Central Information Commission
Maj. Gen. V. K. Singh vs Ministry Of Home Affairs on 10 October, 2008
CENTRAL INFORMATION COMMISSION
Complaint Nos. CIC/WB/C/2008/00634 to 640 all dated 2.7.2008
Right to Information Act 2005 - Section 18
Complainant - Maj. Gen. V. K. Singh
Respondent - Ministry of Home Affairs
Facts:
These are seven complaints from Maj. Gen. V. K. Singh (Retd) of Palam Vihar, Gurgaon against the information received from Ministry of Home Affairs.
1) File No. CIC/WB/C/2008/00640 In this case the information sought by appellant Maj. Gen. Singh from the CPIO, MHA in his application of 4.5.08 was as below:
"The following up to date information, Para wise in detail, duly typed and certified, regarding IPCS Article No. 589 titled The Intelligence Secret written by Dr. Bhashyam Kasturi on 27th September 2001, is required urgently:
1. The article contains the following passage:
The Group of Ministers (GOM) and the Cabinet, according to a press release, accepted the Task Force's major recommendation that an Intelligence Coordination Group (ICG) and Technology Coordination Group (TCG) and Technology Coordination Group (TCG) working in close cooperation with the National Technical Facility Organization (NTFO) be set up. The ICG is tasked with providing systematic intelligence oversight at the apex level and deal with allocation of resources ton approve the annual tasking of intelligence collection oversee the functions of intelligence agencies and examine national estimates and forecasts. The TCG is tasked with coordinating and regulating plans for acquiring new, costly, and major strategic faculties/ equipment by the intelligence services and generally overseeing their Techint capabilities. The NTFO will deal with plans and designs, and operate, Techint facilities approved by the TCG keeping in view the rapid convergence taking place between different technologies.
The above passage reveals structural changes in the intelligence set up such as the formation of the Intelligence Coordination Group (ICG), the Technology Coordination Group (TCG) and the National 1 Technical Facility Organization (NTFO) along with their tasks and methods of functioning. This information is probably taken from the chapter on Intelligence of the GOM Report which was deleted on security grounds and has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
2. The article contains the following passage:
It is possible to glean some of the other recommendations of the GOM from published sources. They are:
Creation of a Defence Intelligence Agency (DIA). The creation of a DIA will give the armed forces more capability. They will be allowed to conduct trans-border operations, as they were permitted from 1991 by a government order. The head of the DIA will be the principal intelligence advisor to the Chiefs of Staff Committee and the Defence Minister. The DIA chief will also control the Signals Intelligence Directorate.
Giving the Intelligence Bureau (IB) complete responsibility for internal security operations. For this IB would have a formal charter, RAW should also have a written charter.
According to Praveen Swami (For a Paradigm Shift, Frontline, 13 April 2001), IB is to have an independent Comint capability. It will be allowed to conduct deep penetration operations.
RAW continues as before. It loses the 7,000 strong Special Services Bureau (SSB) to the Ministry of Home Affairs and will probably be merged with the Indo-Tibetan Border Police. This is believed to be the recommendation of the Padmanabhiah Committee. RAW will retain some covert operations of the SSB, while some of its order tasks will go to IB.
Despite considerable pressure from the armed forces, RAW has managed to retain control of the Aviation Research Centre (ARC). The Saxena Group has recommended, according to Praveen Swami, a revitalization of the Military Intelligence Advisory Group within RAW to increase coordination in the tasking of ARC by the armed forces.
The above passage reveals the tasks and functioning of intelligence agencies and bodies such as RAW, IB, DIA, and ARC. This information is probably taken from the chapter on Intelligence 2 of the GOM Report which was deleted on security grounds and has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
3. The article contains the following passage;
The Saxena Report apparently wishes that IB needs to possess a reliable and safe communications capability. The Report also notes that many of the groups operating within the country benefit from the expertise of foreign intelligence services and are able, not only to latch on to frequencies, but can also demodulate, RF transmissions that have been modulated and re-modulated after transmission. The report also speaks of the necessity of online encryption of all messages.
The above passage reveals details regarding the capabilities of IB in the field of communications, interception and encryption. This information is probably taken from the chapter on Intelligence of the GOM Report which was deleted on security grounds and has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
4. Does the Government contemplate initiating action against Institute of Peace & Conflict Studies (IPC) for publishing information contained in the GOM Report on National Security 2001 in violation of the Official Secrets Act, 1923 and IPC 1860? If yes, copy o FIR, charge sheet and other relevant documents may be provided. If not, the reasons thereof may be provided."
