Public Documents as 3rd party documents under the RTI Act

CA Nikita , Last updated: 02 October 2007
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How can Public Documents under the Indian Evidence Act be treated as
3rd party documents under the RTI Act to deny its access-Rajib Gupta

I was always under the impression that the laws are made to infuse
discipline & serve the ends of justice & the underlying principle is
Public interest but then my experience tells a different story. My
experience says that the corrupt are well shielded by the system &
the corrupt officials fight tooth & nail so that the corruption
remains under wraps & they cannot be taken to task. When the RTI Act
was implemented then I thought that it would help the public at
large & instill fear in the wrong doers because now the wrongs could
be exposed & could be taken to task. However, it seems that the RTI
is rendered good only for obtaining a ration card or a passport.

The world calls us a corrupt nation & one of the top ratings in
corruption is enjoyed by the Customs department. Therefore, the
unwritten rule respected by the importers & exporters is that just
pay up & shut up. There is not to reason why, leave aside a
challenge because the Customs will hold you to a ransom by using
delays to your disadvantage. Therefore there is an easy way out, pay
up & secure a release instead of citing the law & bearing the brunt
of it. I find that a very few have courage to stand up & seek your
vested rights.

The case in point is that a request was given to the NCH, Mumbai
under the RTI Act for providing copies of the B/E Nos.256748 &
256746 pertaining to discharge tube mounted on shell cover, SCN &
adjudication orders passed by NCH, Mumbai, Submission made by the
departmental representative in the CESTAT etc. in respect of
decision No.2004(166) ELT 49 (Tri-Mumbai) in the CESTAT, WZB, Mumbai
in case of M/s. Philips India Ltd. Versus Commissioner of Customs,
Mumbai. The relevant CESTAT Order No. is A/132/2004-WZB/ C-1 dtd.
16.1.2004 in appeal No.C/429/2003. The request was made as early as
23.1.06. It was rejected specifying that the 3rd party has not
consented to give this information. The appeal was filed with the
first appellate authority & the decision was once again negative
based on the 3rd party protection. Thereafter an appeal was filed
with the CIC, New Delhi on 23.08.06. To my utter surprise, the CIC
upholds that the information related to the third parties denial is
justified.

In the appeal to the CIC, the following was brought to the notice of
the authorities:

1. The most significant point to note in this particular case is
that the law of the land Viz. The Indian Evidence Act, Section74 (as
amended) specifies in no uncertain terms that copies of B/E s; SCN;
Adjudication Order; Submission made by the departmental
representative (DR) in CESTAT & order of the Tribunal are Public
Documents therefore there is no reason to accept that the copies of
these documents cannot be made available when requested.

2. If we deny furnishing these documents then we are vitiating the
Indian Evidence Act or going against the law. It is very pertinent
to point out here that nowhere the learned Chief Commissioner, NCH
has denied this basic fact. Therefore, it is established beyond
doubt & as per the Act of Parliament that the documents being
requested by the applicant are public documents therefore no
privilege can be given to any party to deny with parting of these
documents. Since the documents called for are public documents
therefore objection, if any, raised by the importer is not tenable.

3. It is very pertinent to point out that if such privileges are
accorded in respect of specified public documents under the Indian
Evidence Act then this can only perpetuate corruption. The Customs
will not reveal the information available in public domain & the
importer will not part with it. Therefore, there is no way that
anybody can lay hands on the information legally & use the same to
expose corrupt practices or to seek justice on the same lines, which
is accorded to one of the beneficiaries. Thus the parties involved
can work on "you take care of me & I take care of you" approach &
continue with the wrongs perpetually.

4. It is very significant to point out here that if no wrong has
taken place then why the Customs & the importer have mis-
apprehension that they can be in trouble with the law. No appeal has
been filed against the decision of the CESTAT & the decision is
therefore absolute. It is very clearly pointed out that if there is
any information, which is not in the public domain, the same can be
obliterated. Though not required, it is very clearly specified that
the documents & information requested will be utilized in the case
of Roma International as acknowledged by the learned Commissioner
(Import) in his submission & it is absolutely clear that the request
for the information & documents is to secure justice. Now this
establishes in an incontrovertible manner that Public Interest will
be duly served if justice is imparted on the basis of the documents
being demanded. To secure justice on the basis of what is a settled
issue is a legal practice followed all over the world & serves the
best interest of public. It is said that even the law bends before
the justice. Therefore public interest plea cannot be used as a plea
against the information seeker as information/ documents are
requested to seek justice as per the laws of the land.

5. If the SCN/Adjudication orders are not public documents then
copies of these documents will not be marked to the publications for
publishing in the relevant sectoral publication. The various
publications do not publish the complete particulars of the SCN &
the arguments advanced by the litigants just because it is not
deemed necessary & there is paucity of space.

6. When these documents pertain to, levy of ADD or not, they cannot
contain any information, which is sensitive. If they contained that
kind of information then the presenter of that information including
Customs could have sought special dispensation to present that
information in the chamber of the judge in confidence so that
information is not leaked. {Please note that these documents can be
demanded by the Parliament of this country & cannot be refused.
(refer S 2 j of the RTI Act)}. Nothing of that nature has been
brought on record which proves that the disclosure can be harmful to
the Customs department or the importer & more so these documents are
specified as public documents therefore access to these documents
cannot be refused for securing justice & implementation of justice
is beyond question in terms of public interest.

