Section 17:

The state government through official gazette shall constitute State information commission which shall consist Chief information commissioner and other information commissioners as it deemed necessary and shall be appointed by the governor of the state. This is a statutory body which is constituted under section 15 of the Right to information act, 2005. The procedure for suspension and removal of State chief information commissioner or a state information commissioner is being inserted under section under 17 of the said act.

Section 17 of Right To Information Act, 2005.

17. (1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.

(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report ofthe Supreme Court on such reference.

(3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,—

(a) is adjudged an insolvent; or

(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or

(c) engages during his term of office in any paid employment outside the duties of his office; or

(d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or

(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.

(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.

Explanation:

Section 17 grands power to the governor of the state to suspend or remove State chief information commissioner or state information commissioner.

The governor of the state shall make a reference to the supreme court after due inquiry over commissioner.

There are 5 grounds mentioned under section 17(3) of this act on which a chief information commissioner or state information commissioner shall be removed or suspended.

1.    If the person becomes insolvent, or

2.    If the person has been convicted of an offence which involves moral turpitude according to the opinion of governor, or

3.    If the person, during the term of the office gets engaged in any paid employment outside the duties of his office, or

4.    According to the opinion of the governor, the person is not fit to continue the office because of infirmity of mind or body, or

5.    If it was found that the person has acquitted some financial or other interest which will affect his functions.

Section 17(1) states that subject to the above mentioned grounds, a person shall be removed from the office if misbehaviour or incapacity is proved on the order of governor of state after the report of the supreme court. The governor shall refer the matter to the supreme court.

Section 17(2) talks about the suspension of chief information commissioner or state information commissioner will be made by governor of state and if it deem necessary, governor can also prohibits commissioner from attending his officer at the time of Inquiry. Governor shall refer this it supreme court and on the receipt of report of supreme court the order of suspension shall be passed by governor of state.

Section 17(4) states what amounts to misbehaviour?

If the person is concerned or is interested in any type of contracts or agreements made by the government of state or on his behalf or if he has participated in any type of profits or any kind of emoluments or benefits are arising out of such participation. This amounts the person guilty of misbehaviour under section 17(1).

Cases:

Virender Singh Choudhary v. Union of India & Others[1]

In this particular case the question was arose in front of the Madhya Pradesh High Court that appointment of chief information commissioner or information commissioner is in violation of Article 14 of the Constitution of India. It was held that exclusion of certain categories are not unreasonable. Therefore, it was held that provisions for appointment for commissioner are not hit by Article 14 of the constitution of India.

Section 18

The chief information commissions have been allotted some powers and function which is being inserted under section 18 of the Right To Information Act, 2005.

18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,—

a)    who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in subsection (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

b)    who has been refused access to any information requested under this Act;

c)    who has not been given a response to a request for information or access to information within the time limit specified under this Act;

d)    who has been required to pay an amount of fee which he or she considers unreasonable;

e)    who believes that he or she has been given incomplete, misleading or false information under this Act; and

f)     in respect of any other matter relating to requesting or obtaining access to records under this Act.

(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.

(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:—

a)    summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

b)    requiring the discovery and inspection of documents;

c)    receiving evidence on affidavit;

d)    requisitioning any public record or copies thereof from any court or office;

e)    issuing summons for examination of witnesses or documents; and

f)     any other matter which may be prescribed.

(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.

Explanation:

section 18(1) says that it will be the duty of the commissions to receive and inquire into a complaint from any person. If the commissioner is satisfied that grounds on which the complaint is filed is reasonable, may initiate an inquiry. Further reasons were specified on which complaint can be filed by any person under this sub-section

a)    if no such officer has been appointed or because his application has not been accepted for information or appeal under this act.

b)    if any person who has been refused access to any information which was requested under this act.

c)    If any person who has not received any response for his information within the specified time limit under this act.

d)    If a person has been required to pay certain amount which is according to him is considered unreasonable,

e)    If a person believes or has reason to believe that he has been provided incomplete, misleading and false information.

f)     Any matter which is related for requesting or obtaining access to records.

The Madras High in V.V. Mineral Tisaiyanvilai District v. Director of Geology and Mining, Chennai[2], Under this case it was held that commission is a wider body with all powers of civil court.

The Supreme Court in Chief Commissioner v. State of Manipur[3], in this case it was held that the information request which is refused cannot be directed to be given by commission.

Public Information Officer v. Manohar Parrikar[4], apex court held that if the State Information Commission is not a multimember body. It cannot exercise its power under section 18 of the Act

Section 18(2) states that if the central information commission or state information commission is satisfied that reasons on which the complaint has been filed are reasonable, it may initiate an inquiry in that matter.

