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RTI Act =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”.?

1 WP 478/2008

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IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 478 OF 2008
1. Public Information Officer
Joint Secretary to the Governor
Raj Bhavan, Donapaula, Goa
2. Secretary to Governor
First Appellate Authority,
Raj Bhavan, Donapaula, Goa .. Petitioners
V/s
1. Shri Manohar Parrikar
Leader of Opposition,
Goa State Assembly Complex,
Porvorim, Bardez, Goa.
2. Goa State Information Commissioner,
Ground Floor, Shram Shakti Bhavan,
Patto Plaza, Panaji, Goa. .. Respondents
Mr. S.S. Kantak, Advocate General with Mr. A. Kamat, Additional
Government Advocate for the petitioners.
Mr. A.N.S. Nadkarni, Senior Advocate with Mr. D. Lawande, for
respondent no.1.
WITH
WRIT PETITION NO. 237 OF 2011
Special Secretary to the
Government of Goa .. Petitioner
V/s
1. State Chief Information Commissioner
2. State of Goa
3. Advocate A. Rodrigues .. Respondents 2 WP 478/2008
Mr. Vivek Tankha, Additional Solicitor General with Mr. Mahesh
Sana, Mr. Rishabh Sanchety and Mr. J. Supekar for the
petitioner.
Mr. Amey Kakotkar, Additional Government Advocate for
respondent nos.1 and 2 with Mr. A. Rodrigues – respondent no.3
in person.
CORAM : D.G. KARNIK, &
F.M. Reis, JJ.
Date of Reserving the Order : 23rd August 2011
Date of Pronouncing the Order : 14th November 2011
(By Video Conferencing)
JUDGMENT: (Per D.G. Karnik, J.)
1. By an order dated 22nd October 2008, the Court directed
that Writ Petition No. 478 of 2008 be fixed for final disposal at
an early date. The petition was accordingly placed on board
before us for final hearing. By an order dated 6th June 2011,
the Court directed that Writ Petition No. 237 of 2011 be put up
along with Writ Petition No. 478 of 2008. Accordingly these
petitions are heard and disposed of by this common judgment as
they involve common questions of law.
Facts in Writ Petition No. 478 of 2008
2. In July/August 2007, some changes occurred in the political 3 WP 478/2008
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 4 WP 478/2008
“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
3. 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 5 WP 478/2008
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. Though the number of the other matter in which the
affidavit had been filed was not mentioned in the reply, it
appears that the PIO was referring to the affidavit filed in the
connected Writ Petition No.278 of 2008. 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 6 WP 478/2008
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.
Concessions of the respondent no.1 in W.P. NO. 478 of 2008
4. At the outset, it may be noted that the decision of the GSIC
of severing of the report of Speaker of the Legislative Assembly
and not furnishing its copy to respondent no.1, while directing
the PIO to furnish a copy of the report of the Governor, is not
challenged by the respondent no.1. Mr. Nadkarni, learned
Senior Advocate appearing for respondent no.1 also submitted
before us that respondent no.1 does not want to challenge the 7 WP 478/2008
direction of the GSIC of severance of the report of the Speaker
of the Legislative Assembly. We are, therefore, not required to
consider the legality and validity of the direction as the same
has been accepted by the respondent no.1.
Preliminary objections (in W.P. No. 478 of 2008)
5. Mr. Nadkarni appearing for the respondent no.1 raised a
preliminary objection to the maintainability of the writ petition.
He submitted that petitioner no.1 is the PIO whose decision was
affirmed by petitioner no.2, as the first appellate authority. The
petitioner no.2 is the first appellate authority whose decision
has been reversed by the GSIC. Both the petitioners are
subordinate to the GSIC which is the final appellate authority.
