Case Law Details

Case Name : Wg. Cdr. Sanjeev Sharma Vs. CPIOs, Indian Air Force (Central Information Commission)
Appeal Number : CIC/CC/A/2015/004661/SD & 1281 Others
Date of Judgement/Order : 18/04/2017
Related Assessment Year :

The present set of Appeals (1282 in number) arise out of RTI Applications filed by the Appellant against different Commands of Indian Air Force and it has been decided to adjudicate upon the Appeals by putting same subject matters under one head (which may or may not have the same date of RTI Application) and have been listed for hearings in different bunches. This has been done after taking into consideration the fact that these RTI Applications are seeking the same information but in the context of different Air Commands, yet the basic contentions and relief sought in Appeal would be suited for a composite listing of the matters in order to cut down on the time and resources invested in adjudicating on each Appeal separately.

Appellant’s submissions:

In the initial hearing of these Appeals, Appellant started out by giving a brief background of Indian Air Force by mentioning the number of Commands, Stations etc. to highlight an impending issue, which is that IAF has only 8 CP10s, viz. 7 at Command level and 1 at HQ level. He alleged this to be a concerted step taken by the higher echelons of IAF to only frustrate the spirit of RTI Act and it is per force that he has been filing number of RTI Applications with only one CPIO. He admits that largely IAF has been doing well and that he was himself a proud part of it, yet there is a parallel economy running inside the fraternity and there are different sources of corruption. It is asserted that his primary intention is to fight corruption. He raises the issue of funds allocated in the name of non-public funds being misused for personal interests within the hierarchy and that it is used as a source of income generation with vested interests rather than aiming at the welfare of the forces.

DECISION

A comprehensive reading of the foregoing excerpts, analysis and submissions of both the parties, do not leave much to interpret for the Commission as regards the maintainability of these Appeals. Yet, there a few points that shall
be noted by the Respondents:

I. When the RTI Applications are taken in its entirety, the claim of Section 7(9) of the RTI Act by the CPIOs for not being able to provide the information holds good. However, RTI Applications where singular information was sought, for instance, the income and expenditure of Non-Public Funds in most of the set of RTI Applications is a single query, similarly, disposal of Appellant’s personal applications, do not warrant invoking Section 7(9), as, if they were taken individually, these RTI Applications could have been responded to with the information as per availability.

II. CPIO, CAC and CPIO, SAC have largely violated the provisions of RTI Act by not responding to a number of RTI Applications and no particular reasons have been provided for this lapse.

III. CPIO, SAC has attempted to reply on most of the queries as per the availability of information and the same is in consonance with the provisions of the RTI Act.

IV. Now coming to the Appellant’s basic premise for filing these Appeals, which is praying that the non-public fund ventures should be declared as public authorities, it may be noted that in the instant matters, this question does not arise for adjudication before the Commission in as much as the RTI Applications have been filed with public authorities and not with these Non-Public Fund ventures directly. It follows then that the Respondents have erred in relying on Section 2(h) of the RTI Act and in this context, it is relevant to bring out the provisions of Section 2(j) and 2(f) of the RTI Act which clearly stipulates that:

Section 2(j)- “….“right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to—………..”

Section 2(f)- “….“information” means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force…”

When the said two Sections are read together it becomes essentially clear that the RTI Application of the Appellant has to be construed in the spirit of the aforementioned provisions of the Act. It is emphasised therefore that even if hypothetically the Respondents claim of these non-public fund ventures not being a public authority is conceded with, fact remains that the Appellant has sought information from a public authority and not from said ventures, therefore the contention of the Respondents that NPFs are not public authorities will not apply to the merits of this case. Accordingly, the appropriate recourse for the Respondents would be to provide such information which is available with them or which they can access from these ventures. Alternatively, where information is not available/ cannot be accessed, a categorical reply should be made to that effect while replying on the RTI
Application.

V. Commission sparingly acknowledges that this is an attempt on the Appellant’s part to fight corruption within the IAF, and based on the facts on record, the Respondent’s submissions also find equal consideration. On the hindsight, however noble the end of this vociferous attempt of bringing about probity in the functioning of IAF would have been, fact remains that the means adopted by the Appellant regrettably speaks volumes of his ignorance of the spirit of the RTI Act.

VI. RTI Act is a powerful tool in the hands of the informed citizenry, and it has to be utilised while keeping in mind the balance between the applicability of different provisions therein. These provisions while allowing maximum disclosure, has also limited the access to information under Sections like 8 & 9 of the RTI Act and other Sections like 2(f), 2(h), 7(9) for such interpretation, which does not obliterate the primary purpose of the Act.

