cic(1372)balakrishnan (1)

8/10/2019 CIC(1372)BALAKRISHNAN (1)

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CENTRAL INFORMATION COMMISSION(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

File No.CIC/SS/A/2013/001372-SA

Appellant : Mr. Subhash Chand Agrawal

Respondent : Department of Legal Affairs

Government of India

Date of hearing : 30-10-2014

Date of decision : 21-11-2014

Information Commissioner : Prof. M. Sridhar Acharyulu

(Madabhushi Sridhar)

Referred Sections : Sections 3, 19(3) of the RTI

Act

Result : Appeal allowed/

Disposed of

Summary: Assuming for a moment that the information about action taken on

request for probe against former CJI is privileged, such privilege is not expressly

provided as ground for rejection of request for information under Section 8(1). Under

Section 8(1)(c) information, disclosure of which would cause breach of privilege of

Parliament or State Legislature cannot be given. The information sought has nothing to

do with the privilege of Parliament or State Legislature. The Correspondence between

Executive about a former CJI is not privileged correspondence as per any provision ofRTI Act or Constitution of India. It is not information given in fiduciary relationship.

Assuming again for a moment that disclosure of such information about probe about

former CJI would cause harm to protected interest, Section 8(2) comes to the aid of

disclosure. Section 8(2) says a public authority may allow access to information if

public interest in disclosure outweighs the harm to the protected interests. Thus the

CIC/SS/A/2013/001372-SA Page 1


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Commission finds that non-disclosure of what appellant sought would not serve any

public interest, would not harm any protected interest and in fact, public interest in its

disclosure would outweigh the probable harm, if any, to protected (if at all protected)

interests. As rightly pointed out by Justice Bhagwati, the Commission holds that the

Governments privilege to withhold disclosure of documents is subject to the right to

information of the individual. Commission directs the Department of Legal Affairs to

provide the action taken information about request for probe about former CJI Justice

K G Balakrishnan.

The appellant is present. The Public Authority is not represented by any officer.

FACTS:

2. The appellant filed RTI application on 23.1.2013 seeking following information with respect

to news-report Supreme Court tells government to decide on Balakrishnan Case what about

probe against NHRC Chief KG Balakrishnan dated 22.1.2013:

1. Is it true that Supreme Court directed Union government to take final decision on the

representation by committee of Judicial Accountability (CJA) seeking Presidential

reference on allegations against NHRC chairperson Mr Justice KG Balakrishnan as

also referred in enclosed news-reports?

2. Complete information together with related file noting/ correspondence/documents on

action taken on Supreme Court directive as referred in query above mentioning also

final decision on CJA representation against NHRC Chairperson Mr Justice KG

Balakrishnan.

3. Has presidential reference been recommended on CJA representation against NHRC

Chairperson Mr Justice KG Balakrishnan.



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4. Has Common Cause, concerned petitioner at Supreme Court, been informed about

outcome of representation by CJA seeking presidential reference of allegation against

NHRC Chairperson Mr Justice KG Balakrishnan.

5. Copies of CJA representations against Mr Justice KG Balakrishnan, Mr Justice Y K

Sabharwal and any other former Chief Justice of India together with complete

information on action taken on these representations, with related correspondence/file-

noting/document etc by department of Justice and/or any other concerned authority.

6. Copy of all communication between Common Cause and Union Government on CJA

representation against NHRC Chairperson against Mr Justice KG Balakrishnan

enclosing also copies of file notings made on corresponding with Common Cause.

7. Copies of all communication between CJA and Union government on CJA

representation against NHRC Chairperson Mr Justice KG Balakrishnan enclosing also

copies of file-noting made on corresponding with CJA.

8. Copies of al communications between CJA and Union government on representation

by CJA on allegation against any other former Chief Justice of India including Mr

Justice YK Sabharwal enclosing also copies of file-noting made on correspondence

with CJA.

9. Complete information together with related correspondence/ file-noting/documents etc

on action taken on each aspect of my submission what about probe against NHRC

Chairperson Mr Justice KG Balakrishnan dt 22.1.2013 routed to department of justice

through PG portal either by department of justice or by any public authority where

these submissions has been forwarded by Department of Justice.



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10. Copies of following letter send by dept of Justice to Supreme Court/High Court with

complaints of Supreme Court and High Court including against Chief Justice if any

forward in the year 2012 and 2013.

11. Any other related information.

12. File Noting on movement of this RTI petition.

3. PIO replied on 13.2.2013. On points no. 1-3, CPIO stated that the Supreme Court while

disposing writ petition W.P No. (C) No. 35 of 2012 in the matter of Common Cause vs. UOI

suggested the competent authority to take decision on CJA communication. Shri Justice

Balakrishnan has since retired as Chief Justice of India and this department has no authority to

investigate a requisite enquiry on retired Judges under the Judges(Inquiry) Act, 1968. In the Light

of the above HR Division of M/o Home Affairs had been requested to take necessary action, as

deemed appropriate; on point no 5,8 replied that department has no authority to investigate a

requisite enquiry on retired Judges under the Judges(Inquiry) Act, 1968; on point no 4,6,7 transfer

the application to HR division of M/o Home Affairs, on point 9 replied that no such representation

has been received in the Desk Side of department, whenever received will be transferred to HR

Division of M/o Home Affairs as matter relates to them.

