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Allahabad High Court Order clarifying Sec 18

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karira

The Allahabad High Court (Lucknow Bench) has passed a important order in a Writ Petition, clarifying Section 18 and various other matters under the RTI Act 2005.

 

It is a very long order and the main points are as below:

 

1. Applicant asked for information regarding details of recipients of UP Chief Ministers Discretionary Fund.

 

2. Information was denied under Sec 8(10(j).

Matter went up to the UPSIC and the SIC ordered disclosure of

information and imposed Penalty.

 

3. PIO filed a WP in the High Court asking:

 

(1) Whether the information disclosing the names of the

persons including address and amount, who have received more than Rs.1 lac from the Chief Minister Discretionary Fund, can be given to the information seeker or it is an information, which stands

exempted under Section 8 (j) of the Right to Information Act.

 

(2) Whether the Chief Information Commissioner while

considering the complaints under Section 18 of the Right to

Information Act, 2005 is competent only to award the prescribed

punishment, in case of failure of information being given as per the

provisions of the Act or while dealing with the said complaints, any

direction can also be issued for furnishing the information which

has not been provided, though it is not found to be exempted under

the provisions of the Act.

 

4. The High Court has clearly ruled that:

 

Although Sec 18 does not carry a specific provision that the SIC can give direction for providing information, it must be read along with Sec 20.

Sec 20 clearly says that penalty can be imposed at Rs 250 per day till the information is given. So if penalty can be imposed for matters relating to Sec 18, then it implies that information must be given and the SIC has the powers to direct to provide such information. Otherwise how can one determine how much penalty, if information is never given.

 

This part concludes with:

 

"So far the power to issue direction for receiving the

application or for supplying the information is concerned, it is for

one and the same purpose, i.e., for supplying the correct

information to the applicant, if it does not stand exempted under

the Act. In this regard, there can be no distinction, when the

Commission enquires into a complaint or hears an appeal under the

aforesaid power."

"Any interpretation to any of the provisions of the Act,

if leads to absurdity or may lead to defeat the very purpose of the

Act, has to be avoided. There is no attempt to twist the words or

the phraseology used, but for correct interpretation of provision of

Section 18, it cannot be read in isolation, but has to be seen in

the light of the consequences of a complaint of Section 18, as given

in Section 20 of the Act, besides also the purpose and object of the

Act for which it has been enacted."

 

The Judges also disagree with the interpretation of Sec 18 by the High Court of Gujarat:

 

"We, therefore, with deep respect are unable to concur

with the view expressed by the Gujarat High Court to the contrary in

the case of Reliance Industries Ltd. vs. Gujarat State Information

Commission and Ors., reported in AIR 2007 GUJARAT 203, with respect to the scope of Section 18."

The order rejects applicability of Sec 8(1)(j) by stating:

 

"The plea that if such an information is disclosed, it

would cause unwarranted invasion of the privacy of the person who

is a beneficiary is concerned, the same is wholly untenable and

devoid of substance. The person who is extended the benefit of

discretionary fund does not compromise with his honour and prestige

nor acceptance of such a benefit belittles his status. The Chief

Minister while extending the benefit of the given amount from the

Chief Minister's Discretionary Fund, discharges his/her, as the case

may be, social obligation, in consonance with the socio economic

policy of the State to the person, who is entitled under the rules

for having the said benefit. The extension of the economic

assistance to the persons entitled, is a step towards discharging

the functions of a welfare State by providing monetary help to the

deserving under the Rules."

 

On discretionary powers of the PIO to deny or disclose information if it pertains to any of the Section under Sec 8:

The discretion, which has been given to the Central

Public Information Officer or State Public Information Officer or

the appellate authority, as the case may be, is to the effect that

on their satisfaction that the larger public interest justifies the

disclosure of such information, the same may be supplied. It means

that though the information asked for is otherwise exempted from

being supplied, but it can be disclosed if larger public interest

justifies the disclosure of such information. Who will decide this

larger public interest? It is not the applicant or the person,

against whom the information is asked for, but the information

officer or the competent authority, as the case may be. Of course,

while deciding the aforesaid question, the views of both the parties

can be taken into account or so to say have to be taken into account

by the concerned authority under the RTI Act, for the reason that

the person who is asking for the information, would say it is in

larger public interest to disclose the information, whereas the

person against whom the information is being asked for shall dispute

the aforesaid fact.

 

On the importance and relevance of Sec 18:

 

Section 18 thus is a provision which is a consciously

introduced section, so as to exercise complete control over the

functioning of the Public Information Officers, at the time of

receiving application, and at the time of giving information or

during the appeal under the Act.

 

Any applicant who has not been given a response to a

request for information or access to information within the time

limit specified under the Act, or who has been required to pay an

amount of fee which he or she considers unreasonable, or has been

given false information, and in respect of any other matter relating

to requesting or obtaining access to records under the Act, may

approach the Commission, who would enquire into the complaint, and

while making an enquiry, it has all the powers as are vested in a

civil court while trying a suit under the Code of Civil Procedure,

1908 (5 of 1908), in respect of the matters enumerated therein.

