Part
A I Decisions of Supreme Court
The information to be
gained access to / certified copies on the judicial side to be acquired through
the machinery provided under the High Court Rules, the requirements of the RTI
Act shall not be available1
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Case name:
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Chief Information Commissioner vs. High Court of
Gujarat and another
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Citation:
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Civil Appeal No(s). 1966-1967 of 2020 [Arising out of
SLP(C) No. 5840 of 2015]
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Court:
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The Supreme Court of India
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Bench:
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Justice R. Banumathi
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Decided on:
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4th March, 2020
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Relevant Act/ Sections:
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Gujarat High Court Rules, 1993 – Rule 149 – 154
Right to Information Act, 2005 – Sections 2(f), 2(h),
2(i), 2(j), 4(2), 6(2), 8(1), 19, 22, 28
Articles 124, 145, 216, 225 of Indian Constitution
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Brief facts
and procedural history
An RTI application dated 5th
April, 2010 was filed seeking information pertaining to certain civil
applications made along with all relevant documents and certified copies. In
reply, the Public Information Officer, Gujarat High Court, informed that for
obtaining required copies one should make an application personally or through
one’s advocate by affixing court stamp fees of Rs. 3 with the requisite fee to
the ‘Deputy Registrar’; since the applicant was not a party to the said
proceedings, as per Rule 151 of the Gujarat High Court Rules, 1993 the
application should be accompanied by an affidavit stating the grounds for which
the certified copies are required and on making such application, one will be
supplied the certified copies of the documents as per Rules 149 to 154 of the
Gujarat High Court Rules, 1993.
Being aggrieved, the RTI
applicant preferred an appeal before the Appellate Authority-Registrar
Administration. The appeal was dismissed on the ground that for obtaining
certified copies the alternative effectual remedy is already available under
the Gujarat High Court Rules, 1993.
A second appeal was filed
before the Appellant-Chief Information Commissioner. The respondent reiterated
the position on the High Court Rules but was ordered to provide the information
within 20 days.
Challenging the order of
the Chief Information Commissioner, a special civil application was filed
before the High Court by the respondent. The learned Single Judge, while
admitting the petition, passed an interim order directing the respondent to provide
the information sought within four weeks.
Being aggrieved by the
interim order, the High Court preferred Letters Patent Appeal before the
Division Bench. This Bench set aside the order of the Chief Information
Commissioner by observing that when a copy is demanded by any person, the same
has to be in accordance with the Rules of the High Court on the subject.
The Chief Information
Commissioner, aggrieved by the order of the Division Bench, preferred an appeal
to the Hon’ble Supreme Court of India.
Issues before
the Court
Whether Rule 151 of the
Gujarat High Court Rules, 1993 stipulating that for providing a copy of
documents to third parties they are required to file an affidavit stating the
reasons for seeking certified copies, suffers from any inconsistency with the
provisions of the RTI Act?
When there are two types
of machinery to provide information / certified copies – one under the High
Court Rules and another under the RTI Act – in the absence of any inconsistency
in the High Court Rules, whether the provisions of the RTI Act can be resorted
to for obtaining certified copies / information?
Ratio Decidendi
(i) Grant of certified
copies to parties to the litigation and third parties are governed by Rules 149
to 154 of the Gujarat High Court Rules, 1993. As per these Rules, on filing of
an application with prescribed court fees, stamps, litigants / parties to the
proceedings are entitled to receive the copies of documents / orders /
judgments, etc. The third parties who are not parties in any of the
proceedings, shall not be given the copies of judgments and other documents
without the order of the Assistant Registrar. As per Rule 151 of the Gujarat
High Court Rules, the applications requesting for copies of documents /
judgments made by third parties shall be accompanied by an affidavit stating
the grounds for which they are required. Therefore, the access to the
information or certified copies of the documents / judgments / orders / court
proceedings are not denied to the third parties but a procedure needs to be
followed by the applicant. Hence, the Rules framed by the Gujarat High Court
are in consonance with the provisions of the RTI Act. There is no inconsistency
between the provisions of the RTI Act and the Rules framed by the High Court in
exercise of the object of the RTI Act which itself recognises the powers under
Article 225 of the Constitution of India.
