Bombay High Court

Bombay High Court
{1}
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 1750 of 2007
Decided On: 23.03.2007
Mr. Surupsingh Hrya Naik
Vs.
State of Maharashtra through Additional Secretary, General
Administration Deptt. and Ors.
AIR2007Bom121, 2007(3)ALLMR442, 2007(3)BomCR134, (2007)109BOMLR844,
2007(4)MhLj573
Hon'ble
F.I. Rebello and R.M. Savant, JJ.
Judges:
Case
Note:
Right to Information Sections 2(f), 2(j), 2(n), 3, 4, 6 to 8, 11, 18 and 19 of
the Right to Information Act, 2005 Indian Medical Council Act, 1956
Regulations 2.2, 7, 14 of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 Petitioner convicted for contempt
of Court sentenced one month imprisonment Petitioner suspecting heart
problems shifted to hospital for 21 days and remaining tenure served in jail
Medical reports of the Petitioner sought by Respondent 5, a private citizen
from the hospital contending the same as important in the larger public
interest Information denied Respondent No.5 filed appeal before
Respondent No.3 Dismissed Second appeal preferred before Respondent
No.2 Appeal allowed with direction to furnish information Direction not
complied with Petitioner contended disclosure of information would lead to
invasion of privacy Private information whether can be disclosed without
the consent of whom it pertains to Whether Petitioner can be allowed to
claim privilege or confidentially in respect of the medical records maintained
by a public authority, during the period of incarceration Held, as per the
act, information that cannot be denied to Parliament or a State Legislature
should not be denied to any person Test in such matter is always between
the private rights of a citizen and of the third person to be informed Object
of the Act leans in favour of making available the records in the custody or
control of the public authorities Regulations cannot override the provisions
of the Information Act Incase of inconsistency between the Regulations
and the Information Act, the later would prevail and the information will have
to be made available as per the Act Act however, carves out exceptions,
including the release of personal information, disclosure of which has no
relationship to any public activity or interest In such cases a discretion has
been conferred on the concerned Public Information Officer to make available
such information, which to be exercised according to the facts of each case
Records of a person sentenced or convicted and admitted in hospital during
such period should be made available to the person seeking information
provided such hospital is maintained by the State or Public Authority
Information can be denied only in rare and in exceptional cases with valid
reasons recorded in writing Petitioner needs to be given an opportunity by
way of notice Failure on the part of Respondent No.2 to give such
opportunity to the Petitioner, impugned Order liable to be set aside Matter
remanded back to Respondent No. 2 and to dispose of the matter according to
law
Ratio
Decidendi:
The confidentiality required to be maintained of the medical records of a
patient including a convict considering the Regulations framed by the Medical
Council of India can not override the provisions of the Right to Information
Act.
Facts
1. The petitioner is presently a Member of the Legislative Assembly of the State of
Maharashtra. Contempt Proceedings had been initiated against the petitioner by the
Honourable Supreme Court, which imposed on him imprisonment of one month, by
judgment dated 10th May, 2006. The petitioner on 12th May, 2006 surrendered to the
Police Authorities in Mumbai and was taken in custody. On 14th May, 2006 Petitioner
was shifted to Sir J.J. Hospital, Mumbai on account of suspected heart problems as well
as low sugar and blood pressure. According to the petitioner he underwent medical
treatment at Sir J.J. Hospital, Mumbai for the period of 21 days and was discharged on
5th June, 2006. Petitioner served the remaining tenure of imprisonment till 11th June,
2006 in jail on which day he was released from custody on completing the period of
sentence. The petitioner contends that he is suffering from various diseases such as
diabetes, heart problem and also blood pressure from 1998-99 onwards and has been
admitted to hospital on various occasions on account of his health problems.
2. The Respondent No. 5 is a private citizen who by an application dated May, 27, 2006
sought from the Respondent No. 4, the Public Information Officer of Sir J.J. Hospital,
Byculla, Mumbai, the medical reports of the petitioner. In his application it was set out
that it was in public interest to know why a convict is allowed to stay in an air
conditioned comfort of the hospital and there had been intensive questioning about this
aspect in the media and the peoples mind. There is, therefore, a legitimate doubt
about the true reasons for a convict being accommodated in air conditioned comfort of
the hospital, thereby ensuring that the convict escapes the punishment imposed on
him and also denies a scarce facility to the needy. The information, sought was set out
therein. On 20th June, 2006 the Public Information Officer addressed a letter to the
General Administration Department, State of Maharashtra, seeking information of the
legal aspects regarding the application made by respondent No. 5 under the provisions
of the Right to Information Act. On 4th July, 2006 in response to the letter the
respondent No. 4 clarified that the Right to Information Act is a Central Act and any
clarification, assistance or doubt as to interpretation of the provisions of the Act will
have to be sought from the Central Government. On 3rd July, 2006 the Respondent
No. 4 addressed a letter to the petitioner, intimating him that information about the
petitioners hospitalisation between 15th May, 2006 to 5th June, 2006 had been sought
by the Respondent No. 5. The petitioner was called upon to give his say as to whether
the information should be given. There is nothing on record to indicate whether the
petitioner replied to the said letter.
3. As the respondent No. 4 did not furnish the necessary information, the respondent
No. 5, preferred an Appeal on 21st June, 2006 before the Respondent No. 3. On 3rd
July, 2006 the Respondent No. 3 rejected the application on the ground that the same
was not signed by the respondent No. 5. Respondent No. 5 preferred another Appeal to
respondent No. 3 under Section 19(1) of the Act, which was rejected on 25th July,
2006. Aggrieved by the said order the respondent No. 5 preferred a Second Appeal
before the Respondent No. 2. The Respondent No. 2 allowed the Appeal and for
reasons disclosed in the order directed the respondent No. 4 to give information to the
respondent No. 5.
4. At the hearing of this petition, the impugned order is challenged on various
counts. We may summarise the grounds raised before us as under:
(a) The information sought for by the Respondent No. 5, it is submitted is private and
as such could not have been disclosed to Respondent No. 5 without the consent of the
petitioner.
(b) It is next submitted that considering Section 19(4) of the Right to Information Act
before passing an order against the petitioner, the Respondent No. 2 was bound to give
notice to the petitioner herein. Such notice has not been given and consequently the
order passed by the respondent No. 3 is without jurisdiction and consequently is liable
to be quashed and set aside.
5. On behalf of the petitioner, learned Counsel submits that the information sought for
by Respondent No. 5 of the petitioners medical records is confidential, considering the
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002
framed under the provisions of the Indian Medical Council Act, 1956, which hereinafter
are referred to as the Regulations. Regulation 2.2 which is relevant, reads as under:
2.2. Patience, Delicacy and Secrecy. Patience and delicacy should characterize the
physician. Confidences concerning individual or domestic life entrusted by patients to a
physician and defects in the disposition or character of patients observed during medical
attendance should never be revealed unless their revelation is required by the law of the
State. Sometimes, however, a physician must determine whether his duty to society
requires him to employ knowledge, obtained through confidence as a physician, to
protect a healthy person against a communicable disease to which he is about to be
exposed. In such instance, the physician should act as he would wish another to act
toward one of his own family in like circumstances.
It appears from this Regulation, that the information as sought, should not be revealed
unless the revelation is required by the law of the State.
The next relevant Regulation is Regulation 7.14 which reads as under:
7.14. The registered medical practitioner shall not disclose the secrets of a patient that
have been learnt in the exercise of his/her profession except:
(i) in a court of law under orders of the Presiding Judge;
(ii) in circumstances where there is a serious and identified risk to a specific person
and/or community; and
(iii) notifiable diseases. In case of communicable/notifiable diseases, concerned public
health authorities should be informed immediately.
From this Regulation it follows that the Medical Practitioner shall not disclose the
secrets of his patient that has been learnt in the exercise of his profession except in a
Court of law and under orders of the Presiding Judge. The expression "Court of Law"
and Presiding Judge have not been defined. Considering normal interpretive process,
the expression "Court of Law" and orders of Presiding Judge should include both Courts
and Tribunals.
6. Reliance was placed on the Declaration of Geneva, adopted by the 2nd General
Assembly of the World Medical Association, Geneva, Switzerland, September, 1948 and
as amended thereafter. Under this convention there is a provision pertaining to right to
confidentiality of information about the patients health status, medical condition,
diagnosis, prognosis and treatment and all other information of a personal kind with
the exception, that descendants may have a right of access to information that would
inform them of their health risk. Otherwise the confidential information can only be
disclosed if the patient gives explicit consent or as expressly provided in the law.
Clause 10 refers to right to dignity. Even if India is a signatory to the said declaration,
Parliament has not enacted any law making the declaration a part of the Municipal Law.
It is well settled that in the absence of Parliament enacting any law adopting the
convention, the convention by itself cannot be enforced. It is only in the area of Private
International law, in Jurisdictions like Admirality/Maritime, that international
conventions are enforced based on customary usage and practice. That however, will
be subject to the Municipal Law if there be any. In the absence of the convention being
recognised by law duly enacted, the provisions of the convention cannot really be
enforced. The only other way the convention can be enforced is, if it can be read into
Article 21 of the Constitution. See Unnikrishnan J.P. v. State of A.P. [1993]1SCR594 .
7. The question that we are really called upon to answer is the right of an
individual, to keep certain matters confidential on the one hand and the right
of the public to be informed on the other, considering the provisions of the
Right to Information Act, 2005.
