M/s Indian Synthetics Rubber Private Ltd. (ISRPL) and the Reliance Industries Limited (‘RIL’) (‘the Complainants’) filed a complaint before the Anti-Dumping Authority, the Directorate General of Anti-Dumping (‘DGAD’) on dumping of Styrine Butadine Rubber (‘SBR’)of 1500 and 1700 series from European Union, Korea RP, and Thailand, and resultant injury to the domestic industry. DGAD initiated an anti-dumping investigation, which finally led to imposition of anti-dumping duty.
After the investigation was initiated, one Mr. Arvind M. Kapoor (the ‘RTI Applicant’), a party to the anti-dumping investigation filed an RTI application to the Central Public Information Officer (‘CPIO’)/DGAD and sought information on the anti-dumping investigation. In query no. 3, the RTI Applicant had sought to know as under:
(3) When was the decision to initiate the Anti-dumping Investigation for levy of Anti dumping duties on the product taken by the Director General of Anti Dumping (DGAD); and also provide us a with a photo copy of the Note Sheet put up for approval by DGAD;
CPIO/DGAD provided almost all the information, however, copy of the aforesaid note sheet was denied on the ground that the note sheet being confidential cannot be provided. The RTI Applicant filed a RTI First Appeal. The First Appellate Authority (‘FAA’) too denied the note sheet stating that it comprised confidential information which could not be summarised into non-confidential version.
Aggrieved by the reply of the CPIO and the FAA, the RTI Applicant filed a second appeal to the Central Information Commission (‘CIC’). The CIC directed the CPIO to disclose the note-sheet[2] as sought at query no.3. Against this order of the CIC, the Union of India and the ISRPL (‘the Petitioners’) filed petitions before the Delhi High Court (‘DHC’) seeking quashing of the order of the CIC.
Issue before the DHC:
The issue before the DHC was to determine the question as to whether the Anti-Dumping Authority is obliged to provide information under the RTI Act when there is a complete framework governing, inter alia, supply of information in anti-dumping proceedings in the form of Anti-Dumping Rules, 1995 (‘the Anti-Dumping Rules’) under the Customs Tariff Act, 1975.
Submissions of the Petitioners before the DHC:
The Petitioners submitted that their only objection is in respect of disclosure of the photocopy of the note sheet which contains confidential information of ISRPL and RIL. They further submitted that the findings relating to imposition ofanti-dumping duty having attained finality, the RTI mechanism cannot be used for obtaining sensitive commercial data and confidential information concerning direct competitors of the RTI Applicant. If any information is to be sought, the RTI Applicant ought to have approached the Anti-Dumping Authority under Rule 7 of the Anti-Dumping Rules and not under the RTI Act.
Submissions of the RTI Applicant before the DHC:
The RTI Applicant on the other hand submitted that by virtue of Section 22 of the RTI Act[3], the RTI Act would prevail over the Anti-Dumping Rules and the Anti-Dumping Authority is under a legal obligation to provide the information sought by the RTI Applicant.
Analysis by the DHC:
DHC observed that the petitions raised important issues concerning the interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and Anti-Dumping Rules with the RTI Act and in order to make a decision in the matter, went on to examine and analyse the relevant provisions of General Agreement on Tariffs and Trade (GATT), Anti-Dumping Rules, RTI Act and other relevant and applicable judicial precedents.
- General Agreement on Tariffs and Trade (GATT)
DHC noted that under GATT, the authorities are permitted to treat the information, which could be commercially sensitive, as confidential and it is not to be disclosed to any third party, without permission of the party providing the information. GATT provisions, in fact, recognised the concept of confidential documents and information on the one hand and non-confidential summary on the other hand. Non-confidential summary is meant to ensure that requisite information is still provided to third parties to comply with the principles of natural justice while maintaining confidentiality of specific information. The ultimate discretion under Anti-Dumping Agreement is to be vested in the authority concerned to decide as to whether any information is to be disclosed or not.
- Rule 7 of Anti-Dumping Rules
Under Rule 7 of the Anti-Dumping Rules too, if any information is provided by any party to the Anti-Dumping Authority on a confidential basis and if the Anti-Dumping Authority is satisfied that it is confidential, then it is not to be disclosed to any party, without authorization of the party providing such information. To ensure that the crux of the said information is still made available to the concerned stakeholders, a non-confidential summary can be provided. If, the party providing the information contends that the said information is not susceptible of summary, then such party has to provide a statement of reasons as to why summarisation of the information is not possible. Under Rule 7(3), the Anti-Dumping Authority has the final say on deciding as to whether the request of confidentiality is warranted or not.
