Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ. and Ajay Mohan Goel, J. disposed of a writ petition by directing the concerned authorities to provide legal aid with immediate effect to jail inmates.

The present writ petition was filed in public interest owing to the information gathered under the Right to Information Act with regard to the non-availability of legal aid to inmates of the jail. Also, some were undergoing sentences as they could not get enlarged on bail for want of legal aid.

The Court appreciated the efforts of the petitioner to bring to the Court’s notice the issues faced by jail inmates. Accordingly, the H.P. State Legal Services Authority along with the Secretaries of District Legal Services Authority was directed to visit the jail and provide immediate legal aid to the inmates in need of it within a week’s time.[Anil Bansal v. State of H.P.,2018 SCC OnLine HP 1617, order dated 15-11-2018]

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The Law Commission of India’s (hereinafter ‘Commission’) 275th report, titled ‘Legal Framework: BCCI vis-à-vis Right to Information Act, 2005’, was recently submitted by the Commission to the Ministry of Law and Justice. The report was prepared in pursuance of compliance with the directions of the Supreme Court in the case of Board of Control for Cricket v. Cricket Association of Bihar, (2015) 3 SCC 251. The Commission’s objective was to examine the issue as to whether the Board for Control of Cricket in India (hereinafter ‘BCCI’) would be covered under the ambit of the Right to Information Act, 2005, and if so, then make appropriate recommendations to the Government of India.

The Commission concluded that the BCCI should indeed be classified as ‘State’ within the meaning of Article 12 of the Constitution. The minority view in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 played an instrumental role in establishing state functions to BCCI. Sinha J., on behalf of S.N. Variava J. had opined that interpretation of Article 12 with regard to exclusive control and management of the game needs to be looked at with a new approach. Keeping in mind, the minority view, the Commission went on to identify state functions the BCCI performs, opposing the previous judgments of Chander Mohan Khanna v. NCERT, (1991) 4 SCC 578 : AIR 1992 SC 76 and Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 : AIR 1981 SC 212. The identified points were;

(i) BCCI is an entity permitted, de facto, by the State to represent the Country on the international stage;

(ii) ICC recognizes BCCI as the official body representing India;

(iii) Absence of any challenge by the BCCI or the Government to the aforesaid status;

(iv) BCCI enjoys a monopolistic status in controlling and regulating the game of cricket in India by controlling policy formulation and implementation affecting the country at large;

(v) BCCI and it’s actions/activities, directly and indirectly, affect the fundamental rights of citizens, players, and other functionaries.

Further, it was concluded that owing to the monopolistic character of BCCI coupled with it’s functions and ‘substantial financing’ from appropriate governments over the years, it can, within the existing legal framework, be termed to be a ‘public authority’ and be brought within the purview of the RTI Act.

Recommendations:

(1) Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India. BCCI exercises ‘State-like’ powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.

(2) Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the ‘State’ but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.

(3) BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board’s objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international fora. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry’s website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs’ in Annual Report 2016-17,177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs.178 In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception.

(4) Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of it’s constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI.

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of Vibhu Bakhru, J., allowed a petition before it, setting aside the impugned order by which, the petitioner’s contention against CBI being within the purview of Section 24 of the Right to Information Act, 2005 and therefore, not obliged to disclose information sought by Respondent 2.

Briefly, the facts leading up to the impugned order was that Respondent 2, who is an officer with the CBI was facing departmental proceedings and the offences alleged against him were grave and sensitive in nature. Respondent 2 filed an application under the RTI Act seeking certain information related to the disciplinary proceedings. The petitioner declined to disclose the information sought stating that the CBI was listed under the Second Schedule to the Act and thus was outside the purview of the Act. Respondent 2 then filed an appeal which was rejected, followed by a second appeal, which was also rejected. An application seeking information under the Act was filed again, which was not entertained based on the same grounds as before. Respondent 2 then preferred appeals, the first of which was rejected, however, the second was allowed. The present petition impugns the order of the aforesaid appeal.

The Court analyzed the impugned order, finding out that the CIC was of the view that the exclusionary clause of Section 24(1) of the Act was not available in respect of information sought by it’s own officials regarding their service matters. Upon analyzing Section 24(1) of the Act and the proviso thereunder that all information pertaining to allegations of corruption and human rights violations do not fall within the exclusionary clause. The Court, however, held the present situation could not, by a long stretch, be considered to be a ‘human rights violation’. CIC held to be in error. Petition allowed.[Central Bureau of Investigation v. Central Information Commission, 2018 SCC OnLine Del 7003, decided on 02.02.2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The appellant had approached the CIC praying to recognize the Special Investigation Team (SIT) on black money of the Department of Revenue (Ministry of Finance) as a ‘public authority’ within terms of Section 2(h) of the RTI Act, 2005 along with a direction to the authority to appoint a CPIO.

