Indian Express: New Delhi: Thursday,
May 26, 2016.
Stating that
the office of the Delhi Lieutenant Governor (LG) was a “public office” under
the RTI Act, the Central Information Commission, in a judgment issued
Wednesday, held that a recommendation sent by the LG to the central government
can be made available under RTI.
The decision
by Information Commissioner Sridhar Acharayulu was made after an RTI query
sought details of the recommendation sent by the LG in November 2014 to
dissolve the Delhi Legislative Assembly. The query by Rajnandgaon resident
Aditya Jain had also sought a certified copy of all the documents/records,
based on which the decision to dissolve the Delhi Legislative Assembly was
taken in 2014. The CPIO had denied the information under section 8 (1) c) of
the RTI Act, claiming that the information sought for was “privileged
information.”
However, the
CIC has now said the protection granted to the “advice given to the President
or Governor” by the Council of ministers was on a different footing than the
material given to the Delhi LG.
“The
Commission agrees with the contention of appellant that Article163(3) of the
Constitution does not apply to the Union Territory of Delhi, which could be
invoked only in case of a full-fledged state and not to a UT with an assembly
like Delhi. Delhi is a union territory and there are specific provisions under
the Constitution of India in Article 239AA. There is no mention of any
provision like protecting the advice given to LG as available under Article 74
(2) (regarding President) and Article 163 (3) (regarding governors). More over
Article 163(3) applies specifically to the ‘advice of a Council of Ministers to
the Governor’. The information sought here is a report sent by the UT
Administrator to Union Government or President. Article 163 has nothing to do
with this communication,” says the order.
Going a step
further, the CIC has held that even in case of information given to the
President or Governor of a state, the material on the basis of which decisions
are taken is not privileged information and is open to scrutiny.
“ Even in
those cases where Article 163(3) applies, there is no immunity from
disclosure,” said the order.
“ If the
documents pertain to affairs of state, they cannot be withheld by state as
privileged documents under Evidence Act, but has to disclose under RTI Act,
subject only to Section 8 and 9. Privilege for non disclosure of documents in
the name of ‘affairs of state’ under Section 123 of Evidence Act is no more
available to any public authority with the advent of transparency regime, which
overrides the archaic law of privilege as specified in section 22, Right to
Information Act 2005. Privilege as an excuse for secrecy of information about
affairs of state is antithesis to democracy, and not available,” held the CIC.
“There is no
bar against citizen from having a copy of the advice/report of LG to Union
government. The Supreme Court has clarified in a landmark case S R Bommai case
that the material forming basis of advice given to Governor could be subject
matter of judicial review, which clearly means information could be disclosed,”
said the order.
The CIC has
now directed both the office of LG and the Ministry of Home Affairs, to provide
the certified copies of the report along with all other papers sent by LG to the
Union Government to the appellant, within 30 days.
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