This application was transferred by CPIO Sh. Bhatnagar Dy. Secy. MHA to Director & CPIO Sh. P. K. Mishra on 8.5.08 and from Shri Mishra who is Director (IS-II) to Shri J.P.T. Verma, DS(IS-II) also CPIO in the MHA on 9.5.08. The response of Shri J.P.S. Verma of 4.6.08 to complainant Maj. Gen. V. K. Singh was as below:
S. Serial given in the Reply No. application
1. Point No. 1 to 3 In these points, opinion has been sought on extracts of the article No. 589 titled 'The Intelligence 3 Secret', written by Dr. Bhashyam Kasturi, published by the Institute of Peace and Conflict Studies on 27th September, 2001.
There is no provision in RTI Act, 2005 to provide such opinion.
2. Point No. 4 As on date, no action is contemplated against the author of the book under OSA, 1923.
In this case complainant Maj. Gen V. K. Singh has moved a complaint directly before us without taking recourse to a first appeal with the following prayer:
"The CPIO, Ministry of Home Affairs may be asked to provide the complete information (Certified copies) sought in the application regarding Article No. 589 titled THE INTELLIGENCE SECRET written by Dr. Bhashyan Kasturi published by the Institute of Peace & conflict Studies on 27th September 2001. The information may be provided within 48 hours under Section 7(1) of the Act, since its concerns the liberty of the applicant. 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 applicant. The applicant 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 CrPC has been filed in the High Court on 23.4.2008agaisnt the orders of the Sessions Judge for the anticipatory bail hearing to he 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 applicant in time it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet."
2) File No. CIC/WB/C/2008/00639 In this case the request dated 4.5.08 of complainant Maj. Gen. V. K. Singh before CPIO MHA was as follows:
"The following up to date information, Para wise in detail, duly typed and certified, regarding the article DEFENCE INTELLIGENCE 4 REVAMP- The New Order written by Shishir Gupta in the India Today issue of 04 June 2001, is required urgently:
1. The article contains the following passage:
On May 23, the recommendations of the Group of Minister On "Reforming the National Security System" were made public by Union Home Minister L. K. Advani without revealing, however, the crucial structural changes to monitor the intelligence agencies.
India Today learns that in a significant development, the NSCS has given way to an all powerful Intelligence Coordination Group (ICG) under the National Security Adviser (NSA). All the intelligence agencies will now be answer able to the NSA under the rubric of the ICG, which in turn will prepare the strategic intelligence assessment report for the government. The intelligence gathering network within the armed forces has also been streamlined with the setting up of a Defence Intelligence Agency (DIA). Headed by a three star general, the DIA will collate inputs from the army, air force and naval intelligence and assess the threat along the borders.
The above passage reveals structural changes in the intelligence set up such as the formation of the Intelligence Coordination Group (ICG), and the Defence Intelligence Agency (DIA), along with their tasks and methods of functioning. This information is probably taken from the chapter on Intelligence of the GOM Report which was deleted on security grounds and has not been made public.
Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
2. The article contains the following passage:
Under the new dispensation, the heads of the RAW, IB and the DIA will hold monthly meetings with the NSA, and the ICG will prepare a strategic assessment report after analysing the available intelligence inputs. This will ensure that the intelligence gathered by a particular agency is monitored and shared with sister outfits to avoid duplication and prevent the information form becoming redundant. The NSA will also chart the future course of action in consultation with the heads of other intelligence agencies to identify the areas that need immediate focus.
The above passage reveals the tasks and functioning of intelligence agencies and bodies such as RAW, IB, NSA and ICG.5
This information is probably taken from the chapter on Intelligence of the GOM Report which was deleted on security grounds and has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
3. The article contains the following passage; Supporting the ICG will be the Technical Coordination group (TCG) and the National Technical Facility Organization (NTFO). The TCG will be headed by the NSA and will provide intelligence inputs after interpreting information gathered through various sources. The NTFO, headed by a reputed scientist, will identify equipment requirements such as spy satellites. At present, India has limited means to gather satellite electronic or communication based intelligence. The country's remote sensing satellites (irs-1C/1D) provide pictures which can at best identify linear features such as canals, roads or embankments. As India does not have a spy satellite, it garners tactical intelligence by purchasing finer imagery from foreign sources. These can show detailed deployment of forces and even pinpoint terrorist campus in Pakistan Occupied Kashmir (PoK)."
