Central Information Commission
Mrparas Nath Singh vs Ministry Of Home Affairs on 1 October, 2014
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
File No.CIC/SS/A/2013/002083SA
Appellant : Shri Paras Nath Singh
Respondent : Tihar Jail
Date of hearing : 26092014
Date of decision : 01102014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, 19(3) of the RTI
Act
Result : Appeal partly allowed/
Disposed of
Summary:
Any RTI Application (in this case seeking details of Afzal Guru execution) cannot be rejected lock,
stock and barrel without application of mind and citing exception under Section 8 without
justifying the defence. The Commission directs the Public Authority to
a. provide certified copy of death warrant for the execution of Afzal
Guru,
b. provide copy of communication sent to family members of Afzal
about the date of execution with date and dispatch number.
c. reexamine with due application of mind what information could be
given after separating it from what could not be given regarding point 8, and if
it is difficult to separate or block certain names and sentences of the
correspondence, they may choose to narrate the process of fixation of date
for execution and time provided for the communication about the same, as the
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appellant doubting sufficiency of time given to family members about his
execution.
d. provide relevant extract of rules and regulation through which the
execution is generally carried in Tihar Jail and
e. not to disclose the name or designation of authority who has fixed
the date of execution of Afzal Guru and
f. not to give the video recording of execution, but inform whether it
was recorded
The appellant is represented by Dr. Deepak Juneja. The Public Authority is
represented by Mr. Navin Kumar Sexena, SCJ(PHQ)/CPIO, Director General of Prisons,
Prison Head Quarter, Near Lajwant Chowk, New Delhi.
FACTS
2. The appellant filed the RTI application on 19.2.2013 seeking information with regard to a copy of Mercy petition and details of file relating to execution of Afzal Guru etc through 11 points. Central Public Information Officer (CPIO) in his reply claimed the exemption under section 8(1)(a) of the RTI Act. Being unsatisfied with the reply, the appellant made first appeal on 18.4.2013. First Appellate Authority (FAA) by his order dt. 2.5.2013 upheld the CPIO order. Being aggrieved with the reply of respondent authority, the appealant made second appeal before the Commission.
Hearing:
3. Dr. Deepak Juneja on behalf of appellant, Mr. Navin Kumar Saxena, SCJ(PHQ)/CPIO, Directorate of Prisons made their submissions. The Appellant sought 11 point information regarding mercy petition and execution of Afzal Guru. Out of 11, he said that questions regarding Home Affairs were concluded and he wanted information to the points 3, 7,8,10 and 11 only:
3. the certified copy of his (Afsal Guru) death warrant;
7. Video recording of execution of Afzal Guru, if recorded 2
8. the name of the authority who fixed the execution date of Afzal. Also provide me the certified copy of the correspondence/Filenoting/documents dealing with the fixation of date of his execution;
10. the certified copy of the correspondence including the dispatch number and date made with the family of Afzal Guru in connection to his execution.
11. the relevant extract of rules and regulation through which execution is carried out.
Also provide me the rules and regulations of Tihar Jail for the same. The PIO of Tihar Jail rejected the request by citing section 8(1)(a) of RTI Act, 2005. The First Appellate Authority Mr G. Sudhakar, Dy Inspector General (Prisons) agreed with the stand taken by the PIO and rejected the appeal.
4. The Commission observes that both the PIO and the Appellate Authority dismissed the application without explaining why and how disclosure of information sought would be a threat to sovereignty or security of the nation as if the very usage of name "Afzal Guru" in the RTI application would suffice to reject it as a whole. For instance, the appellant sought relevant extract of rules and regulations through which execution was carried out. Will this also threaten the Nation?
5. The Commission finds this rejection of RTI application in toto is without any application of mind and without examining each and every point, separating the information that can be given from the one that cannot be given using doctrine of severability provided under Section
10. Neither CPIO nor FAA gave any reasoning for claiming exemption under Section 8(1)(a) of the RTI Act. The Commission suggests that the public authorities, their CPIOs and Appellate Authorities should desist from rejecting the RTI applications, lock, stock and barrel without giving any reason or justifying the exemption claimed which compels the applicant to approach the Commission.
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6. The CPIO of Tihar Jail submits that any information about the execution of Afzal Guru will endanger the security, integrity and sovereignty of the Nation and seeks exemption under Section 8(1)(a) of the RTI Act. The Commission asked the PIO how giving a copy of death warrant would endanger the security of the Nation? Then he said that it might create a law and order situation and endanger lives of the people. Later he agreed that endangering the nation is totally different from possibility of creating a law and order problem. The appellant's representative has shown the Commission the copy of death warrant issued in the case of Mohmad Ajmal Kasab, the terrorist executed, which was obtained through a RTI request.
7. Regarding the request for video recording of execution of Afzal Guru, the CPIO said there was no such provision in the Jail Manual. The Commission asked whether there was any such practice of video recording every execution. The PIO submitted that he would verify the same and give information accordingly. On a different point the Commission agreed with the contention of the PIO that revealing the name of authority who fixed the execution date along with correspondence and file notings, etc about the same, could cause security threat to the person so named. Then Commission asked the appellant's representative, what public interest it would serve? The appellant's representative explained that he wanted to know whether sufficient time and information was given to family members of Afzal Guru before his execution. He also sought correspondence of Jail authorities with the family of Afzal Guru along with dispatch number and date. The CPIO sought time to consult his higher authorities to show how the security of the Nation would be affected and what could be the basis of such apprehension and what information could be given in reply to the points raised in the RTI application.