The decisions rendered by the petitioner nos.1 and 2 have a
colour of judicial decision and, in any event, they are quasijudicial inasmuch as they decide upon the existence and extent
of the right of a citizen to have access to the information under
the RTI Act. Their decisions are subject to an appeal. They
being judicial authorities subordinate to the GSIC, have no right
and authority to challenge the decision of the GSIC. As a matter
of judicial discipline, a Court or a Tribunal cannot file an appeal
or writ petition against the decision of an appellate authority
reversing its decision, except perhaps for expunging of any 8 WP 478/2008
adverse remarks made against the lower Court or the Tribunal.
Permitting a Court or a Tribunal to challenge the decision
rendered in an appeal or revision by appellate or revisional
authority would amount to judicial indiscipline and, therefore,
the writ petition should not be entertained. In support, he relied
upon a decision of a Division Bench of this Court in Village
Panchayat of Velim vs. Shri Valentine S.K.F. Rebello and another,
1990 (1) Goa Law Times 70.
6. In Village Panchayat of Velim (supra), the facts were that
the respondent,who claimed to be the owner of a plot, submitted
an application for permission for erection of a building to the
Village Panchayat, which was rejected by it vide letter dated 6th
June 1987. The Deputy Collector allowed the appeal of the
respondent and granted the permission. The Village Panchayat
challenged the order of the Deputy Collector in the High Court
by a writ petition. The High Court held that under the scheme
of Village Panchayat Regulations, the Panchayat cannot at all be
held to be “a person aggrieved” and consequently, it had no right
to challenge the decision made by the Deputy Collector. The
Court further accepted the argument of respondent that the
Village Panchayat ought not to be permitted to maintain the
petition merely because it believed that the appellate decision 9 WP 478/2008
was not palatable and allowing it to challenge the decision
would amount to subversion of judicial discipline. The Court
observed: “If the Panchayat is allowed to challenge the appellate
order, as rightly pointed out by Shri Kakodkar, it may lead to
chaos which the judicial discipline must decry”. We respectfully
agree with the view taken by the Division Bench. We also are of
the view that ordinarily a Court, a Tribunal or any other body
having a power to decide, shall not be entitled to challenge by
way of an appeal, revision or otherwise a decision rendered by
the appellate or revisional authority, modifying or reversing its
decision. That would amount to subversion of the judicial
discipline. It is inconceivable that on his decision being
reversed by the District Judge, a Civil Judge filing an appeal in
the High Court challenging the decision of the District Judge.
The same principle would apply with equal force for the
decisions rendered by any judicial or quasi-judicial bodies or
authorities. However, the principle laid down above would not
apply to the facts of the present case for the reasons indicated
below.
Section 19 of the RTI Act provides that any person who
does not receive a decision within the specified time or is
aggrieved by the decision of a Central Public Information 10 WP 478/2008
Officer or the State Public Information Officer, may within 30
days file an appeal to the specified appellate authority. The first
appeal under Section 19 of the RTI Act is contemplated only by
or at the instance of the person whose application for an
information has not been decided or rejected by the PIO. Subsection (5) of Section 19 provides that in any appeal
proceedings, the onus to prove that the denial of the request
was justified shall be on the PIO who has denied the request.
The PIO who passes the initial order refusing the request for an
information is required to defend his action before the appellate
authority and the burden of proving that the denial was justified
is on him. Thus, the PIO is not merely an authority which
initially decides upon the request of an applicant, but in effect is
a party to the appeal filed before the appellate authority. The
PIO acts as a medium for dissemination of an information by the
“public authority” under the RTI Act. If he holds that the public
authority is not required to disclose the information, he is
required to defend his decision. The PIO can be subjected to a
penalty under Section 20 of the RTI Act for non-disclosure of the
information. The proviso to Section 20 provides that the PIO
shall be given a reasonable opportunity of being heard before
any penalty is imposed on him. Thus, the PIO is, in effect, a
party litigant in an appeal or a second appeal which is filed 11 WP 478/2008
before the first appellate authority or the Information
Commission and in certain circumstances is also personally
liable to a penalty. Being so, we are not inclined to accept the
submission of Mr. Nadkarni that the writ petition at the instance
of the PIO against the decision of the State Information
Commission is not maintainable and/or should not be
entertained.