The above passage reveals details regarding the Intelligence set up such as the ICG, TCG and the National Technical Facility Organisation (NTFO). This information is probably taken from the chapter on Intelligence of the GOM Report which was deleted on security grounds and has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
4. Does the Government contemplate initiating action against India Today journal for publishing information contained in the GOM Report on National Security 2001 in violation of the Official Secrets Act, 1923 and IPC 1860? If yes, copy o FIR, charge sheet and other relevant documents may be provided. If not, the reasons thereof may be provided."
In this case also the application followed the route of transfer by CPIO Sh. S. K. Bhatnagar DS, MHA to Sh. P.K. Mishra Director & CPIO on 8.5.08 and to Shri J.P.S. Verma, DS-IS-II on 9.5.08. Here too the answers to the application from Shri J.P.S. Verma dated 4.6.08 were as follows:
6S. Serial given in the Reply No. application : 1. Point No. 1 to 3 In these points, opinion has been sought on extracts of the article titled 'DEFENCE: INTELLIGENCE REVAMP- The New Order', written by Shishir Gupta, published in the India Today, issue of 4th June 2001.
There is no provision in RTI Act, 2005 to provide such opinion.
2. Point No. 4 As on date, no action is contemplated against the author of the book under OSA, 1923.
In this case appellant's prayer before us is as under:
"The National Security Council Secretariat may be asked to provide the complete information (certified copies) sought in the application regarding article titled 'DEFENCE INTELLIGENCE REVAMP- The New order' written by Shishir Gupta, published in the India Today issue of 4th June, 2001. The information may be provided within 48 hours under Section 7 (1) of the Act, since its concerns the liberty of the applicant. 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 applicant. The applicant 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 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 applicant in time it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet.
The CPIO National Security Council Secretariat may be asked to explain the reason for delaying the reply to the application that was submitted on 28.4.2008 and was transferred to the NSCS on 13.5.2008. The reply by the CPIO is dated 16.6.2008. Since no 7 information has been given, there is no justification for the delay of 33 days in giving the reply."
3) FILE NO. CIC/WB/C/2008/00638 In this case appellant moved an application dated 1.5.08 with the CPIO MHA seeking information as below:
"The following up to date information, Para wise in detail, duly typed and certified, regarding the article INDIAN SPY IN BEIJING HONEY TRAP RECALLED published in the Mail Today newspaper of Thursday, May 01, 2008 is required urgently:
1. The first line of the article reads: An intelligence official from the Research and Analysis Wing (R&AW) stationed in China, whose relations with his Chinese language teacher were revealed to his bosses, is being recalled because of fears that he may have been dangerously compromised and could have passed on national secrets to the Chinese through her.
The above passage reveals that an officer of the Research and Analysis Wing (R&AW) was posted in the Indian Embassy in Beijing. This disclosure is likely to damage friendly relations with a foreign country. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
2. The second paragraph of the article reads: Manmohan Sharma, who was posted at the Indian embassy in Beijing a year back, will be returning to headquarters shortly.....
The above passage reveals that an officer of the Research and Analysis Wing (R&AW) was posted in the Indian Embassy in Beijing. It also reveals the name of the officer as Manmohan Sharma, blowing his cover. This disclosure is likely to damage friendly relations with a foreign country. It is also compromises the security of the R&AW officer. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
3. The article contains the following passage: The best known case is that of K. V. Unnikrishnan, an R&AW officer dealing with the LTTE who developed a relationship with an air hostess believed to be an intelligence plant. Unnikrishnan, a DIG of Police on secondment to R&AW, was arrested in 8 Chennai shortly before India and Sri Lanka signed the Indo- Sri Lanka accord that led to the Indian Military intervention in the island. Since the mid 1980s he had been in charge of the Chennai office.....
The above passage reveals the name of a R&AW officer K. V. Unnikrishnan, blowing his cover. It also reveals the location of the R&AW station in Chennai. Does this disclosure not violate the provisions of the official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
4. The article contains the following passage: Sharma's case is not the first involving an R&AW official. In October last year Ravi Nair, a 1975 batch Research and Analysis Service (RAS) officer, who managed to get plum postings despite being on the scanner for a long time, was recalled from Sri Lanka for his alleged relationship with a foreigner.