8. In support of the contention, that the information is private and confidential and
ought not to be disclosed, the petitioner has invited our attention to various
judgments. We may firstly refer to the judgment of the Supreme Court in Peoples
Union For Civil Liberties v. Union of India MANU/SC/0149/1997 : AIR1997SC568 . The
issue arose in a matter of telephone tapping. The Supreme Court noting its judgment
in Kharak Singh v. State of U.P. MANU/SC/0085/1962 : 1963CriLJ329 , held that
"right" includes "right to privacy" as a part of the right to life under Article 21. Noticing
various other judgments, including in R. Rajagopal v. State of T.N.
MANU/SC/0056/1995 : AIR1995SC264 the Court arrived at a conclusion that the right
to privacy is implicit in the right to life and liberty guaranteed to the citizens
under Article 21. It is a "right to be let alone". A citizen has a right "to
safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child-bearing and education among other matters." The Court
then observed as under: The right to privacy - by itself - has not been
identified under the Constitution. As a concept it may be too broad and
moralistic to define it judicially. Whether right to privacy can be claimed or
has been infringed in a given case would depend on the facts of the said case.
But the right to hold a telephone conversation in the privacy of ones home or
office without interference can certainly be claimed as "right to privacy".
Conversations on the telephone are often of an intimate and confidential
character. Telephone conversation is a part of modem mans life. It is
considered so important that more and more people are carrying mobile
telephone instruments in their pockets. Telephone conversation is an
important facet of a mans private life. Right to privacy would certainly include
telephone conversation in the privacy of ones home or office. Telephonetapping would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law."
9. Reliance was placed in Mr. "X", Appellant v. Hospital "Z", Respondent
MANU/SC/0733/1998 : AIR1999SC495 . The issue involved therein is disclosure of
information of a patient affected by HIV. The Court observed that in doctor-patient
relationship, the most important aspect is the doctors duty of maintaining secrecy and
the doctor cannot disclose to a person any information regarding his patient, which he
has gathered in the course of treatment nor can the doctor disclose to anyone else the
mode of treatment or the advice given by him to the patient. The Code of Medical
Ethics, carves out an exception to the Rule of confidentiality and permits the disclosure
in the circumstances enumerated in the judgment under which public interest would
override the duty of confidentiality particularly where there is an immediate or future
health risk to others. Dealing with the aspect of privacy, the Court observed as under:
10. The right however, is not absolute and may be lawfully restricted for the prevention
of crime, disorder or protection of health or morals or protection of rights and freedom of
others.
11. Section 8(1)(j) provides that personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual shall not be disclosed unless the Central Public
Information Officer or the State Public Information Officer or the Appellate Authority is
satisfied, that the larger public interest justifies the disclosure of such information. In
other words, if the information be personal or would amount to invasion of privacy of
the individual, what the concerned Public Information Officer has to satisfy is whether
the larger public interest justifies the disclosure. In our opinion, the Regulations framed
under the Indian Medical Council Act, will have to be read with Section 8(1)(J) of the
Right to Information Act. So read it is within the competence of the concerned Public
Information Officer to disclose the information in larger public interest or where
Parliament or State Legislature could not be denied the information.
12. In this case we are dealing with a case of a person who was sentenced for
contempt of the Court at that time in respect of which the information is sought. In
D.Bhuvan Mohan Patnaik and Ors. v. State of A.P. and Ors. MANU/SC/0038/1974 :
1975CriLJ556 the Supreme Court reiterated the rights of a convict and was pleased to
hold that:
Convicts are not by mere reason of the conviction, denuded of all the fundamental rights
which they otherwise posses.
The Court also held that the conviction may result in deprivation of fundamental
freedoms like the right to move freely throughout the territory of India or the right to
"practice" a profession. But the Constitution guarantees other freedoms for the
exercise of which incarceration can be no impediment. The convict is entitled to the
precious right guaranteed by Article 21 of the Constitution of India. Therefore, under
our constitution the right to personal liberty and some of the other fundamental
freedoms are not totally denied to a convict during the period of incarceration.
13. The law as discussed may now be set out. The confidentiality required to be
maintained of the medical records of a patient including a convict considering the
Regulations framed by the Medical Council of India cannot override the provisions of
the Right to Information Act. If there be inconsistency between the Regulations and
the Right to Information Act, the provisions of the Act would prevail over the
Regulations and the information will have to be made available in terms of the Act. The
Act, however, carves out some exceptions, including the release of personal
information, the disclosure of which has no relationship to any public activity or
interest or which would cause unwarranted invasion of the right to privacy. In such
cases a discretion has been conferred on the concerned Public Information Officer to
make available the information, if satisfied, that the larger public interest justifies the
disclosure. This discretion must be exercised, bearing in mind the facts of each case
and the larger public interest. In those cases where the information sought cannot be
denied to either Parliament or State Legislature, as the case may be, then the
information cannot be denied unless the third person satisfies the authority that
Parliament/Legislature, is not entitled to the information.
14. Having said so, we are left with the other contention urged on behalf of the
petitioner, that considering Section 19(4) of the Act which we have earlier reproduced
the information could not have been given without giving a reasonable opportunity of
being heard to the third party, in the instant case the petitioner. We may note the
scheme of the Act. In so far as the Public Information Officer is concerned before
giving any information an opportunity has to be given to the third party as can be seen
from Section 11 of the Act. We then have Section 19(2) which provides for an Appeal
against an order by a person aggrieved to disclose third party information. The right of
Appeal is also conferred under Section 19(4). In such cases the Section requires that
the third party should be given a reasonable opportunity. It, therefore, appears that
before any order is passed a third party has to be given notice in order that he may be
heard. The question is whether this provision is purely procedural and failure to give
notice would not render the decision illegal. Learned Counsel relies on the judgment in
the case of State Bank of Patiala and Ors. v. S.K. Sharma MANU/SC/0438/1996 :
(1996)IILLJ296SC . The issue there pertained to a Departmental enquiry and the right
to be heard or given an opportunity. While dealing with the issue the Court noted,
adverting to the principles of natural justice, that there cannot be any hard and fast
formula. If failure amounts to violation of a procedure the Court observed and
prejudice has been occasioned, the same has to be repaired and remedied by setting
aside the enquiry, if no prejudice is established no interference is called for. The Court
then observed as under:
In this connection, it may be remembered that there may be certain procedural
provisions which are of a fundamental character, whose violation is by itself proof of
prejudice. The Court may not insist on proof of prejudice in such cases....
The Section itself contemplates, that before giving information the third party has to
be given an opportunity. It will, therefore, be difficult to accept the contention that this
is merely a procedural requirement and that the party would not be prejudiced. As we
have noted, normally the information sought about medical records of a convict and
the like must be made available, yet it is possible that in a given case, a party may
give sufficient reasons as to why the information should not be revealed. In the instant
case considering that the petitioner was convicted for contempt and was sent to jail
and thereafter spent larger part of his prison term in hospital the right of a public to be
informed would normally outweigh the right of the petitioner to hold on to his medical
records. But as noted by the Courts the right of hearing is not an empty formality. If
the petitioner did not get a hearing before the Appellate Authority, it cannot be argued
that the same can be cured by the petitioner getting an opportunity before this Court.
A long term ago Meggarry J., in National Union of Vehicle Builders (1971) 1 Ch.34
observed as under:
If one accepts the contention that a defect of natural justice in the trial body can be
cured by the presence of natural justice in the appellate body, this has the result of
depriving the member of his right of appeal from the expelling body. If the rules and the
law combine to give the member the right to a fair trial and the right of appeal, why
should he be told that he ought to be satisfied with an unjust trial and a fair appeal?
Even if the appeal is treated as a hearing de novo, the member is being stripped of his
right to appeal to another body from the effective decision to expel him. I cannot think
that natural justice is satisfied by a process whereby an unfair trial, though not resulting
in a valid expulsion, will nevertheless, have the effect of depriving the member of his
right of appeal when a valid decision to expel him is subsequently made. such a
deprivation would be a powerful result to be achieved by what in law is a mere nullity;
and it is no mere triviality that might be justified on the ground that natural justice does
not mean perfect justice. As a general rule, at all events, I hold that a failure of natural
justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate
body.
This proposition was approved by the Apex Court in Institute of Chartered Accountants
of India v. L.K. Ratna AIR 1987 SC 72. In some cases in exercise of extra ordinary
jurisdiction, the Court perhaps in order to avoid multiplicity of proceedings and the
delay occasioned might without remanding the matter decide the matter provided all
the material is on record. On the facts here petitioner had no opportunity of giving his
say before the Appellate Authority. Hence we are not inclined to adopt that course on
the facts of the case. Even otherwise the requirement of notice is not an empty
formality. It gives an opportunity to the third party to put its point of view why the
information should not be disclosed and be heard on the point. Admittedly in this case
no notice was given to the petitioner by Respondent No. 2.

In the light of that in our opinion for the failure by the respondent No. 2 to give an
opportunity to the petitioner the impugned order will have to be set aside and the
matter remanded back to Respondent No. 2 to give an opportunity to the petitioner
and thereafter dispose of the matter according to law. Considering the public element
and interest involved we direct the respondent No. 2 to dispose of the matter on
remand within 30 days from today.
{2}
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
W.P. No. 5666 of 2007
Dr. Panjabrao Deshmukh Urban Co-operative Bank Ltd., Vidarbha Region
Vs.
The State Information Commissioner and Ors.(AIR2009Bom7)
Hon'ble
J.H. Bhatia, J.