Contentions of the parties
7. Mr. Vivek Tankha, learned Additional Solicitor General
appearing for the petitioner in Writ Petition No. 237 of 2011 and
Mr. Kantak, learned Advocate General appearing for the
petitioner in Writ Petition No. 478 of 2008, submitted that the
Governor was not a Public Authority under the RTI Act and as
such was not required to disclose any information. Learned
A.S.G. and the A.G. invited our attention to the definitions of
“competent authority” in Section 2(e) and “public authority” in
Section 2(h) of the RTI Act, and submitted that the “competent
authority” and the “public authority” were two different
authorities or bodies contemplated by the RTI Act. The
expressions “competent authority” and “public authority” were
mutually exclusive, and the “competent authority” cannot be
regarded as the “public authority” within the meaning of Section
2(h) of the RTI Act. The President and the Governor, who are 12 WP 478/2008
included in the definition of “competent authority” are,
therefore, not the “public authority” within the meaning of
Section 2(h). The Governor is the appointing authority for the
Chief State Information Commissioner as well as the State
Information Commissioners and has an authority to remove any
of the members of the State Information Commission. The
Governor being the appointing, disciplinary and removing
authority for the members of the State Information Commission,
the State Information Commission (GSIC) has no authority to
issue any order or direction to the Governor to disclose any
information. Mr. Tankha further submitted that the President
and the Governor were sovereign. The sovereignty vests in the
President and the Governor, they being the heads of the Union
and the State respectively. No authority, not even the
Information Commission, has any jurisdiction or power to issue
any direction to the sovereign, i.e. the President or the
Governor, to disclose any information. Lastly, he submitted that
the Governor enjoys an absolute immunity under Article 361 of
the Constitution of India. The immunity enjoyed under Article
361 is not only personal but relates to his office and all his
actions. The immunity granted under Article 361 is absolute
and, therefore, no notice can be issued to the Governor, and no
direction can be issued to the Governor to disclose any 13 WP 478/2008
information under the RTI Act. Mr. Tankha further submitted
that the RTI Act contemplates the Information Commission to be
a multi-member body. The GSIC at the time it passed the
impugned order consisted of only the State Chief Information
Commissioner, the only other State Information Commissioner
having retired. As such, the State Chief Information
Commissioner could not have passed the impugned order by
acting singly. Mr. Kantak, learned A.G. supplemented the
arguments of Mr. Tankha and further submitted that the
Governor’s report made to the President (through the Union
Home Minister) was made in a fiduciary capacity and was
exempt from disclosure under Section 8(1)(e) of the RTI Act.
8. Per contra, Mr. Nadkarni, appearing for respondent no.1
submitted that the President and the Governor are appointed by
or under the Constitution of India (for short “the Constitution”).
They are, therefore, the public authorities under Section 2(h) of
the RTI Act. The President and the Governor being the public
authorities, are amenable to the provisions of the RTI Act and
are required to disclose any information when ordered by the
PIO or in an appeal by the appellate authority or the Information
Commission. The actions of the Governor have to be in
consonance with the Constitution and the law. Under Article 14 WP 478/2008
159 of the Constitution, the Governor takes an oath of office to
preserve, protect and defend the Constitution and the law. The
Governor is, therefore, bound by the law including the RTI Act.
The fact that the Governor is an appointing as well as
disciplinary authority of the PIO, the appellate authority as well
as the State Information Commissioners, does not make him
immune from disclosing information ordered by any of them in
accordance with the RTI Act. He is bound to comply with the
orders passed under the RTI Act and give access to the citizen of
the information, if so ordered. So far as the President is
concerned he may represent to the external powers India as a
sovereign country. He represents the external sovereignty.