During his posting in Hong Kong, Nair had met a "foreigner friend"
believed to be working for a Chinese spy agency prompting the authorities to ask him to come back. However, within a brief time Nair was again given a foreign posting in Colombo...
The above passage reveals that an officer of the Research and Analysis Wing (R&AW) was posted in the Indian Embassies in Hong Kong and Colombo. It also reveals the name of the officer as Ravi Nair, blowing his cover. This disclosure is likely to damage friendly relations with foreign countries. It is also compromises the security of the (R&AW) officer. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
5. Does the Government contemplate initiating action against the Mail Today newspaper 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."
On the same date an identical application was made to the CPIO Cabinet Sectt. CPIO Shri Sunil Mishra, Director in the Cabinet Sectt. by his letter of 6.5.08 transferred this application to the Ministry of Home Affairs within which Shri P.K. Mishra Director IS-II transferred this to Shri JPS Verma, CPIO / DS-IS-II 9 to whom Shri S. K. Bhatnagar Dy. Secy. & CPIO, MHA has also transferred the application addressed to the MHA on 14.5.08. In this case also the response from Shri J.P.S. Verma DS to the Govt. of India to Maj. Gen. V. K. Singh dated 10.6.08 was as follows:
S. Serial given in the Reply No. application
1. Point No. 1 to 4 In these points, opinion has been sought on extracts of the article under the heading 'INDIAN SPY IN BEIJING HONEY TRAP RECALLED', published in the Mail Today newspaper dated 1st May 2008.
There is no provision in RTI Act, 2005 to provide such opinion.
2. Point No. 5 As on date, no action is contemplated against the author of the book under OSA, 1923.
Pleading that he has still not received a response from CPIO Sh. J.P.S. Verma DS, Maj. Gen. V. K. Singh moved a complaint before us on 29.6.08 with the following prayer:
"The Ministry of Home Affairs may be asked to provide the complete information (certified copies) sought in the application regarding the article titled INDIAN SPY IN BEIJING HONEY TRAP RECALLED published in the Mail Today newspaper on 1st May 2008. This article contains several disclosures about RAW. It is relevant that in respect of similar disclosures in a book titled INDIA'S EXTERNAL INTELLIGENCE' SECRETS OF THE RESEARCH & ANALYSIS WING (RAW) written by the applicant, 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 complaint in the Court of the CMM against the applicant on 9.4.2008 and a charge sheet on 11.4.2008.
The information may be provided within 48 hours under section 7 (1) of the Act, since its concerns the liberty of the applicant. 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 applicant. The applicant had filed an application for anticipatory bail in the Court of the Session Judge on 26.9.2007 which has still 10 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 bearing 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 applicant in time it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet."
4) FILE NO. CIC/WB/C/2008/00637 In an application of 1.5.08 addressed to the CPIO, MHA Maj. Gen. Singh sought the following information:
"The following up to date information, Para wise in detail, duly typed and certified, regarding the article FOR A PARADIGM SHIFT written by Praveen Swami published in the Frontline journal Volume 18 - Issue 07, March 31 - April 13, 2001 is required urgently:
1. The article contains the following passage:
Jammu and Kashmir Governor Girish Chandra Saxena's report on the area of intelligence is without doubt the most substantial of the four documents the GOM has accepted. Prepared with former Foreign Secretary K. Raghunath, former I.B. Chief M. K. Narayanan, former Special Secretary, Home, P.P. Srivastava, former RAW Additional Secretary B. Raman and R. Narsimha of the National Institute of Advanced Studies, the meticulously researched report calls on India's intelligence establishment to take "an honest and in-depth stock of their present intelligence effort and capabilities to meet challenges and problems". The report calls for a wholesale upgrading of a technical imaging, signals, electronics counter-intelligence and economic intelligence capabilities as well as a system wise reform of conventional intelligence gathering.
The above passage reveals the names of the officers constituting the task force, which was deleted from the GOM report on security grounds. It also quotes from the report and gives the salient features of the recommendations of the task force, which has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA), 1923 and Indian Penal Code (IPC), 1860?
