Central Information Commission
Smt.Chonchurinmayo Luithui vs Ministry Of Home Affairs on 10 June, 2011
Central Information Commission
Room No. 305 BWing, August Kranti Bhawan,
Bhikaji Kama Place, New Delhi - 110066
Tel No: 26167931
Case No. CIC/SS/A/2010/000621
Name of the Appellant : Smt. Chonchuirinmayo Luithui
(Shri Venkatesh Naik, Shri Shomona
Khanna were present on behalf of the
Appellant)
Name of the Public Authority : Ministry of Home Affairs, (Foreigners
Division), New Delhi.
Represented by Shri G.V.V. Sarma, J.S.
(Foreigners) and Shri P.V. Sivarama,
Director(Foreigners).
The matter was heard on : 5.1.2011. (The matter was reserved for
orders).
ORDER
Smt. Chonchuirinmayo Luithui, hereinafter known as the Appellant filed an
application dated 7.12.2009, seeking the following documents under the provisions
of RTI Act, 2005:
1. Ministry of Home Affairs letter/circular being MHA No. 25018/127/96 F.IV
dated 24.9.1996.
2. Circular No. VI/405/89/94 dated 31st August, 1995.
3. Supporting documents relating to the above, including
annexures/appendices.
4. File notings relating to the above.
Shri P.V. Sivaraman, Deputy Secretary/CPIO, Ministry of Home Affairs,
replied as follows:
"The information sought by you is sensitive in nature the disclosure of which
would prejudicially affect the security of the country. In view of this, it is regretted
that the information sought by you cannot be furnished in terms of the provisions
contained in section 8(1)(a) of the RTI Act, 2005".
Aggrieved with the reply, the Appellant filed an appeal before the FAA.
Shri Ashim Khurana, Joint Secretary(Foreigners)/FAA, vide his order dated
24.2.2010 replied to the Appellant as follows:
"I have examined the matter. The Circular of Ministry of Home Affairs
No.25018/96.F.IV dated 24.9.96, a copy of which has been sought by you
alongwith supporting documents including annexures/appendices and file notings,
are classified documents, disclosure of which would prejudice the security of the
State. The CPIO has therefore, rightly denied the information under Section 8(1)
(a) of the RTI Act, 2005.
It is seen that the Circular No.VI/405/89/94 dated 31st August, 1995 seems
to be the order issued by the Ministry of External Affairs impounding the Indian
passport No.R461568 of Shri Luingam Luithui. Since this has been issued by the
Ministry of External Affairs, a decision on furnishing a copy of the above
mentioned circular, supporting documents including annexures/appendices and
file notings related to the above is to be taken by the Ministry of External Affairs. I
am forwarding a copy of your RTI application and the RTI appeal to Joint
Secretary(CPV), Ministry of External Affairs, Patiala House, New Delhi for
information and action as deemed appropriate by the CPV Division, Ministry of
External Affairs."
Not satisfied with the reply of the Respondent, the Appellant has filed the
present appeal before the Commission in which she states that she has received responses from the CPIO and Appellate Authority, Ministry of External Affairs dismissing the transferred RTI application, for which she has separately filed a 2nd appeal before the Central Information Commission in which she submits that impugned order dated 24.2.2010 of the FAA is without jurisdiction since the FAA has transferred one portion of the information sought in RTI application dated 7.12.2009 to the Ministry of External Affairs along with a copy of the RTI appeal filed by the Appellant. The Appellant pleads that the RTI Act does not permit the transfer of any RTI application from one public authority to another at the stage of an appeal. She pleads that the CPIO also failed to avail of the provisions u/s 6(3) of the RTI Act, 2005 to transfer a portion of the application to the Ministry of External Affairs. Instead, he came to a decision that the supply of all the documents sought are barred u/s 8(1)(a) of RTI Act in its entirety. The Appellant also submits that file notings/records available with the Appellant reveal that the Respondent CPIO, the very authority against whose order the first appeal was filed, was involved at the drafting and finalization stage of the order dated 24.2.2010 of the FAA and therefore ought to be set aside. As per the Appellant the denial of information u/s 8(1) (a) of RTI Act is without any apparent basis and the FAA has not specified as to how and in what manner the information sought would prejudicially affect the security interest of the State. In his order the FAA state that the information sought for does not concern "life or liberty of a person"
within the meaning and intent of that expression in proviso of sub section (1) of section 7 of the RTI Act. Section 7(1) and section 10(1) of the RTI Act expressly requires the giving of reasons which the FAA has failed to for declining the information sought by the Appellant. Therefore the Appellant submit that CPIO/Appellate Authority is bound to give detailed reasoning in the form of a speaking order while denying any information requested instead of mechanically invoking an exemption clause contained in the RTI Act. The Appellant also pleads that the Respondent have failed to read section 8(1) with section 8(2) and section 10(1) of RTI Act which relate to the balancing of public and protected interest. Nor was the Appellant provided with an opportunity to be heard or to present argument and reasons why the public interest in disclosure of the information sought outweighs the protected interests, as alleged. The Appellant also maintains that the information sought related to circulars which are in the nature of information and therefore it should be proactively disclosed by a public authority and there is no justifiable reason why access to a circular issued by the Ministry of External Affairs may be refused by invoking section 8(1)(a) of the RTI Act.