However, there is nothing like internal sovereignty and the
President and the Governor are bound by the Constitution and
the law. India being a democracy, the real sovereignty vests in
the people of India and not in the President or the Governor, as
the case may be. The concept of “King” being sovereign and the
sovereignty being vested in the King is not applicable in case of
a democracy where the people are sovereign and the President
or the Governor are only titular heads. As regards the immunity
conferred under Article 361 of the Constitution is concerned, it
is only a personal immunity given to the Governor. The personal
immunity conferred by Article 361 of the Constitution extends to 15 WP 478/2008
an immunity from being prosecuted and immunity from civil
liability in person. The immunity does not relate to a State
action or an action taken by the President or the Governor in
their respective official capacities as the President or the
Governor, in exercising functions of the State. The official
actions of the President and the Governor are justiciable and
have been held to be so by the Supreme Court. Mr. Nadkarni
countered the argument of exemption under Section 8(1)(e) of
the RTI Act by submitting that the relationship between the
President and the Governor was not fiduciary. The report of the
Governor to the President (through the Home Minister) under
Article 356 of the Constitution was made in performance of a
constitutional duty and not in a fiduciary capacity.
9. In the light of the submissions of the parties, the following
points arise for our determination:
(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? 16 WP 478/2008
(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? 17 WP 478/2008
Point No.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” 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 18 WP 478/2008
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;
11. Mr. Tankha, learned ASG and Mr. Kantak, learned A.G.
submitted that the expressions “competent authority” and
“public authority” were separately defined under the Act. There
can be no overlapping between the two authorities. Whoever is
the “competent authority” under section 2(e) of the RTI Act
cannot be the “public authority” and whoever is the “public
authority” under section 2(h) of the RTI Act cannot be the
“competent authority”. Since the two expressions are different, 19 WP 478/2008
if there were to be any overlapping between the two, the
Legislature would have specifically said so in the definition
itself. If the competent authority was to be included in the
definition of “public authority”, nothing prevented the
Legislature from saying so by adding one more clause to subclauses (a) and (d) and to include the competent authority within
the definition of “public authority”. Mr. Kantak also drew our
attention to section 8 and in particular clauses (d) and (e)
thereof. Section 8(1) of the RTI Act, insofar as it is relevant for
our consideration, is quoted below:
“8. Exemption from disclosure of information –
(1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,-
(a) …
(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) information available to a person in his
fiduciary relationship, unless the competent
authority is satisfied that the larger public 20 WP 478/2008
interest warrants the disclosure of such
information;
(f) …
(g) …
(h) …
(i) …
(j) … “
Mr. Kantak submitted that clause (d) of section 8 grants
exemption from disclosure and the PIO is not required to
disclose any information of commercial confidence, trade secrets
or intellectual property, the disclosure of which would harm the
competitive position of a third party. Under clause (e) of section
8, the PIO is not required to disclose an information which is
available to a person (public authority) in his fiduciary
relationship. The decision of a PIO not to disclose the
information covered by clause (d) and clause (e) of sub-section
(1) is, however, subject to an exception which is provided in
clauses (d) and (e) itself by qualifying the exemption by the
words: “unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information”.
The competent authority is, thus, given a power to override a
decision of the public authority acting through the PIO of not
disclosing an information contained in clauses (d) and (e), if the 21 WP 478/2008
competent authority is satisfied that larger public interest
warrants the disclosure of such information. If the competent
authority has a power to override the decision of public authority
not to disclose any information, then the competent authority
must be regarded as a different than the public authority. The
competent authority is superior to the public authority, as it is
given a power to override a decision of the public authority, at
least in certain cases like those mentioned in clauses (d) and (e)
of section 8(1) of the RTI Act and that being so, the Court must
hold that the competent authority is not the public authority
within the meaning of section 2(h). The argument, attractive as
it looks at the first blush, cannot be accepted for the reasons
indicated below.
12. 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 [see:
Central Public Information Officer vs. Subhash Chandra
Agarwal, (2011) 1 SCC 496 and the Hindu Urban Cooperative
Bank Ltd. vs. The State Information Commission – Civil Writ
Petition No. 19224 of 2006 decided on 9th May 2010 by the High 22 WP 478/2008
Court of Punjab and Haryana, Coram: Mohinder Singh Sullar, J.]
