1 WP 478/2008 abs IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 478 OF 2008 1. Public Information Officer Joint Secretary to the Governor Raj Bhavan, Donapaula, Goa 2. Secretary to Governor First Appellate Authority, Raj Bhavan, Donapaula, Goa .. Petitioners V/s 1. Shri Manohar Parrikar Leader of Opposition, Goa State Assembly Complex, Porvorim, Bardez, Goa. 2. Goa State Information Commissioner, Ground Floor, Shram Shakti Bhavan, Patto Plaza, Panaji, Goa. .. Respondents Mr. S.S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for the petitioners. Mr. A.N.S. Nadkarni, Senior Advocate with Mr. D. Lawande, for respondent no.1. WITH WRIT PETITION NO. 237 OF 2011 Special Secretary to the Government of Goa .. Petitioner V/s 1. State Chief Information Commissioner 2. State of Goa 3. Advocate A. Rodrigues .. Respondents 2 WP 478/2008 Mr. Vivek Tankha, Additional Solicitor General with Mr. Mahesh Sana, Mr. Rishabh Sanchety and Mr. J. Supekar for the petitioner. Mr. Amey Kakotkar, Additional Government Advocate for respondent nos.1 and 2 with Mr. A. Rodrigues - respondent no.3 in person. CORAM : D.G. KARNIK, & F.M. Reis, JJ. Date of Reserving the Order : 23rd August 2011 Date of Pronouncing the Order : 14th November 2011 (By Video Conferencing) JUDGMENT : (Per D.G. Karnik, J.) 1. By an order dated 22nd October 2008, the Court directed that Writ Petition No. 478 of 2008 be fixed for final disposal at an early date. The petition was accordingly placed on board before us for final hearing. By an order dated 6th June 2011, the Court directed that Writ Petition No. 237 of 2011 be put up along with Writ Petition No. 478 of 2008. Accordingly these petitions are heard and disposed of by this common judgment as they involve common questions of law. Facts in Writ Petition No. 478 of 2008 2. In July/August 2007, some changes occurred in the political 3 WP 478/2008 equations and political situation in the State of Goa resulting in the Governor of Goa directing the Chief Minister to prove his majority in the Legislative Assembly. A resolution of the Vote of Confidence was passed in the Legislative Assembly, and the Speaker of the Legislative Assembly made a report to the Governor. In turn, the Governor of Goa sent his report to the Union Home Minister. On September 21, 2007, Mr. Manohar Parrikar, the Leader of Opposition (respondent no.1), made an application to the Public Information Officer (for short "the PIO") in the Secretariat of the Governor of Goa, asking for a copy of the report sent by the Governor of Goa to the Union Home Minister regarding the political situation in Goa during the period from 24th July 2007 to 14th August 2007. By a letter dated 22nd December 2007, the PIO in the Secretariat of the Governor of Goa declined to furnish the copy and wrote: "I am to inform that these communications are highly sensitive, and secret in nature. It is regretted that the same cannot be supplied in accordance with the exemption allowed under the Right to Information Act, 2005". Aggrieved by the refusal, the 1st respondent filed an appeal before the Secretary to the Governor being the Appellate Authority. By its order dated 4th April 2008, the Appellate Authority dismissed the appeal. In second appeal, the Goa State Information Commission (for short 4 WP 478/2008 "the GSIC") set aside the order of the first appellate authority by partly allowing the appeal. It held that the report made by the Speaker of the Legislative Assembly of Goa to the Governor of Goa cannot be disclosed. It, however, directed the PIO to furnish to the respondent no.1 the other information i.e. a copy of the report sent by the Governor of Goa to the Union Home Minister on the political situation during the period from 24th July 2007 to 14th August 2007, after severing the report of the Speaker of the Legislative Assembly. Aggrieved by the decision, the petitioners are before us. Facts in Writ Petition No. 237 of 2011 3. The respondent no.3 is a practising advocate. He appears to have a grievance against the conduct of the Advocate General of the State of Goa and the fee charged by him to the Government. He made several complaints/representations to the Governor of Goa against the Advocate General of Goa and was not satisfied with the action taken (rather the inaction) on his complaints/representations. Therefore, by a letter dated 29th November 2010, he applied to the PIO in the secretariat of the Governor of Goa requesting him to furnish him the details of the action taken on his complaints/representations and also asked for the copies of all notings and correspondence on the 5 WP 478/2008 complaints/ representations made by him. By his reply dated 29th November 2010 the PIO informed the petitioner that an affidavit had been filed by his office in another matter in the Hon’ble High Court, Bombay at its bench at Panaji that H.E. Governor is not a public authority under the Right to Information Act 2005, and that pending the decision of the High Court in that matter, it was not possible for him to respond to his request. Though the number of the other matter in which the affidavit had been filed was not mentioned in the reply, it appears that the PIO was referring to the affidavit filed in the connected Writ Petition No.278 of 2008. Not satisfied with the reply of the PIO, respondent no.3 filed a complaint under Section 18 of the Right to Information Act, 2005 (for short "the RTI Act") to the GSIC. Upon receipt of the complaint, the GSIC issued a notice to the PIO as also to the Governor of Goa requiring them to appear before the Commission in person on 4 January 2011. Secretary