Central Information Commission
Maj. Gen. V.K. Singh vs Cabinet Secretariat (Sr) on 15 October, 2008
CENTRAL INFORMATION COMMISSION
Complaint Nos. CIC/WB/C/2008/632 & 629 AND Appeal Nos. CIC/WB/A/2008/01162 & 1163
dated 2-7-2008
Right to Information Act 2005 - Section 18 & 19
Appellant: Maj. Gen. V.K. Singh
Respondent: Cabinet Secretariat (SR)
FACTS
These are four cases, two complaints and two appeals moved before this Commission by Maj. Gen. V.K. Singh of Palam Vihar, Gurgaon against the Cabinet Secretariat, SR branch.
File No. CIC/WB/C/2008/00632 In this case appellant has sought the following information with regard to an application submitted to the Chief Vigilance Commissioner which was forwarded to JS/CVO, Cabinet Secretariat as follows:
"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 on 23-6-08 from Shri Sunil Mishra, Director & CPIO, Cabinet Secretariat stating 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 1 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 or proviso there under, the RAW of Cabinet Secretariat is one of the organization listed in second schedule on which nothing contained in the RTI Act shall apply."
In this case the complaint referred to was with regard to corruption in the organisation in his book - India's External Intelligence - Secrets of the Research & Analysis Wing (RAW) published by Manas Publications in which he has concluded with the following statement:
"I request that suitable action be initiated against Mr. Ashok Chaturvedi for falsely implicating me in a case under the Official Secrets Act, with the intention of causing harassment."
In his complaint before us Maj. Gen. V.K. Singh has prayed as follows:
"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 its 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 organisation in his book INDIA'S EXTERNAL INTELLIGENCE- SECRETS OF THE RESEARCH & ANALYASIS 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 cognisance, he may issue a warrant for arrest of the Complainant. The Complainant had filed an application for anticipatory bail in the Court of the Session Judge on 26.9.2007 which has still not been decided. A petition under Section 401 of Cr PC 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 Cr PC 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 cognisance of the charge sheet."2
File No. CIC/WB/C/2008/00629 In this case complainant Maj. Gen. V.K. Singh has applied to the CPIO, Cabinet Secretariat by an application of 9-5-06 seeking the following information:
"The following information, Para wise in detail, duly typed and certified, regarding the book India's External Intelligence- Secrets of Research & Analysis Wing (RAW), written by Maj. Gen. V. K. Singh may please be provided urgently, within 48 hours as per section 7 of the RTI:-
1. When was the proposal to ban the book received in the Cabinet Secretariat? Details of its examination, including file noting may be provided.
2. Was the proposal to ban the book examined by the Committee of Secretaries? If so, the dates of the meetings, names of members who attended the meetings and its recommendations may be provided.
3. Was the proposal to ban the book sent to the Ministry of Law & Justice? If so, details of its recommendations may be provided.
4. When was the proposal to prosecute the author under the Official Secrets Act 1923 received in the Cabinet Secretariat? Details of its examination, including file notings may be provided.
5. Was the proposal to prosecute the author under the Official secrets Act 1923 also examined in by the Committee of Secretaries? If so, details of its deliberations including file notings may be provided.
6. Was the proposal to prosecute the author referred to the Ministry of Law & Justice? If so, details of its deliberations including file notings may be provided..
7. What were the final recommendations of the Law Ministry on the proposal to prosecute the author under the Official Secrets Act 1923?
8. Did the Cabinet Secretariat examine any proposal to prosecute the officers mentioned in the book who appear to be corrupt? If so, details of its deliberations including file notings may be provided."
An identical application was moved by Maj. Gen. V.K. Singh before the Ministry of Law & Justice, Department of Justice on the same date.
