- Constitutional position of Governor and Lt Governor
- Office of Hon. Lt Governor
- Lt. Governor as Public Authority under RTI
- Claim of Parliamentary Privilege
- Immunity from probing into advise of the Governor
- The Stay order
- Om Prakash Kashiram v PIO, Lt Governor’s Secretariat [CIC/SA/A/2014/001069]
- SP Gupta v. Union of India, AIR 1982 SC 149
- Is there any other privilege?
- Punjab v SS Singh AIR 1961 SC 493
- Shri Harish Chandra Singh Rawat v Union of India, writ petition M/S No. 795/2016
- New York Times v United States, 403d U S 713 (1971).
- US v Renolds, 345 US 1 (1971)
- Bombay Environmental Group v Cantonment Board, Pune
- Indian Express Newspaper v India, AIR 1986 SC 515
Right to Information Act, 2005 – the office of the Delhi Lieutenant Governor (LG) was a “public office” under the RTI Act – a recommendation sent by the LG to the central government can be made available under RTI.
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
(Video Conference – Rajnandgaon)
Aditya Jain Vs. Lieutenant Governor Secretariat
The appellant is present for video conference at NIC Studio, Rajanandgaon. The Public Authority is represented by Mr. J. P. Kothari at Delhi.
1. Appellant filed RTI application for certified copies of the request/recommendation to dissolve the Delhi Legislative Assembly sent by Hon. Lt. Governor to the Union Government or the President and certified copy of all the documents/records, based on which decision to dissolve the Delhi Legislative Assembly was taken. The CPIO denied on 25.11.2014 claiming exemption under section 8(1)(c) of the RTI Act. His first appeal was disposed on 13.01.2015 without further action.
2. Two main questions before the CIC are:-
a) whether there is any immunity to the report of Hon. Lt. Governor submitted to Union government under Constitution?
b) Whether information sought will cause breach of privilege of Parliament or State Legislature, which is barred by Section 8(1)(c)?
3. Whether the information sought by appellant was ‘information’? The definition of information under Section 2(f) of the RTI Act is:-
“information” means any material in any form, including records, documents, memos, e mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
4. Appellant sought the report sent by the LG Office under Article 239 AB of the Constitution and other related papers. The Commission holds that the report of the LG, etc., is the “information” under Section2(f) of RTI Act. Subject to Section8, every citizen has right to information about report and that the report is held by the Office of LG and the Ministry of Home Affairs.
# Constitutional position of Governor and Lt Governor
5. The Constitution has provided protection to advice given by President & Governor from inquiry in court, under Article 74(2) & Art 163(3) respectively, Article 163(3) Constitution says:-
The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.
6. This provision protects the advice given by the Council of Ministers, immunity from being probed into, but there is no prohibition against the disclosure. Following articles provided administration of Delhi Union Territory. Article 239(1) says:-
Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.
# Office of Hon. Lt Governor
7. Article 239 of the Constitution says that every Union Territory shall be administered by the President, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. Articles 239A, 239AA 239AB and 239B provide for local legislature or Council of Ministers in those Union Territories and deal with several aspects of administration in relation to the National Capital Territory, the Lieutenant Governor and Legislative Assembly. The office of LG, being a constitutional authority, should be a ‘public authority’. All the privileges and immunities that are associated with high office of LG are provided and protected under RTI Act through various exceptions.
Article 239AA provides for Lt Governor, it says:-
Article 239AA (1) As from the date of commencement of the Constitution (Sixty ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor.
Article 239AA (4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion…..
8. Immunity available only to advice tendered to Governor or President by the Council of Ministers and that is not available to the Lt Governor of New Delhi UT.
# Lt. Governor as Public Authority under RTI
9. The Office of Governor is a Public authority had been held to be public authority by the Hon’ble High Court of Bombay at Goa in Public Information Officer, Joint Secretary to the Governor Vs Manoj Parrikar [Writ Petition No. 478 OF 2008].
Undoubtedly, the post of President and that of the Governor is created by the Constitution. ……..The President and the Governor owe their existence to the Constitution. Being so, the President and the Governor are clearly covered by clause (h) of the definition of the “public authority” (15).
….the mere fact that the President and the Governor are authorities mentioned in sub clauses (iv) of section 2(e) of the RTI Act, would not exclude them from the definition of “public authority”.
