Central Information Commission
Vekatesh Nayak vs Department Of Defence on 24 July, 2019
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/MODEF/A/2018/150559/SD
Venkatesh Nayak .... अपीलकता/Appellant
VERSUS
बनाम
CPIO,
RTI Cell,
M/o Defence ADG (AE),
G-6, D-1 Wing,
Sena Bhawan,
New Delhi.
CPIO
HQ 3 Corps
PIN- 908503
C/o 56 APO .... ितवादीगण /Respondent(s)
RTI application filed on : 05/07/2018
CPIO replied on : No Reply
First appeal filed on : 23/07/2018
First Appellate Authority order : No Order
Second Appeal dated : 14/08/2018
Date of Hearing : 03/07/2019
Date of Decision : 23/07/2019
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INFORMATION COMMISSIONER : DIVYA PRAKASH SINHA
Information sought:
The Appellant sought information through 9 points regarding the alleged apprehension of Lt. Col. Dharamvir Singh, Officer Commanding, 2 FID/3CISU, M-Sector, Imphal in the context of FIR No. 87(7)2018 registered at Imphal City Police Station on 01.07.2018.1
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present: -
Appellant: Present in person.
Respondent No.1: Lt. Col. Kamal Kapoor, GSO-1(RTI) & Rep. of CPIO, IHQ of MoD (Army), Delhi present in person.
Respondent No.2: Col Anurag Mahajan, Col GS (Education) & CPIO, HQ 3 Corps, Dimapur present through VC.
Appellant stated at the outset that due to the delay in listing the instant matter for hearing, he is withdrawing his prayer and contentions included in Second Appeal for granting an out of turn hearing.
Commission remarked at this instance that the instant RTI Application has been filed on the grounds that it concerns life and liberty of a person, however, it is not clear from the facts on record as to how life and liberty of a third party Lt. Col. Dharamvir Singh concerns the Appellant.
Appellant urged that as per the provisions of RTI Act, he is not required to explain his locus standi for seeking the information.
Commission clarified that it is not the locus standi vis-a-vis the RTI Act that is being questioned but locus standi of the Appellant vis-à-vis the life and liberty of Lt. Col. Dharamvir Singh. In other words, Commission inquired if the affected person or his wife who allegedly filed the FIR reached out to the Appellant to pursue their case or if the Appellant is aware of what prevented the affected party or his wife from seeking this information.
Appellant admitted that he is not pursuing the case on behalf of the affected party but received a copy of the averred FIR from a human rights activist located in Imphal. He further stated that nonetheless, he would like to put on record his additional submissions to rebut the objections raised by the Commission regarding his locus-standi.
Commission allowed the prayer of the Appellant and allowed him to send his additional submission by end of the day.2
File No : CIC/MODEF/A/2018/150559/SD Lt. Col. Kamal Kapoor, GSO-1(RTI) & Rep. of CPIO, IHQ of MoD (Army), Delhi submitted that upon receipt of the RTI Application from D (RTI), Ministry of Defence on 16.07.2018, inputs on the same was sought from Directorates of Military Intelligence (MI) and Discipline & Vigilance (DV) and based on their reply that no information is available at the HQ level and HQ 3 Corps be approached for the requisite information, RTI Application was transferred under Section 6(3) of RTI Act to PIO, HQ 3 Corps on 01.08.2018. He further submitted that the aspect of life and liberty cited by the Appellant was not considered by the HQ as the RTI Application was not filed by the aggrieved officer or his wife. He furthermore submitted that yet a reply was provided from the HQ on 10.08.2018 denying the information under Section 8(1)(j) of RTI Act.
Col. Anurag Mahajan, Col GS (Education) & CPIO, HQ 3 Corps, Dimapur submitted that upon receipt of the RTI Application on 07.08.2018, available information was provided to the Appellant vide letter dated 14.08.2018.
