KISHAN CHAND JAIN vs. UNION OF INDIA

2023INSC741 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No. 990 of 2021 KISHAN CHAND JAIN ....PETITIONER(S) VERSUS UNION OF INDIA & ORS. ...RESPONDENT(S) J U D G M E N T PAMIDIGHANTAM SRI NARASIMHA, J. 1. This Writ Petition under Article 32 of the Constitution of India filed by way of a public interest litigation seeking multiple reliefs, running into three pages, the gist of which is only for a direction to implement the mandate of Section 4 of the Right 1 to Information Act, 2005. As the prayer is only for implementing the various obligations enlisted under Section 4, it is necessary to reproduce the Section for ready reference: “4. Obligations of public authorities- (I ) Every public authority shall— (a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a Signature Not Verified Digitally signed by Deepak Singh Date: 2023.08.18 17:18:29 IST Reason: 1 Hereinafter referred to as ‘Act’ 1

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maintenance of all public records, duly catalogued and indexed for easy accessibility of the information; (b) publishing particulars of the organisational structure, functions and duties of officers, procedures that are followed for decision-making, salary structure, budget allocation, publication of facts relating to policies and announcements which includes providing reasons for quasi- judicial decisions. Sub-section (2) mandates the public authority to take steps for providing information under clause (b) of sub-section (1) suo motu and further to disseminate the said information for easy accessibility to the public. The scope 3 and ambit of Section 4 has already been considered by this Court in a number 2 of decisions. 3. We may note the observation of this Court in just one of the cases, namely Institute of Chartered Accountants of India v. Shaunak H. Satya and others (2011) 8 SCC 781 :

2 Central Board of Secondary Education and another v. Aditya Bandopadhyay and others ( 2011) 8 SCC 497, Institute of Chartered Accountants of India v. Shaunak H. Satya and others (2011) 8 SCC 781, Verhoeven, Marie -Emmanuelle v. Union of India and others. (2016) 6 SCC 456 and Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2020) 5 SCC 481 4

authorities under Section 4, as elucidated by this Court, we may now refer to the prayer made by the petitioner in the Writ Petition. The writ petitioner seeks a direction: (a) to ensure that public authorities comply with the mandatory suo motu disclosures under Section 4 on a proactive basis; (b) to ensure that website disclosures of public authorities are complete, easily accessible as required by Clause No. 2.2 of the O.M. dated 07.11.2019; (c) to ensure compliance of proactive disclosure package audited by third party under Section 4 of the Act read with Clause 4.4 of O.M. dated 07.11.2019; (d) to appoint senior officer as nodal officer for being accountable for compliances with respect to proactive disclosure guidelines as per Clause 5.1 of the O.M. dated 07.11.2019; (e) direct Central Information Commission/State Information Commissions to examine third party audit reports as per Clause 4.5 of the O.M. dated 07.11.2019; (f) to ensure that details of disclosure guidelines are reflected in the Annual Report as per Clause 6.1 of the O.M. dated 07.11.2019; and (g) to send ‘Action Taken Report’ to the concerned Information Commission as per Clause 4.3 of O.M. dated 07.11.2019. 5. In other words, the prayers in the Writ Petition are for implementation of Section 4 of the Act, coupled with the instructions for its execution as provided in the O.M. dated 07.11.2019. 5 6. Union of India has filed a ‘Note on Submissions’ explaining the steps that have been taken for implementation of the statutory mandate of Section 4. We will refer to some of these before giving necessary directions. 7. In order to implement the provisions of the Act, the Department of Personnel and Training constituted a Task Force on 06.05.2011 to improve quality and quantity of disclosure contemplated under Section 4. Pursuant to the report submitted by the Task Force, the Department issued certain Guidelines through its O.M. dated 15.04.2013. These guidelines relate to various issues including suo motu proactive disclosures under Section 4 and also to put in place a mechanism for compliance and monitoring. 8. As per the Guidelines each Public Authority must undertake the following steps:

6 9. It is relevant to refer to Clause 4 of O.M. dated 15.04.2013 which deals with the compliance mechanism:

7 10. The ‘Note on Submissions’ discloses that the Department continued to follow the mandate of Section 4 and sought compliance of the Guidelines by issuing further O.M.’s such as O.M. issued on 10.12.2013, 22.09.2014 and 09.07.2015. 11. Proceeding further, in its endeavour to make information more accessible, the Department constituted two more Committees which made recommendations for effective implementation of Section 4. The first Committee headed by Shri A. N. Tiwari, CIC (Retd) made recommendations with respect to (a) making online access to information more user-friendly and (b) setting up of grievance redressal mechanism, amongst others. These recommendations were accepted by the Department vide O.M. dated 29.06.2015. 12. The second committee headed by Dr. Devesh Chaturvedi, former Joint Secretary also made certain recommendations and some of them were accepted through O.M. dated 30.06.2016. Some of the recommendations that were accepted relate to (a) setting up of Consultative Committees by public authority for systematic and regular interaction with its officials and to advise public authorities on information which can be uploaded suo motu , (b) setting up of Information and Facilitation Centres to educate citizens about information available, (c) providing searchable and retrievable database of information on the website of the public authorities; and importantly (d) to undertake transparency audits by training institutes under the Ministry/Department/Public Authority. 13. The Note also indicated that by O.M. dated 15.10.2019, the Department relaxed the audit criteria by allowing the public authorities to give the transparency audits 8 conducted by any Government Training Institutes, i.e., in cases where there is no institute existing in the Ministry/Department/Public Authority. 14. As many Central Authorities faced difficulties on account of, (a) substantial difference in the audit cost charged by different auditing training institutes, (b) shortage of manpower/adequately trained manpower, and (c) pre-engagement of the training institute with its scheduled training activities, a further relaxation through O.M. dated 20.09.2022 was given as per which the task of transparency audits was permitted to be given to any Government Training Institute by the Ministry/Department/Public Authority under the Central or State Governments. 15. It is clarified that if a Training Institute is in itself a public authority, then it may give its audits conducted by Government Training Institute (O.M. 07.09.2021). The Note also states that the department issued O.M. dated 14.09.2022 directing all Ministries/Departments/Public Authorities to (a) nominate Training Institute for third party audit; (b) furnish other requisite details to the CIC as per the Exhaustive Guidelines issued vide OM dated 07.11.2019; (c) adhere to the timelines set by the CIC for conducting transparency audits; and (d) observe the earlier guidelines issued vide OMs dated 13.04.2013 and 07.11.2019. 16. On 07.11.2019, the Department of Personnel and Training issued an O.M. reiterating the 15.04.2013 Guidelines. Clause 4.4 was revised in the following terms: “4.4 Each Ministry/Public Authority should get its proactive disclosure package audited by third party every year. The audit should cover compliance with the proactive disclosure guidelines as well as adequacy of the items included in the package. The 9

