Central Information Commission
Maj. Gen. V. K. Singh vs Cabinet Secretariat on 28 November, 2008
CENTRAL INFORMATION COMMISSION
Complaint No.CIC/WB/C/2008/00632 dated 2.7.2008
Right to Information Act 2005 - Section 18
Complainant - Maj. Gen. V. K. Singh
Respondent - Cabinet Secretariat
Facts:
By an application of 9.6.08 Maj. Gen. Vinay Kumar Singh of Palam Vihar, Gurgaon applied to Shri Sunil Mishra, Director & CPIO Cabinet Secretariat (Main) seeking the following information:
1. "Was any investigation or enquiry carried out in respect of the complaint? If so details may be provided.
2. The complaint related to harassment of a whistle blower for pointing out cases of corruption and other irregularities in the functioning of the Research &Analysis Wing (RAW). Was any action initiated against Shri Ashok Chaturvedi as requested in the complaint to the CVC? If so, details may be provided.
3. Was any action initiated against any officer of the Cabinet Secretariat (SR), RAW or SPG in respect of the instances of corruption and irregularities mentioned in the book? If so, details may be provided."
To this he received a response from CPIO Shri Sunil Mishra on 23.6.08 as follows:
"In this connection, it is stated that CVC's letter along with your application dated 16.1.2008 was forwarded to Ms. Sumati Kumar, Deputy Secretary & CPIO, Cabinet Secretariat (SR) Bikaner House Annexe, New Delhi for taking appropriate action vide Cabinet Secretariat ID No. 1/109/3/2008-TS dated 16.1.2008. Accordingly, your RTI application, in original, is being transferred to the Cabinet Secretariat (SR) under section 6(3) of the RTI Act for taking appropriate action. It is further stated that in terms of section 24(1) of the RTI Act and subject to proviso hereunder, the R&AW of Cabinet Secretariat is one of the organizations listed in second schedule on which nothing contained in the RTI Act shall apply."1
Upon this the General moved a complaint before us with the following prayer:
"Cabinet Secretariat (SR) may be asked to provide the complete information (certified copies) sought in the application regarding the complaint to the CVC on 16.11.2007. The information may be provided within 48 hours under section 7(1) of the Act, since it concerns the liberty of the applicant. It is relevant that the Complainant is facing harassment from RAW for bringing out instances of corruption in the organization in his book INDIA'S EXTERNAL INTELLIGENCE - SECRETS OF THE RESEARCH & ANALYSIS WING (RAW). Based on a complaint from RAW, the CBI has registered FIR No. RC5 (S)/2007/SCU-V u/s 5 of the Official Secrets Act on 20.9.2007. The CBI has also filed a complaint in the Court of the CMM against the Complainant on 9.4.2008 and a charge sheet on 11.4.2008. The charge sheet filed by the CBI in the court of the CMM has been listed for hearing on 10.7.2008. In case the learned Judge decides to take cognizance, he may issue a warrant for arrest of the Complainant. The Complainant had filed an application for anticipatory bail in the Curt of the Sessions Judge on 26.9.2007, which has still not been decided. A petition under Section 401 of CrPC has been filed in the High Court on 23.4.2008 against the orders of the Sessions Judge for the anticipatory bail hearing to be held 'in camera', as requested by the CBI. Another petition under Section 482 CrPC has been filed in the High Court on 9.5.2008 for quashing the FIR and charge sheet. Both petitions are listed for hearing on 17.7.2008. If the information is made available to the Complainant in time, it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet."
The complaint was heard on 20.11.2008. The following appeared before us:
Complainant Maj. Gen. V.K. Singh.