Shri Venkatesh Niak, on behalf of the Appellant and Respondent FAA & CPIO were heard. In a written representation submitted during the hearing, the Respondent submit, with reference to the grounds for appeal, admit that the portion of the RTI application seeking a copy of a circular issued by Ministry of External Affairs impounding the pass port of Shri Luingam Luithui, should have been transferred immediately to the Ministry of External affairs. However, subsequently, while processing the appeal, the Appellate Authority, vide his letter dated 24.2.2010 forwarded the relevant portion of the RTI application and the appeal to Joint Secretary(CPV), Ministry of External Affairs for appropriate action. They submit the Appellate Authority has examined the case thoroughly and has not simply gone by the views recorded by the junior officers. They also elaborate the procedure followed whenever an RTI application or an appeal is received by the public authority. They submit that handling of a file in the section does not in any way mean that the CPIO or the Appellate Authority has not applied their minds before furnishing a reply.
In the present case, the Respondent submit, the information sought by the Appellant in the first part of the RTI application was a copy of the Ministry of Home Affairs letter/circular dated 24.9.96. This is a Look Out (LO) circular issued against Shri Luingam Luithui, Naga activist based in Bangkok for his antinational activities. As per the extant procedure a copy of the LOC cannot be furnished to the Appellant since it is a classified document and sensitive in nature. Foreigners Division, MHA is not providing copies of Blacklist/LOC circulars to any one in the public. Even though this is mentioned as a "Circular", this is not a circular to be placed in the public domain and it is only for restricted use of the authorities to whom copies are sent. Obviously, therefore such Blacklist circular LOC cannot be covered u/s 4(1) (a) of the RTI Act. In so far as denial of information u/s 8(1) (a) is concerned, the Respondent submit that the RTI Act provides for denial of information if the disclosure of the same would prejudicially affect the security of the State. In the present case, as per the Respondent, it is quite evident that the LOC issued against Luingam Luithui was in the context of his antinational activities and therefore, obviously, the disclosure of the information would affect the security of the State.
Regarding the reference made by the Appellant to the proviso u/s 7(1) of the RTI Act, the Respondent submit that according to this provision where the information sought for concerns the life or liberty of a person, the same is to be provided within 48 hours of receipt of request. The Respondent submit there was nothing in the RTI application or appeal indicating as to how the information sought relates to life or liberty of a person.
In response to the submissions of the Respondent, a rejoinder has been submitted by the Respondent in which the Appellant objects to the use of antiNational activities for Luingam Luithui and therefore requests to expunge the statement of the Respondent regarding the use of word 'antiNational activities'. The Commission however is of the view that the submissions of the Respondents are as per their record and the Commission cannot help if such terminology is used in the submission made by the Respondent. A similar issue, as in the present case, arose before the Commission in Nusli Wadia vs. Ministry of External Affairs Appeal No. CIC/OK/C/2008/00245 and Appeal No. CIC/OK/A/2007/001392 in which the Commission held that it is for the concerned public authority, which is the authorised agency for the purpose and not for the Commission to take a view regarding applicability of Section 8(1) (a). The same ratio is applicable to the present case.
After hearing the parties and on perusal of the relevant documents on file and also keeping in view of the concerns of the Respondent that disclosing the information requested would prejudice the security of the State, the Commission is of the considered view that the ratio of the Full Bench Decision of the Commission in Nusli Wadia Vs. MEA is applicable to the facts and circumstances of the present case also. Therefore, the Commission is of the view that the sought for information is exempted under section 8(1)
(a) of the RTI Act. The replies of the Respondents are upheld.
Sd/ (Sushma Singh) Information Commissioner 10.6.2011 Authenticated true copy:
(K.K. Sharma) OSD & Assistant Registrar Case No. CIC/SS/A/2010/000621 Copy to:
1. Smt. Chonchuirinmayo Luithui 180D Pocket C Sidharth Extension, New Delhi - 110014.
2. The Public Information Officer, Deputy Secretary to the Govt. of India, Ministry of Home Affairs, Foreigners Division, Jaisalmer House, 26 Manshing Road, New Delhi - 110011.
3. The First Appellate Authority, Joint Secretary (Foreigners), Ministry of Home Affairs, Foreigners Division), Jaisalmer House, 26 Mansingh Road, New Delhi - 110011.