 

(The above will clear all doubts about the differentiation of applicability between Sec 18 and Sec 19)

 

On differentiation between information sought via a PIL and via the RTI Act 2005:

The view expressed otherwise in respect of locus standi

of a person to seek an information and also on the scope of Section

18 of the Act, requires consideration.

 

The Gujarat High Court while dealing with the aforesaid

proposition of law, took into consideration the judgement of the

apex court in the case of Ashok Kumar Pandey vs. State of West

Bengal and others, reported in AIR 2004 SC 280, for holding that

care has to be taken that the information is not asked for by the

persons, who seek the information with an intention to blackmail the

person against whom the information is asked for and that the nature

of the information asked for and the person who asked for

information are the relevant considerations.

 

In regard to the observations of the Gujarat High Court,

suffice would be to mention that the Court proceeded on the

assumption that the right to seek information is like filing writ

petition in the nature of public interest litigation. In a public

Interest litigation, care has to be taken that it is not a petition

for settling the personal score or satisfying the personal vendetta

or is not a publicity interest litigation or pecuniary interest

litigation. The essence of the grievance raised and the bona fide

of the person in bringing the issue to the Court, are such key

factors, which play an important role in the public interest

litigation.

 

The Supreme Court even in a petition of PIL has held in

the case of T.N. Godavarman Thirumulpad (98) vs. Union of India and

others, (2006) 5 SCC 28 and Vishwanath Chaturvedi (3) vs. Union Of

India and others, (2007) 4 SCC 380, that even if the person bringing

the cause to the Court has no locus standi to pursue the matter or

he is not a bona fide person or a public spirited person or may have

approached the Court with political reasons but still in such a case

the grievance raised can be looked into and if found genuine and

worth being enquired into, the same can be entertained.

 

Under the Right to Information Act, the locus standi of

the person is of no avail. Any citizen can ask for any information,

which is not protected under the relevant clauses of exemption. The

Public Information Officer is under the legal duty to supply the

information so asked for......

......

The view, therefore, expressed by the Gujarat High Court

in this regard without adverting to the scheme of the Act, 2005 and

without noticing the provisions of Section 2(j) and Section 3 of the

Act, are contrary to law. Section 2(j), says that the right to

information means the right to information accessible under this

Act, which is held by or under the control of any public authority

and Section 3, says that subject to the provisions of this Act, all

citizens shall have the right to information.

 

We thus find that the Gujarat High Court did not take

into consideration the provisions of Section 2(j) and Section 3 and

also sub-clause (2) of Section 6, which specifically prohibits from

making any enquiry from the applicant for giving reasons for seeking

the information or any other personal details except his address,

where he could be contacted.

 

Thus, the view expressed by the Gujarat High Court in

respect of the locus standi of the applicant, asking for any

information cannot be said to be a binding precedent.

 

We, therefore, with utmost regard to the learned Judge

of the Gujarat High Court, are unable to subscribe to the said view.

 

On interpretation:

(any interpretation of any section of any Act has to be made keeping in view the object and purpose of the Act)

 

Normal rule of interpretation is, to give such meaning

to the provisions of the Act, which furthers the object of the Act

and does not restrict its applicability so as to defeat its very

object and purpose. The intention in making a provision, the

principle which guided for such an enactment and the mischief which

is intended to be rectified cannot be lost sight of, while

discovering the true meaning and import of the provisions of the

Act.

 

While interpreting any statute, normally a literal

construction of the provision has to be made and if the language is

clear, unambiguous and meaningful, which forwards the cause of

enactment, the Court would restrain itself from making an effort to

interpret the provisions in any different manner, which would have

the effect of amending the rule or rewriting the provision. The

literal rule of construction is the normal rule of interpretation,

which does not infringe upon the statute or the statutory provision

and carries forward the intention, object and purpose of the Act.

Any hardship to any person or any lacuna in the Act can also not be

filled in, unless of course the provision militates against the

object and purpose for which it has been enacted or leads to

absurdity.

 

The judgement then gives several quotes from previous High Court and Supreme Court judgements regarding "liberal interpretations keeping in mind the object of the main act)

 

While dismissing the WP by the PIO, the judgement also asks the Government to consider suo-moto disclosing such information under Sec 4.

 

The full judgement/order is uploaded to http://www.rtiindia.info

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karira

As reported by Tannu Sharma in indianexpress.com on 21 October 2008:

Supreme Court to examine whether CM fund comes under RTI Act

 

Supreme Court to examine whether CM fund comes under RTI Act

 

 

NEW DELHI: : The Supreme Court on Monday, in view of conflicting opinions by two high courts, agreed to examine whether information pertaining to the Chief Minister’s Discretionary Fund could be made public under the Right to Information (RTI) Act.

