Union Of India vs G Krishnan
2012 Latest Caselaw 3292 Del

 *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                    Judgment reserved on: 04.05.2012

%                   Judgment delivered on: 17.05.2012

+                              W.P.(C) 2651/2012


       UNION OF INDIA                                    ..... Petitioner
                           Through:     Ms. Indira Jaising, ASG with
                                        Mr.Rohit Sharma, Advocate

                      versus


       G KRISHNAN                                         .....   Respondent
                           Through:



       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI


                                 JUDGMENT

VIPIN SANGHI, J.

1. The petitioner, Union of India assails the order dated

09.04.2012 passed by the Central Information Commission (CIC) in

Appeal No.CIC/SG/A/2012/000374, whereby the second appeal

preferred by the respondent, Sh. G. Krishnan has been allowed, and a

direction has been issued to the petitioner to provide an attested copy

of the summary of the Western Ghats Ecology Expert Panel (WGEEP)

Report and the report on the Athirappilly Hydro Electric Project, Kerala

to the respondent before 05.05.2012. It has further been directed that

the WGEEP report be placed on the website of the Ministry of

Environment and Forest (MOEF) before 10.05.2012. A further direction

has been issued to the (MOEF) to publish all reports of commissions,

special committees or panels within 30 days of receiving the same,

unless it is felt that any part of such report is exempted under the

provisions of Section 8(1) and Section 9 of the Right to Information

(RTI) Act. Further directions have been issued in this regard.

2. The respondent sought from the PIO of the petitioner the

summary of the report submitted to the MOEF by the WGEEP under the

chairmanship of Prof. Madhav Gadgil and their report on the

Athirappilly HEP Kerala. The PIO of the MOEF replied to the said query

by observing that:

"The Ministry of Environment and Forests is still in the process of examining the report of the Western Ghats Ecology Expert Panel in consultation with the six State Governments of the Western Ghats region. As such the report is not final, still a draft under consideration of the Ministry and thus not complete or ready for disclosure under RTI.

You may repeat your application at a later date after completion of the process."

3. Dissatisfied with the aforesaid, the respondent preferred a

first appeal, which was also rejected on the ground that the disclosure

of the said report would prejudicially affect the "strategic, scientific or

economic interests of the State". Consequently, the petitioner raised

the defence available under Section 8(1)(a) of the RTI Act to deny the

supply of the information sought by the respondent.

4. As aforesaid, the CIC has allowed the appeal preferred by the

respondent.

5. The submission of learned ASG Ms. Indira Jaising, who appears

for the petitioner, is that so as to take an informed decision while

acting under Section 3(2)(v) of the Environment Protection Act, 1986,

which empowers the Central Government to take measures with

respect to "restriction of areas in which any industries, operations or

processes or class of industries, operations or processes shall not be

carried out or shall be carried out subject to certain safeguards", the

MOEF constituted an expert panel on 04.03.2010 called the WGEEP

under the chairmanship of Prof. Madhav Gadgil. This expert panel had

13 members and one chairman, namely Prof. Madhav Gadgil.

6. It is argued that this expert panel was constituted in

recognition of the fact that the western ghats is one of the 34 global

biodiversity hotspots, and that it is considered environmentally

sensitive and ecologically significant. The function to be performed by

the panel included assessment of current status of ecology of the

western ghats as well as to demarcate the areas with recommendation

for the same being notified as ecologically sensitive areas under the

Environment Protection Act, 1986.

7. The learned ASG submits that the WGEEP report, inter alia,

contains recommendations regarding demarcation of the ecologically

sensitive areas in the western ghats, broad sectoral guidelines for

regulation of activity therein and establishment of western ghats

ecology authority under the Environment Protection Act, 1986 for the

entire western ghats region.

8. It is also argued that the western ghats have complex inter-

state character as they are spread across an approximate area of

1,29,000 sq. kms. of the six western ghat States, namely, Tamil Nadu,

Kerala, Karnataka, Goa, Maharashtra and Gujarat. Therefore, the

recommendations of WGEEP would influence many sectoral activities,

such as agricultural land use, mining industry, tourism, water

resources, power, roads and railways. The learned ASG submits that

the said report itself records that the same has been prepared on the

basis of deficient and incomplete data. She submits that declaring the

Western Ghats as an ecologically sensitive zone would have far

reaching implications on all on-going as well as proposed industrial

activities in different States.

9. It is argued that the said report is still under consideration of

the concerned States and any hasty decision on making the report

public without adequate consultative process would lead to misuse of

the report, and the same may become a stumbling block in the process

of development of the western ghats regions.