3Both the Cabinet Secretariat and the Ministry of Law & Justice through their letters respectively of 13-5-08 and 15-5-08 transferred these applications to the Cabinet Secretariat, SR branch whose CPIO Ms. Sumati Kumar, Dy. Secretary in her letter of 11-6-08 responded as follows:
"The Research & Analysis Wing, Cabinet Secretariat, specified in the Second Schedule of the RTI Act, an organisation dealing with security and intelligence, it is not in public interest to furnish the information sought for. The reply sought does not fit either the exceptions pertaining to allegations of corruption and human rights violations or the provision provided under Section 7(1) of the RTI Act, 2005. Hence, this Sectt is not under any obligation to provide the information sought for under the RTI Act, 2005."
Upon this Maj. Gen. V.K. Singh has moved a complaint before this Commission with the following prayer:
"The CPIO's of Cabinet Secretariat and Ministry of Law & Justice may be asked to provide the complete information (certified copies) sought in the application regarding the proposal of ban the book INDIA'S EXTERNAL INTELLIGENCE- SECRETS OF THE RESEARCH & ANALYASIS WING (RAW) WRITTEN BY Maj. Gen. V. K. Singh. The information may be provided within 48 hours under section 7 (1) of the Act, since its concerns the liberty of the applicant. It is relevant that in respect of the above book, the CBI has registered FIR No. RC 5(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 cognisance, he may issue a warrant for arrest of the Complainant. The Complainant had filed an application for anticipatory bail in the Court of the Session Judge on 26.9.2007 which has still not been decided. A petition under Section 401 of Cr PC 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 Cr PC 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 be Complainant in time it will assist him in obtaining bail once the CMM takes cognisance of the charge sheet."4
File No. CIC/WB/A/2008/01162 In this case appellant has moved two identical RTI requests before the CPIO, Cabinet Secretariat and the CPIO, PMO asking for information as below:
"The following up to date information Para/ point wise in detail, duly typed and certified, regarding the book tiled THE KAOBOYS OF R&AW- DOWN MEMORY LANE, written by B. Raman, is required urgently, regarding the violation or non-violation of Official secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860."
This is followed by 34 questions, the first 28 of which conclude with the poser "Does this not violate the relevant sections of the OSA and IPC?" The concluding questions from Nos. 29 to 34 are as follows:
"29. Did the author seek permission to publish the book from RAW, Cabinet Secretariat or any other Govt. Department? If yes, provide copies of permission and files notings.
30. Has the Ministry of Home Affairs, Cabinet Secretariat, RAW or any other Govt. department filed with CBI any complaint regarding the violations of the Official Secrets Act, 1923 and IPC, 1860 in respect of the book? If yes, provide copy of the complaint.
31. Has any action been initiated against the author and publisher of the book under the Official Secrets Act, 1923 and IPC 1860? If yes, provide the copy of the same, If no, reasons thereof may be provided.
32. Is the Government aware of the violations of the Official Secrets Act, 1923 and IPC 1860 in the book?
33. What action has the Government taken with regard to the book? Copies of relevant correspondence and file notings may please be provided?
34. Does the Government contemplate initiating action against the author and publisher for violation of the Official Secrets Act, 1923 and IPC 1860? If yes, copy of FIR, charge sheet and other relevant documents may be provided. If not, the reasons thereof may be provided."5
To this he received a response identical with that received in complaint on file No. CIC/WB/C/2008/00629 from Ms. Sumati Kumar in letter of 4-6-08. In this case appellant moved his first appeal with the following prayer:
"Cabinet Secretariat should provide the complete information requested in the applications dated 25.4.2008."
The grounds for this prayer are as below:
"(a) The application does not ask for any information about R&AW. It concerns certain portions from a book entitled THE KAOBOYS of R&AW: DOWN MEMORY LANE, written by B. Raman.
(b) The Cabinet Secretariat is not one of the organisations exempted from the RTI Act as is obvious from the fact that it has nominated a CPIO and an appellate authority to deal with RTI applications.
(c) The applications were transferred to the Cabinet Secretariat (SR) from the Cabinet Secretariat and PMO through the MHA. If the information asked for was such that it was exempted from disclosure, the applications would have been rejected by them, instead of transferring them under section 6 (3) of the RTI Act. It is inconceivable that the Cabinet Secretariat, PMO and MHA are unaware of the relevant rules."