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8. In Namit Sharma vs. Union of India, decided in Sept 2012, [2013(1) SCC 745], the Supreme Court explained:
It is a settled proposition that the Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India ( herein after referred to as 'the Constitution') encompasses the right to impart and receive information. The Right to Information has been stated to be one of the important facets of proper governance. In the light of the law guaranteeing the right to information, the citizens have the fundamental right to know what the Government is doing in its name. (Para 21)....It is true that democratization of information and knowledge resources is critical for people's empowerment especially to realize the entitlements as well as to augment opportunities for enhancing the options for improving the quality of life. Still of greater significance is the inclusion of privacy or certain protection in the process of disclosure, under the right to information under the Act. Sometimes, information ought not to be disclosed in the larger public interest (Para 35)
9. Section 8(1) of the RTI Act reads as under: "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;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; Exemption from disclosure of information.
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(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;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
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(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no 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. The Delhi HC in Bhagat Singh v. CIC W. P. (C) No. 3114/2007 observed that exemptions in the RTI should be strictly construed and held:
"Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself."
Section 8(1)(g) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(g) information, 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;"
11. This Section provides inter alia that where disclosure of information would endanger the life or physical safety of any person, the PIO shall not be under any obligation to provide such information. In Mukul Mittal v IRCON International Ltd, the Central Information Commission directed the Respondents that merely quoting a clause of Section 8(1) is not 6 sufficient to deny the information. Full reasons must also be given for invoking the provisions of Section 8(1). In Institute of Chartered Accountants Vs. Shaunak H. Satya reported in A.I.R. 2011 S.C.3336. Supreme Court explained:
Among the ten categories of information which are exempted from disclosure under section 8 of the RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption that is the exemption subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest." (Para 19)
12. Thus the Act strictly laid down that unless larger public interest is involved an exempted information with reference only to 8(1) (d),(e) and (j) cannot be given. With regard to other exemptions in Section 8 (1) (a), (b), (c), (f), (g), (h) and (i) there is no such public interest based exception. There CPIO has to give reasons and establish how the claimed exemption will apply. Appellant has to explain the public interest part, if the CPIO uses the veto under 8(1) (d), (e) and (j).
13. The Commission agrees that seeking video recording of execution of Afzal and name of the officer who fixed the date of execution are hit by 8(1)(g) and even if petitioner tried to prove 'public interest' in this, it cannot be given as per the RTI Act. But neither PIO nor the Appellate Authority considered giving reasons. If either PIO or AA used this Section 8(1)(g) to refuse to give information such as 'name of the authority who had fixed the execution date of Afzal", it would have been very appropriate. Such information will not serve any public 7 interest, instead it will facilitate a life threat to the officer, for which the law does not want it to be disclosed.
Decision:
14. The Commission observed that denying copy of death warrant, copy of communication sent to the family of Afzal Guru about execution is devoid of reason and thus arbitrary and unreasonable. Section 7(8)(i) of RTI Act specifically requires the PIO to communicate to the person making the request 'the reasons for such rejection'.
15. Point wise analysis:
a. Under point 3, the Commission finds no reason to deny the certified copy of death warrant of Afzal. The Commission cannot agree with the general defence of 'threat to the nation' without any justification and need to be provided.
b. Regarding point 7 wherein the appellant sought video recording of execution of Afzal Guru, the PIO could not answer whether they generally record the executions and recorded that of Afzal Guru. However the PIO expressed apprehension that disclosure of such video would cause law and order problem. The Commission agrees with that reasoning and directs the Public Authority to inform appellant whether video recording of Afzal Guru was done and whether it was included in jail manual as an accepted practice. The PIO need not provide the certified CD of such video recording, even if it was recorded, as that would serve no public interest, instead, could cause unnecessary tensions. Appellant could not establish any public interest in this demand. RTI Act does not intend to answer the curiosity or general interest of public.
c. Regarding point 8, correspondence with family of Afzal Guru on communicating the date of execution, Commission thinks that some information could be given while some cannot be. 8 d. Regarding point 10, the PIO is right in apprehending that revelation of name or designation of officer who fixed date of execution, will endanger his life. e. Regarding point 11, there is nothing problematic in sharing the rules and regulations of Jail about execution.
16. After hearing the submissions from both the parties, the Commission directs the Public Authority to a. provide certified copy of death warrant for the execution of Afzal Guru, b. provide communication sent to family members of Afzal about the date of execution with date and dispatch number.
c. Reexamine with due application of mind what information could be given after separating it from what could not be given regarding point 8, and if it is difficult to separate or block certain names and sentences of the correspondence, they may choose to narrate the process of fixation of date for execution and time provided for the communication about the same, as the appellant raised an issue of sufficient time being given for family members about execution.
d. provide relevant extract of rules and regulation through which the execution is generally carried in Tihar Jail and e. not to disclose the name or designation of authority who has fixed the date of execution of Afzal Guru and f. not to give the video recording of execution, but inform whether it was recorded. Thus the Commission partly admits the appeal with the direction that the information shall be given to the appellant as directed above within ten days. 9
17. The appeal is disposed of.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Deputy Registrar Address of the parties:
1. The CPIO under RTI, Government of NCT of Delhi Director General of Prisons, Prisons HQ Tihar, Janakpuri New Delhi
2. Shri Paras Nath Singh H.No.S/13 Banna Devi GT Road, Aligarh U.P. 202001 10