10. She submits that before the recommendations of the WGEEP

panel are accepted by the Central Government, the views of different

States that are likely to be affected are required to be considered. If,

at this stage, the WGEEP panel report is made public, even before

obtaining and considering the views of the affected States, there would

be a spate of applications seeking notification of certain areas as

ecologically sensitive, based on the recommendations contained in the

WGEEP report.

11. The learned ASG submits that the petitioner is not averse to

the disclosure of the WGEEP report. However, the same would be

released after the process of examination of the said report, in

consultation with the affected State Governments of the western ghats

region, is completed, and a final decision with regard to acceptance or

rejection, in whole or in part or with modification/ conditions/

qualification is taken. This process is not final, and consequently the

report cannot be disclosed in the scientific or economic interests of the

State.

12. The learned ASG points out that a host of information in

relation to the minutes of the meeting/report of the Madhav Gadgil

committee/panel; 42 commissioned papers; 7 brainstorming sessions;

1 expert consultative meeting; 8 consultations with Govt. Agencies; 40

consultations with civil society groups; 14 field visits have already

been made public by placing the same on the website -

www.westernghatsindia.org. Consequently, the materials which have

gone into the preparation of the report of the WGEEP have been made

public.

13. It is also argued that under section 4(1)(c) of the RTI Act,

every public authority is obliged to "publish all relevant facts while

formulating important policies or announcing decisions which affects

the public". It is argued that in compliance with section 4(1)(c), the

aforesaid information which contains the relevant facts and which

would be taken into account while formulating a policy in respect of

the ecology of the western ghats has been made public and the

decision, as and when taken, would also be made public.

14. A perusal of the impugned order shows that the petitioner did

not deny that Prof. Madhav Gadgil had already submitted the WGEEP

report. The CIC noticed that since the report has already been

submitted by the panel to MOEF, it cannot be called a "Draft" report.

The CIC also observes that there is no exemption from disclosure of a

report which has not been accepted by a public authority.

15. The submission raised by the learned ASG before this Court

with regard to the scientific or economic interests of the State being

affected in case the WGEEP report is disclosed has been considered by

the learned CIC in the impugned order, inter alia, in the following

manner:

"... .... .... It must be remembered that the object and purpose of governance in a democracy is to fulfill the will of the people. The PIO has claimed that the policy is being formulated and hence the report cannot be disclosed. This Bench would like to remember Justice Mathew‟s clarion call in State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428 - "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security".

With the advent of the RTI Act, citizens have access to a variety of information held by the government and its instrumentalities. It includes information impacting the environment such as impact assessment reports, clearances, permissions/licenses provided by the concerned ministries, etc. This has enabled citizens to knowledgeably understand the environmental issues affecting our country. Citizens and civil society, who are actively pursuing the

objective of protecting the biodiversity of ecologically sensitive regions, flora, fauna, and endangered species, now have access to information which allows them to obtain a true picture of our ecosystem. The RTI Act has proved to be a crucial tool for creating awareness among citizens and making them cognizant of the realities.

.... ... ... ... ....

Implementation of proposals for demarcation of eco- sensitive zones, whether before or after finalisation of the WGEEP report, is an executive decision. Mere apprehension of proposals being put forth by citizens and civil society who are furthering the cause of environment protection cannot be said to prejudicially affect the scientific and economic interests of the country. Disclosing a report or information does not mean that the government has to follow it. It may perhaps have to explain the reasons to public for disagreeing with a report based on logic and coherent reasons. This cannot be considered as prejudicially affecting the scientific and economic interests of the State.

.........

The RTI Act recognises the above mandate and in Section 4 contains a statutory direction to all public authorities "to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information". More specifically, Section 4(1)(c) of the RTI Act mandates that all public authorities shall- "publish all relevant facts while formulating important policies or announcing the decisions which affect public". It follows from the above that citizens have a right to know about the WGEEP report, which has been prepared with public money, and has wide ramifications on the environment. Disclosure of the WGEEP report would enable citizens to debate in an informed manner and provide useful feedback to the government, which may be taken into account before finalizing the same. It is claimed by the PIO that the policy is being formulated and hence the report cannot be disclosed. The law requires

suo moto disclosure by the public authority „while‟ formulating important policies and not „after‟ formulating them. Obviously, the thinking was that our democracy is improved and deepened by public participation in the process of decision-making, and not when a policy is finalised and then merely announced in the name of the people.

The disclosure of the WGEEP report would enable citizens to voice their opinions with the information made available in the said report. Such opinions will be based on the credible information provided by an expert panel constituted by the government. This would facilitate an informed discussion between citizens based on a report prepared with their/public money. MOEF‟s unwillingness to be transparent is likely to give citizens an impression that most decisions are taken in furtherance of corruption resulting in a serious trust deficit. This hampers the health of our democracy and the correct method to alter this perception is to become transparent. Such a move would only bring greater trust in the government and its functionaries, and hurt only the corrupt.