Appellant stated that he has received the reply dated 14.08.2018 of CPIO, HQ 3 Corps till date but not the reply dated 10.08.2018 of CPIO, IHQ of MoD (Army). He further stated that the information provided by CPIO, HQ 3 Corps is not satisfactory in the backdrop of the several media reports annexed with his additional submissions put before the Commission during hearing that suggest the alleged apprehension of Lt. Col. Dharamvir Singh. He furthermore stated that the information was as such sought from the Department of Defence and not Army HQs, therefore the transfer of RTI Application by Department of Defence was not appropriate, moreover, it was the Department of Defence which was alone competent to provide the information sought vide paras 7-9 of the RTI Application.
Lt. Col. Kamal Kapoor, GSO-1(RTI) & Rep. of CPIO, IHQ of MoD (Army), Delhi explained that IHQ of MoD (Army) is the integrated authority of Department of Defence itself and therefore their HQ is competent to reply on the RTI Application filed on the averred subject matter.
Appellant also objected to the claim of third party information made by Lt. Col. Kamal Kapoor, GSO-1(RTI) & Rep. of CPIO, IHQ of MoD (Army), Delhi and argued that given the gravity of the issue reflected through the media reports referred above, the subject matter of the RTI Application very much concerns the public.3
Col. Anurag Mahajan, Col GS (Education) & CPIO, HQ 3 Corps, Dimapur affirmed the reply provided on the question of alleged apprehension of Lt. Col. Dharamvir Singh that the said officer was not under any kind of apprehension/detention/arrest.
Appellant objected that an FIR exists regarding the alleged apprehension of the said officer and a habeas corpus petition has been filed in the High Court of Manipur by the wife of the officer.
Col. Anurag Mahajan, Col GS (Education) & CPIO, HQ 3 Corps, Dimapur responded to the objection of the Appellant to state that the Hon'ble High Court of Manipur vide its order dated 11.07.2018 in the Writ of Habeas Corpus filed by the officer's wife has recorded that the officer was not prima-facie in illegal detention as he was produced before the Court.
Commission remarked that subject to the submission of the additional arguments of the Appellant, relief, if permissible, would be ordered on paras 7- 9 of the RTI Application and on paras 1-6 of the RTI Application, it was opined that a copy of the judgment of the Hon'ble High Court of Manipur in the averred Writ of Habeas Corpus will suffice the objections of the Appellant.
Appellant lastly prayed that Commission may consider directing the FAA to dispose of First Appeals relating to information requests received under the life and liberty clause expeditiously.
Decision Commission received the additional submissions of the Appellant on 04.07.2019. The crux of the Appellant's arguments can be surmised into the following contentions:
i. That, given the absence of any power vested in the Commission either by virtue of the provisions of RTI Act or the attendant RTI rules, it cannot insist that a RTI Applicant should establish locus-standi in urgent information requests concerning the life and liberty of a person.
ii. That, in the matter of Shekhar Singh, Aruna Roy & Ors. vs. Prime Minister's office, Appeal No. CIC/WB/C/2006/00066, a division bench of the Commission laid down the procedural requirement for seeking information under the proviso to Section 7(1) of RTI Act, wherein no mention of locus standi has been made.4
File No : CIC/MODEF/A/2018/150559/SD iii. That, the RTI Applicant is required to only provide material indicating substantive evidence that a threat to life or liberty exists, and in the instant case, said duty has been adequately discharged by him by attaching a copy of the First Information Report (FIR) registered by the Imphal Police Station with his RTI Application, First & Second Appeal suggesting that the liberty of Lt. Col Dharam Vir Singh had been curtailed.
