Karnataka High Court

Sri Sijo Sebastain vs Karnataka Information ... on 26 July, 2022

Bench: Krishna S.Dixit

                              1




       IN THE HIGH COURT OF KARNATAKA, BENGALURU

          DATED THIS THE 26TH DAY OF JULY, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.4913 OF 2022(GM-RES)

BETWEEN:

SRI. SIJO SEBASTAIN,
AGED ABOUT 43 YEARS,
S/O SRI SEBASTIAN P K,
R/O B-406, UKN VELVISTA,
HAGADUR MAIN ROAD,
WHITEFIELD, BANGALORE-560 066.
                                            ... PETITIONER
(BY SRI.SIJO SEBASTAIN, PARTY IN PERSON)

AND:

1. KARNATAKA INFORMATION COMMISSION,
   COURT HALL NO.5, MAHITI SOUDHA,
   DEVARAJ URS ROAD,
   OPPOSITE TO VIDHANA SOUDHA,
   WEST GATE-2, BENGALURU-560 001.

2. THE PUBLIC INFORMATION OFFICER,
   BLOCK EDUCATION OFFICE,
   SOUTH CIRCLE-4,
   GOVT HIGH SCHOOL COMPOUND,
   TRIVENI NAGAR, K.R.PURAM,
   BENGALURU - 560 036.
                                    2




3. THE FIRST APPELLATE AUTHORITY,
   BLOCK EDUCATION OFFICE,
   SOUTH CIRCLE-4, GOVT HIGH SCHOOL COMPOUND,
   TRIVENI NAGAR, K.R.PURAM,
   BENGALURU - 560 036.
                                             ... RESPONDENTS
(BY SRI.SHARATH GOWDA G B, ADVOCATE FOR R1;
        R2 & R3 ARE SERVED AND UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226, 32 OF
THE CONSTITUTION OF INDIA & RTI ACT SECTION 23, PRAYING TO
TAKE ACTION AGAINST R1 AND R3 WITH EXEMPLARY PUNISHMENT
FOR DERELICTION FO DUTY, BY IMPOSING MAXIMUM PENALTY AS
PER RTI ACT SECITON 20(1) AND 20(2) AND THE DESERVED
COMPENSATION TO THE PETITIONER FOR THE DIFFICULTIES AND
MENTAL AGONY CAUSED BY THE ACTIONS OF R2 AND ETC.,

    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-

                                ORDER

Petitioner, party-in-person, Mr.Sebastian is knocking at the

doors of Writ Court with the following prayers:

"1. Action against R-2 & R-3 with exemplary punishment for dereliction of duty by imposing maximum penalty as per RTI Act Section 20(1) & 20(2). And the deserved compensation to the petitioner for the difficulties and mental agony caused by the actions of R-2.

2. Action against R-1 by imposing penalty and compensation to the petitioner for the difficulties and mental agony caused by the actions of R-1 and misusing the power of Karnataka Information Commission to protect the habitual offenders of RTI Act.

3. The petitioner humbly requests the Hon'ble Court to allow video conferencing for all hearings of this petition".

2. After service of notice the 1st respondent-Karnataka

Information Commission is represented by its Panel Counsel who

opposes the writ petition inter alia submitting that the petition is

lavishly drafted and its tenor is objectionable; whether penalty

should be levied or not, is a matter of discretion and therefore is not

ordinarily susceptible to judicial review of the writ court; even

otherwise the information sought for having been shared with the

petitioner, the present grievance is unsustainable. So contending he

seeks dismissal of the writ petition.

3. The 2nd respondent-Public Information Officer has

remained unrepresented despite service of notice and the petitioner

contends that this is nothing short of an affront to the Writ Court.

Whatever that be, the 2nd respondent remaining unrepresented would

not interdict the hearing & disposal of this matter in accordance with

law.

4. Brief facts of the case:

(a) Petitioner's RTI case having been favoured, the answering

respondent Sri Shankar who happen to be the Public Information

Officer-cum-the Manager attached to Block Education office,

K.R.Puram, Bengaluru was directed to furnish the information as

sought for.

