Central Information Commission
Deepak vs Ministry Of Home Affairs on 24 August, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka,
New Delhi-110067
F. No. CIC/SB/A/2015/900224
Date of Hearing : 31.05.2018
Date of Decision : 20.08.2018
Appellant/Complainant : Shri Deepak Juneja
Respondent : Central Public Information Officer,
Ministry of Home Affairs,
PP Division, NDCC-II Building,
3rd Floor, Jai Singh Road,
New Delhi-110 001
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 05.07.2014
PIO replied on : 01.08.2014
First Appeal filed on :
First Appellate Order on : 15.09.2015
2nd Appeal/complaint received on : 18.08.2015
ORDER
1. The present appeal bearing No. CIC/SB/A/2015/900224 was earlier heard and disposed by a coordinate bench of this Commission vide order dated 28.10.2016. However, the appellant being aggrieved with the same, preferred a writ petition No. 10792/2017 titled as Deepak Juneja Vs. Union of India. The Hon'ble High Court of Delhi vide order dated 05.12.2017 proceeded to set aside the order passed by the coordinate bench of this Commission while making certain observations reproduced hereinafter:
3. The petitioner has filed the present petition, inter alia, impugning an order dated 28.10.2016 passed by the Central Information Commission (hereafter „CIC‟), whereby the petitioner's second appeal under Section 19(3) of the Right to Information Act, 2005 (hereafter "the Act") against the order dated 15.09.2014 passed by the First Appellate Authority (hereafter "FAA") was rejected. By the aforesaid order dated 15.09.2014, the FAA had rejected the petitioner's appeal against the denial of information sought by the petitioner in terms of his online application dated 05.07.2014.
4. The petitioner has restricted his relief in the present petition to seek the following information:-
"The PIO has failed to provide a complete list of persons receiving security from GOI. The PIO has cited exemption under Section 8(l)(g) &(j) for denial of information.
Firstly, the information sought is only about type of security and not details of security. More knowledge of type of security does not jeopardize any individual‟s security. It is commonly known for many persons and regularly reported in Media and does not in any way create a loophole in the security.
Secondly, it is in larger public interest that such a disclosure be made. People have an inherent right to know who their money is being spent upon and how much nor does such a disclosure result in unwarranted invasion of privacy. Mere disclosure of names of the beneficiaries of Tax payer‟s money cannot be construed as Invasion of privacy. Hence there is a deep seated public interest in such information and such a disclosure is necessary for transparency and accountability.
It is further stated and clarified that the information only regarding private individuals be provided i.e. only those persons who are not currently holding any Constitutional or Statutory office."
5. Apparently, the aforesaid information was denied to the petitioner as according to the respondent, the same is exempted from disclosure under Sections 8(1)(g) and 8(1)(j) of the Act. This is stoutly contested by the petitioner.
6. It is seen that, in the impugned order, the CIC has not addressed the aforesaid controversy as he has merely proceeded on the basis that the information sought for by the petitioner was not disclosed to the Parliament. This consideration is wholly extraneous in the context of the statutory provisions of the Act. Section 8(1) of the Act lists out various clauses indicating the information that is exempted from disclosure under the Act. The proviso to Section 8(1) of the Act expressly provides that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
7. Thus, if it is found that any of the information sought by the petitioner could not be denied to the Parliament / State Legislature, the same would have to be disclosed to the information seeker irrespective of whether such information had been called for or provided to the Parliament.
8. In any view of the matter, the CIC was first required to examine whether information sought by the petitioner was exempted under clause (g) and (j) of Section 8(1) of the Act as was claimed by the CPIO.
9. In view of the above, the impugned order is set aside and the matter is remanded to the CIC to consider the rival contentions and pass an appropriate order.
10. The petition stands disposed of.
VIBHU BAKHRU, J DECEMBER 05, 2017 It is how the present appeal has been restored for consideration afresh before this bench. Notice has been issued to both the parties.
2. Both the parties are present and heard at length. Before adverting to the rival contentions put forth by parties, it would be profitable to refer to the queries contained in the RTI application dated 05.07.2014:
"It has been reported in the media that Mr. Amit Shah or Bhartiya Janta Party will be provided Z-Plus security cover by the government. Kindly provide the following information regarding it:
1. Are private citizens, who are not holding any public office entitled to such security cover.
2. Kindly provide a certified copy of the rules and regulations governing the entitlement and determination of type of security cover to be given to a person.