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 23 WP 478/2008
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.
13. 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 24 WP 478/2008
clauses (d) and (e) of section 8 and consequently there can be no
overlapping between the two, therefore, cannot be accepted.
14. 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.
15. 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 25 WP 478/2008
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”.
16. 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 26 WP 478/2008
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.
17. We are fortified in our view by a decision of the Special
Bench (of Three Judges) of Delhi High Court, rendered in
Secretary General, Supreme Court of India vs. Subhash Chandra
Agarwal, (L.P.A. No. 501/2009 decided on 12th January, 2010).
In that case, the Chief Justice of India (who is the “competent
authority” under section 2(e)(ii) of the RTI Act) was also held to
be the “public authority”. The fact that the Chief Justice of India
(for short “the CJI”) was the competent authority did not deter
the Court from coming to the conclusion that he was the “public
authority” under section 2(h) of the RTI Act. Learned Additional
Solicitor General and the Advocate General, however, inviting
our attention to paragraph 25 of the decision submitted that the
decision that the CJI is a “public authority” was rendered by the
Special Bench on the basis of a concession made by the learned
Attorney General before it. It is true that the learned Attorney
General had conceded before the Special Bench that the finding
recorded by the Single Judge that the CJI was a “public
authority” and the reasons therefore were correct. However, the 27 WP 478/2008
Special Bench did not hold that the CJI was a “public authority”
only on the basis of the concession of the learned Attorney
General. In paragraph 26, the Special Bench has observed:
“Notwithstanding the fact that the correctness of the findings
respecting point nos.1 & 2 have been fairly conceded by the
learned Attorney General for India, we have given our careful
consideration to the matter in the overall facts and
circumstances of these proceedings. We find ourselves in full
agreement with the reasoning set out in the impugned
judgment”. The Special Bench then set out briefly its reasons
for coming to the conclusion that the CJI was a “public
authority”. The reasons for which the CJI has been held to be
the “public authority” notwithstanding he being the “competent
authority” apply with equal force for not excluding the President
and the Governor from the definition of “public authority”. If the
Governor falls under clause (a) of definition of the “public
authority” under section 2(h) of the RTI Act, he cannot be
excluded from definition for any reason, including the one
contended by the learned Additional Solicitor General and the
Advocate General. If the Legislature intended to exclude the
persons who find place within the definition of the “competent
authority” from the definition of “public authority”, nothing
prevented the Legislature from so saying. For these reasons, we 28 WP 478/2008
answer the first part of point no.1 in the affirmative and second
part in the negative.
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?
18. 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.
19. 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, 29 WP 478/2008
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 under
a duty implies that there is another sovereign above 30 WP 478/2008
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.
20. 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 31 WP 478/2008
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 32 WP 478/2008
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.
21. We will now refer to the various decisions cited before us in
regard to the position of the President and the Governor.
22. Our attention was invited to a decision of seven Judges
Bench of the Supreme Court in Samsher Singh vs. State of 33 WP 478/2008
Punjab, (1974) 2 SCC 831, and particularly to the observations
in the concurring judgment of Krishna Iyer, J. in paragraph 138,
wherein it is observed: “In short, the President, like the King has
not merely been constitutionally romanticised but actually
vested with a pervasive and persuasive role”. Placing strong
reliance on the aforesaid observations, it was submitted that the
position of the President was like the King and in fact better
than the King; like the King, sovereignty vests in the President in
case of the Union and in the Governor in case of a State. Our
attention was also invited to the judgment of Ray, CJ. who
speaking for the majority, wrote (paragraph 33 of the decision):
“This Court has consistently taken the view that the powers of
the President and the powers of the Governor are similar to the
powers of the Crown under the British Parliamentary system”.
