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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Reserved)
Writ Petition No. 6993 (M/B) of 2009 PIL
National Alliance of People's Movements and another
versus
State of U.P. and others
And
Writ Petition No. 10875 (M/B) of 2011 PIL
Awadesh Kumar Tripathi
versus
State of U.P.
Hon'ble Pradeep Kant, J.
Hon'ble D.K.Upadhyaya, J.
(Delivered by Hon'ble Pradeep Kant, J.)
Heard Sri S.N.Shukla and Sri Amrendra Nath Tripathi, learned counsel
for the petitioners and Sri J.N.Mathur, learned Additional Advocate
General, for the State.
These petitions, in the nature of Public Interest Litigation, have
been filed challenging the two notifications issued by the State
Government, viz. notification no. 980/43-2-2009 dated 7th June, 2009
and 254/Chhappan-2008-15-05 dated 25th March, 2008.
By means of the notification dated 7.6.2009, his Excellency the
Governor of U.P., in exercise of the powers under sub-section (4) of
Section 24 of the Right to Information Act, 2005 (Act No. 22 of 2005),
read with Section 10 of the General Clauses Act, 1897 (Act No. 10 of
1897) and in supersession of Government Notification No. 966/43-2-2009
dated June 02, 2009 excluded certain works allotted to Confidential
Section-I of the Government of U.P from the purview of the Right to
Information Act, 2005 (Act No. 22 of 2005), hereinafter referred to as
the RTI Act, and by notification dated 25.3.2008, in exercise of
powers under sub-section (4) of Section 24 of 'The RTI Act' specified
the operation Unit and the Maintenance, Security and General
Administration Unit of the Civil Aviation Department of the State
Government and excluded them from the applicability of 'The RTI Act'.
The aforesaid notification dated 25.3.2008 reads as under:
"No. 254/LVI-2008-15-05
Dated Lucknow, March 25, 2008
WHEREAS the operation Unit and the Maintenance, Security and General
Administration Unit of the Civil Aviation Department of the Government
of Uttar Pradesh are the Security Organisations established by the
State Government as it inter alia functions to operate and maintain
the Government aircrafts for transport of the Ministers and high
functionaries of the State, requiring special precautions of thereof:
Now, THEREFORE in exercise of powers under sub-section (4) of section
24 of the Right to Info0rmation Act, 2005 (Act no. 22 of 2005), the
Governor is pleased to specify the said units i.e. the operation Unit
and the Maintenance, Security and General Administration Unit of the
Civil Aviation Department of the State Government to which the
provisions of the said Act shall not apply.
By order,
SHAILESH KRISHNA,
Pramukh Sachiv."
The notification dated 7.6.2009 reads as under:
"No. 980/43-2-2009
Lucknow: Dated: June 07, 2009
In exercise of the powers under sub-section (4) of section 24 of the
Right to Information Act, 2005 (Act No. 22 of 2005), read with section
10 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in
supersession of Government Notification No. 966/43-2-2009, dated June
02, 2009, the Governor is pleased to direct that the following works
allotted to Confidential Section-1 according to distribution of work
between Sections/ Departments of Uttar Pradesh Secretariat shall be
excluded from the purview of the said Act:-
1.Appointment of the Governor,
2.Appointment of Ministers/State Ministers/Deputy Ministers,
3.Code of Conduct for Ministers,
4.Providing materials for Monthly Demi Official letter to be sent to
the President of India on behalf of the Governor,
5.Appointment of Hon'ble Judges of the High Court.
Notification No. 966/43-2-2009, dated 02 June, 2009 of Prashasanik
Sudhar Anubhag-2, U.P. Government is cancelled with immediate effect.
By order,
(K.K.Sinha)
Principal Secretary."
In regard to the notification dated 7.6.2009, Sri J.N.Mathur, learned
Additional Advocate General very fairly conceded that the same could
not have been issued by the Governor in exercise of powers under
sub-section (4) of Section 24 of 'The RTI Act' and is, therefore, bad
in law.
Sub-section (4) of Section 24 of the RTI Act is reproduced below:
"(4) Nothing contained in this Act shall apply to such intelligence
and security organisations, being organisations established by the
State Government, as that Government may, from time to time, by
notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded under
this sub-section:
Provided further that in case the information sought for is in respect
of allegations of violation of human rights, the information shall
only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7, such
information shall be provided within forty-five days from the date of
the receipt of request."
The above provision does not give any authority to the State
Government to issue such a notification which does not fall within the
ambit of the aforesaid provision, that is to say, what can be excluded
from operation of 'The RTI Act' is certain 'organizations',
established by the State and not the 'works'. The notification dated
7.6.2009 is, therefore, per se illegal, without authority and void ab
initio.