Respondents Shri Sunil Mishra, Director & CPIO, Cabinet Secretariat. Ms. Sumati Kumar, Director& CPIO Cabinet Secretariat (SR). Shri Alok Kumar, Director (Cabinet Sectt.) Ms. Sumati Kumar, Director Cabinet Sectt. submitted that the complaint in this case was against a response given on 23.6.08 from CPIO Shri Sunil Mishra, Director, Cabinet Sectt. (Main). Her own replies concluding with the reply of 24.7.08 have not been challenged. Appellant Maj. Gen. V. K. Singh, on the other hand, arguing that the 2 complaint was indeed moved before a response was received from CPIO Ms. Sumati Kumar, Dy. Secy, Cabinet Sectt.( EA-II Section), stated that the substance of complaint was simply denial of information in a complaint concerning allegations of corruption.
We also find that the refusal of information now communicated by Ms. Sumati Kumar on 29.4.08 is that the matter is pending in the Court and, therefore, subjudice and since the information pertains to the Cabinet Sectt. in R&AW it cannot be made available.
We have already held in our decision of 15.10.08 as follows:
"As stated above, the application in Complaint in file No CIC/WB/C/2008/00632 raises questions regarding a complaint made to the CVC and, is directly related to allegations of corruption, a factor which brings even organisations listed in the Second Schedule within the purview of the RTI Act under the proviso to Section 24 (1) of the RTI Act, 2005."
Besides although it is accepted that a number of cases concerning Gen. Singh are infact subjudice, CPIO Ms. Sumati Kumar was unable to inform us whether this allegation of corruption, which is contained in this complaint, is in fact subjudice. She will, therefore, appear before us at 4.30 p.m. on Tuesday, the 25th November, 2008 to establish before us the following:
1. That in fact this matter of referral of application submitted to the Chief Vigilance Commissioner, which was forwarded to Jt. Secy./ Chief Vigilance Officer, Cabinet Sectt. is at present subject of a judicial investigation or prosecution.
2. Whether disclosing the action taken on the complaint of Maj.
Gen. V. K. Singh before the CVC will impede the above process."
Accordingly the complaint was once again heard on 25.11.08. The following appeared before us:
Complainant Maj. Gen. V. K. Singh Respondents Ms. Sumati Kumar, Director & CPIO Cabinet Sectt. Mr. Sudhir Walia, Advocate Mr. Alok Kumar, Director, Cabinet Sectt.3
Mr. Vinay Kumar Singh, Director -do-
Mr. Sunil Mishra, Director & CPIO -do-
Because the documents placed before us by respondents were confidential, appellant Maj. Gen. Singh was heard separately.
Ms. Sumati Kumar, Director & CPIO submitted a written statement dated 25.11.2008 to justify the stand of Cabinet Secretariat (SR) in regard to disclose-
ability of the documents sought by appellant. These conclude as follows:
"Submissions with regard to Point No. 1, as directed by this Hon'ble Commission.
(i) It is respectfully submitted that in view of the factual and legal submissions made hereinabove, the application dated 16.11.2007, submitted by the applicant to the CVC which was forwarded to Jt. Secretary/ Chief Vigilance Officer, Cabinet Secretariat on 13th Dec 2007. THIS APPLICATION WAS NOT UNDER THE PROVISIONS OF RTI. The subsequent application filed by the applicant, under the RTI was received on transfer in the Cabinet Sectt. (SR) WHICH WERE DISPOSED BY SMT. SUMATI KUMAR, DIRECTOR, CABINET SECRETARIAT (SR) VIDE HER ORDERS DATED 24TH JULY, 2008 WHICH ORDERS HAVE NOT LBEEN CHALLENGED/ APPEALED AGAINST, BY THE APPLICANT TILL THE DATE OF FILING THIS REPLY.
(ii) The original complaint dated 16.11.2007 filed by the applicant before the CVC (not under t he RTI Act) in which the applicant has made allegations of corruption, functioning of R&AW, anomalies in procurement of equipment, lack of accountability, dependence on foreign sources etc., are SUBJECT MATTER OF JUDICIAL SCRUTINY BEFORE THE COURT OF SHRI SANJEEV JAIN, CMM, DELHI AT THE INSTANCE OF NONE ELSE BUT THE APPICANT HIMSELF. IN HIS APPLICATION TO THE COURT THE APPLICANT HAS MADE A SPECIFIC PRAYER FOR SUMMONING THE PERSONS, DATA, FILES, INFORMATION ETC. WHILE INVOKING THE JURISDICTION UNDER SECTION 311 OF CrPC OF THE TRIAL COURT.