VII. As much as the CPIO has a statutory responsibility of complying with the provisions of the RTI Act, it is also expected of the RTI Applicants to not transgress the spirit of the RTI Act and resort to clogging the functioning of the public authority by filing mundane RTI Applications merely claiming that it is intrinsic to fighting corruption. Appellant is a learned advocate apart from being an ex-serviceman, such recourse to RTI Act is perhaps more of an abuse of the process of law.

VIII. It would have been cogent for the Appellant to have filed RTI Applications systematically in a structured manner i.e with specific requests bringing them clearly within the definition of Section 2(f) of the RTI Act, which would have avoided the apparent relentless prejudice done to valuable resources of time, money and paper.

IX. It appears that the Appellant has grossly misconceived the idea of exercising his Right to Information as being absolute and unconditional. It is rather unfortunate that even the best of intentions have to not only stand the test of procedural requirements and fetters laid down in the RTI Act but also stand the test of practicality, a notion well recognised by superior Courts through various judgements such as the Honourable Supreme Court’s observation in Central Board of Secondary Education (CBSE) & anr. v. Aditya Bandhopadhyay and others [(2011) 8 SCC 497] stating that:

“37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non- productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.”

Similarly, in ICAI v. Shaunak H. Satya, (2011) 8 SCC781 the Honourable Supreme Court has held that:-

“39. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Sections 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and the Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.”

In the matter of Rajni Maindiratta- Vs Directorate of Education (North West – B) [W.P.(C) No. 7911/2015] the Honourable High Court of Delhi has held that:

“8. Though undoubtedly, the reason for seeking the information is not required to be disclosed but when it is found that the process of the law is being abused, the same become relevant. Neither the authorities created under the RTI Act nor the Courts are helpless if witness the provisions of law being abused and owe a duty to immediately put a stop thereto.”

A more lucid rationale can be drawn in the facts of the present matter by referring to the matter of Shail Sahni vs Sanjeev Kumar [W.P.(C) 845/2014] wherein the Honourable High Court of Delhi has held that:

“…In the opinion of this Court, the primary duty of the officials of Ministry of Defence is to protect the sovereignty and integrity of India. If the limited manpower and resources of the Directorate General, Defence Estates as well as the Cantonment Board are devoted to address such meaningless queries, this Court is of the opinion that the entire office of the Directorate General, Defence Estates Cantonment Board would come to stand still.”

“This Court is also of the view that misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this “sunshine Act”. A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law.”

X. Appellant’s assertive submission during the first few hearings added some perspective to his Appeals however his absence from all of the subsequent hearings without any intimation, despite being given proper video conferencing facility, is not understood. Commission is fully aware of the fact that, it is not mandatory for Appellants to attend the hearing of Second Appeals, yet presence of Appellants during hearings offer a considerable role in shaping appropriate adjudication on the facts presented before it.

XI. It is also important to highlight that at no particular stage during the pendency of these Appeals did it appear that the Respondents have adopted deliberate tactics for not parting with the information sought. It will suffice to say that looking at the amplitude of queries and number of RTI Applications, Commission itself feels constrained to not order any relief, as at this stage, limiting the information sought appears neither conducive nor providing inspection seems feasible, to circumvent the prima-facie legitimate application of Section 7(9) of the RTI Act in the instant Appeals.

With the foregoing observations, Commission dismisses the Appeals.

ADVISORY

Commission is of the opinion that the kind of time and resources spent by the Appellant in filing these RTI Applications and Appeals do speak of certain kind of accountability which appears to be lacking in the IAF. The lack of sufficient number of CPIOs/ APIOs in one of the three largest wings of
Ministry of Defence raises a serious concern regarding the kind of importance that is accorded to the RTI Act provisions. Further, the dismal rate of disposing First Appeals by the concerned FAAs of Western Air Command and Central Air Command, as evident from the chronology at para 3 above is
alarming. In this context, the following steps appear rudimentary:

♦ The number of CPIOs and APIOs should be increased in all Commands and there should be atleast 1 CPIO and 1 APIO at every unit or station level.

♦ It should be incumbent on the controlling officers to conduct appropriate workshops and sensitisation programmes for the CPIOs and FAAs regarding the various provisions of the RTI Act.

♦ As is evident from the issue at hand that the crux for filing of these RTI Applications has been the lack of transparency in the operation and execution of the activities of Non-Public Fund ventures. A considered attempt should be made to bring such information which affects the fees and subscriptions deposited by the members of IAF fraternity in public domain, so that the paraphernalia around the probable misuse of such funds is not attributed to deliberate and malafide tactics.

♦ There is no doubt that establishments where funds are raised from member contributions remain at the risk of misappropriations and unaccountability. Therefore, it is in the best of interests that there should be maximum disclosure and minimum restraint on nondisclosure of the working and management of these NPFs.

A copy of this order is marked to the Chief of Air Staff and the Defence Secretary to take note of the observations made above as well for appropriate action as may be deemed fit for translating the above said advisory into effective implementation.

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