Judges:
Case
Note:
Right to Information Supply of Information Public Authority Sections
2(h), 4, 5 and 6 of Right to Information Act, 2005 and Section 32 of
Maharashtra Co-operative Societies Act, 1960 Petitioner-bank filed present
petition against order by which applications filed by respondents no. 3 under
Act, 2005 were allowed and petitioner was directed to supply certain
information to respondent no. 3 Held, share capital of petitioner-bank was
not provided by government nor it is getting any financial assistance by
government No director of petitioner-bank is appointed by government nor
government has any direct control or interference in functioning and
management of bank Admittedly, petitioner-bank does not have any
monopoly nor it has any State protection Therefore, petitioner-bank is not
"public Authority" within meaning of Section 2(h) of Act, 2005 Sections 4
and 5 of Act, 2005 provide about obligations of public authorities and it
directs public authority to appoint Public Information Officer, etc. Under
Section 6 of Act, 2005 request for obtaining information can be made from
public authority If it is not public authority, information cannot be sought
under Information Act Respondent No. 3 being share holder and member of
petitioner-Bank is entitled to make an application for getting information
under Section 32 of Act, 1960 and if he makes such an application, petitionerbank would be statutorily obliged to provide information as per law That is
totally different point Right to seek information is given to share holders of
Co-operative societies under Societies Act but certainly respondent No. 3
could not seek information about petitioner-bank under Information Act
Hence, writ petition is allowed and impugned order is hereby set aside
Facts
1. The petitioner is Urban Cooperative Bank registered under the Maharashtra Cooperative Societies Act, 1960 (for short. Societies Act) and is controlled ift respect of
certain matters by the Preserve Bank of India, under Section 110-A of the Societies Act
and certain provisions of Banking Regulations Act. Respondent No. 3 is a share holder
of the petitioner-Bank. He made two applications before the Bank on different dates
seeking certain information under the provisions of the Right to Information Act, 2005.
Both the applications were rejected by the petitioner contending that Right to
Information Act is not applicable to the petitioner-Bank, however, he could seek
information as per the provisions of the Societies Act.
Issues
Whether the Bank is a public authority.
2. Held that the petitioner-Bank was not established or constituted under the
Constitution or any enactment of Parliament or State Legislature or by any notification
or order by the Government. It is also admitted that the petitioner-Bank is not owned
or substantially financed by the State Government. Even if it is treated as a NonGovernment organisation, it is not substantially financed by the Government. The only
question which needs to be considered is whether the petitioner-Bank is controlled by
the State Government as admittedly, it is not controlled by the Central Government.
3. Not a single Director on the Board of Directors is appointed by the Government. All
the Directors are elected by the share holders of the petitioner-Bank. In Shamrao
Vithal Co-operative Bank Ltd. and Anr. v. Padubtdri Pattabhiram Bhat and Anr.
MANU/MH/0014/1993 : AIR1993Bom91 question was whether writ petition would lie
against the Co-operative Bank and for that purpose it had become necessary to find
out whether the Bank is a "State" or "State instrumentality" within the meaning of
Article 12 of the Constitution of India. The following issue was referred to the Full
Bench for determination;
Whether a cooperative society registered under the provisions of the Maharashtra
Cooperative Societies Act, 1960 and under the Multi State Co-operative Societies Act,
1984 falls within the expression "State" under Article 12 of the Constitution of India.
After referring to the several authorities from the Supreme Court, the issue was
answered by the Full Bench as follows in para 28:
A co-operative society, registered under the provisions of the Maharashtra Co-operative
Societies Act, 1960 and under the Multi State Co-operative Societies Act, 1984, which
carries on the business of banking and is therefore governed by the Banking Regulation
Act, 1949 does not thereby fall within the expression "State" under Article 12 of the
Constitution of India. The appellant-Bank cannot, therefore, be considered as "State"
under Article 12.
Thus, it was held
instrumentality".
that
the
Co-operative
Bank
is
not
"State"
or
"State
4. In the present case, admittedly, the share capital of the petitioner bank was not
provided by the Government nor it is getting any financial assistance by the
Government. No director of the petitioner-Bank is appointed by the Government nor
the Government has any direct control or interference in functioning and management
of the Bank. There are number of Co-operative banks/societies in the State of
Maharashtra and they are Registered under the Maharashtra Co-operatives Societies
Act. Admittedly, the petitioner-Bank does not have any monopoly nor it has any State
protection. As stated in Shamrao Vithal Co-op. Bank v. Padubidri : AIR1993Bom91
(supra), the Co-operative bank is not discharging any governmental function and the
functions of the bank can be carried out by any private individual or by institution
registered under the appropriate law. Admittedly, the petitioner-Bank was also not
originally government department which was reregisterd as Bank. In the present case,
there is nothing to show that the State exercises any direct or indirect control over the
affairs of the Bank for deep and pervasive control on the basis of which it can be said
that the, petitioner-bank is "State" or "public authority". As pointed out earlier in the
present matter we have to find out whether the petitioner-Bank is controlled by the
government, if 'yes', it will be "public authority", and. if 'no', it will not be "public
authority" because none of the other requirements to make a institution a "public
authority" are available in the present case, 'Control' does not mean 'regulatory or
statutory control'. In the case of Ajay Hasia v. Khalid Mujib Sehravardi reported in :
(1981)ILLJ103SC three Judges Bench of the Supreme Court had laid down the law and
it was reiterated by the Constitution Bench of the Supreme Court in the case of
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology : [2002]3SCR100 and
the observations of the Supreme Court in Pradeep Kumar v. Indian Institute were
reiterated in the case of S.S. Rana v. Registrar, Co-op. Societies, as quoted above.
Thus, it is clear that the control must be particular to the body in question and it must
be deep and pervasive. If this is found then such body is "State" within the meaning of
Article 12 of the Constitution of India or a "public authority" within the meaning of
Section 2(h) of the Right to Information Act. When the control is merely regulatory;
whether under statute or otherwise, it would not serve to make the body a "State" or
"public authority". In view of the Full Bench authority of this Court in the case of S.V.
Coop. Bank v. Padubidri : AIR1993Bom91 and in view of law laid down by the
Supreme Court in several authorities, it is clear that, in absence of existence of deep
and pervasive control with reference to the institution, it cannot be called a "State" or
"public authority" within the meaning of the Right to Information Act.
{3}
Appellants: Shri Lokesh Chandra, I.A.S. Director (Transmission) Ministry of
Power, Govt. of India and Mrs. Abha Shukla, I.A.S. Director, Ministry of Civil
Aviation
Vs.
Respondent: The State of Maharashtra through Chief Secretary and Ors.
(AIR2009Bom147, 2009(4)BomCR513, 2009(111)BomLR2747)
Hon'ble
C.L. Pangarkar, J.
Judges:
Case
Note:
Right to Information Power of Commissioner Section 15(4) of Right to
Information Act, 2005 - Present petition filed against order respondent No. 3State Information Commissioner who rejected petitioner's objection against
information provided to respondent No. 4 - He found that Chief Information
Commissioner had no right to issue an administrative order that Chief
Information Commissioner would alone hear appeals in such matters - Held,
by virtue of Section 15(4) of Act, Chief Information Commissioner has
statutory authority to manage affairs of Commission and to issue direction Power to decide appeal is to be exercised by one Commissioner only and
bench of two or more Commissioners is not contemplated - Information
Commissioner in that regard is not expected to take decision collectively Chief Information Commissioner has right to decide which appeals are to be
heard by whom - That is his statutory right and his prerogative under statue Respondent No. 3 is bound to hear only those appeals which may be made
over to him and cannot make grievance for withdrawal of any appeal from
him by Chief Information Commissioner - Objections of petitioners must be
upheld and order passed by respondent No. 3 on those objections ought to be
set aside - Petition is allowed
Facts
Respondent No. 4 herein applied to respondent No. 6 the Public Information Officer
General Administration Department, Mumbai to supply the information of assets and
liabilities of the petitioners. Respondent No. 4 was informed by respondent No. 6 that
such information cannot be supplied as that would invade the privacy of individual. An
appeal was preferred before the first appellate authority, who also rejected the appeal.
Respondent No. 4, therefore, preferred second appeal before the State Information
Commissioner, Nagpur Division. The Commissioner directed the information to be
supplied. The order was challenged before this Court by the petitioners and this Court
set aside the order and directed the Commissioner to decide the preliminary objections
raised by the petitioners in the second appeal before the Commissioner. Respondent No.
3 The State Information Commissioner rejected the objection. He found that the Chief
Information Commissioner had no right to issue an administrative order that Chief
Information Commissioner would alone hear the appeals in such matters. The petitioners
feel aggrieved by the said order.
Issues
Can the chief information commissioner whithdraw a case from another
information commissioner and pass an administrative order that all cases of a
particular category will be heard by him alone?
1. Held that the undisputed fact is that Government of Maharashtra has appointed the
Chief Information Commissioner and three Divisional Commissioners at Nagpur,
Aurangabad and Bombay. The State Information Commission is constituted under
Section 15 of the Right to Information Act. Sub-sections 1 and 2 of Section 15 read as
follows
15. Constitution of State Information Commission.
(1) Every State Government shall, by notification in the Official Gazette, constitute a
body to be known as the...(name of the State) Information Commission to exercise the
State powers conferred on, and to perform the functions assigned to, it under this Act,
(2) The State Information Commission shall consist of
(a) the State Chief Information Commissioner, and
(b) such, number of State Information Commissioners, not exceeding ten, as may be
deemed necessary.
It is thus clear that Act envisages appointment of Chief Information Commissioner and
maximum ten State Information Commissioners. The Information Commissioners
appointed at the regional headquarters are designated as State Information
Commissioners. The question is of determination of powers of the Chief Information
Commissioner vis a vis; the State Information Commissioner and the Commission
itself.
2. The Chief Information Commissioner had issued an administrative order to the
following effect
ORDER
The following administrative orders are being issued under Section 15(4) of the Right
to Information Act, 2005.
(1) The applications of the State Information Commissioner appointed at divisional
level for grant of all kinds of leave (casual, earned, etc.) should be submitted to the
State Chief Information Commissioner.
