In the Central Information Commission
at
New Delhi
File No: CIC/OK/C/2008/00897
Date of Hearing : June 24, 2011
Date of Decision : July 11, 2011
Parties:
Applicant
Shri P.C. George
(Poonjar)
Member, Kerala Legislative Assembly
Plathottam
Brattupetta - 2
Kottayam
Kerala
The Applicant was represented by Shri Vinod Yadav during the hearing
Respondents
The Public Information Officer
Ministry of External Affairs
Akbar Bhawan
New Delhi
Represented by: Shri Debraj Pradhan, CPIO
Shri Suresh Babu, Director (ERS)
Information Commissioner : Mrs. Annapurna Dixit
_________________________________________________________________
Decision Notice
The MEA has not brought forth any additional and/or substantial argument justifying the non disclosure of
information till date. In the absence of any specific reason there seems to be no reason to interfere with
the original decision. Information is directed to be provided by or within 16th August 2011.
It is also observed that no tangible reason has been provided by the CPIO either for the delay or for not
bringing the new facts to the Commission earlier. Despite repeated opportunities being granted, the
Respondents have not been able to justify the delay. the Commission imposes a penalty of Rs.25,000/
on the then PIO for misleading the Commission with incorrect averments from time to time thereby
obstructing the furnishing of information and also delaying the response to the RTI Application within the
stipulated time. The Appellate Authority, MEA is directed to recover a sum of Rs.25,000/ in five monthly
installments of Rs. 5000/ and send the same in the form of a Demand Draft drawn in favour of PAO,
CAT and send the same addressed to Shri G. Subramanian, Deputy Registrar, Central Information
Commission, Club Building, Old JNU Campus, New Delhi 110 067. The first installment should reach the
Commission by 16.08.2011 and the last installment should reach by 15.12.2011.
In the Central Information Commission
at
New Delhi
File No: CIC/OK/C/2008/00897
Adjunct to CIC Decision dated 09.05.2011
1. The Commission passed the captioned order dated 9th May 2011 based on the contentions of the
parties, relevant part whereof is as hereunder:
“……..4. The Respondents in their defence submitted that in their process of procuring information
as directed by the Commission, the MEA had in fact approached the Department of
Economic Affairs, Ministry of Finance with a communication dated 17.02.2010 seeking the
required documents. The DEA, MoF by its communication dated 19.02.2010 had enclosed
copies of the said documents forwarding the same to the JS (ERS) MEA. The JS (ERS)
MEA sought the opinion of MEA’s Legal & Treaties Division, being unable to comment on
the political and legal angle on releasing of the said documents. The L&T Division in
response stated that sensitivity of the issue needs to be determined by the concerned
administrative Ministry since the documents essentially involve financial issues. If there is
any specific legal question relating to these agreements then that can be flagged for the
L&T Division to be examined.
5. All of the averments by the Respondents establish clearly that all of the exercise
undertaken by the Public Authority after receiving the Commission’s Order dated 12.1.10,
was belated and irrelevant as far as compliance with the Commission’s order is concerned
and proved to be ineffective in furnishing the information to the Complainant within the time
as prescribed by the Commission. Accordingly, the Commission issues a Show Cause
notice calling upon the CPIO from the Public Authority to explain the cause of the delay and
why a penalty to the tune of Rs 25,000/ not be imposed upon them. Reply to the Show
th
Cause to reach the Commission by 25 May 2011. Furthermore, in view of the fact that the
Public Authority (MEA) had orally submitted during the hearing that they were in fact
inclined to provide the information as sought by the Complainant as already discussed,
therefore, there remains no ground to delay the dissemination of the information any further.