So far as the notification dated 25.3.2008 is concerned, the same plea
has been raised by the counsel for the petitioners that it
transgresses the powers of the Governor conferred under sub-section
(4) of Section 24 of the RTI Act as the operation Unit and the
Maintenance, Security and General Administration Unit of the Civil
Aviation Department of the State Government, neither being
intelligence nor security organization established by the State
Government nor having been notified as such, cannot be exempted from
the provisions of 'The RTI Act'. To elaborate the aforesaid
submission, attention of the Court was drawn to the Second Schedule
under the RTI Act, where intelligence and security organizations have
been named, which stand exempted from the operation of 'The RTI Act',
but where also the proviso to sub-section (4) of Section 24 creates an
exemption, namely, giving of information pertaining to the allegations
of corruption and human rights violations, but the present
notification does not prescribe even any such exemption and rather, it
forbids any type of information being given by the aforesaid Units.
RTI Act itself excludes corruption and human rights violations from
the exemptions granted under 'The RTI Act' even in the intelligence
and security organizations, which have been named under the Second
Schedule.
Further argument is that the Operation Unit and the Maintenance,
Security and General Administration Unit of the Civil Aviation
Department of the State Government, are not independent security
organizations, but they are units of Civil Aviation Department of the
Government of U.P and that when the Civil Aviation Department itself
is not a security organization, its units cannot be taken to be
security organizations independently or as units of any security
organization.
In response, Sri J.N.Mathur, learned Additional Advocate General
submitted that it is not necessary that the entire organization should
be a security organization for the purposes of exemption under 'The
RTI Act', but there may be units in an organization itself which deal
with such matters and perform such functions, which require strict
security, therefore, can be exempted from the operation of 'The RTI
Act' by issuing notification in exercise of powers under sub-section
(4) of Section 24 of the Act. He submitted that the movements of the
Ministers and high functionaries of the State require special
precautions and security and giving information regarding their flight
schedule etc. cannot be made known to the public in general as the
same will put the security and safety of the high dignitaries to risk.
Justifying the action of the State Government, he further submitted
that by virtue of the Police (Uttar Pradesh Amendment) Act, 2001, the
expression 'civil aviation personnel' has been defined as follows:
"The expression 'civil aviation personnel' shall mean such officers
and employees of the Civil Aviation Department posted in the
maintenance, security and general administration wing of the Civil
Aviation Directorate, Uttar Pradesh immediately before the
commencement of the Police (Uttar Pradesh Amendment) Act, 2001, as may
be specified in this behalf by the State Government by notification,
and shall include any person appointed as a civil aviation personnel
after such commencement."
The consequence of the aforesaid definition and the inclusion of the
civil aviation personnel to the police force has been given in
sub-section (2) of Section 2-A of the aforesaid Act, which reads as
under:
"(2) On and from such date as the State Government may, by
notification appoint in this behalf, the entire civil aviation
personnel employed immediately before that date shall, for the purpose
of this Act, become members of a police force and shall be formally
enrolled in accordance with the provisions of section 8-A and any new
such members shall, thereafter, be appointed in such manner, as shall
from time to time, be ordered by the State Government:
Provided that any civil aviation personnel employed before the said
date may, by notice addressed to the Director General, Civil Aviation,
Uttar Pradesh served within a period of thirty days from the said
date, intimate his option not to become a member of the said police
force, and upon receipt of such notice, the post in the Civil Aviation
Department held until then by him shall stand abolished and his
services shall stand terminated and he shall be paid an amount
equivalent to his three months salary as compensation."
Sub-section (4) of Section 2-A, reads as under:
"(4) The civil aviation personnel shall discharge such duties as may
be specified by general or special orders of the State Government from
time to time pertaining to maintenance of aircraft belonging to, or
hired by, the State Government, security at the Airport at Lucknow or
at any other airport specified by a general or special order of the
State Government and other duties incidental thereto or connected
therewith."
Sub-section (4) aforesaid makes it very clear that the civil aviation
personnel shall discharge such duties as may be specified from time to
time pertaining to maintenance of aircraft belonging to, or hired by,
the State Government, security at the Airport at Lucknow or any other
airport specified by a general or special order of the State
Government and other duties incidental thereto or connected therewith.
This means that the maintenance of aircraft and the security of the
airport are the functions which are to be performed by the civil
aviation personnel. There cannot be any exclusion from the
applicability of the RTI Act otherwise by issuance of a notification
under sub-section (4) of Section 24 unless the matter relates to the
intelligence and security organizations, established by the State.
Even if the civil aviation personnel has been included in the police
force of the State, that will not be sufficient to exempt operation
Unit and the Maintenance, Security and General Administration Unit of
the Civil Aviation Department of the State Government, when the police
department itself is not exempted.