(2) The State Information Commissioners should submit in advance for information the
particulars of tour to be undertaken in the jurisdiction allotted to them, to the State
Chief Information Commissioner. Similarly, in any case, if they have to go outside their
jurisdiction (on working day and holiday), it is necessary for them to obtain prior
permission of the State Chief Information Commissioner.
(3) The State Information Commissioner at divisional level should fix the hearing of
maximum second appeals/complaints at the District Headquarters so that it will be
convenient to the public. Similarly, Video Conferencing should also be used for the
purpose of hearing.
(4) In case of the second Appeals/complaints, if the appellant/applicant resides within
the jurisdiction of the State Information Commissioner but the First Appellate Authority
and the Public Information Officer are from the office at Mumbai (for example Mantralaya, Director General of Police, etc.), such matters will be heard by the State
Chief Information Commissioner at Mumbai.
(5) All the State Information Commissioners should submit the monthly report of the
action taken by them in second appeals/complaints and miscellaneous references (in
the proforma enclosed herewith) for every month up to 5th of next month to the State
Chief Information Commissioner, without fail.
(6) The State Chief Information Commissioner shall write the annual confidential
reports of all the State Information Commissioners at divisional level.
(7) In case of any correspondence to be made by the State Information Commissioner
with the State Government, Central Government or other Commission/Authority, it
should be submitted through the State Chief Information Commissioner.
(S.V. Joshi)
State Chief Information Commissioner.
It is on the basis of this administrative order that the petitioners submitted a
preliminary objection that the Regional State Commissioner could not hear the second
appeal in their case. Respondent No. 3 finds that the Chief Information Commissioner
alone has no power to issue such order at all and usurp the powers of the State
Information Commissioner by entertaining an appeal alone. It was also found by the
State Information Commissioner that the Chief Information Commissioner alone could
not decide as to which appeal he should hear and which appeal the State Information
Commissioner should hear. According to him, this could be decided only by all the
Commissioners together.
3. Respondent No. 3 while deciding the objection has, therefore, refused to follow the
administrative direction. The ground on which he refused to follow those administrative
instructions are (1) The Commission consists of Chief and State Information
Commissioners and therefore the Chief Commissioner could not alone take the decision
as to who should hear the appeals (2) he could not give any directions to the other
State Commissioners as they are not subordinates, and (3) Such direction would
amount to usurping the power of State Commissioner.
4. The State Government has appointed the State Commissioner at regional level with
a view to avoid the inconvenience being caused to a common man and the justice
should be delivered at the door step. The intention was also that the appeal from that
particular area could be heard and decided in that area itself. The material question is,
however, of powers of the Chief Commissioner.
5. Respondent No. 3 applying the analogy of the Election Commission holds that the
Information Commissioner also has to act in unison and Chief Commissioner alone
cannot take the decision even on administrative side. The Election Commission no
doubt has to act in unison and Chief Election Commissioner cannot in his own right
individually take any decision with regard to the elections. This is because of the
provisions contained in Section 9 and 10 of the Election Commission Act. It would be
necessary to produce Section 9 and 10 of the Election Commission Act hereTransaction of Business of Election Commission.
9. The business of the Election Commission shall be transacted in accordance with the
provisions of this Act.
10. (1) The Election Commission may, by unanimous decision, regulate the procedure
for transaction of the business as also allocation of the business amongst the Chief
Election Commissioner and other Election Commissioners.
(2) Save as provided in Sub-section (1) all business of the Election Commission shall,
as far as possible, be transacted unanimously.
(3) Subject to the provisions of Sub-section (2), if the Chief Election Commissioner and
other Election Commissioners differ in opinion on any matter, such matter shall be
decided according to the opinion of the majority.
6. Here, the law mandates the Commissioners to act in unison. Their decision has to be
unanimous. They are, therefore in every matter, coming before them, supposed to act
collectively. None of them has a power to act individually. In the Right to Information
Act, there is no such mandate. In fact, every Commissioner who hears the appeal has
to act individually and independently. If the analogy of Election Commission is to be
applied then perhaps no Chief Commissioner or State Commissioner would be able to
hear an appeal even individually or independently. All appeals will have to be heard by
all members of the Commission collectively and their decision will have to be
necessarily unanimous. No individual Commissioner will have in that case a right to
record decision dissent or differ with the conclusions and reasons of his colleague. The
Information Commissioners are required to hear the appeals. Hearing of appeal
necessary means discharging a judicial function. When judicial function is discharged,
each individual manning it must decide the matter before him according to his own
conscience and not necessarily fall in line with his colleague.
7. A Commission necessarily needs to have a head, the Chief Information
Commissioner, is a Head. The Commission not only is to decide the appeals but there
are administrative functions which need to be discharged. Administrative functions
necessarily are required to be discharged by the Head unless he delegates those
powers to somebody else. Section 15(4) of the Act reads as follows
15(4) The General superintendence, direction and management of the affairs of the
State Information Commission shall vest in the State Chief Information Commissioner
who shall be assisted by the State Information Commissioners and may exercise all such
powers and do all such acts and things which may be exercised or done by the State
Information Commission autonomously without being subjected to directions by any
other authority under this Act.
In this section the functions to be discharged by the Chief Information Commissioner
are defined. These are administrative functions. The functions are (1) General
Superintendence, (2) Issuance of directions and (3) Management of the affairs of the
State Information Commission. These powers are vested in the Chief Commissioner.
8. Mr. Bhuibhar, learned Counsel for respondent No. 3 submits that the words
"assisted" means that the powers of the other Commissioners are coextensive. The
submission cannot be accepted. The law only expects the other Commissioners to
assist the Chief. It means if the Chief Commissioner so demands, the other
Commissioners are supposed to render the assistance. The assistance can never be
foisted for it may not be required. The word assistance itself means to render help or a
helping hand and helping hand is required only when the person discharging the
functions finds that he may alone be not able to discharge the functions effectively and
efficiently. Nobody is supposed to render assistant unless sought. It would, therefore,
be exclusively within the right of the Chief Commissioner if he should or should not
seek assistance with regard to the matters mentioned in Section 15(4).
9. If other Commissioner says that his powers with regard to Section 15(4) are
coextensive then perhaps there would be chaos. The general superintendence has to
be by the Head alone and the right to issue directions must vest in the Head. If the
Section is interpreted in the way as suggested by Mr. Bhuibhar then other
Commissioner may issue directions as he wishes which may be contradictory. The law
does not require the Chief Commissioner to even consult the other Commissioners with
regard to the management of the affairs of the Commission. Had there been a clause
of consultation then perhaps the argument of Shri Bhuibhar could have been accepted.
The words used are assistance and not consultation. The Legislature in its wisdom has
used the word assistance and assistance, as already said, means helping hand alone
and not the exercise of power unilaterally.
10. The Supreme Court in State of Rajasthan vs.Prakash Chand : 1998CriLJ2012 has
held that on the judicial side Chief Justice is the first amongst equals and and on
administrative side the Chief Justice is the master of the roster. It is, therefore, clear
that though the Chief Justice is the first amongst equals on judicial side, he is in fact
unequal on the administrative side. He alone can decide, who should sit in the Division
Bench and who should sit in single and what type of work a puisne judge should deal
with. Such type of power is certainly conferred on Chief Information Commissioner
alone by Section 15(4) of the Right to Information Act.
11. It must, therefore, be held that the Chief Information Commissioner has right to
decide which appeals are to be heard by whom. That is his statutory right and his
prerogative under the statue. Respondent No. 3 is bound to hear only those appeals
which may be made over to him and cannot make a grievance for withdrawal of any
appeal from him by the Chief Information Commissioner. The order passed by the Chief
Information Commissioner on 5/2/2007 cannot be faulted with.
{4}
Nagar Yuwak Shikshan Sanstha through its Secretary and Yeshwantrao
Chavan College of Engineering through its Principal
Vs.
Maharashtra State Information Commission, Vidarbha Region and Rajkumar
Shyamrao Bhoyar, Secretary, Yeshwantrao Chavan College of Engineering,
Nonteaching Staff Employees Union
(AIR2010Bom1, 2010(5)BomCR227, 2009(6)MhLj85)
Hon'ble
A.B. Chaudhari, J.
Judges:
Case
Note:
Right to Information Applicability of Provision - Section 2(h) of Right to
Information Act, 2005 Present writ petition has been filed for challenging
order by which State information Commissioner hold that provision of Act is
applicable to the petitioners Held, there is absolutely no material on record
that both petitioners have been substantially financed by appropriate
government either directly or indirectly - On contrary, entire infrastructure
and salary of staff etc. is substantially financed by petitioner No.1 itself - For
above reasons, none of petitioners are covered by definition of public
authority within meaning of Section 2(h) of Act - Consequently, impugned
order will have to be quashed and set aside - In result, writ petition is
allowed - Impugned order made by State Information Commissioner, in
Appeal is quashed and set aside - It is held that provisions of Act do not apply
to any of petitioners
Issue
Whether a Public Trust registered under the provisions of Bombay Public
Trusts Act and petitioner No. 2 - an unaided Engineering College are a `Public
Authority' as defined under Right to Information Act.
The definition of public authority as given under section 2(h) of the Act reads thus:
"Public authority" means any authority or body or institution of self government
established or constituted-
(a) by or under the Constitute;

(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate government, and includes
any(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed directly or indirectly by funds
provided by the appropriate Government.
