Central Information Commission
Abhishek Shukla vs Central Reserve Police Force on 8 February, 2019
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/CRPFO/A/2017/603514
Sh. Abhishek Shukla ... अपीलकताग/Appellant
VERSUS
बनाम
1. PIO,
Dy. Inspector General
Directorate General
CRPF
...प्रनतवािीगण /Respondents
2. PIO, MHA; Police Division
Relevant dates emerging from the appeal/complaint:
RTI : 26.05.2017 FA : 31.05.2017 SA : 06.07.2017
Hearing : 26.03.2018, 28.05.2018,
PIO: 31.05.2017 FAO : 03.07.2017 06.09.2018; 17.09.2018; 01.10.2018,
19.12.2018, 04.02.2019
Date of Interim Decisions : 23.04.2018, 03.07.2018, 06.09.2018;
17.09.2018; 20.11.2018, 21.12.2018
Page 1 of 28
Background of the case:
Vide online RTI application dated 26.05.2017, the appellant sought information as under:-
1. Has IG Rajnish Rai sent any report on the encounter with two suspected members of the National Democratic Front of Bodoland (Songbijit) on March 30.
2. When was this report received?
3. What action has been initiated on the basis of the report.
4. Please provide a copy of the report along with action taken on the basis of it.
5. Is CRPF or the Home Ministry carrying out any inquiry against IGP Rajnish Rai.
PIO denied information claiming exemption under Section 24(1) of RTI Act. Dissatisfied with response received from PIO, the appellant filed first appeal. FAA in response to appeal upheld the reply of PIO. Feeling aggrieved onnon- receipt of information, the appellant approached the Commission.
Facts emerging during hearing (26.03.2018):
Both the parties are present and heard. The appellant while relying on the media reports filed on record, submits that an alleged encounter took place on 30 March 2017 at Chirang, Assam wherein two alleged extremists; identified as Lukas hNarzary alias Langfa and David Islary belonging to prohibited terrorist organization National Democratic Front of Boroland were confronted and killed by a joint operation team of CRPF, Army, SSB, Assam Rifles and Assam Police. He states that as per the official version, the joint operation was reported as a successful operation wherein reportedly a party of insurgents in the wee hours of the day were engaged by the joint forces in gun battle and later two of the militants were neutralised in cross-firing. He states that as per national media reports, the aforesaid 'encounter' was inquired into by the then Inspector General, CRPF (North East), Mr. Rajnish Rai, IPS who submitted his report to the Director General, CRPF. The appellant while referring to the media reports claims that the encounter, 'presents a fictitious account of the joint operation by the security forces to cover up pre-planned murders of two persons in custody and present it as some brave act of the professional achievement. In this backdrop, the appellant asserts that a prima facie case of human rights violation Page 2 of 28 has been made out and the information sought cannot be denied to him inasmuch as the same qualifies for disclosure under first and second proviso appended to Section 24 (1) of the RTI Act. Relevant statutory provision reads as:
24. Act not to apply to certain organizations.--
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.
In the factual backdrop, the appellant presses for disclosure of information as having made out a prima facie case of alleged human rights violation.
On the other hand, the PIO apart from raising plea of exemption from disclosure under Section 24 in general, asserts that revelation of information sought wound not only prejudicially affect the sovereignty and integrity of India and the allied security interest of the state but will adversely impact the morale of armed forces deployed in the North East for maintaining law and order. Thus, the PIO places reliance on Section 8(1)(a) of the RTI Act, 2005.
8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
Page 3 of 28Upon a query by the Commission as regards the status of processing and action taken upon of the report in question, both the parties plead ignorance. However, the appellant expressed apprehensions that the report was 'buried' by the higher authorities to discourage any plea of further investigation by any 'external independent agency', as reportedly recommended by Mr. Rajnish Rai.
Interim Decision (23.04.2018):
Having heard the parties and length, the Commission is of the view that the appellant has made a prima facie case warranting disclosure of information sought, by bringing it within the ambit of first proviso of Section 24 of the RTI Act. The language of Section 24 is unambiguously clear. The expression 'allegations of corruption and human rights violations' do not cast a burden upon the information seeker to establish the instance of actual corruption or human rights violation beyond reasonable doubt. 'Allegation' has to be interpreted purposively in line with the Act.
However, the information sought ipso facto would not qualify for disclosure. Each query has to be tested on the touchstone of Section 8. The Commission is of the view that queries no 1 and2 do not attract any bar under Section 8(1)(a) and there is no impediment in disclosure of information on the same to the appellant.The fact of existence of report in question, date of receipt and action initiated does not qualify for exemption under Section 8(1)(a). As such, the CPIO CRPF is directed to furnish reply on point no. 1 and 2 forthwith to the appellant within 2 weeks of receipt of this order.
As regards the rest of the queries, i.e. 3, 4& 5, the Commission is of the opinion that without examining the contents of the report in question, the applicability of Section 8(1)(a) cannot be evaluated.
Apart from hearing the respective versions of the parties, the Commission takes suomotu notice of the fact that the place of occurrence, Chirang province in Assam was declared a disturbed area under the Armed Forces (Special Powers) Act (AFSPA) at the relevant time. Considering the apparently conflicting interests of human rights violation and national security; as portrayed by parties hitherto, the Commission is inclined to summon and call for the complete records of the case before deciding the present appeal. The Commission hastens to clarify Page 4 of 28 that the said exercise shall be confined to deciding the question of disclosability of the information sought under the RTI Act.
In view of the nature of matter and the fact that various central agencies jointly executed the encounter operation, CPIO, MHA is also impleaded as a party. The CPIO, CRPF as well as CPIO, Ministry of Home Affairsshall remain present before the Commission with the enquiry report authored by then IG (North East) CRPF and the complete records of the processing of the filealongwith final decision taken thereon, by CRPF and MHA. The PIOs shall also submit a status report on the matter before the Commission.
