Central Information Commission
Apar Gupta vs Ministry Of Home Affairs on 18 May, 2021
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi-110067
द्वितीय अपील संख्या / Second Appeal Nos. CIC/MHOME/A/2019/122458
CIC/MHOME/A/2019/122459
CIC/MHOME/A/2019/122457
CIC/MHOME/A/2019/122456
CIC/MHOME/A/2019/122450
CIC/MHOME/A/2019/122455
Shri Apar Gupta ... अपीलकताा /Appellant
Through: Ms. Vrinda Bhandari
VERSUS/बनाम
PIO, Ministry of Home Affairs, CIS Div. ...प्रद्वतवादीगण /Respondent
Through: Sh. Shailendra Vikram Singh - Dy.
Secretary - CIS-I
Date of Hearing : 17.05.2021
Date of Decision : 18.05.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Note: The present batch of Appeals as listed above has been preferred by
the same Appellant against the same Respondent. Hence, the matters are
being clubbed together for ease of adjudication and for the sake of brevity
and avoidance of multiple proceedings.
Case RTI Filed CPIO reply First appeal FAO 2nd Appeal
No. on received on
122458 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
122459 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
122457 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
122456 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
122450 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
122455 28.12.2018 25.01.2019 15.02.2019 29.03.2019 13.05.2019
Information soughtand background of the case:
Page 1 of 7(1) CIC/MHOME/A/2019/122458 (2) CIC/MHOME/A/2019/122459 (3) CIC/MHOME/A/2019/122457 (4) CIC/MHOME/A/2019/122456 (5) CIC/MHOME/A/2019/122450 ( (6) CIC/MHOME/A/2019/122455 The Appellant filed six RTI applications dated 28.12.2018 whereby the information sought related to a common subject matter viz. total number of orders passed or directions/instructions issued between 01.01.2016 and 27.12.2018, to various agencies including names of the agencies, pertaining to interception/phone tapping/monitoring or decryption under section 69 of the Information Technology Act, 2000 and IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, for prevention of any offence affecting the sovereignty or integrity, defence or security of the State.
In the Second Appeal no. CIC/MHOME/A/2019/122457, the Appellant sought additional information on the total number of orders or directions revoked or withdrawn or rescinded prior to the sunset period or the 60-day period prescribed under Rule 11.
In Second Appeal No. CIC/MHOME/A/2019/122546, the Appellant sought:
1. Provide the total number of orders or directions issued by the Competent Authority, other than the Secretary (MHA) i.e., Joint Secretaries, between01.01.2016 and 27.12.2018.
2. Provide the date, time, and duration of meetings conducted by the Review Committee during 01.01.2016 and 27.17.2018 to review orders or directions issued pursuant to Section 69.
In the Second Appeal No. CIC/MHOME/A/2019/122450, the Appellant sought:
1. Provide the total number of orders passed by the Competent Authority in exercise of powers under Section 69 of the IT Act read with Rule 3, between01.01.2016 and 27.12.2018
2. Provide the total number of requests received under Section 69 and Rules thereunder from various agencies between 01.01.2016 and 27.12.2018
3. Provide the total number of requests received under Section 59 and Rules thereunder from various agencies that were rejected or not authorizedbetween 01.01.2016 and 27.12.2018
4. Provide the total number of approval requests received during 01.01.2016 to 27.72.2018 (as per Proviso (ii) to Rule 3), to validate interception,monitoring or decryption citing cases of emergency viz., (a) Page 2 of 7 remote areas and (b) operational reasons. ln addition, provide a breakup of requests underboth the categories
5. Provide the total number of approval requests received during 01.01.2016 lo 27.12.2018 (as per Proviso (ii) to Rule 3) that were not approved orrevoked by the Competent Authority, between 01.01.2016 and 27.12.2018.
The CPIO sent a common reply dated 25.01.2019, in response to all the six RTI applications and informed the Appellant that disclosure of information related to lawful interception/phone tapping/monitor or decrypt is exempt from disclosure under section 8(1) (a), 8(1) (g) and 8(1) (h) of the RTI Act, 2005. This is in confirmation with the Central Information Commission decision No. CIC/VS/A/2014/000378/SB dated 02.09.2015 (available in public domain) in an Appeal filed by Shri Amitabh Narayan.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 15.02.2019. The FAA vide order dated 19.03.2019 upheld the reply of CPIO and disposed off the First Appeals.
Aggrieved and dissatisfied with the reply, the Appellant approached the Commission with the instant Second Appeal stating that he did not seek information about any specific individuals or cases, but only statistical data. The Appellant has stated that MHA has, in the past filed a counter affidavit dated 21.02.2019, in the case titled Internet Freedom Foundation &Anr. V. Union of India &Ors.W.P. No. 44/2019, furnishing similar information before the Supreme Court. The list of major cases detected on the basis of lawful interception has also been attached therewith. The Appellant in his Second Appeal has further contended that in response to a similar RTI query filed by Ms. Shagun Belwal, SFLC.in, MHA had vide reply dated 2014 revealed that on an average, around 7500 to 9000 phone interception orders are issued under Rule 4l9A by the Central Government every month. A copy of the MHA's response dated 12.05.2014 has also been enclosed with the appeal.
Facts emerging in Course of Hearing:
Written submission dated 14.05.2021 has been received from the Appellant authorising Ms. Vrinda Bhandari to participate in the hearing on his behalf. The Appellant has reiterated the above facts and corroborated the arguments with various decisions. One of the decisions relied upon by the Appellant is a recent decision dated 22.01.2021 of the Delhi High Court in the case of Sh. Rakesh Kumar Gupta (erstwhile CPIO) Union Bank Of India &Ors. vs. CIC &Anr.holding that the CPIO cannot withhold information without reasonable cause.