2. The article contains the following passage:11
Saxena's report gives the I.B. a formal charter for the first time in its history. It will now have responsibility for the collection and dissemination of all intelligence on internal security, making it the nodal organization for counter-terrorist and counter-intelligence work. The organization has also been tasked with ensuring the security of information systems. This charter should free the I.B. from much of its political surveillance work, and the election related information gathering it has been pushed into doing by successive governments. In six months, the organization should also have created India's first dedicated police computer network and terrorism database.
The above passage reveals details regarding the intelligence Apparatus, which was deleted from the GOM report on security grounds. It gives the salient features of the recommendation of the GOM, which has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act (OSA) 1923 and Indian Penal Code (IPC) 1860?
3. The article contains the following passage:
Now it (IB) is to get independent communications intelligence capability, which would enable it to monitor all forms of cellular, land line, radio frequency and Internet traffic. It will have its own cryptographic resources, along with state-of-the-art direction-finding equipment to locate transmissions, including those by terrorists in areas like Jammu and Kashmir.
The above passage reveals details regarding the Intelligence Apparatus which was deleted from the GOM report on security grounds. It gives the salient features of the recommendations of the GOM, which has not been made public. Does this disclosure not violate the provisions of the OSA 1923 and IPC 1860?
4. The article contains the following passage:
Until now the RAW has been the only organization permitted to conduct espionage operations abroad. The I.B. had personnel in neighbouring countries like Pakistan and Nepal, but these agents were what are terms "declared" ones. This means the governments of the countries they are posted to are notified that they are intelligence officers, and their duties 12 are restricted largely to ensuring the security of diplomatic missions and the staff. Now the I.B. will be empowered to conduct covert work relevant to its new charter, including deep penetration operations. This, the Saxena report points out, will mean that the I.B. will have to upgrade considerably the quality of its personnel and their training, and that the Ministry of Home Affairs will have to stop treating the organization as an "appendage or subsidiary unit".
The above passage reveals details regarding the Intelligence Apparatus which was deleted from the GOM report on security grounds. It gives the salient features of the recommendations of the GOM, which has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act 1923 and Indian Penal Code 1860?
5. The article contains the following passage:
The RAW, like the I.B. should emerge from the restructuring a leaner and more focused organization. Much of its deadweight could be cut away. Organisations like the moribund Shanti Suraksha Bal (SSB) now under the charge of the Secretary RAW in the Cabinet Secretariat are to be rationalized. Most of the SSB's 30,000 odd personnel, originally recruited to act as a paramilitary force along the border with China, will be inducted in the Indo-Tibetan Border Police (ITBP). Some of the SSB's convert operatives will be handed over to the I.B., and the rest retained by the RAW to meet its in-house security needs. This will free officer level personnel for the organization to concentrate on its main job, gathering external intelligence and running trans-border operations.
One notable victory for the RAW is the GOM's decision to agree that it should retain the high-profile Aerial Reconnaissance Centre (ARC), set up with the assistance of the United States in the wake of the India-China border conflict. The Army had demanded that it be given control of the ARC, which operates a fleet of aircraft especially equipped for high altitude operations and precision imaging equipment. At the moment RAW designs a year-long agenda for the ARC, based on broad assessments by the Army of the kinds of surveillance flights that are required. Now the Army will have more direct representation in the ARC, in the form of a Military Intelligence Advisory Group, 13 which shall be involved in day to day operations. Control of the organization, how ever, remains firmly in the RAW's hands. This is because the organization is best equipped to assess broad threat perceptions.
The above passage reveals details which are probably part of the chapter on Intelligence Apparatus which was deleted from the GOM report on security grounds. It gives the salient features of the recommendations of the GOM regarding the proposed restructuring of RAW, which has not been made public. Does this disclosure not violate the provisions of the Official Secrets Act 1923 and Indian Penal Code?
6. The article contains the following passage:
Military Intelligence, however, has little cause for complaint. While the RAW will retain primacy in external intelligence, the new DIA will be empowered to conduct trans-border operations. Based, sources say, on a secret authorization granted by Prime Minister V.P. Singh in 1990-1991, the DIA will now be able to conduct operations for tactical intelligence coverage in all of Pakistan. It will also be allowed to execute independently what intelligence operatives call "port-to-port" and "airport-to-airport"
operations - technical terminology for the movement of agents across national borders.