Re-notify on 28.05.2018 for further proceedings and presence of PIOs with records called for as directed.
***************************************************************** ********************* Facts emerging during further hearing [28.05.2018]:
The appellant is absent. Respondents from CRPF Shri Rakesh Sethi, DIG (Adm) with Shri Gurshakti Singh Sodhi, DIG are present and heard. The CPIO, MHA is absent despite notice. The respondents from CRPF submit that on point no. 1 & 2 information has been furnished to the appellant vide reply dated 04.05.2018. Copy of reply taken on record.
The PIO, CRPF further submits that all other queries under points no. 3 to 5 pertain to MHA and CRPF is not the custodian of information. Upon a query from the Commission, it is submitted by the respondent that a discreet enquiry was conducted at the instance of Mr. Rajnish Rai. The report was then transmitted to MHA by DG, CRPF for appropriate action.
Upon further enquiry, the Commission is apprised that a magisterial enquiry was conducted in the incident which established that there was nothing untoward and the same has been accepted as final. The report is stated to be filed before the National Human Rights Commissionas well as State Human Rights Commission.
Interim Decision (03.07.2018):
In view of the submissions made by PIO, CRPF, the Commission finds that information under the control of CRPF has been furnished to the appellant. The presence of PIO, CRPF is dispensed with in the present case for further hearing.Page 5 of 28
Rest of the queries at Sr. No 3-5 pertain to MHA. In view of the absence of PIO, MHA in course of hearing, a final opportunity of hearing is granted to MHA. PIO, MHA to remain present with complete records of the case and report authored by Mr. RajnishRai under question.PIO is at liberty to file submission clearly bringing out a reply as against each of the remaining unreplied queries of the RTI application.
It is clarified that ex-parte decision shall be taken if the PIO, Police I Division, MHA remains absent on next date of hearing. Re-notify for final hearing on 06.09.2018 at 1230 hrs. Facts emerging during further hearing [06.09.2018]:
Appellant: Absent Respondent: Shri R.S. Vaidya, Dy. Secy. MHA, Shri Anil Subramanian, Director MHA, Shri SS Sejwal, Legal officer.
The appellant is absent. The respondents are present and heard. A written submission has been brought on record by the respondents indicating reply of MHA as against query no. 3-5. In reply to the RTI queries, the respondents have held the information sought to be classified and barred from disclosure under various provisions of Section 8. The report, as authored by Mr. Rajneesh Raihowever has not been presented before to the Commission despite a clear direction to that effect. The respondents reiterated that the information sought cannot be disclosed to the applicant. The written submission filed before Commission is stated to be approved by the Secretary, Ministry of Home Affairs, GoI.
Interim Decision (06.09.2018):
The contention advanced by the respondent justifying non-disclosure merits consideration and same shall be considered at appropriate time. However, the rival contention of parties cannot be weighed and adjudicated until and unless, the very report which is the subject matter of adjudication is not available with the Commission. Until and unless, the contents of report are made known to the Commission, no adjudication on the dispute over disclosability of the report can Page 6 of 28 be done. It is neither feasible nor pragmatic or judicious to have an opinion over the disclosability of a document without actually knowing the actual contents.
A last and final opportunity is granted to MHA to produce the enquiry report with the connected files before the Commission. The Commission shall take a view after examining the report and other documents in ambit of the queries no. 3-5. The record is being summoned under Section 18(3)(a) & (e) of the RTI Act. The respondent MHA through Secretary, MHA shall take due notice under Section 18(4) of the RTI Act and no part of the document summoned shall be withheld from the Commission. Let the record be produced before the Commission on 17.09.2018 at 1 pm. The respondents have made a prayer for conducting in-camera proceedings. The same is allowed. The registry is directed to make necessary arrangements accordingly. Adjourned for final proceedings and hearing on 17.09.2018.
A copy of the present decision shall be issued dasti to office of Secretary, MHA.
Facts emerging during further hearing [17.09.2018]:
Appellant: Absent Respondent: Shri Arun Bhardwaj, Ld. CGSC Shri R.S. Vaidya, Dy. Secy. MHA, The appellant is absent. The respondents are present and heard. After the present appeal was last heard on 06.09.2018, an application captioned under 'Section 114 read with Order XLVII Rule 1 further read with Section 151 of the Code of Civil Procedure, 1908' has been filed on record by the respondents. The prayer clause of the application reads as:
PRAYER:
Therefore it is most respectfully prayed that this Hon'ble court may be pleased to:-
i) In the interest of justice and in the peculiar facts and circumstances of the case, regard being had to the provisions of the RTI Act, 2005(specially Section 24 thereof) it is most Page 7 of 28 respectfully prayed that the impugned orders dated 26.03.2018;
28.05.2018,23.04.2018, 03.07.2018 and 06.09.2018 other orders passed by the learned CIC may kindly be recalled so far it summons and directs the Ministry of Home Affairs to produce the records before it on the next date of hearing in CIC/CRPFO/A/2017/603514.
ii) It is further prayed that learned ClC may kindly declare that MHA is not the custodian of the said report nor has any control over it and MHA is not 'The Public Authority' which can be directed through produce the said record.
iii) It is further prayed that the learned CIC may declare that the report sought for, even otherwise is exempted under section 24 of the RTI Act, 2005.
iv) It is further prayed that the Learned CIC may declare that mere allegations of corruption and violation of human rights by an applicant would not be sufficient to conclude that corruption or violation of human rights exists and no complaint /appeal/ application under RTI Act, 2005 can be entertained merely on the basis of bald allegations which are not supported by any document.
v) It is further prayed that directions to conduct in-camera proceedings may be kindly be recalled as it has been wrongly mentioned in the order that the Respondent has made such a request for conducting in-camera proceedings.
vi) It is further prayed that all objections taken by the MHA may kindly be decided by reasoned speaking order in the interest of justice.
vii) Pass such further and other orders and directions as this Hon'ble Court may deem fit and proper.
