Dear all,

Three days ago a few newspapers and e-papers reported a simple and straight forward decision of the Bombay High Court, Panaji Bench. One such news story is accessible at: http://www.deccanherald.com/content/204805/governor-not-beyond-rti-scope.html The complete text of the story is given below:

Governor not beyond RTI scope: Bombay HC

Panaji, Nov 14, DHNS:

The governor is a public authority and cannot claim immunity from the Right to Information Act (RTI) 2005, the Bombay High Court ruled on Monday.

The judgment pronounced via video-conferencing between Justice D G Karnik sitting in Mumbai and Justice F M Reis in Panaji brings to an end a year-long stand-off between an activist lawyer and the Goa Raj Bhavan over his application for documents under RTI.

In December last year, the Goa Raj Bhavan under former governor S S Sidhu turned down an RTI application from lawyer Aires Rodrigues on the contention that the governor was not a public authority and therefore exempt from the purview of the RTI Act. The lawyer went on to appeal before the Goa State Information Commissioner who said the governor was bound to comply with the RTI Act.

The Goa Raj Bhavan, however, challenged the order in the High Court and argued that the constitution of the state information commission was flawed. Though the High Court agreed that the commission had not been properly constituted, it said the governor is a public authority as defined under the RTI Act 2005.

Curiously, the Raj Bhavans of Goa and Maharashtra had taken conflicting positions on the issue. Maharashtra Governor K Sankaranarayanan, who also holds additional charge as Governor of Goa after Sidhu’s departure, has entertained RTI applications in Maharashtra, but turned them down in Goa in the last few months.

The complete text of the High Court's judgement is attached and accessible at: http://bombayhighcourt.nic.in/WP_478-2008.pdf

Summary of the High Court's decision

A lawyer in Goa had filed several complaints with the Governor's office against the Advocate General of the State (first law officer of the State) about his conduct and the fee he charged in specific cases. As he was not satisfied with the action taken on his complaints he used the RTI Act to seek detailed information about the action taken on his complaints. A second application was filed by the Leader of the Opposition seeking a copy of the Governor's Report to the President following the controversial vote of confidence in the Goa Assembly in August 2007.

The PIO of Goa Raj Bhavan denied access to all information stating that the Governor being a sovereign constitutional authority and also a competent authority under the RTI Act had no obligation to give access to information. The State Information Commission has ejecetd this argument and ordered disclosure of information. The Governor's office filed a writ petition before the HIgh Court. The Court also rejected the PIO's contention stating that under the Constitution sovereignty resided not in the President or Governor but in the people of India (Hurray! I wish this were true in reality as well and not merely in words). The Governor was no doubt a constitutional authority and also a competent authority but that did not preclude him from being a public authority under the RTI Act. The PIO claimed that the information sought by the applicant was given by the Governor to the President of India in a fiduciary relationship.The Court has held that the relationship between a Governor and the President is not fiduciary in nature. While pronouncing its judgement the Court made the following curious observation:

"The Governor, before assuming his office, takes an oath not only to preserve, protect and defend the Constitution, but also the law. He is bound by the oath taken by him. If the law requires disclosure of an information and if it is so held by the PIO or the first appellate authority or the State Information Commission (which is the final appellate authority) in accordance with the RTI Act, in our considered view, the Governor by virtue of the oath of office he takes, is bound to obey the decision and disclose the information, or else, he would not be defending the law i.e. the RTI Act."

Unreasonable denial amounts to violation of oath of office?

The newsreport quoted above states that one individual as Governor in charge of two States has been accepting RTI applications in one State and rejecting them in another. If this is true, this is a grave travesty of justice and a complete violation of not only the RTI Act but also the Constitutional oath. While the Governor may not be personally dealing with RTI applications, some of the matters may have been brought to his notice. The Governor swears to an oath to uphold the Constitution and the law while entering office. The text of the Governor's oath contained in Article 159 of the Constitution reads as follows:

"I, A. B., do swear in the name of God 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).

If a Governor's contention that he is not bound by a certain law is rejected by a Court, does he have any moral authority to continue in that position? If it is a complex question of law or the interpretation of a grey area in law, referring the matter to a court is understandable and welcome. Vague areas in law must be clarified in order to improve implementation. But there is no grey area involved in the context of determining a constitutional authority's status as a 'public authority' under the RTI Act. There remains little doubt in this regard after the two celebrated judgements of the Delhi High Court in the Supreme Court Judges' Assets case. A simple reading of the RTI Act along with the Constitution will reveal the truth. Thanks to veteran RTI activist Subhashchandra Agarwal's efforts that issue has been made crystal clear now. The filing of an appeal by the Supreme Court Registry against this decision in the same Supreme Court makes one wonder about the propriety of such litigation. However in our humble opinion it might be very difficult, well nigh impossible to overturn the judgement of the Delhi High Court unless the RTI Act is amended or some new interpretation never thought of by anybody except for the counsel for the Supreme Court Registry finds favour with the bench. Until that happens, should constitutional authorities who are hell bent on curtailing the RTI Act be suffered in office by India's citizens? If they find the RTI Act so irksome and irritating, the most civilised thing to do is step down from office. May someone else more respectful towards the RTI Act be brought in to fill up the vacancy. The same argument can apply to any public functionary or public informaiton officer or appellate authority or even an Information Commissioner, who denies information requests on frivolous grounds without due application of mind. "If you do not like it (RTI), leave it (your job)."

In a democracy with a large population of eligible persons we could easily find other candidates more positively disposed towards RTI who can be given the jobs that require implementation of the RTI Act.

"ABIDE BY RTI OR RESIGN!" <-- SHOULD THIS BE OUR SLOGAN?

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Thanks

Venkatesh Nayak

Programme Coordinator

Access to Information Programme

Commonwealth Human Rights Initiative

B-117, 1st Floor, Sarvodaya Enclave New Delhi- 110 017

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