Category: Corporate And Other Laws

• Political parties: Section 2(h) of the RTI Act:

Three-member-bench of CIC [Satyananda Mishra (Chief IC), Mrs. Annapurna Dixit (IC) & M. L. Sharma (IC)] passed an order dated 03-06-2013 in the case where the Respondents were six political parties:

1. Indian National Congress/All India Congress Committee (AICC);
2. Bhartiya Janata Party (BJP);
3. Communist Party of India (Marxist) (CPM);
4. Communist Party of India (CPI);
5. Nationalist Congress Party (NCP) and
6. Bahujan Samaj Party (BSP).

The main issues raised by the complainants were: Disclosure of accounts and funding of political parties.

Some political parties in response to RTI applications of complainants stated that they were not “public authority” and hence not covered under RTI.

Chief Information Commissioner noted that the matters in hand raised complex issues of law and hence constituted a full bench as noted above.

Before the Commission, the complainants made extensive submissions to contend that Political Parties fall under the ambit of section 2(h) of RTI Act.

Above submissions were supported by various arguments including

(i) That section 80 GGB of the Income-tax Act which provides that contribution made by an individual or a company to a Political Party is deductible from the total income of the assessee. This provision is exclusively applicable to the Political Parties and is suggestive of indirect financing of the Political Parties by the State.

(ii) After various RTI applications were filed with the Central Agencies, it was discovered that Political Parties enjoy a number of “facilities” provided to them by the government. This is a clear instance of being “financed indirectly by funds provided by the appropriate governments” which puts Political Parties squarely under the definition of ‘public authority’ as provided for in section 2(h)(d) (ii) of RTI Act.

(iii) If closely monitored and totalled, the total public funds spent on Political Parties would possibly amount to hundreds of crores.

In its decision, Commission quoted Harold Laski:

“The life of the democratic State is built upon the party-system and it is important at the outset to discuss the part played by party in the arrangement of affairs. Briefly, that part may be best described by saying that parties arrange the issues upon which people are to vote. It is obvious that in the confused welter of the modern State, there must be some selection of problems as more urgent than others. It is necessary to select them as urgent and to present solution of them which may be acceptable to the citizen-body. It is that task of selection, the party undertakes. It acts, in Mr. Lowell’s phrase, as the broker of ideas. From the mass of opinions, sentiments, beliefs, by which the electorate moves, it chooses out those it judges most likely to meet with general acceptance. It organises persons to advocate its own view of their meaning. It states that view as the issue upon which the voter has to make up his mind. Its power enables it to put forward for election candidates who are willing to identity themselves with its view. Since its opponents will do the same, the electorate, thereby, is enabled to vote as a mass and decision that would otherwise be chaotic, assumes some coherency and direction. What, at least, is certain, is that without parties there would be no means available to us of enlisting the popular decision in such a way as to secure solutions capable of being interpreted as politically satisfactory.”

The Commission then notes:

The question before the Commission is whether INC/AICC, BJP, CPI(M), CPI, NCP and BSP can be held to be Public Authorities u/s. 2(h) of the RTI Act. The complainants have adduced the following three principal grounds to persuade the Commission to hold that the aforesaid Political Parties are Public Authorities, viz:-

(i) Indirect substantial financing by the Central Government;

(ii) Performance of public duty by the Political Parties; and

(iii) Constitutional/legal provisions vesting Political Parties with rights and liabilities

Substantial financing of Political Parties by the Central Govt.

After considering various basis of state financing political parties, the Commission concluded, we are of the considered opinion that Central Government has contributed significantly to the indirect financing of Political Parties in-question.

On the issue of “substantially financed” again it noted:

Large tracts of land in prime areas of Delhi have been placed at the disposal of the Political Parties in-question at exceptionally low rates. Besides, huge Government accommodations have been placed at the disposal of Political Parties at hugely cheap rates thereby bestowing financial benefits on them. The Income Tax exemptions granted and the free air time on AIR and Doordarshan at the time of elections also has substantially contributed to the financing of the Political Parties by the Central Government. We have, therefore, no hesitation in concluding that INC/AICC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the Central Government and, therefore, they are held to be the public authorities u/s. 2(h) of the RTI Act.