6. Upon perusal of the provisions of the Bombay Public Trusts Act it is clear that this
Act does not on its own establish or constitute any public trust. It is nobody's case that
petitioner No. 1 was constituted or established under the provisions of the Bombay
Public Trusts Act. Similar is the case with petitioner No. 2 since the same has also not
been established or constituted under any of the provisions of the Act of legislature or
Act of Parliament. It is not in dispute that in respect of petitioners there is no
notification as contemplated by Clause (d). Reliance placed by learned Counsel for
respondent No. 2 about 'control' in the matter of admissions, fees, regulations etc. in
my opinion is misplaced. In my opinion the word 'control' used in the definition is in a
sense of control over the management of the petitioners. The control in making
admissions, deciding fees structure or implementing reservation policy, if any, or
asking the petitioners to implement a scheme of Central/State Government in respect
of higher education or research and development is not the control in that sense. There
is nothing on record to show that either of the two institutions, namely petitioners are
being run insofar as its management and affairs are concerned either directly or
indirectly by the Government. Therefore, the control over fees structure, admissions,
new courses etc. will have to be distinguished from the term `control' that is
contemplated by the definition. I, therefore, hold that none of the petitioners are
controlled by the appropriate government.
Similarly, reimbursement of fees towards reserved category students or projects
required to be undertaken by the Engineering College sponsored by the Central/State
Government cannot be said to be financed for the benefit of petitioners 1 and 2. These
benefits of reimbursement etc. are ultimately for the benefits of the students and
people at large and not only for the benefit of the college or financing the affairs of the
college. At any rate, the aspect regarding finance is qualified by the word
`substantially financed'. There is absolutely no material on record that both the
petitioners have been substantially financed by the appropriate government either
directly or indirectly. On the contrary, the entire infrastructure and the salary of the
staff etc. is substantially financed by petitioner No. 1 itself. This term `substantially
financed' has been repeatedly used by the Parliament with a view to exclude such
institutions which are financed directly or indirectly with a small or a little contribution
of funds by the appropriate government. The Parliament has deliberately used the
word 'substantially' and this Court finds that there is wisdom in doing so. In Shri Ram
Krishna Dalmia and Ors. v. Shri Justice S.R. Tendolkar and Ors.: AIR 1958 SC 538 the
Supreme Court has had to say in para 11(a) ...
(b) ...
(c) that it must be presumed that the Legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on adequate grounds;
8. For all the above reasons, I am of the opinion that none of the petitioners are covered
by the definition of public authority within the meaning of Section 2(h) of the Right to
Information Act.
{5}
Writ Petition No. 5067/2009
Appellants: Shikshan Prasarak Mandal through its Secretary (as Information
Officer) and Shikshan Prasarak Mandal through its President (as Appellate
Authority)
Vs.
Respondent: The State Information Commissioner, Shri Bhushan Keshaorao
Tijare and The Joint Director of Education, Nagpur Division
(2011(3)RCR(Civil)510)
Hon'ble
S.A. Bobde and A.B. Chaudhari, JJ.
Judges:
Case Note:
Right to Information - Validity of notification - Notification issued by
Respondent No. 3-Joint Director of Education, by which Principals and office
bearers of Non-Government Colleges receiving grants-in-aid were directed to
appoint Public Information Officers in order to comply with the Right to
Information Act, 2005 under challenge in present petition - Held, the NonGovernment Schools/Colleges/Institutions receiving grants-in-aid either from
the State Government or the Central Government were fully covered by the
definition of public authority and such Schools/Colleges were covered by the
provisions of the Right to Information Act, 2005 - Therefore, notification issued
by the Joint Director of Higher Education, upheld - Petition dismissed.
{6}
IN THE HIGH COURT OF BOMBAY
Writ Petition Nos. 2912 and 3137 of 2011
Appellants: Shonkh Technology International Ltd. through its Authorised
Signatory Shri Nilesh Khobragade
Vs.
Respondent: State Information Commission Maharashtra Konkan Region,
Appellate Authority, Joint Transport Commissioner (Computer), Public
Information Officer, Deputy Transport Commissioner and Shri Sanjay S/o
Anant Bhole
AND
United Telecom Limited
Vs.
State Information Commission Maharashtra Konkan Region and Ors.
Hon'ble
S.C. Dharmadhikari, J.
Judges:
Case
Note:
Right to Information - Deliver of Information - Section 8(1) (d) of Right to
Information Act - Present writ petition filed against order by which allowed
request for information made by Respondent No.4 and directed Respondent
No.3 to give copies of Agreements of Transport Department with Petitioners,
to Respondent No.4 - Held, disclosure of both agreements would not result in
disclosure of trade secrets or intellectual property - Agreements have to be
entered into for providing service in form of making of Smart Cards for
registration of motor vehicles and driving licences at enhanced fees Disclosure of information would enable public scrutiny of process and
contracts and therefore, it is desirable in larger public interest that
information is provided - There was nothing in information sought by
Respondent No. 4, by which commercial confidence, trade secrets or
intellectual property is being disclosed, leave alone disclosure of which would
harm competitive position of third party or it would lead to incitement of
offence - Merely because details of service providers are to be disclosed and
copies of agreements would be provided, that does not mean that their
interests are harmed or their competitive position is affected - Therefore,
there was no need for Transport Commissionerate to withhold this
information - In these circumstances, it cannot be said that reasons given by
State Information Commissioner are in any way violative of Section 8(1) (d)
of Act - State Information Commissioner has acted in consonance with object
and purpose of Act and upholding same, has rightly directed authorities to
provide information sought by Respondent No.4 - His order cannot be said to

be vitiated by any error of law or perversity so as to call for interference in
writ jurisdiction - In light of this conclusion, Writ Petitions fail and dismissed
Facts
. The Petitioner in Writ Petition No. 2912/2011 is a company incorporated and
registered under the Indian Companies Act, 1956. It functions as a service provider to
the Government of Maharashtra. It provides the facility of Smart Card based
Registration Certificate. It is stated that considering the need for computerization, the
Government switched over to the latest technology in it's various departments. In the
transport sector, the Government aimed at modernizing the Regional Transport Offices
and introduced a policy to computerize the Regional Transport Offices which was aimed
at streamlining the entire process undertaken at these offices and obviously to make
the functions of these Regional Transport Offices efficient, prompt and easy. In this
backdrop, the Central Government took a policy decision to introduce "Smart Cards"
with Micro Processor Chip and it was decided to permit the use of Smart Cards for
issuing registration certificates in electronic form. It is stated that this Micro Processor
Chip based Smart Card obviously has various advantages over the regular paper based
registration books. A reference is made to the Central Government's guidelines issued
on 17.10.2001. The implementation of this policy required amendments to the Motor
Vehicles Act and Rules and therefore, the amendments were made on 31.05.2002 and
Rule 2(s) was added to define the term "Smart Card". It is stated that the registration
certificate is now issued to the motor vehicle owners in the form of Smart Cards and
thereafter, several provisions of the Motor Vehicles Act have been referred to. It was
submitted that the Government of Maharashtra floated a PAN India tender for
appointing a service provider to comply with the requirement of issuance of "Smart
Cards". The Petitioner participated in the tender process and was declared successful.
A contract dated 30.11.2002 came to be executed. It is stated that this is not an
ordinary contract, but it is outcome of exhaustive statutory project. The project which
the Petitioner is implementing must be seen in the backdrop of the policy decision of
the Government to provide a more standardized and tamper proof registration of the
vehicles. The policy of the Government is to adopt a technology which will prevent
tampering of registration books by the antisocial elements. It is stated that this
contract is confidential in nature. The project has been undertaken by the Petitioner,
but attempts are made to exploit the Petitioner for personal gains by various
unscrupulous elements. The RTI Act, according to the Petitioner, does not give an
absolute right to a person to obtain any information and it is, therefore, contended that
the Respondent No. 4's attemp to obtain the information must be seen in this light.
5. The Respondent No. 4 was desirous of obtaining a copy of the agreement and made
an application in the prescribed format to the Respondent No. 3 on 21.01.2010.
Thereafter, there is response to the said application by the Respondent No. 3, namely,
Public Information Officer cum Deputy Transport Commissioner (Computer) in the
office of the Transport Commissioner. The Respondent No. 3 refused to provide the
information sought in the application by taking recourse to Section 8(1) (d) of the RTI
Act. Aggrieved by this order of the Respondent No. 3 passed on 29.01.2010, the
Respondent No. 4 preferred an appeal and the Appellate Authority disposed of the
appeal on 31.03.2010 and he was also of the opinion that the disclosure of the
information would be violative of Section 8(1)(d) of the RTI Act. He agreed with the
views of the authority below that Clause 22(2) of the agreement gives a confidentiality
status to the said agreement and therefore, no information contained therein could be
made available to the Respondent No. 4. Thus, agreeing with the Petitioner, this
information was denied.
Issues
Whether tender documents could be asked under RTI Act.Do the exemptions
under section 8(1)(a) and (b) apply to these documents.
Held that the RTI Act is an Act to provide for setting out the practical regime of right
to information for citizens to secure access to information under the control of public
authorities, in order to promote transparency and accountability in the working of
every public authority. The preamble of the RTI Act itself refers to this aspect and the
constitutional principles enshrined in several articles of the Constitution. It is very
clearly postulated that democracy requires an informed citizenry and transparency of
information which are vital to its functioning and also to contain corruption and to hold
the Governments and their instrumentalities accountable to the governed. The
revelation of information in actual practice is likely to conflict with other public interests
including efficient operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive information. Therefore,
the RTI Act seeks to harmonize these conflicting interests while preserving the
paramount nature of democratic ideals. The definitions and particularly of the term
"right to information" defined in Section 2(j) is relevant. By Section 3, all citizens have
the right to information subject to the provisions of the RTI Act. The obligations of the
public authorities are set out by Section 4 and Section 5 provides for designation of the
Public Information Officers. The request for obtaining the information is to be made in
terms of Section 6 and the disposal of the request is to be made in terms of Section 7.
