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Absence of reasons by PIO in his order denying information cannot be justified by reasons provided in the appellate order


Dr V S Prasanna Rajan

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Dr V S Prasanna Rajan

Often information is denied by the PIO by cryptic statement(s) quoting some provisions under section8(1) or 9 of the RTI act, 2005 or even some other extraneous factors not provided in the RTI act, 2005 , thereby denying the information without any cogent reasons for the same.

 

The applicant files first appeal and the first appellate authority most often (!) justifies the denial of the PIO by providing some reasons.

 

However, the appellate order containing reasons, justifying the original order of the PIO in which no reasons were given for the denial, is not valid in law.

 

The above proposition was highlighted by the honorable supreme court in ORYX Fisheries Private Limited- Versus - Union of India and others

 

The copy of the judgment of the supreme court is attached with this post.

 

In paras.42,43, the court held - Absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order.

 

43. In Institute of Chartered Accountants of India v. L.K. Ratna and others,(1986) 4 SCC 537, it has been held:

“……after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.”

 

Hence, relying on the aforementioned judgment, whenever, an RTI applicant receives a reply from PIO denying the information without cogent reasons supporting such denial, and the order by the First appellate authority contains reasons justifying the denial, then a second appeal can be filed against the order of the FAA justifying the denial containing the reasons which were not present in the original order of the PIO.

 

Hence, in such case, the Information commission has two options -

 

(a) It may remand the application back to the PIO to decide the issue of providing information and justifying the denial by cogent reasons.

 

(b) Or it may order the PIO to provide the information subject to other provisions of the RTI act, 2005.

 

The judgment of the apex court can also be effectively used to prevent the information commission acting as the mouth piece of the public authority.

Apex court - Absence of reasons in the original order cannot be compensated by disclosure of rea.pdf

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MANOJ B. PATEL

R/vsprajan sir, thanks very much for posting a very useful judgement. Hon'ble Court has pointedly mentioned a very important points of natural justice in this judgment.

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karira

@vsprajan

 

Please clarify whether this means:

 

1. That FAA can ONLY decide the first appeal based on the reasons (or non reasons) given by the PIO

2. That FAA CANNOT add any other / anymore / any additional reasons to what the PIO has already decided

3. Since the SC judgment talks about the "appellate process", does the same hold good for CIC/SIC as well (since they are also part of the appeal process) ?

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Dr V S Prasanna Rajan
@vsprajan

 

Please clarify whether this means:

 

1. That FAA can ONLY decide the first appeal based on the reasons (or non reasons) given by the PIO

2. That FAA CANNOT add any other / anymore / any additional reasons to what the PIO has already

decided

3. Since the SC judgment talks about the "appellate process", does the same hold good for CIC/SIC as well (since they are also part of the appeal process) ?

 

1. Yes. FAA can only decide the first appeal based on the reasons or non reasons given by the PIO because of the statutory mandate of Section 19(5) of the RTI act, 205, that in the appellate process, the onus of denial rests only on the PIO.

 

2. Based on the statutory mandate under section 19(5) of the RTI act, 2005, the FAA cannot act as a mouth piece of the PIO by adding any more or additional reasons beyond what is stated by the PIO.

 

3. The FAA can only elaborate the reasons already given by the PIO justifying the denial of information in discharge of his statutory responsibility under Section 19(5) of the RTI act, 2005.

 

4. If the PIO doesnt give any reasons in his original reply to the applicant, for denying the information, he cannot create any new / fresh reason for denial in the appellate proceedings discharging the onus under Section 19(5) of the RTI act, 2005.

 

5. Point numbers 4 is valid for proceedings even before the Information Commission.

 

6. In the proceedings before the Information commission, the role of the commission is limited to a neutral adjudicating body and it cannot add or alter or modify the reasons given by the PIO justifying the denial of information because of the statutory mandate under section 19(5) of the RTI act,2005.

 

7. In the proceedings before the information commission, if the PIO does not satisfactorily discharge the statutory responsibility under section 19(5) of the RTI act, 2005, with respect to the denial of information, then two possibilities arise -

 

(a) The information commission can direct the PIO to provide the information, after recording cogent reasons for the non-acceptance of the stand taken by the PIO for denying the information which is binding.

 

(b) It can remand the RTI application back to the PIO to process the application while at the same time mandating the PIO to give cogent reasons for denial of information , which should be consistent with his stand of denial in the appellate proceedings while discharging his onus under section 19(5) of the RTI act, 2005.

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Dr V S Prasanna Rajan

In continuation of my previous posts.1,4 it is mentioned that -

 

1. If the information in its second appeal provides reason other than what the PIO has stated justifying his denial under section 19(5) read with sections 8(1),9 of the RTI act, 2005, then a review based on procedural defect lies against such decision of the information commission, highlighting the fact that the Information commission in the second appeal cannot usurp the statutory responsibility of PIO mandated under Section 19(5) of the RTI act, 2005, by justifying the denial of information for reasons other than what is stated by the PIO.

 

2. The Information commission can only elaborate the reasons already given by PIO or it can direct the information to be provided, if it does not agree with the reasons already provided by the PIO or it can remand back the RTI application back to PIO decide in accordance with law by providing cogent reasons for the denial of information as the case may be.

 

3. A writ petition would also lie against the decision of the information commission in the second appeal, if the information commission provides reasons other than what PIO has stated for denying the information, highlighting the fact that Information in second appeal cannot usurp the statutory responsibility of PIO mandated under Section 19(5) of the RTI act, 2005, by justifying the denial of information for reasons other than what is stated by the PIO.

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