Performance of Public Duty
Political Parties are the unique institution of the modern constitutional State. These are essentially political institutions and are non-governmental. Their uniqueness lies in the fact that inspite of being non-governmental, they come to wield or directly or indirectly influence exercise of governmental power. It would be odd to argue that transparency is good for all State organs but not so good for Political Parties, which, in reality, control all the vital organs of the State.

The people of India must know the source of expenditure incurred by Political Parties and by the candidates in the process of election. These judicial pronouncements unmistakably commend progressively higher level of transparency in the functioning of Political Parties in general and their funding in particular.

We may also add that the preamble to the Constitution of India aims at securing to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; and EQUALITY of status and of opportunity. Coincidentally, the preamble of the RTI Act also aims to promote these principles in the form of transparency and accountability in the working of the every public authority. It also aims to create an ‘informed citizenry’ and to contain corruption and to hold government and their instrumentalities accountable to the governed. Needless to say, Political Parties are important political institutions and can play a critical role in heralding transparency in public life. Political Parties continuously perform public functions which define parameters of governance and socio-economic development in the country.

In view of the nature of public functions performed by Political Parties, we conclude that Political Parties in question are Public Authorities u/s. 2(h) of the RTI Act.

Constitutional/legal provisions vesting Political Parties with rights and liabilities

We find the above submissions quite compelling and unerringly pointing towards their character as public authority.

It may be recalled that the INC/AICC and the BJP have made a bland assertion that they are not Public Authorities under the RTI Act. CPI(M) has disclosed some information to the Commission regarding allotment of land to it by the Central Government on certain terms and conditions but has not conceded that it is a Public Authority u/s. 2(h) of the RTI Act. The contentions of the above parties have to be rejected in the light of findings recorded herein above.

Based on above discussion, the Commission concluded:

In view of the above discussion, we hold that INC, BJP, CPM, CPI, NCP and BSP have been substantially financed by the Central Government u/s. 2(h) (ii) of the RTI Act. The criticality of the role being played by these Political Parties in our democratic set up and the nature of duties performed by them also point towards their public character, bringing them under the ambit of section 2(h). The constitutional and legal provisions discussed herein above also point towards their character as public authorities.

The Presidents, General/Secretaries of the Political Parties are hereby directed to designate CPIOs and the Appellate Authorities at their headquarters in 6 weeks time. The CPIOs so appointed will respond to the RTI applications extracted in this order in 4 weeks time. Besides, the Presidents/General Secretaries of the above mentioned Political Parties are also directed to comply with the provisions of section 4(1) (b) of the RTI Act by way of making voluntary disclosures on the subjects mentioned in the said clause.

[Complaints: (1) Shri Subhash Chandra Aggarwal (2) Shri Anil Bairwal vs. Respondents 6 Political Parties as noted above: CIC/SM/C/2011/00138 &000838 decided on 3rd June 2013]

Note: Many paragraphs as above are reproduction of the order.

•  E-governance:

E-governance equals good governance for the citizens of a country. The scale and ambition of the National e-Governance Plan (NeGP) is impressive. Some important projects that are at various stages of implementation include Passport Seva, India Post, income tax services, ESIC, setting up 2,50,000 common service centers (CSC) across 6,00,000 and more villages; the National Population Register (NPR) and the Unique Identification (UID) project. A state wide area network (SWAN) and state data centers (SDCs) are being set up to support the implementation of these and other projects. The government has also initiated ‘GI Cloud’ initiative to keep pace with technological advancements.

Making public services conveniently accessible to over 1.2 billion people in India spread across a vast geography is not an easy task, but is nonetheless vital for India’s continued growth. The success of e-governance initiatives is pegged in the timely implementation and smooth running. Technology is not a constant and it is important that policy guidelines and framework give scope for deployment of innovative IT infrastructure, like engineered system that can easily scale and adapt to the changing governance and public needs.

(Mr. Mahadeo P. Jaiswal in Transparency Review, Journal of Transparency Studies)

• Ms Aruna Roy:

“The crisis in credibility today is at all levels of government. Effective implementation is as important as the legislations themselves. Our solutions do not lie in thoughts between one election and another but in addressing the lack of transparency and accountability in governance structures. My politics has always been to enhance the participation of people with in the democratic frameworks so that their voices are heard not just once in five years but every today.”