In paragraph 48 of the majority judgment, it is observed: “The
President as well as the Governor is the Constitutional or formal
head. The President as was the Governor exercises his powers
and functions conferred upon him by or under the Constitution
on the aid and advice of Council of Ministers, save in spheres
where the Governor is required by or under the Constitution to
exercise his functions in his discretion”. In our view, in Samsher
Singh’s case the majority has not held that sovereignty vests in
the President or the Governor or that they are sovereign. It has 34 WP 478/2008
only held that the powers of the President and the Governor are
similar to the power of the Crown under the British
Parliamentary System.
23. In Bhuri Nath and others vs. State of J & K and others,
(1997) 2 SCC 745, the Supreme Court followed the decision in
the case of Samsher Singh (supra) and held that under the
cabinet system of Government, as embodied in our Constitution,
the Governor is the constitutional or formal head of the State
and he exercises all his powers and functions conferred on him
by or under the Constitution on the aid and advice of the Council
of Ministers, save in spheres where the Governor is required by
or under the Constitution to exercise his functions in his
discretion (para 19 of the decision). This decision also does not
hold that the President and the Governor are sovereign or that
the “Internal Sovereignty” vests in them.
24. In Pu Myllai Hlychho and others vs. State of Mizoram and
others, (2005) 2 SCC 92, a Constitution Bench of the Supreme
Court reiterated that the powers of the President and the
Governor were similar to the powers of the Crown under British
Parliamentary system, but also held (para 15) that “Whenever
the Constitution requires the satisfaction of the Governor for the 35 WP 478/2008
exercise of any power or function, the satisfaction required by
the Constitution is not personal satisfaction of the Governor but
the satisfaction in the Constitutional sense under the cabinet
system of Government.”
25. None of the three decisions cited on behalf of the
petitioners and referred to above indicates that the President or
the Governor is the sovereign and/or that the sovereignty vests
in them. All the decisions indicate that the President and the
Governor are formal heads of the State and the executive
powers of the Union and the State, as the case may be, vests in
them. However, they have to exercise the powers as provided in
the Constitution of India, on the aid and advice of the Council of
Ministers in view of the cabinet system of governance adopted
by the Constitution. 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. 36 WP 478/2008
26. 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.
27. 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 37 WP 478/2008
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 nonsovereign 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. 38 WP 478/2008
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?
28. 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:
179. 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 39 WP 478/2008
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:
“281. 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:
(6) 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.”
29. The law on the subject as laid down by the Supreme Court
in the case of Rameshwar Prasad (supra) appears to be: Though 40 WP 478/2008
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 41 WP 478/2008
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.
30. 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 42 WP 478/2008
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?
31. 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 subsection (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 43 WP 478/2008
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.
32. Black’s Law Dictionary, Eighth Edition, defines the word
“fiduciary” as follows:-
“Fiduciary – 1. A person who is required to act for
the benefit of another person on all matters within
the scope of their relationship one who owes to
another the duties of good faith, trust, confidence,
and candor (the corporate officer is a fiduciary to the 44 WP 478/2008
corporation). 2. One who must exercise a high
standard of care in managing another’s money or
property (the beneficiary sued the fiduciary for
investing in speculative securities) – fiduciary, adj.
‘Fiduciary’ is a vague term, and it has been
pressed into service for a number of ends …..
My view is that the term ‘fiduciary’ is so vague
that plaintiffs have been able to claim that
fiduciary obligations have been breached
when in fact the particular defendant was not
a fiduciary stricto sensu but simply had
withheld property from the plaintiff in an
unconscionable manner.” D.W.M. Waters, The
Constructive Trust 4 (1964).
33. Concise Oxford English Dictionary (Indian Edition),
Eleventh Edition, Revised, defines the word “fiduciary” as
follows:
“fiduciary- adj. 1. Law involving trust, especially with
regard to the relationship between a trustee and a
beneficiary, 2. Finance (of a paper currency)
depending for its value on securities or the reputation
of the issuer.”