(b) The said information came to be furnished with a delay of

about two years. Petitioner's statutory appeal number

10725/APL/2020 came to be disposed off by the 1st respondent-

Commission vide order dated 25.01.2022 on the ground that after

notice dated 10.11.2021 was effected on the 2nd respondent, he has

furnished to the petitioner on 03.12.2021 by a registered post the

information/documents as was directed.

subject appeal could not have been so casually closed by order of the

kind, closing eyes to the enormous delay brooked by the 2nd

respondent in furnishing the information/documents and that the 1st

respondent-Commission being a statutory quasi judicial body cannot

act like a maharaja or moghul, its functions being of public law

character. The petitioner passionately submits that fine ought to have

been levied on the 2nd respondent erring official, to say the least.

5. Having heard the petitioner, party-in-person and the

learned Panel Counsel appearing for the 1st respondent-Commission

and having perused the petition papers, this Court is inclined to grant

indulgence in the matter as under and for the following reasons:

(i) Justice Louis Brandeis (1856-1941) of U.S. Supreme Court

famously noted, "Sunlight is said to be the best of disinfectants". This

statement, illuminates the justification for enacting 'transparency and

information laws'. Access to information is also a key tool in

combating corruption and wrongdoing. Investigative journalists and

watchdog civil society organizations can use the right to access

information to expose wrongdoing and help root it out. These laws

reflect the fundamental premise that government and public officials

are supposed to serve the people. There are, however, a number of

more practical ideas underlying the widespread recognition of the

right to information.

(ii) The International Covenant on Civil and Political Rights (ICCPR)

has described information as 'the oxygen of democracy'. The right of

access to information is recognized even under the provisions of the

Universal Declaration of Human Rights, as an element of freedom of

expression. It is understood in the said instrument as the right to

seek and receive information. The UN Human Rights Committee in

General Comment 34, adopted in 2011, widely interpreted the scope

of the right to information, stating that Article 19 of the ICCPR

ensures the right to access information held by public bodies.

International covenants which have been ratified by India are binding

to the extent that they are not inconsistent with the provisions of the

domestic law. The provisions of international conventions/covenants

which elucidate and effectuate the Fundamental Rights, can be relied

upon by the Courts as their facets and be enforced as such, in the

light of Article 51 of the Constitution of India, says D.D.Basu's Shorter

Constitution of India, Volume-I, 15th Edn. at page 644. All this needs

to be kept in view by the functionaries of the RTI Act while

interpreting its provisions.

(iii) Petitioner had sought for certain information; his claim

was favoured for furnishing the same in a time bound way and the

said information was furnished to him after brooking a long delay of

about two years, are not in dispute. All they are, even otherwise

stand established by the material on record. Thus admittedly, there

was delayed compliance of the direction. That being so, the 1st

respondent could not have closed the appeal of petitioner leaving the

culpable delay to go with impunity. An argument to the contrary

strikes at the root of law, at reason and at justice.

(iv) Section 20 of the Right to Information Act, 2005

prescribes penalty of Rs.250/- for delay of each day brooked in

furnishing the information; sub-section (1) prescribes the maximum

penalty amount of Rs.25,000/-. The penalty clause is enacted

pursuant to comment 34 of the UN Human Rights Committee, as

adopted in 2011. This sub-section (1) which employs mandatory

language ie., 'shall' reads as under:

"(1) Where the Central Information Commission or State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State

Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub‑ section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty‑ five thousand rupees:

          Provided     that    the    Central   Public
     Information Officer or        the State Public

Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."

(v) The 1st Proviso to sub-section (1) of Sec. 20 enacts audi

alteram partem and therefore before levying the penalty the erring

person needs to be heard, is true. The 2nd Proviso enacts a negative

burden and places it on the shoulders of the erring official to prove

that he acted reasonably & diligently in furnishing the information in

time or not furnishing. This second proviso itself shows the

significance of the right to information as legislated by the Parliament.

That being the position, there was absolutely no reason for closing the

appeal of the petitioner without levying penalty on the 2nd

respondent, who has chosen to remain unrepresented despite service

of notice. Normally, the matter would have been remanded for

consideration afresh. However, such a course is not taken up since