•  RTI AND & BMC:

The Brihanmumbai Municipal Corporation (BMC), the country’s largest civic body, has been fielding the most Right to Information (RTI) queries of any public institution across the state. Observers said this indicates the desire of Mumbai’s citizens to have greater participation in public affairs.

Following are the number of applications received by various P. As in Maharashtra and at BMC:

*estimated

Jinnah’s Speeches:

The Central Information Commission has asked the government to take a view on disclosure of two speeches made by Pakistan founder Mohammad Ali Jinnah during the pre-Independence era, which are in the archives of All India Radio and explain the reasons for withholding them if it intends to do so. Chief Information Commissioner Satyananda Mishra said more than 60 years after the country’s independence, the time has come when all concerned must decide what information relating to the pre-Independence period should be made available to public.

•     Mr. Robert Vadra:

The PMO has turned down an RTI request seeking records of an affidavit it filled in connection with the probe into the alleged land deals made by Congress chief Sonia Gandhi’s son-in-law Robert Vadra on grounds of “confidentiality”.

Nutan Thakur of Lucknow, through an RTI application, wanted to know all the file notings related to the PMO affidavit placed before the HC. She also wanted to know about the action taken after her petition was received. In its first reply in April, the PMO claimed that since the matter is sub-judice, records cannot be disclosed. Thakur then argued that such details can only be withheld when there is an explicit order from the court.

Later, in a reply on June 6, the PMO said, “The office, keeping in view the SC ruling, has sought exemption as the matter has been treated as confidential.”

It quoted a Supreme Court order which said that exception u/s. 8(1)(e) (of the RTI Act) is available not only in regard to information held by a public authority in a fiduciary capacity, but also to any information given or made available by a public authority to anyone else for being held in a fiduciary capacity.

These rules are complicated and all RTI Activists (signed by 89 RTI Activists) have opposed them and have made out a detailed letter to the Chief Minister with copies to

1) Shri Jayant Banthia, Chief Secretary, Govt. of Maharashtra

2) Principal Secretary – General Administration Dept.

3) Principal Secretary – Law and Judiciary Dept.

There are 11 sub-rules. Presently, there are no separate rules for appeal procedure. The Maharashtra Right to Information Rules contain one clause for Appeal Procedure (sub-rule 5).

Sub-rule 4 of the draft rules is the most objectionable. The same reads as under:

“Accompaniments to memorandum of appeal: – Every memorandum of appeal made to the Commission shall be accompanied by the following documents namely:-

(i) copy of application made to the State Public Information Officer;
(ii) self-attested copies of the order, letter, documents, or correspondence received from the State Public Information Officer and the first appellate authority;
(iii) copy of the first appeal;
(iv) copy of order if any, given by the first appellate authority against which the appeal is being preferred;
(v) date-wise list (Index) of the documents referred to in the appeal;
(vi) affidavit in the format given in Annexure “B” affixed with Rs. 2 court fee stamp;
(vii) any other document, as deemed fit by the appellant.” Objections raised by RTI Activists read as under:

The affidavit as referred to in rule 4 requires the RTI appellant to include additional personal details e.g. “name of father/husband, age – yrs., service /business”. This rule is a blatant violation of Section 6(2) of RTI Act 2005, which states, “An applicant making request for information shall not be required to give… any other personal details except those that may be necessary for contacting him.” Also, this affidavit only burdens the RTI appellant (who is quite often a common man, and not an experienced RTI activist) with a meaningless, difficult and costly legal procedure. Change needed: Provision for affidavit should be deleted. In compliance with the RTI Act, no extra personal details must be asked, other than the ones needed to contact him.

Following an RT I query from a city based activist, municipal commissioner Sitaram Kunte has now ordered an enquiry. Officials began collecting the levy from builders three months ago, but they were supposed to start collections in June, 2012.

For most of the past two years, the BMC didn’t ask builders for these taxes, even though water was supplied for projects, according to responses to activist Anil Galagali’s RT I query. BMC sources said around Rs. 100 crore may have been lost because these taxes weren’t collected. Meanwhile, officials recently began recovering the charges from builders, and in three months have collected Rs.19.6 crore from ongoing projects.