34. Despite the vagueness of the term “fiduciary”, attempts
have been made by Law Dictionaries to define the word 45 WP 478/2008
“fiduciary”. The definitions indicate that a person would hold a
fiduciary relationship with another if the former, in the scope of
his relationship owes to the latter the duties of good faith, trust,
confidence and candor. The fiduciary relationship can be best
described not by definition but by illustrations. The relationship
between a director of a company and the company; a lawyer and
his clients; a doctor and his patients, a banker and its
constituent, an executor and the beneficiary under a Will; are
often cited as examples of fiduciary relationship. A common
thread amongst these relationships is the position of a trust held
by the former (fiduciary) in relation to the latter (beneficiary). A
director of a company holds the position of trust for the
company in the sense he must act in the interest of the company.
In Sangramsinh P. Gaikwad v. Shantadevi P. Gaikwad, (2005) 11
SCC 314, it was held that the director does not hold a position
of a trust qua the shareholders except where any special
contract or arrangement may have been entered into between
directors and shareholders or any special relationship or
circumstances exist in a particular case. As between a lawyer
and his client, the lawyer acts for the benefit of his client and is
not permitted to share the fruits of the litigation (champarty
being prohibited in India). A doctor treats his patient and
prescribes medicine for his benefit and not merely for a 46 WP 478/2008
research, except where specific consent of the patient is so
obtained. An executor of a Will administers the estate of the
testator for the benefit of the legatees and not for his own
benefit. If this test of existence of trust is applied, it is difficult
to subscribe to the proposition that the President holds a
fiduciary relationship qua the Governor. Undoubtedly, the
appointment of a Governor is made by the President and is
terminable by the President, though the President acts in doing
so on the advice of Council of Ministers. The President in a
sense holds some authority on the Governor. He can call for a
report from the Governor if one is not made suo motu by the
Governor under Article 356 of the Constitution regarding the
situation in a State so as to ascertain whether a situation has
arisen in which the Government of a State cannot be carried on
in accordance with the provisions of the Constitution. But the
President does not act as a trustee for the Governor nor does he
act to protect the interest of the Governor. In that sense, there
is no relationship of a trustee and a beneficiary. There is no duty
in the President to act for the benefit of the Governor and the
relationship between them cannot be regarded as fiduciary
stricto sensu.
35. The report which the Governor makes to the President 47 WP 478/2008
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.
36. For the sake of arguments, even if it is assumed that the
report made by the Governor to the President under Article 356 48 WP 478/2008
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 subclause (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 multimember body? What is the effect of an order passed by the 49 WP 478/2008
State Information Commission when it is reduced to a sole
member body?
37. By a notification dated 2nd March 2006 published in the
Gazette, Extraordinary no.2 dated 3rd March 2006, the State of
Goa constituted “the Goa State Information Commission”
consisting of State Chief Information Commissioner and the
State Information Commissioner. Mr. N.S. Keni was appointed
as the State Chief Information Commissioner and Mr. Afanso
Araugo was appointed as the State Information Commissioner
and the two together constituted the State Information
Commission. However, the State Information Commissioner
retired on attaining age of 65 years and no new appointment has
been made in his place. The result is that the Goa State
Information Commission consists of only the State Chief
Information Commission and is reduced to a single member
body. It is this single member Commission which passed the
order dated 31st March 2011 that is impugned in Writ Petition
No. 237 of 2011.
38. Learned Additional Solicitor General appearing for the
appellant submitted that under section 15 of the RTI Act, the
State is required to constitute the State Information 50 WP 478/2008
Commission and such Information Commission has to be a multimember body. The State Information Commission cannot
function with only one member. The order passed by the State
Information Commission consisting of only one member is not in
accordance with law and is liable to be set aside. In support of
his submission, he referred to and relied upon a decision of the
Himachal Pradesh High Court in Virendra Kumar vs. P.S. Rana,
AIR 2007 HP 63 and of the High Court of Calcutta in Tata
Motors Ltd. vs. State of West Bengal (Writ Petition No. 1773 of
2008 decided on 12.1.2010, Coram: Dipankar Datta, J.).