Bombay High Court fortified their view by a decision of the Special Bench (of Three Judges) of Delhi High Court, rendered in Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal, (L.P.A. No. 501/2009 decided on 12th January, 2010). In that case, the Chief Justice of India (who is the “competent authority” under section 2(e)(ii) of the RTI Act) was also held to be the “public authority”. (Para 17)
10. The Bombay High Court has answered an interesting question saying Governor is not sovereign and hence direction can be given to disclosure of any information under the RTI Act.
Jurisprudentially, in our view, the sovereign is that person or body of persons which receives habitual obedience from the bulk of a given society and does not himself habitually obey some other person or persons. It has two aspects, viz. (i) a bulk of the society obeys him, and (ii) he does not obey any other.
11. The sovereign has a power to make laws (legislative power), to enforce laws (executive power) and to decide any dispute or issue, including interpretation of the laws (judicial power). The preamble recognizes the resolution of the people of India to constitute India into a sovereign socialist secular democratic republic. It is in them that the sovereignty vests, the President being the mere formal head of the State……..what needs to be stated here is that save and except the immunity which is granted under Article 361, the President and the Governor do not enjoy any other sovereign immunity from disclosure of information under the RTI Act…… In this connection, a reference may be made to the exemption provided under clause (a) of section 8(1) of the RTI Act which exempts disclosure of an information which would prejudicially affect the sovereignty and integrity of India, amongst other things. The exemption against disclosure of an information under the RTI Act is restricted in respect of sovereign functions of the President or the Governor only to the extent it is protected under section 8(1)(a) of the RTI Act or under Article 361 of the Constitution and no more.
Supreme Court in
# Rameshwar Prasad and others (VI) Vs. Union of India and another, (2006) 2 SCC 1
179. … The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides.”
….. the immunity granted by Article 361(1) does not take away the powers of the Court to examine the validity of his action, including on the ground of malafides.
12. Citing above case, the Bombay High Court stated that PIO has to justify how exemption to disclosure would apply, and held:-
In our view the public authority, be it Governor or anybody else, would then be required to disclose the information. Any direction so issued, in our considered opinion, would not enjoy any immunity under Article 361 of the Constitution.
The Governor, before assuming his office, takes an oath not only to preserve, protect and defend the Constitution, but also the law. He is bound by the oath taken by him. If the law requires disclosure of an information and if it is so held by the PIO or the first appellate authority or the State Information Commission (which is the final appellate authority) in accordance with the RTI Act, in our considered view, the Governor by virtue of the oath of office he takes, is bound to obey the decision and disclose the information, or else, he would not be defending the law i.e. the RTI Act.
13. The above decision of Bombay High Court has been stayed by Hon’ble Supreme Court. This is the legal status of the question regarding the Governor. On merits it was decided that Governor is the public authority. But there is no such pronouncement regarding the office of LG of New Delhi. On the similar lines the LG is a public authority as far as RTI Act is concerned. Factually speaking, the Office of LG is operating as public authority under RTI Act. In http://delhi.gov.in/wps/wcm/connect/doit_lg/New/LG/RTI, the official website of LG contains the RTI regime is specified along with names of designated PIOs and First Appellate Authority, their addresses. The officers of LG office are also very responsible and responsive in most of the cases, in both answering RTI questions and complying with the orders of First Appellate Authority and the Information Commission. So far they have never raised the claim that the office of LG was not a public authority under RTI Act, 2005 before the Commission. Thus there is no dispute about status of LG as public authority under RTI Act.
14. There is an interim stay of Delhi High Court in W.P (C) 1052/2015 was obtained against the order of this CIC on directing disclosure of correspondence between LG and Political Parties before dissolution of Delhi State Assembly. It would operate as a bar against giving that information only and not on his request as information sought by Appellant in this appeal is different from that.
15. As the LG Office was acting as public authority even after passing of this stay by Delhi High Court, which means that, even by acquiescence there was no stay on functioning of LG office as public authority under RTI Act.
16. Appellant said that the question in that SLP concerns “Governor of a State” whereas his request for information was made to the LG, who is functionally an ‘Administrator of Union Territory’. The name of designated office is ‘Lieutenant Governor’ not as ‘Governor’ (see Article 239AA of the Constitution). It was also contended that there is no order explicitly allowing the plea in the interim order, that Lt. Governor’s office is not a public authority.