4. Being unsatisfied with the information provided, the appellant preferred First Appeal on

9.3.2013. FAA replied on 17.4.2013, stating that information already provided, for additional

information sought by the appellant, he may approach CPIO, HR Division of M/o Home Affairs.

Being unsatisfied with the information provided, the appellant preferred Second Appeal before the

Commission.

Decision:



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5. The appellant made his submissions. The Public Authority is not represented by any officer.

6. The appellant contended that the communications between Chief Justice of India and Union

of India about the representations against former Chief Justice of India, Mr. K. G. Balakrishnan,

could not be said to be privileged, as it was about an former-CJI, not the CJI in office. This will

not also attract third party provisions as the representation is given by an NGO. The appellant

wanted to know the action taken report on his representation dated 22-1-2013.

7. Section 8(1)(c) of RTI Act says there shall be no obligation to give any citizen information, the

disclosure of which would cause a breach of privilege of Parliament or the State Legislature. No

other privilege is dealt with in the Right to Information Act, 2005. It does not accord any privilege

to any other authority to deny communication except the situations prescribed under the Act. We

need to look into the provisions of the Constitution and other laws to find out any privilege any

where prohibits disclosure.

8. Article 74(2) of the Constitution of India prohibits the courts from inquiring into the question

whether any and if so what advice was tendered by Ministers to President. Section 123 of

Indian Evidence Act says: Evidence as to affairs of State: No one shall be permitted to give any

evidence derived from unpublished official records relating to any affairs of State, except with the

permission of the officer at the head of the department concerned, who shall give or withhold such

permission as he thinks fit.

This section also does not impose complete prohibition against disclosure but gives power to

head of the department to give or withhold permission to disclose as he thinks fit. Evidence Act

accorded discretion to head to decide on disclosure.



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Section 124 says: Official communication: No public officer shall be compelled to disclose

communications made to him in official confidence, when he considers that the public

interests would suffer by the disclosure. This is another provision of Evidence Act which

deals with official communication and permits the officer to withhold if disclosure results in

suffering of public interest. This provision is in tune with the scheme of Right to Information

Act, where public interest override gives discretion to officials to decide disclosure or non-

disclosure in public interest.

This is about power of judicial review of cabinet advice to the President, which was

ultimately decided by the Supreme Court that judiciary could review the material aspects of

advice, if not the advice. (9 judge bench in Bommai SR, v Union of India (1994) 3 SCC 1).

9. The right to information is limited only to disclosure and power to review it or not is not under

question. If the party who obtained such information tried to use that anywhere, it is for the

judiciary to act according to the Constitution and judicial decisions. The Supreme Court

considered examination of correspondence between Chief Justice of India and Government to

determine whether requisite consultation for the appointments has taken place, in case of SP

Gupta v Union of India, AIR 1982 SC 149. Apex court dismissed the argument that such

correspondence formed part of advice given by the Council of Ministers and could not be

disclosed by virtue of Article 74(2) of the Constitution. The Court held that while the exact advice

given by the Council of Ministers to the President could not be examined by the court, the material

on which such advice was based was not excluded from the judicial purview. The apex court also

dealt with the issue of privilege to withhold the disclosure of such correspondence claimed by the

Government under Section 123 read with Section 126 of Evidence Act 1872. Six judges of seven

member Bench held that no privilege could be claimed with respect to the documents

which constituted the material for forming opinion in the case of appointment and

transfer of judges. In a landmark judgment Justice PN Bhagwati stated:

there might be documents which needed to be withheld in public interest such as cabinet

minutes, minutes of discussion between heads of departments, high level inter-departmental



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correspondence, dispatches from ambassadors from abroad, preliminary papers for

submissions to be made to the cabinet, and any other document related to the framing of

government policy. (p238).

The need for candour and frankness must be regarded as a factor to be taken into

account in determining whether, on balance, the public interest lies in favour of disclosure or

against it. p 239)

Further immunity against disclosure claimed under section 123 of the Indian Evidence Act

was not a privilege which could be waived by the state. It is an immunity which was granted

in order to protect public interest. Therefore even if the state did not claim such immunity, it

was duty of the court to make sure that no document, the disclosure of which would harm

public interest was disclosed. The Court had balance public interest in fair administration of

justice against the public interest in the confidentiality of certain documents. Judicial

discretion would be exercised so as to promote maximum openness and limit secrecy to the

minimum. [p232]

The observations of the Justice Bhagwati are very apt and quite relevant in this context of exercise

of right to information in present day set up.