On not receiving a reply Maj. Gen. V.K. Singh has moved his second appeal 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 book tiled THE KAOBOYS OF R&AW: DOWN MEMORY LANE, written by B. Raman. The information may be provided within 48 hours under Section 7 (1) of the Act, since its concerns the liberty of the applicant. It is relevant that in respect of a book tilted INDIA'S EXTERNAL INTELLIGENCE- SECRETS OF THE RESEARCH & ANALYASIS WING (RAW) written by the complainant, the CBI has registered FIR No. RC 5(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 cognisance, he may issue a warrant for arrest of 6 the Complainant. The Complainant had filed an application for anticipatory bail in the Court of the Session Judge on 26.9.2007 which has still not been decided. A petition under Section 401 of Cr PC 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 Cr PC 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 be Complainant in time it will assist him in obtaining bail once the CMM takes cognisance of the charge sheet."
File No. CIC/WB/A/2008/01163 This file contains two RTI requests, the first dated 28-4-08 addressed to the PMO containing 25 questions on the following:
"The following up to date information, Para wise in detail, duty typed and certified, regarding the book titled Inside RAW- The story of India's Secret Service, written by Asoka Raina, is required urgently."
The first 18 questions following conclude with the poser "doest this not violate the relevant section of the OSA & IPC". The concluding questions listed from 19 to 25, however, are as below:
"19. Do the abovementioned disclosures/ revelations violate various sections of the Official Secrets Act 1923 and Indian Penal Code, 1860? Specific details of violations and the corresponding section of the applicable laws may be provided, for each disclosure.
20. Did the author seek permission to publish the book from the PMO or any other Govt. Department? If yes, provide copies of permission and files notings.
21. Has any action been initiated against the author and publisher of the book under the Official Secrets Act, 1923 and IPC 1860? If yes, provide copy of the same. If no, reasons thereof may be provided.
22. What action has the Government taken with regard to the book? Copies of relevant correspondence and file notings may please be provided?
25. Does the Government contemplate initiating action against the author and publisher for violation of the Official Secrets Act, 1923 and IPC 1860? If yes, copy of FIR, charge sheet and other relevant documents 7 may be provided. If not, the reasons thereof may be provided." 1 There is an identical request to the CPIO, Cabinet Secretariat. In this case the request found its way to the Cabinet Secretariat, EA-II Section from where CPIO Ms. Sumati Kumar, Dy. Secretary responded with a letter identical to that in file No. CIC/WB/A/2008/01162 upon which appellant Maj. Gen. V.K. Singh moved his first appeal before Shri C.K. Sinha, Addl. Secretary and 1st Appellate Authority, Cabinet Secretariat, SR branch which remained without response, hence his prayer in second appeal before us which reads as follows:
"Cabinet Secretariat (SR) may be asked to provide the complete information (certified copies) sought in the application regarding the book titled INSIDE RAW- THE STORY OF INDIA'S SECRET SERVICE, written by Asoka Raina. The information may be provided within 48 hours under section 7 (1) of the Act, since its concerns the liberty of the applicant. It is relevant that in respect of a book titled INDIA'S EXTERNAL INTELLIGENCE- SECRETS OF THE RESEARCH & ANALYSIS WING (RAW) WRITTEN BY THE COMPLAINANT, 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 cognisance, he may issue a warrant for arrest of the Complainant. The Complainant had filed an application for anticipatory bail in the Court of the Sessions Judge on 26.9.2007 which has still not been decided. A petition under Section 401 of Cr PC 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 Cr PC 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 cognisance of the charge sheet."
The appeal was heard on 10-10-2008. The following are present.
1 there is no question No. 23 and 24 8Appellants Maj. Gen. V.K. Singh.
Shri Har Mohan Rai.
