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2011 Supreme(Bom) 1320
2012(2) AllMR 510
High Court of Bombay at Goa
D.G. KARNIK & F.M. REIS
Public Information Officer Joint Secretary to the Governor Raj Bhavan & Others
Versus
Manohar Parrikar Leader of Opposition & Others
WRIT PETITION NO. 478 OF 2008 WITH WRIT PETITION NO. 237 OF 2011
Decided On : 14-11-2011
For the Petitioners:S.S. Kantak, Advocate General with A. Kamat, Additional Government Advocate, Vivek Tankha, Additional Solicitor General with Mahesh Sana, Rishabh Sanchety, J. Supekar, Advocates.
For the Respondents:A.N.S. Nadkarni, Senior Advocate with R1, D. Lawande, Advocate, R1 & R2, Amey Kakotkar, Additional Government Advocate, with R3, A. Rodrigues, in person, Advocate.
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.
Headnote:
RIGHT TO INFORMATION ACT, 2005 - PUBLIC AUTHORITY - GOVERNOR - WHETHER GOVERNOR IS A PUBLIC AUTHORITY - WHETHER GOVERNOR IS A SOVEREIGN - WHETHER GOVERNOR ENJOYS IMMUNITY UNDER ARTICLE 361 OF THE CONSTITUTION OF INDIA - WHETHER INFORMATION SOUGHT FOR IS EXEMPT FROM DISCLOSURE UNDER SECTION 8(1)(E) OF THE RTI ACT - WHETHER STATE INFORMATION COMMISSION HAS TO BE A MULTI-MEMBER BODY.
Fact of the Case:
The petitioner, a practicing advocate, made several complaints/representations to the Governor of Goa against the Advocate General of the State of Goa and was not satisfied with the action (rather the inaction) on his complaints/representations. Therefore, 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 complaints/ representations made by him.
Finding of the Court:
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. 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. By reason of Article 361 of the Constitution of 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 RameshwarPrasad 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. 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 exempt from disclosure under section 8(1)(e) of the RTI Act. 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.
Issues: Whether the Governor is a public authority within the meaning of Section 2(h) of the RTI Act? 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? 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 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? Whether the information sought for is exempt from disclosure under Section 8(1)(e) of the RTI Act? 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?
Ratio Decidendi: 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. 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. By reason of Article 361 of the Constitution of 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 RameshwarPrasad 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. 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 exempt from disclosure under section 8(1)(e) of the RTI Act. 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.
Final Decision: 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.
1. By an order dated 22nd October 2008, the Court directed that Writ Petition No. 478 of2008 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 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 "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.
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 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 Facts in Writ Petition No. 237 of 2011H.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