- Anti-Dumping Rules, a complete and self-sufficient scheme:
DHC opined that the anti-dumping proceedings by their very nature are proceedings which have national and international dimensions and also have an impact on the country’s economy, involve dealing with business sensitive and confidential information relating to a particular industry. The entire purpose of having a complete and self-sufficient scheme for disclosure of confidential information under the Anti-Dumping Rules would be defeated, if, persons who are participating in anti-dumping investigation are permitted to tangentially seek information under the RTI Act. The parties to an anti-dumping proceeding ought to take recourse to the Rules and Regulations provided in respect of that nature of proceedings. When the Anti-Dumping Rules themselves provide an exception to disclosure in view of the nature of the proceedings, the Court cannot allow the RTI Applicant to bypass the said barrier.
- Authorities under the RTI Act do not have the expertise:
In the context of anti-dumping proceedings and information disclosed therein, the Anti-Dumping Authority has to undertake a detailed enquiry into issues such as ‘competitive advantage’, ‘business sensitivity’, ‘productivity particulars’, ‘cost of raw materials’, ‘investments made’, ‘sales’, ‘market share’ etc. Italso has to examine whether there is good cause for disclosure and can also get non-confidential summaries prepared for the purpose of disclosure. All this exercise is to be undertaken by the Anti-Dumping Authority having expertise in the matter.
In contrast, the authorities under the RTI Act, the CPIO, PIO, First Appellate Authority and the CIC would not have the requisite expertise or wherewithal to comment upon or assess the impact of disclosure of confidential information submitted or obtained in anti-dumping proceedings.
- RTI Act cannot be held to be an inviolable rule:
DHC held that, while, the RTI Act promotes greater transparency and access to information, it cannot be held to be an inviolable rule. There are specialised fields which are governed by specifically enacted Rules and statutory frameworks so as to balance the interest of disclosure with the larger public interest relating to that field. Anti-dumping duty is one such field, which is governed by the Customs Tariff Act, 1975 and the Anti-Dumping Rules framed thereunder.
- Whether Anti-Dumping Rules are ‘inconsistent’ with the RTI Act:
On the question of whether the Anti-Dumping Rules are ‘inconsistent’ with the provisions of the RTI Act, DHC held that the information that has been supplied by the Complainants has been given in the course of adjudication, in the capacity of a litigant. Thus, the information has been received by the Anti-Dumping Authority which now forms part of the record in discharge of its judicial/quasi-judicial function.
DHC referred and relied upon the judgments of Registrar of Supreme Court of India v. R.S. Misra W.P.(C) 3530/2011, dated 21.11.2017 of the DHC and Chief Information Commissioner v. High Court of Gujarat & Anr C.A.1966-1967/2020, dated 4.3.2020of the Supreme Courtand was of the view that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act.
It also observed that Supreme Court has specifically held that on the judicial side the information is held by courts as a trustee for litigants in order to adjudicate upon the matter and the same cannot be permitted to be accessed by third parties. A proper balance is to be maintained in order to ensure the confidentiality of documents and other information pertaining to the litigants to the proceedings.
DHC was of the opinion that the note sheet sought by the RTI Applicant is relating to initiation of anti-dumping investigation and contains various portions of information which may be confidential to the Complainants. Disclosure of the note sheet under the RTI Act, especially in a case where the RTI Applicant was a party to the anti-dumping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry. Section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties. This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules and the case would be governed by the decisions by this Court in R.S.Misra and the Supreme Court in CIC v. High Court of Gujarat.
- Information on anti-dumping investigation to be governed and dealt under the Anti-Dumping Rules:
If any party, especially one who has already participated in the anti-dumping investigation, requires any information, the same would have to be governed and dealt with under the Anti-Dumping Rules, including Rule 7, and the said procedure cannot be bypassed by seeking resort to the provisions of RTI Act. The Anti-Dumping Authority is vested with specialised knowledge that would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not. Such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act.
[1] Delhi High Court decision in Union of India v.Arvind M Kapoor and anr, W.P.(C) 8381/2016 and CMAPPL. 34681/2016, dated 23.3.2023
[2]Shri Arvind M. Kapoor v. The Director & CPIO, Ministry of Commerce & Industry, File No. CIOC/KY/A/2016/000980 dated 29th July, 2016
[3] “22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”