It is also clear that the DIA's head will have more power than any military intelligence bureaucrat of the past. The General will be the principal military intelligence advisor to the Chief of Staffs Committee and the Defence Minister. This means that in theory the three Chiefs of Staff will have no direct control over the intelligence services of their respective forces. The DIA chief will also directly control two of the Military intelligence establishment's most powerful institutions, the Signals Intelligence Directorate and the Defence Image Processing and Analysis Centre (DIPAC).
The above passage reveals details which are probably part of the chapter on Intelligence Apparatus which was deleted from the GOM report on security grounds. It gives the salient features of the recommendations of the GOM regarding the proposed restructuring of military intelligence, which has not been made public. Does this 14 disclosure not violate the provisions of the Official Secrets Act (OSA) 1923 and Indian Penal Code?
7. Does the Government contemplate initiating action against Frontline for publishing information contained in the GOM Report on National Security 2001 in 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."
To this the General received a response from Shri JPS Verma dated 9.6.08 who had received the application on 13.5.08 with the following response:
S. Serial given in the Reply No. application
1. Point No. 1 to 6 In these points, opinion has been sought on extracts of the article titled '"FOR A PARADIGM SHIFT"
written by Praveen Swami, published by the Frontline Journal, Volume 18 - Issue 07 March 31 -
April 13, 2001.
There is no provision in RTI Act, 2005 to provide such opinion.
2. Point No. 7 As on date, no action is contemplated against the author of the book under OSA, 1923.
In this case also complainant Maj. Gen. V. K. Singh has moved a complaint directly before us with the following prayer:
"Shri J.P.S. Verma, Dy. Secy. & CPIO, MHA, may be asked to provide the information requested concerning the article FOR A PARADIGM SHIFT written by Praveen Swami in the Frontline Journal, Volume 18, Issue 07, March , 31 - April 13, 2001. The information may be provided within 48 hours under Section 7(1) of the Act, since its concerns the liberty of the applicant. 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 applicant. The applicant 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 15 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 applicant in time, it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet."
5) FILE NO. CIC/WB/C/2008/00636 In an application of 30.4.08 addressed to the CPIO Ministry of Law & Justice Maj. Gen. V. K. Singh has sought the following information through 35 questions on the following:
"The following up to date information, para-wise in detail, duly typed and certified, regarding the book titled THE KAOBOYS OF R&AW - DOWN MEMORY LANE. Written by B. Raman, is required urgently."
In this case 28 of the questions conclude with the following poser:
"Does this violate the relevant sections of the OSA and IPC?"
The remaining 7 questions listed at Sr. No. 29 to 35 are as follows:
"29. Do the above mentioned disclosures / revelations violate various sections of the Official Secret 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.
30 . Did the author seek permission to publish the book from the Ministry of Law or any other Govt. Department? If yes, provide copies of permission and files notings.
31. Has the Law Ministry or any other Govt. Department filed with CBI any complaint regarding the violations of the Official Secret Act 1923 and IPC 1860 in respect of the Book? If yes, provide copy of the complaint.
32. Has any action been initiated against the author and publisher of the book under the Official Secrets Act, 1923 and IPC 16 1860? If yes, provide copy of the same. If no, reasons thereof may be provided.
33. Is the Government aware of the violations of the Official Secrets Act 1923 and IPC 1860 in the book?
34. What action has the Government taken with regard to the book? Copies of relevant correspondence and file notings may please be provided.
35. 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."
By his letter of 5.5.08 CPIO Shri L. R. Roy Dy. Secy., Ministry of Law & Justice transferred this application to MHA u/s 6(3) of the RTI Act which after an internal circuit in the MHA elicited the following reply from Sh. J.P.S. Verma dated 3.6.08:
Sr. Serial given in the Reply.
No. application
1 Point No. 1 to 28 In these points, opinion has been sought on extracts of
the Book titled 'THE KAOBOYS OF R&AW - DOWN
MEMORY LANE" written by B. Raman. There is no
provision in RTI Act 2005 to provide such opinion.
