RTI & Office of Governor

By Prabhakar Timble
23 June 2011 20:30 IST

A petition is filed by the Governor of Goa before the Bombay High Court at Goa challenging the order of the Goa State Information Commission directing the Raj Bhavan to furnish information as sought by an RTI activist. The contention is that the Governor does not come under the ambit of the Right to Information Act. Another petition filed by Manohar Parrikar, leader of the Opposition for having denied information by the office of the governor is also pending before the High Court since 2008.

The office of the Governor is seeking exemption from the RTI Act on account of the immunity provided under Article 361 of the Indian Constitution which states that the governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done in the exercise and performance of those powers and duties.

It is submitted that the immunity afforded to the governor under the constitution cannot be construed as a privilege to withhold disclosure of information.  This immunity is personal to the Governor. This provision does not place the actions of the governor purporting to be done beyond the scrutiny of the courts. What the constitution establishes is the supremacy of the law and not of men, however high placed they might be. While Article 361 is to give personal immunity to the Governor, it at the same time reserves the right of any person to bring in appropriate proceedings against the government for any action taken by the Governor as the Head of the State.

Some provisions of the Constitution expressly provide powers to the Governor. There are implied powers flowing from the working of some other provisions. A few powers arise due to other enactments passed by the State Legislature which may provide powers to the Governor such as Chancellor of a university. It is pertinent to observe that all the powers exercisable by a Governor by virtue of his office can be exercised only under the advice of the Council of ministers, except in so far as the constitution expressly provides for exercise of individual discretion.  The same Article 361 also reserves the right of any person to bring in appropriate proceedings against the government for any action taken by the Governor as the Head of the State. The government would be liable under the name of Union of India or State even if the President or Governor is immune from judicial scrutiny.

The issue is whether the office of the Governor comes under the ambit of “public authority” as enunciated under the RTI Act.  Public authority is a repository of information. As defined in the Act, a "public authority" is any authority or body or institution of self government established or constituted by or under the Constitution; or by any other law made by the Parliament or a State Legislature; or by notification issued or order made by the Central Government or a State Government. Bodies owned, controlled or substantially financed by the Central Government or a State Government and non-Government organisations substantially financed by the Central Government or a State Government also fall within the definition of public authority.

The answer whether the office of the Governor comes under the purview of the RTI Act, has to be in the affirmative since the Governor is an authority established or constituted under the Constitution.  The obligations of a public authority are basically the obligations of the head of the authority, who, should ensure that these are met in right earnest. Reference made to public authority is, in fact, a reference to the head of the public authority.

However, certain type of information is exempted from disclosure under the RTI. The exemptions are well documented in the Act.  The exemptions are to protect interests related to sovereignty, integrity, security, friendly relations with States, privileges of Parliament and State Legislatures and selective cabinet papers and deliberations. This means that the office of the Governor does not get blanket immunity. It also means that an RTI query can be raised before the office of the Governor. The stand that the office of the Governor is not a “public authority” under the RTI Act fades and succumbs to public interest and democracy.

I am all for maintaining the dignity and prestige of the Head of the State, even knowing that many tenants at Raj Bhavan do not conduct themselves as per the dignified norms expected of them under the Constitution. To a large extent, the prestige depends on the dignitary. Whilst functioning in such   a chair of prestige, honour and dignity, the Governor should be susceptible and sensitive to public and the reformed laws like the RTI.  The privilege under Article 361 accorded to the Governor is consistent with public interest and status of the Governor. It is for this constitutional functionary to guard public interest by disclosure of information. A direction cannot and should not be issued to Governor but the incumbent should also not bring such a situation.

All constitutional authorities come under the definition of ‘public authority’ under the RTI Act. All such organs and institutions are accountable to the citizens of India. Even with respect to the judiciary, all other activities except judicial decision-making are subject to RTI. Judicial proceedings are conducted in open courts in full public view. Being a transparent process, the judicial function is rightly outside the purview of RTI.

Governors would be respected if they voluntarily toe the spirit of enactments such as the RTI. They should direct their officers to provide the information called for by citizens unless it is specifically exempted under the enactment. Filing appeals before the higher judiciary to establish immunity is akin to buying time. I would say that the time is ripe even to have a re-look at the privileges and immunities bestowed on Governors at the commencement of the Constitution.

Article 361 is immunity to President, Governor and Rajpramukh from being answerable and questioned by the Courts. The issue here is of disclosure of information under the RTI. The Governor can make the institution more sacred and exalted if the office has nothing to hide and conceal. The threat of frivolous demands exists for all public authorities, not only for the office of the Governor. It is submitted that the Governor is not answerable and cannot be made a party to the proceedings in a Court, but the office comes under the ambit of RTI Act like any other public authority.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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