Interim Decision (17.09.2018):
The application running into 52 pages has been filed with the registry of the Commission on 14.09.2018 and the same was brought on record today itself after the process of scanning. It is also not clear if an advance notice of the same was Page 8 of 28 served upon the appellant. Respondent is directed to serve notice of the application dated 14.09.2018, if not already done. As such, the Commission deems it appropriate to adjourn the proceedings to 01.10.2018 at 1500 hours for final hearing.
Facts emerging during further hearing [01.10.2018]:
Appellant: Present.
Respondent: Shri Arun Bhardwaj, Ld. CGSC Shri R.S. Vaidya, Dy. Secy. MHA, The parties are present and heard. The present matter requires that the application preferred by the respondent PIO MHA should be adjudicated prior to addressing the main controversy. Accordingly, the respondent CPIO MHA is heard at considerable length on the application moved under 'Section 114 read with Order XLVII Rule 1 further read with Section 151 of the Code of Civil Procedure, 1908'. In order to examine the respective contentions of the parties, their submissions as well findings of the Commission thereon are recorded hereinafter:
Argument of Applicant/Respondent:
[A]: CPIO, MHA ought not have been impleaded by the Commission: The foremost contention of the Ld. Counsel is that the present matter was between the information seeker and the PIO, CRPF. He submits that the PIO, MHA never received the RTI application and hence, he was not liable to reply the RTI application. Referring to the interim decision of the Commission whereby, the PIO, MHA was impleaded, he further argues that the order to implead PIO, MHA was passed behind his back in derogation of principles of natural justice and same ought not to have been passed without hearing the PIO, MHA. The Ld. Counsel takes exception to the statement made by PIO, CRPF and submits that the statement of PIO, CRPF qua the custody of information cannot be read as a binding statement on MHA.Page 9 of 28
Findings of the Commission:
The Commission sees no force in the contention of PIO. MHA. It is true that the RTI application was initially addressed to the PIO, CRPF. However, while the present appeal was heard by the Commission, the PIO, CRPF categorically took the stand that the report in question was duly forwarded to the Secretary, Ministry of Home for further action. Thus, with a view to secure views of PIO, MHA, he was impleaded in the matter. Mere impleadment in the matter has caused no prejudice to the PIO, MHA. The Commission in view of specific inputs communicated by PIO, CRPF was left with no option to seek view of PIO, MHA since the report was transmitted to MHA through DG, CRPF. Without impleadment, no opportunity could have been granted to the PIO, MHA to put forth his contentions. Thus, the impleadment of PIO, MHA alone as necessary party is not an order which had a bearing on any substantial rights of PIO, MHA. The Commission has yet not concluded over inter se rights of the parties. The order was an enabling order for PIO, MHA to aver his contentions before the Commission rather than an order curtailing any substantial rights of the PIO, MHA. The contention of derogation of principles of natural justice is thus, found sans merit. Hence, no ground is made out to recall the order dated 23.04.2018.
[B]: Who is the custodian of the report& information in question: Ld. Counsel submits that the Ministry of Home Affairs is not the 'custodian' of the report in question. To buttress his argument, the Ld. Counsel took the Commission through various provisions of the RTI Act, 2005. He submits that the PIO, MHA cannot be termed as custodian of information and the Central Reserve Police Force is the actual custodian of the record sought. Ld. Counsel asserts that the report was authored by an officer of the CRPF and hence, the being the 'originator' of the report, CRPF is the public authority which can be called on to produce the report in question. He states that the MHA being the parent ministry of various autonomous and non autonomous organizations receives bulk information & files regularly and hence upon merely receiving a report from a constituent organization CRPF would not render MHA the 'custodian' of the information in the present case. The Ld. Counsel took the Commission through clauses (f) and (i) of Section 2 as well as Section 6(3)of the RTI Act. It is contended that the report in question was not within the exclusive control of the MHA.Page 10 of 28
Submissions of Appellant:
At the outset, the appellant draws attention of the Commission over the objectionable use of language by the PIO, MHA in the application. He vehemently objected to the terminology used by the PIO, MHA calling the appellant as a "busy body and meddlesome interloper for oblique motives and for extraneous reasons". The Commission observes that the PIO has rather become too passionate and exceeded his brief while he used such language. The Commission wonders as to what provoked the PIO to use such an insinuation. A PIO under the RTI Act must behave as custodian of record and not make unwarranted allegations against RTI applicant. The comments of PIO are thus expunged from the record.
On merits, the appellant further objects to the submissions made by Ld. Counsel and submits that the report was communicated to MHA through Director General, CRPF. Upon a query by the Commission as regards appellant's source of information, the appellant contends that the PIO, CRPF has confirmed the said transmission of report to MHA and the PIO, MHA has not refuted the fact of having received the report. The appellant asserts that the report was sent to the MHA for initiating appropriate action and MHA processed the report. He submits that the 'report' in question was not a mere routine communication but had actionable inputs upon which the MHA conducted an enquiry to access the veracity of allegations mentioned in the report. He contends that after the MHA received and acted upon the report authored by IG, CRPF; the PIO, MHA cannot absolve himself from his liability under the RTI Act to furnish information sought. He submits that not only the report but the details of action taken upon it by CRPF or MHA were sought by him. It is his contention that the report authored by Mr. Rajnish Rai led the MHA to examine the same and a probe was conducted on the allegations of 'staged encounter of terrorists'. He apprised the Commission that the MHA initiated disciplinary action against Mr. Rajnish Rai, IG CRPF since latter's report surfaced in public.It is the contention of appellant that Mr. Ashok Prasad, former officer of IPS cadre presently Advisor to MHA is enquiring into the veracity of the allegations made by Mr. Rai in his report. The same is confirmed by the respondent PIO, MHA.
