CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00725 dated 15.5.2007
Right to Information Act 2005 – Section 18
Appellant - Shri T. Asaf Ali
Respondent - President’s Secretariat
Facts:
By an application of 22.7.07 addressed to the President’s Secretariat, Advocate T. Asaf Ali, President, People’s Council for Civil Rights, Pleasant Chateau, Thalassery, Kerala sought the following information:
“Copy of letters given by the Parliamentary Party Leaders of Communist Party of India (Marxist), DMK, RJD and other coalition partners of United Progressive Alliance to the Hon’ble President of India extending support to Dr. Manmohan Singh for forming a Govt. at Centre.”
To this he received a response from then CPIO Shri Nitin Wakankar dated 5.3.07 as follows:
“The copy of letters given by the Parliamentary Party Leaders of the CPI (M), DMK, RJD and other coalition partners of the United Progressive Alliance to the Hon’ble President of India extending support to DR. Manmohan Singh for formation of a Government at the Centre cannot be provided, as these letters were given under a fiduciary relationship between the authors of the letter and the President, therefore, they come under Section 8 (e) of the Right to Information Act.”
Shri Asaf Ali then moved an appeal on 2.4.07 in response to which by an order of 17.4.07 Appellate Authority Ms. Rasika Chaube IFA President’s Sectt. has found as follows:
“1. As regards the first issue pertaining to fiduciary relationship raised by the appellant, it is stated that the CPIO, under section 8 (1) (e) of the Right to Information Act, 2005 has denied the appellant copies of the letters from various Parliamentary Parties sent to the President extending support for the formation of the Government stating that these letters were given to the President in a fiduciary relationship which exists between the authors of the letter and the President. In this context I would like to mention that one of the meanings of fiduciary is ‘something that secures confidence, credentials’. Apart from this, a number of court decisions state that ‘confidential and fiduciary relations are, in law, synonymous and exist whenever trust and confidence is reposed by one in the integrity and fidelity of another’. Also in the case of R. K. Jain vs. Union of India (1993) 4 SCC 55, it has been observed that ‘the President while exercising the executive power under Article 73 read with Article 53, discharges such of those powers which are exclusively conferred to his individual discretion like appointing the Prime Minister under Article 75 which are not open to judicial review’. To furnish documents, which relate to the exercise of the discretionary power of the President would certainly be a breach of confidentiality. Letters that the President may have received are certainly entitled to the greatest protection from public disclosure in order that he may exercise his discretion to his best personal judgment. Another aspect of this matter is that the word ‘fiduciary relationship or confidentiality is a word which emphasizes the interaction of the President and the writer of such letter, therefore, disclosure of such a letter might also be contrary to the concept of the relationship and would be prejudicial to the rights of the authors of the letter’. Hence the stand taken by the CPIO in denying access to these letters under section 8 (1) (e) of the Right to Information Act 2005 is in order and is upheld.
2. As regards the second issue wherein it has been intimated by the appellant that the authors of these letters have themselves disclosed the content of the letters of the media and hence no secrecy or fiduciary relationship is involved. It is stated that the statement made by the appellant is generic moreover compromise if any, of the information which comes under the fiduciary relationship, by one party can in no way be a compelling reason for disclosure by other parities. It is paramount, in keeping with the dignity of the highest office, to ensure that confidentiality of information covered under section 8 (1) (e) of the Right to Information (the fiduciary relationship) is upheld and the same has been rightly done by the CPIO.
3. As regards the third issue that larger public interest warrants disclosure in spite of fiduciary relationship as contemplated in section 8 (1) (e), it is reiterated that this issue stands dismissed in view of the fact that the first issue raised in the appeal stands rejected for reasons given in Para 1 above.”
Aggrieved Shri Asif Ali has moved a second appeal before us with the following prayer:
“It is most respectfully prayed that the records relating to the order appealed against may be called for and after hearing the appellant and all concerned and receiving evidence, if any orders may be passed directing the CPIO, Rashtrapati Bhawan, President’s Secretariat providing access to information sought for under Ext. A-1 (Supra).”
He has grounded this prayer on the following arguments against application of fiduciary relationship in the present case:
“The finding of the First Appellate Authority that the disclosure of such letters might also be contrary to the concept of the relationship and would be prejudicial to the rights of the authors of the letters is against the very basic concept of parliamentary democracy and presidential powers envisaged in the Constitution of India. The First Appellate Authority has lost sight of the fact that the contents of the letters referred to be made known to public through Medias by the authors themselves even before giving letters to President as the decision to extend Dr. Manmohan Singh to form a Govt. to Centre was a political one.”