iv. Appellant has relied upon the decisions of Hon'ble Himachal High Court in the matter of Shekhar Srivastava vs. State Information Commissioner & Ors. [CWP 1367 of 2015]; Hon'ble Delhi High Court in the matters of The CPIO, Supreme Court of India vs. Subhash Chandra Agarwal & Anr. [W.P.(C) 288/2009]; Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal [LPA No. 501/2009]; Indian Olympic Association vs. Veeresh Malik & Ors. [W.P.(C) 876/2007, 1212/2007, 1161/2008]; and Hon'ble Allahabad High Court in the matter of Public Information Officer, Chief Minister's office, Civil Secretariat Govt. of UP vs. SIC & Ors. [2208 (4) AWC 3574] to emphasize that there is no requirement of locus standi for seeking information under RTI Act and that the right to seek and obtain information is not only an individual right but is also a collective right of the citizenry to demand transparency and accountability for the actions and omissions of the Government and its instrumentalities.
v. In the last part of his submissions, Appellant has extrapolated on the Hon'ble Supreme Court's judgment in the matter of Extra-Judicial Execution Victim Families Association & Anr. Vs. Union of India & Anr. [AIR 2016 SC 3400] to urge that the collective dimension of the people's fundamental right to know which is deemed to be a part of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India has received recognition in the averred case which pertained to 'extra-judicial killings of civilians by armed forces personnel in Manipur- the very State where Lt. Col. Dharam Vir Singh, subject reference of the RTI Application was stationed at the time of his alleged apprehension.' vi. That, people's right to know the truth, as opposed to the victim's right to know the truth, find reflection in the proviso underlying Section 24 of RTI Act, which provides for disclosure of information by excluded 5 agencies in cases pertaining to allegations of human rights violation. That, in such cases, applicants do not need to prove the human rights violation against them in order to secure access to information, and in this context, in the instant case since an FIR already exists regarding the alleged deprivation of liberty of Lt. Col Dharam Vir Singh and a habeas corpus petition has been filed in the High Court of Manipur, the Respondent office ought to provide the information even before the allegations are proven right or wrong.
Upon a detailed analysis and consideration of the submissions of the Appellant, Commission observes that while Appellant has extensively dwelt into the issue of locus standi for seeking information under RTI Act, the moot question in the instant case is locus standi of the Appellant vis-a-vis the life and liberty of another individual. Appellant in his additional submissions has sought to integrate the aspect of life and liberty provided in the proviso to Section 7(1) of RTI Act with the human rights violation provided in the proviso to Section 24(1) of RTI Act to assert on the collective right of the public to seek information regarding such cases of alleged apprehension of an Army Officer based on media reports suggesting the factum of extra-judicial killings.
At the very outset, Commission deems it fit to disintegrate the reliance of the Appellant on the life and liberty clause under Section 7(1) of RTI Act and human rights violation referred in Section 24(1) of the RTI Act as Section 24 of RTI Act is specifically with respect to excluded agencies under RTI Act and neither of the Respondent public authorities are excluded agencies. Similarly, the emphasis on "collective right of the public to know" emanating from the principle of larger public interest in the backdrop of extra-judicial killings being read into the alleged apprehension of Lt. Col. Dharamvir Singh based on certain media reports can be considered only as a peripheral issue. This is so because adjudicating on the merits of the alleged apprehension of the said officer or relying on the media reports to decide whether or not the alleged apprehension is related with the extra-judicial killings of civilians in Manipur is outside the scope and purview of RTI Act.
It may be noted that since every case involving the life and liberty of an individual will not invariably concern human rights violation, the considerations advanced by the Appellant to contest locus standi on the claim of human rights violation of the said officer is deemed as extraneous in the instant case.
Further with respect to the import of life & liberty, Commission observes that the reliance placed by the Appellant on the division bench decision of the 6 File No : CIC/MODEF/A/2018/150559/SD Commission in the matter of Shekhar Singh, Aruna Roy & Ors. vs. Prime Minister's office, Appeal No. CIC/WB/C/2006/00066 is far stretched. The fact that the division bench did not consider the question of locus standi while deciding the procedural requirement for seeking information under the proviso to Section 7(1) of RTI Act cannot lead to the conclusion that the bench has settled the law that locus standi has no role to play while adjudging a RTI Application filed by a citizen under the said proviso who has prima-facie no relation to the individual whose life and liberty is said to be at stake.