Then comes Section 8, relevant portion, namely, 8(1)(a) and 8(1)(d) of which reads
thus:"
8. Exemption from disclosure of information:(
1) Notwithstanding anything contained in this Act, there shall be no obligation to give
any citizen, (
a) information, disclosure of which would prejudicially affect the sovereignty and
integrity of India, the security, strategic, scientific or economic interests of the State,
relation with foreign State or lead to incitement of an offence;
(b) .....
(c) .....
(d) information including commercial confidence, trade secrets or intellectual property,
the disclosure of which would harm the competitive position of a third party, unless the
competent authority is satisfied that larger public interest warrants the disclosure of
such information;
(e) .....
(f) .....
(g) .......
(h) .......
(i) .......
(j) .......
Provided that the information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
On the own showing of the Petitioner, Clause (d) provides that the information can be
disclosed if the competent authority is satisfied that larger public interest warrants such
disclosure. Therefore, that clause is not absolute. It does not say that the information
including commercial confidence, trade secrets or intellectual property, the disclosure of
which, would harm the competitive position of a third party; cannot be demanded or if
demanded, cannot be disclosed even if larger public interest warrants the same. The
State Information Commissioner has held that the disclosure of both agreements would
not result in disclosure of trade secrets or intellectual property. His conclusion is that the
tenders were for an important work which affects large number of vehicle owners and
drivers of vehicles. The agreements have to be entered into for providing a service in the
form of making of Smart Cards for registration of motor vehicles and driving licences at
enhanced fees. Further, the conclusion is that the disclosure of information would enable
public scrutiny of the process and contracts and therefore, it is desirable in larger public
interest that the information is provided.
{7}
IN THE HIGH COURT OF BOMBAY AT GOA
Writ Petition No. 478 of 2008 and Writ Petition No. 237 of 2011
Public Information Officer Joint Secretary to the Governor Raj Bhavan,
Donapaula, Goa and Secretary to Governor First Appellate Authority, Raj
Bhavan, Donapaula, Goa
Vs.
Shri. Manohar Parrikar Leader of Opposition, Goa State Assembly Complex,
Porvorim, Bardez, Goa and Goa State Information Commissioner, Ground
Floor, Shram Shakti Bhavan, Patto Plaza, Panaji, Goa
AND
Special Secretary to the Government of Goa
Vs.
State Chief Information Commissioner, State of Goa and Advocate A.
Rodrigues
Hon'ble
Judges:
D.G. Karnik, & F.M. Reis, JJ. D.G. Karnik, J.
Facts in Writ Petition No. 478 of 2008
1. In July/August 2007, some changes occurred in the political equations and political
situation in the State of Goa resulting in the Governor of Goa directing the Chief
Minister to prove his majority in the Legislative Assembly. A resolution of the Vote of
Confidence was passed in the Legislative Assembly, and the Speaker of the Legislative
Assembly made a report to the Governor. In turn, the Governor of Goa sent his report
to the Union Home Minister. On September 21, 2007, Mr. Manohar Parrikar, the Leader
of Opposition (respondent no.1), made an application to the Public Information Officer
(for short "the PIO") in the Secretariat of the Governor of Goa, asking for a copy of the
report sent by the Governor of Goa to the Union Home Minister regarding the political
situation in Goa during the period from 24th July 2007 to 14th August 2007. By a
letter dated 22nd December 2007, the PIO in the Secretariat of the Governor of Goa
declined to furnish the copy and wrote: "I am to inform that these communications are
highly sensitive, and secret in nature. It is regretted that the same cannot be supplied
in accordance with the exemption allowed under the Right to Information Act, 2005".
Aggrieved by the refusal, the 1st respondent filed an appeal before the Secretary to
the Governor being the Appellate Authority. By its order dated 4th April 2008, the
Appellate Authority dismissed the appeal. In second appeal, the Goa State Information
Commission (for short "the GSIC") set aside the order of the first appellate authority
by partly allowing the appeal. It held that the report made by the Speaker of the
Legislative Assembly of Goa to the Governor of Goa cannot be disclosed. It, however,
directed the PIO to furnish to the respondent no.1 the other information i.e. a copy of
the report sent by the Governor of Goa to the Union Home Minister on the political
situation during the period from 24th July 2007 to 14th August 2007, after severing
the report of the Speaker of the Legislative Assembly. Aggrieved by the decision, the
petitioners are before us.
Facts in Writ Petition No. 237 of 2011
2. The respondent no.3 is a practising advocate. He appears to have a grievance
against the conduct of the Advocate General of the State of Goa and the fee charged
by him to the Government. He made several complaints/representations to the

Governor of Goa against the Advocate General of Goa and was not satisfied with the
action taken (rather the inaction) on his complaints/representations. Therefore, by a
letter dated 29th November 2010, he applied to the PIO in the secretariat of the
Governor of Goa requesting him to furnish him the details of the action taken on his
complaints/representations and also asked for the copies of all notings and
correspondence on the complaints/ representations made by him. By his reply dated
29th November 2010 the PIO informed the petitioner that an affidavit had been filed
by his office in another matter in the Hon'ble High Court, Bombay at its bench at Panaji
that H.E. Governor is not a public authority under the Right to Information Act 2005,
and that pending the decision of the High Court in that matter, it was not possible for
him to respond to his request Not satisfied with the reply of the PIO, respondent no.3
filed a complaint under Section 18 of the Right to Information Act, 2005 (for short "the
RTI Act") to the GSIC. Upon receipt of the complaint, the GSIC issued a notice to the
PIO as also to the Governor of Goa requiring them to appear before the Commission in
person on 4 January 2011. Secretary to the Governor of Goa, on behalf of the
Governor of Goa, filed a reply claiming immunity under Article 361 of the Constitution
of India and contending that the Governor cannot be arrayed as a party respondent in
any proceedings. The PIO submitted a separate reply contending that the Governor
was not a public authority under the RTI Act. He also contended that if the respondent
no.3 was aggrieved by the communication of the PIO dated 30th November 2010, he
ought to have filed an appeal and the complaint under Section 18 of the RTI Act was
not maintainable. By an order dated 31st March 2011, the GSIC accepted the
contention that the immunity granted to the Governor under Article 361(1) of the
Constitution of India was complete and the Governor was not answerable to any court
and the complaint made against him was not maintainable. The GSIC however rejected
the contention that Governor was not a public authority under the RTI Act. The GSIC
accordingly remanded the matter back to the PIO to deal with the application of the
respondent no.3 dated 29 November 2010 in accordance with law. Being aggrieved by
this direction, the Special Secretary to the Governor has filed the Writ Petition No.237
of 2011.
Issues:
(1). Whether the Governor is a "public authority" within the meaning of Section 2(h)
of the RTI Act? and whether by reason of being included in the definition of "competent
authority" he stands excluded from the definition of "public authority" under the RTI
Act?
(2). Whether the Governor is a sovereign and being sovereign, no direction can be
issued to the Governor for disclosure of any information under the RTI Act?
(3). What is the extent of immunity enjoyed by the Governor under Article 361 of the
Constitution of India? Whether in view of such immunity, no direction can be issued
and no order can be passed under the RTI Act, which has an effect of requiring the
Governor to disclose any information under the RTI Act?
(4). Whether the information sought for is exempt from disclosure under Section 8(1)
(e) of the RTI Act?
(5). Whether the GSIC, which had become a single member body on account of
retirement of one of the two members constituting it when it passed the order dated
18th March 2011 (impugned in W.P. No. 237 of 2011), could not have passed it in the
absence of a second member?
Point No.1
3. Whether the Governor is a "public authority" within the meaning of section 2(h) of
the RTI Act? and, whether by reason of being included in the definition of "competent
authority" the Governor stands excluded from the definition of "public authority" under
the RTI Act?
10. In order to decide the question, it is necessary to refer to the definitions of the
"competent authority" and the "public authority" as given in the RTI Act, which read as
under:
2(e) competent authority" means(i) the Speaker in the case of the House of the People or the Legislative Assembly of a
State or a Union territory having such Assembly and the Chairman in the case of the
Council of States or Legislative Council of a State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of a High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities
established or constituted by or under the Constitution;
(v) the administrator appointed under article 239 of the Constitution;
2(h) "public authority" means any authority or body or institution of self-government
established or constituted(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes
any(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds
provided by the appropriate Government;
4. Section 3 of the RTI Act confers upon a citizen right to have an information. Indeed,
it only recognizes the right which already exists in a citizen to have an information
which is regarded as a fundamental right to freedom of speech and expression under
Article 19(1)(a) of the Constitution.
5. Section 4 of the RTI Act confers a corresponding obligation on the public authority to
give information. Section 5 of the RTI Act requires the public authority to designate as
many PIOs as may be necessary to provide the informations to the persons requesting
for an information. Section 6 prescribes the manner in which a citizen is required to
make a request for an information to the PIO. Section 7 casts an obligation on the PIO
to give the information. Section 8, as noticed earlier, grants exemption from disclosure
of certain information. Section 9 also empowers the PIO to refuse an information
where the request for providing access would involve an infringement of a copyright
subsisting in any person other than the State. Section 11 provides for a procedure to
be followed where the disclosure of the information relates to a third party. Sections 12
to 17 contained in Chapter III make a provision for constitution of Central and State
Information Commission, their members, terms and conditions of their service, their
appointment and removal. Section 18 defines the power and functions of the Central
and State Information Commission. Section 19 provides for an appeal against a
decision of the PIO to the first appellate authority and a further appeal against a
decision of the first appellate authority to the Information Commission. Section 20
provides for a penalty which can be imposed by the Information Commission on the
PIO at the time of deciding any complaint or appeal under section 19 of the RTI Act.