3. What is the estimated monthly or annual cost of providing the Z- Plus security cover to Mr. Amit Shah
4. Who will be responsible for paying the bill of this cover. The Government of India or Mr. Amit Shah or the Bhartiya Janta Party.
5. Kindly provide complete list of persons currently under security cover, the type of security cover being provided, the individual amount being spent, and who is paying for it."
3. The PIO replied vide letter dated 01.08.2018 thereby denying information sought citing exemption clause (g) & (j) of the Section 8(1) of the RTI Act, 2005. The appellant preferred the first appeal whereupon the FAA upheld the decision of PIO and elaborated upon the exemptions availed by PIO. The same reads as:
1. Please refer to your online First Appeal Registration No.MHOME/A/2014/60257 dated 27.08.2014
2. I have gove through the grounds raised in your First Appeal. You have preferred the appeal on the ground that information provided by CPIO in respect to points 2,3, and 5 of your application is not satisfactory/complete. I have examined the information sought by you vide your RTI application dated 05.07.2014, reply sent by CPIO and points raised in your appeal and the following observations are made:
Point No. 2: you have sought copy of rules and regulations governing the cntitlement and dtermination of types of security cover to be given to a person. CPIO vide reply dated 01.08.2014 has stated that security to an individual (including private citizen) is provided on the basis of threat assessment carried out by the Central Security Agencies. Further details in this regard were not disclosed citing sections 24(I), 8(1)(g) and 8(1)(j) of the RTI Act, 2005.
I find that the CPIO was justified in denying the details including rules and regulations on the subject. In this connection, it is point out that the guidelines regarding provision of security to an individual have been framed in consultation with the security agencies. Since security agencies have been exempted from the provision of RTI Act 2005 in terms of Section 24(1) read with Schedule -II of the RTI Act, details with regard to modalities of assessment of threat and categorization of security to be provided to an individual cannot be disclosed. Point No.3: you have requested details of months/annual cost of security to Mr. Amit Shah. The information was not provided by the CPIO on the grounds that the expenditure on security is incurred by concerned police force(s) providing security to an individual and such details are not maintained in this office. You have, however, observed that expenditure incurred by the central agencies should have been provided.
In this connection, it is pointed out that as correctly observed by the CPIo, the responsibility for provision of security to an individual rests with the concerned State Government under whose jurisdiction such an individual is ordinarily resident or happens to be. In case a protectee, who is ordinarily resident of Delhi, visits any place outside Delhi, it will be the responsibility of the concerned State Government to provide him the requisite security cover. The expenditure on provision of such security is incurred by the concerned police force(including Delhi Police) out of their normal budget under different heads of account and details of the same are not reported to this office. In view of this, details of expenditure incurred on provision of security to protectee are not been maintained in this office and hence could not be provided to you.
Point No. 5: You have requested for complete list of persons currently under the security cover provided, the amount being spent and who is paying for it. CPIO vide his letter dated 01.08.2014 had observed that details of security provided, being exempt under Sections 8(1)(g) and 8(1)(j) cannot be disclosed.
With regard to your statement that information sought is only with regard to type of security and disclosure of names of beneficiary would not endanger the life and provision of the individual. It may be stated that the details of the types of security provided to an individual would reveal nature of security arrangements made for a person, as categorization of a protectee itself indicates the level of security provided. Such security categorization is made on the basis of inputs provided by the security agencies who are exempt in terms of Section 24(1) of the RTI Act 2005. In view of this the details with regard to persons being provided with the security cover and types of security provided, being exempt under Sections 24(1), 8(1)g) and 8(1)(j) if the RTI Act 2005 cannot be disclosed.
3 In the light of the above I observe that the information to the extent possible under the provision of RTI Act 2005 has already been provided to you by the CPIO and no further information can be provided to you in response to your RTI application dated 05.07.2014 4 Your First appeal is disposed of accordingly.
