Bhushal Singh vs The Telangana State
2023 Latest Caselaw 747 Tel

         THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                             AND
          THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
                          + W.A.No.190 of 2023
                              % Date: 13-02-2023

Between:

# Bhushal Singh
    S/o. Kamal Kishore Singh, aged 42 Yrs,
    Occ: Business, R/o. H.No.481/C,
    Road No 86, Jubilee Hills, Hyderabad.
                                                           ... Appellant
              v.

$ The Telangana State Information Commission
    Rep by Register Samachara Hakku Bhavan,
    D.No.54399, Telangana Housing Board Building,
    M.J.Market, Hyderabad 500001 and others
                                              ... Respondents

! Counsel for the Appellant : Ms. B.Sapna Reddy

^ Counsel for respondent No.1 : Ms. D.Pallavi, GP for IT Counsel for respondents No.2 & 3: Mr. M.Durga Prasad, SC for GHMC Counsel for respondent No.4: Mr. Ch.Kalyan Rao, GP for General Administration

< GIST:

       HEAD NOTE:
 ? CASES REFERRED:
        (2011)8 SCC 781
        (2011)15 SCC 1
        (1975)4 SCC 428
        1981 Suppl. SCC 87
        (1988)4 SCC 592
        (1997)4 SCC 306
        (2005)10 SCC 510
        (2017)10 SCC 1
                                            ::2::

THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE N.TUKARAMJI W.A.No.190 of 2023 JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)

Heard Ms. B.Sapna Reddy, learned counsel for the

appellant; Ms. D.Pallavi, learned Government Pleader for

Information & Technology representing respondent No.1;

Mr. M.Durga Prasad, learned Standing Counsel for Greater

Hyderabad Municipal Corporation (GHMC) representing

respondents No.2 and 3; and Mr. Ch.Kalyan Rao, learned

Government Pleader for General Administration representing

respondent No.4.

2. This appeal is directed against the order dated 20.06.2022

passed by the learned Single Judge disposing of W.P.No.26034

of 2022 filed by the appellant as the writ petitioner.

3. Appellant had filed the related writ petition seeking a

direction to respondent No.1 i.e., Telangana State Information

Commission to consider his complaint -cum- representation ::3::

dated 11.05.2022 by invoking Section 20 of the Right to

Information Act, 2005 (briefly 'the Act' hereinafter).

4. Appellant had filed an application dated 25.05.2021 before

the Public Information Officer (PIO) in the office of the Deputy

Commissioner, Greater Hyderabad Municipal Corporation

(GHMC) Circle-3, Hayathnagar, Hyderabad under Section 6(1)

of the Act for furnishing information on nine points. When the

PIO did not furnish the information sought for, appellant filed

first appeal before the first appellate authority on 26.06.2021

under Section 19(1) of the Act. First appellate authority failed to

hear the appeal and pass appropriate order.

5. When appellant did not receive the information sought for

even after thirty days of filing of the first appeal, he preferred

second appeal before the Telangana State Information

Commission i.e., respondent No.1. By the order

dated 23.03.2022, respondent No.1 directed the PIO (respondent

No.3) to furnish the information sought for to the appellant

within two weeks and thereafter to submit compliance report.

::4::

While closing the appeal, respondent No.1 initiated separate

proceedings against the PIO by issuing show cause notice to him

for not attending the hearing before respondent No.1 and for

not furnishing the information sought for to the appellant within

the stipulated time.

6. With the grievance that neither the information sought for

was furnished to him nor further steps were taken by respondent

No.1 against the defaulting PIO, appellant submitted complaint

-cum- representation dated 11.05.2022 before respondent No.1.

When the said complaint -cum- representation also failed to

elicit any response, appellant was compelled to knock the doors

of this Court by filing the related writ petition.

7. This Court by the order dated 20.06.2022 adverted to the

order of respondent No.1 dated 23.03.2022 as well as Section 20

of the Act and thereafter disposed of the writ petition by

directing the appellant to approach respondent No.1 for seeking

appropriate relief. Net result of the above direction is that the ::5::

appellant is back to square one. It is in such circumstances that

the present appeal has been preferred.

8. Objective of the Right to Information Act, 2005 (already

referred to as 'the Act' hereinbefore) is to provide for setting up

a practical regime of right to information for citizens to secure

access to information under the control of public authorities in

order to promote transparency and accountability in the working

of every pubic authority, the constitution of a Central

Information Commission and State Information Commissions

and for matters connected therewith or incidental thereto.