17. As per etymology or law or status or ranks in practice, the designation ‘Governor’ is different and superior to ‘Lieutenant Governor’. The meaning of lieutenant (pronounced “looTENunt”) is ‘one who takes the place of another’ (as per late 14 th century meaning), Lieu tenant means ‘substitute, deputy’ (from Old French). The notion is of a ‘substitute’ for higher authority, and specific military sense of ‘officer next in rank to a captain’ is from 1570s. (see http://www.etymonline.com/index.php?term=lieutenant). Thus even if it is understood that ‘Governor’ is not held to be public authority, the Lt. Governor could be a public authority. The Commission holds that it is undisputed as per the law, facts and acquiescence by the office of Honorable Lieutenant Governor, is a public authority under RTI Act, 2005 and thus accountable & answerable.
# Claim of Parliamentary Privilege
18. Information sought was denied on the ground of Section 8(1)(c), which says:-
..there shall be no obligation to give any citizen…information disclosure of which could cause a breach of privilege of Parliament or the State Legislature.
19. The PIO of the public authority did not discharge his burden under S 19(5) as he did not explain how the disclosure of report/recommendation of Lt Governor to the Union Government would cause breach of privilege of Parliament or State Legislature. A mere claim of breach of privilege under this section is not enough without explaining it and justifying it.
20. The defense available under section 8(1) is ‘breach of privilege of Parliament/Legislature, and not ‘breach of privilege of Head of State or Governor or President’. In this case the question is: whether disclosure of report sent by Honorable LG would cause breach of Privilege of Parliament or Legislature? It is nobody’s claim that the disclosure of report would cause breach of privilege of Parliament. It does not affect the freedom of speech of legislators, their right to publication, does not affect their immunity from being questioned before the court, none of their special rights will be affected by disclosure of the report sent by the LG in his capacity as Administrator of Delhi Government. In fact every parliamentarian or legislator is having privilege to know the report/recommendation of dissolution along with reasons for the same rendered by the LG to the Union Government.
21. Moreover, the recommendation of the LG was acted upon and the entire process was completed as it is a matter of fact that the Delhi Assembly was dissolved, the elections were conducted and new Government is was installed.
22. All the exceptions listed under section 8(1) are subject to proviso given at the end of sub section that “provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person“. If the parliament summons this report, the Union Government cannot deny. Hence, it should be given to the citizen.
23. The Commission agrees with the contention of appellant that Article 163(3) of the Constitution does not apply to Union Territory of Delhi, which could be invoked only in case of a fullfledged and not to the UT with assembly like Delhi. Delhi is a Union Territory and there are specific provisions under 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 with this communication. Even in those cases where Article 163(3) applies, there is no immunity from disclosure. 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.
24. There is no reason or ground contended or on record to say that the disclosure of the report of LG would cause any breach of privilege of Parliament or Assembly and thus the exception 8(1)(c) will not apply.
# Immunity from probing into advise of the Governor
25. The Office of Hon. Lt Governor is contending that the information sought is protected under Article 163 (3) of the Constitution, which says:-
The question whether any, and if so what advice was tendered by Ministers to the Governor shall not be inquired into in any court.
26. Under this Article, the Governor has independent discretionary power and hence his decision could not be questioned. Does it mean that the advice tendered by the Council of Ministers to the Governor is secret or privileged or should not be disclosed? Such an inference is baseless. The advise tendered by the Council of Ministers to the Governor and the material based on which such advice was given need to be disclosed and debated. The Supreme Court in S.R. Bommai laid down a landmark principle that though advice cannot be probed into, the material based on which such advice was tendered can be reviewed by Judiciary as that formed basic structure of the Constitution. Thus, the Cabinet’s advice to Governor or President is neither a secret nor privileged. The RTI Act under Section 8(1)(i) makes it mandatory that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over. The information referred to in this proviso is the decision by the Executive, which is similar to the decision of the LG to advice the Union government to dissolve Delhi Legislative Assembly. This cannot be considered as a Secret document which cannot be disclosed.