to the Governor of Goa, on behalf of the Governor of Goa, filed a reply claiming immunity under Article 361 of the Constitution of India and contending that the Governor cannot be arrayed as a party respondent in any proceedings. The PIO submitted a separate reply contending that the Governor was not a public authority under the RTI Act. He also contended that if the respondent no.3 6 WP 478/2008 was aggrieved by the communication of the PIO dated 30th November 2010, he ought to have filed an appeal and the complaint under Section 18 of the RTI Act was not maintainable. By an order dated 31st March 2011, the GSIC accepted the contention that the immunity granted to the Governor under Article 361(1) of the Constitution of India was complete and the Governor was not answerable to any court and the complaint made against him was not maintainable. The GSIC however rejected the contention that Governor was not a public authority under the RTI Act. The GSIC accordingly remanded the matter back to the PIO to deal with the application of the respondent no.3 dated 29 November 2010 in accordance with law. Being aggrieved by this direction, the Special Secretary to the Governor has filed the Writ Petition No.237 of 2011. Concessions of the respondent no.1 in W.P. NO. 478 of 2008 4. At the outset, it may be noted that the decision of the GSIC of severing of the report of Speaker of the Legislative Assembly and not furnishing its copy to respondent no.1, while directing the PIO to furnish a copy of the report of the Governor, is not challenged by the respondent no.1. Mr. Nadkarni, learned Senior Advocate appearing for respondent no.1 also submitted before us that respondent no.1 does not want to challenge the 7 WP 478/2008 direction of the GSIC of severance of the report of the Speaker of the Legislative Assembly. We are, therefore, not required to consider the legality and validity of the direction as the same has been accepted by the respondent no.1. Preliminary objections (in W.P. No. 478 of 2008) 5. Mr. Nadkarni appearing for the respondent no.1 raised a preliminary objection to the maintainability of the writ petition. He submitted that petitioner no.1 is the PIO whose decision was affirmed by petitioner no.2, as the first appellate authority. The petitioner no.2 is the first appellate authority whose decision has been reversed by the GSIC. Both the petitioners are subordinate to the GSIC which is the final appellate authority. The decisions rendered by the petitioner nos.1 and 2 have a colour of judicial decision and, in any event, they are quasi- judicial inasmuch as they decide upon the existence and extent of the right of a citizen to have access to the information under the RTI Act. Their decisions are subject to an appeal. They being judicial authorities subordinate to the GSIC, have no right and authority to challenge the decision of the GSIC. As a matter of judicial discipline, a Court or a Tribunal cannot file an appeal or writ petition against the decision of an appellate authority reversing its decision, except perhaps for expunging of any 8 WP 478/2008 adverse remarks made against the lower Court or the Tribunal. Permitting a Court or a Tribunal to challenge the decision rendered in an appeal or revision by appellate or revisional authority would amount to judicial indiscipline and, therefore, the writ petition should not be entertained. In support, he relied upon a decision of a Division Bench of this Court in Village Panchayat of Velim vs. Shri Valentine S.K.F. Rebello and another, 1990 (1) Goa Law Times 70. 6. In Village Panchayat of Velim (supra), the facts were that the respondent,who claimed to be the owner of a plot, submitted an application for permission for erection of a building to the Village Panchayat, which was rejected by it vide letter dated 6th June 1987. The Deputy Collector allowed the appeal of the respondent and granted the permission. The Village Panchayat challenged the order of the Deputy Collector in the High Court by a writ petition. The High Court held that under the scheme of Village Panchayat Regulations, the Panchayat cannot at all be held to be "a person aggrieved" and consequently, it had no right to challenge the decision made by the Deputy Collector. The Court further accepted the argument of respondent that the Village Panchayat ought not to be permitted to maintain the petition merely because it believed that the appellate decision 9 WP 478/2008 was not palatable and allowing it to challenge the decision would amount to subversion of judicial discipline. The Court observed: "If the Panchayat is allowed to challenge the appellate order, as rightly pointed out by Shri Kakodkar, it may lead to chaos which the judicial discipline must decry". We respectfully agree with the view taken by the Division Bench. We also are of the view that ordinarily a Court, a Tribunal or any other body having a power to decide, shall not be entitled to challenge by way of an appeal, revision or otherwise a decision rendered by the appellate or revisional authority, modifying or reversing its decision. That would amount to subversion of the judicial discipline. It is inconceivable that on his decision being reversed by the District Judge, a Civil Judge filing an appeal in the High Court challenging the decision of the District Judge. The same principle would apply with equal force for the decisions rendered by any judicial or quasi-judicial bodies or authorities. However, the principle laid down above would not apply to the facts of the present case for the reasons indicated below. Section 19 of the RTI Act provides that