Shri Sandeep Garg v. Ministry Of Home Affairs (Mha) .

By an application of 30.8.06 Shri Sandeep Garg applied to the CPIO, Ministry of Home Affairs seeking the following information: Please provide me information regarding the refusal of prosecution sanction against Capt. Satish Sharma, Ex. Minister of Petroleum. Please give details regarding charges leveled against him by the CBI and reasons for refusal of permission for prosecution. To this he received a reply from Ms. Rita Acharya, Dy. Secretary, Govt. of India, MHA dated 26.9.06 refusing the information as exempt u/s 8(1) (b) of the RTI Act since the matter was before the Honble Supreme Court in Interlocutory application No. 10 of 2005 in WP (Civil) No. 26 of 1995 which the court has admitted for hearing. Shri Garg them moved his first appeal on 30.10.06 contesting such exemption. But by an order of 15.2.07 Shri A. K. Srivastava Jt. Secretary and First Appellate Authority MHA after detailed examination upheld the decision of the CPIO on the following grounds:

(i) A Charge-sheet carrying the charges is filed by the CBI in a court of law after receiving the sanction for prosecution of the person concerned. Since the sanction in the present case was not granted by the Government of India, the stage is filing charge sheet by the CNI had not reached.

(ii) The matter is at present before the Honble Supreme Court in Interlocutory application No. 10 of 2005 in Writ Petition (Civil) No. 26 of 1995 which the court has admitted for hearing. Until the matter is decided by the Honble Supreme Court, it may tantamount to contempt of court is the grounds for taking decision already taken by the Government which are before the Honble Court for review, are intimated to you. It will not be possible to supply to you the requisite details in regard to the above case as per section 8(1) (b) of the RTI Act, 2005.

(iii) The inspection of the relevant file dealing with the above mentioned case also cannot b allowed for the reasons stated above. Appellants prayer before us then is as below:

a) An order directing the PIO to provide the requisite information at the earliest.

b) That the PIO & its appellate authority may be suitably punished to set an example before other officers who are in a habit of taking arbitrary and partisan decisions for extraneous considerations and maliciously deny the information to the appellant citing vague sections causing immense hardship and mental agony to the applicant. In response to the appeal notice, Shri K. Skandan, Jt. Secretary, MHA in his letter of 14.1.08 has stated that: The issue of sanction for prosecution of Capt. Satish Sharma was examined in the Ministry in consultation with the Department of Legal Affairs and a decision was taken by the Government of India not to grant sanction for prosecution of Capt. Satish Sharma. He has also submitted as follows: it may be seen that when the applicant initially sought for the information from CPIO on 30-8-2006 and went on appeal to the Appellate Authority on 3-10-06, the Interlocutory Application No. 10 of 2005 in CWP No. 26 of 1995 was pending before the Supreme Court. Hence the information was denied u/s 8 (1) (b) of the RTI Act. Now, since the Interlocutory Application filed by the Common Cause and the main Civil Writ Petition No. 26 of 2005 have been disposed of, this Ministry, does not have any objection to Shri Sandeep Garg inspecting the file in which Capt. Satish Sharmas case was processed1. In his rejoinder Shri Sandeep Garg, appellant, has however submitted that it is not the inspection of the file alone which he has sought but also details

1 Emphasis ours regarding the refusal of prosecution sanction against Capt. Satish Sharma, former M.O.S. The appeal was heard on 29.2.08. Respondents are agreeable to providing the information sought. Appellant Shri Sandeep Garg on the other hand has submitted that he has suffered considerable mental agony as he has himself been accused in several CBI cases, had the information sought been provided to him earlier, this would have been of assistance to him and relieved his trauma. However, he had no monetary loss or detriment, which he could report for compensation u/s 19(8) (b) The key issue, therefore, in this case is the application of Sec. 8(1) (b) to the information sought by appellant. DECISION NOTICE Sec.8 (1) (b) reads as follows: information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; CPIO in this case has refused the information sought on grounds that because the matter was in interlocutory before the Supreme Court of India, disclosure of this information will amount to contempt of Court. Appellant Shri Sandeep Garg has misquoted sec. 8(1) (b), in that he has quoted this sub- section as reading as follows: Information, the disclosure of which would prejudicially affect public safety & order, detection & investigation of an offence or which may lead to incitement to commit an offence o prejudicially affect fair trial or adjudication of a pending case However, Sec. 8(1) (b) specifically refers to contempt of Court whereas there is no such sub section of sec. 8(1) as quoted by appellant above in his second appeal. Section 8 (1) (b) therefore, exempts disclosure of information:

(i) which has been expressly forbidden by any court of law or tribunal; or

(ii) the disclosure of which may constitute contempt of court. It, therefore, follows that only that information which has been expressly forbidden by any court of law is exempted and mere pendency of a lis before a court does not signify its exemption. Thus, an explicit order from any court of law or tribunal forbidding publication of the information asked for is one of the prerequisite for application of Section 8(1) (b). The RTI Act 2005 does not per-se define as to what may constitute contempt of court. Section 2(a) (b) and (c) of the Contempt of Courts Act, 1971 defines as to what constitutes contempt of court in the following words:

2. Definitions: In this Act, unless the context otherwise requires: (a) 'Contempt of court' means civil contempt or criminal contempt. (b) 'Civil contempt' means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. (c) 'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. From the above, it is clear that whereas for the civil contempt, there has to be either

(i) willful disobedience of any judgment, decree or order; or other process of the court or

(ii) willful breach of an undertaking given to a court; the sine qua non of criminal contempt is publication of any matter or doing of any act which may either scandalize or lower the authority of any court, or interfere with the due course of any judicial proceedings or otherwise obstruct the administration of justice in any manner. Clearly, the facts of the instant case do not in any manner justify invoking of section 8(1) (b) of the RTI Act, 2005. On the substantive issue of disclosure of information, however, there is no dispute. Shri K. Skandan, Jt. Secretary MHA who is carrying the files with him in the hearing may open this for inspection as agreed to appellant Shri Sandeep Garg in the Offices of this Commission, after which he may carry the same back to MHA. Appellant Shri Sandeep Garg will then specify to CPIO the documents, copies of which he requires, which will be provided to him within ten working days of the date of issue of this Decision Notice. Since the response to the RTI application of Shri Sandeep Garg was made within the mandated time limit, no penalty will lie. However, the public authority will keep in mind our above directions in regard to invocation of contempt of court in future cases involving cases submitted to the Honble High Court and Supreme Court. The appeal is disposed of accordingly. Since appellant has submitted in the hearing that he seeks no other compensation for his psychological loss other than the psychological satisfaction of a clear ruling on the contempt of court issue, there will be no monetary costs. Announced in the hearing. Notice of this decision be given free of cost to the parties. (Wajahat Habibullah) Chief Information Commissioner 29.2.2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission. (Pankaj Shreyaskar) Joint Registrar 29.2.2008