CIC judgment: Delhi Lt. Governor reports to Centre can be made available under RTI

However, the CIC has now said the protection granted to the “advice given to the President or Governor” by the Council of ministers was on a different footing than the material given to the Delhi LG.

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“The Commission agrees with the contention of appellant that Article163(3) of the Constitution does not apply to the Union Territory of Delhi, which could be invoked only in case of a full-fledged state and not to a UT with an assembly like Delhi. Delhi is a union territory and there are specific provisions under the Constitution of India in Article 239AA. There is no mention of any provision like protecting the advice given to LG as available under Article 74 (2) (regarding President) and Article 163 (3) (regarding governors). More over Article 163(3) applies specifically to the ‘advice of a Council of Ministers to the Governor’. The information sought here is a report sent by the UT Administrator to Union Government or President. Article 163 has nothing to do with this communication,” says the order.

Going a step further, the CIC has held that even in case of information given to the President or Governor of a state, the material on the basis of which decisions are taken is not privileged information and is open to scrutiny.

“ Even in those cases where Article 163(3) applies, there is no immunity from disclosure,” said the order.

“ If the documents pertain to affairs of state, they cannot be withheld by state as privileged documents under Evidence Act, but has to disclose under RTI Act, subject only to Section 8 and 9. Privilege for non disclosure of documents in the name of ‘affairs of state’ under Section 123 of Evidence Act is no more available to any public authority with the advent of transparency regime, which overrides the archaic law of privilege as specified in section 22, Right to Information Act 2005. Privilege as an excuse for secrecy of information about affairs of state is antithesis to democracy, and not available,” held the CIC.

“There is no bar against citizen from having a copy of the advice/report of LG to Union government. The Supreme Court has clarified in a landmark case S R Bommai case that the material forming basis of advice given to Governor could be subject matter of judicial review, which clearly means information could be disclosed,” said the order.

The CIC has now directed both the office of LG and the Ministry of Home Affairs, to provide the certified copies of the report along with all other papers sent by LG to the Union Government to the appellant, within 30 days.