Section 18 sub-section 3, states that central information commission or state information commission shall be having same powers as vested in a civil court. Code of civil procedure, 1908 will be applicable in the matters listed below.

a)    When the person has been summoned and enforced the attendance and for giving oral or written evidence on oath and to produce the documents or things.

b)    Then person was required to discover and inspect documents.

c)    When the evidence on affidavit was received

d)    Requisition of any public record or copies form any court or office

e)    When the summons were issued for examination of witness or documents and

f)     Any other prescribed manner.

Section 18(4) of the said act states that in spite of anything inconsistent contained in any other acts, the commission may inquire any record,

·      To which the appeal lies

·      Record which is under the control of any public authority

·      The records will not be withheld from it on any grounds

Cases:

In the case of Shri Manjay Kumar Singh, v. The First Appellate Authority (RTI), Roorkee Uttrakhand[5], it was complained by an Applicant to the Central Information Commission that he did not receive any reply from the Central Public Information Officer on his RTI-Application. It is noted that the Complainant did not have an opportunity to go to the Appellate Authority and has directly approached the Commission with his complaint. In exercise of powers vested under Section 18(2), it was directed to the Appellate Authority to enquire into the allegations made by the Complainant and to pass an order after giving him an opportunity of being heard.

Section 19

19. (1) Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:

Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:

Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to—

a)    require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including—

      i.         by providing access to information, if so requested, in a particular form;

    ii.         by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;

  iii.         by publishing certain information or categories of information;

   iv.         by making necessary changes to its practices in relation to the maintenance, management and destruction of records;

     v.         by enhancing the provision of training on the right to information for its officials;

   vi.         by providing it with an annual report in compliance with clause (b) of subsection (1) of section 4;

b)    (b) require the public authority to compensate the complainant for any loss or other detriment suffered;

c)    (c) impose any of the penalties provided under this Act;

d)    (d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.

Explanation:

In sub-section 1 of section 19 of this act, it was stated that a person can appeal to the officer who is senior in rank to the central public information officer of state public information officer if he did not receive decision within specified in sub-section 1 or clause (a) of sub-section 3 of section 7, or if a person is aggrieved by the decision of information officer. The appeal can be filed within 30 days from the expiry of such period or from receipt of such decision.

Appeal can also be accepted after the expiry of such period if the said officer is satisfied that appellant was prevented by sufficient reasons from filing the appeal on time.

In sub-section 2 of section 19, it is stated that appeal should be made within a period of 30 days from the date of order by concerned third party if the appeal is made against the order by central information officer or state information officer in respect of order under section 11 to disclose third party information.

In sub-section 3 of section 19, it is stated that appeal should against the order under sub-section 1 of section 19 should be made within 90 days from the decision from the decision should have been made or was actually received. The appeal may be accepted after 90 days period if it was found that the appellant has sufficient reason for the delay.

In sub-section 4 of section 19, it is stated that if the decision of the appeal is related to information of a third party, then third party should be given reasonable opportunity of being heard.

In sub-section 5 of section 19, it is stated that in any appeal proceeding the onus to prove that the denial was justified will be upon the central or state commission information officer who denied the request.

In sub-section 6 of section 19, it is stated that the appeal under sub-section 1 or 2 shall be disposed with 30 days from the receipt or period not extending 45 days from the filing with recording the reasons for the same in writing.

In sub-section 7 of section 19, it is said that the decision of the central and state information commission shall be binding in nature.

In sub-section 8 of section 19 grants some powers to central or state information commission in its decision.

a)    To require to take steps to secure compliance with the provision of this act, including

                          I.         Providing access to information

                        II.         Appointing a central or state information officer

                      III.         Publication of certain documents or categories of information

                     IV.         Making necessary changes in relation to maintenance, management and destruction of records,

                       V.         Provision of training on the right to information for its officials,

                     VI.         Providing annual repot

b)    To require the authority for compensation of any loss or other detriment suffered

c)    To impose penalties provided under this act,

d)    To reject the application

In sub-section 9 of section 19, it is stated that notice for decision, including any right of appeal should be given by the central or state information commission to the complainant and the public authority.

In sub-section 10 of section 19, it is stated that the appeal shall be decided in accordance with the procedure prescribed in the act. 

Cases:

Mumbai v. Rui Ferriera[6], Bombay High Court in this case held that remedy available to person aggrieved is to file appeal in accordance with section 19 of the Act.

Sh. Uday Nath v. CPIO, Department of Post[7], in this case department of posts declined to furnish the information and also advised the applicant to the applicant to prefer an appeal directly to the commission on the ground that the decision has been taken at the highest level in the department. It was made clear by the commission that irrespective of at what level a decision is taken the procedure prescribed by the statute cannot be given a go by.

[1] AIR 2007 MP 26.

[2](2007)4 MLJ 394.

[3]AIR 2010 SC 864.

[4]AIR 2006 SCW 494.

[5] CIC/LS/C/2013/000083/RM.

[6]AIR 2012 Bom 1.

[7]ICPB/A-6/CIC/2006.