The appeal was heard through Videoconferencing on 31.7.2008. Following are present:-
Respondents at NIC Studio, New Delhi.
Shri Nitin Wakankar, Deputy Press Secretary.
Ms. Rasika Chaube, IFA.
Shri T. Asaf Ali appellant has sent his written submission and requested exemption from personal hearing. Copy of the written submission was handed over to respondents who were asked to provide a written response by 10th August, 2008 on the basis of which we will come to a decision. On that date of hearing Shri Asif Ali had sought exemption from personal attendance and had sent his written submissions by fax in which he had submitted the following two points for consideration:
1. Whether there was any fiduciary relationship between the President of India and the leaders of various Political Parties who had given letters to the President extending support to Dr. Manmohan Singh for forming a govt. at the Centre ?
2. If at all there was a fiduciary relationship between the President of India and the Leaders of various Political Parties who had given letters of support, whether any larger public interest warrants the disclosure of the information sought for.”
He has then gone on to quote from Black’s Law Dictionary 7th Edition on the meaning of fiduciary relationship and argued as below:
“It is very significant to note that there cannot have any element of secrecy in the communications between the President of India and the Leaders of Political Parties who had given letter of support extending support to DR. Manmohan Singh for forming a govt. at the Centre. Only if the President discloses the contents of the letter of support for his subjective satisfaction for inviting DR. Manmohan Singh, h can justify his action in as much as without the support of those parties Dr. Manmohan Singh was not having majority. Hence the information relating to the letter of support cannot be said to be held in tr5ust under section 8 (1) (e) of RTI Act. In this connection, it has to be noted that every citizen of India is entitled to know under what circumstance the President of India invited Dr. Manmohan Singh who did not have the support of requisite number of MPs for forming a Govt. at the Centre. Therefore, the documents (copy of letter of support) requested for by the appellant cannot be denied relying on section 8 (1) (e) of RTI Act. Further, the contents of these documents were already disclosed to Medias by the authors of the letters themselves. Hence these letters are necessarily to be divulged if we are to have an informed citizenry and transparency of information which are very vital to the functioning of the democratic institutions.”
Finally he has concluded his final arguments with the following statement:
“The First Appellate Authority went wrong in not answering the issue whether larger public interest warrants the disclosure of the information as envisaged in the second limb of Section 8 (1) (e) of RTI Act. The CPIO as well as the First Appellate Authority ought to have held that the left parties had started speaking against the Central Govt. headed by Dr. Singh and ultimately on 9th July, 2008 the Left Parties withdrew support to Dr. Manmohan Singh and the people at large are even now in dark regarding the circumstance under which the left parties extended support to Dr. Manmohan Singh and withdrew support and hence the larger public interest outweigh the disclosure of the documents sought for.’
In compliance with our directions Shri Nitin Wakankar, DS & CPIO in his letter of 5.8.2008 has responded to the arguments of Shri T. Asaf Ali, Petitioner. The gist of his arguments is as follows:
“Information has been denied since its disclosure interferes with the President’s discretionary powers. In a situation which involves the exercise of the President’s discretion under our system of Govt. and in terms of the relevant articles of the Constitution ( Article 73 read with Article 53 and in this case Article 75), the President is to take into account claims while deciding to invite one to the office of the Prime Minister. The letters which he or she may have received or written in this connection are entitled to the greatest protection from public disclosure so that the President may exercise his or her discretion according to his or her best personal judgment. It is for this reason that I was convinced that these letters cannot be disclosed.
Petitioner claims that there is no fiduciary relationship between the authors of the letters and the President.
The Petitioner is looking at a very narrow definition of the meaning of the word ‘fiduciary’. In this regard, the Information Commission has on various occasions dealt with the ambit and scope of the phrase ‘fiduciary relationship’ and have given it a broader interpretation, such as in the case of Shri Milap Kumar Choraria vs. President’s Secretariat on November 16, 2007. In that case, the Commission has said “Generally speaking the fiduciary relationship is a relationship of trust. The Commission in some of its earlier decisions have dealt upon the ambit and scope of the word ‘fiduciary relationship’ and decided that it has to be given a broader interpretation. Taking this aspect into account, there is no doubt that the Communication between the President of India and a Leader of a political party and the correspondence between them concerning formation of a Government is information exchanged in confidence and politically sensitive in nature. An information which is sensitive in nature and if submitted in confidence should, therefore, be deemed to be covered within the ambit of Sec. 8(1)(e) and hence has to be held as exempted”. Therefore, it would be clear that the communications between the leaders of political parties and the President on the issue of formation of the government is information exchanged in confidence and public interest does not warrant its disclosure under this broader interpretation.
