Central Information Commission
Ajit Kumar Singh vs National Commission For Protection Of ... on 31 October, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. SridharAcharyulu (Madabhushi Sridhar), CIC
CIC/NCPCR/C/2017/143655
Ajit Kumar Singh v. PIO, National Commission for Protection of
Child Rights
Order Sheet: RTI filed on 17.04.2017, CPIO replied on 17.05.2017, FAO - Nil, Second appeal filed
on 21.06.2017, Hearing on 26.04.2018;
Proceedings on 20.09.2017: Complainant present, Public authority represented by Mr. G. Suresh,
Asstt. Director. Directions and show cause issued.
Proceedings on 26.04.2018: Complainant present, Public Authority represented by CPIO. Mr
Raman Gaur and Ms.Geeta Narayan. Matter posted on 18.06.2018.
Proceedings on 18.06.2018: Complainant absent, Public Authority represented by CPIO. Mr G
Suresh in person:
Date of Decision - 31.10.2018: Penalty imposed.
ORDER
FACTS:
1. Appellant sought information about the number of complaints received by the National Commission for Protection of Child Rights, copy of inquiry proceedings in such complaints, date-wise decisions of cases where the accused persons were found guilty and what reliefs were granted. He was emphasising for information about what action was taken, why action was not taken on certain complaints, the time taken for considering those complaints, how many of complaints were found to be true, whether accused were punished, whether any relief was provided to victims along with the details of dates and kind of relief provided. He also wanted to know how many of complaints on child rights violations were proved to be truthful since beginning of the Commission. Very interestingly, Mr G Suresh, the PIO replied on 17.05.2017 stating that all this information was not disclosable as per exemption under section 8 (1) (j) of RTI Act.
2. The Commission on 21.09.2017 held:It is absolutely not convincing that the National Commission for Protection of Child Rights is refusing the information CIC/NCPCR/C/2017/143655 Page 1 about action taken on complaints pending since years before it. The NCPCR uses a privacy exception to refuse entire information en bloc. No effort is done to provide information which could have been disclosed on their own under Section 4(1)(b).
Except the name of the child, nothing could be denied. The NCPCR has hired services of a consultant and adviser, who instead of guiding the CPIO properly to disclose the information, misguided him to deny the entire information. These two experienced seniors did not even provide reasons to justify the denial. They failed to perform their duty to separate information that could be given from that cannot be given and provide, as prescribed under Section 10(1) of RTI Act. They do not know that Section 10 provide for severability. When appellant was not seeking names and personal information and wanted information about the number of cases left out without any action, or action taken and pending before the Commission for years, public authority cannot invoke Section 8(1)(j) at all.
3. Appellant's request for action taken information on four-year old complaints before National Commission for Protection of Child Right (NCPCR), which is in public interest and relates to its core function.The CPIO, adviser and consultant vehemently argued with the Commission refusing the disclosure without forwarding any justification. They have bluntly rejected entire information abusing section 8 (1) (j) of RTI Act. It is most unfortunate that the Consultant and Advisor have guided the CPIO and Public Authority to breach the RTI Act. Then the Commission directed:
4. The Commission directs the respondent authority to provide information regarding cases pending for over two years pertaining to Bihar Circle and details of disposal of cases where accused were found guilty, after removing names and personal details of children; within 15 days from date of receipt of this order.
5. The Commission directs Mr. G. Suresh, PIO to show-cause why maximum penalty should not be imposed upon each of them, for illegal obstruction of information, before 20.10.2017. Based on the adamant obstruction and denial by the adviser and consultant, the Commission considers Mr.RakeshBhartiya, Advisor and Mr Raman Gaur, Senior Consultant as deemed PIOs and directs them to show- cause why maximum penalty should not be imposed on each of them for illegal obstruction of information, before 20.10.2017.