In view of the stand taken by the applicant in his application dated 11.3.2008 filed before the Trial Court, it is respectfully submitted 4 that Point No. 1 stands answered, that the subject of the present application is under investigation and also part of the judicial proceedings pending before the Court of Shri Sanjeev Jain, CMM, Delhi.
Submissions with regard to Point No. 2, as directed by this Hon'ble Commission.
With regard to point no. 2, it is respectfully submitted that disclosure of any information, is not only prejudicial to the national interest of the State, but would also impede the process of investigation/ prosecution as the applicant is an accused in the said proceedings and therefore there is every likelihood that the information which is being sought is likely to hamper fair investigation and impartial trial in terms of Section 8 (1) (h) of the Act. In any event, it is matter of record that the averments made by the applicant himself in his application dated 11.3.2008, filed before the Trial Court, disentitle him from any relief from this Hon'ble Commission."
Learned Counsel for respondent Shri Sudhir Walia also presented a copy of the application u/s 311 Cr.P.C. submitted by Maj. Gen. Singh (Retd) before the Court of Shri Satish Jain, C.M.M., Delhi. He invited our attention to Para 3 of this application in which complainant Maj. Gen. Singh has pleaded as follows:
"The said book- India's External Intelligence- Secrets of the Research & Analysis Wing (RAW) was released in the last week on June 2007. This is the first time a book of RAW has been written by someone who has actually served in the intelligence agency. The book brings to light several lacunae in the functioning of RAW, the most glaring being the anomalies in the procurement of equipment, lack of accountability and our dependence on foreign sources. As a committed citizen, he was agitated at the malpractices that he noticed. Even more important, he found that the security of important persons such as the Prime Minister was being compromised, 'for a few pieces of silver', which is title of one of his chapters."
He, therefore, contended that the intention of appellant Maj. Gen. Singh is the disclosure of the activities of R&AW thereby violating the exemption enjoyed by that Organization from application of the RTI Act. This is borne out by the prayer that he has moved before the Court in this case, which is as follows:
"In view of the above facts and circumstances it is most respectfully prayed that the complainant/concerned organization/ companies/ 5 persons/ etc. be summoned along with the aforesaid data/ files/ information etc. or in the alternate the applicant prays for issuance of appropriate direction for preserving files and website data, to be made available during trial. Any other order or directions this Hon'ble Court may deem proper and appropriate in the interest of justice."
He finally concluded by stating that this case stood referred to the CBI by the Dy. Secretary (SR), Cabinet Secretariat on 6.9.07 on the basis of the recommendations of the Standing Committee of the Cabinet Secretariat, which has examined this issue.
The allegations made against Director, R&AW Sh. Ashok Chaturvedi are summed up in the following two observations in the application made on 16.11.07 by appellant addressed to Shri Pratyush Sinha, Chief Vigilance Commissioner:
1. I feel that the action against me has been initiated by personal animus of the present RAW Chief, Mr. Ashok Chaturvedi. I have learnt that he is extremely annoyed because of the mention of an incident concerning a senior officer who did not attend office for several months after he was overlooked for promotion.
2. I request that suitable action be taken against Mr. Ashok Chaturvedi for falsely implicating me in a case under the Official Secrets Act with the intention of causing harassment.
It is agreed by all parties that these are not allegations of corruption. However, Maj. Gen. Singh contended that there are allegations of corruption against the functioning of R&AW itself in his application to the Chief Vigilance Commissioner of 16.11.07.