7. The Indian Evidence Act confers a right on the citizens of this
country to obtain not only a copy but a certified copy of these
documents under S 76 of the act.

8. If the Customs department has a grouse or case against the Indian
Evidence Act then they can very well approach the Parliament & get
the law amended. However, till then the Indian Evidence Act needs to
be respected & copies of the requested documents be made available.

9. Under any circumstances, the learned authorities including the
commissioner/ chief commissioner & the CIC have no right to sit in
judgement & denounce/set aside what is laid down by the Indian
Evidence Act. Therefore the learned Commissioner is duty bound to
make certified copies of these documents available to the applicant
under the Act of Parliament. When the Indian Evidence Act provides
for these documents to be made available then the RTI cannot absolve
the learned Commissioner from this responsibility. The RTI is only
being used to ensure hat there is time bound disposal of the request
because under the Indian Evidence Act there are no time limits
stipulated & therefore the Customs officials are able to get away by
giving no reply & frustrating the attempts of the information
seeker.

10. It was vehemently stated that no special privilege can be
accorded to M/s. Philips India Ltd. in respect of the public
documents in possession of the Customs department. Specially the
documents such as SCN; Adjudication Order; Submission made by the
departmental representative (DR) in CESTAT & order of the Tribunal
because these are documents prepared/submitted/ used by a public
authority in the Public interest. Therefore according any privilege
to M/s. Philips India Ltd. defeats the very purpose of Indian
Evidence Act declaring these documents as public documents.

11. It was clarified that the called for documents will definitely
serve public interest because M/s. Philips has fought the ADD case &
also this case against the Customs therefore they know the best that
what is subject to Anti Dumping duty or not. In another case also,
the same item is imported by M/s. Roma International therefore what
benefit has been accorded to M/s. Philips should accrue to them
based on these public documents, which have been called for.
Therefore there is no reason to question that whether M/s. CESTAT or
for that matter the Chief Information Commissioner works in Public
Interest or not. The Public interest implementation by these bodies
is beyond question & if that purpose is aided by obtaining &
submitting certain public documents then the Public Interest is best
served.

12. It is evident that the authority in position is trying to keep
the veil of secrecy so that corrupt practices continue in an abated
manner. Under any circumstances, corrupt practices cannot be allowed
to be continued. It cannot be the case of the Customs department
that the documents called for are Public Documents under the Indian
Evidence Act but 3rd party documents under the RTI Act therefore
these cannot be given under the RTI Act.

13. Personal hearing was sought in this case before the decision is
given but the same was not allowed.

Now, therefore the decision raises the following points:

First, please permit me to quote the Indian Evidence Act:

Quote:

74. Public documents - The following documents are Public documents-

(i) Documents forming the acts, or records of the acts

(a) Of the sovereign authority,

(ii) Of Official bodies and the Tribunals, and

(iii) Of public officers, legislative, judicial and executive, of
any part of India or of the Commonwealth, or of a foreign country.

1. Public records kept in any State of private documents.

Amendment of section 74

43. In section 74 of the principal Act, in clause (1), the following
Explanation shall be inserted at the end, namely:-

"Explanation: - Records forming part of a case leading to a judgment
of a Court or an order of a public officer, if the order is
pronounced judicially, shall be deemed to be public documents."

THE INDIAN EVIDENCE (AMENDMENT) BILL, 2003

Unquote:

1. Can the Public Document be treated as 3rd party document &
special privilege accorded to one of the parties !!

2. Customs does not work on its own but works in public interest.
Similarly the Tribunal & the CIC work in public interest. Therefore,
documents called for securing justice by any of these implementers
of justice will serve public interest or not!!

3. Can you defy the Act of Parliament which lays down the law !!

4. Under the RTI, even the file notings are to be made available
then why we are not even giving the public documents!!

5. If this secrecy is allowed to continue, does it protect or combat
corruption!!

6. If the provisions of Indian Evidence Act are ignored then how can
the justice be imparted though at any stage, nobody has questioned
the veracity of the provisions quoted then what remedy is available
to the information seeker!!

7. If Personal Hearing is asked for then why the principles of
Natural Justice be violated!!

8. There is no reasoned order issued by the CIC's office i.e. you do
not know whether the facts have been taken on record & considered or
not.

9. Finally, are you wasting your time under the RTI Act!! Is RTI
good for obtaining a ration card or a passport only!!

The CIC in case of Forida Hoosenally's case -22/IC(A)/2006 upheld
that the Public Authority is required to adopt an open and
transparent process of evaluation norms and procedures for
assessment of tax liabilities of various categories of assesses and
every action taken by the public authority in question is in public
interest and therefore, the relevant orders pertaining to the review
and revision of tax assessment is a public action. Assessing a B/E
is an assessment order therefore it ought to have been released on
the same lines.

In effect, it is revealed that if we continue to deprive the
information dissemination then whatever law you may frame, no
purpose would be served & the corruption would continue unabashedly
perpetually. The law has to show the will to deliver results. When
the PM & the President of this country support this law, why the
bureaucracy should be afraid of implementing it. This may be one of
the last chances to really reform the nation, the question is will
we bite the bullet.