2. Point No. 29 Does not require any reply.
3. Point No. 30 The author has not sought permission from the Ministry of Home Affairs.
4. Point No. 31 No complaint filed by the Ministry of Home Affairs with CBI in this regard.
5. Point No. 32 Does not relate to the undersigned, CPIO
6. Point No. 33 No such violation has been reported to the M/s Home Affairs.
7. Point No. 34 No action has been taken by the M/o Home Affairs with regard to the book.
8. Point No. 35 As on date, no action is contemplated against the author of the Book under OSA, 1923."
6) FILE NO. CIC/WB/C/2008/00635 In an application of 28.4.08 Maj. Gen. V. K. Singh applied to the CPIO MHA seeking information on the report of the Group of Ministers on National Security 17 constituted in 2000, comprised of 15 questions. This was forwarded, as intimated to complainant Gen. Singh, by Sh. P. K. Mishra, Director, MHA, through his letter of 6.6.08 to the National Security Council Sectt., Lok Sabha Sectt. and Rajya Sabha Sectt. A copy of the transfer letter of 6.6.08 was also endorsed to complainant Maj. Gen V. K. Singh by Shri P.K. Mishra, MHA. In this case complainant's prayer before us is as follows:
"The Ministry of Home Affairs may be directed to provide the information requested regarding the Report of the Group of Ministers on National Security. 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. RC 5(5)/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 Court 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.
Shri P.K. Mishra, Director & CPIO MHA may be asked to explain the reasons for giving only a partial reply to Question No. 1 regarding the dates on which the task Force set up by the GOM finalized their reports, since this information is available in GOM Report itself.
Shri P.K. Mishra Director & CPIO MHA may be asked to explain the reasons for deliberately delaying the information by transferring the application to several addresses much beyond the time limit of 5 days in Section 6(3) of the RTI Act, and for back dating the letters signed by him."18
He has also complained of a malafide by Shri P. K. Mishra, stating as follows:
"It is relevant that both the above letters from Shri P.K. Mishra bear the date 6.6.2006. However, they were received only on 21.6.2008. The post office stamps on both bear the date 17.6.2008. These letters have been obviously been back dated."
7) FILE NO. CIC/WB/C/2008/00634 In this case complainant Maj. Gen. V. K. Singh had moved an application before the Ministry of Law & Justice on 28.4.08 seeking information through 25 questions on the following:
"The following up to date information, Para wise in detail, duly typed and certified, regarding the book titled Inside RAW - The Story of India's Secret Services, written by Asoka Raina is required urgently."
The first 19 questions in this application, all conclude with the following poser:
"Does this not violate the relevant sections of the OSA and IPC?"
The final five questions at Sr. No. 19 to 25 (there are no questions at Sr. No. 23 & 24) are as follows:
"19. Do the above mentioned 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 Ministry of Law 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.19
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 may be provided. If not, the reasons thereof may be provided."
In this case Shri N.R.Roy CPIO & DS, Ministry of Law & Justice in his letter of 5.508 transferred the application to the Ministry of Home Affairs from whom complainant Maj. Gen. V. K. Singh does not seem to have received any reply. His prayer in his complaint made directly to us is as follows:
"The Ministry of Home Affairs 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 SERVICES, written by Asoka Raina. The information may be provided within 48 hours under Sec. 7(1) of the Act, since it concerns the liberty of the applicant. 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 applicant. The applicant 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 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 applicant in time, it will assist him in obtaining bail once the CMM takes cognizance of the charge sheet."
These complaints were heard on 10.10.08. The following are present:
Appellant Maj. Gen. V. K. Singh Sh. Har Mohan Rai Respondents Shri P.K. Mishra, Director (IS-II) Shri J.P.S. Verma, Dy. Secy. (IS-II) 20 Maj. Gen. Singh submitted that he is being prosecuted for disclosures of far less magnitude then those disclosed by the others in the various publications cited by him in these complaints. It is, therefore, a matter of life and liberty for him to know, not only that they are not being prosecuted, but why that is so, when complainant has exposed, through his applications, the disclosures that breach the provisions of both the Official Secrets Act (OSA) 1923 and the Indian Penal Code 1860. Yet no action is contemplated against them.
DECISION NOTICE In the normal course, petitions where a complaint is made directly to us u/s 18 without taking recourse to first appeal and where no reason is given as to why such recourse is not taken, are remanded back by bus to the First Appellate Authority for an early decision. However, in this case, since the matter quite clearly concerns liberty, criminal prosecution having been launched against appellant Maj. Gen. V. K. Singh, we have decided to hear the complaint directly us 18 sub-sections (b) and (e).