27. As stated in proviso of Section8(1)(i) or RTI Act, the Executive has to disclose the decision, the reasons thereof and the material on the basis of which the decision was taken, after the decision has been taken, the matter is complete, or over. The advice of the LG to the Union Government was already acted upon when the Delhi Legislative Assembly was dissolved, fresh elections were held and a new Cabinet was installed. Thus, the matter is complete and over. The Executive should publish this information voluntarily as per S 8(1)(i) proviso. At this stage, there should not be any problem in disclosing the report sought.
28. The Supreme Court in
# Bommai, SR vs. Union of India, (1994) 3 SCC 1)
stated that notwithstanding Art. 74(2), it is open to the Court to inquire [para 2, 167(II), 453]:-
29. Commission finds that it is clarified that the material ‘information’ can be reviewed by the Judiciary. The review is possible only when information is disclosed. The Constitution nowhere accorded immunity from disclosure.
# The Stay order
30. The Commission in the case of
# Om Prakash Kashiram v PIO, Lt Governor’s Secretariat [CIC/SA/A/2014/001069]
had observed as follows:-
There was no claim by respondents (LG office) that they were not public authority. Respondents claimed ‘privilege’ while appellant said that there was no case made out for exemption on that ground. The Right to Information Act, 2005 does not accord any privilege to any other authority to deny communication except to legislature under Section 8(1)(c). In case of
# SP Gupta v. Union of India, AIR 1982 SC 149
the apex Court held that while the exact advice given by the Council of Ministers to the President could not be examined by the Court, the material on which such advice was based was not excluded from the judicial purview. Six judges of a 7 member Bench held that no privilege could be claimed with respect to the documents which constituted the material for forming opinion in the case of appointment and transfer of judges. The Supreme Court finally gave a statement which gave life to the ‘right to information’ and removed the curtains of secrecy. ‘…where a document was withheld, a court could examine it, and only when it was convinced that its disclosure would prejudice public interest, could it allow such action. The Government’s privilege to withhold disclosure of documents was considered as subject to the right to information of the individual’.
The Commission in that case held: The Correspondence between Executive Head and a Political Leader regarding appointment of Chief Minister is not privileged correspondence as per any provision of the RTI Act or Constitution of India. It is not information given in fiduciary relationship. Assuming again for a moment that disclosure of such information would cause harm to ‘protected interest’, Section 8(2) comes to the aid of disclosure. The Supreme Court in Bommai case (1994 SCC (3), 1) held that Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President has arrived at his satisfaction for issuing the Proclamation under Article 356(1). The respondent authority submitted that their higher officers have decided to go in appeal against this CIC’s order to disclose similar information about political party’s correspondence with the LG office in an earlier application. Hon’ble Delhi High Court in W.P (C) No. 1052/2015 had granted stay in that matter while holding that the question ‘whether L.G Office is a public authority or not’ is under consideration before the Hon’ble Supreme Court of India in SLP(C) No. 33124/2011 [PIO Vs Manoj Parrikar and Ors.] and also in view of Article 163(3) of the Constitution. In response to the Commission’s question whether the public authority would respond to the other RTI appeals before the Commission; the CPIO stated, in spite of this stand, it was ready to furnish information to various RTI applications to the extent feasible by them.
# Is there any other privilege?
31. The privilege under Section 123 of the Indian Evidence Act is claimed frequently by the Government to authorize them not to produce its unpublished records in courts. As per this section a witness cannot be permitted to give any evidence which is derived from unpublished records relating to any affairs of state without permission of the officer at the head of department concerned. In a landmark decision in
# Punjab v SS Singh AIR 1961 SC 493
the Supreme Court considered the effect of Section 123 and Section 162 of Indian Evidence Act on the claim of privilege by government to the minutes of the meeting of council of Ministers, advice tendered by the Public Service Commission etc. The Supreme Court, through Gajendrakadkar J, writing for majority, laid down certain rules in this regard. The fifth rule is relevant for this case.
(5) A privilege should not be claimed under section 123 simply because it is apprehended that the document, if produced would defeat the defense raised by the State. The apprehension that the disclosure may adversely affect the government, or that it may provoke public criticism, shall not be a criterion for claiming privilege. The sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else.
