by Shri Choraria to the CIC is not
maintainable and deserves to be dismissed.”
In his rejoinder of 16.5.08, however, Shri Milap Choraria has concluded
with the following comments:
“If the Central Agencies like CVC, CBI are allowed to sit on the
matters for uncertain period under the alleged claim, that disclosure
of information may impede the alleged process of investigation,
then this would be complete injustice to the respective
complainants, on the basis of whose respective complaints, the
alleged investigation either started, or false claim of the
Investigation are made.”
The appeal was heard on 17.4.2009. The following are present:
Appellant
Shri Milap Choraria
Respondent
Ms. Parwinder Kaur, Advisor, CVC / CPIOMs. Parwinder Kaur, Advisor, CVC and present CPIO submitted that in this
case a report had been sought from the Ministry of Railways, which has now
been received. This report was in any case not in the possession of the CVC
and the matter was under investigation. Therefore, no such report could have
been provided to appellant Shri Choraria.
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Appellant Shri Choraria on the other hand submitted that what he had
sought was the file noting from related files on his representation of 26.3.07 as
existed at that time which has not been supplied.
We, therefore, inspected the CVC file No. Conf./15/04, which is the file
dealing with the complaint of appellant Shri Milap Choraria. The file noting in this
matter deals only with his representation, its review by the Steering Committee
and appellant’s meetings with the Secretary and other Office bearers of the CVC
explaining his case, which appears to have been treated as a PIDR case by the
CVC.
DECISION NOTICE
We agree that an investigation being held at the level of CVC is an
investigation that will fall u/s 8(1) sub sec. (h) of the RTI Act. We cannot agree
with appellant that CVC has no authority to apply exemption u/s 8 (1) (h) to a
case being investigated by it However, refusal of information on grounds that it
will impede such an investigation is governed by the decision of the Delhi High
Court in Writ Petition No. 3114/2007 Bhagat Singh vs. CIC & Ors, in which
Hon’ble Ravinder Bhat J. has held as follows:
“11. “The Universal Declaration of Human Rights, adopted by the
United Nations in 1948, assured by Article 19, everyone the right
“to seek, receive and impart information and ideas through any
media, regardless of frontiers”. In Secretary Ministry of Information
and Broadcasting, Govt. of India and others vs. Cricket Association
of Bengal and others (1995 (2) SCC 161) the Supreme Court
remarket about this right in the following terms:
“The right to freedom of speech and expression includes the right to
receive and impart information. For ensuring the free speech right
of the citizens of this country, it is necessary that the citizens have
the benefit of plurality of views and a range of opinions on all public
issues. A successful democracy posits an “aware” citizenry.
Diversity of opinions, views, ideas and ideologies is essential to
enable the citizen to arrive at informed judgment on all issues
touching them.”
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This right to information, was explicitly held to be our fundamental
right under Article 19 (1) (a) of the Constitution of India for the first
time by Justice K. K. Mathew in the State of UP vs. Raj Narain,
(1975) (4) SCC 428. This view was followed by the Supreme Court
on a number of decisions and after public demand, the Right to
Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the Right to freedom of speech
and expression. In an increasingly knowledge based society,
information and access to information holds the key to resources,
benefits and distribution of powers. Information, more than any
other element, is of critical importance participatory democracy. By
one fell stroke, under the Act, the make of procedures and official
barriers that had previously impeded information, has been swept
aside. The citizen and information seekers have, subject to a few
exceptions, an overriding right to be given information on matters in
the possession of the state and public agencies that are covered by
the Act. As is reflected in its preambular paragraphs, the
enactment seeks to promote transparency, arrest corruption and to
hold the government’s and its instrumentalities accountable to the
governed. This spirit of the Act must be borne in mind while
construing the provisions contained therein.
13. Access to information under Section 3 of the Act, is the rule
and exemptions under Section 8, the exception. Section 8 being a
restriction on this fundamental right, must therefore is to be strictly
construed. It should not be interpreted in manner as to shadow the
very right self. Under Section 8, exemption from releasing
information is granted if it would impede the process of
investigation process cannot be a ground for refusal of the
information, the authority withholding information must show
satisfactory reasons as to why the release of such information
would hamper the investigation process. Such reasons should be
germane, and the opinion of the process being hampered should
be reasonable and based on some material. Sans this
consideration, section 8(1) (h) and other such provisions would
become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like
the Act, should receive a liberal interpretation. The Contextual
background and history of the Act is such that the exemptions,
outlined in Section 8, relieving the authorities from the obligation to
provide information, constitute restrictions on the exercise of the
rights provided by it. Therefore, such exemption provisions have to
be construed in their terms, there is some authority supporting this
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view (See Nathi Devi vs. Radha Devi Gupta 2005 (2) SCC201, B.
R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V.
Tulasamma vs. Sesha Reddy 1977 (3) SCC 99). Adopting a
different approach would result in narrowing the rights and
approving a judicially mandated class of restrictions on the rights
under the Act, which is unwarranted.”
S Ravinder Bhat J specifically notes, “As held in the preceding part of the
judgment, without a disclosure as to how the investigation process would be
hampered by sharing the materials collected till the notices were issued to the
assessee, the respondents could not have rejected the request for granting
information.”
It is, therefore, clear that information cannot be refused simply because the
matter is under investigation unless it is established that such disclosure would
impede such investigation. At the present stage, the report of the Railway
Ministry has been received and there is no question of the investigation now
being impeded. However, even at the earlier stage, it is clear to us after
examination that there is no part of the file noting which could in any way have
impeded any part of the investigation. A copy of the file noting from file No.
Conf./15/04 will now, therefore, be provided to appellant Shri Milap Choraria
within ten working days of the date of receipt of this Decision Notice. The
appeal is hence allowed
However, there has been no delay in responding to the RTI application by
the CPIO (although there has been a delay in responding by Shri V. Kanan Addl.
Secretary and First Appellate Authority who received the application on 13.8.07
but responded only on 19.9.07) and the decision has been earlier given on the
basis of an interpretation by CPIO, albeit misplaced, of the application of
exemption u/s 8(1) sub sec. (h). There will therefore be no penalty and no
costs.
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Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
17.4.2009
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
17.4.2009
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