Argument in Rebuttal addressed by Respondent/ Applicant MHA: In rebuttal, the Ld. Counsel for PIO, MHA submits that a FIR No. 12/2017 dated 30.03.2017 u/s 120B, 121A, 122, 353, 307 IPC regarding the aforesaid encounter Page 11 of 28 was lodged at Police Station Amguri, District Chirang, Assam and the investigation conducted by state police was accepted by the Sub Divisional Judicial Magistrate vide order dated 06.09.2017. The Superintendent of Police, Chirang is also states to have communicated a report to NHRC vide fax massage dated 31.03.2017. Also a magisterial enquiry report which ruled out any violation of human rights/ foul play was also sent by DC Chirang to NHRC dated 19.06.2017. He submits that MHA ordered a preliminary enquiry against Mr. Rajnish Rai being cadre controlling authority of Indian Police Service officers, on the specific recommendation of the DG, CRPF.
Yet another contention of the Ld. Counsel is that it is yet not clear and established as to what led Mr. Rajnish Rai, the then IG, CRPF to suo motu author a report in the encounter executed by various forces. He made certain submissions qua desirability of such an investigation done by the Mr. Rai.
Findings of the Commission:
The Commission is unable to accede to the hyper technical approach canvassed by the Ld. Counsel for respondent PIO, MHA as regards the scope of expression custodian of information. The RTI Act does not incorporate the concept of demarcating strict boundaries between 'originator', 'intermediary' and the 'recipient or addressee'. The concept of distinction between 'originator' and 'others' is embodied in the Section 2(za) of the Information Technology Act.
(za) "originator" means a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;
However, under the scheme of RTI Act, there is no concept of 'exclusivity' of custodian of information. An information or record sought to be accessed under the RTI Act may be in possession of two or more public authorities and the statute provides for clue in such cases under Section 6(3). Clause (f) of Section 2 reads as:
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any Page 12 of 28 private body which can be accessed by a public authority under any other law for the time being in force;
It flows from the definition of information that information is all what can be accessed by a public authority lawfully. Clause (j) of Section 2 defines the extent of 'Right to Information':
(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 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;
It would be worthwhile to contrast the aforesaid provisions with the queries of RTI applicant. Queries no. 1 & 2 have been replied to by PIO, CRPF. Queries no. 3 to 5 are the subject matter of present appeal.
1. Has IG Rajnish Rai sent any report on the encounter with two suspected members of the National Democratic Front of Bodoland (Songbijit) on March 30.
2. When was this report received?
3. What action has been initiated on the basis of the report.
4. Please provide a copy of the report along with action taken on the basis of it.
5. Is CRPF or the Home Ministry carrying out any inquiry against IGP Rajnish Rai.
It is not disputed that MHA actually received the report in question (point no. 4). Further, action was initiated upon the said report by MHA. The Commission finds that the PIO, CRPF ought to have transferred the RTI application to PIO, MHA upon receipt under Section 6(3) of the RTI Act, since the queries no. 3 to 5 closely related to the information under the control of MHA. Control over information/ record, does not imply that the information must be placed under Page 13 of 28 exclusive control of the transferee public authority. The expression 'more closely connected with the functions of another public authority' as occurring in Section 6(3)(ii) clearly embodies that the public authority which is better placed to answer the queries of an RTI application shall take on the task to answer the queries. In the present case, PIO, CRPF could not have replied to the action taken upon the report transmitted to MHA. It was within realm of MHA to reply to query regarding the action taken on the report as well as any other inquiry initiated against Mr. Rai.
It is true that MHA being parent Ministry of various organizations receives various inputs, files, records etc soliciting opinion and permissions. No strict boundaries of demarcation to ascertain the 'custody' of information would be required to be drawn in cases of inter-organizational and intra-ministry discussions. In the present case, MHA has acted in furtherance of the report in question and the information sought is not regarding the report simplicitor, but the action taken after receipt of the report by MHA.If the argument of PIO, MHA to rigidly demarcate boundaries of 'custody of information' is accepted, the very span of the RTI Act will diminish. Excluding records of inter organizational deliberations from information seeker by passing on the buck on to the other public authority in not in line with scheme of the RTI Act. In case of Public Information Officer versus V Chaudhary (W.P. Civil No. 2025/2014 (08.10.2018 - DELHC) : MANU/DE/3691/2018, the Hon'ble High Court has ruled that availability of authentic information with another public authority does not absolve a public authority from its liability under the RTI Act. In light of the aforesaid ratio, the Commission finds the exercise to trace the exclusive custodian of record as futile. The CRPF has taken a stand that the report in question was transmitted to MHA for further processing. Assuming that both CRPF and MHA has the copies of reports sought, still the scope of queries sought by appellant, in considered opinion of the Commission relates more closely to the MHA and hence, the Commission holds the PIO, MHA to be in control of records and information as sought by the RTI application as against queries no. 3 to 5.
The Commission further takes note of DoPT OM No. 8/2/2010-IR dated 27.04.2010 which clearly has a bearing on the argument advanced by the respondent PIO, MHA. Relevant part reads as:
Page 14 of 28NO. 8/2/2010-lR Government of India Ministry of Personnel, PG & Pensions Department of Personnel & Training *** North Block, New Delhi-110001 Dated: the 27"'April, 2010 OFFICE MEMORANDUM Subject: Disclosure of third party information under the RTI Act, 2005. *** The undersigned is directed to say that the Government in a number of cases makes inter departmental consultations. In the process, a public authority may send some confidential papers to another public authority. A question has arisen whether the recipient public authority can disclose such confidential papers under the RTI Act, 2005. If yes, what procedure is required to be followed for doing so.