Proceedings on 26.4.2018:
4. Ms.Geeta Narayan, Member Secretary, NCPCR submitted that Mr. G. Suresh, CPIO was on leave and was unable to attend the hearing. She further stated that CIC/NCPCR/C/2017/143655 Page 2 complete information about number and status of cases was supplied to the appellant. Ms.Geeta Narayan in response dated 20.10.2017 wrote that RTI application dated 17.4.2017 was received on 3.5.2017 and was sent to deemed PIO on 9.5.2017. Deemed PIO was of the opinion that complainant was trying to collect personal information of thousands of children and he justified the denial on that ground. Another objection Ms.Geeta Narayan raised was that the complainant did not file the first appeal. This ground is very weak as this is a complaint and not second appeal. Regarding the details of the actions on complaints from Bihar, it was submitted that some information was given on 18.10.2017. Ms.Geeta Narayan tried to defend the CPIO and FAA and deemed PIO claiming that information available was given. She claimed that due to provisions of POCSO Act 2012 and new Juvenile Justice Act 2015 certain personal details could not be given. Mr G Suresh, CPIO and Asst. Director also filed written submission on 20.10.2017 similar lines and pleaded for closure of the case. He claimed that grievances related information was already made available on public domain (website) of their Commission. He also said that he was not the custodian of the file and hence depended upon supply of information from other departments. He reiterated his stand that he could not provide names and other personal details of the complainants and victims. Then he enclosed the grievances state wise along with their status. Mr. Raman K Gaur, Sr. Consultant & First Appellate Authority (dated 18.10.2017), and Mr Rakeshm Bhartiya, Advisor (Grievances) NCPCR (dated 20.10.2017) also gave similar reply. They have also invoked Section 7(9) of RTI Act, 2005 to deny the information.
5. The appellant acknowledged that he had received the documents sent by the Public Authority but doubted their contents. He alleged that the Public Authority had not provided complete information as most of the details sought were not given and the status in most of cases were mentioned as "ATR received and final report awaited".
Analysis:
6. It is clear that none of the officers who received show-cause notices and Ms. Geeta Narayan, looked into basic content of the RTI request, wherein complainant never asked for personal details of either victims or the complainants. Whole emphasis was to know action taken on complaints, relief given to victims, CIC/NCPCR/C/2017/143655 Page 3 punishment meted out to culprits, pendency etc. Under any stretch of imagination one can say what was asked was totally somebody's personal information. Even if the NCPCR has to state that Mr X was punished in pursuance of the steps taken by it, such information could not be considered as 'personal' information of Mr. X.
7. It is difficult to say that officers could not understand the purport of the RTI request and the order of CIC. In fact what was asked was supposed to be the content of their annual reports. If they think it would be voluminous to collect, they should have given available information, within 30 days, about earlier years and could have taken more time for giving current status/action details. Even now there is no attempt to givethe information completely, though there is substantial improvement. During the hearing, the complainant narrowed down his request to information about recent two years on complaints from Bihar only. At least that should have been provided. Especially the response of Mr G Suresh that he was not the custodian of the files, action taken reports were personal information of some body is illegal and unreasonable. The information given was about grievances and not what was asked. Sadly this reflects the efficacy of the RTI wing in the NCPCR. It is in their own interest the NCPCR should explain its achievements and stern action,if any,facilitated by them based on the petitions filed before them. It is wrong for the NCPCR to deny the annual report of Commission's performance on the ground that it was some body's personal information. To say the least, it is absurd. It's not just the CPIO, but the First Appellate Authority, Advisor, Sr. Consultant, and not the least, the Member Secretary also deny this information calling it as 'personal'. It's very sad and unfortunate. This also proves that the NCPCR is not Section 4(1)(b) compliant.
8. Basically this is a complaint, which cannot be rejected on the ground that first appeal was not filed. Secondly in deciding the penalty proceedings under Section 20 in a complaint, the Commission has to see whether the public authority was having valid reasons to deny, whether inclined to give information. But, unfortunately all of them were in uniform in their response to show cause notices also that reflected their anti-RTI attitude.
CIC/NCPCR/C/2017/143655 Page 4
9. In the present scenario of continuous violation of child rights, the NCPCR that is legitimately expected to initiate measures to safeguard childhood, especially of the girl children in the wake of pouring-in news about violation of their body.
10. The Commissions for Protection of Child rights Act, 2005 was "an Act to provide for the constitution of a National Commission and State Commissions for Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto".
Section13 prescribed its functions of Commission.--(1) The Commission shall perform all or any of the following functions, namely:--
(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;
(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;
....
(j) inquire into complaints and take suomotu notice of matters relating to,--
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection and development of children;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and....