Yours faithfully, Sd/-(Sailesh) Joint Secretary (PP&VS)&Appellate Authority Appellant's Submissions:
4. The plea of appellant is aimed at gaining access to names of all those Z+ security cover protectees who are not holding any Constitutional or Statutory office. The appellant submits that the plea taken by the PIO is contrary to the law as well as the facts since merely publicizing the names of security protectees, the rules for granting such protection, the cost of providing Z+ security cover and the source for defraying the cost incurred for security cover would not ipso facto comprise the security. He contends that the information sought is not exempt under clauses (g) and (j) of Section 8(1) of the RTI Act as invoked by the respondent PIO. While addressing arguments against applicability of clause (g); the appellant contends that the protectees are already under a threat perception for which they are adequately provided with security. He submits that the security cover at state expense is a largesse and the same cannot be kept classified from the citizenry. Adverting to the proviso appended to clause
(j), he submits that the details of protectees under the Z+ security cover cannot be kept from the Parliament and hence the same cannot be denied to a citizen. The appellant points out that Mr. Amit Shah who happens to be the National President of Bhartiya Janta Party has been granted Z+ security cover by MHA since July 2014 despite him not being holding any constitutional or statutory office. The appellant seeks the reasons for grant of such security cover and the expenses incurred due to the same. He relies on various media reports wherein it has been reported that Mr. Mukesh Ambani Chairman of the Reliance Industries Ltd. has been granted with 'Z' security cover on cost reimbursement basis (approximately 15 to 18 lacs per month) to the Govt. of India. He argues that grant of security cover to eminent persons under threat is the duty of state in cases where the beneficiary holds a high office. As per the appellant, the act of bearing expenses for providing security cover to key State functionaries & Constitutional dignitaries by Govt. of India is justified since they cannot perform their vital functions while reeling under threat. However, the appellant submits that defraying cost of elite Z+ security cover to private persons must not be meted out from the state exchequer. He submits that since the cost of security cover granted to Mr. Amit Shal is borne out from the exchequer, the Parliament and similarly, the public has a right to know about the arrangement. Upon a query by the Commission, as to the source of his knowledge that cost of security cover provided to Mr. Amit Shah is being borne by GoI; the appellant submits that since the PIO had not responded adequately, he was unaware if the security cover cost is being charged to Mr. Amit Shah or not. Yet another limb of the argument advanced was that since the information desired cannot be denied to the Parliament, the same cannot be denied to him in terms of the proviso appended to clause (j) of Section 8(1) of the RTI Act.
5. He further relies on certain media reports claiming that Z security cover has also been extended to Shri Swami Ramdev, who does not hold any constitutional office. He has filed on record the order dated 22.03.2017 passed by a 3 judge bench of the Hon'ble Supreme Court in Sanjay Laloo versus State of Meghalaya & Ors. and invited attention towards the relevant excerpts wherein the address of a former Judge despite being a Y category protectee was revealed in the judicial order. The contention of the appellant is thus aimed at exhibiting that revelation of identity and address of a protectee was not deemed classified by the Apex Court.
Respondent's Submissions:
6. The PIO reiterated and relied upon the observations of the FAA. It is contention of the PIO that that the queries of the appellant have no bearing with public interest and the same would be prejudicial to the security cover of the Z+ protectees. He submits that the protection granted to various political and non-political dignitaries is as per standard operating manuals which are classified. He submits that the extension of security cover is on the basis of threat perception and the whole process of security assessment is thus classified and any revelation of the specific security assessment of a person or the rules by which such assessment is guided would render the whole security cover to be futile. In another contention of the respondent is that revelation of expenses incurred in providing security cover would lead to revelation of the intricacies as well as the magnitude and rigour of security cover. Another contention of respondent is that the rules governing the entitlement of grant of security cover and process of threat assessment etc are framed in consultation with Central Security Agencies. Citing the bar of Section 24(1) of the RTI Act, the respondents claims, that the rules so framed in consultation with various agencies which are exempted under the mandate of RTI Act. He submits that revelation of the rules framed in consultation with various exempted organizations would be nullifying the effect of Section 24 besides unveil the whole process of security assessment to public at large.
Decision:
7. Before I proceed to weight the rival contentions of the parties, the relevant statutory position maybe summed up. The RTI Act is a central legislation aimed at promotion of transparency in governance. The preamble to RTI Act, 2005 reads as:
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.
[Emphasis added]
8. The RTI Act aims at setting out the practical regime of RTI. The expression 'practical' qualifies the RTI. The preamble further acknowledges that "revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments". To counter the equally important rival facets of governance, Section 8 has been enacted which incorporates various situations wherein the Right of a citizen to secure Information from a public authority can be curtailed.
9. Clauses (g) & (j) of Section 8(1) of the RTI Act provide:
8. Exemption from disclosure of information.-- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
......
(g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
..........
