Central Information Commission issues show-cause notices to the authorities to disclose vital information on creation of Aarogya Setu Application.

The Central Information Commission on 27th October 2020 issued show-cause notices to the Central Public Information Officers (CPIOs) of the Ministry of Electronics and Information Technology (MeitY), National Informatics Centre and National E-Governance Division (NeGD) to show reasons as to why penalty u/s 20 of the Right To Information Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply on an RTI application related to Aarogya Setu App. The statement comes after the Ministry and NIC were slammed by the CIC over their reply to an RTI, stating that they did not have any information about the “creation” of the Aarogya Setu application promoted by the government to contain the spread of COVID-19. 

The development comes in a complaint filed by one Saurav Das, stating that the relevant authorities had failed to furnish information about the process of creation of the App and other information related thereto.

 Information Commissioner Vanaja N. Sarna pointed out that the website of the application mentions that the content on it is “owned, updated and maintained” by MyGov and MeitY, and directed the CPIO of the Ministry to explain in writing why they did not have the requisite information.
Show-cause notices have been issued to S.K. Tyagi, Deputy Director and CPIO, D.K. Sagar, Deputy Director, Electronics, and R.A. Dhawan, Senior General Manager (HR and Admn) and CPIO, NeGD. The Commission directs the above-mentioned CPIOs to appear before the bench on 24.11.2020 at 01.15 pm to show cause as to why action should not be initiated against them under Section 20 of the RTI Act.

FREE VACCINE PROMISE NOT A VIOLATION OF MODEL CODE OF CONDUCT

Pursuant to a direction of the Hon’ble Supreme Court, the ECI in 2013 framed certain guidelines for election manifestos of political parties. These guidelines were incorporated as Part VIII of the Model Code of Conduct and they are applicable from the date a political party issues its manifesto.

Firstly, as per the guidelines the manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and shall be consistent with the letter and spirit of other provisions of Model Code.

Secondly, in light of the Directive Principles of State Policy enshrined in the Constitution that enjoin upon the State to frame various welfare measures there can be no objection to the promise of such welfare in the election manifesto. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.

Lastly, in interest of transparency, level playing field and credibility of promises, it is expected that manifesto also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.

Advocate Saket Gokhale filed a petition on 22^nd October before the Election commission of India requiring the commission’s attention towards the comment made by the Bharatiya Janata Party’s leaders which promised free Covid-19 Vaccine to all the people of Bihar. 

The petition highlighted that the statement was not made by the leaders of BJP polling in Bihar but by the Union Minister of Finance Smt. Nirmala Sitharaman, which was objectionable and misleading. Secondly, the petition objected to the action of posting the comment via twitter from the official BJP handle.

The main ground of the petition was that the statement made by the political party is in ignorance of the Model Code of Conduct and of Article 14 of the Constitution of India since each and every state and every individual therein is equally entitled to access the vaccine. The petition stated that in the absence of any official policy by the Union government, such promises are baseless.  

Whereas, the political party’s reply to it stated that, since public health being a state subject the state governments can decide the course of action and hence make promises for the same.  

Further, in reply to this petition the Election Commission on 28^th October waived the objections and held that the statements and promises made by the party do not violate any code of conduct specifically those mentioned above. Hence the Election Commission of Indian disposed of the petition. 

(Food for thought- What truth will the above-mentioned statement hold for a common man’s understanding and is it likely to exert undue influence on people? – will be added in the slides) 

WHY ARE STATE GOVERNMENTS WITHDRAWING ‘GENERAL CONSENT’ FOR CBI INVESTIGATIONS?

The Central Bureau of Investigation (CBI) is constituted under the Delhi Special Police Establishment Act, 1946 and its jurisdiction to investigate primarily extends to the Union Territories as per Section 2 of the DSPE Act but the same can be extended by the Central government under section 5 of the act to the states, given the state government has given their general consent under Section 6 of the act. The state governments can through a notification under section 6 withdraw their consent but it will only have a prospective effect and will not affect the ongoing investigations. After which for CBI to investigate new matters within a state, it will have to demand a case specific consent and when denied that consent too, it can approach the Courts for carrying out the investigation. 

On 21^st October, the Maharashtra Government revoked its general consent under Section 6, the purpose behind the same was to protect the powers vested with the local state police and preserve the authority of state government. A few months ago, the CBI took over the Sushant Singh Rajput suicide case and the drug case. Recently, in the TRP scam case, the Mumbai police is already doing an investigation but the CBI has accepted an FIR in Uttar Pradesh based on a complaint for investigating the TRP scam. 

As per the procedure, if the state government has revoked its general consent and is not allowing a case specific investigation by CBI either, and if the case is partly in two or more states then the CBI can register the case in one state and seek assistance from the other state government. Similarly, in the TRP scam case one of options with CBI is to seek assistance of Maharashtra government, since the case is on a related subject matter. 

Maharashtra Government’s decision makes it the 5th state to have withdrawn the consent. In the past, Andhra Pradesh, West Bengal, Chhattisgarh and Rajasthan too have taken the same step. The key reason behind this is that the Central agency has on several occasions been alleged of misuse for “political purposes” and corruption. It has also been accused of specifically targeting the central government’s political rivals. For example, AP government’s move is considered as a consequence of the political tension between BJP-led Centre and Telugu Desam Party and Income Tax raids that were instituted against several leaders of the latter party. Similar instances were observed in the other states too. Formerly the Apex Court observed in the famous Coal scam case, the CBI as a “caged parrot” and “its master’s voice” 

Hence the revocation of consent can in certain instances be in the state’s interest, whereas in other cases it might not be in the people’s interest, who may demand interference by an independent agency.

VODAFONE WINS AGAINST GOI- Arbitration Suit

Vodafone International Holdings BV v. India (PCA Case No. 2016-35)

Vodafone in 2007 acquired 67% stake in an Indian company named ‘Hutchison Whampoa ltd’ The Indian revenue authorities imposed tax on the same despite the fact that the transaction was an offshore transaction and among two non- residents. The Indian revenue authorities levied approximately Rs. 20,00 crore capital gains tax on Vodafone. 

The issue raised was regarding the jurisdiction of the Indian Revenue authority to perform such actions. The action taken by the authority was challenged before the Supreme court of India in Vodafone International Holding (VIH) v. Union of India (UOI).  The judgement favoured Vodafone after which there were attempts of mediation among the parties. Failure of which led to arbitration suits among the parties in 2014. 

Vodafone claimed that the action taken by the Government of India was violative of fair and equitable treatment as stated in Article 4 of India- Netherlands Bilateral Investment Treaty. 

And the Government claimed that the new tax reform- the Finance Bill, 2012 which came after the SC’s verdict allowed the addition of explanation in Section 9 of the Income Tax Act included such transactions and the same ought to have a retrospective effect on the deals.

As of now, the treaty stands terminated. The Permanent Court of Arbitration, Hague at last declared the award in favour of Vodafone. The government of India has to not only pay the company a huge amount of compensation but also 60% of the legal costs unless the government opts for further appeal.

Effects of the Vodafone – India case

(This is for another short post- don’t merge with above)

India’s Bilateral Investment Treaties with other countries are in danger since the recent arbitral award will attract other countries/parties to invoke the  ‘fair and equitable treatment’ (FET)  clause.  

This is to the extent that any law imposed by India amounts to violation of the FET clause. For instance the award will be relied on in the disputes in the following BITs

1. Russia-India BIT
2. Australia-India BIT