(ii) There is a need to
protect the institutional interest and also to make optimum use of limited
fiscal resources and preservation of confidentiality of sensitive information.
The procedure to obtain certified copies under the High Court Rules is not
cumbersome and is very simple. The information held by the High Court on the
judicial side is the ‘personal information’ of the litigants like title cases
and family court matters, etc. Under the guise of seeking information under the
RTI Act, the process of the Court is not to be abused and information not to be
misused.
(iii) If any information
can be accessed through the mechanism provided under another statute, then the
provisions of the RTI Act cannot be resorted to as there is absence of the very
basis for invoking the provisions of the RTI Act, namely, lack of transparency.
In other words, the provisions of the RTI Act are not to be resorted to if the
same are not actuated to achieve transparency.
(iv) The non-obstante clause of the RTI Act does
not mean an implied repeal of the High Court Rules and Orders framed under
Article 225 of the Constitution of India, but only has an overriding effect in
case of inconsistency. A special enactment or rule cannot be held to be
overridden by a later general enactment simply because the latter opens up with
a non-obstante clause, unless there is clear inconsistency between the
two legislations.
Part
B I Right to Information
PM CARES Fund – The ‘gorilla’ in the
room
By now we are
aware that the Appellate Authority of the Prime Minister’s Office (PMO) has
held that the Prime Minister’s Citizen Assistance and Relief in Emergency Situations
Fund (PM CARES Fund) is not a public authority under the Right to Information
Act, 2005 (RTI Act). Moreover, the funds from the trust will not be transferred
to the National Disaster Response Fund (NDRF) and the fund will not be audited
by the Comptroller and Auditor-General of India, as ruled by the Supreme Court
of India. Yet, there are many questions raised and striving for answers.
To start with, the Prime Minister of India
is the Chairman ex-officio of the Prime Minister National Relief Fund
(PMNRF) as well as the PM CARES Fund, constituted to already have the trappings
of a public trust, the NDRF established thereunder, occupying the arena to deal
with disaster situations, then what was the need to constitute the new PM-CARES
Fund?
Given the federal ideologies of our
Constitution, in case of predicaments like these the amounts collected should
be deposited in the PMNRF and from there transferred to the state governments
for meeting the challenges of the pandemic and saving people’s lives.
A sum of Rs. 6,500 crores was collected by
the PM CARES Fund in just one week and Rs. 3,076.62 crores in four days from
the registration of the trust. This was donated by renowned philanthropists of
our country, well-known tycoons and others. Mr. Mukesh Ambani donated Rs. 500
crores and many others like Mr. Aamir Khan, Mr. Shah Rukh Khan and many more
celebrities came forward and donated to the fund.
The PM CARES
Fund was integrated as a ‘public charitable trust’ with the specified objective
of ‘dealing with any kind of public health crisis or other distress
circumstances, like the Covid-19 pandemic’, ‘to provide financial aid to those
affected by it’ and ‘to perform any other activity not varying with the above
two objectives’. The official website of PM CARES2 provides the
following details:
(a) The PM is the ex-officio Chairman
and the Minister of Home Affairs, Minister of Finance and the Minister of
Defence are its ex-officio trustees and the PM would nominate three
eminent persons to the Board.
(b) It receives voluntary contributions,
with Rs. 10 being the least allowable amount of support, with no budgetary
outlay.
(c) Foreign individuals and organisations
can contribute to a separate account exempt from the application of the Foreign
Contribution (Regulation) Act, 2010.
(d) Contributions made can be apportioned
towards the mandatory 2% Corporate Social Responsibility (‘CSR’) expenditure
and shall be allowed as 100% deduction to calculate taxable income for the year
2019-2020, provided that the contribution is made before 30th
June, 20203. However, contributions flowing out of budgetary sources
of the PSUs are not accepted.
(e) The Fund is administered on an honorary
basis by a Joint Secretary (Administration) in the PMO as Secretary to the Fund
who is assisted on an honorary basis by an Officer of the rank of Director /
Deputy Secretary (Administration) in the PMO. The Prime Minister’s Office
provides such administrative and secretarial support to the trustees for the
management and administration of the Trust as may be required by them.
(f) The Fund is exempted from paying
income tax as per section 10(23)(c) of the Income-tax Act, 1961.