Sheila Dikshit’s appointment as Governor:
Files moved at breakneck speed for the appointment of the former Delhi CM Sheila Dikshit as Kerala governor. In a bid to beat the election code of conduct, sitting Kerala governor Nikhil Kumar resigned, Karnataka governor HR Bharadwaj was handed interim charge and finally Dikshit appointed as Kumar’s successor all in the space of few hours on March 4. The code of conduct was to come into effect a day later.

The information disclosed by the home ministry was in response to an RTI plea filed by activist SC Agarwal. According to the documents made public, home minister Sushil Kumar Shine recommended appointment of Dikshit as Kerala governor following a one line resignation from Kumar. In his letter dated March 4 to President Pranab Mukherjee, Kumar said, “I resign as governor of Kerala with immediate effect.” He did not ascribe any reason for his resignation.

Not only was Kumar’s resignation accepted the same day but in the next few hours, President’s secretary Omita Paul shot off a letter and warrant to Bharadwaj asking him to take additional charge. A few hours later, Paul issued a warrant under the hand and seal of the president and a letter appointing Dikshit as Kerala Governor.

Thane Badlapur CR Stretch has Just two ambulances:
Central Railway (CR) authorities are under the spotlight for failing to provide basic transport facility to ferry the injured to the hospitals. Responding to a Right To Information (RT I) query by city advocate Suyash Pradhan about the availability of ambulance services outside each station on the CR line, the authorities said that private ambulances are parked round-the clock only at Thane and Dombivali stations between the Thane-Badlapur stretch. “At other stations, ambulances are on call basis and the list of private ambulances service providers is circulated to all stations to be summoned as and when required,” said senior divisional commercial manager Narendra Patil. “Commuters between Thane-Kalyan contribute in crores to the CR from the purchase of season tickets and monthly pass. The safety of the commuter should ideally be paramount. In the last one year alone 546 accidents were reported close to Kalyan station. The frequency of the fatalities due to commuters falling off trains between Diva and Thane is scary and there is a direct need to have a 24/7 ambulance outside these stations,” Said Pradhan.

As citizens and activists committed to building a transparent and accountable democracy we have gathered together from more than 15 States and Union Territories across the country in the city of Mumbai to celebrate our victories, and to discuss and strategies to squarely face current challenges. In this Western India RT I Convention, we pledge our commitment to protect our constitutionally guaranteed fundamental rights and particularly emphasising the freedom of speech and expression which is the bed rock of a free and democratic society in the absence of which our right to information would lose much of its meaning and value. On this day the 8th of June, 2014, we express our solidarity with all RT I users, activists and their families who have suffered attacks on them and resolve to defend our right to access information and express our opinions without fear and pledge in particular to struggle to achieve our collective vision as follows-

WE, TH E PART ICIPANTS OF TH E WESTERN INDIA RT I CONVENTION, HEREBY DECLARE TH AT:

1. E ven after nine years of the enactment of the Right to Information Act (RT I Act), governments have failed to implement this law to our expectations. Governments must take immediate and effective steps to establish a regime of transparency at all levels of the administration.

2. It is a matter of great concern that even after nine years of the enactment of the RT I Act, several states and competent authorities have rules which are contrary to the letter and spirit of the RT I Act and curb people’s right to seek information in many ways. We demand that the governments and competent authorities work towards installing a uniform regime of Rules under the RT I Act across the country.

3. A large number of public authorities have failed in fulfilling their obligation to proactively provide information to people u/s. 4 of the RT I Act. All public authorities must urgently fulfill this responsibility. We demand that the Government of India, all state governments and public authorities immediately implement the guidelines framed by the Task Force on section 4 implementation set up by the DoPT in 2013, including the adoption of all the templates developed by the Task Force.

4. T he government must undertake steps to create awareness about the RT I Act among people, especially amongst the disadvantaged segments of society such as women, dalits, adivasis, all kinds of minorities and differently-abled persons. Even after more than nine years of enactment of the RT I law, awareness levels among people and a functional knowledge of the RT I Act, is low. A Peoples’ Monitoring Study of the RT I Regime In India, undertaken by RAAG, NCPRI and other groups, based on an analysis of 4000 RT I applications filed between 2005 and 2008, has found that only 6% of RTI applications were filed by women. RT I must be introduced in the educational curriculum to spread awareness amongst the youth.