The appellant submitted that clause (h) of Section 2 is clear enough to state that any body or authority constituted by a notification issued by the appropriate government would be a “Public Authority” for the purpose of implementing the RTI Act while placing before the Commission the fact that the SIT was constituted by a notification of the Government of India vide number F. No. 11/2/2009- Ad. E.D. dated 29.05.2014. It being a multi-member body comprising of a Chairman, a Vice-Chairman and 10 other members, the SIT clearly met both the criteria under Section 2(h)(d) of the RTI Act, 2005 namely that it is a “body” for the purpose of the Section and that it had been constituted by the Central Government vide a notification, the appellant contended.

On hearing the contentions, the Commissioner Mr. Bimal Julka observed that it was very clear that the definition of “Public Authority” under Section 2(h) of the RTI Act, 2005 does not prescribe “performance of Public Duty” as one of the criteria for determining if an Authority is “Public Authority” or not, yet performance of such duty by the authority, cannot be undermined to not be considered as an important Public Duty by the SIT which qualifies as a Public Authority as per the tests laid down in the first part to Section 2(h)(d) of the RTI Act.

The Commission finally held that Special Investigation Team on black money is a ‘public authority’ as per the Right to Information Act observing that when a public authority is largely funded by the government and performs the duty of bringing back unaccounted money kept unlawfully in bank accounts abroad, it is undoubtedly performing a public duty and therefore, every citizen of the country has the right to know about its functioning within the Act’s framework and as per its purpose. Accordingly, the authority concerned was directed to appoint a CPIO for SIT. [Venkatesh Nayak v. CPIO & DCIT (OSD),  (Inv. 1), Ministry of Finance, 2017 SCC OnLine CIC 1508, decided on 10.10.2017]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Devan Ramchandran, J. dealt with a writ petition filed by the State Public Information Officer challenging the order of the State Information Commission whereby, the petitioner had been directed to pay a compensation of Rs. 25,000 to the respondent on the ground that the petitioner had withheld some information from the respondent, who was an RTI applicant.

The facts of the case are that the respondent was seeking some information regarding his service in the General Education Department. However, he was shown only one file which had eight relevant pages missing from it. Therefore, the respondent moved the Commission against the petitioners. The petitioners contend that there is no evidence to prove that those eight pages had been deliberately withheld from the respondent and that the Commission’s order of compensation is illegal and unlawful because they refused to consider that the documents were really missing.

Relying on the arguments of the petitioners, the Court considered the relevant provision of the Right to Information Act, 2005, that is, Section 19, which states that, an imposition of penalty or an order of compensation in favor of the applicant can be made by the Commission “only if loss or detriment has been suffered by the applicant”. In the present case, “the Commission granted an amount of Rs. 25,000 without any adjudication as to the actual loss suffered by him and also without assessing whether the information said to be not given to him was deliberately withheld by the authorities.” Therefore, the order did not hold any legal sustenance and was set aside. [State Public Information Officer v. Rajendran Pillai,  2017 SCC OnLine Ker 15958, order dated 4.08. 2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently addressed an application under the Right to Information Act before the Central Public Information Officer of the Central Reserve Police Force (CRPF), Ranchi seeking information pertaining to Special Recruitment in CRPF in 2013 including (i) the list of all the Scheduled Tribe (ST) candidates who appeared in the medical test and (ii) copies of the result of medical test of all the ST candidates.

The appellant filed a second appeal before the Commission on the grounds that the information sought had been incorrectly denied on the basis that CRPF has been exempted from the provisions of the RTI as per Section 24(1) of the RTI Act, 2005.

The respondent submitted that the CRPF has been declared an exempt organization under Section 24(1) read with 2nd Schedule to the RTI Act, 2005 and that the information sought by the appellant did not pertain to allegations of corruption and human rights violations which is why the provisions of the RTI Act would not be applicable in this matter.

The Commission acknowledged that although in this case information had been sought from an organization to which the RTI Act does not apply as per Section 24(1) of the RTI Act, the information sought related to the recruitment of ST candidates, disclosure of which would enhance transparency and credibility of the respondent organization. But it was quick to note that since Point 2 of the RTI application pertains to the Medical Examination Report of the candidates, which is a third party personal information, the same couldn’t be provided to the appellant. Hence, the Commission held that information about the number of ST candidates that had appeared for the examination, the final number of selected ST candidates, the cut-off marks for those belonging to this category, marks obtained by the appellant would have to be provided to the appellant. [Sagar Munda v. Central Public Information Officer, CRPF; Decision No. CIC/SB/A/2016/001248, decided on 16.08.2017]