Hence, the Commission directs that the information as sought by the Complainant be
th
provided to him within 25 May 2011. …”
2. The Commission received a letter dated 25.05.11 from Shri Debraj Pradhan, CPIO in response to
the Show Cause notice stating that following the decision dated 12.01.2010 passed by the CIC,
the MEA decided to take a fresh look at the issue and hence had requested DEA to provide
copies of the two documents, for examination. The DEA while providing the documents had left it
to MEA to decide the release of the two documents to the Complainant. Considering that the two
documents sought by the Complainant were communications between high dignitaries of India
and of a foreign country, the officials of MEA deemed it appropriate to seek comments from the
Legal and Treaties (L&T) Division of MEA. The L&T Division recommended that the concerned
Territorial/Administrative Division, i.e. Eurasia Division in the Ministry make a judgment on
whether or not to release the document under the RTI Act, 2005. MEA in its submissions further
elaborated that the Eurasia Division of the Ministry felt it appropriate to obtain the consent of the
Russian Government before proceeding with its recommendation in favour of the release of the
documents. Hence, the Ministry took up the issue with the Russian Government through
the Embassy of India, Moscow on multiple occasions with a view to obtaining the consent
of the Russian side. However, despite considerable delay no response had been obtained
by the MEA till recently when the Russian Government in an informal verbal
communication responded to the Indian side’s formal request stating that all
correspondences between the Soviet Union/Russia with foreign Governments are as a
rule considered ‘confidential’, and that correspondences with foreign governments
dealing with financial matters (including interest payments, loans, credit lines etc.) are
always treated as “secret” documents. The MEA states that this implies that Russia does not
favour releasing its correspondences with foreign governments in the public domain unless it
receives written consent from the foreign government and it expects in reciprocity, the foreign
government to follow the same practice.
3. The MEA has submitted that the Embassy of India, Moscow has filed another formal request
seeking Russian concurrence, response to which is awaited. The Ministry has expressed that the Russian
side’s response now places Eurasia Division’s position as regards this RTI query in a complicated
situation, apprehending that the unilateral release of the contents of the documents as instructed by the
CIC may lead to breach of trust with Russia, India’s strategic partner and violate a legal understanding
given that India is also a signatory party to all bilateral documents. The MEA further submitted that the
RTI application under question, was given priority by Eurasia Division with the objective of providing
timely reply as stipulated under RTI Act, 2005, and best attempts were made to seek a logical conclusion
to the RTI query. But the nature of the Complainant’s query being such that information could not be
arranged with routine approvals since the very scope of such information stretched beyond the realm of
MEA and into the Government of India’s legal limits and entailed international juridical matters, the
contents in question being intergovernmental bilateral documents.
4. The PIO, MEA concluded that due to such constraints, certain degree of oversight, as
pointed out by the CIC in this particular RTI case, did occur as a result of the combination of
aforementioned factors. However, the PIO denied any negligence and malafide on the part of the
officials of the Ministry in serving the national interest and in full reverence to their constitutional
obligations under the RTI Act, 2005. The PIO therefore sought additional time so that the matter can be
pursued with the Russian Government with a view to obtaining their written consent for the release of the
documents as sought by the Complainant.
5. It is noted that new facts have been brought before the Commission such as the consent
of the Russian Government to be obtained which was not brought to the notice earlier
during the previous three hearings which were held during the span of over two years.
Hence, it was decided to hold a hearing before the Commission on 24.06.2011 and the
Respondents were sent notices dated 26.05.2011 to appear alongwith all the relevant
files/documents while the CPIO was directed to explain as why he should not be penalized for his
failure to provide correct information and for not bringing this fact to the notice of the Commission,
by 22.06.2011.