9. Preamble to the Act says that Constitution of India has

established a democratic republic; democracy requires an

informed citizenry and transparency of information which are

vital to its functioning and also to contain corruption and to hold

governments and their instrumentalities accountable to the

governed; since revelation of information in actual practice is

likely to come in conflict with other public interests including

efficient operations of the governments, optimum use of limited ::6::

fiscal resources and preservation of confidentiality of sensitive

information, it was felt that the conflicting interests are required

to be harmonised while preserving the paramountcy of the

democratic ideal.

10. Supreme Court in Institute of Chartered Accountants

of India v. Shaunak H. Satya1 dealt with the object of the Act

and held that object of the Act is to harmonize the conflicting

public interests i.e., ensuring transparency to bring in

accountability and containing corruption on the one hand and at

the same time to ensure that other public interests including

efficient functioning of the governments, optimum use of limited

fiscal resources and preservation of confidentiality of sensitive

information are not adversely affected. Supreme Court held as

follows:

One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient

(2011) 8 SCC 781 ::7::

functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of the RTI Act is to harmonise the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective.

10.1. Again in Chief Information Commissioner v. State of

Manipur2, Supreme Court referred to the preamble of the Act

and observed that the Act has been enacted to promote

transparency and accountability in the working of every public

authority in order to strengthen the core constitutional values of

a democratic republic. Parliament had enacted the said Act

keeping in mind the rights of an informed citizenry in which

(2011) 15 SCC 1 ::8::

transparency of information is vital in curbing corruption while

making the Government and its instrumentalities accountable. It

was held as follows:

As its Preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of the Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal. The Preamble would obviously show that the Act is based on the concept of an open society.

11. The Act provides for a hierarchy of authorities for an

aggrieved citizen seeking information. As seen in this case, after

failure to obtain requisite information from the PIO, appellant

had filed first appeal and thereafter the second appeal. Despite a

positive direction of the State Information Commission in the ::9::

second appeal, which is a statutory body formed under

Section 15(1) of the Act read with Section 2(k) thereof, the

requisite information has not been furnished to the appellant.

12. Section 3 of the Act clearly says that all citizens of the

country shall have the right to information and as per Section 4

thereof, it is the obligation of every public authority to maintain

records and to furnish information sought for unless statutorily

excluded.

13. PIO is a statutory authority. Under Section 5 of the Act, it

is his bounden duty not only to furnish information statutorily

provided but to comply with the orders of the appellate authority

including the State Information Commission.

14. Way back in State of UP v. Raj Narain3, Constitution

Bench of the Supreme Court held that people of this country

have a right to know every public act by their public

functionaries. It was held that the right to know, which is

(1975) 4 SCC 428 ::10::

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.

14.1. A Constitution Bench of the Supreme Court in S.P.Gupta

v. Union of India4 held that the concept of an open

government is a direct emanation from the right to know which

seems to be implicit in the right to free speech and expression

guaranteed under Article 19(1)(a) of the Constitution. Therefore,

disclosure of information in regard to functioning of the

Government must be the rule and secrecy an exception justified

only where the strictest requirement of public interest so

demands.

14.2. Supreme Court in Reliance Petrochemicals Limited v.

Proprietors of Indian Express Newspapers5 observed that

people at large have a right to know in order to be able to take

1981 Suppl SCC 87

(1988)4 SCC 592 ::11::

part in a participatory development in the industrial life and

democracy. Right to know is a basic right which citizens of a

free country aspire in the broader horizon of the right to live

under Article 21 of our Constitution. That right has reached new

dimensions and urgency. That right puts greater responsibility

upon those who take upon themselves the responsibility to

inform.

14.3. This position was reiterated by the Supreme Court in

Dinesh Trivedi v. Union of India6 wherein it was observed

that in modern constitutional democracies, it is axiomatic that

citizens have a right to know about the affairs of the

Government which, having been elected by them seeks to

formulate sound policies of governance aimed at their welfare.

But like all other rights, this right is also not absolute. It has

recognized limitations.

1997 (4) SCC 306 ::12::

14.4. Research Foundation of Science Technology

National Resource Policy v. Union of India7 is another case

where Supreme Court in the context of environmental

protection held that right to information and community

participation necessary for protection of environment and

human health is an inviolable part of Article 21 of the

Constitution of India. In other words, it is a right which flows

from Article 21 of the Constitution of India.