11. If one properly tries to understand the requirement of information of the complainant, it strikes that he sought to know how the NCPCR acted on complaints under Section 13(j). Even under Section 15, the NCPCR has to take certain steps after inquiry.
Section 15. Steps after inquiry.--The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:-- (i) where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons; 8 (ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; (iii) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.
CIC/NCPCR/C/2017/143655 Page 5 Section 16. Annual and special reports of Commission.--(1) The Commission shall submit an annual report to the Central Government and to the State Government concerned....
12. This is the core area of its activity. The applicant wanted to know what steps Commission has taken either on complaints under Section 13(j) or after inquiry under Section 15 or what they reported under Section 16 in their annual reports. Instead of culling out this information from their annual reports, they have used Section 7(9) of RTI Act, saying collection diverts the substantial sources of the public authority, which is absolutely not convincing.
13. Watching spurt in the media reports on sexual offences on minor children, which is a serious matter of national concerntheNCPCR is expected to look into them either on complaint or suo-motu. The Protection of Children from Sexual Offences Act 2012 (POCSO Act) made provisions for avoiding the re-victimisation of the child at the hands of the judicial system. Section 44(1) of this Act entrusted NCPCR with the responsibility of monitoring implementation of this Act, in addition to functions assigned to them under Commissions for Protection of Child Rights Act, 2005. Section 44(2) says that NCPCR have the same powers as are vested in it under Act of 2005. Section 44(3) says NCPCR shall also include its activities under this section in the annual Report referred to in Section 16 of the Commissions for Protection of Child Rights Act, 2005. The Union government in April, 2018 got issued an Ordinance to amend POCSO Act and Criminal law, whereby death penalty could be given to those convicted of raping a child up to 12 years of age. The issue of death penalty to the child rapist took a centre stage after two separate cases of gang rapes took place in Jammu and Kashmir's Kathua and Uttar Pradesh's Unnao, leading to massive outrage across the country.
14. The CPIO Mr Suresh requested for adjournment of the hearing through his letter dated 19.4.2018 and representative the Member Secretary Ms.Geeta Narayan. The Commission accepts his request and posts the case for penalty and compliance proceedings with a condition that their public authority should comply with the mandate of Section 4(1)(b) of RTI Act, and provide the action taken report as sought by the appellant before 18th June 2018, with a copy to the Commission. It was posted for compliance and penalty proceedings on 18th June 2018.
CIC/NCPCR/C/2017/143655 Page 6
15. The CPIO,Mr. G. Suresh, vide his letter dated 14.06.2018, submitted to the Commissionas under:-
"In compliance to the CIC order dated 09/05/08 and in continuations to this Commission's letter dated 18/10/17, the current status of the information regarding cases pending for over two years pertaining to the Bihar Circle is enclosed herewith as per Annexure-I. Further, it is intimated that a statement indicating State-wise position of grievances received in the Commission and their disposal is being uploaded on quarterly basis in the website of the Commission in the link http://ncpcr.gov.in/index1.php?lang=1&level=07linkid=177 lid=33(Report>other activities).
A table indicating the present status of cases pending for over two years pertaining to Bihar Circle is as indicated below:
Division No. of cases reported pending Current status of the as on 18/10/2017 pending cases as on 07/06/2018.
Health 09 Out of 09 pending
cases, 05 have been
settled and closed.
Remaining 04 pending
cases are under
process.
RTE 31 Out of 31 pending
cases, 30 cases were
settled and closed.
Remaining 01 case is
under process/
16. The Commission noticed that this information should have been in response to RTI application within the stipulated time period. The information has been furnished after order of the CIC. Hence, taking a lenient view, the Commission imposes a token penalty of Rs. 500/- (five hundred) under Section 20 of the RTI Act, on Mr G Suresh CPIO for above reasons.
17. The penalty of Rs. 500/- (five hundred) shall be deducted by the Public Authority from the salary of Mr. G. Suresh, the CPIO by way of demand draft drawn in favour of "PAO CAT", New Delhi in forward the demand drafts addressed to Deputy Registrar (CR-II), email: [email protected] Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067 within fifteen days from the date of receipt of this order.
18. The gravity of the problem of violation of child rights is reflected in the submission of the centre to the Supreme Court recently, saying: "a survey of 9,589 childcare institutions had revealed 1,575 sex abuse victims, which led the apex court to order it to formulate a child protection policy".