any person who does not receive a decision within the specified time or is aggrieved by the decision of a Central Public Information 10 WP 478/2008 Officer or the State Public Information Officer, may within 30 days file an appeal to the specified appellate authority. The first appeal under Section 19 of the RTI Act is contemplated only by or at the instance of the person whose application for an information has not been decided or rejected by the PIO. Sub- section (5) of Section 19 provides that in any appeal proceedings, the onus to prove that the denial of the request was justified shall be on the PIO who has denied the request. The PIO who passes the initial order refusing the request for an information is required to defend his action before the appellate authority and the burden of proving that the denial was justified is on him. Thus, the PIO is not merely an authority which initially decides upon the request of an applicant, but in effect is a party to the appeal filed before the appellate authority. The PIO acts as a medium for dissemination of an information by the "public authority" under the RTI Act. If he holds that the public authority is not required to disclose the information, he is required to defend his decision. The PIO can be subjected to a penalty under Section 20 of the RTI Act for non-disclosure of the information. The proviso to Section 20 provides that the PIO shall be given a reasonable opportunity of being heard before any penalty is imposed on him. Thus, the PIO is, in effect, a party litigant in an appeal or a second appeal which is filed 11 WP 478/2008 before the first appellate authority or the Information Commission and in certain circumstances is also personally liable to a penalty. Being so, we are not inclined to accept the submission of Mr. Nadkarni that the writ petition at the instance of the PIO against the decision of the State Information Commission is not maintainable and/or should not be entertained. Contentions of the parties 7. Mr. Vivek Tankha, learned Additional Solicitor General appearing for the petitioner in Writ Petition No. 237 of 2011 and Mr. Kantak, learned Advocate General appearing for the petitioner in Writ Petition No. 478 of 2008, submitted that the Governor was not a Public Authority under the RTI Act and as such was not required to disclose any information. Learned A.S.G. and the A.G. invited our attention to the definitions of "competent authority" in Section 2(e) and "public authority" in Section 2(h) of the RTI Act, and submitted that the "competent authority" and the "public authority" were two different authorities or bodies contemplated by the RTI Act. The expressions "competent authority" and "public authority" were mutually exclusive, and the "competent authority" cannot be regarded as the "public authority" within the meaning of Section 2(h) of the RTI Act. The President and the Governor, who are 12 WP 478/2008 included in the definition of "competent authority" are, therefore, not the "public authority" within the meaning of Section 2(h). The Governor is the appointing authority for the Chief State Information Commissioner as well as the State Information Commissioners and has an authority to remove any of the members of the State Information Commission. The Governor being the appointing, disciplinary and removing authority for the members of the State Information Commission, the State Information Commission (GSIC) has no authority to issue any order or direction to the Governor to disclose any information. Mr. Tankha further submitted that the President and the Governor were sovereign. The sovereignty vests in the President and the Governor, they being the heads of the Union and the State respectively. No authority, not even the Information Commission, has any jurisdiction or power to issue any direction to the sovereign, i.e. the President or the Governor, to disclose any information. Lastly, he submitted that the Governor enjoys an absolute immunity under Article 361 of the Constitution of India. The immunity enjoyed under Article 361 is not only personal but relates to his office and all his actions. The immunity granted under Article 361 is absolute and, therefore, no notice can be issued to the Governor, and no direction can be issued to the Governor to disclose any 13 WP 478/2008 information under the RTI Act. Mr. Tankha further submitted that the RTI Act contemplates the Information Commission to be a multi-member body. The GSIC at the time it passed the impugned order consisted of only the State Chief Information Commissioner, the only other State Information Commissioner having retired. As such, the State Chief Information Commissioner could not have passed the impugned order by acting singly. Mr. Kantak, learned A.G. supplemented the arguments of Mr. Tankha and further submitted that the Governor's report made to the President (through the Union Home Minister) was made in a fiduciary capacity and was exempt from disclosure under Section 8(1)(e) of the RTI Act. 8. Per contra, Mr. Nadkarni, appearing for respondent no.1 submitted that the President and the Governor are appointed by or under the Constitution of India (for short "the Constitution"). They are, therefore, the public authorities under Section 2(h) of the RTI Act. The President and the Governor being the public authorities, are amenable to the provisions of the RTI Act and are required to disclose any information when ordered by the PIO or in an appeal by the appellate authority or the Information Commission. The actions of the Governor have to be in consonance with the Constitution and the law. Under