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| Prosecute the State Public Information Officer Kerala Raj Bhavan |
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The action of the State Public Information Officer, RajBhavan supplying documents pertains to the sanction accorded by the Governor of the State to prosecute Mr Pinarai Vijayan , the General Secretary of the CPI(M) in SNC Lavellin case to the counsel of Mr.Pinarai Vijayan , while denying the very same documents to Mr.D.B.Binu,General Secretery -Human Rights Defence Forum has kicked off a new controversy in the Sate . Rather than the political discussion on this action, what is proposed to be focused in this write up is the legality of the action from the perspective of Right to Information Act 2005.
Right to Information Act is a tool that enables the citizen to gauge the performance of the Government and governmental bodies by allowing access to informations regarding their actions in discharge of public duties. As per law every public authority is accountable to its people for they are people destined to serve people for consideration they receive without fear and favour. Though the administration was supposed to be transparent, there was no enforceable right to gather information / documents from the public authorities with the result even if some body happened to possess information and supporting materials, he would be still handicapped to use them as they are matters legally not accessible to the public. The RTI Act has now trodden a new path through which now any citizen can, as a matter of enforceable right, can get information and supporting documents (subject to certain exceptions) from specified public authorities. Under Section 8(1) (h) of the RTI Act , there shall be no obligation to give to any citizen information �which would impede the process of investigation or apprehension or prosecution of offenders�. It is this exception that has been relied by the State public information Officer of the Raj Bhavan for denying information to Adv,D.B.Binu. But strangely this clause did not occur to the concerned officer when the accused in the case through his counsel requested for the same documents.
Now let us see the issue as it is placed before the State Information Commission by Mr.D.B.Binu in the complaint filed by him praying to prosecute the officer who denied information to him. Lat me reproduce the petition itself:
BEFORE THE HON�BLE STATE INFORMATION COMMISSION, KERALA, THIRUVANANTHAPURAM
Petitioner/Complainant:
D.B. Binu, Advocate, �Cochin Chamber of Lawyers�, Providence Road, Kochi - 18 (General Secretary, Human Rights Defence Forum, �The House of Lawyers�, I.S. Press Road, Kochi � 18). Mob: 9895135081.
Respondent/Respondent:
The State Public Information Officer, Kerala Raj Bhavan, Thiruvananthapuram � 695 099.
COMPLAINT FILED UNDER SECTIONS 18(1), 20(1) & 19(8)(b) OF THE RIGHT TO INFORMATION ACT, 2005
The Petitioner/Complainant respectfully submits as follows:
1. Petitioner/Complainant is a General Secretary of the Human Rights Defence Forum and State Council Member of the Peoples Union for Civil Liberties (PUCL). He is a social and human right activist and a Lawyer by profession.
2. Petitioner under Section 6 of the Right to Information Act made an application dated 11.6.09 before the Respondent seeking the following informations:
a. A certified copy of the sanction accorded by the His Excellency Governor R.S. Gavai and other connected documents to the CBI for prosecuting the CPM State General Secretary Mr. Pinarayi Vijayan in S.N.C. Lavellin Case.
b. Certified copies of the documents/informations regarding the names of the Legal Experts with whom the Governor of the State sought the legal opinion in the matter and copies of their legal opinion, the legal fee if any paid for the legal opinion specifying the amount to each Lawyers and the receipt for such payment and the letter of the prosecution of the CBI seeking sanction for prosecution and their written submission justifying their request for sanction.
c. Certified copies of the all communications in the above matter done from the office of the Governor.
d. Copy of the document if any submitted to either the Government or the Ministry granting sanction to prosecute Mr. Pinarayi Vijayan.
3. The Respondent by communication dated 15.6.09 denied the above informations under Section 8(1)(h). The above complaint is filed against the order denying information under Section 8(1)(h). During the pendency of the above complaint Petitioner came to know that the above documents were however made available to another applicant who is said to be the counsel for Mr. Pinarayi Vijayan, the Secretary of the CPI(M) [as per the news item appeared in Deshabhimani, a mouth piece of CPI(M)] and those documents have been used by Mr. Pinarayi Vijayan for challenging the order granting sanction to prosecute him. A true copy of the news item appeared in Deshabhimani dated 11.9.09 is produced herewith and marked for reference as Annexure-A3.
4. It is submitted that as per Section 8(1) there shall be no obligation to give to any citizen information �which would impede the process of investigation or apprehension or prosecution of offenders�. The information sought by the Petitioner as a citizen and public spirited person was denied on the ground that the information if made available would �impede the process of investigation or apprehension or prosecution of offenders� whereas when the application by the Counsel for the Accused in the case requested, it was readily made available despite the imminent and possible danger of being using the document to �impede the process of investigation or apprehension or prosecution of offenders�. The stand of the Respondent denying information to the Petitioner was therefore without any bonafides and an action vitiated by malafides. The Respondent was acting virtually against the directions of the Right to Information Act and was using the provision to defeat the legal rights of the citizen. If the Respondent had any bonafide in the plea of denying information under Section 8(1)(h), he should have denied the same to the counsel for the accused or for that matter to all those who applied for the same documents. The discrimination made by the Respondent is an abuse of the power vested in him. By doing so he has malafideny denied information to the Petitioner despite his entitlement to have the document.
5. In the circumstance the Respondent is liable to be proceeded with disciplinary action for malafidely denying the request for information, and/or denying information without any reasonable cause. Further the Respondent is liable to be directed to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner. The Respondent may also be directed to pay compensation to the Petitioner for the loss suffered by him which is quantified as Rs.1,500/- in prosecuting his application seeking information under the provisions of the Right to Information Act.
6. It is submitted that the information sought is very urgent especially having regard to the fact that those documents have been used for impeding the process of law, challenging the order granting sanction for prosecution. Therefore this complaint may be considered out of turn having regard to the large public interest involved in the matter. In the interest of justice it is therefore prayed that this Hon�ble Commission may pleased to grant the following reliefs:
1) order to take disciplinary proceedings under Service Rule for malafidely denying information or denying information without any reasonable cause that was sought by the Petitioner vide Ann-A1 application;
2) direct the Respondent to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner;
3) award cost to the Petitioner quantified at Rs.1,500/- as compensation for the loss and injury suffered by him in the prosecution of his application under Section 6 of the Right to Information Act; And
4) pass such other order that this Hon�ble Commission may pleased to pass in the facts and circumstance of the case.
Dated this the 18th day of September, 2009.
COMPLAINANT. Adv. P.K. IBRAHIM,
COUNSEL FOR THE COMPLAINANT.
The above Petition is now pending and let us wait the law to take its course. Further discussion, after the Commission pass its orders. Till then
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