2. Section 11 of the Act provides the procedure of disclosure of 'third party' information. According to it, if a Public Information Officer (PIO) intends to disclose an information supplied by a third party which the third party has treated as confidential, the PIO, before taking a decision to disclose the information shall invite the third party to make submission in the matter. The third party has a right to make an appeal to the Departmental Appellate Authority against the decision of the PIO and if not satisfied with the decision of the Departmental Appellate Authority, a second appeal to the concerned Information Commission. The PIO cannot disclose such information unless the procedure prescribed in section 11 is completed.
3. As defined in clause (n) of Section 2 of the Act, 'third party' includes a public authority. Reading of the definition of the term, 'third party' and Section I1 together makes it clear that if a public authority 'X' receives some information from another public authority 'Y' which that public authority has treated as confidential, then 'X' cannot disclose the information without consulting 'Y', the third party in respect of the information and without following the procedure prescribed in Section 11 Page 15 of 28 of the Act. It is a statutory requirement, non-compliance of which may make the PI0 liable to action.
4. The Public Information Officers and the First Appellate Authorities should keep these provisions of the Act in view while taking decision, about disclosure of third party information in general and disclosure of the third party information, when third party is a public authority, in particular.
........
Thus, also in view of the executive instructions, the records of inter departmental consultative process cannot be per seheld as exempted on the concept of 'originator' and 'custodian' of record.
[C]: Bar of Section 24 of the RTI Act:
Yet another argument of the Ld. Counsel is that since the CRPF is a scheduled organization under Section 24 of the RTI Act which is exempted from routine application of the RTI Act, accessing information originating within CRPF from PIO, MHA would amount to indirect an exercise to negate the bar of Section 24 of the RTI Act.
However, having held that the PIO, MHA is the custodian of information on points no. 3 - 5 of the RTI application, the Commission does not find force in the argument canvassed. The bar of Section 24 would have been applicable if the CRPF had been the sole repository of information. In the present case, the queries are more closely related to the MHA. It is insignificantfor the purpose of RTI Act as to where does the information is created, as long as it is accessible to the public authority.
Section 24 of the RTI Act is an exception to the right to secure information. It embodies the requirement of efficiency in governance and acknowledges the role of certain scheduled organizations and their sovereign functions to keep them away from sundry requests for accessing information. However, in cases involving allegations of violations human rights and corruption, the scheduled organizations are amenable to the provisions of the RTI Act. The expression Page 16 of 28 'allegations of corruption and human rights violations'denotes that the intent of Parliament was to allow access of information in cases wherein allegations of human rights violation are made out. Had it been the intent of legislature to allow only information only in cases of 'allegations of corruption proved beyond doubt, the language would have been somewhat different. The Commission cannot add or read down words of statute. They are meant to be read in consonance with plain grammatical meaning they convey.
The contention of Ld. Counsel is that a FIR was lodged regarding the encounter operation and nothing untoward surfaced in the police investigation. The investigation was accepted by the Judicial Magistrate. Yet another Magisterial enquiry found the allegation of staged encounter as baseless. The respective reports are stated to have been communicated to the NHRC & State Human Rights Commission. As per the Ld. Counsel of respondent PIO, MHA the aforesaid proceedings operate as 'findings of facts' which negate the allegations of violation of human rights and thus, bar cast under Section 24 of the RTI Act would apply with full force. However, apart from mere averments, no tangible material has been brought on record to back the averments of the application. No order of NHRC or Assam SHRC was made available to the Commission. No assistance in this regard was made available to the Commission and the website of NHRC was thoroughly searched by the Commission but to no avail.
Merely marking a report to NHRC or SHRC would not imply the acceptance of the report and a conclusive finding by the respective Commissions. No material except bare averments has been led before the Commission to exhibit that allegation of 'human rights violation' has been excluded.
In Extra Judicial Execution Victim Families Association (EEVFAM) and Ors. vs. Union of India (UOI) and Ors. (08.07.2016 - SC):
MANU/SC/0758/2016; the following observations of the Hon'ble Apex Court are very relevant:
1. This writ petition Under Article 32 of the Constitution raises important and fundamental questions of human rights violations-not in the context of the accused but in the context of the victims. Do the next of kin of deceased victims have any rights at all, other than receipt of monetary compensation?Page 17 of 28
2. The allegations made in the writ petition concern what are described as fake encounters or extra-judicial executions said to have been carried out by the Manipur Police and the armed forces of the Union, including the Army. According to the police and security forces, the encounters are genuine and the victims were militants or terrorists or insurgents killed in counter insurgency or anti terrorist operations.
Whether the allegations are completely or partially true or are entirely rubbish and whether the encounter is genuine or not is yet to be determined, but in any case there is a need to know the truth.
3. The right to know the truth has gained increasing importance over the years. This right was articulated by the United Nations High Commissioner for Human Rights in the sixty-second session of the Human Rights Commission. In a Study on the right to the truth, it was stated in paragraph 8 that though the right had its origins in enforced disappearances, it has gradually extended to include extra-judicial executions. This paragraph reads as follows:
With the emergence of the practice of enforced disappearances in the 1970s, the concept of the right to the truth became the object of increasing attention from international and regional human rights bodies and special procedures mandate-holders. In particular, the ad hoc working group on human rights in Chile, the Working Group on Enforced or Involuntary Disappearances (WGEID) and the Inter-American Commission on Human Rights (IACHR) developed an important doctrine on this right with regard to the crime of enforced disappearances. These mechanisms initially based the legal source for this right upon Articles 32 and 33 of the Additional Protocol to the Geneva Conventions, of 12 August 1949. Commentators have taken the same approach. However, although this right was initially referred to solely within the context of enforced disappearances, it has been gradually extended to other serious human rights violations, such as extrajudicial executions and torture. The Human Rights Committee has urged a State party to the International Covenant on Civil and Political Rights to Page 18 of 28 guarantee that the victims of human rights violations know the truth with respect to the acts committed and know who the perpetrators of such acts were.1 It is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commiserated with and what further steps ought to be taken, if any.