The question asked in several applications, "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 1 and includes the right to--
(i) inspection of work, documents, records; 1 Underlined by us 21 (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 2 ". In other words such information must be held in material form even where it is only an opinion or advice.
The same principle will apply to responses given to the points 1 to 3 in the application in file Nos. CIC/WB/C/2008/00640 and CIC/WB/C/2008/00639, to points 1 to 4 in file CIC/WB/C/2008/00638 and to points 1 to 6 in File CIC/WB/C/2008/00637.
However, in the concluding question of each of these cases, complainant Maj. Gen. V. K. Singh has clearly asked whether the Government contemplates initiating action against those whom he alleges to have been guilty of violating the Official Secrets Act, 1923 and Indian Penal Code 1860 in the following words, "If yes, copy of FIR, charge sheet and other relevant documents may be provided. If not, the reasons thereof may be provided". Whereas the answer in all the above cases is indeed a "no", which obviates the necessity to reply to this part of the question had the answer been "yes". However, none of the replies addresses the reasons for not prosecuting the alleged offenders. CPIO Shri JPS Verma, DS submitted in the hearing that this is to be inferred. However, since the RTI Act quite clearly lays down u/s 7(9) that "an information shall ordinarily be provided in the form in which it is sought", it cannot be presumed to have been provided by inference. Hence in each of these cases, CPIO Shri J.P.S. Verma, DS IS-II will give a speaking response to this question to complainant Maj.2
Underlined by us 22 Gen. V. K. Singh within ten working days of the date of receipt of this Decision Notice.
However, in light of the comments of complainant Maj. Gen. V. K. Singh on the publications cited in each of these cases, it is suggested that IS Division of the Ministry of Home Affairs examine whether there are indeed grounds for prosecution of the authors under the Official Secrets Act 1923 or the Indian Penal Code 1860. It is common knowledge that at least one among the authors mentioned is an outsource for planted "leakages" of a leading intelligence agency. The Ministry may wish to take a view on whether such inspired leaks are in keeping with national security.
The question raised in File No. CIC/WB/C/2008/00635, however, concerns the disclosure of information with regard to Group of Ministers, regarding which a concurrent application has been examined separately in file No.CIC/WB/A/2008/01161. This has been rightly transferred to the appropriate public authority, which is the National Security Council Secretariat regarding which a concurrent application has been examined separately in file No.CIC/WB/A/2008/01161. In this matter, there has been general concurrence that the matter concerns the National Security Council Secretariat (NSCS), which holds the information. The matter has in fact been referred to the NSCS by Shri P.K. Mishra, Director, MHA on 6.6.08. We have dealt with the reference to the Lok Sabha Sectt. and the Rajya Sabha Sectt. in separate files. The conclusion is that the information sought is held by the NSCS. By Notification GSR No. 235(E) dated 27.3.2008 published in the Extraordinary Gazette Part-II, Section 3, Sub Section (i) which was published on 28.3.2008, National Security Council has now been listed in the Second Schedule of the Right to Information Act 2005. However, this notification can only have prospective effect and was, therefore, not operative at the time when this application was referred to the National Security Council, and had thus merited a response. CPIO Shri G. Rajeev, Under Secretary, National Security Council Sectt. will now, therefore, provide a reply to 23 the application within ten working days of receipt of this Decision Notice, within the parameters mandated by the Right to Information Act, 2005. He will also show cause as to the reasons for the delay in responding and why he should not be held liable for a penalty of Rs. 250/- a day from 6.7.08, when the information became due, to the date when the reply is actually sent, not exceeding Rs. 25,000/- . He may do this in writing addressed to Shri Pankaj K.P. Shreyaskar, Joint Registrar of this Commission on or before 3.11.2008.
In this case appellant Maj. Gen. V. K. Singh has also alleged malafide by Shri P.K. Mishra, Director. Whereas the allegation does reveal negligence at the level of the office of CPIO, because of the inconsistency in dates of dispatch, we cannot conclude that CPIO is himself liable. CPIO Shri P.K. Mishra is, however, cautioned to ensure that in servicing applications under the RTI Act due diligence is exercised in ensuring timely receipt and dispatch. In the present case he may consider appropriate action against the errant office staff.
All seven complaints are disposed of accordingly. Announced in the hearing.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 10.10.2008 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 10.10.2008 24