Apart from the above decision, the Appellant has placed reliance on two other decisions of the Commission, viz. Dhananjay Tripathi v. Banaras Hindu Page 3 of 7 University CIC/OK/A/2006/00163 [dated 07.07.2006] highlighting the following observation of the Commission:
"..."8. ...Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of theAct.."
The other decision of this Commission cited by the Appellant is in the case of Arun Kumar Prasad vs Bharat Coking Coal Limited CIC/NCCLD/A/2018/100136 [dated 25.06.2019], wherein the following portion has been relied upon:
"...statistical information sought by the appellant regarding the total number of CBI cases pending against BCCL employees alongwith the total number of cases disposed of by the competent court during the period 01.01.2017 to 31.10.2017 has been incorrectly denied under Section8(1)(g) and (h) of the RTI Act."
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through audio conference was scheduled after giving prior notice to both the parties.
Both parties are heard through audio conference and the Appellant's counsel has strongly opposed the denial of information by the Respondent and referred to the communication dated 12.05.2014 whereby similar information had been provided earlier by the MHA.
The Appellant's counsel further contended that proviso to Section 8(1) states that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. She stated that similar information about telephone tapping has been disclosed in the Lok Sabha in response to a question by a Member of Parliament. On 04.03.2015, the Minister of Communications and Information Technology, Shri Ravi Shankar Prasad answered a question raised by a Member of Parliament and stated that on an average 5000 interception orders per month are issued by the Union Home Secretary under the Telegraph Act and Rules. Therefore, the Appellant's request for statistical information cannot be denied when similar information has been disclosed in the Parliament.
While opposing the Respondent's denial of information under Section 8(1)(a) of the RTI Act, she has placed reliance on the recent decision of the Hon'ble Supreme Court in the case of Anuradha Bhasin vs Union of India(2020) 3 SCC 367, wherein the Government was directed to reveal orders which restricted access to the internet in the State of Jammu and Kashmir even though the Page 4 of 7 Government had initially claimed 'privilege'. The Hon'ble Supreme Court had directed disclosure of information in that case, on the following lines:
"...."15...First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner.
16. Second, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a clandestine manner..."
The Appellant has also placed reliance on the Hon'ble Delhi High Court decision in the case of B. S.Mathur v. Public Information Officer of the Delhi High Court [2011 125 DRJ 508Del], emphasising that the CPIO is required to provide a reasoned order, and the burden of proof is on them to show why the information cannot be given. Further, under Section 19(5) of the RTI Act, the onus to prove that a denial of a request was justified rests on the CPIO who denied the request.
Countering the Respondent's stance of seeking exemption from disclosure of information under section 8(1)(g) of the RTI Act, the Appellant has cited the decision of the Hon'ble High Court of Delhi in the case of Union of India vs R.S Khan[W.P.(C) 9355/2009], whereby the Court has held that Section 8(1)(g) cannot be invoked on the basis of ' mere apprehension' and there must be some basis to invoke this provision.
Respondent present for the virtual hearing claimed that since phone tapping or decryption is done keeping in view the safety and security of the country, his predecessor had denied disclosure of the information, invoking inter alia section 8(1)(a) of the RTI Act. He went on to state that minimal data is maintained for such highly classified operations and as per extant rules, such data are destroyed, all records are weeded out from time to time. He further contended that the information sought by the Appellant is not maintained with the CIS Division.
Decision:
The arguments of both parties are heard at length. Given the facts discussed above, the Commission is not convinced with the justification provided by the Respondent for denial of information, particularly because Respondent has not established how the provisions of Section 8(1)(g) of the RTI Act are attracted in Page 5 of 7 disclosure of mere statistical information. In fact, perusal of records indicate that the Respondent has claimed three exemptions under Section 8(1)(a), (g) and
(h) of the RTI Act, 2005 without establishing any connection of the same with the facts of the cases at hand. The reliance placed by the Respondent on the CIC decision No. CIC/VS/A/2014/000378/SB dated 02.09.2015 in the case of Shri Amitabh Narayan, is also not applicable in this case, since information sought in that case is different from the above mentioned six appeals. Since the Appellant has not sought any personally identifiable information in respect of any individual, or even the locations in which the orders under Section 69 of the IT Act were passed, there is no question of endangering the life or physical safety of any person. The information sought by the Appellant does not seek disclosure of any assistance given in confidence for law enforcement and security purposes either. Hence, the case cited by the Respondent is clearly distinguishable to the facts of these appeals. Oral submissions made by the Respondent during the course of hearing are unconvincing and fail to satisfy the Commission. It appears that the FAA has also not decided the cases at hand with due diligence and summarily disposed off the appeals, without dealing with the facts in any detail.
Under the circumstances at hand, the Commission finds that the six appeals have not been adjudicated appropriately. The matters are thus remanded to the FAA/Joint Secretary/CIS ,MHA, Sh. Ashutosh Agnihotri, to revisit the cases and re-examine the issues raised, deciding the cases with a reasoned speaking order after hearing both parties. The Respondent is directed to submit a copy of the FAA's revised order before the Commission by 31.07.2021 on providing a copy of the same to the Appellant.
The appeals are disposed off with these observations.
Y. K. Sinha(वाई. के.द्वसन्हा) Chief Information Commissioner(मुख्य सूचना आयुक्त) Authenticated true copy (अद्विप्रमाद्वणतसत्याद्वपतप्रद्वत) S. K. Chitkara (एस. के. द्वचटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 6 of 7 Page 7 of 7