6. From the provisions of the RTI Act, it is clear that the decision whether the
information asked for by the applicant can be disclosed or exempt from disclosure
under sections 8 or 9 of the RTI Act is to be taken by the PIO and not by the "public
authority". Section 9 specifically provides that the Central PIO or the State PIO, as the
case may be, may reject a request for information where such a request for providing
access would involve an infringement of copyright subsisting in a person other than the
State. The competent authority has been given a power to direct disclosure of an
information notwithstanding anything contained in clauses (d) and (e) of section 8(1),
where the competent authority is satisfied that the larger public interest warrants the
disclosure of such information. Thus, the competent authority overrides the PIO and
not the "public authority" on the issue of exemption under section 8(1)(d) and (e) of
the RTI Act. The contention that the competent authority is superior to public authority
inasmuch as it has a power to override the public authority in the matter of exemption
under clauses (d) and (e) of section 8 and consequently there can be no overlapping
between the two, therefore, cannot be accepted.
7. Under section 2(h) of the RTI Act, "public authority" includes any authority or body
or institution of self-government established or constituted by or under the
Constitution [see clause (a) of section 8(1)]. Undoubtedly, the post of President and
that of the Governor is created by the Constitution. Article 52 of the Constitution says
that there shall be a President of India. Article 153 of the Constitution says that there
shall be a Governor for each State. When India was governed by the British, there was
no post of the President. The Governor General and the Governors contemplated under
the British Rule were different than the Governor of a State appointed under Article
153 of the Constitution. Posts of the President and the Governor are created by the
Constitution.
8. In Executive Committee of Vaish Degree College, Shamli and Others vs. Lakshmi
Narain and Others, : (1976) 2 SCC 58, the majority speaking through Fazal Ali, J.
observed: "It is, therefore, clear that there is a well marked distinction between a body
which is created by the statute and a body which after having come into existence is
governed in accordance with the provisions of the statute. In other words, the position
seems to be that the institution concerned must owe its very existence to a statute
which would be the fountainhead of its powers." The President and the Governor owe
their existence to the Constitution. It, therefore, cannot be doubted that the posts of
the President and the Governor are created by or under the Constitution. Being so, the
President and the Governor are clearly covered by clause (h) of the definition of the
"public authority".
9. It is true that the President and the Governor have been specifically included in the
definition of "competent authority". But 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". If any of the
authorities mentioned in clauses (i) to (v) of section 2(e) which defines "competent
authority" also fall within any of the clauses (a) to (d) of the definition of "public
authority" those persons/authorities would both be the "competent authority" as well
as the "public authority". The expressions "competent authority" and "public authority"
are not mutually exclusive. The competent authorities and one or more of them may
also be the public authorities. Similarly the public authorities or some of them, like the
President and the Governor who are the "public authority", may also be the
"competent authority". Overlapping is not prohibited either by the RTI Act or by any
other law.
Point No.2
Whether the Governor is a sovereign and being sovereign, no direction can be issued
to the Governor for disclosure of any information under the RTI Act?
10. The President of India is the constitutional head of the Union of India. The
Governor of a State is the constitutional head of each State, constituting the federation
of Union of India. The learned Additional Solicitor General submitted that the position
of the President and the Governor is similar. He contended that the President is
sovereign and so is the Governor. The Governor being sovereign, no authority, much
less the PIO, can issue him any direction. The Governor is not bound to disclose any
information asked of him under the RTI Act. The contention cannot be accepted for the
reasons indicated below.
11. The theory of sovereignty was explained by Austin. Salmond quotes the theory of
sovereignty developed by Austin as : "To Austin a sovereign is any person, or body of
persons, whom the bulk of political society habitually obeys, and who does not himself
habitually obey some other person or persons". (Salmond on Jurisprudence, Twelfth
Edition, Indian Economy Reprint (2009), page 27).
Dias also follows Austin and summarises the theory of sovereignty in following words:
Sovereignty has a 'positive mark' and a 'negative mark'. The former is that a
determinate human superior should receive habitual obedience from the bulk of a given
society, and the latter is that that superior is not in the habit of obedience to a like
superior.
(Dias Jurisprudence, Fifth Edition, page 348)
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. The second aspect has been
aptly put by Dias in the following words:
Sovereign cannot be under a duty, since to be undera duty implies that there is another
sovereign above the first who commands the duty and imposes a sanction; in which case
the first is not sovereign.
Applying this test, the President or the Governor cannot be held to be sovereign
inasmuch as the President habitually obeys and is required by the Constitution to obey
the advice given by the Council of Ministers and so is the Governor. Except in case of
some discretionary functions wherein the Governor may act on his own, he is required
to act on the advice of the Council of Ministers and so is the President. Though the
advice given by the Council of Ministers to the President or the Governor, as the case
may be, cannot be regarded as a command, under the constitutional scheme the
President and the Governor in the bulk of the matters are bound by the advice
rendered by the Council of Ministers. In that sense, it cannot be said that the President
and the Governor are not in the habit of obedience to any other person or a body of
persons.
12. There are usually three elements of internal sovereignty. The sovereign has a
power to make laws (legislative power). He has a power to enforce laws (executive
power) and he has power to decide any dispute or issue, including interpretation of the
laws (judicial power). It is true that the President has all the three powers. Power of
making laws in respect of the subjects mentioned in the Union list vests in the
Parliament. Article 79 of the Constitution provides that there shall be Parliament for the
Union which shall consist of the President and two Houses to be known respectively as
the Council of States and the House of the People. The President thus, is a part of the
Parliament which makes laws. Under Article 123 of the Constitution, the President has
power to promulgate Ordinances when both the houses of the Parliament are not in
session. The President thus enjoys the legislative power. The President also has the
executive power. Under Article 53 of the Constitution, the executive power of the Union
vests in the President. The fact that the President is required to act in most of the
matters in accordance with the advice of the Council of Ministers does not depart from
the fact that the executive power of the Union vests in him. The President also, to an
extent, exercises the judicial power. Judicial power is the power to decide an issue or a
dispute. If any question arises as to the age of a Judge of a High Court, under Article
217(3) of the Constitution the question is to be decided by the President, after
consultation with the Chief Justice of India and the decision of the President is to be
final. If a question arises as to whether a member of either House of Parliament has
become subject to any of the disqualifications mentioned in Article 102, the question is
to be referred to the President and his decision is final under Article 103 of the
Constitution. Thus, the President has a power to decide a dispute or a question. The
President exercises legislative, executive as well as judicial power. However, that does
not make the President a sovereign. In democracy sovereignty vests in the people/the
citizens of the country. Sovereign power of the Democratic Republic of India, which
vests in its citizens is exercised by them through their representatives, be they the
Members of Parliament or the Executive or through the titular head, but the ultimate
power and sovereignty vests in the people of India. The very preamble to the
Constitution begins with the words "We the people of India, having solemnly resolved
to constitute Indian into a sovereign socialist secular democratic republic". 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.
Indeed, the fact that the President and the Governor are bound by the advice of the
Council of Ministers militates against the Austin's concept of "Sovereignty", namely
that the sovereign "habitually does not obey some other person or persons". Under the
Constitution, the President and the Governor obey and are bound by the decisions of
the cabinet, save and except, in exceptional circumstances where they can act in their
discretion in certain matters.
13. In case of a monarchy, governed by an unwritten constitution, the King is the
sovereign and enjoys an absolute immunity from any judicial process. The judiciary
may in fact owe its existence to the King. No action of the King can be questioned. But
that is not so in case of a country governed by a written constitution. The Head of the
State, in whom the sovereignty may seemingly vest under the written constitution
exercises sovereign powers and enjoys sovereign immunity only to the extent to which
they are granted by the written constitution. We would have an occasion to consider
later the extent of sovereign immunity enjoyed by the President and the Governor
under Article 361. 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.
14. A distinction between the sovereign and non-sovereign functions of the State must
also to be borne in mind. In a war with another country, the military while using its
arms and ammunitions may accidentally causes damage to the property of a citizen. In
such a case, the State would enjoy a sovereign immunity and may not be liable to pay
compensation for the loss suffered by the citizen in a military action against a foreign
country. But that does not mean that the State would enjoy sovereign immunity in
respect of its non-sovereign functions. A damage caused by a military truck while
moving on a public road carrying children of the officers to the school would give rise
to claim damages and the State would not be able to claim sovereign immunity. We are
of the view that in respect of non-sovereign functions performed by the Governor, he
would not be entitled to claim freedom from law on the basis of sovereign immunity.
His non-sovereign functions and actions would be subject to law of the land. He would
be bound by the RTI Act and would not be able to claim any sovereign immunity from
disclosing information in respect of his non-sovereign functions. 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.
Point No.3
What is the extent of immunity enjoyed by the Governor under Article 361 of
the Constitution of India? And whether in view of such immunity, no direction
can be issued to an no order can be passed under the RTI Act, which has an
effect of requiring the Governor to disclose any information under the RTI
Act?
15. The question of immunity granted to the President and the Governor under Article
361 of the Constitution came up for consideration before a Constitution Bench of the
Supreme Court in Rameshwar Prasad and Others (VI) Vs. Union of India and Another,
(2006) 2 SCC 1 to which our attention was invited by Mr. Nadkarni, learned counsel
appearing for the respondent. After considering its earlier decision in Union Carbide
Corporation and Others Vs. Union of India and Others, 1991(4) SCC 584, and the
decisions of Bombay, Madras, Calcutta and Nagpur High Court, Sabharwal, C.J.,
speaking for the majority observed:
The position in law, therefore, is that the Governor enjoys complete immunity.