17. It is important to extract the ‘present status’ of compliances as indicated in the Note filed on behalf of Union of India. Para 17 to 20 of the affidavit is as follows:

disclosed that only 33% of the public authorities have got transparency audits conducted in the last four years. It is stated that the poor implementation of third- party audit is adversely commented upon even by the Department in its O.M. dated 14.09.2022. It is further averred that apart from the poor implementation 10 of third-party audit, 33% of public authorities which had their transparency audits conducted performed badly, clearly evidences that quality and quantity of proactive disclosure were not in accordance with Section 4 of the Act. 19. From the information made available to us, one thing is evident. The system needs the concerned authority’s complete attention, followed by strict and continuous monitoring. It is in this context that the functioning and duties of the Central and State Information Commissions assume utmost importance. 20. It is necessary to take note of the statutorily incorporated ‘monitoring and reporting’ mechanism in section 25 of the Act. This is an important feature of ‘accountability’ of statutory authorities.

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collective responsibility of the Government to the Legislature under Article 75(3) or 164(2) of the Constitution. At the beginning of the chain is the citizen exercising her right to information. The Public Authority obligated to provide the accountable information is to the Department. The Department, shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the CIC or SIC (see Section 25(2)). The CIC or SIC shall then prepare a ‘Report’ on the implementation of the provisions of the Act during the year and forward a copy to the appropriate Government (see Section 25(1)). The ‘Report’ prepared by the CIC or SIC is mandated to comprise all details specified in Clauses (a) to (g) of Section 25(3). The Central or the State Government shall cause a copy of the Report of the CIC/SIC be laid before Parliament/Legislative 12 Assembly (Section 25(4)). It is then for the House, representing the will of the people, to ensure that the confidence reposed by it in the Council of Ministers (Government) is affirmed. Thus, the circle of representative democracy connects supremacy of the Parliament with the right of the citizen by ensuring that the State performs its obligations. This is the primary principle of accountability. 22. Power and accountability go hand in hand. While declaring that all citizens shall have the ‘right to information’ under Section 3 of the Act, the co-relative ‘duty’ in the form of obligation of public authorities is recognized in Section 4. The core of the right created under Section 3 in reality rests on the duty to perform statutory obligations. Public accountability is a crucial feature that governs the relationship between ‘duty bearers’ and ‘right holders’. Recognizing the importance of accountability as a measure of administrative law, this Court in Vijay Rajmohan 3 v. CBI , held as follows:

3 (2023) 1 SCC 329 13

between principles of collective responsibility and Government accountability, this Court held:-

Information Commissioners are also given the power to recommend steps which the public authority ought to take in implementing the Act. Sub-Section (5) of Section 25 is in the following terms: “(5) If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying 4 (2018) 8 SCC 501 14

Section 3 in the context of the obligations of public authorities under Section 4, we are of the opinion that the purpose and object of the statute will be accomplished only if the principle of accountability governs the relationship between ‘right holders’ and ‘duty bearers’. The Central and State Information Commissions have a prominent place, having a statutory recognition under Chapters III and IV of the Act and their powers and functions all enumerated in detail in Section 18 of the Act. We have also noted the special power of ‘Monitoring and Reporting’ conferred on the Central and State Information Commissioners which must be exercised keeping in mind the purpose and object of the Act, i.e., ‘to promote transparency and accountability in working of every public authority’. 26. For the reasons stated above, we direct that the Central Information Commission and the State Information Commissions shall continuously monitor the implementation of the mandate of Section 4 of the Act as also prescribed by the Department of Personnel and Training in its Guidelines and Memorandums issued from time to time. The directions will also include instructions under O.M. dated 07.11.2019 issued by the Department. For this purpose, the Commissioners will also be entitled to issue recommendations under sub- Section (5) of Section 25 to public authorities for taking necessary steps for complying with the provisions of the Act. 15 27. The Writ Petition (C) No. 990 of 2021 is disposed of with the direction to the Central Information Commission and the State Information Commissions to ensure proper implementation of the mandate of Section 4 of the Act, by following the directions as indicated above. 28. There shall be no order on costs. ……..……………………………….CJI. [Dr Dhananjaya Y Chandrachud] ……………….………………………….J. [Pamidighantam Sri Narasimha] ……………….………………………….J. [J.B. Pardiwala] New Delhi; August 17, 2023 16