The State Government exercises delegated powers under the aforesaid
provisions of the Act; therefore, it cannot issue a notification which
runs beyond the scope of such delegation. In the case of State of
Bihar and another versus Bal Mukund Sah and others, (2000) 4 SCC 640,
the Apex Court has held that no rule or law made by the delegatee can
supersede or override the powers exercised or the law made by the
delegator of power, the sovereign legislature.
'The RTI Act' has been enacted to provide for setting out the
practical regime of right to information for citizens to secure access
to information under the control of public authorities, in order to
promote transparency and accountability in the working of every public
authority, the constitution of a Central Information Commission and
State Informations Commissions and for matters connected therewith or
incidental thereto. The basic object of 'The RTI Act' is to empower
the citizens, promote transparency and accountability in the working
of the Government, contain corruption and make our democracy work for
the people in real sense. It goes without saying that an informed
citizen is better equipped to keep necessary vigil on the instruments
of governance and make the government more accountable to the
governed. The RTI Act is a big step towards making the citizens
informed about the activities of the Government. Section 3 of 'The RTI
Act' talks about right to information and reads as under:
"3. Right to information.- Subject to the provisions of this Act, all
citizens shall have the right to information."
The impugned notification has not even been placed before the State
Legislature, which was the requirement under sub-section (5) of
Section 24 of the RTI Act and which says that every notification
issued under sub-section (4) shall be laid before the State
Legislature, which enables only the intelligence and security
organizations established by the State Government and specifically
notified as such and none else for exemption from the applicability of
the Act.
Right to information is a part and parcel of the Right to Freedom of
Speech and Expression as contained in Article 19(1)(g) of the
Constitution. 'The RTI Act' gives statutory safeguard to the Freedom
of Speech and Expression guaranteed under Article 19(1)(g), which
cannot be curtailed except with reasonable restrictions provided under
Article 19(2) of the Constitution, in the interest of sovereignty and
integrity of India, security of the State, friendly relations with
foreign State, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence only and the
impugned notification does not fall in any of the categories
enumerated under Article 19(2) of the Constitution. The reasonable
restrictions as envisaged under Article 19(2) of the Constitution
cannot be imposed by executive action and can only be done by duly
enacted law. (See Express Newspaper Pvt. Ltd. and others versus Union
of India (UOI) and others (1986) 1 SCC 133 (para 76), Bijoe Emmanuel
and others versus State of Kerala and others (1986) 3 SCC 615 (para
16), Romesh Thapper versus The State of Madras AIR 1950 SC 124 (para
10) and Kharak Singh versus The State of U.P. and others AIR 1963 SC
1295 (para 5). Therefore, the restriction imposed is excessive and
beyond the powers of the State, which cannot be done by issuance of
the impugned notifications.
Civil aviation department not being an intelligence or security
organization, established by the State, its operation Unit and the
Maintenance, Security and General Administration Unit cannot be taken
to be intelligence and security organizations established by the State
so as to bring them within the scope of sub-section (4) of Section 24
of 'The RTI Act'.
For the aforesaid reasons, the notification dated 25.3.2008 also
cannot be saved as it falls outside the scope of sub-section (4) of
Section 24 of 'The RTI Act'. However, any information relation to
security of airports or matters connected thereto, if stands exempted
under Section 8 of the RTI Act, can be refused but the information,
which is not covered by Section 8 of the RTI Act, cannot be denied.
It is also to be noticed that the impugned notification dated
25.3.2008 does not create any exemption with respect to information
regarding corruption and human rights violations in either of the
aforesaid units of the civil aviation department though under the
proviso appended to sub-section (4) of Section 24 of the Act, even the
intelligence and security organizations are not immune from giving
information regarding corruption and human rights violations. The
notification thus gives a blanket exemption with respect to
information regarding corruption and human rights violations, which is
in direct conflict with the provision contained in Section 24(4) of
'The RTI Act', hence cannot be saved.
The notification aforesaid exempts the operation Unit and the
Maintenance, Security and General Administration Unit of the Civil
Aviation Department of the State Government and does not say that this
exemption shall not be applicable in the matters of corruption and
human rights violations. This makes the notification bad and per se
illegal being grossly in violation of the provisions of the Act.
For the aforesaid reasons, the writ petitions are allowed and both the
notifications dated 7.6.2009 and 25.3.2008 (contained in Annexures 1
and 2 to Writ Petition No.6993 (M/B) of 2009) being invalid are hereby
quashed.
January 25th, 2012
LN/-
Judgment is pronounced under Chapter VII Rule 1(2) of the Allahabad
High Court Rules, 1952.
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