5. A ll six national Political Parties must immediately comply with the June 2013 order of the Central Information Commission, which had declared them ‘public authorities’ under the RT I Act and therefore, must implement the provisions of the RT I Act, including section 4, also appoint public information officers and appellate authorities to dispose RT I applications and appeals received from the people. All other political parties registered with and recognised by the Election Commission of India must proactively take steps to implement the RTI Act within their offices.

6. T he Central and State Governments must ensure that the Whistle Blowers Protection Act (WBP Act), enacted in May 2014, is operationalised immediately. Model WBP Rules for implementing this law must be made in a transparent, consultative and participatory manner, to establish a comprehensive framework for protecting whistleblowers across the country. It is the moral responsibility of the Government to protect RT I activists and users who are attacked, and take swift legal action against those responsible for these attacks. Protection must be provided to their families and adequate compensation must be paid in such cases. It is also the obligation of governments and information commissions to ensure that, whenever an RT I applicant is attacked, the information that was being sought by him or her is put in the public domain on and any pending appeal followed up on a priority basis. All persons demanding transparency in public interest who are attacked must be treated as human rights defenders. Instances of murders, physical attacks on RT I users must be investigated and the accused prosecuted under the law in a timely manner.

7. We demand that Parliament immediately enact an effective grievance redress law which provides a timebound, decentralized and comprehensive framework across the country, for addressing day-to-day complaints of people about the non-delivery of rights and entitlements against public authorities based on best practices developed in various States and Union Territories across the country that are implementing similar laws.

8. In order to move from transparency to accountability, the government must ensure that the rules of the Lokpal and Lokayuktas Act, are framed in a transparent manner and the Lokpal is operationalised to function in an independent and empowered manner to tackle corruption. We also call upon our elected representatives in Parliament to enact all pending anti-corruption Bills in order to make India compliant with the provisions of the United Nations Convention against Corruption (UNCAC).

9. We are deeply concerned about the increasing influence of the corporate sector over governments in decision making processes relating to developmental issues. All public authorities must take immediate steps to ensure transparency in the functioning of private entities that utilise or control public resources or public assets or provide public services. Information about all public-private-partnership projects (PPPs) must be accessible under the RT I Act at every stage of the project. Explanations about cost inflation of PPP projects must be disclosed proactively in terms of section 4(1)(c) of the RT I Act. Further, the government must frame appropriate guidelines and rules to ensure a practical framework for accessing information about the private sector bodies u/s. 2(f) of the RT I Act.

[Out of 21 items, in the Declaration, 9 are reported herein above, balance will be reported in the next month’s article.]

New Delhi, May 24 (Agencies): The PMO not disclosing information about expenses incurred on foreign visits of the Prime Minister notwithstanding, a CIC-constituted committee has recommended not only putting out such details proactively by all ministries but regular updating as well.

The committee of former Chief Information Commissioner A N Tiwari and Information Commissioner M. N. Ansari, constituted by the CIC gave its report on “Transparency Audit: Towards An Open and Accountable Government”.

It referred to the circular issued by the ministry dated September 11, 2012 where it asked all departments to proactively disclose expenses incurred on the foreign and domestic visits of their respective ministers.

“These disclosures should be updated once every quarter”, the committee said in its report asking the government to also disclose other details such as places visited and the institutions/individual interacted, period, number and the names of the members in the official delegation, mode of conveyance, travel expenses and source of funding and outcome of the visit.

It said a democratic government keen on empowering the people and delivering to them goods and services speedily and efficiently, cannot allow walls of secrecy to separate them from the very people they serve.

“Transparency brings the government closer to its people –a closeness which underpins good governance. In spite of repeated directions to the public authorities, the results on account of voluntary disclosures have been below par,” the committee observed.

It said quite large numbers of wholly avoidable RTI petitions by citizens for information, which should even otherwise be openly available, are still being filed.

“One cardinal aspect of the RTI i. e. Timely furnishing of quality information to the citizen, became difficult to be adhered to, while the cost for disclosing information, at well levels, kept increasing,” it said.

