Aditya Jain Vs. Lieutenant Governor [Central Information Commission, 25-05-2016]

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)

Information Commissioner

CIC/SA/A/2015/000748

(Video Conference – Rajnandgaon)

Aditya Jain Vs. Lieutenant Governor Secretariat

Parties present:-

The appellant is present for video conference at NIC Studio, Rajanandgaon. The Public Authority is represented by Mr. J. P. Kothari at Delhi.

FACTS

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)?

Information

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.