The Central Information Commission (CIC) on Wednesday directed the Lt Governor of Delhi and Union home ministry to disclose the report on the basis of which Delhi assembly was dissolved in November 2014, saying the Lt Governor does not enjoy immunity from disclosing such reports.
Information Commissioner Sridhar Acharyulu said the office of Lt Governor cannot claim immunity given under Article 163(3) which says that “the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court”.
“The Commission agrees with the contention of appellant that Article 163(3) of the Constitution does not apply to Union Territory of Delhi, which could be invoked only in case of a fullfledged and not to the UT with assembly like Delhi,” the information commissioner said.
Acharyulu said there is no mention of any provision like protecting the advice given to L-G as available under Article 74(2) (regarding President) and Article 163(3) (regarding Governors). “Moreover, 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 with this communication. Even in those cases where Article 163(3) applies, there is no immunity from disclosure. There is no bar against citizen from having a copy of the advice/report of LG to Union government,” the information commissioner said.
He directed the office of L-G and the home ministry to provide certified copies of report along with all other papers sent by L-G to the Union government, within 30 days from the date of receipt of this order.
In November 2014, Lt Governor Najeeb Jung had recommended to the President dissolution of the Delhi Assembly as major players BJP, AAP and Congress had expressed “inability” to form government and preferred holding of polls.
Jung’s report paved the way for holding of fresh polls in the capital which was under President’s Rule from February, 2014 when the AAP government quit after 49 days of rule.
Jung in his report to President Pranab Mukherjee had reportedly mentioned that all three main political parties BJP, AAP and Congress expressed inability to form government and conveyed that they were ready to face fresh election.
Rajnandgaon-based Aditya Jain had filed an RTI act seeking certified copies of the request/recommendation to dissolve the Delhi Legislative Assembly sent by Lt Governor to the Union Government or the President and certified copy of all the documents/records, based on which decision to dissolve the Delhi Legislative Assembly was taken.
The Central Public Information Officer rejected the application citing section 8(1)(c) of the RTI Act which exempts from the disclosure the information which would cause a breach of privilege of Parliament or the State Legislature.
“The privilege mentioned in Section 8(1)(c) is Parliamentary privilege, and if the information sought might cause breach of Privilege of parliament or assembly, that alone could not be given.
However, the information commissioner overruled the central public information officer’s contention, saying there is no way that public authority can say that report given by the Lt Governor to Union Government would cause any breach of Parliament or State Assembly. “There is not even iota of justification given by public authority about possibility of such ‘breach’ of privilege,” Acharyulu added.
He said Section 8(1)(i) or RTI Act says the Executive has to disclose the decision, the reasons thereof and the material on the basis of which the decision was taken, after the decision has been taken, the matter is complete, or over.
“The advice of the LG to the Union Government was already acted upon when the Delhi Legislative Assembly was dissolved, fresh elections were held and a new Cabinet was installed. Thus, the matter is complete and over. The Executive should publish this information voluntarily as per S 8(1)(i) proviso. At this stage, there should not be any problem in disclosing the report sought,” he said.
After citing number of Supreme Court and High Court judgements including Uttarakhand High Court decision in Harish Rawat matter, Acharyulu said Information sought has to be shared, because the immunity under Article 163(3) will not apply to Lt Governor besides such immunity is from probing but not from disclosure.
He also said it should be disclosed because request for information is not probe into advice, it not exempted by any provision of RTI Act, there is no stay operating on disclosure, the information sought is already known, there is need for transparency in decision making process regarding dissolving and elected house in public interest, there is neither executive privilege nor legislative privilege and there is nothing to show that disclosure would case breach of parliamentary privilege.