The Prime Minister’s Office has been refusing to disclose information related to expenses incurred on the abroad visits of Prime Minister Narendra Modi citing various excuses such as the records sought for being “vague”.

These refusals to part with the information are being made even though Central Information Commission, in an order,, had directed the Cabinet Secretariat to make public expenses incurred on the travel of ministers and VVIPs because of large public interest in the matter.

“We have been noticing a lot of public interest in the visit of such high dignitaries as the President, the Vice-President and the Prime Minister of India. Quite often, one comes across RTI applications seeking similar information about these visits,” Chief Information Commissioner Satyananda Mishra had said.

Following the orders of the CIC, the then Prime Minister Manmohan Singh had started the practice of making public on the official website details of expenses incurred on his visits as well as on the visits undertaken by the Ministers.

Even DoPT had issued the circular asking all ministries to proactively disclose these details.

Complying with the mandatory provisions of sou-motu disclosure under the transparency law, the PMO under Manmohan Singh has placed in public that a sum of over Rs. 642 crore was incurred on his air travels abroad between 2004 and 2013.

Issue before the Hon. Court was whether income-tax returns of Ajit Pawar can be disclosed to the Petitioner, Mr. Shailesh Gandhi.

Mr. Gandhi’s attempt to get such IT return and balance sheets had failed before PIO, FAA & Central Information Commission (CIC), even though he pleaded for it stating:

“There is a larger public interest in disclosing this information to compare his affidavit given to the Election with his Income Tax returns”.

CIC referred to the judgement of the Apex court in Girish Ramchandra Deshpande’s case (see “Right o Information – a route to good Governance” published by PCGT and BCAS Foundation, Page 241) (2013, 1 Supreme Court Cases 212) holding that the details disclosed by a person in his Income Tax Returns is personal information which has been exempted from disclosure under clause (j) of section 8(1) of the said Act, unless it involved a larger public interest and the CPIO and or State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. The Central Information Commissioner had observed that in the present Appeal the Petitioner has not been able to prove any larger public interest with corroborative evidence and therefore upheld the decisions of the Central Public Information Officer and the First Appellate Authority and disposed of the said Second Appeal.

Mr. Gandhi’s counsel made numerous submissions to justify as to why such disclosure is not to be denied. The same included:

a) That the Judgement in Girish Ramchandra Deshpande’s case (supra) does not lay down any preposition of law and therefore cannot be applied.

b) That the disclosure of the information sought for by the Applicant would be in larger public interest which outweighs the breach of privacy if any of the Respondent No. 3.

c) That a Division Bench of this court in the case of Surup Singh Naik vs. State of Maharashtra had dealt with the proviso to Section 8(1) (j) and has held in the said case that the information which cannot be denied to the Parliament or the State Legislature cannot be denied to the citizen.

d) That the disclosure of the information is in larger public interest has been demonstrated by the Petitioner by making out a case in the Appeal namely that the same would amount to reducing corruption and increasing the faith in the elected representatives.

e) That it has been held in the matter of PUCL vs. Union of India as also in the matter of R. Rajgopal alias R. R. Gopal & Anr. vs. State of T. N. & Anr. and in case of ADR vs. PUCL that the public interest element involved in divulging information relating to public servants, MP’s and Ministers outweighs the right to privacy.

“Since the right to privacy has been recognized as a fundamental right to which a citizen is entitled to, therefore unless the condition mentioned in Section 8(1) (j) is justified, the information cannot be provided. Hence the burden on the Applicant is much more onerous than may be in a routine case. As indicated in the earlier part of this judgement the reason mentioned in the original application as supplemented by the grounds in the First Appeal hardly make out a case of public interest. Hence in the instant case, the said burden cannot said to have been discharged by the Petitioner. Hence, the finding of the First Appellate Authority as well as the CIC that the Petitioner has not made out any case for disclosure of the information on the ground of public interest cannot be faulted with.”

The Petitioner had sought to place reliance on the proviso to section 8(1) (j) of the said Act and had sought to contend that the authorities below have not considered the application of the Petitioner on the touchstone of the said Proviso.