14.5. Finally, in Chief Information Commissioner (2 supra),

Supreme Court after referring to its earlier decisions in Raj

Narain (3 supra) and S.P.Gupta (4 supra) held that right to

information which is basically founded on the right to know is an

intrinsic part of the fundamental right to free speech and

expression guaranteed under Article 19(1)(a) of the Constitution

of India. The Act has been enacted to consolidate the

fundamental right of free speech. However, Supreme Court

(2005)10 SCC 510 ::13::

clarified that such a right is subject to reasonable restrictions

under Article 19(2) of the Constitution of India.

15. Therefore, from the above, it is evident that right to

information is a fundamental right traceable to both under

Article 19(1)(a) as well as under Article 21 of the Constitution of

India. Of course, with the enactment of the Act, it is now a

statutory right under Section 3 of the Act.

16. In K.S.Puttaswamy v. Union of India8, Supreme Court

was examining the contours of right to privacy. In that context a

submission was made that since there is a statutory regime by

which the right to privacy is adequately protected, it is not

necessary to read a constitutional right to privacy into the

fundamental rights. Rejecting such a contention, Supreme Court

observed that elevating a right to the position of a

constitutionally protected right, places it beyond the pale of

legislative majorities; a statutory right can be modified, curtailed

or annulled by simple enactment of the legislature but when it

(2017) 10 SCC 1 ::14::

acquires the status of a constitutional right forming a part of

basic structure of the constitution, it assumes an inviolable

status. Supreme Court held as follows:

The submission that there is a statutory regime by virtue of which the right to privacy is adequately protected and hence it is not necessary to read a constitutional right to privacy into the fundamental rights, betrays lack of understanding of the reason why rights are protected in the first place as entrenched guarantees in a Bill of Rights or, as in the case of the Indian Constitution, as part of the fundamental rights. Elevating a right to the position of a constitutionally protected right, places it beyond the pale of legislative majorities. When a constitutional right such as the right to equality or the right to life assumes the character of being a part of the basic structure of the Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment. Ordinary legislation is not beyond the pale of legislative modification. A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a ::15::

constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment. Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a protective shell that places them beyond the pale of ordinary legislation. To negate a constitutional right on the ground that there is an available statutory protection is to invert constitutional theory. As a matter of fact, legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws. But, the important point to note is that when a right is conferred with an entrenched constitutional status in Part III, it provides a touchstone on which the validity of executive decision-making can be assessed and the validity of law can be determined by judicial review. Entrenched constitutional rights provide the basis of evaluating the validity of law. Hence, it would be plainly unacceptable to urge that the existence of a law creating a corresponding statutory right negates the rationale for a constitutional right or renders the constitutional right unnecessary.

::16::

17. A second appeal to an aggrieved person is provided under

sub-section (3) of Section 19 of the Act. Sub-section (7) of

Section 19 says that decision of the Central Information

Commission or State Information Commission, as the case may

be, shall be binding. That apart, under sub-section (8) of

Section 19, Central Information Commission or the State

Information Commission, besides exercising the powers

conferred thereunder, also has the power to require the public

authority to compensate the complainant for any loss or other

detriment suffered; impose any of the penalty provided under

the Act.

18. Section 20 deals with penalties. If the Central Information

Commission or the 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 ::17::

specified or mala fidely denied the request for information or

furnishes incorrect, incomplete or misleading information etc.,

then it shall impose a penalty of Rs.250/- each day till the

application is received or the information is furnished. However,

the total amount of such penalty shall not exceed Rs.25,000/-.

That apart, under Sub-section (2) of Section 20, the Central

Information Commission or the State information Commission

is competent to recommend for disciplinary action against the

Central Public Information Officer or the State Public

Information Officer.

19. In this case, the request for information was made before

the PIO on 25.05.2021. Ultimately, respondent No.1 had

directed the PIO on 23.03.2022 to furnish the information

within two weeks. Almost two years have gone by since the first

request for information was made and a year since the order of

respondent No.1 was passed, yet the PIO has not furnished the

requisite information. Such conduct of the PIO, in our view, is ::18::

completely in violation of the provisions of the Act and the

fundamental right of the appellant to information.

20. That being the position, we direct respondents No.2 and 3

to furnish the information sought for by the appellant

on 25.05.2021 within three weeks from today.

21. We further direct respondent No.1 to take necessary

action under Section 19(8) and Section 20 of the Act against the

erring official(s) by following the procedure laid down under the

Act within a period of eight weeks from the date of receipt of a

copy of this order.

22. Writ Appeal is accordingly allowed. No costs.

As a sequel, miscellaneous petitions, pending if any, stand

closed.

__________________ UJJAL BHUYAN, CJ

_______________ N.TUKARAMJI, J Date: 13.02.2023 LUR