Respondents Ms. Sumati Kumar, Director (SR), Cabinet Secretariat Shri Alok Kumar, Director (Cabinet Sectt.) Shri Sunil Mishra, Director, Cabinet Secretariat Main. Shri M. K. Sharma, Addl. LA & CPIO.
Shri R. S. Shukla, DLA.
Shri R. K. Srivastava, ALA& CPIO.
Shri A. K. Srivastava. SO.
The issue here is clearly whether the questions are answerable by RAW, an organisation included at serial No.2 of the Second Schedule of the RTI Act, 2005. While appellant Maj. Singh argued that the Cabinet Secretariat SR branch is different to RAW, respondents argued that although there may be two separate designations of the Head of RAW, Cabinet Secretary, SR was in fact, head of both and therefore any distinction is misplaced. Ms. Sumati Kumar, Director (SR) further submitted that she had not come prepared for defending the case in file No. 632 which asks questions regarding complaint made to the CVC and, therefore, 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.
DECISION NOTICE 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. Because respondent had not come prepared to argue this matter and because there is no objection from complainant Gen. VK Singh we agree to an adjournment in the hearing in this in this particular complaint, which will now be heard on 22.10.'08 at 4.00 pm 9 On questions raised in File No. CIC/WB/C/2008/00629, we find that the information pertains to that held by the RAW or on the basis of information furnished by it, both issues falling squarely outside the purview of the RTI Act, 2004. These questions concern the publication of a book by Gen VK Singh, regarding his tour of duty with the RAW, and are not expected to be held by any other authority. The response of CPIO Ms Sumati Kumar is entirely appropriate, therefore. This appeal is unsustainable and is hereby dismissed.
The questions asked in applications under appeal in File Nos. CIC/WB/A/2008/01162 & CIC/WB/A/2008/01163, "Does this not violate the relevant sections of the OSA and IPC", is a request for an opinion. As this Commission has held in Maj. Gen VK Singh vs. CBI; File No.CIC/WB/A/2008/01161, this can in fact be the subject matter of a petition addressed to the authorities in the Ministry of Home Affairs concerned with national security. This cannot be the subject of a RTI application. Under sec. 2(j), this right has been clearly defined as follows:
Sec. 2 (j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority 2 and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;"
Moreover sec. 2(f) is explicit in defining the word 'information' by opening with the remark that "information means any material in any form 3 ". In other words such information must be held in material form even where it is only an opinion or advice. This principle will apply to 2 Underlined by us 3 Underlined by us 10 responses given to the points 1 to 28 in the application in file No. CIC/WB/C/2008/001162 and points 1 to 18 in file no. CIC/WB/C/2008/001163. The applications regarding which complaints were made in these two files have been dealt with extensively in other complaints brought before us. But the questions listed at 29 to 34 in file No CIC/WB/A/2008/001162, and at 19 to 25 in File No CIC/WB/A/2008/001162 are questions directly put to the public authorities to whom they are addressed. Since these are not concerning any action taken against appellant by RAW, regarding which we have ruled above in File No. CIC/WB/C/2008/00629 that RAW being an organisation listed in the Second Schedule is exempt; these should have been answered at the least in the manner that similar questions to the Ministry of Home Affairs stand answered. The three organisations not so exempt6 to whom applications were moved were PMO, Ministry of Law & Justice and Cabinet Secretariat. The first two are undoubtedly conduits to whom references are made but not retained unless they concern that office directly, and therefore cannot provide access as demanded by Sec 2(j). Both cases are therefore remanded to CPIO Cabinet Secretariat, Rashtrapati Bhawan, to answer within the parameters of the RTI Act 2005. within ten working days of the date of receipt of this Decision Notice.
Both appeals are thus allowed in part. There will be no costs. Reserved in the hearing, except in the case of adjournment in File No CIC/WB/C/2008/00632 that was announced in the hearing, this Decision is announced in open chamber on this fifteenth day of October, 2008.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 15-10-2008 11 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 K.P. Shreyaskar) Joint Registrar 15-10-2008 12