32. Though such a broad rule is laid down the Supreme Court in that case held that documents regarding minutes of Cabinet Meeting or advice of PSC to the Ministers or advices of the Council to Governor are protected under Section 123 of Evidence Act. Subbarao J in his dissenting judgment ruled against granting privilege to the report of the Public Service Commission as he failed to understand how public interest would suffer if that report was disclosed and how such disclosure would deter the Commission from expressing its views in future cases.
33. The majority in SP Gupta (AIR 1982 SC 149) held that the correspondence between high dignitaries and notes made by the Constitutional functionaries cannot be regarded as a class protected, entitled to immunity against disclosure.
# Shri Harish Chandra Singh Rawat v Union of India, writ petition M/S No. 795/2016
Uttarakhand High Court’s Division Bench in its recent order invalidating President’s Rule in Uttarakhand, referred to these two important cases and stated that the larger bench in SP Gupta case took the view that in an open democratic society, there is little scope for claiming right to withhold documents. The trend should be disclosure of information. It is crucial in the efficient working of a mature democracy. The division bench said:-
We are making his observation with another object also in mind. We notice that, after the Right to Information Act has been passed by the Parliament, there is a change brought about. It is true that in Bommai’s case and in Rameshwar Prasad’s case the court has taken a view that it is open to the Government to raise the claim under Section 123. We only wish to notice that under Section 8(1)(i) of RTI Act, ‘the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over’. Therefore after the enactment of the said law in keeping with the inclination of the people to know more about the state affairs of the State, without which their right under Article 19(1)(a) itself would be considerably obstructed, the Parliament has brought about this change. We are highlighting this aspect only to point out that, under this provision, as and when the Council of Ministers takes a decision, it would appear to be the duty to make public the material and also the reasons for the decision of the Council of Ministers. This will result in opening up of the windows and allowing in the sunlight of information and knowledge, which, by far, is the best disinfectant for killing all kinds of ills that are plaguing our body polity’.
35. In this judgment the bench referred to complete text of communication dated 19th, 21st, 25th, 26th March, 2016, marked as ‘confidential’ between Governor Dr K. K. Paul and President of India, marking a copy to PM and HM, as furnished by Attorney General of India and letter to President by BJP on 26th March 2016, cabinet note and letter to President by BJP on 26th March 2016 to President, was discussed. The Division Bench of Uttarakhand reviewed the material produced and invalidated the proclamation of President’s Rule. This is the latest order which reiterated the legality of opening up the correspondence between Governor and President with cabinet notes and ‘confidential’ documents etc, explaining how the RTI overrides the so called law of ‘privilege’ under Indian Evidence Act.
36. When New York Times was publishing news stories revealed unpublished records of Defense Department report called Pentagon Papers regarding US war on Vietnam, state wanted injunction against publication claiming the privilege to the reports as classifying them ‘top secret’, the US Supreme Court refused both claims – to privilege and prayer for injunction. It was held that Constitution bars any restraint upon newspaper publication, regardless of the nature of material published, except under special circumstances, where it would result in direct, immediate and irreparable damage, which was called doctrine of ‘clear and present danger’.
# New York Times v United States, 403d U S 713 (1971).
This decision was a landmark reversing the trend set by
# US v Renolds, 345 US 1 (1971)
where the claim of privilege of documents regarding certain test electronic equipment was upheld. Here, the widows of pilots who had died in an aircrash demanded the documents to know the reason for crash.
# Bombay Environmental Group v Cantonment Board, Pune
(Appellate writ Petition 2733 of 1986 pp 44, 45) right of citizen to get information was asserted. Held that petitioners were entitled to get the information asked for, since Article 19(1)(a) takes in its import the disclosure of information in regard to the functioning of the Government and the right to know about it. However, court warned that such a right of inspection should be sparingly used.
# Indian Express Newspaper v India, AIR 1986 SC 515
at para 31, the Supreme Court has held:-
“It is with a view to checking malpractice which interfere with the free flow of information, democratic institutions all over the world have made provisions guaranteeing the freedom of speech and expression, laying down limits of interference with it. Therefore, primarily duty of national courts is to uphold the said freedom and invalidate all laws or administrative actions which interfere with it contrary to the Constitutional mandate”.