CIC/NCPCR/C/2017/143655 Page 7
19. Union Minister for Women and Child Development Maneka Gandhi said that she had asked the National Commission for Protection of Child Rights (NCPCR) to ensure that the social audit was completed within 60 days. The Minister expected that such an audit/survey would reveal the condition of the children, the facilities available in the centres and also provide a complete background check of those running the homes.
20. Chairperson of the Delhi Commission for Women (DCW) claimed that she regularly visits NariNiketan, Asha Kiran and other care homes in the capital, said she often gets complaints regarding private homes and takes action against them as well.
21. The incidents in Muzaffarpur and Deoriahave shocked the conscience of the nation and also reflect the need for aneasily accessible system of receiving complaints, accepting, acknowledging and acting on. Still, it is not possible for the children to lodge complaints or make calls to helpline numbers, hence there shall be periodic surprise visits by the Child Rights Commissions- both state and national to notice the problems and take prompt steps to goad concerned authorities to initiate remedial measures. If there are any such attempts, the results of such visits should be given due publicity to ensure that the Commission would come to their rescue. When the officers do not visit, the NCPCRor NCW should have ensured such action which would have prevented some horrible sexual abuse incidents. Our system including NCPCR or NCW are expected to infuse confidence and trust among the wronged children so that they get inspired or collect courage to complain. Have done that? NGOs and public spirited persons were worried and shocked, as in several parts of the country, besides Muzaffarpur and Deoriamanyincidents of exploitation of children and women was going on.The Supreme Court in one of its orders made it mandatory that every protection home shall have a CCTV camera. Whether CCTV cameras were fixed in Muzaffarpur and Deoria homes? If they are whether any authority watches them regularly to know what was happening? Whether NCPCR or NCW or any other agency is checking installation of such CCTVs, compliance of SC order, watching the footage and following up with required action? The NCPCR orNCW should have ensured such systems to be firmly in place. If NCPCR orNCW make the action taken reports on complaints regularly available in public domain, and media report the same, it CIC/NCPCR/C/2017/143655 Page 8 would haveincreased awareness and encouraged the reporting of abuse. The NCPCR should not consider such information as personal or private information of accused or managers of the homes. Secrecy facilitates crimes, and transparency generates public opinion and social scrutiny against.
22. The Officers representing the NCPCR explained that the information systems were improved and voluntary disclosures were also systematised. Easy mechanisms to receive and act on complaints are also being made available. They said a user-friendly POCSO e box was created on website http://ncpcr.gov.in/index2.php. wherein the children or any person could file a complaint straight away and status of action could be obtained, besides the helpline numbers i.e. 1098/ 9868235077, wherein the calls will be received and acted upon. http://ncpcr.gov.in/index2.php. The Commission suggests that the NCPCR could have added a post box number where anyone could post a letter of complaint, a traditional method of sending a written copy, which is essential as most of the people are not web connected or e-savvy. The information about their responses and action taken with positive results from even silent calls to helpline numbers, which was about 1.3 crore last year, should have been put on the website of the NCPCR. The Media is a very effective organ to take these messages to people, the NCPCR may request them to run a scrolling or video message free of cost, use Doordarshan and Akashvaani for the same. When media runs a report of child sexual abuse news, they should invariable carry the helpline number, POSCO e-box, or post box number or address & email of the NCPCR of NCW to facilitate the viewers to report if they knew any such incidents within their vicinity.
The media may also be requested to report the successful stories ending in punishment to culprits and relocation of victims etc.
23. The Commission directs the respondent authority to update their website time to time and provide the information on their website with details of action taken on wrong doers in homes, help rendered to children in distress, admissions given in schools, audit of Homesto check installation CCTVs, checking of the videos and action taken etc.along with disposal of cases of child rightsincluding the nature of complaint, their status, time taken in disposal and if pending for more than 30 days, reasons for the same etc. CIC/NCPCR/C/2017/143655 Page 9
24. The NCPCR should understand that mere providing the numbers will not amount to information. They have duty to provide the detailed information under the RTI Act, except where the law protects the names of the children, in all other cases entire details including their names as beneficiaries needbe provided proactively on their website as per the Section 4 (1)(b) of the RTI Act.Disposed of.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
CIC/NCPCR/C/2017/143655 Page 10