Acting on an appeal filed by a Public Information Officer (PIO) of CM’s Office, Uttar Pradesh, a bench of Chief Justice K G Balakrishnan sought a response from the State Information Commission and also its Chief Information Commissioner.

 

The apex court has also issued a notice to Akhilesh Pratap Singh, who had filed an application under the Act seeking list of persons who received more than Rs 1 lakh during August 28, 2003 to March 31, 2007 from the CM’s Discretionary Fund.

 

Senior advocate Shobha Dixit, who appeared for the PIO, urged the apex court to examine whether the state could withhold information regarding the fund. She in her submission pointed to the contrary views taken by the high courts of Allahabad and Gujarat.

 

While the Lucknow bench of the Allahabad HC in its decision dated July 1, 2008 directed that information regarding the fund could not be exempted from disclosure under Section 8(j) of the RTI Act, the Gujarat HC took a different view.

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karira

As reported by IANS on ibnlive.com on 21 October 2008:

Mayawati fights in SC on Mulayam's behalf

 

 

Mayawati fights in SC on Mulayam's behalf

 

New Delhi: Uttar Pradesh Chief Minister Mayawati's office on Monday approached the Supreme Court to oppose the State Information Commission's order to reveal details about Mulayam Singh Yadav's distribution of the chief minister's discretionary funds during his tenure.

 

A bench of Justices K.G. Balakrishnan and P. Sathasivam issued notices to the commission and Congress leader Akhilesh Pratap Singh, but refused to suspend the commission's order.

 

"What's wrong in revealing the information," the bench remarked as the Uttar Pradesh government's counsel pleaded for a direction that the commission's order be suspended.

 

In December 2007, the Uttar Pradesh Information Commission had asked Mayawati's office to reveal details of all monetary donations above Rs.100,000 made by her arch rival Mulayam Singh from the fund during his tenure as chief minister between August 2003 and March 2007.

 

The order, on a plea by Akhilesh Pratap Singh under the Right to Information Act, has left the Mayawati government waging a relentless legal battle to shield information on the dubious largesse of her arch political rival.

 

Akhilesh Pratap Singh had first approached the Chief Minister's Office on June 12, 2007, within a month of Mayawati being sworn in as chief minister.

 

Mayawati's office denied him the information on grounds that revealing it would hurt the privacy of the people who had taken the financial help.

 

Akhilesh Pratap Singh then approached the State Information Commission, which ruled in his favour and asked the Mayawati government to give him the requisite information.

 

Mayawati's government in turn moved the Lucknow bench of the Allahabad High Court, challenging the order of the state's transparency panel.

 

The State Information Commission dismissed the appeal in July 2008, prompting the Mayawati government to approach the apex court.

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parsar
The Allahabad High Court (Lucknow Bench) has passed a important order in a Writ Petition, clarifying Section 18 and various other matters under the RTI Act 2005.

 

It is a very long order and the main points are as below:

 

1. Applicant asked for information regarding details of recipients of UP Chief Ministers Discretionary Fund.

 

2............

.............

............

 

The full judgement/order is uploaded to http://www.rtiindia.info

 

 

(1). Please provide WP no. of Guj. HC, cause title, date of disposal of WP, as unable to down load from rtiindia.info

(2). Also further updation, whether the matter has been decided at Supreme Court?

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karira
(1). Please provide WP no. of Guj. HC, cause title, date of disposal of WP, as unable to down load from rtiindia.info

(2). Also further updation, whether the matter has been decided at Supreme Court?

 

1. Please wait for some time (If I forget to post, just remind me by PM)

2. No news as yet.

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karira

Yes that is the one.

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jetley
T

The full judgement/order is uploaded to www.rtiindia.info

 

Since that site does not appear to be functioning since long, would it be possible to upload the judgement in this thread?

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karira

I had uploaded nearly 125 judgments of different HCs on that website but it has a bug and admin is trying to resolve the issue.

 

Unfortunately, I did not keep a back up with me.

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jetley
I had uploaded nearly 125 judgments of different HCs on that website but it has a bug and admin is trying to resolve the issue.

 

Unfortunately, I did not keep a back up with me.

 

If some members have downloaded them from there, please do the needful to upload them in this forum, if permitted

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smbhappy

The citation of the Allahabad HC as mentioned in the post #1 is missing. It will always be appropriate to either give the citation to the case No. so that a reference to it could be made in the appeals/complaints/arguments/rejoinders etc.

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smbhappy

for the benefit of all the citation is:

 

Writ Petition No. 3262 (MB) of 2008 of Allahabad High Court.

Public Information Officer Vs. State Information Commission, U.P. and others.

bench: Hon'ble Pradeep Kant, J. and Hon'ble Shri Narayan Shukla, J.

(Delivered by Hon'ble Pradeep Kant, J.)

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