Disclosure under RTI of file notings regarding sanction of prosecution upheld by High Court. Exclusion clause must be construed keeping in view their object
ABCAUS Case Law Citation:
ABCAUS 2456 (2018) 08 HC
The instant petition was filed by the Government of India under Article 226 and 227 of the Constitution of India impugning the orders passed by the Central Information Commission (CIC) allowing the appeals preferred by the respondent under Section 19(3) of the Right to Information Act, 2005 (RTI Act).
The CIC in the impugned orders had rejected the Public Information Officer‘s (PIO‘s) contention that the disclosure of the file notings pertaining to sanction of prosecution of the respondent would impede the process of investigation and, therefore, the information as sought was exempt from disclosure under the RTI Act. Accordingly, the CIC had directed the concerned PIO to provide the information as sought by the respondent.
The petitioner had assailed the impugned orders, essentially, on the ground that the information sought was exempted from disclosure in terms of Section 8(1)(h) of the RTI Act. It was further contended that the documents sought included information received from Central Bureau of Investigation (CBI), which is a third party and is also excluded from the purview of the RTI Act in terms of Section 24(1) of the RTI Act.
The respondent was working as a Chief Postmaster General and was caught and arrested by the CBI while allegedly accepting bribe. Consequentlyhe was placed under deemed suspension from his post. Thereafter, on the basis of CBI report, the Central Vigilance Commission (CVC) approved sanction for prosecution as well as Regular Departmental Action (RDA) for major penalty against the respondent. Consequently, sanction of prosecution under Section 19 of the Prevention of Corruption Act, 1988 was issued and RDA was also commenced against the respondent. A chargesheet was issued and an Inquiry Authority was appointed for the said purpose.
On rejection of his request for the information sought, the respondent preferred appeal before the CIC under Section 19(3) of the RTI Act. The CIC allowed the appeal and directed the concerned PIO to provide the copies of file noting/correspondence relating to the sanction of prosecution of the respondent.
On the question whether the information, as sought for by the respondent, is excluded from the purview of the RTI Act by virtue of Section 24(1) of the RTI Act, the Hon’ble High Court observed that from the reply of CPIO, it was apparent that the CPIO had not denied the information sought for by the respondent on the ground that it was excluded under Section 24(1) of the Act; it was denied as, according to the CPIO, such disclosure was exempt from disclosure under Section 8(1)(h) of the RTI Act. Concededly, this was also not the stand of the public authority in question before the CIC. Thus, the said contention was a mere afterthought now being raised in these proceedings.
The Hon’ble High Court observed that in order to claim exclusion under Section 24(1) of the RTI Act, the public authority must establish that the information sought for by the information seeker had been provided by an organization listed in the Second Schedule to the RTI Act. There is no indication that the notings relating to sanction of prosecution – which is sought to be denied to the respondent was information that was received from an organization listed in the Second Schedule of the RTI Act. That absence of the public authority expressly affirming so, the question of claiming exclusion from the RTI Act would not arise. Even if it was assumed that certain information, which has been denied to the respondent, was received from the CBI, the question of withholding the same would not arise if such information related to human rights violation or corruption.
The Hon’ble High Court further observed that in the instant case, prima facie, the information as sought for by the respondent was related to an allegation of corruption. Such information had been carved out from the exclusion under Section 24(1) of the Act and, therefore, would squarely fall within the cover of the RTI Act. Since, the factual foundation for claiming exclusion under Section 24 (1) of the RTI Act was not laid by the public authority or the CPIO before the CIC, it would not be apposite to permit the petitioner to raise this issue in these proceedings.
With respect to the question whether the denial of information sought was justified in terms of Section 8 (1) (h) of the RTI Act the Hon’ble High Court observed that a plain reading of the provision indicates that in order to deny information under Clause (h) of Section 8 (1) of the RTI Act, it must be established that the information sought is one which would impede the process of investigation or apprehension or prosecution of the offenders. In the present case, a charge sheet had already been filed and, therefore, the investigation stage was over. Thus, in order for the petitioner to claim exemption from disclosure under Clause (h) of Section 8(1)(h) of the RTI Act, it would be essential for the petitioner to indicate as to how such information would impede the investigation or apprehension or prosecution of the offender.
The Hon’ble High Court observed that the petitioner had not indicated any possible reason or ground to establish that the disclosure of information as sought by the petitioner would impede prosecution of the offender. The Court pointed out that denial of any information available with a public authority, which could assist an alleged offender from establishing his innocence or for pursuing his defence may, in fact, impede the course of justice. After the investigations are complete, the information as sought by the respondent can be denied under Section 8(1)(h) of the RTI Act only if the public authority apprehends that such disclosure would interfere with the course of prosecution or in apprehending the offenders. It will not be open for the public authority to deny information on the ground that such information may assist the offender in pursuing his defence (and therefore impede his prosecution). This is clearly not the import of Section 8(1)(h) of the RTI Act.
The Hon’ble High Court observed that it is also necessary to bear in mind that the RTI Act is a statutory expression of one of the facets of Article 19(1)(a) of the Constitution of India and any exclusionary clause under the RTI Act must be construed keeping in view the object for providing such exclusion. By virtue of Article 19 (2) of the Constitution of India, reasonable restrictions in exercise of rights under Article 19(1)(a) of the Constitution of India are sustainable if they are in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The exclusion under Section 8(1)(h) of the RTI Act – information which would impede process of investigation or apprehension or prosecution of the offenders – has to be read in conjunction with Article 19(2) of the Constitution of India. Such denial must be reasonable and in the interest of public order.
The Hon’ble High Court opined that Section 11 of the RTI Act was inapplicable in the present case, as the information sought does not relate to any third party but to the departments/organisations of the State and the respondent. Further, the procedure as referred to in Section 11 of the RTI Act does not entail forwarding the RTI application under Section 6 of the RTI Act as done by the Petitioner.
The Hon’ble High Court dismissed the petition with liberty to the respondent to file a complaint under Section 20 of the RTI Act for non receipt of information despite CIC order in this regard.
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