Lt Governor answerable under RTI

A citizen sought for copies of a Lt Governor’s recommendation to the Union Cabinet or the President to dissolve the Delhi Legislative Assembly and copy of all the documents/records forming the basis of such a report. The PIO replied that the information cannot be provided in view of Section 8 (1)(c) of the RTI Act. What is the privilege that a Governor or President or Lt Governor can claim as protection to their documents, under law?

The Constitution has provided protection to advice given by President & Governor from inquiry in court, under Article 74(2) & Art 163(3) respectively, Article 163(3) Constitution says: “The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

This provision protects the advice given by the Council of Ministers, immunity from being probed into, but there is no prohibition against the disclosure. Following articles provided administration of Delhi Union Territory. Article 239(1) says: “Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”

Article 239 of the Constitution says that every Union Territory shall be administered by the President, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. Articles 239A, 239AA 239AB and 239B provide for local legislature or Council of Ministers in those Union Territories and deal with several aspects of administration in relation to the National Capital Territory, the Lieutenant Governor and Legislative Assembly.

The office of Lieutenant Governor, being a constitutional authority, should be a ‘public authority’. All the privileges and immunities that are associated with the high office of LG are provided and protected under the RTI Act through various exceptions. Article 239AA (1) provides for Lt Governor, it says: “As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor.

Article 239AA (4) says, “There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion…..”

Immunity available is only to the advice tendered to Governor or President by the Council of Ministers and that is not available to the Lt Governor of New Delhi UT.

LG as Public Authority
The office of Governor is a Public authority had been held to be a public authority by the Hon’ble High Court of Bombay at Goa in Public Information Officer, Joint Secretary to the Governor Vs Manoj Parrikar [Writ Petition No. 478 OF 2008]: Undoubtedly, the post of President and that of the Governor is created by the Constitution. …

The President and the Governor owe their existence to the Constitution. Being so, the President and the Governor are clearly covered by clause (h) of the definition of the "public authority" (15) ...the mere fact that the President and the Governor are authorities mentioned in sub-clauses (iv) of section 2(e) of the RTI Act, would not exclude them from the definition of "public authority."

The Bombay High Court fortified their view by a decision of the Special Bench (of Three Judges) of Delhi High Court, rendered in Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal, (L.P.A. No. 501/2009 decided on 12th January, 2010). In that case, the Chief Justice of India (who is the "competent authority" under section 2(e)(ii) of the RTI Act) was also held to be the "public authority". (Para 17)Governor is not sovereign; People are The Bombay High Court has answered an interesting question saying Governor is not sovereign and hence direction can be given to disclosure of any information under the RTI Act: “Jurisprudentially, in our view, the sovereign is that person or body of persons which receives habitual obedience from the bulk of a given society and does not himself habitually obey some other person or persons.

It has two aspects, viz. (i) a bulk of the society obeys him, and (ii) he does not obey any other. The sovereign has a power to make laws (legislative power), to enforce laws (executive power) and to decide any dispute or issue, including interpretation of the laws (judicial power). The preamble recognises the resolution of the people of India to constitute India into a sovereign socialist secular democratic republic.

It is in them that the sovereignty vests, the President being the mere formal head of the State……..what needs to be stated here is that save and except the immunity which is granted under Article 361, the President and the Governor do not enjoy any other sovereign immunity from disclosure of information under the RTI Act…... In this connection, a reference may be made to the exemption provided under Clause (a) of the Section 8(1) of the RTI Act which exempts disclosure of an information which would prejudicially affect the sovereignty and integrity of India, amongst other things.

The exemption against disclosure of an information under the RTI Act is restricted in respect of sovereign functions of the President or the Governor only to the extent it is protected under section 8(1)(a) of the RTI Act or under Article 361 of the Constitution and no more.”

The Supreme Court in Rameshwar Prasad and others (VI) Vs. Union of India and another, (2006) 2 SCC 1 observed: “179. … The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides.” Citing above case, the Bombay High Court stated that the PIO has to justify how exemption to disclosure would apply, and held:

“In our view the public authority, be it Governor or anybody else, would then be required to disclose the information. Any direction so issued, in our considered opinion, would not enjoy any immunity under Article 361 of the Constitution. The Governor, before assuming his office, takes an oath not only to preserve, protect and defend the Constitution, but also the law. He is bound by the oath taken by him.

If the law requires disclosure of an information and if it is so held by the PIO or the first appellate authority or the State Information Commission (which is the final appellate authority) in accordance with the RTI Act, in our considered view, the Governor by virtue of the oath of office he takes, is bound to obey the decision and disclose the information, or else, he would not be defending the law i.e., the RTI Act.”

This decision has been stayed by Hon’ble Supreme Court. On merits, it was decided that Governor is a public authority. On the similar lines, the LG is a public authority under the RTI Act. Factually speaking, the Office of LG is operating as a public authority under the RTI Act.

By:Madabhushi Sridhar