39. The privilege for ‘affairs of state’ has been gradually diluted with following provisions of various laws:-
a) Article 19(1): Right to information is intrinsic part of freedom of speech and expression.
b) Article 21: Right to know is part of Right to life
c) Article 22(1): State has to give grounds of arrest and under (5) the grounds of detention has to be given.
d) Article 311(2): the state has to inform the grounds for dismissal of government servant.
e) Section 41B, Code of Criminal Procedure, arresting officer has to inform the arrested his clear identification, inform person arrested, his relative or friend named by him.
f) Section 50, Cr P C, person arrested should be informed of grounds of arrest and of right to bail.
g) Section 327 Cr PC all judicial proceedings have to be conducted in open court.
h) Section 26, Representation of Peoples Act 1951, the candidates have to submit statement of election expenses.
i) Section 29(a) Representation of Peoples Act, 1951 the Political Parties putting up election candidates must give information about their objects, names etc.
j) Every candidate contesting election has to give background of his/her education, crimes and financial status. (Supreme Court judgment in ADR v Union of India, 2002)
k) Every income tax payer is bound to disclose his true income as per sections 137 and 277 of Income Tax Act 1961.
40. The Right to Information Act, 2005 is the latest law that is codification of the ‘freedom of speech and expression’ guaranteed under Article 19(1)(a) in terms of right to receive information. Section 3 gives every citizen right to information. This has consolidated all the above listed provisions facilitating access to information in different legislations. RTI Act has revolutionarily changed the so called law of privilege where the Government held information as secret as matter of principle and disclosed exceptionally. With RTI Act in place since 2005, rule is disclosure and exception is holding it. It has overridden the Official Secrets Act, 1923 and all other legislations which contradict or conflict the RTI Act. The provisions of privilege in Indian Evidence Act have to give way to the disclosure now as per Section 22 of Right to Information Act, 2005. 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 nondisclosure 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 s 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. The privilege against disclosure under Evidence Act is eclipsed by Right to Information Act. Claiming privilege to information about ‘affairs of state’ is violation of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. After RTI Act 2005, the reasonable restrictions on right to information could not be anything other than what are provided under Sections 8 and 9 of RTI Act. Right to information is part and parcel of the Freedom of Speech and Expression, denial of information against RTI Act would amount to breach of that freedom.
41. The privilege mentioned in Section 8(1)(c) is Parliamentary privilege, and if the information sought might cause breach of Privilege of parliament or assembly, that alone could not be given. There is no way that public authority can say that report given by the Lt Governor to Union Government would cause any breach of Parliament or State Assembly. There is not even iota of justification given by public authority about possibility of such ‘breach’ of privilege.
42. Most interestingly, the Governors in recent times positively responded to RTI requests of Mr. Venkatesh Naik of CHRI, and shared copies of their reports to the Union Government recommending imposition of President’s Rule in respective states. In response to RTI request dated 11.1.2016, the Ministry of Home Affairs has shared report given by the Governor N N Vohra of Jammu & Kashmir dated 9th January 2016 to Prime Minister and Home Minister referring to responses of political parties regarding formation of government in J & K, President’s signed copy of letter dated 9th January 2016 and proclamation of Government’s Rule. The letters written to presidents of Political Parties and file notings were also given. The MHA in another response to RTI request dated 22 nd March 2016 gave the copies of report given by Sri J P Raj Khowa, Governor of Arunachal Pradesh to President of India on 15th January 2016. The Attorney General shared the Report and other documents from the office of Governor of Uttarakhand in the month March 2016 which was reviewed and based on which the Uttarakhand High Court invalidated the President’s Rule. Then, how it is logical or legal to deny the report of the LG advising the Union Government to dissolve the Delhi State Assembly and other related papers.
43. Information sought has to be shared, because
a) the immunity under Article 163(3) will not apply to Lt G.,
b) such immunity is from probing but not from disclosure,
c) request for information is not probe into advice,
d) not exempted by any provision of RTI Act,
e) there is no stay operating on disclosure,
f) the information sought is already known,
g) there is need for transparency in decision making process regarding dissolving and elected house in public interest,
h) there is neither executive privilege nor legislative privilege and
i) there is nothing to show that disclosure would case breach of parliamentary privilege.
44. The Commission directs both the office of Honorable LG and the Ministry of Home Affairs, to provide certified copies of report along with all other papers sent by Honorable LG to the Union Government to the appellant, within 30 days from the date of receipt of this order.