Tuesday, June 22, 2010

[rti_india] Re: Info panel delivers first split verdict


Have just finished reading this "split" verdict. My off the cuff conclusions

a) If a straw poll was to be conducted among the citizen users of RTI Act, 9 out of 10 would agree with Shailesh Gandhi.

b) If the same straw poll was taken among competent legal professionals the results would go 9 out of 10 in favour of A.N Tiwari and Satyanand Mishra.

Now as this decision is certain to be discussed, let me make a few points. I hope that Mr Habibullah is reading this. It is para-wise and numbered.

1) Publishing this "final document" as a decision of the Commission would immediately expose the CIC and other Commissioners to contempt of court charges in the Delhi High Court in WP(C)12714/2009. I would especially like to remind the Commission that I was a party in that proceeding. It is pertinent that I was also heard as a 3rd party in another "Full Bench" of the Commission (K.Kishore versus ICS) where ICs Shailesh Gandhi and Satyanand Mishra were sitting, and where the order records my challenging the legality of CIC constituting "benches". The Hon'ble Delhi High Court has also held that CIC must pronounce orders in "open proceedings" (which is not the same as open chamber - which also was not done).

2) Mr Shailesh Gandhi, not being an ex-babu, is unable to understand / appreciate the subtleties of the arguments IC ANT has crafted. ANT has found no force in CBI's (the 3rd parties) usage of 8(1)(e) and totally ignores it as an allowable exemption. Yet Shailesh Gandhi devotes (wastes) 2 pages explaining why 8(1)(e) is irrelevant - which it is.
Similarly, ANT doesn't rely on section 22 at all. Yet Shailesh Gandhi wastes another page on explaining why section 22 is relevant. ANT has cited a 2 judge order of Delhi High Court specifically on 8(1)(h) in the context of RTI Act. This judgement (para 31 page 15) specifically deals with the situation of 8(1)((h) BEING THE OVER-RIDING NON-OBSTANTE CLAUSE. It goes on to hold that neither the First Appellate nor the CIC (under RTI Act) is capable of deciding the information disclosure in terms of validity of the sanction for prosecution. The best that Shailesh Gandhi can come up with is a single judge (Sanjiv Khanna 'topoed' from Bhagat Singh) order of Delhi High Court generally speaking about why RTI Act prevails in event of "inconsistency" because of section 22.

4) The case then boils down to 8(1)(h). Shailesh Gandhi says that the opposing parties must conclusively prove to the CIC that disclosure would impede the prosecution. The CIC would then take a "judicial" decision. Not only has he forgotten that a double Bench of DHC has said the CIC cannot examine such matters, he has also forgotten another double Bench of DHC which found that CIC was definitely not a court. In any case what "judicial" experience does Shailesh Gandhi have except as an contrite / apologetic contemnor before Justice Swatenter Kumar.

5) Finally let me publicly remind both Mr Habibullah and Mr Gandhi of what constitutes criminal contempt in India.

"Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

For eg. the Copyright Act 1957 defines publication as "making a work available to the public by issue of copies or by communicating the work to the public."

The "due course of any judicial proceeding" is laid down in the Codes of Civil / Criminal Procedure etc. If the CIC passed / published any order which tended to interfere with such due course, they are liable to prosecution for criminal contempt.

Sarbajit Roy

--- In rti_india@yahoogroups.com, sarbajit roy <sroy.mb@...> wrote:
> Here is the file thanks to someone in CIC. Its not up as yet on CIC website.
> Haven't had time to read it fully. Am also uploading it to the FILES section
> of the group for those of you who dont get attachments.
> Sarbajit
> On Tue, Jun 22, 2010 at 10:36 AM, sarbajit roy <sroy.mb@...> wrote:
> > Now even zeenews has a piece on this.
> > http://www.zeenews.com/news635595.html
> >
> > The question is where is this "decision" available and when was it pronounced ?
> > Why are citizens not allowed to peruse the reasoned arguments of IC AN
> > Tiwari / SN Mishra?
> >
> > In any case there is no such thing as a "split verdict" and Shailesh
> > Gandhi should know it.
> >
> > Sarbajit
> >
> > <snip>
> > The CBI correspondence seeking sanction of prosecution cannot be
> > termed as given in fiduciary capacity, Information Commissioner
> > Shailesh Gandhi said in a dissenting note on the decision of a
> > three-member bench of the CIC.
> >
> > It is for the first time where an Information Commissioner has
> > expressed his dissent over a decision endorsed by the majority of
> > commissioners on the bench.
> >
> > The case relates to the plea of C Seetharamaiah whose son, an
> > inspector with Customs, is facing CBI probe in an alleged corruption
> > case.
> >
> > Seetharamaiah had filed an RTI application seeking correspondence of
> > CBI with the Additional Customs Commissioner requesting for sanction
> > of prosecution and related documents.
> >
> > The CBI raised objections to disclosure of these, saying it would
> > impede the process of prosecution. It also said that report and
> > correspondence with the said department and ministry is given in
> > fiduciary capacity to the department, and hence, exempt from
> > disclosure under the RTI Act.
> >
> > The bench comprising Satyananda Mishra, A N Tiwari and Shailesh Gandhi
> > gave a split verdict, with the majority (Mishra, Tiwari) supporting
> > the CBI's view and rejecting the appeal for disclosure.
> >
> > They said the issue of disclosure should be left with the trial court
> > which has powers under the CrPC to decide if the accused had access to
> > the said documents.
> >
> > "It is an admitted fact the CBI as third-party, seeking prosecution of
> > the accused... had handed over to the Chief Commissioner of Central
> > Excise and Customs, Vadodara evidence collected by it against the
> > accused.
> >
> > "Transmission of this evidence was done in confidence for the
> > exclusive purpose of helping the public authority make up its mind
> > regarding whether there was a case to order prosecution against the
> > accused public servant, the son of the appellant," Mishra and Tiwari
> > had said.
> >
> > However, the arguments put forth by the agency were outrightly
> > rejected by Gandhi who said, "In the present case, the information the
> > appellant is seeking is that which has been sent by the CBI to the
> > Department for the grant of the sanction of prosecution.
> >
> > "This is a procedural requirement in the CBI's Crime Manual 2005 as
> > mentioned in the submissions made by the CBI and therefore, the CBI
> > does not have choice with regard to who they would submit this report
> > to...Therefore exemption under Section 8(1)(e) claimed by the CBI is
> > not tenable under the Right to Information Act," he said.
> >
> > He said CBI has advanced no reasons to show how the process of
> > prosecution would be impeded by disclosing the information.
> >
> > "When denying a right to the citizen, it has to be established beyond
> > doubt that prosecution or apprehension of an offender would be
> > impeded," Gandhi said.
> >

Recent Activity:

Stay on top of your group activity without leaving the page you're on - Get the Yahoo! Toolbar now.

Get great advice about dogs and cats. Visit the Dog & Cat Answers Center.

Hobbies & Activities Zone: Find others who share your passions! Explore new interests.



No comments:

Post a Comment