6. In response to the said Show Cause notice dated 26.05.2011 issued by the CIC, the Commission
received a letter dated 21.06.2011 from Shri Debraj Pradhan, CPIO stating that since the filing of
the RTI application in May 2008, the Eurasia Division of the MEA has been taking measures to
comply with the RTI query. The PIO placed reliance on the contents of the Ministry’s earlier letter
dated 25.05.2011 discussed hereinabove while explaining the actions taken by the Division with
Russia with which India has strategic partnership and there is, interalia, an informal mechanism
of interaction in practice. It was stated that in view of the extremely guarded and closed system
of functioning in Russia when it comes to relations with foreign partners, the Division in the MEA
generally liaise with their Russian colleagues in a number of issues of sensitive nature, as in the
case of RTI, by using informal channels expecting that the formal response would be generally
either ‘nil’ or ‘negative’. The MEA has stated that in the past two years among other vital
information the Ministry has been informally trying to secure the consent to placing texts
of all bilateral intergovernmental agreements including the RupeeRouble Debt Fund
Agreement in the public domain in India, though such informal communication remain
undocumented though they were intended to comply with the RTI queries. It is further
submitted that the information, on issues like the bilateral agreements involving a foreign
Government or territory, it is a convention to seek the consent of that foreign Government. The
RupeeRouble Debt Fund is an intergovernmental agreement that binds both parties legally. It
was implicit that contents of this agreement, especially since they are financial in nature, shall
require formal consent of the other legal signatory. The CPIO further stated in his letter that in
view of the above and anticipating a formal consent of the Russian Government to release
the text of the RupeeRouble Debt Fund Agreement, a decision to be preceded by an
informal signal, the Ministry has not been able to bring this to the notice of the CIC earlier.
Thus according to the CPIO the intention of the Eurasia Division of the Ministry was
actually to divulge the information as is clear from its anticipation and has been
emphasised by the MEA and not to either delay or undermine the significance of complying with
the provisions of the RTI Act, 2005. In fact the MEA expressed their sincere regret for the delay in
communicating the above facts.
Decision
7. During the hearing, the Respondents submitted that formal request was sent on April 2011 and
no response has been received from the Russian Government till now.
8. Upon perusal of the various documents and communications exchanged so far, including the
replies dated 25.05.2011 and 21.06.2011 from the Respondents, it has been noted that the
Respondents have at no point of time during the preceding three hearings spanning over
last two years have mentioned that information sought requires formal approval from the
Russian Government for its disclosure. It has been recorded in each of the three earlier
decisions dated 19.12.2008, 12.01.2011 and 19.05.2011 that despite opportunities being
given to the PIO, MEA, vague reasons have been cited justifying the denial of information.
It is also noted that only after the CIC directed the Respondent to provide the information on
12.01.2010, that the MEA has approached the DEA and L&T Division of the MEA seeking their
consent. Even at that time the consent of the Russian Government was not sought. The MEA
has therefore been passing the “consent obtaining” part bringing one agency after the other in
their realm of consenting authority in complete disregard of the repeated directions of the CIC.
None of the authorities/agencies in India seemed to have objected to the divulging of information
in this case. Thereafter, it was only in the instant fourth hearing after being directed and
Show Cause notice being issued by the CIC, that the Respondents came up with the
argument that the consent of the Russian government is essential for disclosure of
information in this case, although they were not able to provide any documents indicating
such necessity of the consent of the Russian Government before disclosing the
information neither have they relied on any secrecy/confidentiality clause between the
nations. In fact it is their own submission in the letter dated 21.06.2011, as noted in the
preceding paragraph number 6, that the MEA has been trying for the past two years to obtain
the consent of the Russian Government of placing among others, the Rupee Rouble Debt
Fund Agreement in the public domain in India. No categoric denial or objection from the
Russian Government so far has been obtained or placed on record over the last two years
thereby implying the neutral approach of the Russian Government.
9. The Commission at this point finds it relevant to mention the recent judgment of the Apex Court in
the case of Ram Jethmalani & Ors. versus Union of India wherein the information about the black
monies of Indians stashed away abroad were directed to be disclosed to the Petitioner. Even in
the face of the Union of India’s argument that it was “…..proscribed from disclosing such names, and
other documents and information with respect to such bank accounts under the Double Taxation agreement
with Germany…..”, the Hon’ble Supreme Court upon examining the relevant clause of the said
Double Taxation Agreement held that : ……”It is disingenuous for the Union of India, under
these circumstances, to repeatedly claim that it is unable to reveal the documents and
names as sought by the Petitioners on the ground that the same is proscribed by the
said agreement. It does not matter that Germany itself may have asked
India to treat the information shared as being subject to the confidentiality and
secrecy clause of the double taxation agreement. It is for the Union of India,
and the courts, in appropriate proceedings, to determine whether such
information concerns matters that are covered by the double taxation agreement or
not.”