Now it is obvious from the Constitution that we have adopted a democratic form of

Government. Where a society has chosen to accept democracy as its creedal faith, it iselementary that the citizens ought to know what their government is doing. The citizens

have a right to decide by whom and by what rules they shall be governed and they are

entitled to call on those who govern on their behalf to account for their conduct. No

democratic government can survive without accountability and the basic postulate of

accountability is that the people should have information about functioning of the

government. It is only if people know how government is functioning that they can fulfill the

role which democracy assigns to them and make democracy a really effective participatory

democracy. The citizens right to know the facts, the true facts, about the administration of

the country is thus one of the pillars of a democratic state. And that is why the demand for

openness in the government is increasingly growing in different parts of the world. (p232)

The Supreme Court finally held that where a document was withheld, a court could examine it,

and only when it was convinced that its disclosure would prejudice public interest, could it allow



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such action. The Governments privilege to withhold disclosure of documents was considered as

subject to the right to information of the individual.

Justice Bhagwati made another memorable statement:

This is the new democratic culture of an open society towards which every liberal

democracy is moving and our country should be no exception. The concept of an open

government is the direct emanation from the right to know which seems to be implicit in the

right of free speech and expression guaranteed under Article 19(1)(a) [p232]

The Supreme Court in Bommaicase [(1994) 3 SCC 1] held that Article 74(2) is not a bar against

the scrutiny of the material on the basis of which the President has arrived at his satisfaction for

issuing the Proclamation under Article 356(1) [paras 90, 167(II), 456(6) of Bommaicase]. It merely

bars an inquiry into the question whether any, and if so, what advice was tendered by the

Ministers to the President (BommaiCase). It does not bar the Court from calling upon Union of

India to disclose to the Court the material upon which the President has formed the requisite

satisfaction. Even if the material is looked into by the President, it does not partake the character

of advice [para 453(6) BommaiCase]. Notwithstanding Art. 74(2), it is open to the Court to inquire,

whether there was any material on the basis of which the advice was given, whether such material

was relevant for such advice etc.

10. In this case the appellant asked for copies of correspondence, file-noting/documents etc on

action taken on his submission about probe against Mr. Justice K. G. Balakrishnan (Dated

22.1.2013). He also mentioned that it was routed through Public Grievance portal. He also wanted

to know if this was forwarded to any department, the action taken thereon etc. By that time, Mr.

Justice K. G. Balakrishnan was retired as Chief Justice of India and assumed office of

chairmanship of NHRC. The request for information has nothing to do with correspondence

regarding appointment of Justice K G Balakrishnan as CJI or as Chairman NHRC. The Appellant

wanted to know the action taken on his submission about probe. Neither the application nor any



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other paper deal with any allegation against any person holding high Constitutional offices, hence

it will not attract any cover of privilege.

11. Assuming for a moment that the information about action taken on request for probe

against former CJI is privileged, such privilege is not expressly provided as ground for rejection of

request for information under Section 8(1). Under Section 8(1)information, disclosure of which

would cause of breach of privilege of Parliament or State Legislature cannot be given. The

information sought has nothing to do with the privilege of Parliament or State Legislature. The

Correspondence between Executive about a former CJI is not privileged correspondence as per

any provision of RTI Act or Constitution of India. It is not information given in fiduciary

relationship. Assuming again for a moment that disclosure of such information about probe about

former CJI would cause harm to protected interest, Section 8(2) comes to the aid of disclosure.

Section 8(2) says a public authority may allow access to information if public interest in

disclosure outweighs the harm to the protected interests. Thus the Commission finds that non-

disclosure of what appellant sought would not serve any public interest, would not harm any

protected interest and in fact, public interest in its disclosure would outweigh the probable harm, if

any, to protected (if at all protected) interests. As rightly pointed out by Justice Bhagwati, the

Commission holds that the Governments privilege to withhold disclosure of documents is subject

to the right to information of the individual.

12. The Government was not represented and it did not make any claim of privilege, as per SC

order the Governments privilege to withhold disclosure of documents was considered as subject

to the right to information of the individual, and based on all above referred statutory provisions,

the Commission directs the respondent authority to provide the information to the appellants point

9 of RTI Application; Complete information together with related correspondence/ file-

noting/documents etc on action taken on each aspect of SC Agrawals submission about probe



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against NHRC Chairperson Mr. Justice K.G. Balakrishnan dt 22.1.2013 routed to department of

justice through PG portal either by department of justice or by any public authority where these

submissions have been forwarded by Department of Justice, and to point 12 regarding the file

notings on his RTI application within 15 days from the date of receipt of this order. No direction

could be given regarding points 4 to 7, as the respondents submitted that their department has not

received any such representation from the CJI seeking personal reference against NHRC, which

was intimated to the appellant along with a reply received from Ministry of Home Affairs. The

appeal is disposed of, with above directions.

(M. Sridhar Acharyulu)

Information Commissioner

Authenticated true copy

(Babu Lal)

Deputy RegistrarAddress of the parties:

1. The CPIO, Government of India

Department of Justice, Ministry of Law and Justice,

Desk Side, Jaisalmer House, 26 Man Singh Road New Delhi-110011

2. Shri Subhash Chandra Agrawal

1775, Kucha Lattushah, Dariba Chandni Chowk, Delhi

CIC/SS/A/2013/001372-SA Page 10

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