Now, to put the observations of this bench into perspective, reference shall be had of a decision of a coordinate bench of the Commission in the matter of Pratap Kumar Jena vs. PIO, Central Institute of Psychiatry, Ranchi in Appeal No. CIC/SG/A/2012/000814 on the aspect of life and liberty as under:
"Proviso of Section 7(1) states that where the information sought concerns the life or liberty of a person, the same shall be provided within forty- eight hours of the receipt of the request. This provision has to be applied only in exceptional cases and the norm is that information should be provided within thirty days from the receiving date. Whether the information sought concerns the life or liberty of a person has to be carefully scrutinized and only in a very limited number of cases this ground can be relied upon. The government machinery is not designed in a way that responses to all RTI Applications can be given within forty-eight hours. A broad interpretation of 'life or liberty' would result in a substantial diversion of manpower and resources towards replying to RTI Applications which would be unjustified. Parliament has made a very special exception for cases involving 'life or liberty' so that it would be used only when an imminent threat to life or liberty is involved.
The life or liberty provision can be applied only in cases where there is an imminent danger to the life or liberty of a person and the non-supply of the information may either lead to death or grievous injury to the concerned person. Liberty of a person is threatened if she or he is going to be incarcerated or has already been incarcerated and the disclosure of the information may change that situation. If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven. The Commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life or liberty can be proven."7
Similarly, on the question of who can invoke the life and liberty clause, we may refer to a decision of the J & K State Information Commission for persuasive value in the matter of Dr. Raja Muzaffar Bhat/ Dr. Mushtaq Ahmad vs. PIO, G.B Pant Hospital, Srinagar dated 01.12.2015, wherein the following was held:
"5. Similarly, there was a question, whether information sought for the life and liberty of a person has to be by the same person whose life or liberty is at stake. The nature of the situations for these two eventualities and situations makes seeking of information directly by the affected persons very difficult and at times impossible. If a person is unauthorizedly incarcerated, he may not be in a position to use his right of seeking information. Similarly, if a patient is admitted in the hospital and is not in a position to invoke his right personally, any close member of his family or any other person who has bonafied interest in the preservation and maintenance of life and liberty of that person can invoke the right to information which may ultimately ensure safety of the life and liberty of any person. Therefore, if after establishing genuine interest in preserving life and liberty of a person, the information can be sought by any other person who is otherwise qualified to seek information under J&K RTI Act, 2009."
Adverting to the aforesaid ratios, it is made adequately clear that Commission has not questioned the locus standi of the Appellant in seeking information under RTI Act but his locus standi when he seeks to invoke life and liberty clause of RTI Act with respect to another individual, as the said clause mandates provision of information within 48 hours. For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake. As rightly observed by the coordinate bench in Pratap Kumar Jena's case (supra) - "If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven." In other words, if an applicant seeks information pertaining to incarceration of a person or medical incapacitation of a person without any bonafide interest in the preservation and maintenance of life and liberty of such person, rather for purposes such as research, academic discourses or for that matter such information is accessed by journalists in the capacity of being citizens for the purpose of reporting and sensationalism, would it be prudent to insist on getting the information within 48 hours from the CPIO? Allowing such a proposition i.e tending to the proviso to Section 7(1) of RTI Act without any consideration of locus standi or outcome of disclosure will absolve the legislative intent behind inserting a proviso which carves a supplemental right to information within 48 hours of filing a RTI Application.
8File No : CIC/MODEF/A/2018/150559/SD In a nutshell, therefore, when the veracity of the claim of life and liberty is being ascertained vis-à-vis the information seeker, locus standi will indeed play a discerning role.
It follows then from the contentions of the Appellant in the written submissions with respect to the debate surrounding the alleged apprehension of Lt. Col. Dharamvir Singh, that the information sought in the RTI Application under reference concerns the life and liberty of the said officer beyond any reasonable doubt. Commission is also convinced that Appellant has a bonafide interest in the disclosure of this information by virtue of his standing in the civil society as a prominent activist of access to information and human rights initiatives as well as the fact that he filed the RTI Application upon receiving a copy of the FIR from a Manipur based human rights activist.