Article 14 WP 478/2008 159 of the Constitution, the Governor takes an oath of office to preserve, protect and defend the Constitution and the law. The Governor is, therefore, bound by the law including the RTI Act. The fact that the Governor is an appointing as well as disciplinary authority of the PIO, the appellate authority as well as the State Information Commissioners, does not make him immune from disclosing information ordered by any of them in accordance with the RTI Act. He is bound to comply with the orders passed under the RTI Act and give access to the citizen of the information, if so ordered. So far as the President is concerned he may represent to the external powers India as a sovereign country. He represents the external sovereignty. However, there is nothing like internal sovereignty and the President and the Governor are bound by the Constitution and the law. India being a democracy, the real sovereignty vests in the people of India and not in the President or the Governor, as the case may be. The concept of "King" being sovereign and the sovereignty being vested in the King is not applicable in case of a democracy where the people are sovereign and the President or the Governor are only titular heads. As regards the immunity conferred under Article 361 of the Constitution is concerned, it is only a personal immunity given to the Governor. The personal immunity conferred by Article 361 of the Constitution extends to 15 WP 478/2008 an immunity from being prosecuted and immunity from civil liability in person. The immunity does not relate to a State action or an action taken by the President or the Governor in their respective official capacities as the President or the Governor, in exercising functions of the State. The official actions of the President and the Governor are justiciable and have been held to be so by the Supreme Court. Mr. Nadkarni countered the argument of exemption under Section 8(1)(e) of the RTI Act by submitting that the relationship between the President and the Governor was not fiduciary. The report of the Governor to the President (through the Home Minister) under Article 356 of the Constitution was made in performance of a constitutional duty and not in a fiduciary capacity. 9. In the light of the submissions of the parties, the following points arise for our determination: (1) Whether the Governor is a "public authority" within the meaning of Section 2(h) of the RTI Act? and whether by reason of being included in the definition of "competent authority" he stands excluded from the definition of "public authority" under the RTI Act? 16 WP 478/2008 (2) Whether the Governor is a sovereign and being sovereign, no direction can be issued to the Governor for disclosure of any information under the RTI Act? (3) What is the extent of immunity enjoyed by the Governor under Article 361 of the Constitution of India? Whether in view of such immunity, no direction can be issued and no order can be passed under the RTI Act, which has an effect of requiring the Governor to disclose any information under the RTI Act? (4) Whether the information sought for is exempt from disclosure under Section 8(1)(e) of the RTI Act? (5) Whether the GSIC, which had become a single member body on account of retirement of one of the two members constituting it when it passed the order dated 18th March 2011 (impugned in W.P. No. 237 of 2011), could not have passed it in the absence of a second member? 17 WP 478/2008 Point No.1 Whether the Governor is a "public authority" within the meaning of section 2(h) of the RTI Act? and, whether by reason of being included in the definition of "competent authority" the Governor stands excluded from the definition of "public authority" under the RTI Act? 10. In order to decide the question, it is necessary to refer to the definitions of the "competent authority" and the "public authority" as given in the RTI Act, which read as under: 2(e) " competent authority" means- (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the 18 WP 478/2008 Constitution; (v) the administrator appointed under article 239 of the Constitution; 2(h) "public authority" means any authority or body or institution of self- government established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; 11. Mr. Tankha, learned ASG and Mr. Kantak, learned A.G. submitted that the expressions "competent authority" and "public authority" were separately defined under the Act. There can be no overlapping between the two authorities. Whoever is the "competent authority" under section 2(e) of the RTI Act cannot be the "public authority" and whoever is the "public authority" under section 2(h) of the RTI Act cannot be the "competent authority". Since the two expressions are different, 19 WP 478/2008 if there were to be any overlapping between the two, the Legislature would have specifically said so in the definition itself. If the competent authority was to be included in the definition of "public authority", nothing prevented the Legislature from saying so by adding one more clause to sub- clauses (a) and (d) and to include the competent authority within the definition of "public authority". Mr. Kantak also drew our attention to section 8 and in particular clauses (d) and (e) thereof. Section 8(1) of the RTI Act, insofar as it is relevant for our consideration, is quoted below: "8. Exemption from disclosure of information - (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) ... (b) ... (c) ... (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public 20 WP 478/2008 interest warrants the disclosure of such information;