In the totality of circumstances as well as the finding that PIO, MHA is the custodian of information sought, the Commission rejects the argument that Section 24(1) bars the RTI application. MHA being the custodian of information sought on points no. 3 to 5 is not entitled to the exemption available under Section 24 of the RTI Act.
As a sequel to the aforesaid findings, the Commission dismisses the application under 'Section 114 read with Order XLVII Rule 1 further read with Section 151 of the Code of Civil Procedure, 1908 seeking review & recall of various interim orders passed in the present appeal.
[D] Other Grounds under Section 8(1):
The Ld. Counsel for MHA in addition to the aforesaid grounds, in alternative also pressed further grounds under Section 8(1) of the RTI Act due to which the information sought would be entitled to be exempted from disclosure. He is heard at length on these aspects also, but in absence of records of the case which, the PIO, MHA as well as Secretary, MHA failed to produce before the Commission, no determination can be done conclusively. The grounds pressed for under Section 8(1)(a), (e), (h) and (j) shall be taken in consideration after production of complete records of the case.
Interim Decision[20.11.2018]:
The Commission having ruled that PIO, MHA is the custodian of record shall now proceed to examine available exemptions under Section 8(1) of the RTI Act.Page 19 of 28
However, in dearth of actual records of the case, the Commission cannot evaluate the rival contentions of the parties. There seems an apparent dichotomy in the line of argument adopted by MHA. Some important questions arise for determination, which are yet not answered. If MHA is not in actual possession of the reports in question, on what basis Mr. Ashok Prasad, Advisor, MHA is probing the issue? If the MHA is not in possession of the records of the case, on what basis the PIO, MHA without going through the records has claimed various exemptions under Section 8?
At this juncture, the Commission is constrained to observe that despite issuance of repeated directions to produce relevant records of the case, the PIO, MHA failed to comply with the same. For enabling PIO, MHA to produce relevant records before the Commission as well as to put the top executive of MHA to notice, an interim order was conveyed dastito the Secretary, MHA. However, despite the aforesaid position, there is no explanation brought on record justifying the non compliance of the directions of the Commission. It is the settled position that the onus to justify the applicability of exemption clause lies on the PIO. The order dated 06.09.2018 passed by the Commission reads as:
The contention advanced by the respondent justifying non-disclosure merits consideration and same shall be considered at appropriate time. However, the rival contention of parties cannot be weighed and adjudicated until and unless, the very report which is the subject matter of adjudication is not available with the Commission. Until and unless, the contents of report are made known to the Commission, no adjudication on the dispute over disclosability of the report can be done. It is neither feasible nor pragmatic or judicious to have an opinion over the disclosability of a document without actually knowing the actual contents.
A last and final opportunity is granted to MHA to produce the enquiry report with the connected files before the Commission. The Commission shall take a view after examining the report and other documents in ambit of the queries no. 3-5. The record is being summoned under Section 18(3)(a) & (e) of the RTI Act. The respondent MHA through Secretary, MHA shall take due notice under Section 18(4) of the RTI Act and no part Page 20 of 28 of the document summoned shall be withheld from the Commission. Let the record be produced before the Commission on 17.09.2018at 1 pm. ......
The sole intent of the Commission to call for the records was to examine the contents of the record vis-à-vis exemptions claimed. Labelling a report or document as secret/classified is of no consequence under the RTI Act unless the PIO demonstrates or exhibits the likelihood of some prejudice being caused due to the disclosure of information. Sadly, despite granting opportunities on five occasions when the appeal was heard, the PIO, MHA failed to produce relevant records before the Commission. The Commission did not receive the assistance it sought from the PIO as well as Secretary, MHA.Records summoned by Commission were not produced despite repeated directions. The directions to produce records were conveyed to the Secretary, MHA since the PIO, being a middle level executive officer may not have the access to the records in question given the fact that a probe is also underway. As if the resistive conduct of the MHA was not enough, pleadings in the matter were on the brink of what the Commission perceived as a 'linguistic misdemeanour'. The Commission takes strong exception to some of averments made in the application submitted by the respondent PIO, MHA. The meaning conveyed by these words in nothing short of executive overreach and clear defiance to the adjudicatory power of this Commission. The relevant parts which try to offer explanation for non production of records read as:
.....
15. That on 06.09.2018 Respondent herein placed its written submission before the Ld CIC explaining inter-alia following:
A. That that the DG, CRPF vide his d.o. Ietter dated 28.05.2017 had forwarded this Ministry a copy of "Gist of the Discreet Enquiry regarding the joint Operation conducted on 29-3010312017 in Simalguri area under PS 50 / 93 50 / 101 50 / 102 50 / 103 o -/o - Amguri, district Chirang, Assam" signed by Shri Rajnish Rai, IPS, the then IG, NES, CRPF, Shillong.Page 21 of 28
B. That in his D.O. letter, the DG, CRPF had stated that the officer (Shri Rajnish Rai, IPS) had exceeded his brief to conduct a discreet enquiry into the matter without taking approval from the Force Headquarters, especially as multiple Forces, including the Army, were involved in the operation.