The Court noted:
“In my view therefore, the proviso cannot be sought to be interpreted in the manner which the Learned Counsel for the Petitioner seeks to do. There is also a basic fallacy in the contention raised on behalf of the Petitioner. The Petitioner wants to proceed on the hypothesis that the information sought by him cannot be denied to the Parliament. In so far as the Parliament is concerned, the Parliament has its own rules of business and it therefore cannot be presumed that the information in respect of Income Tax Returns of a Member of Legislature would be sought. The same would undoubtedly be in the discretion of the Honorable Speaker. In the said context, it is also relevant to refer to section 75A of the Representation of the People Act under which every elected candidate for a House of Parliament has to furnish information relating to the movable and immovable property, his liabilities to any public financial institution, his liabilities to the Central Government or the State Government to the Chairman of the Council of States or the Speaker of the House of the People i.e. Loksabha or the Chairman of the Council of the State i.e. Rajyasabha. Hence there are adequate provisions in the Representation of the People Act under which the information sought is to be provided to the Parliament to the extent mentioned in the said provisions and therefore reliance cannot be placed on the proviso to section 8(1) (j) to contend that the exemption provided in the said section would not operate.”

For the reasons afore stated, the court held that the impugned order dated 15-5-2013 passed by the Central Information Commissioner, confirming the orders passed by the First Appellate Authority and the CPIO did not suffer from any illegality or infirmity.

Mr. Shailesh Gandhi’s reaction to above judgement:

” Key points which I feel the judgement has not addressed:

1. There is a proviso to the exemption in section 8(1) (j) which states: “Provided that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.” This proviso was accepted by a division bench of Bombay High Court in the Surup Singh Naik case where I had said that there is a perception that powerful people escape prison and spend their prison term in Hospital. The Court ordered the medical records should be given. In the Ajit Pawar case I had said: “There is a general belief that politicians and elected representatives are corrupt and amass wealth at the expense of the public. There is also a common belief that Income Tax authorities do not check that IT returns of those who are elected and their affidavits filed at the time of standing for elections. If this is true, citizens will act as monitors and help correct such practices. On the other hand if citizens’ apprehensions are not true, it would enhance the trust and respect for the elected representative, which is necessary for a healthy democracy. Besides it would also improve the Citizen’s trust in the Income Tax department.’ This has not been held to be in the larger public interest and the proviso has been treated as if it is irrelevant.

In the ADR-PUCL judgement, the Supreme Court has ordered that those who want to be public servants, – get elected, – must declare their wealth. If the affidavits match the IT returns what harm would come to them? The citizen’s right to know about his elected representative cannot become less after he has become a public servant.
2. In the Rajgopal judgement the Supreme Court has said that for matters of public record there can be no claim for privacy and the claim for privacy of a public servant is still lower.
3. Filing an ITR is a statutory duty and hence it is a public activity.
4. Since the ratio of the ADR-PUCL and Rajgopal judgement has not been dealt with in Girish Ramchandra Deshpande judgement, it is per incuriam.
5. The SC in Girish Deshpande judgement mentions section 8(1) (j) without the proviso.
6.    I have given an explanation of the larger public interest and hence this would fulfill the conditions of the Deshpande order.
7.    No reasoning has been given for the comments in the Deshpande order and it does not become precedent. It only says that the Court agrees with the CIC. The CIC order again refers to an earlier five member’s order in which the issue did not even concern a public servant.”

He further notes:

“I had felt that the Girish Ramchandra Deshpande judgement by the Supreme Court had constricted RTI  by expanding the scope of Section 8(1) (j) far beyond  the law. As expected it was rejected by the PIO, FAA and the CIC. I then approached Bombay High Court  in  a writ. I expected just a 5% chance of my contentions being accepted by the Court. The Court has dismissed my petition yesterday. I am thinking of challenging this decision before the Supreme Court.

The Girish Deshpande judgement is being used everywhere to deny most information regarding public servants which could expose wrongdoing, arbitrariness or corruption.

Yes, I feel the pain of not being able to reverse the Girish Ramchandra Deshpande judgement of the Supreme Court. I think the High Court has not given reasons for not accepting most of my contentions; they are just statements that it does not agree with me.”

[Shailesh Gandhi vs. CIC, CPIO and Shri Ajit Pawar: Writ Petition No. 8753 of 2013, judgement pronounced on 11.06.2015].