DECISION & REASONS Allegations of corruption or violation of human rights are the only two grounds on which R&AW, an organization listed at No. 2 of the Second Schedule of the RTI Act can be brought within the purview of this Act. It is for this reason that we had decided to proceed with the hearing of this case while dismissing 6 others moved by complainant Man Gen VK Singh seeking information from R&AW. The specific question asked in this matter was the action taken on his allegations of corruption submitted to the CVC on 16.11.07. It was for this reason that we had asked CPIO to clarify that this allegation of corruption is in fact also subjudice and, if so, whether disclosure would impede the process of investigation or prosecution. On our specific query as to whether the letter of 16.11.'07 addressed to the CVC were part of the investigation, we find that the letter of 6.9.07 where under the matter stands referred to CBI predates the allegations made in appellant Maj. Gen. Singh's complaint to the CVC. It is, therefore, quite clear that this is not the subject of the CBI enquiry, although there may be references to it, but is instead only the subject of the application moved u/s 311 Cr.P.C. by complainant Maj. Gen. V. K. Singh himself before the High Court that is dated only 11.3.08. The plea that disclosure of the action taken on this complaint would, therefore, impede the process of investigation/prosecution and, therefore, qualifies for exemption u/s 8(1)(h) is absurd.
The basic issue for any decision on disclosure by R& AW in this case, being as it is an organization covered by the Second Schedule, however, is whether this complaint to CVC amounts to allegations of corruption. From a reading of the appellant's submissions, it could indeed amount to allegations of harassment by Shri Ashok Chaturvedi resulting in prosecution by CBI. This in itself will not therefore, qualify the application for consideration under Proviso to Sec 24 (1) of the RTI Act, 2005. However, as pointed out in his complaint before the Central Vigilance Commission by appellant Maj. Gen. V. K. Singh, the following were among the points that formed the basis of his petition:
"I have pointed several instances of corruption in the purchase of equipment, with names of the officers involved. No action been initiated against any of these officers."
He has gone on to conclude as follows:
"A large number of articles have appeared in the media decrying the move of RAW and CBI in proceeding against me instead of the taking action against the corrupt officers named in the book. As a 7 whistle blower, I expect protection from the State, nor harassment, which is what I am being subjected to at the moment.".
On the above grounds, we must conclude that the complaint to the Central Vigilance Commission is indeed an allegation of corruption. We must now therefore address ourselves to the information sought by appellant General VK Singh in his application of 9.6.'08:
(a) With regard to question 1 this is clearly a request for the action taken on the specific charges of corruption alleged in the complaint. From our perusal of the documents, we were unable to find what action has been taken since as noted above, this does not constitute part of any CBI enquiry. CPIO Ms. Sumati Kumar Director, Cabinet Secretariat will, therefore, now provide this information to appellant Maj. Gen. V. K. Singh within ten working days of the date of issue of this Decision Notice.
(b) Questions 2 & 3 spring from the response to question 1. Question No. 3 specifically concerns allegations of corruption in the book published by Maj. Gen. V. K. Singh, entitled "India's External Intelligence - Secrets of the Research & Analysis Wing (RAW)". This is already a subject of the CBI investigation even though clearly not in consequence of any action taken in response to appellant's complaint to CVC and hence not as requested under question 1.
On question 2, as we have held, the complaint against Shri Ashok Chaturvedi is primarily one of harassment, but there is also the allegation of covering up corruption. As held by us above, this is a question directly related to the response to question 3.
Depending upon the response to question 1, CPIO Ms. Sumati Kumar will then determine any further response that will be required to questions 2 & 3 in direct consequence of the allegations of corruption at question 1. Clearly, if no action has been taken on Question 1 after its transfer to Cabinet Secretariat, questions 2 & 3 become infructuous. If in fact action has been taken, answers to 8 these questions will constitute the substance of that action. This exercise will be completed within fifteen days of the date of issue of the Decision Notice With the above conditions, the complaint is thus allowed. There will be no costs.
Reserved in the hearing, this Decision is announced in open chamber on this twenty-eighth day of November 2008. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 28.11.2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 28.11.2008 9