C. That as such, the DG, CRPF had recommended this Ministry to take suitable action against Shri Rajnish Rai, IPS. As Police-I Division, MHA is concerned with the service matters (including disciplinary proceedings) of only IPS officers. Therefore, the report of the DG, CRPF was considered in the relevant file and it was decided to hold a preliminary inquiry on the alleged misconduct of Shri Rajnish Rai as to whether he followed Standard Operating Procedure (SOP) in carrying out such discreet inquiry and accordingly, vide order dated 9.6.20t7, Shri Ashok Prasad, IPS (retired) was appointed as Inquiry Officer to enquire into the matter. His report is awaited.
D. That the Police-I Division is concerned with the service matters of only IPS officers. The preliminary inquiry into the alleged misconduct of Shri Rajnish Rai, IPS is underway and therefore, records of the case attract 51 / 93 51 / 101 51 / 102 51 / 103 o *l I - exemption from disclosure under section B(lXh) of the RTI Act, 2005.
E. Further the matter is sub-judice before Hon'ble High Court of Delhi in Writ Petition Civil No. 10828 of 2017 filed by Shri Rajnish Rai, IPS, wherein he has assailed the order dated 09.08.2017 passed by the Ld. Central Administrative Tribunal in O.A. No.2670120L7 wherein, he had assailed his order of transfer dated 12.06.2017 and sought quashing of the enquiry initiated against him.
F. That the Petitioner Police-I Division, MHA is concerned only with point (5) of the aforesaid RTI application which categorically seeks information with regard to inquiry against Shri Rajnish Rai. Therefore, in view of section 8(1)(h) of the RTI Act, 2005 and the writ Petition filed by Shri Rajnish Rai before Hon'ble High Court of Delhi, it was decided that not to place records of preliminary inquiry against Shri Rajnish Rai before Ld. CIC.Page 22 of 28
[Emphasis added by Commission] The Commission finds the aforesaid highlighted averment as contemptuous and clearly obstructing in adjudicatory role of the Commission.The reply dated 08.09.2018 had approval of Secretary, MHA. Probably it escaped the attention of everyone that the Commission has called for records in exercise of its quasi judicial powers.
In DIRECTORATE OF ENFORCEMENT VERSUS ARUN KUMAR AGRAWAL & ORS. [ SLP (Civil) NO. 19649 of 2009; the Hon'ble Supreme Court had an occasion to deal with an identical situation involving powers of this Commission to call for and examine records on touchstone of RTI Act. It was held:
.....
This petition is directed against order dated 22.7.2009 passed by the learned Single Judge of Delhi High Court, paragraph 11 of which reads thus:
"CIC is yet to decide the question whether the information sought for is covered by Section 24(1) of the Act, whether first proviso applies and exceptions can be claimed under Section 8(1) of the Act. Impugned order dated 29th December, 2008 makes a general observation on the basis of allegations made by the respondent No. 1 in the appeal and observes that allegations of corruption have been made. No final and determinative finding has been given by CIC. It is open to the petitioner to produce the original files and then press that the conditions mentioned in proviso to Section 24(1) of the Act are not satisfied in this case and thus provisions of Section 8(1) of the Act are not required to be examined. Dr. Arun Kumar Agrawal has contended that Mr. Virendera Dayal was not appointed by the Directorate of Enforcement and Section 24(1) of the Act is not applicable, even if the report is recently with the said Directorate. These aspects have not been decided by the CIC. It will not be appropriate for this Court Page 23 of 28 to control the proceedings and flexibility and lactitude has to be allowed. The impugned orders can hardly be categorised as adverse orders against the Directorate of Enforcement."
We have heard learned counsel for the parties and perused the records. In our view, the impugned order does not suffer from any patent legal infirmity requiring interference under Article 136 of the Constitution. The special leave petition is accordingly dismissed.
However, it is made clear that the parties shall be entitled to make all legally permissible submissions before the Central Information Commissioner.
In a recent case, titled as Venkatesh Nayak versus CPIO, MHA (CIC/CC/C/2016/000029); wherein the issue of disclosure of information/documents related to framework agreement signed between the Government of India and the National Socialist Council of Nagaland; a coordinate bench of the Commission in order to appreciate rival contentions pressed deemed it fit to summon all official records from MHA. Relevant extracts are reproduced:
Date of Hearing: 03.05.2017 Date of Decision: 15.05.2017 Hearing:
1. Both the parties were personally present in the hearing. Mr. R.N. Ravi, Chairman, JIC & Interlocutor & GOI representative for Naga Peace was also present in the hearing.
2. Earlier the matter was heard by the Commission on 28.04.2017 with a direction to the respondent to comply with the Commission's order dated 20.01.2017.
3. During the hearing, the respondent has shown to the Commission relevant files on the subject.
Despite hearing the matter on various occasions, a final decision cannot be pronounced because counsel for MHA contested the interim order on various Page 24 of 28 grounds. The Commission deems it fit to recapitulate and summarize the proceedings as of now:
1. PIO, CRPF is a responsible officer and his statement that the report in question was sent to MHA by DG, CRPF cannot be disbelieved. It is admitted position that the MHA is still enquiring upon certain facets of the issue.
2. The Commission has held PIO, MHA to be in custody of the information sought since as per the Section 6(3) of the RTI Act, the subject matter of queries is more closely related to him. There is no requirement to go in the question of 'exclusive control' over information sought as in Public Information Officer versus V Chaudhary (W.P. Civil No. 2025/2014 (08.10.2018 - DELHC) : MANU/DE/3691/2018, the Hon'ble High Court has ruled that availability of authentic information with another public authority does not absolve a public authority from its liability under the RTI Act. More so, since MHA has initiated further action on the basis of report of Mr. Rajnish Rai, PIO, MHA is in the exclusive control of details of processing of report after it was received in MHA.
3. The contention of MHA qua applicability of relevant clauses under Section 8(1) is still not concluded and the Commission has not yet decided on the same. The same requires examination of records of the case and for the same purpose; they were repeatedly being called from MHA. Requirements of efficacy of governance and law & order have to be harmonized with requirements of transparency, with either making way for the other. The PIOs statement cannot dictate terms to this Commission.