The Governor is not answerable to any court for the exercise and performance of the
powers and duties of his office or for any act done or purporting to be done by him in the
exercise and performance of those powers and duties. 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.
Pasayat, J, in a partly dissenting Judgment, has also concurred with the majority on
the question of scope of immunity enjoyed by the Governor under Article 361 of the
Constitution. In paragraph No.281(6) of the judgment he has observed:
So far as the scope of Article 361 granting immunity to the Governor is concerned,
I am in respectful agreement with the view expressed by the Hon'ble the Chief Justice
of India:
In terms of Article 361 the Governor enjoys complete immunity. The Governor is not
answerable to any court for exercise and performance of powers and duties of his
office or for any act done or purporting to be done by him in the exercise of those
powers and duties. However, such immunity does not take away power of the Court to
examine the validity of the action including on the ground of mala fides.
16. The law on the subject as laid down by the Supreme Courtin the case of
Rameshwar Prasad (supra) appears to be: Though the Governor enjoys complete
immunity and is not answerable to any Court for the exercise and performance of the
powers and duties of his office and for any act done or purporting to be done by him in
exercise and performance of his powers and duties, but 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. When an application is made to the
PIO in the Office of the Governor by a citizen for disclosure of an information in
possession of the Governor, the PIO would ordinarily seek views of the public authority
on the application. If the public authority (including the Governor) has no objection for
disclosure of the information, no difficulty would arise and the information would be
disclosed to the applicant. If the public authority raises objection to the disclosure,
either in the form of exemption under section 8 of the RTI Act or on the ground
mentioned in Section 9 of the RTI Act, or any other ground permissible in law, the PIO
would then be required to decide whether the information is so exempt and/or is not
liable for disclosure to the citizen making the application. If the decision of the PIO or
of the appellate or the second appellate authority as the case may be, is that the
information is required to be disclosed and is not exempt from disclosure an order of
disclosure would be issued. 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.
17. We may refer to the oath which the Governor takes under Article 159 of the
Constitution of India. The Article itself gives the form of the oath which reads as
follows:
I, A.B., do swear in the name of Goa /solemnly affirm that I will faithfully execute the
office of Governor (or discharge the functions of the Governor) of..... (name of the State)
and will to the best of my ability preserve, protect and defend the Constitution and the
law and that I will devote myself to the service and well-being of the people of......
(name of the State)
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.
Point No.4
Whether the Report of the Governor made to the President under Article 356
of the Constitution is exempt from disclosure under clause (e) of section 8 of
the RTI Act?
18. Clause (e) of sub-section (1) of section 8 of the RTI Act reads as follows:
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give
to any citizen(e) Information available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public interest warrants the disclosure of such
information.
The essential ingredients for applicability of clause (e) of sub-section (1) of section 8 of
the RTI Act are (i) there must exist a fiduciary relationship between two persons, (ii)
the information must be available with the latter person (public authority to whom
request for disclosure of information is made) in his fiduciary relationship with the
former person (person regarding whom the information relates or who has given or
transmitted the information), (iii) the competent authority must not be satisfied that
the larger public interest warrants the disclosure of such information. In order to test
the claim of exemption made by the appellant of exemption under section 8(1)(e) of
the RTI Act, it would be necessary to examine (i) the nature of relationship between
the President and the Governor, (ii) whether the report made by the Governor under
Article 356 of the Constitution is made in pursuance of any fiduciary relationship
between the two, and (iii) whether the person who is an author of the report (the
Governor) can claim exemption under section 8(1)(e) or is it only the recipient (the
President) who would be entitled to claim exemption under clause (e) of sub-section
(1) of section 8 of the RTI Act.
19. The report which the Governor makes to the President under Article 356 of the
Constitution is about the situation and state of affairs in the State of which he is the
Governor. Under sub-clause (1) of Article 356 of the Constitution, the Governor makes
a report to the President as to whether a situation has arisen in the State in which the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution. The report of the Governor is made in pursuance of his constitutional duty
to inform the President where a situation arises that the Government of the State of
which he is the Governor is unable to or otherwise cannot carried on in accordance
with the provisions of the Constitution. This report is not made in performance of any
fiduciary duty. In fact, the President or the Governor do not hold any fiduciary
relationship in relation to the report to be made by the Governor under Article 356 of
the Constitution. In making the report the Governor performs his constitutional
obligation, an obligation far higher than an obligation in trust. It therefore cannot be
said that the report of the Governor made under Article 356 of the Constitution is an
information received by the President in a fiduciary capacity.
20. For the sake of arguments, even if it is assumed that the report made by the
Governor to the President under Article 356 of the Constitution, is sent in a fiduciary
capacity, the exemption available under section 8(1)(e) of the RTI Act would be
available only to the recipient of the information (report), i.e. the President. The
exemption under clause (e) of sub-clause (1) of section 8 of the RTI Act can be claimed
only by the recipient and cannot be claimed by a person who is an author of the
information or who gives the information. Clause (e) of sub-clause (1) of section 8 of
the RTI Act says "information available to the person in fiduciary relationship". Even if
it is assumed that the report is available with the President in a fiduciary relationship, it
is he who can claim exemption when a disclosure is sought from him. Clause (e) of
sub-clause (1) of section 8 of the RTI Act does not exempt the giver of an information
to claim an exemption.
For all these reasons, it must be held that the Governor cannot claim an exemption
under clause (e) of sub-clause (1) of section 8 of the RTI Act in respect of disclosure of
a report made by him under Article 356 of the Constitution.
Point No.5
Whether a State Information Commission has to be a multi-member body?
What is the effect of an order passed by the State Information Commission
when it is reduced to a sole member body?
21. We are in agreement with the view expressed by the Single Judge of the Himachal
Pradesh High Court in Virendra Kumar vs. P.S. Rana (supra), and in particular para 15
thereof and by the Calcutta High Court in Tata Motors vs. State of West Bengal (supra),
that the State Information Commission has to be a multi-member body.
22. In Lokesh Chandra vs. State of Maharashtra (supra), a Single Judge of this Court
was mainly concerned with sub-section (4) of section 15 of the RTI Act. Sub-section
(4) of section 15 prescribes that general superintendence, direction and management
of the affairs of the State Information Commission shall vest in the State Chief
Information Commissioner and he shall be assisted by the State Information
Commissioners. Interpreting sub-section (4) of section 15 of the RTI Act, the Court
held that the State Chief Information Commissioner has a right to decide which
appeals are to be heard by whom. The State Information Commissioner can hear only
those appeals which may be made over to him and cannot make a grievance for
withdrawal of any appeal from him by the State Chief Information Commissioner. In
short, the Court held that the powers of the State Chief Information Commissioner
regarding assignment of appeals are similar to the powers of the Chief Justice of a
High Court who decides the roster and decides who should hear which appeal. In
Lokesh Chandra's case, the Court was not required to consider whether the State
Information Commission can consist of only one member, namely the State Chief
Information Commissioner. This decision does not lay down that the State Information
Commission can consist of only one member. In any event, we are of the considered
view that the State Information Commission has to be a multi-member body and must
consist of State Chief Information Commissioner and at least one more State
Information Commissioner. Since at the relevant time, the Goa State Information
Commission consisted of only one member, namely State Chief Information
Commissioner, though the RTI Act and the Government contemplates it to be a multimember body, it was not properly constituted and could not have exercised the powers
under section 18 of the RTI Act. In this view of the matter, it is not necessary for us to
consider the last leg of the argument of the learned Additional Solicitor General that
the State Information Commission ought not to have entertained the application under
section 18 of the RTI Act as the respondent no. 3 in Writ Petition No. 237 of 2011 had
a remedy by way of an appeal under section 19 of the RTI Act against the order dated
19th November 2009 of the Public Information Officer declining to disclose information.
CONCLUSIONS
23. For the reasons mentioned above, we record our conclusions as follows:
Point No.1: The Governor is a public authority within the meaning of section 2(h) of the
RTI Act. He would not cease to be a public authority by reason of the fact that he is
also a competent authority under section 2(e) of the RTI Act.
Point No.2: The Governor is not sovereign and sovereignty does not vest in him. The
contention that by reason of he being sovereign no direction can be issued to the
Governor for disclosure of any information under the RTI Act, cannot be accepted.
Point No.3: By reason of Article 361 of the Constitution of India, the Governor enjoys
complete immunity and is not answerable to any Court in exercise and performance of
the powers and duties of his office and any act done or purporting to be done by him in
exercise and performance of his duties; but the immunity granted under Article 361(1)
of the Constitution of India does not take away the powers of the Court to examine the
validity of his actions including on the ground of mala fides. [See Rameshwar Prasad
vs. Union of India: (2006) 2 SCC 1]. The Governor or the PIO in his office cannot claim
immunity from disclosure of any information under the RTI Act.
Point No.4: The relationship between the President of India and the Governor of a
State is not fiduciary. The President cannot be said to hold a fiduciary position qua the
Governor of a State. Consequently, the information sought for by the respondent no.1
in Writ Petition No. 478 of 2008, i.e. a copy of the report made by the Governor to the
President (through the Home Minister) under Article 356(1) of the Constitution of India
is not exempt from disclosure under section 8(1)(e) of the RTI Act.
Point No.5: The State Information Commission has to be a multi-member body
consisting of the State Chief Information Commissioner and at least one (but not
exceeding ten) State Information Commissioner/s. The State Information Commission
cannot function only with one member.

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no notice was given to the petitioner by Respondent No. 2.

(a) by or under the Constitute;

provide information sought by Respondent No.4 - His order cannot be said to

by him to the Government. He made several complaints/representations to the

disclosing information in respect of his non-sovereign functions. In this connection, a

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