(g) The PM CARES Fund has been allotted a
Permanent Account Number (PAN) AAETP3993P.
(h) The Fund is audited by an independent
auditor. The trustees of the Fund, during the second meeting held on 23rd
April, 2020 decided to appoint M/s SARC & Associates, Chartered
Accountants, New Delhi as the auditors of the PM CARES Fund for three years.
(i) There is no statutory period
prescribed for audit of the PM CARES Fund under the Income-tax Act.
However, audit will be conducted at the end of the financial year.
Keeping in mind the larger picture of
transparency, the PM CARES Fund should come under the purview of the Right to
Information Act, 2005. Likewise, technical reasons like the fund being set up
by the government by using government machinery to promote it and usage of
gov.in as domain name, providing tax reliefs, etc. needs to be considered.
There are multiple pleas in the High Courts and the Supreme Court of India
requesting to bring the PM CARES Fund under the purview of the RTI Act, 2005
and also asking to transfer the funds from the Trust to the NDRF, which have
been dismissed by the respective courts.
Part
C I Information on and Around
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(1)
Appointment of architect for Balasaheb Thackeray Memorial not made by MMRDA but
a trust
In reply to
the RTI application filed by a Mumbai-based RTI activist, Mr. Anil Galgali, the
Mumbai Metropolitan Region Development Authority (MMRDA), the nodal agency for
the construction of the memorial of the late Balasaheb Thackeray which will be
built at Shivaji Park in Dadar, mentioned the procedure of selection of the
architect. The Thackeray Memorial had issued a tender notice directing MMRDA to
appoint a distinguished architect. But the Chairman of the Memorial held a
meeting on 14th May, 2020 wherein architects and project advisers
were selected. MMRDA being the nodal agency for the project and also because of
the taxpayer’s money being involved, should have appointed the consultant and
the architect. But in this case a private trust did it all without inviting any
tender.4
(2) Only 44% State Information
Commissions conduct hearings in July, 2020
The functioning of the State Information
Commissions (SICs) has fallen from 80% in June to 44% in July. This was
observed in a study conducted by the Commonwealth Human Rights Initiative
(CHRI). The study was carried out by contacting each of the 28 SICs across the
country by phone and emails and by following their websites. The first survey
(in April) found that none of the SICs was working, but during the second
survey (in May) 12 SICs had opened their offices. However, only eight were
conducting hearings. According to its third rapid telephonic survey, the
organisation found the SICs that had started attending to litigants in June had
stopped by July.5
(3) Bank of Maharashtra writes off Rs.
7,400 crores in the last four years owed by loan defaulters
The Bank of Maharashtra, a public
sector bank, has ‘technically written off’ an astounding Rs. 7,400 crores
unsettled by loan defaulters in the last four years. The bank has said that it
would recover the amount at a later stage and that it has not been waived
permanently. The recovery rate of such defaults is low and it takes a huge
amount of time. According to information provided by the bank, from 2011 to 2020 it
has written off a total of Rs. 7,400 crores6.
______________________________________________________________________________________________
1 Chief Information Commissioner vs. High
Court of Gujarat and another available at
https://main.sci.gov.in/supremecourt/2015/4228/4228_2015_5_1501_21164_Judgement_04-Mar-2020.pdf
visited on 18.08.2020
2 https://www.pmindia.gov.in/en/about-pm-cares-fund/
3 http://egazette.nic.in/WriteReadData/2020/218979.pdf
4 https://www.timesnownews.com/mumbai/article/who-appointed-architect-for-balasaheb-thackeray-memorial-mmrda-or-trust/638697
5 https://www.hindustantimes.com/india-news/only-44-state-information-commissions-conduct-hearings-chri-survey/story-tMT6otWRcVxyeC0nM7jCNN.html
6 https://indianexpress.com/article/cities/mumbai/bank-of-maharashtra-writes-off-rs-7000-cr-owed-by-loan-defaulters-6557765/
We live in a country where:
Driving without a license = fine of Rs. 2000,
Not having a PUC = fine of Rs. 1000,
Not wearing a mask outside = fine of Rs. 1000,
Insulting the Supreme Court = fine Rs. 1
— social media post on the recent decision by
the SC