The PIO has not been able to give any reason how disclosure would affect the scientific interests of the State. The PIOs claim for exemption is solely based on Section 8 (1) (a) of the RTI Act. The Commission has examined this claim and does not find any merit in his contention that disclosure would impact the economic interests of the Nation. The Commission therefore rejects the PIOs contention that the information sought by the appellant is exempt under Section 8 (1) (a) of the RTI Act".

16. Having considered the submissions of the learned ASG and

perused the record including the impugned order, I am of the view that

there is no merit in this petition, and I am inclined to agree with the

reasoning adopted by the learned CIC for allowing the respondent's

appeal and directing disclosure of the WGEEP report prepared by Prof.

Madhav Gadgil committee and panel.

17. It is not the petitioners contention before me that the said

WGEEP report is not the final document prepared by the panel headed

by Prof. Madhav Gadgil in relation to the western ghats ecology and

Athirappilly HEP Kerala. So far as the said panel is concerned, they

have tendered their report to the MOEF. Now, it is for the MOEF, in

consultation with the affected Sates, to act on the said report. It is for

the MOEF and the affected States to either accept/reject, wholly or

partially, or with conditions/qualifications/modifications the said report,

by taking into account the interests of all stakeholders, and by taking

into account the relevant laws, including those applicable in relation to

the protection of environment and ecology.

18. If there are any shortcomings or deficiencies in the said

report, inter alia, for the reason that the same is based on incomplete

or deficient data, or for any other reason, the said factor would go into

the decision making process of the MOEF and the concerned States.

But it cannot be said that the said report is not final. What is not final

is the governmental policy decision on the aspects to which the WGEEP

report relates. The said report is one of the ingredients, which the

MOEF and the concerned States would take into consideration while

formulating their policy in relation to the western ghats ecology.

19. The consultative process and the involvement of the civil

rights groups and all those who are concerned, and who may be

affected by the policy that may eventually be made, does not stop

after the making of the said report by the WGEEP. In fact, after the

making of the said report, the said consultative and participatory

process, ideally speaking, should become even more interactive and

intense.

20. The endeavour of the petitioner appears to be to withhold the

WGEEP report, so as to curb participation of the civil society and the

interested environmental groups as also the common man, who is

likely to be affected by the policy as eventually framed, in the debate

that should take place before the policy is formulated. Before the

formation of the policy, all the stakeholders should be able to deal with

the report and consider whether to support or oppose the findings and

recommendations made therein, and the policy should be eventually

formulated after due consideration of all points of view.

21. Obviously, the MOEF and the concerned States would also

have their opinion and points of view, which they should put across in

the process of any such debate, which may take place either publically

or in judicial proceedings. There is no reason for the petitioner to

entertain the apprehension that the disclosure of the WGEEP report, at

this stage, would impede the decision making process, and also would

adversely affect the scientific or economic interests of the States. The

broad based participative process of debate would, in fact, help the

MOEF and the concerned States in arriving at a policy decision, which

is in the larger interest and for public good.

22. The submission of the learned ASG founded upon section

4(1)(c) has no merit for the reason that "all relevant facts" which go

into the formulation of important policies would not only include the

reports and minutes of commissioned papers, brainstorming sessions,

expert consultative meetings, field visits etc., but would also include

the report prepared by the expert panel on the basis of such raw

material. Therefore, it cannot be said that the petitioner, by placing on

its website some of the materials which have gone into the preparation

of the WGEEP report, has entirely complied with the requirements of

section 4(1)(c) of the Act.

23. The scientific, strategic and economic interests of the State

cannot be at cross purposes with the requirement to protect the

environment in accordance with the Environment Protection Act, which

is a legislation framed to protect the larger public interest and for

promotion of public good. Policies framed with the sole object of

advancing the scientific and economic interests of the State, but in

breach of the State's obligations under the Environment Protection Act,

and other such like legislations, such as the Water (Prevention and

Control of Pollution) Act, Air (Prevention and Control of Pollution) Act

etc. would be vulnerable to challenge and may eventually not serve

the purpose for which such a policy is framed. Therefore, while

formulating its policies, the State is obliged to take into account all the

relevant laws and the statutory obligations which the State is obliged

to fulfill, lest the policy of the State which becomes one sided and

imbalanced. A policy evolved in the largest public interest and public

good can certainly not be said to be against the strategic, scientific or

economic interest of the State.

24. For the aforesaid reasons, I find no merit in this petition and

no reason to interfere with the impugned order passed by the learned

CIC. Accordingly, the present petition is dismissed.

(VIPIN SANGHI) JUDGE MAY 17, 2012 sr