Under the provisions of Sec. 8(1)(e) it is for the Competent Authority to satisfy itself as to what the larger public interest warrants. In this case, I was satisfied that the larger public interest would not warrant disclosure of the information, which is held by the President’s Secretariat as confidential and sensitive information.”
He in turn has concluded his arguments as below:
“As for the Petitioner’s arrangement that public interest in the light of the withdrawal of support by Left Parties on July 9, 2008 now outweighs not disclosing the letters – it is submitted that this is a new point in his argument, which was not present in his original application.”
CPIO Shri Wakankar, however, has not commented on the release of the letters to the media by the concerned parties that he states is a new point, which indeed it is.
The appeal was heard by videoconference on 17.6.2009. The following are present :
Appellant at NIC Studio, Kannaur
Sh. T. Asaf Ali, Advocate
Respondents at CIC’s chambers, New Delhi.
Ms. Rasika Chaube, Internal Financial Advisor /F.A.A.
Respondent Ms. Rasika Chaubey submitted that the President’s Sectt. has taken recourse to Article 73 read with Article 53 of the Constitution of India. These articles read as follows:
“(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement;
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State **** to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution;”
&
(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the foregoing provisions, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.
(3) Nothing in this article shall-
(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or
(b) prevent Parliament from conferring by law functions on authorities other than the President.”
These articles confer on the President exclusive discretion in certain matters. So in this context the plea of fiduciary relationship according to Ms Chaube falls in place. Shri Asif Ali on the other hand has argued that the President’s Secretariat has wrongly taken shelter under sec. 8(1)(e) and has gone on to specify the kind of relationship that could be treated as fiduciary being that of Doctor & Patient, Husband & Wife, Lawyer & Client etc. He reiterated his quote of Black’s Law Dictionary on the definition of ‘fiduciary relationship’. He has then gone on to argue that it is a right of people to know whether the letters submitted by the political parties mentioned were conditional or unconditional so that they can decide for themselves whether the President was right in entrusting them to form a Government under the leadership of Dr. Manmohan Singh.
DECISION NOTICE
The argument from both sides hinges on the question of whether the documents submitted to the President by the parties over support to the UPA Govt. can be treated as fiduciary in nature. Sub sec. (e) of Sec. 8(1) reads as follows:
8(1)(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 first issue, therefore, is for us to determine as to whether there is any relationship between the President and various political parties who have submitted Letters of Support to the President that would qualify for fiduciary. Political parties are independent entities and have a juristic personality of their own. They have no official dealing with the President of India nor do they interact with the President or the President interact with them in the decision making process. The decision to support a particular party or group has been arrived at by the concerned political parties on their own. Similarly, the President has acted on the letters submitted by them and the power of the President to act upon such letters is discretionary.
Relationship’ denotes a pre-existing connection or an association. It may signify a fact or state of being related to one another. It signifies a condition or a character due to being related. The relationship can be either by blood or by affinity. It could also be as a result of allegiance as described by Lexicographers.
A relationship could also be given a wider meaning so as to include even a working relationship. Examples of such relationship are and maybe the relationship existing between a lawyer and a client, a company and its directors, a Company and its employees or even the Government and its employees. It could also be inter-se relationship between members of a society and the society.
In the light of this, the argument that the letters were written to Hon’ble the President in a fiduciary capacity that exists between the authors of the letters and the President seems far fetched. Another relevant fact which has been reiterated emphatically by the appellant and which has been implicitly conceded by the respondent Public Authority relates to disclosure of contents of the letters by the authors of those letters. CPIO Shri Wakankar has not responded to this comment of appellant claiming that it is a new point, which we agree that it is. However, this is not a request for information that had not been sought initially, but only an effort by appellant Shri Asaf Ali to lend verisimilitude to his plea for disclosure.
This does indeed denote that the authors of the letters themselves never intended or sought any confidentiality cover.
To come within the ambit of ‘Fiduciary Relationship’, trust becomes an inalienable component. Viewed in this context, the information provided to the President by various political parties cannot be treated as one emanating from Fiduciary Relationship and that makes Section 8(1)(e) inapplicable to the facts and circumstances of this case.
CPIO Shri Kidwai is, therefore, directed to provide the information asked for by appellant Shri Asaf Ali within 15 working days from the date of receipt of this Decision Notice. The appeal petition accordingly stands allowed. There will be no costs
Reserved in the hearing this Decision is announced in open chamber on this thirtieth day of June 2009.Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
30.6.2009
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
30.6.2009
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