4. Apart from a bald assertion made by PIO, MHA, there is nothing on record to substantiate the argument of NHRC/ Assam SHRC having ruled out violation of human rights. No records or findings from any Court of Law are produced before the Commission. The Commission clarifies that genuineness of an 'encounter killing'/ extra judicial killing and allegation of human rights violation are two distinct things. Lawful justification of extra judicial killing cannot be confused with right of citizenry to know the truth.
5. Denial of information to appellant cannot be a ground to deny a document/ record to the Central Information Commission. Irrespective of the outcome of the present appeal, there is nothing to fetter power of the Commission to call for any record in process of adjudication of the present appeal. The power of CIC is a statutory power and the same has been also acknowledged by the Hon'ble Supreme Court. The unusual Page 25 of 28 resistance exhibited by the MHA in producing the records before the Commission cannot be countenanced and the Commission perceives the same to be a direct onslaught on the RTI regime.
No ground remains in view of above to deny the document to CIC. Under the RTI Act, no record can be withheld from this Commission under any pretext. Since the decision in the matter has undoubtedly been taken at the highest level, accordingly, the Secretary, Ministry of Home Affairs, Govt. of India is designated as deemed PIO in the matter.
A final opportunity is granted to the MHA to produce relevant records of the case. The Union Home Secretary shall produce the relevant records before the Commission in person or through his authorized representative on 19.12.2018, failing which, ex-parte decision shall be announced besides initiation of penal proceedings under Section 20 of the RTI Act for obstructing the process of adjudication of the Commission and causing obstruction to the flow of information.
The appeal is adjourned to 19.12.2018 for further hearing.
Facts emerging during further hearing [19.12.2018]:
Appellant: Absent.
Respondent: Shri Kirtiman Singh, Ld. CGSC Shri Nikhil Bhardwaj, Ld. Counsel Shri R.S. Vaidya, Dy. Secy. MHA Shri S.S. Sejwal, Law officer The appellant is absent despite notice. The respondents are present and heard. An application seeking adjournment of the present hearing has been preferred by the respondent PIO, MHA. Ld. Counsel for respondent submits that the interim order dated 20.11.2018 passed by the coordinate bench of the Commission is being challenged before the Hon'ble Delhi High Court and the case is expected to be listed after ensuing winter vacations of the High Court. As regards the compliance of the directions issued vide last order, the respondent submits that they shall produce the records of the case as directed by this Commission subject to the outcome of the Writ Petition filed before the Delhi High Court.Page 26 of 28
Upon a query made by the Commission as regards any enquiry done by NHRC or SHRC, Assam ruling out any violation of Human Rights, the respondent submits that the magisterial enquiry report was transmitted to the NHRC and nothing adverse was heard since. At first, it is submitted by the respondent that NHRC accepted the magisterial report ruling out any violation of human rights but later, sought to clarify that silence of NHRC was presumed as acceptance of the magisterial enquiry report. Ld. Counsel sought time to seek instructions in this context and apprise the Commission.
Interim Decision [21.12.2018]:
After hearing the respondent, the Commission deems it appropriate to adjourn the matter. However, it is clarified that no further adjournment shall be granted and the order dated 20.11.2018 passed by the Commission shall be enforced on 21.01.2019.
The Commission also takes note of the absence of the appellant who has since inception of the hearing has appeared only once and considering the sensitivity of the matter raised in the appeal, the registry is directed to issue a fresh notice to the appellant intimating the next date of hearing. The appeal is adjourned to 04.02.2019.
Hearing: 04.02.2019 The appellant, Shri Abhishek Shukla and the respondent, Shri R.S. Vaidya, Dy. Secy. MHA, Shri S.S. Sejwal, Law officer and Shri Shashwat Sharma, Advocate were present in person.
The appellant submitted a written note providing a brief synopsis of the earlier hearings held before the Commission.
The respondent submitted that they had filed a Writ Petition WP(C) No. 304/2019 had been filed before the Delhi High Court, being aggrieved by the order dated 20.11.2018 passed by the predecessor Bench and a stay order has been passed by the Commission. The Hon'ble High Court of Delhi, vide its order dated 17.01.2019 in Writ Petition No. 304/2019 has stayed the Commission's order dated 20.11.2018 till further orders.
The appellant present during hearing contended that he had not been informed by the respondent about filing of the writ petition or even about the stay order, till now, though he is the aggrieved party. The respondent clarified that the writ Page 27 of 28 petition was not served upon the appellant since he had not filed a caveat. However, on the directions of the Commission, a copy of the stay order dated 17.01.2019 was provided to the appellant during the course of the hearing.
Decision:
The Commission, after hearing the submissions of parties and perusal of records, notes that the Hon'ble High Court of Delhi, vide its order dated 17.01.2019 in Writ Petition No. 304/2019 has stayed the Commission's order dated 20.11.2018 till further orders. Hence, it would be prudent to keep the instant Second Appeal in abeyance till the final disposal of the Writ Petition No. 304/2019.
Copy of the decision be provided free of cost to the parties.
Sd/-
Sudhir Bhargava (सुधीर भागगव) Chief Information Commissioner (मुख्य सूचना आयुक्त) दिनांक / Date 06.02.2019 Authenticated true copy (अनभप्रमानणत सत्यानपत प्रनत) S. S. Rohilla (एस. एस. रोनिल्ला) Dy. Registrar (उप-पंजीयक) 011-26186535 / [email protected] Addresses of the parties:
1. The Central Public Information Officer (CPIO), Secretary to the Govt of India, Ministry of Home Affairs, North Block, New Delhi - 110 001
2. Shri Abhishek Shukla Page 28 of 28