It was further discussed by the Apex Court that
“…..Withholding of information from the petitioners by the State, thereby constraining
their freedom of speech and expression before this Court, may be premised only on
the exceptions carved out, in Clause (2) of Article 19, “in the interests of sovereignty and integrity of
India, security of the State, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence” or by law that demarcate
exceptions, provided that such a law comports with the enumerated grounds in Clause (2) of
Article 19, or that may be provided for elsewhere in the Constitution.
71. It is now a well recognized proposition that we are increasingly being entwined in a global
network of events and social action. Considerable care has to be exercised in this process,
particularly where governments which come into being on account of a constitutive document, enter
into treaties. The actions of governments can only be lawful when exercised within the four corners
of constitutional permissibility. No treaty can be entered into, or interpreted, such that constitutional
fealty is derogated from …”
Thus while the Supreme Court exempted the disclosure of names and particulars with respect to
the individuals who held accounts in banks in Liechtenstein, with respect to whom
investigations/enquiries are still in progress and no information or evidence of wrongdoing is yet
available, the information pertaining to names and documents relating to the accounts of those
individuals with bank accounts in Liechtenstein, as revealed by Germany, with respect of whom
investigations have been concluded, to be disclosed either partially or wholly.
10. In the light of the findings of the above discussed decision wherein the Apex Court directed
disclosure of information which was withheld since long in secrecy by the Union of India citing
reference to international agreement etc., we find the premises on which the information in the
instant case have been withheld as being somewhat similar though there is neither a specific
agreement nor any clause which has been cited for such secrecy by the PIO, MEA in the instant
case. The MEA in this case has not brought forth any additional and/or substantial argument
justifying the non disclosure of information. In the absence of any specific reason it seems a
deliberate dilatory tactics laced with afterthought in this case to keep the information under wraps
and hence there seems to be no reason to interfere with the original decision. The Commission
therefore directs the information to be provided by or within the 16th August 2011.
11. With regard to the reply given to the Show Cause notice, it has been noticed that no tangible
reason was given by the CPIO, Mr. Debraj Pradhan either for the delay or for not bringing the
new facts to the Commission earlier except that “…Russia follows a closely guarded system”. It
does not appear to be a reasonable explanation despite numerous opportunities provided to him.
Hence, the Commission imposes a penalty of Rs.25,000/ on the then CPIO for misleading the
Commission with incorrect averments from time to time thereby obstructing the furnishing of
information and also delaying the response to the RTI Application. The Appellate Authority, MEA
is directed to recover a sum of Rs.25,000/ in five monthly installments of Rs. 5000/ from the
CPIO and send the same in the form of a Demand Draft drawn in favour of PAO, CAT to Shri G.
Subramanian, Deputy Registrar, Central Information Commission, Club Building, Old JNU
Campus, New Delhi 110 067. The first installment should reach the Commission by 16.08.2011
and the last installment by 15.12.2011.
12. The Complaint is disposed of on the above terms.
Pronounced in open Court on 11th July 2011.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy
(G. Subramanian)
Deputy Registrar
Cc:
1. Shri P.C.George
(Poonjar)
Member, Kerala Legislative Assembly
Plathottam
Brattupetta – 2
Kottayam
Kerala
2. The Public Information Officer
Ministry of External Affairs
Akbar Bhawan
New Delhi
3. The Appellate Authority
Ministry of External Affairs
South Block
New Delhi
4. Officer in charge, NIC