It is emphasized therefore that assessing the locus standi of a citizen who invokes life and liberty proviso of Section 7(1) of RTI Act to seek information regarding another individual who has prima-facie no relation to the information seeker is imperative to secure a balance between right to information and use of resources of the public authorities in attending to such RTI Applications within 48 hours. Even so, the RTI Act or specifically the proviso to Section 7(1) of RTI Act does not qualify the phrase life and liberty of a person with an inclusive or exclusive parameter, a purposive construction of the same is necessitated in cases such as the instant one. The following obiter dicta of the Hon'ble Supreme Court in the matter of Central Board of Secondary Education (CBSE) & Anr. vs. Aditya Bandhopadhyay and Ors. [(2011) 8 SCC 497] finds relevance here:
"34......The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act."
Further on, as discussed earlier, Commission reiterates that the arguments concerning "collective right of the public to know" in the instant case citing the backdrop of the extra judicial killings is not being taken into consideration for adjudication. Similarly, the counter argument of the Appellant to the contention of Lt. Col. Kamal Kapoor, GSO-1(RTI) & Rep. of CPIO, IHQ of MoD (Army), Delhi that Section 8(1)(j) of RTI Act is not applicable as larger public interest warrants the disclosure of information based on the media reports speculating the reasons for alleged apprehension of Lt. Col. Dharamvir Singh is 9 not tenable. For the same reasons, Commission is also not going into the merits of the reply provided by CPIO, HQ 3 Corps stating that Lt. Col. Dharamvir Singh was not under any kind of apprehension/detention/arrest, as under RTI Act, only such information which is available on record can be provided.
In this context, reference may be had of a judgment of Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 wherein it has been held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate fora. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished." (Emphasis Supplied) Nonetheless, based on Appellant's contention that information sought on paras 7-9 of the RTI Application ought to have been provided by the Department of Defence, Commission directs Respondent No.1 to provide specific and available information on the said paras to the Appellant. Furthermore, to allay the apprehensions of the Appellant regarding the veracity of the information provided by CPIO, HQ 3 Corps denying the alleged apprehension of Lt. Col Dharamvir Singh, Commission directs Respondent No.2 to provide a copy of the judgment of the Hon'ble High Court of Imphal on the Writ of Habeas Corpus filed by Lt. Col. Dharamvir Singh's wife to the Appellant.
The aforesaid information shall be provided free of cost to the Appellant by Respondent No.1 & 2, respectively, within 15 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission.
Additionally, a copy of this order is marked to the Provost Marshal & FAA, IHQ of MoD (Army) with an advisory to assess the suitability of introducing a system wherein First Appeals received in future with respect to RTI Applications filed under the life and liberty clause under Section 7(1) of RTI Act can be considered expediently. In other words, in cases where FAA is convinced that the disclosure of the information sought will obviate an 10 File No : CIC/MODEF/A/2018/150559/SD impediment to life and liberty of a person, the relevant First Appeal may be disposed of within a expeditious timeline which is commensurate with the 48 hours stipulation of the proviso to Section 7(1) of RTI Act. Being a nodal office for implementation of RTI Act in various agencies of Indian Army, Provost Marshal & FAA, IHQ of MoD (Army) may also consider issuing similar advisory in this regard to all such agencies.
The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काशिस हा) Information Commissioner (सूचनाआयु ) Authenticated true copy (अ भ मा णतस या पत त) Haro Prasad Sen Dy. Registrar 011-26106140/ [email protected] हरो सादसेन,उप-पंजीयक दनांक / Date Copy to:
Provost Marshal & FAA (Under RTI Act) Adjutant General's Branch Room No 421-A, B-Wing Sena Bhawan, IHQ of MoD (Army) DHQ PO, New Delhi-110105
--(For taking note of the aforesaid advisory) 11