39. Per contra, the respondent no.3 appearing in person
submitted that the law does not require that the State
Information Commission to be a multi-member body. The State
Information Commission can consist of the Chief Information
Commissioner as a sole member. When the Chief Information
Commissioner is the sole member, he can act alone. Even when
the State Information Commission is a multi-member body, the
distribution of the work amongst the members (State
Information Commissioners) is to be done by the Chief
Information Commissioner and he can assign any complaint
under section 18 of the RTI Act to any one of the State
Information Commissioners including himself and an order 51 WP 478/2008
passed by one member of State Information Commission is
valid. If so, the order passed by the State Chief Information
Commissioner acting solely and alone is a valid order. In
support, he referred to and relied upon a decision of a Single
Judge of this Court in Shri Lokesh Chandra vs. State of
Maharashtra (Writ Petition No. 5269 of 2008 decided on 1st
July 2009 – Coram: C.L. Pangarkar, J.).
40. Chapter IV of the RTI Act, which consists of sections 14 to
17, relates to the State Information Commission. Section 15
requires every State to constitute a State Information
Commission. Sub-section (1) of section 15 says that every State
Government shall, by notification in official gazette, constitute a
body to be known as “(Name of the State) Information
Commission” to exercise the powers conferred on and to
perform functions assigned to it under this Act. Sub-sections (1)
to (4) of section 15 are material and read thus:
“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 powers conferred on, and
to perform the functions assigned to, it under this Act. 52 WP 478/2008
(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.
(3) The State Chief Information Commissioner and
the State Information Commissioners shall be
appointed by the Governor on the recommendation of
a committee consisting of—
(i) the Chief Minister, who shall be the Chairperson
of the committee;
(ii) the Leader of Opposition in the Legislative
Assembly; and
(iii) a Cabinet Minister to be nominated by the Chief
Minister.
Explanation.—For the purposes of removal of doubts,
it is hereby declared that where the Leader of
Opposition in the Legislative Assembly has not been
recognised as such, the Leader of the single largest
group in opposition of the Government in the
Legislative Assembly shall be deemed to be the
Leader of Opposition.
(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 53 WP 478/2008
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.”
Conjoint reading of sub-sections (1) to (4) of section 15 of the
RTI Act leaves no doubt in our mind that the State Information
Commission has to be a multi-member body. Sub-section (2) in
clear words states that the Commission shall consist of the State
Information Commissioner and such number of State
Information Commissioners, not exceeding ten, as may be
deemed necessary. Though a discretion has been conferred on
the State to decide the number of State Information
Commissioners not exceeding ten, that does not mean that the
State has discretion not to appoint even a single State
Information Commissioner. Clauses (a) and (b) of sub-section (2)
of section 15 of the RTI Act are joined by a conjunctive article
“and”. The conjunction “and” contemplates that the State
Information Commission shall consist of at least two members,
one State Chief Information Commissioner and at least one more
State Information Commissioner. We also note that the
Government of Goa by its notification dated 2nd March 2006 has
constituted Goa State Information Commission to consist of 54 WP 478/2008
Chief Information Commissioner and one State Information
Commissioner.
41. 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 multimember body.
42. In Lokesh Chandra vs. State of Maharashtra (supra), a
Single Judge of this Court was mainly concerned with subsection (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 55 WP 478/2008
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 multimember 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 multi-member 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. 56 WP 478/2008
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
43. 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 57 WP 478/2008
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 58 WP 478/2008
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.
44. For these reasons, Writ Petition No. 478 of 2008 is
dismissed. However, Writ Petition No. 237 of 2011 however is
allowed the impugned order dated 31st March 2011 (Annexure
“K” to that writ petition) passed by the Goa State Information
Commission is quashed and set aside. In the facts and
circumstances, the parties shall bear their own costs.
(D.G. KARNIK, J.)
(F.M. REIS, J.)

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