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
10. Clause (g) is based on the 'potential harm' theory. While assessing the dislcosability of a piece of information, the PIO is enjoined to apply his mind as what effects the revelation may produce. There has to be something more to mere guesswork by the PIO as the expression „which would endanger‟ cannot be read as „which may endanger‟. However, in the present case, information regarding the beneficiaries of Z+ security cover has been sought. Judicial notice can be taken of the fact that the protectees are already facing highest level of threat and that is why they have been accorded with the highest level of security cover. Revelation of names of protectees if not adding on to the danger their life or physical safety would be counterproductive to the efficacy of security cover. The query, when seen from this perspective attracts the exemption under clause (g).
11. The exemption clause (h) prevents disclosure of personal information. The names of private Z+ protectees are personal since they do not owe the security cover to their public office but private position in life. It is not the case that each and every private person would get Z+ cover at the mere asking. The public eminence of the private person; threat perception and the potential harm which may ensure to the national interest if the private person is left exposed to the potential threat are the key determinative factors while granting the security cover. Despite being an eminent person under threat; the protectee is entitled to his Right of privacy. A nine judge bench of the Supreme Court in Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (24.08.2017 - SC) : MANU/SC/1044/2017 held 'Right to privacy' as a right guarded by the Constitution of India. The identity, specific threat perception analysis etc. are personal information of a protectee who does not hold a public office. For instance, if the Govt. extends a Z+ cover to a spiritual leader or an ace sportsman or any eminent personality in acknowledgement of his/her contribution to the national interest, would that person be left bereft of his/her right to privacy ? The right to know, in such case must make a way for the right to privacy of the individual and the efficiency of governance since the same furthers the concept of 'practical regime' of RTI as conceptualized in the preamble of the RTI Act. Asserting RTI to the point that it finds itself surrounded by impracticality is undesired.
12. It was further argued by appellant that since the information sought could not be denied to the Parliament, he is entitled to access the same. It would have been difficult to fathom the reply had the question been not actually raised in the Parliament. On 09.12.2015, the MoS for Ministry of Home Affairs tabled reply to the following queries.
RAJYA SABHA UNSTARRED QUESTION NO. 1192 SECURITY TO PERSONS OF POLITICAL AND JUDICIAL FIELD †1192. SHRI NARAYAN LAL PANCHARIYA:
Will the Minister of HOME AFFAIRS be pleased to state:
(a) the criteria for providing security to persons of political and judicial field;
(b) the category of persons of both fields for whom there is a provision for providing security guard;
(c) whether there is a provision to provide security to Members of Parliament, if so, the number of Member of Parliament to whom security guards have been provided so far in the country along with details thereof; and
(d) the names of persons and families in the country to whom security has been provided, the category-wise details thereof?
ANSWER: MINISTER OF STATE IN THE MINISTRY OF HOME AFFAIRS (SHRI HARIBHAI PARATHIBHAI CHAUDHARY)
(a): Security arrangements for President of India, Vice President of India and Prime Minister of India are made in accordance with the guidelines contained in their respective Blue Books issued by Ministry of Home Affairs and the SPG Act. Security arrangements for other political personalities are made as per the guidelines laid down in the „Yellow Book‟ titled „Security arrangement for the protection of individuals‟. The security arrangements for such individuals are made after careful assessment of their threat perception emanating from terrorists /militant/fundamentalist outfits and organized criminal gangs. The degree of threat varies from individual to individual, depending on factors, such as nature of activities, status, and likely gains for the terrorists, etc. Accordingly, categorized security cover (Z+, Z, Y & X) is provided to them on the basis of gravity of the threat.
The security so provided is periodically reviewed by Committee specially constituted for this purpose. Certain categories of individuals, such as Union Ministers, State CMs and Judges of Supreme Court and High Courts, are provided positional/statutory security cover to facilitate bold and impartial decision making.
(b) The protectees falling under Z+, Z, Y(threat) and Y category are entitled for getting the deployment of Static Armed Guard at their residence. Besides, Static Armed Guard are also provided to the protectee of any category based on the threat assessment.
(c) Security cover to individuals, including MPs is provided only on the basis of individual threat perception. State Governments have their own criteria to provide security to MPs. The list of MPs provided security under various categories is not maintained centrally.
(d) The details of individuals, who are being provided security cover, by Central Government cannot be disclosed in the public interest.
13. Thus, in terms of the above quoted parliamentary proceeding, there is an actual instance of denial of names of beneficiaries of all categories of the Central protectees to the Parliament. Hence, the argument of application of proviso to clause (j) in the present case does further the cause of appellant.
14. As a sequel to the aforesaid, I find that the RTI application has been dealt with adequately. The appeal is disposed of.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer