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CBI again tries to get exemption from RTI Act

Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?  

46 members have voted

  1. 1. Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?



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ambrish.p

As reported in Dainik Jagran on 10/09/2011

 

सीबीआइ को आरटीआइ एक्ट से छूट संबंधी फैसला सही

 

चेन्नई, प्रेट्र : मद्रास हाई कोर्ट ने सीबीआइ को सूचना अधिकार (आरटीआइ) अधिनियम के दायरे से बाहर करने के सरकार के हालिया फैसले को चुनौती देने वाली याचिका खारिज कर दी है। हाई कोर्ट के मुख्य न्यायाधीश एमवाई इकबाल और जस्टिस टीएस शिवगणन की पीठ ने शुक्रवार को अपने फैसले में कहा, राष्ट्रीय सुरक्षा और खुफिया सेवाओं के आधार पर सीबीआइ को आरटीआइ एक्ट के दूसरे अनुच्छेद के तहत सूचना देने से छूट संबंधी केंद्र सरकार की अधिसूचना वैध है। अदालत इस मामले में हस्तक्षेप का कोई कारण नहीं देखती। पीठ ने इसके साथ ही आरटीआइ कार्यकर्ता और वकील एस विजयलक्ष्मी की याचिका खारिज कर दी। केंद्र सरकार ने 9 जून को एक अधिसूचना जारी कर सीबीआइ और राष्ट्रीय जांच एजेंसी को आरटीआइ एक्ट के दूसरे अनुच्छेद में रख दिया था। इसमें सुरक्षा और खुफिया एजेंसियों को मानवाधिकार उल्लंघन और यौन उत्पीड़न के मामलों को छोड़कर कोई भी सूचना देने से छूट मिली हुई है। सरकार ने यह अधिसूचना मुख्य सचिव की अध्यक्षता वाली सचिवों की समिति की सिफारिश के आधार पर जारी की थी।समिति ने गत 14 मई को आरटीआइ एक्ट के तहत सूचना देने से छूट संबंधी सीबीआइ के आग्रह को मंजूरी दे दी थी।

Source: http://in.jagran.yahoo.com/epaper/article/index.php?choice=show_article&location=36&Ep_relation=15&Ep_edition=2011-09-10&articleid=111720728771108464

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drprasan

One News Report reads

"If an RTI applicant came up with a query alleging corruption in any of the agencies or organisations listed in the Second Schedule to the RTI Act, such information sought for was bound to be provided."

 

RTI Act 2005 reads

Section 24 (sub sections 1 and 2) states that for ‘the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government’ and ‘Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section’. Hence, the exemption granted to CBI under section 24 is not a blanket exemption in as much as the exemption is subject to the provisos of section 24 of the RTI Act.

 

There is an important doubt here.

 

Does this exemption of corruption cases related to any Corruption case in India or does it relate to Corruption in the listed organisations of the schedule? There is a marked difference in the two.

 

Can someone clarify this??

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karira

 

There is an important doubt here.

 

Does this exemption of corruption cases related to any Corruption case in India or does it relate to Corruption in the listed organisations of the schedule? There is a marked difference in the two.

 

Can someone clarify this??

 

The proviso states:

 

Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:

 

A simple reading and interpretation means that any information related to "allegations of corruption" - both within the organisation and also held by the organisation.

 

When in any doubt about any section/part of the RTI Act, please refer to the preamble of the Act. The preamble clearly states that one of the objectives of the RTI Act is to contain corruption:

 

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;

 

It will be a total traversity of the Act if information related to corruption in other organisations, but held by the CBI, is not disclosed under this proviso.

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karira

After continuous follow up with DoPT and also a favourable order of the FAA, the CPIO chose to ignore the order of the FAA.

 

I have now filed a Second Appeal cum Complaint to the CIC.

 

The detailed document is available here: http://www.rtiindia.org/directory/uploads-2/second-appeal-to-dopt-for-information-on-cbi-exemption-293/

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drprasan

Thanks Mr Kakira for the clarification. Wondered if the wrong view was projected by CBI in their Argument in High Court Chennai.

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karira

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: .09.2011

CORAM:

The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE

and

The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM

 

W.P.No.14788 of 2011 &

M.P.No.1 of 2011

 

S.Vijayalakshmi ... Petitioner

Vs.

 

1.Union of India,

Rep. by its Secretary to Government,

Ministry of Personnel, PG & Pensions,

North Block, New Delhi.

 

2.Director, Central Bureau of Investigation

Lodhi Road, CGO Complex, New Delhi. ... Respondents

 

 

 

Prayer :- Writ Petitions filed under Article 226 of the Constitution

of India praying for the issuance of a Writ of Certiorari to call for

the records and quash the 1st respondent's impugned notification

No.GSR 442(E), dated 09.06.2011, cuccooning the second respondent from

the purview of the RTI Act, as being ultra vires section 24 of the RTI

Act, and violative of Article 14 of the Constitution.

 

 

For Petitioner :Mr.Manikandan Vathan Chettiar

 

For Respondents :Mr.Gouravah Banerji

Additional Solicitor General of India assisted by

Mr.P.Chandrasekaran SCGSC for R1

Mr.M.Ravindran

Additional Solicitor General of India assisted by

Mr.N.Chandrasekaran Spl. P.P. for R2

 

O R D E R

 

 

THE HON'BLE CHIEF JUSTICE &

T.S.SIVAGNANAM, J.

 

By way of this Public Interest Litigation, the notification issued by

the Government of India in G.S.R.No. 442E, dated 09.06.2011, including

the Central Bureau of Investigation (CBI) within the ambit of the

second schedule to the Right to Information Act, 2000 (RTI Act) has

been questioned as being ultra vires Section 24 of the RTI Act and

Article 14 of the Constitution of India.

 

2. According to the petitioner, in the light of the various scams, the

country has become rudderless in the war on corruption and at this

juncture, the Government instead of becoming more transparent has

become reactionary by resorting to Section 24 of the RTI Act by

granting blanket exemption to the CBI. It is further contended that

the respondents over looked the first proviso to Section 24(1) of the

Act excluding information pertaining to allegations of corruption and

human rights violation from being exempted under Section 24 of the

Act. Further, Section 24 exempts only intelligence and security

agencies and CBI is an investigating agency cannot be granted a

blanket exemption. Further, it is contended that the plea that

investigative data require confidentiality has been adequately taken

care in Section 8(1)(g) and (h) of the RTI Act. It is further

contended that Section 24(3) of the Act mandates that every

notification issued under Section 24(2) shall be laid before each

house of Parliament, which failure renders the exemption null and

void. It is the further case of the petitioner that the exemption is

bound to create a chaos as several writ petitions will be filed

challenging the orders passed by the Central Information Commission in

their decisions against the CBI, since the CIC has no power to set

aside the notification.

 

3.The first respondent has filed the counter affidavit inter alia

contending that the exemption granted to CBI under Section 24 is not a

blanket exemption inasmuch as it is subject to the provisos to Section

24 of the Act. The exemption was granted after the Government received

the representation from CBI stating that difficulty were being faced

by them in their working due to the queries raised under the RTI Act

and such exemption was granted on the basis of the legal opinion

received that CBI qualifies as a security and intelligence

organisation under Section 24 of the Act. In the representation made

by CBI, it was stated that cases handled by them are very sensitive in

nature where inputs are based on intelligence collected which may

relate to the security of the State. It is further stated that

collection of intelligence leads to registration of cases and then

trial. In many sensitive cases the collection of intelligence and the

process of investigation and trial are intertwined and cannot be

separated. The list of important cases pertaining to National security

dealt by CBI has been furnished. It was further submitted that

intelligence plays a vital role in every aspect of the functioning of

CBI. Many of the important and sensitive cases are registered on the

basis of intelligence inputs, information with regard to modus

operandi and sources, which are an essential part of investigation by

CBI, are very important and any disclosure of such information may not

only jeopardize the functioning of CBI in future investigations but

also public safety and national security. It is further submitted that

CBI represented it has developed its unique processes for functioning

where each officer is given full freedom to express his/her views

independently, this helps in bringing to the fore every facet of the

issue under consideration, which helps in taking a balanced final

decision in the matter. It was felt that disclosures under RTI may

lead to targeting of officers which may ultimately affect the

credibility of CBI which would not be in national interest. That CBI

brought to the notice of the Government that entire investigation and

trial of CBI cases is under close scrutiny of the courts and all

relied upon documents are always made available to the accused. The

CBI's proposal for exemption further merited acceptance because

various other security agencies and police departments had been

included in the Second Schedule to the RTI Act. It is further stated

that the exemption has been granted bearing in mind the interest of

the security of the State, which cannot be overlooked while protecting

the right of the citizens to seek information. That the Right to

Information is not an absolute right and there is a need to balance

the right of the citizen against the need to ensure security of the

Nation, which should not be jeopardised due to disclosure of

information which has security implications. That section 24 of the

RTI Act represents this balance, and the legislature has left the

discretion with the Executive to assess which organisation possesses

information, the disclosure of which may cause threat to the security

of the State. It is further stated that the Court in exercise of its

power of judicial review may examine whether the discretion has been

exercised based on some material, but not the adequacy of the material

which forms the basic of the decision. The first respondent has

further stated that the matter regarding inclusion of Central Public

Authorities in the Second Schedule to the Act is exercised by the

Central Government based on the recommendation of the Committee of a

Secretary headed by the Cabinet Secretary and the matter was

considered at length by the Government and it was felt that there was

substance in the representation of CBI by virtue of the cases handled

by them and the nature of its functioning and then a decision was

taken to include CBI in the Second Schedule to the Act. That legal

opinion was sought for and it was opined that CBI may be classified as

Security and Intelligence Organisations for the purpose of section 24

of the RTI Act.

 

4.The various allegations made in the affidavit filed in support of

the writ petitions were denied in the counter affidavit. It is

further stated that earlier during 2007, the request of CBI for

inclusion in the Second Schedule was considered by the Government and

when the matter was placed before the Committee of Secretaries, they

expressed a view that CBI could resort to exemption under section 8 of

the RTI Act to deny disclosure of sensitive information. This view

was accepted by the Government and it was not included in the Second

Schedule. Subsequently, CBI again represented to the Government that

in its experience since 2007, it had been found that the functioning

of CBI was being affected due to various difficulties, due to exposure

to queries under the RTI Act; that due to the RTI Act, queries being

posed on the officers of CBI were deterred from recording their views

in the files fearlessly and independently and therefore legal opinion

was obtained as to whether CBI was a Security and Intelligence

Organisation. The legal opinion confirmed that in view of the nature

and functions of CBI it could be included in the Second Schedule as a

Intelligence and Security Organisation.

5.It is further stated that if a person wishes to make a

complaint, the Office address and contact details of the Offices of

CBI in each State are easily accessible on the website of CBI and the

allegations made by the petitioner are purely speculative. It is

further stated that the Act does not provide that the impugned

Notification would become operative only after it is laid before the

Parliament, however, the Government would lay the Notification before

both Houses of Parliament.

6.The CBI have filed a separate counter affidavit reiterating

that the Right to Information as it is, with respect to other

fundamental right recognized under Article 19(1) of the Constitution

is not an unfettered right and subject to reasonable restrictions, on

the ground of security of the State and Public Order etc. Ensuring

the security of the State and Public Order are essential for the

protection of democratical ideal of the country. The ever increasing

degree of corruption in public life is a direct threat to maintenance

of security of the State, Public Order and to the democratic State

itself.

7.After setting out as to how the CBI was established, it is submitted

that CBI has evolved as premier Investigating Agency of Government of

India, which also investigates cases referred to by the State

Governments, Constitutional Courts and cases reported from Union

Territories and that the cases investigated/handled by CBI are of

sensitive nature not only in terms of magnitude of corruption and

economic crimes, but also in terms of polity as whole and also at

times having bearing on security of the country. The CBI

investigates offences covering vide spectrum including complex

terrorists claims and big financial frauds involving functions

relating to intelligence collection and security of the country. It

is further stated that CBI has investigated and is investigating

extremely sensitive cases having Inter-State and Inter National

ramifications which have a direct bearing on the National/Internal

Security. That apart, CBI has been entrusted with the task of

investigating cases which threaten the financial security of the

Country.

8.After setting out in paragraph 9 of the counter affidavit the

important and sensitive cases handled by CBI, it is submitted that

intelligence plays a very vital role at every stage of investigation

by the CBI and some of the leads provide information about conspiracy,

modus operandi, motive etc. and those inputs obtained during

information are further corroborated by collecting specific

intelligence on the finding of the investigation leading to deduction

of crime and identification and tracing of accused persons.

Therefore, it is stated investigation and intelligence collections are

inter twined activities. It is further stated that CBI has a inbuilt

mechanism of transparency and accountability and documents which are

relied on by the Agency in a case of prosecution, are given to the

accused free of cost and there are several provisions in the Criminal

Procedure Code and the accused can summon any document/record etc.

under section 91 Cr.P.C. to defend himself. Further it is stated that

CBI maintains and regularly updates its websites which contains

information in public domain as envisaged under section 4 of the RTI

Act. It is further stated that the subject matters of most of the RTI

applications dealt by CBI relate to ongoing investigation or under

trial cases or discreet verifications/enquiries, the disclosure

whereof under the RTI Act would be prejudicial to the investigation

itself. Though, exemptions have been provided under section 8 of RTI

Act against disclosure of information relating to under investigation

and under trial cases, which would impede the process of

investigations or apprehensions or prosecution of offenders, these

provisions are not adequate to provide protection from disclosure of

information having bearing on national security. It is further stated

that the information pertaining to activities prior to registration of

case and also post conclusion of investigation/trial is not protected

under RTI Act and that most of such information has a direct bearing

on security of the country and thus needs to be kept confidential.

Further, it is contended that many a time, innocuous/unobjectionable

pieces of information might seem harmless but when they are placed in

conjunction with each other and some times with seemingly unconnected

information the mosaic of a dangerous picture affecting the security

of the nation can emerge.

9.The second respondent further contend that the impugned

notification was issued after appreciating and considering the

proposals of CBI and after obtaining the opinion of the Attorney

General of India and the Solicitor General of India and the

Notification is not issued as reaction to any exposure, but, it is a

well considered and reasoned decision after due consultation bearing

in mind the interest of the security of the nation. It is further

submitted that proviso to section 24 (1) of the RTI Act clearly

mentions that the information pertaining to the allegations of

corruption and human rights violations shall not be excluded under the

section. Therefore, the apprehension of the petitioner that blanket

exemption has been granted to CBI is not correct. In the counter

affidavit the second respondent has denied the various allegations

made in the affidavit filed in the writ petition including the

contentions raised in the grounds. With the above facts, the second

respondent prayed for dismissal of the writ petition.

10.We have heard Mr.Manikandan Vadhan Cherttiar, learned

counsel for the petitioner, Mr.Gaurav Banerji and Mr.M.Raveendran,

learned Additional Solicitors General of India for the respondents and

perused the materials on record.

11.The issue which falls for consideration is as to whether

the Government of India were justified in including CBI in the second

schedule to the RTI Act thereby exempting CBI from the provisions of

the RTI Act subject to the provisos contained in section 24(1) of the

RTI Act. Before we examine the provisions of the RTI Act, it would be

useful to look into the enactment which occupied field prior to coming

into force of the RTI Act.

12.Freedom of Information Act 2002, was enacted by the Parliament as

an Act to provide for freedom to every citizen to secure access to

information under the control of the Public Authorities, consistence

with public interest, in order to promote openness, transparency and

accountability in administration and in relation to matters connected

therewith or incidental thereto. This Act received the assent of the

President on 6.1.2003. Section 2(d) of the Act defined information

to mean any material in any form relating to the administration,

operations or decisions of a public authority. Section 2(f) defined

Public Authority to mean any authority or body established or

constituted by or under the Constitution and by any law made by the

appropriate Government and included any other body owned, controlled

or substantially financed by funds provided directly or indirectly by

the appropriate Government. Section 3 of the Act stated that subject

to the provisions of the Act, all citizens shall have freedom of

information. Section 4 dealt with obligation of public authorities,

section 8 regarding exemption from disclosure of information, section

16 dealt with the organisations to which the Act shall not apply.

Section 16(1) states, nothing contained in the said Act shall apply to

the Intelligence and Security Organisations specified in the schedule

being organisations established by the Central Government or any

information furnished by such organisation to that Government.

13.After a period of about two years, when the Freedom of

Information of Act, 2002, was in force, the National Advisory Council

deliberated on the issue to ensure greater and more effective access

to information and that the 2002 Act, needs to be made more

progressive, participatory and meaningful and the Council suggested

certain important changes to be incorporated in the 2002 Act to ensure

smoother and greater access to information. The Government examined

the suggestions made by the National Advisory Council and others and

decided to make a number of changes in the law and decided to repeal

the Freedom of Information Act 2002, and brought the Bill on the Right

to Information Act, with the object that the proposed legislation will

provide an effective frame work for effectuating the right of

information recognised under Article 19 of the Constitution of India.

The Bill contained 31 clauses of which clause 24 dealt with exempting

certain Intelligence and Security Organisations from the purview of

the legislation, but information pertaining to allegation of

corruption, shall, without prejudice to the exemption, be provided.

This Bill after much deliberation was enacted as the Right to

Information Act, 2005, (RTI Act) and received the assent of the

President on 15.6.2005 and published in the Gazette of the India on

21.6.2005. The RTI Act was 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 Commission and for matters connected therewith or

incidental thereto. It further states that revelation of information

in actual practice is likely to conflict with other public interest

including efficient operation of the Governments, optimum use of

limited physical resources and the preservation of confidentiality and

sensitive information and it is necessary to harmonize these

conflicting interest while preserving the paramoutcy of the democratic

ideal. The RTI Act, is a concise enactment of 31 sections contained

in 6 chapters. The First schedule deals with the form of oath or

affirmation to be made by the Chief Information Commissioners and

others and the Second Schedule lists out the Intelligence and Security

Organisations established by the Central Government.

14.Some of the relevant sections of RTI Act which we shall be dealing

with in this order are re-produced hereunder for easy reference:

2. Definitions.—In this Act, unless the context otherwise requires,—

 

(f) “information” means any material in any form, including records,

documents, memos, e-mails, opinions, advices, press releases,

circulars, orders, logbooks, contracts, reports, papers, samples,

models, data material held in any electronic form and information

relating to any private body which can be accessed by a public

authority under any other law for the time being in force;

 

(h) “public authority” means any authority or body or institution of

self-government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

© by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;

(i) “record” includes—

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a document;

© any reproduction of image or images embodied in such microfilm

(whether enlarged or not); and

(d) any other material produced by a computer or any other device;

(j) “right to information” means the right to information accessible

under this Act which is held by or under the control of any public

authority and includes the right to—

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes,

video cassettes or in any other electronic mode or through printouts

where such information is stored in a computer or in any other device;

 

 

3. Right to information.—Subject to the provisions of this Act, all

citizens shall have the right to information.

 

 

4. Obligations of public authorities.—(1) Every public authority shall—

(a) maintain all its records duly catalogued and indexed in a manner

and the form which facilitates the right to information under this Act

and ensure that all records that are appropriate to be computerised

are, within a reasonable time and subject to availability of

resources, computerised and connected through a network all over the

country on different systems so that access to such records is

facilitated;

(b) publish within one hundred and twenty days from the enactment of this Act—

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(ii) the procedure followed in the decision-making process, including

channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations instructions, manuals and records, held by

it or under its control or used by its employees for discharging its

functions;

(vi) a statement of the categories of documents that are held by it or

under its control;

(vii) the particulars of any arrangement that exists for consultation

with, or representation by, the members of the public in relation to

the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other

bodies consisting of two or more persons constituted as its part or

for the purpose of its advice, and as to whether meetings of those

boards, councils, committees and other bodies are open to the public,

or the minutes of such meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and

employees, including the system of compensation as provided in its

regulations;

(xi) the budget allocated to each of its agency, indicating the

particulars of all plans, proposed expenditures and reports on

disbursements made;

(xii) the manner of execution of subsidy programmes, including the

amounts allocated and the details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or

authorisations granted by it;

(xiv) details in respect of the information, available to or held by

it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining

information, including the working hours of a library or reading room,

if maintained for public use;

(xvi) the names, designations and other particulars of the Public

Information Officers;

(xvii) such other information as may be prescribed;

8. Exemption from disclosure of information.—(1) 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;

© 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;

(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.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of

1923) nor any of the exemptions permissible in accordance with

sub-section (1), a public authority may allow access to information,

if public interest in disclosure outweighs the harm to the protected

interests.

(3) Subject to the provisions of clauses (a), © and (i) of

sub-section (1), any information relating to any occurrence, event or

matter which has taken place, occurred or happened twenty years before

the date on which any request is made under Section 6 shall be

provided to any person making a request under that section:

Provided that where any question arises as to the date from which the

said period of twenty years has to be computed, the decision of the

Central Government shall be final, subject to the usual appeals

 

 

9. Grounds for rejection to access in certain cases.—Without prejudice

to the provisions of Section 8, a Central Public Information Officer

or a State Public Information Officer, as the case may be, may reject

a request for information where such a request for providing access

would involve an infringement of copyright subsisting in a person

other than the State.

 

 

24. Act not to apply to certain organisations.—(1) Nothing contained

in this Act shall apply to the intelligence and security organisations

specified in the Second Schedule, being organisations established by

the Central Government or any information furnished by such

organisations to that Government:

Provided that the information pertaining to the allegations of

corruption and human rights violations shall not be excluded under

this sub-section:

Provided further that in the case of (sic if) information sought for

is in respect of allegations of violation of human rights, the

information shall only be provided after the approval of the Central

Information Commission, and notwithstanding anything contained in

Section 7, such information shall be provided within forty-five days

from the date of the receipt of request.

(2) The Central Government may, by notification in the Official

Gazette, amend the Schedule by including therein any other

intelligence or security organisation established by that Government

or omitting therefrom any organisation already specified therein and

on the publication of such notification, such organisation shall be

deemed to be included in or, as the case may be, omitted from the

Schedule.

(3) Every notification issued under sub-section (2) shall be laid

before each House of Parliament.

(4) Nothing contained in this Act shall apply to such intelligence and

security organisation being organisations established by the State

Government, as that Government may, from time to time, by notification

in the Official Gazette, specify:

Provided that the information pertaining to the allegations of

corruption and human rights violations shall not be excluded under

this sub-section:

Provided further that in the case of information sought for is in

respect of allegations of violation of human rights, the information

shall only be provided after the approval of the State Information

Commission and, notwithstanding anything contained in Section 7, such

information shall be provided within forty-five days from the date of

the receipt of request.

(5) Every notification issued under sub-section (4) shall be laid

before the State Legislature.

 

15.The learned counsel appearing for the petitioner submitted that

intelligence aspect and investigations were covered under section 8 of

the Act and therefore, it is unnecessary for the Government to notify

CBI, in the Second schedule to the Act thereby granting blanket

exemption. It was further contended that if a citizen lodges a

complaint and if he does not know the fate of his complaint, he could

apply under the RTI Act and seek for information which right has now

been denied to the citizen by virtue of the impugned Notification.

Further it is contended that CBI is not an Intelligence Organisation

and therefore there is absolutely no justification for blanket

exemption under section 24 of the Act. From 2005, when the RTI Act

came into force, the CBI have been enjoying the exemptions, under

section 8 of the Act as well as section 10 of the Act and there is no

justifiable reason to include CBI in the Second Schedule after a

period of more than five years after the Act came into force.

16.Per contra the learned Additional Solicitors General would

contend that the phrase Security and Intelligence Agency must be

understood in the light of what is meant by the ‘Security’ in this

context and Security refers to the Security of the State. It is

further contended that this does not mean merely the Security of the

entire country or the whole State and it is also not restricted to

Armed Rebellion or Revolt.

17.Further from the information furnished it is seen that during 1941,

the Government of India established an organisation known as the

Special Police Establishment (SPE), which organisation was to

investigate cases of bribery and corruption in transactions with the

War and Supply Department of Government of India. During 1942, the

activities of SPE were extended to investigate cases of corruption in

Railways, as Railways were involved with movement and supply of War

material. On 19.11.1946, the Delhi Special Police Establishment Act,

Act 25 of 1946, came into force, which enabled the SPE to function in

the provinces with the concurrence of the provisional Government for

the purpose of investigating certain specific offences in which

Central Government Employees were involved or Departments of the

Government of India were concerned. The Ministry of Home affairs,

Government of India, by Resolution dated 1.3.1963 established the CBI

which is the successor organisation to the Delhi Special Police

Establishment with an enlarged charter of functions.

18.In the counter affidavit filed by the respondents, the sensitive

cases handed by CBI have been set out and it would be useful to refer

to the list of cases handled by CBI which are stated to have a bearing

on the National /internal security and on the financial and national

security of the country viz. (i) Naval War Room Leak case (ii) Barak

Anti Missile Defence System case (iii) Denel Anti Material Rifle case

(iv) Fake Passport cases (vii) Assam Serial Bomb Blast cases (viii)

Andaman Arms Haul case (ix) IC-814 Hijacking case (x) Rajiv Gandhi

Assassanition case (xi) Babri Masjid Demolition case, (xii) Fake

Stamps/Stamp Paper Cases, (xii) Fake Indian Currency Notes (FICNs)

Cases, (xiii) Securities Scams (Harshad Mehta & Dalal Groups), (xiv)

Madhavpura Mercantile Co-operative Bank and erstwhile Globall Bank

Scams, (xv) Satyam Corporate Fraud, (xvi) Illegal Mining Cases, (xvii)

2G Spectrum cases, etc.

19.From the list of cases, referred above, it cannot be denied that

these cases are of very sensitive nature and may have a direct bearing

on the national/ internal security apart from having direct bearing on

the financial security of the country. The challenge to the impugned

notification is primarily by contending that the Government was not

justified in granting a blanket exemption to CBI under section 24 of

the RTI Act when for the past over five years, the CBI enjoyed the

exemptions provided for under section 8 of the Act.

20.As noticed above section 8 deals with exemptions from disclosure of

information and section 8(1) enumerate the categories which are

exempted from disclosure under the provisions of the RTI Act. The

petitioner relies on section 8(1)(g) which states that information,

the disclosure of which would endanger the life or physical safety of

any person or identified the source of information or assistance given

in confidence for law enforcement or security purposes and section

8(1)(h) which states that information which would impede the process

of investigation or apprehension or prosecution of offenders need not

be disclosed.

21.Before we proceed further, it has to be borne in mind that the

Second Schedule enumerated Intelligence and Security Organisations

being Organisations established by the Central Government. The

exemption under section 24(1) was with regard to the organisations

themselves and also with regard to any information furnished by such

organisations to the Government. Therefore, there is a vital

distinction between the exemption from disclosure of information

contemplated under section 8(1) of the Act to that of the exemption of

the organisation themselves and the information furnished by them to

the Government under section 24(1) of the Act. Therefore, these two

provisions are exclusive of each other and one cannot substitute for

the other. Therefore, we are not persuaded to accept the submission

of the learned counsel for the petitioner that in view of the

exemptions contemplated under section 8(1) of the RTI Act there would

be no necessity for a blanket exemption under section 24(1) of the

Act. This contention, in our view, is wholly misconceived.

22.Repeated reference has been made by stating that the exemption

under section 24(1) is a blanket exemption or in other words a whole

sale exemption. In the preceding paragraphs we have reproduced

section 24 of the Act. In terms of subsection (1) of section 24,

nothing contained in the RTI Act shall apply to the Intelligence and

Security organisation specified in the second schedule being

organisations established by the Central Government or any information

furnished by such organisations to that Government. As noticed above,

first proviso to section 24(1) of the Act states that information

pertaining to the allegations of corruption and human right violation

shall not be excluded under section 24 (1) of the Act. In terms of

the second proviso, to sub section (1) of section 24, that in case of

information sought for is in respect of allegations of violation of

human right, the information shall only be provided after the approval

of the Central Information Commission and notwithstanding anything

contained in section 7 (which deals with the disposal of requests),

and such information shall be provided within 45 days from the date of

receipt of request. Therefore, it can hardly be stated to be case of

a whole sale exemption or a blanket exemption. If an RTI applicant

comes with a query alleging corruption in any of the Agencies or

Organisations, listed out in the Second Schedule to the RTI Act, such

information sought for is bound to be provided and the protection

under section 24(1) cannot be availed of. Similar is the case

relating to violation of human rights. Therefore, the safeguard is

inbuilt in the Statute so as to ensure that even in respect of the

Agencies or Organisations listed out in the Second Schedule are not

totally excluded from the purview of the RTI Act.

23.Having held so, we come to the next question as to whether CBI

qualifies for such exemption and as to whether they are an

Intelligence and Security Organisation or one of them.

24.The learned Additional Solicitor General circulated to us the

opinion offered by the learned Attorney General of India with

reference to examination of the issue of inclusion of CBI and two

other organisations, in the Second Schedule of the RTI Act. One of

the queries raised is that “Would it be legally feasible to include

the CBI in the Second Schedule of the RTI Act under the provisions of

section 24 of the Act ?”

25.The learned Attorney General after referring to the decisions of

the Hon’ble Supreme Court opined as follows:

“Applying the tests mentioned above, at this stage one may see the

latest note received from the CBI setting out the grounds justifying

the inclusion of the CBI in the Second Schedule. In that note, it is

stated that the CBI is the premier agency of the Central Government

for prevention and investigation of offences covering a wide spectrum

of offences. The CBI has now become involved in a wide range of

cases, including cases referred at the instance of courts. These

include cases where the economic security of the nation is at risk. A

bench of 9 Judges, in Attorney General for India v. Amratal

Prajivandas, (1994) 5 SCC 54, elucidated on the distinction between

security of State, security of India, and economic security. Justice

Jeevan Reddy, speaking for the Court, observed,

“23….. In the modern world, the security of a State is ensured not so

much by physical might but by economic strength—at any rate, by

economic strength as much as by armed might.”

© Having regard to the aforesaid and the vast number of cases that

the CBI is presently involved with, it cannot be disputed that the CBI

does intelligence work which is directly related to the security

agencies. One need not emphasize any particular case, but the Mecca

Masjid Blast case, the Bombay Blast cases of 1993, the Assam Serial

Blast Cases, the Andaman Arms Haul Case, the IC-814 Hijacking Case and

the Ravij Gandhi Assasination case, to name a few, have a direct

bearing on the security of the State. There is no doubt that the kind

of cases which the CBI is concerned with and the impact of such cases

directly affect the community. At this stage I may also point out

that as observed by the Supreme Court in Union of India v. Tulsiram

Patel, (1985) 3 SCC 398, there are various ways in which the security

of the State can be affected. As per the majority opinion in the

matter,

“141….. Danger to the security of the State may arise from

without or within the state. The expression “security of the State”

does not mean security of the entire country or a whole State. It

includes security of a part of the State. It also cannot be confined

to an armed rebellion or revolt. There are various ways in which

security of the State can be affected. It can be affected by State

secrets or information relating to defence production or similar

matters being passed on to other countries, whether inimical or not to

our country, or by secret links with terrorists.”

(D) Justice Alagiriswamy, in Giani Bakshish Singh v. Govt. of India

(1973) 2 SCC 688, stated that:

“Defence of a country or the security of a country is not a

static concept. The days are gone by when one had to worry about the

security of a country or its defence only during war time. A country

has to be in a perpetual state of preparedness. Eternal vigilance is

the price of liberty.”

(E) These words of the Supreme Court in 1973 have much more relevance

and resonance in 2011. In the circumstances, my answer to the first

question is in the affirmative.

26.Thus it is seen that the learned Attorney General was of the

opinion that CBI does intelligence work and the cases dealt by them

directly related to the security agencies. The learned Attorney

General further opined that the Mecca Masjid Blast Case, Bombay Blast

Cases of 1993, Assam Serial Blast cases, the Andaman Arms Haul case,

IC 814 Hijacking case, and the Rajiv Gandhi Assassination case have a

direct bearing on the security of the State. The contention raised by

the petitioner is that the CBI is not a intelligence and security

organisation. After going through the encyclopedia and other like

material, it is noticed that an intelligence agency is a Government

Agency devoted for gathering information for purposes of National

Security and Defence. The Agency may adopt various means for gathering

information and assembly and propagation of this information is

commonly known as intelligence analysis. An intelligence agency can

provide varied services such as analysis relevant to the safety and

security of the nation, early deduction of impending crises etc.

Security Intelligence pertains to national security threats such as

terrorism, espionage etc. It is stated that CBI is a Government Agency

that serves as a Criminal Agency Body, National Security Agency and

Intelligence Agency with its motto “ Industry, Impartiality,

Integrity”. The CBI is controlled by the Department of Personnel and

Trainee in the Ministry of Personnel , Public Grievance and Pension of

the Government of India. It is further stated that CBI is the official

interpole unit of India. The CBI is stated to have handled the

following broad category cases under several divisions such as Anti

corruption division, Economic Crime Division and Special Crimes

Division. The Anti Corruption Division is said to deal with case of

corruption and fraud committed public servants of all Central

Government Departments, public Sector Undertakings and Financial

Institutions. The cases such as Bank frauds, Financial frauds, Foreign

Exchange violations, large scale smuggling in Narcotics, Antiques etc.

are being dealt with by the Economic Crimes Division The Special

Crimes Division deals with cases of terrorism, Bomb Blast etc. Thus it

appears that cases which have inter station and internal ramifications

involving various Governmental Agencies are being taken up by CBI as

there is a need for a single agency to be incharge of the

investigation.

 

27.Prof.Lawrence W.Sherman, Wolfson, Proffessor of Criminalogy and

Director of Police Executive Programme at Cambridge University while

delivering a lecture on "Knowledge based Policing: India and the

Global Revolution in Crime Prevention" dealt with the topic “Evidence

and Knowledge” and observed as follows:

 

 

“Such distinctions between evidence and knowledge will become

increasingly important. Evidence is merely a set of facts, generally

the most relevant facts available to help support a decision.

Knowledge is an integration of diverse facts and evidence, an arguably

better basis for understanding and action than evidence alone.

Knowledge must be based on evidence, but evidence in isolation is not

enough. Knowledge also requires a theory that integrates the evidence,

a broader context in which to apply the theory, and a conceptual map

of how different aspects of actions are connected.

 

Police may, for example, have evidence that stop-and-search tactic

reduce gun crime. But if such stops also foster community hostility to

the police, that could reduce public willingness to help police make

arrests and remove dangerous offenders from communities. Most police

actions have multiple consequences. Experiments may only measure few

of those consequences, one study at time. Knowledge-based policing

must integrate what we know and what we don't know, trying to find the

best ways to deal with problems about which the evidence is rarely

complete or reliable.

 

It is also worth contrasting knowledge-based policing with

“intelligence-led” policing. There is a great value to having criminal

tips, quantitative forecasting, and other ways of predicting where and

when crime is most likely to occur. There are even major advances in

such analysis that can enable police to predict who will commit the

next murder. Such predictions, which could be described as

intelligence, are just as central to evidence-based policing as the

identification of hot spots or repeat problems.

 

The uses intelligence can best serve, however, cannot be derived from

the intelligence itself. What action police should take when they

produce such forecasts is a decision that requires a broad range of

knowledge. Such knowledge must integrate law, history, culture,

psychology, and sociology more generally in order to develop a plan of

action that anticipates everything that can possibly go wrong, and

takes as many steps as possible to avoid those possibilities.”

 

 

28.The principle deducible from the above is that there is great value

to having criminal tips, quantitative forecasting and other ways of

predicting the crime and such predictions could be described as

intelligence. From the long list of cases, which have been entrusted

to CBI, it cannot be denied that intelligence–led approach has enabled

CBI to make headway in the sensitive cases which have or had a direct

bearing on the national and internal security. Therefore, we are

convinced that the CBI could very well be termed as a intelligence

agency of the Government of India. '

 

29.The next question would be whether it is a security organisation

and whether it is both an intelligence and security organisation. The

Hon'ble Supreme Court in RAM MANOHAR LOHIA Vs STATE OF BIHAR [1966 SC

740] while considering the scope of the phrase security of the State

quoted the words of Subba Rao J, wherein his Lordships observed that

public order is synonymous with public safety and tranquility; it is

the absence of disorder involving breaches of local significance in

contra distinction to national upheavals, such a revolution, civil

strife, war , affecting the security of the State. A more recent

pronouncement of the Hon'ble Supreme in the case of C.ANITA &SANJAY

PRATAP GUPTA, which have been referred to by the learned Attorney

General, it has been held that public order, law and order and the

security of the state fictionally draw three concentric circles and it

was held that every infraction of law must necessarily affect order

but an Act affecting law and order may not necessarily also affect

public order. Likewise an Act may affect public order but not

necessarily the security of the State. Therefore, the test evolved by

their Lordship was that it is not the kind, but the potentiality of

the Act in question. In the light of the various sensitive cases which

are being handled by CBI, it cannot be denied that they have a direct

bearing not only the national security, but also the financial

security of the country. As rightly contended the Security of the

State can be affected in various ways and there can be no exact or

exhaustive definition and security threats may be varied both internal

and external and the Security of the State can be affected in various

ways which would include the corruption of the Government officials,

unauthorized disclosure of State secrets, Economic offences to

destabilise the National Economy, and therefore, intelligence

gathering is an inseparable part of the work of a Security Agency.

Thus it can be safely concluded that the security of the State is a

very broad concept. Therefore we are convinced that CBI would qualify

to be defined as a Security Organisation as well. Therefore, we find

no error in the decision of the Government of India to include the CBI

in the Second Schedule to the RTI Act.

 

30.An argument was advanced, that there was no necessity to include

the CBI in the Second Schedule since for the past over five years, the

CBI had taken umbrage under section 8 of the Act. To examine this

question it would be necessary to look into the relevant provisions of

the RTI Act which we have reproduced in the earlier part of this

order. As noticed above, the Act was enacted to provide for setting

out the practical regime of Right to information for citizen 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 preamble further states that revelation of

information in actual practice is likely to conflict with other public

interest including efficient operation of Government, optimum use of

limited fiscal resources and preservation of confidentiality of

sensitive information. In the preamble it is further stated that it is

necessary to harmonize these conflicting interest while preserving the

paramountcy of democratic ideal. Therefore, the law makers were

conscious of the fact that in actual practice while revealing

information, there is a likelyhood of conflict with other public

interest which includes preservation of confidentiality of sensitive

information. Therefore, a need was felt to harmonize this conflict and

at the same time preserve the democratic ideal which is paramount.

 

31.If we look into section 3 of the RTI Act, it states that subject to

the provision of the Act, all citizens shall have the right to

information. Therefore, it cannot be stated that the right is a

absolute and unfettered right but such right is subject to the

provisions of the RTI Act. Section 8 of the Act deals with exemptions

from disclosure of information. In a recent decision of the Hon'ble

Supreme Court in CENTRAL BORD OF SECONDARY EDUCATION Vs. ADITYA

BANDOPADHYAH, [2011 (8) SCALE 645], dealt with an issue in which the

respondent therein appeared for secondary school examination conducted

by the appellant CBSE. On receiving the mark sheet, he was

disappointed to see the marks awardedand therefore, made an

application for inspection and re-evaluation of the answer book. This

request was rejected by the CBSE, which was challenged before the

Calcutta High Court. CBSE took umbrage section 8(1)(e) of the RTI Act

and further contended that the request was contrary to their

Regulations. A Division Bench of the Calcutta High Court which dealt

with the matter, directed CBSE to grant inspection of the Answer Book

and rejected the prayer for re-evaluation. Challenging the said order,

CBSE approached the Hon'ble Supreme Court.

 

32.Various questions were considered by their Lordships and for the

purpose of this case, it would be relevant to take note of the law

stated, more particularly on the aspect regarding section 8 of the

Act, as well as the nature of right conferred on a citizen under the

RTI Act. Their Lordships has held as follows:

 

"33. Some High Courts have held that section 8 of RTI Act is

in the nature of an exception to section 3 which

empowers the citizens with the right to information, which is a

derivative from the freedom of speech; and that

therefore section 8 should be construed strictly, literallyand

narrowly. This may not be the correct approach. The Actseeks to

bring about a balance between two

conflicting interests, as harmony between

them is essential for preserving democracy. One is to

bring about transparencyand accountability by providing access to

information under the control of public authorities. The other is to

ensure that the revelation of information, in actual

practice, does not conflict with other public interests which include

efficient operation of the governments,

optimum use of limited fiscal resources

and preservation of confidentiality of

sensitive information. The preamble to the Act specifically states

that the object of the Act is to harmonise these two conflicting

interests. While sections 3 and 4 seek

to achieve the first objective, sections 8, 9,

10 and 11 seek to achieve the second

objective. Therefore when section 8

exempts certain information from being

disclosed, it should not be considered to be a

fetter on the right to information, butas an equally important

provision protecting other public interests essential for the

fulfilment and preservation of democratic ideals.

34. When trying to ensure that the right to information does not

conflict with several other public

interests (which includes efficient operations of the

governments, preservation of confidentiality of sensitive information,

optimum use of limited fiscal resources,

etc.), it is difficult to visualise

and enumerate all types of information which

require to be exempted from disclosure in public interest.

The legislature has however made an

attempt to do so. The enumeration of exemptions is more exhaustive

than the enumeration of exemptions attempted in the earlier Act that

is section 8 of Freedom to Information Act, 2002. 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.

35. At this juncture, it is necessary

to clear some misconceptions about the

RTI Act. The RTI Act provides access to all

information that is available and existing. This is clear from a

combined reading of section 3 and the definitions of `information'

and `right to information' under clauses (f) and (j) of

section 2 of the Act. If a public authority has any information in the

form of data or analysed data, or abstracts, or statistics, an

applicant may access such information, subject to the exemptions in

section 8 of the Act. But where the information sought is not a part

of the record of a public authority, and where such information is not

required to be maintained under any law or the rules or regulations of

the public authority, the Act does not cast an

obligation upon the public authority, to collect

or collate such non-available information and then

furnish it to an applicant. A public authority is also not required to

furnish information which require drawing of inferences and/or making

of assumptions. It is also not required to provide `advice' or

`opinion' to an applicant, nor required to

obtain and furnish any `opinion' or `advice' to an applicant.

The reference to `opinion' or `advice' in the definition of

`information' in section 2(f) of the Act, only

refers to such material available in the

records of the public authority. Many public

authorities have, as a public relation

exercise, provide advice, guidance and opinion to the citizens. But

that is purely voluntary and should not be confused with any

obligation under the RTI Act.

36. ...

37. The right to information is a cherished

right. Information and right to information are intended to be

formidable tools in the hands of responsible citizens to fight

corruption and to bring in transparency and

accountability. The provisions of RTI Act should be enforced

strictly and all efforts should be made to bring to light the

necessary information under clause (b)of section 4(1) of the Act

which relates to securing transparency and accountability in the

working of public authorities and in discouraging corruption. But in

regard to other information,(that is information other than those

enumerated in section 4(1)(b) and © of the Act), equal importance

and emphasis are given to other public interests(like

confidentiality of sensitive information,

fidelity and fiduciary relationships, efficient

operation of governments, etc.). Indiscriminate and

impractical demands or directions under RTI Act

for disclosure of all and sundry information

(unrelated to transparency and

accountability in the functioning of public authorities and

eradication of corruption) would be counter-productive as it will

adversely affect the efficiency of the administration and result

in the executive getting bogged down with the non-productive

work of collecting and furnishing information. The Act should not be

allowed to be misused or abused, to become a

tool to obstruct the national development and

integration, or to destroy the peace,

tranquility and harmony among its citizens.

Nor should it be converted into a tool

of oppression or intimidation of honest officials

striving to do their duty. The nation does not want a scenario where

75% of the staff of public authorities spends 75%

of their time in collecting and furnishing information

to applicants instead of discharging their regular

duties. The threat of penalties under the RTI Act

and the pressure of the authorities under the

RTI Act should not lead to employees of a public

authorities prioritising `information furnishing', at the cost

of their normal and regular duties. "

 

33.Their Lordships held that the Act seeks to bring about a balance

between two conflicting interest as harmony between them is essential

for preserving democracy. After taking note of the preamble to the

Act, their Lordships observed that sections 3 and 4 seeks to achieve

the first objective i.e. to bring about transparency and

accountability and sections 8, 9, 10 and 11 to achieve the second

objective viz. to ensure that revelation of information does not

conflict with other public interest which include preservation of

confidentiality of sensitive information. Therefore it was held that

section 8 should not be considered to be fetter on the right to

information, but as an equally important provision protecting other

public interest essential for the fulfillment and preservation of

democratic ideals. Their Lordships also cleared the misconception

about the RTI Act, and held that the RTI Act provides access to all

information that is available and existing, subject to the exemptions

in section 8 of the Act.

 

34.It has been further held that the provisions of the RTI Act should

be enforced strictly and all efforts should be made to bring to light

the necessary information under clause (b) of section 4(1) of the RTI

Act, which relates to securing transparency and accountability in the

working of public authorities and in discouraging corruption. In

respect of information other than those enumerated in section 4(1)(b)

& © of the Act, equal importance are given to other public interest

like confidentiality and sensitive information. Further, that

indiscriminate and impracticable demands for disclosure of all and

sundry information could be counter productive as it will adversely

affect the efficiency of the administration, and result in the

executive getting bogged down with non productive work of collecting

and furnishing information. Their Lordships have also sent a warning

by observing that the Act should not be allowed to be misused or

abused to become a tool to obstruct the national development and

integration or to destroy the peace, tranquility and harmony among its

citizens, or it should be converted into a tool of oppression of

honest officials striving to do their duty. The learned Additional

Solicitor General appearing for the India submitted that 90% of

queries are from the accused themselves and if such sensitive

information is furnished, it would seriously hamper and jeopardize the

investigation. As we are informed that in the manner of functioning of

CBI, the Officers concerned are required to record their independent

opinion in the files during the course of gathering intelligence or

during investigation and if RTI queries are made by the accused

themselves or on their behalf, by any third party applicant, it would

prevent the officers from freely recording their opinion. In our view,

queries raised which would hamper or jeopardize the working of any

intelligence and security agency should not be permitted and

undoubtedly this was not the purport and intent of the RTI Act, as the

preamble itself clearly states that it is necessary to harmonize the

conflicting interest while preserving the paramountcy of the

democratic ideal. Any investigation by such an Agency like CBI

handling sensitive and sensational cases involving the internal

security of the country and its financial stability, if allowed to be

disclosed would be counter productive and it will adversely affect the

efficiency of the functioning of the organisation itself. Undoubtedly,

intelligence and security of the Government or any of its

establishments has a definite linkage to the intelligence which is

gathered and therefore, they appear to be inseparable.

 

35. Indisputably, CBI is dealing with so many cases of larger public

interest and the disclosure of information shall have great impact not

only within the country but abroad also, and it will jeopardise its

works. Equally, the investigations done by CBI have a major impact on

the political and economic life of the nation. There are sensitive

cases being handled by the CBI which have direct nexus with the

security of the nation. Once jurisdiction is conferred upon the CBI

under Section – 3 of the Act by notification made by the Central

Government, the power of investigation should be governed by the

statutory provisions, and cannot be interfered with or stopped or

curtailed by any executive instructions, and shall not be subjected to

any executive control.

 

36.In the case of Vineet Narain Vs. Union of India reported in (1998)

1 SCC 226 the Supreme Court observed as follows:-

 

“39. There can be no doubt that the overall administration of the said

force, i.e., CBI vests in the Central Government, which also includes,

by virtue of Section 3, the power to specify the offences or class of

offences which are to be investigated by it. The general

superintendence over the functioning of the Department and

specification of the offences which are to be investigated by the

agency is not the same as and would not include within it the control

of the initiation and the actual process of investigation, i.e.,

direction. Once the CBI is empowered to investigate an offence

generally by its specification under Section 3, the process of

investigation, including its initiation, is to be governed by the

statutory provisions which provide for the initiation and manner of

investigation of the offence. This is not an area which can be

included within the meaning of “superintendence” in Section 4(1).

 

40. It is, therefore, the notification made by the Central Government

under Section 3 which confers and determines the jurisdiction of the

CBI to investigate an offence; and once that jurisdiction is attracted

by virtue of the notification under Section 3, the actual

investigation is to be governed by the statutory provisions under the

general law applicable to such investigations. This appears to us the

proper construction of Section 4(1) in the context, and it is in

harmony with the scheme of the Act, and Section 3 in particular. The

word “superintendence” in Section 4(1) cannot be construed in a wider

sense to permit supervision of the actual investigation of an offence

by the CBI contrary to the manner provided by the statutory

provisions. The broad proposition urged on behalf of the Union of

India that it can issue any directive to the CBI to curtail or inhibit

its jurisdiction to investigate an offence specified in the

notification issued under Section 3 by a directive under Section 4(1)

of the Act cannot be accepted. The jurisdiction of the CBI to

investigate an offence is to be determined with reference to the

notification issued under Section 3 and not by any separate order not

having that character.

………………..

42. Once the jurisdiction is conferred on the CBI to investigate an

offence by virtue of notification under Section 3 of the Act, the

powers of investigation are governed by the statutory provisions and

they cannot be estopped or curtailed by any executive instruction

issued under Section 4(1) thereof. This result follows from the fact

that conferment of jurisdiction is under Section 3 of the Act and

exercise of powers of investigation is by virtue of the statutory

provisions governing investigation of offences. It is settled that

statutory jurisdiction cannot be subject to executive control.”

 

37.The apprehension that the CBI by virtue of its inclusion in the

Second Schedule has got a blanket exemption, cannot be countenanced

for the simple reason that what has been contemplated under section 24

is no such blanket exemption. The Act was intended among other things

to contain corruption and to hold Governments and their

Instrumentalities accountable to the Government. This purpose and

intent of the Act is sufficiently provided for in the two provisos to

section 24(1) of the Act. The information pertaining to allegation of

corruption and human rights violation are not excluded under

sub-section (1) of section 24. Therefore, the exemption by virtue of

inclusion of CBI in the Second Schedule to a RTI Act is not a

wholesale or a blanket exemption as contended by the petitioner. After

taking note of the facts placed before this Court and the law

discussed above, it cannot be stated that every Police Thana is an

intelligence Agency and should be treated on par with the CBI for the

benefit of the exemption under section 24 of the Act.

 

38.The Government of Tamil Nadu by a Government Order in

G.O.Ms.No.158, Personnel and Administrative Reforms Department dated

26.8.2008, in exercise of its powers under section 24(4) of the RTI

Act ordered that the Act shall not apply to two organisations viz.

Tamil Nadu State Vigilance Commission and Directorate of Vigilance and

Anti Corruption. The said Government Order was challenged before this

Court in a public interest writ petition in W.P.No. 4907 OF 2009 and

was heard by the Hon'ble First Bench of this Court presided over by

the then Hon'ble Chief , Hon'ble Mr.Justice H.L.Gokhale . In the said

Writ Petition it was contended that to qualify for exemption under

section 24(4), such organisation must be both intelligence as well as

Security Organisations. The Hon'ble First Bench after analysing the

language employed in sub-section (4) of section 24 by Judgment dated

30.3.2009, held thus:

 

"5.As can be seen from the language used in the main part of sub

section 4, it states that nothing contained in this Act shall apply to

such intelligence and security organisation. Thus, in the first part,

two entities are mentioned in singular as organisation. Subsequently,

they are referred as 'organisations' established by the State

Government. If intelligence and security organiation was only one,

there was no need to use the plural term 'organisations' subsequently.

It clearly indicates that such an organisation can be for intelligence

purpose or for security purpose. The word "and' between the two words

intelligence and security organisation will have to be read as "or".

Therefore, the second submission of Mr.Radhakrishnan cannot be

accepted. "

 

39.Yet another contention was raised before the Hon'ble Division Bench

that the said provision affects the fundamental rights envisaged under

Article 19 (1)(a) of the Constitution of India. While considering the

said question, the Hon'ble Division Bench held as follows:

 

"6....It is material to note that sub clause 2 of Article 19 of the

Constitution of India provides that any such law insofar as it imposes

reasonable restrictions on the exercise of the right conferred by the

said sub-clause in the interest of [the sovereignty and integrity of

India], particularly 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, its

operation will not be affected by sub-clause 1(a). In our view,

Section 24(4) of the Act provides for reasonable restriction in the

interest of public order. "

 

40.Ultimately the Hon'ble Division Bench after going through the

reasons assigned by the State Government, seeking to justify their

decision under section 24(4), held that confidentiality and secrecy in

certain cases are required to be maintained right from the initial

stage upto filing of charge sheet on the one hand and upto issue of

final orders in the case of disciplinary proceedings. In vigilance

cases, giving information at the initial stage, investigation stage

and even prosecution stage would lead to unnecessary embarrassment and

would definitely hamper due process of investigation. Thus it was held

that the State Government has given sufficient reasons as to why it

was exercising power under section 24(4) of the Act and this exercise

of discretionary power is also protected under Article 19(2) of the

Constitution as it is a reasonable restriction in the interest of

public order. The findings rendered by the Hon'ble Division Bench

would apply with full force to the case on hand also.

 

41.At this stage, it would be useful to examine the reasons assigned

by the Union Government to justify their action by exercising its

power under section 24(1) of the Act. Reference may be made in this

regard to certain averments made in the counter affidavit filed by the

first respondent.

 

"6....It is further stated that collection of intelligence leads to

registration of cases and then final. In many sensitive cases the

collection of intelligence and the process of investigation and trial

are intertwined and cannot be separated.

 

7.It is further stated that some of the important cases pertaining to

national security that have been,or are being ealt with, by the CBI

are as follows:-

 

a)Naval War Room Leak case

b)Barak Anti-Missile Defence System case

c) Denel Anti-Material Rifle case

d)Mecca-Masjid Blast Case

e)Bombay Blast Cases of 1993

f) Fake Passport cases

g)Assam Serial Bomb Blast cases

h)Andaman Arms Haul case

i) IC-814 Hijacking case

j) Rajiv Gandhi Assassanition case

k) Fake Currency and fake stamp paper scam cases

i) Securities scam cases.

8.It was further submitted by the CBI that intelligence plays a vital

role in every aspect of the functioning of CBI. Many of the important

and sensitive cases are registered on the basis of intelligence

inputs. Information with regard to modus operandi and sources, which

are an essential part of investigation by CBI, are very important and

any disclosure of such information may not only jeopardize the

functioning of CBI in future investigations but also public safety and

national security.

 

9.CBI further submitted that it has developed its unique processes for

functioning where each officer is given full freedom to express

his/her views independently. This helps in bringing to the fore every

facet of the issue under consideration, which helps in taking a

balanced final decision in the matter. It was felt that disclosures

under RTI may lead to targeting of officers which may ultimately

affect the credibility of CBI which would not be in national interest.

CBI further submitted that entire investigation and trial of CBI cases

is under close scrutiny of the courts and all relied upon documents

are always made available to the accused. The CBI's proposal for

exemption further merited acceptance because various other security

agencies and police departments had been included in the Second

Schedule to the RTI Act...

 

21....ithas been found that the functioning of CBI was being affected

due to various difficulties due to exposure to queries under the RTI

Act. It was stated that due to RTI queries being posed, the officers

of CBI would be deterred from recording their views on the files

fearlessly and independently. In view of the fact that CBI handles

cases affecting national security, legal opinion was obtained on the

issue of whether CBI was a security and intelligence organisation and

could be included in the 2nd Schedule to the RTI Act. The legal opinin

confirmed that in view of the nature and functions of the CBI, it

could be included in the 2nd Schedule as a security and intelligence

organisation. The matter was thereafter considered by the Committee of

Secretaries which recommended for inclusion of CBI in the 2nd Schedule

of the RTI Act. Thereafter a decision was taken by the competent

authority and a notification was issued in exercise of powers under

section 24 of the RTI Act."

 

Thus from the averments referred to above, the matter was considered

at all levels before a decision was arrived at and after analysing the

materials placed by the CBI, the Union Government held that CBI was a

security and intelligence organisation.

 

42.We find no justifiable reasons to depart from such findings which

appears to have been arrived at after considering all materials placed

before the Government, taken note of by the Committee of Secretaries

and other authorities prior to issuance of the impugned Notification.

Admittedly there is no allegation with regard to the decision making

process or that there was any arbitrariness in the procedure adopted

so as to offend Article 14 of the Constitution. It is submitted by the

learned Additional Solicitor General appearing for the first

respondent that Notification has been placed before both Houses of

Parliament and would be taken up for consideration in the ensuing

Session.

 

43.In view of the above, we hold that the impugned Notification is

neither ultra vires section 24 of the RTI Act nor violative of the

provisions of the Constitution of India.

 

43.In the result the Writ Petition fails and the same is dismissed. No

costs. Consequently, connected Miscellaneous Petition is closed.

 

(M.Y.E.,C.J) (T.S.S.,J)

09.09.2011

Index :Yes/No

Internet:Yes/No

pbn/rpa

 

 

To

 

1.Union of India,

Rep. by its Secretary to Government,

Ministry of Personnel, PG & Pensions,

North Block, New Delhi.

 

2.Director, Central Bureau of Investigation

Lodhi Road, CGO Complex, New Delhi.

 

THE HON'BLE THE CHIEF JUSTICE

and T.S.SIVAGNANAM, J.

Pbn/rpa

 

 

Pre-Delivery Order in

W.P.No.14788 of 2011

 

 

.09.2011

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karira

As reported by PTI in zeenews.com on 27 Sep 2011:

http://zeenews.india.com/news/nation/cbi-demanded-only-partial-exemption-from-rti-act_733804.html

 

CBI demanded only partial exemption from RTI Act

 

New Delhi: CBI, which is probing several high-profile corruption cases, had demanded only partial exemption from the ambit of the RTI Act as per its initial proposal but later pressed for a blanket cover which was approved by the Government this year.

 

The file notings provided by the Department of Personnel and Training, under RTI Act, show that in 2007, Committee of Secretaries had rejected the demand of the CBI to be included in the list of organisations exempted from the RTI Act except on allegations of human rights violations and corruption.

 

It had said CBI can utilise provisions of the RTI Act to reject an information.

 

This year, CBI, which is probing several high profile cases like 2G scam, CWG scam and Adarsh Scam, pushed a fresh demand seeking "limited exemption" from the RTI Act in areas of intelligence collection, secret verification besides internal analysis of evidence and sources or process involved in its collection.

 

The request of the agency was termed as "vague" by the officials of the DoPT who demanded "full justifications" for such a demand.

 

The Central Vigilance Commissioner has also opined that only intelligence gathering arm of the CBI can be brought under the exemption clauses of the RTI Act.

 

The then Solicitor General of India Gopal Subramaniam had opined that the CBI can be considered to be added in the second schedule of the RTI Act, "with the qualification that after seeing out the words Central Bureau of Investigation certain words in parenthesis will be added i.e 'except matters pertaining to administration, personnel, accounts/finance, budget and training."

 

The Department, however, said according to the Act, once an organisation is placed in exemption clause of the RTI Act, no information except that related to allegations of human rights violation and corruption can be given, the notings provided to activist S C Agrawal show.

 

"There is no provision in the Act to specify any other category of information pertaining to that organisation which may or may not be disclosed," a department official said.

 

The DoPT finally came up with three options: exempting CBI from disclosing any information except allegations of human rights violation and corruption, exempting it except matters pertaining to administration and exempting only intelligence arm of the agency.

 

The CBI, however, strongly demanded that it should be "full exemption" from the RTI Act and keeping away only its special unit "may not serve purpose", CBI's views received support from Attorney General Goolam Vahanvati who opined that given the work done by the agency, it is "legally feasible" to include the CBI in the second schedule of the RTI Act.

 

On exempting only investigative part of the CBI, as recommended by the Solicitor General, Vahanvati said keeping matters like administration within RTI Act would make "intelligence gathering difficult, if not impossible. Further such an exemption will have serious implications on other security agencies" already included in the clause.

 

He said limiting the exemption only to the intelligence unit of the CBI "would not serve the purpose because security of the state is interwind with investigation."

 

Following this, nod was given by the Committee of Secretaries and the Prime Minister to include the CBI in the list of organisations exempted from RTI Act.

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karira

As reported in ibnlive.in.com on 19 Oct 2011:

http://ibnlive.in.com/news/hc-adjourns-plea-against-cbis-immunity-to-rti/194319-60-122.html

 

HC adjourns plea against CBIs immunity to RTI

 

KOCHI: The Kerala High Court on Tuesday orally� asked the CBI, being an agency which mainly investigates corruption cases, why it was hiding facts.

 

A Division Bench comprising acting Chief Justice C N Ramachandran Nair and Justice P S Gopinathan asked this, while considering a petition filed by RTI activist D B Binu challenging the notification issued by the Central Government to keep the CBI and the National Investigation Agency (NIA) outside the purview of Right to Information (RTI) Act.� The court adjourned the case to November 22 for detailed hearing.

 

The NIA submitted that it was an agency dealing with national security issues therefore it cannot entertain applications under RTI Act.� The petitioner challenged the legality of the notification issued by the Centre in the official gazette of India notifying the inclusion of Central Bureau of Investigation, and National Investigation Agency in the second schedule to RTI Act, 2005.� The petitioner further submitted that these agencies established for the purpose of criminal investigations and prosecution cannot claim any immunity against the disclosure of� information at their disposal.

 

�“The proposed move is a major setback to transparency efforts,” the petitioner argued.� Sukumar Oommen, a retired IAS officer, has also filed a similar petition before the court.� He alleged that he has been a victim of abuse of power by CBI and the exclusion of CBI from the purview of RTI Act is against public interest.

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ganpat1956

CBI got RTI exemption without wanting it?

 

By Nagendar Sharma & Aloke Tikku, (Hindustan Times, New Delhi, October 20, 2011)

 

At a time when it's reeling under allegations of scams and scandals, official documents show that the government gave the Central Bureau of Investigation (CBI) more immunity from the Right to Information (RTI) Act than what the agency had originally sought. The issue of how much immunity the CBI should get was bounced between several government departments, committees and officials that questioned the agency's demand of partial immunity, all of which ended up with it being kept completely outside RTI.

 

Legal opinion was repeatedly sought by the government for the right advice and the right request from the CBI. This has been revealed in a set of confidential documents, ironically released through RTI to activist Subhash Agarwal.

 

A CBI official conceded that the agency sensed the government wanted to give them a blanket exemption and played along. Asked to interpret the series of events that ended with CBI out of RTI, a senior government official said: “It isn't unusual to seek clarifications till everyone comes to the same point.”

 

The CBI's original demand around January 2011 was for exemption of intelligence collection, internal analysis of evidence and its sources from RTI.

 

But the department of personnel that implements RTI found the request “vague” and asked for a fresh proposal.

 

In mid-February, the CBI gave its fresh proposal. This time, it wanted exemption from the RTI Act in all matters but was willing to release information relating to “administration, personnel, accounts/finance, budget and training.”

 

The department for personnel and training (DoPT) first sought the law ministry's opinion on the CBI partial exemption request.

 

The then Solicitor General Gopal Subarmanium stated: “CBI officers need to be protected from dangers… the request for partial exemption is justified.”

 

This opinion was, however, rejected by the committee of secretaries, saying “it was not practical… and legally advisable”.

 

The matter was sent back to the law ministry with a specific request to seek the opinion of the Attorney General, GE Vahanvati. He said: “…the CBI does intelligence work which is directly related to security agencies….therefore it is legally feasible to put it in the list of organisations exempt from the RTI,” he said.

 

Disagreeing with Subramanium, Vahanvati stated :”I do not agree that there should be any qualification with regard to the exemption….”

 

Moily endorsed the AG's opinion, and soon after the secretaries panel also gave its nod to keep the CBI, NIA and the NATGRID out of RTI.

 

On June 8, Prime Minister Manmohan Singh, who holds the cabinet charge of DoPT, put his seal of approval on the decision.

 

Source: http://www.hindustantimes.com/CBI-got-RTI-exemption-without-wanting-it/Article1-759291.aspx

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Dr.S.ANANDKUMAR

One petitioner Ms.Vijayalakshmi lost a case against CBI in Madras High Court. Not only Government but also Judiciary upheld the exemption of CBI from RTI.

 

Some of us should take this case to Supreme Court with a very reputed lawyer. Any way CBI need not disclose as per exemption clauses in Section 8 & 9 of the RTI Act, 2005. Any more balnket (what i call arbitrary) exemption over and above the lawful exemptions is ILLEGAL, ARBITRARY, DRACONIAN and CONTRARY to the spirit and purpose of the preamble of the act, "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 (CBI) accountable to the governed."

CBI, NATGRID, NIA are free to reject information U/s 8 & 9 of the Act. I think the petitioner lost the case in Madras High Court due to lack sound grounds. These legal opinions from so ans so, the procedures followed for blanket exemption are all secondary. Why arbitrary exemptions when there are lawful exemptions already in place? These blanket exemption violates Evidence Act & RTI Act and known transparency laws.

I volunteer to donate Rs.10,000/- from my salary to fight this case out in Supreme Court as a fresh PIL. If permissible interested members of this forum, directly or out of the forum, organize to come out with actionable outcome to save the RTI Act, than mere tweeting / blogging, what ever people call it.

I HAVE SEEN COMMENTS IN THE MEDIA THAT 'CBI' IS 'CONGRESS BUREAU OF INVESTIGATION'. If so, it is unsafe for the people of this country, besides dilution of the RTI Act.

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aslamkhan

http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=TOINEW&BaseHref=TOIM/2011/10/21&PageLabel=21&EntityId=Ar02107&ViewMode=HTML

 

 

New Delhi: The CBI, NIA and the newly-formed NATGRID have joined the exclusive list of organizations that are exempted from sharing information under the RTI Act except for matters pertaining to allegations of corruption and human rights violations.

Prime Minister Manmohan Singh had approved a proposal in June that these three organizations would be spared from sharing information under the second schedule of the RTI Act.Intelligence and security organizations that come under this schedule include the Intelligence Bureau, R&AW, Directorate of Revenue Intelligence, Aviation Research Centre, Narcotics Control Bureau and all the Central paramilitary forces.

The schedule, which is part of Section 24 of the RTI Act, says, “Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the central government or any information furnished by such organizations to that government provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section.” TNN

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Sajib Nandi

As reported by economictimes.indiatimes.com on 20 Dec 2011

Centre moves SC for keeping CBI out of RTI - The Economic Times

 

NEW DELHI: At a time when it is debating with Team Anna over CBI's inclusion within the Lokpal's ambit, the Centre has moved the Supreme Court seeking to blunt petitions in various high courts challenging the June 9 notification exempting the investigating agency from the purview of Right to Information Act.

 

The ministry of personnel, public grievances and pension had issued the June 9 notification to include CBI, the National Investigating Agency ( NIA) and the National Intelligence Grid (Natgrid) in the Second Schedule of the RTI Act, thus putting these agencies outside the purview of the transparency law.

 

Six petitions were filed in high courts challenging the validity of the notification, of which two were in Delhi HC, two in Kerala HC and one each in Bombay and Madras HC. Of these, Madras HC gave a judgment on September 9 upholding the validity of the notification.

 

The Madras HC, while dismissing the challenge to the notification, had said, "...in the light of various sensitive cases which are being handled by the CBI, it cannot be denied that they have a direct bearing not only on national security but also financial security. We are convinced that the CBI would qualify to be defined as a security organization as well. Therefore, we find no error in the decision of the government of India to include the CBI in the Second Schedule of the RTI Act."

 

Buoyed by the favourable ruling from the Madras HC and apprehending possible conflicting verdicts on the issue of exclusion of CBI from the ambit of RTI, the Centre and the investigating agency decided to drive home the advantage and filed a petition seeking transfer of pending petitions before various HCs to the Supreme Court for an authoritative pronouncement on the validity of the notification.

 

The joint petition by the Centre and the CBI, drafted by advocate Padmalakshmi Nigam, stressed the Madras HC's ruling on what it called "a substantial question of general importance" and invoked Article 139A of the Constitution, which empowers the SC to transfer to itself petitions pending in HCs on identical issues.

 

Moreover, defending the litigation in several HCs on the same question of law could cause logistical problems, the Centre and the CBI said. "The interest of justice will be most served by transferring all the writ petitions pending before the various HCs to the Supreme Court and then the decision of the SC would govern the field and answer all the petitions in the country," the petitioners said.

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karira

An article by K.P. Narayana Kumar in forbesindia.com on 25 Jan 2012:

Forbes India Magazine - RTI: Right To U-Turn

 

RTI: Right To U-Turn

 

Activists fear that the government’s move to exempt the CBI from the Right to Information Act could have ulterior motives

 

K

iran Bedi is convinced that the UPA government’s reluctance to give the proposed citizen’s ombudsman, the Lokpal, control of the Central Bureau of Investigation (CBI), the country’s premier investigation agency, is due to skeletons that lie buried deep in the agency’s cupboards.

 

The day Parliament was to discuss the Lokpal Bill, the social activist tweeted: “All skeletons of suspects are lying buried in CBI cupboards, which is why government is keeping the key of administration with it and Lokpal away.”

 

But even before Anna Hazare and his team, of which Bedi is a part, tried to free the CBI from the government’s grasp, the Centre had worked overtime to keep the agency out of the right to information law’s purview.

 

A week before Prime Minister Manmohan Singh announced the setting up of a joint parliamentary committee to look into the 2G spectrum scam, the CBI, which was leading the investigation in the case, had quietly made a demand of its own.

 

In February 2011, the CBI wrote to its parent, the Department of Personnel and Training (DoPT), pointing out a nagging problem: Officers handling investigations, who are known to speak their mind during discussions, were apprehensive that their impressions about suspects and the line of investigation could make their way to the public through right to information applications. And this, the agency felt, could compromise its chances in the courts.

 

The department sought an exemption from the RTI Act on the lines of a similar waiver given to intelligence agencies and some paramilitary forces.

 

When the bureau tried to wriggle out in 2007, a committee of secretaries concluded that the CBI, unlike other agencies, didn’t deserve to be kept out of the ambit of the RTI Act since it was not a department that was primarily concerned with intelligence gathering or national security.

 

Headed by the then cabinet secretary K.M. Chandrasekhar, the panel felt that the CBI could lean on clauses in the Act to keep some information confidential if their disclosure would be against national interest.

 

Documents relating to the exemption accessed through a RTI application suggest that on May 13, 2011, another committee of secretaries set up by the DoPT to consider the same proposal, relied on an opinion of the attorney general to keep the CBI out.

 

In a written opinion given four days before the panel was to meet, Attorney General Goolam E. Vahanvati said the CBI also dealt with matters pertaining to intelligence and that these cases would be compromised if the institution was exposed to the Act.

 

Pointing out that the CBI had investigated several cases connected with the security of the country, such as the hijacking of the Indian Airlines (IC 814) and the Mumbai blasts, Vahanvati reasoned that a limited exemption for the agency also wouldn’t work.

 

“A qualified exemption will have serious consequences with respect to other intelligence/security organisations already notified. Such a truncated exemption in the case of one agency may lead to serious questions being asked as to why other agencies specified in the Second Schedule may not be similarly placed, something which is not at all justifiable or feasible. Such an approach, in my opinion, will render the whole process of exemption nugatory.”

 

Recently, RTI applications helped reveal information on the 2G scam and on contracts given out for the Commonwealth Games that eventually landed some UPA leaders in soup, and later in jail. Critics say the decision to exclude the CBI was aimed at thwarting potential revelations that could erode the government’s credibility.

 

“The manner in which the file was pushed through and the timing of this decision is suspicious,” says C.J. Karira, a Hyderabad-based activist who has got the papers on the decision-making process through an RTI application. After all, nothing has changed between 2007 and 2011 that helps the CBI’s case for exemption. “The CBI’s charter continues to remain the same as it was in 2007,” says Karira.

 

Interestingly, the CBI was set up as an anti-corruption agency and it’s only since the 1990s that it began to tackle cases related to terrorism and security.

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Sajib Nandi

CBI seeks transfer of RTI case to apex court

 

 

 

Reported by Timesofindia.indiatimes.com on Feb 14, 2012

CBI seeks transfer of RTI case to apex court - The Times of India

 

 

KOCHI: Petitions seeking the inclusion of Central Bureau of Investigation (CBI) and National Investigation Agency (NIA) under the Right to Information Act, have to be transferred to the Supreme Court to be heard along with other petitions raising similar demands, CBI told the high court on Wednesday.

 

When the case came up for hearing before acting Chief Justice Manjula Chellur and Justice PR Ramachandra Menon, CBI's counsel submitted to the court that three more petitions of the same nature were pending before the apex court and that CBI was planning to move the two petitions in Kerala to the Supreme Court.

 

Former IAS officer Sukumar N Oommen, who had impleaded in the case, opposed the move, stating that he was ready to argue and his arguments should be recorded by the court before allowing the petition to be transferred.

 

While the original petition by advocate DB Binu had sought the inclusion of CBI and NIA under RTI Act, the plea was later amended to challenge the exclusion 18 intelligence and security organizations, including CBI, NIA, RAW, Intelligence Bureau, Directorate of Revenue Intelligence, Aviation Research Centre, CRPF, National Security Guards, and Special Services Bureau.

 

Only CBI had been listed as the respondent in the case initially. NIA impleaded in the case later on.

 

Three more parties impleaded in the case as petitioners at a late stage. They are former managing director of Madras Fertilizers, CPM's lawyers' union, and a Delhi-based reporter of journal Sach Bilkul Sach.

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Atul Patankar

Karira Sir,the CBI has not tried to obtain stay on this decision? Usually they are very quick about it, aren't they?

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karira
Karira Sir,the CBI has not tried to obtain stay on this decision? Usually they are very quick about it, aren't they?

 

As far as I know, they have not.

But, neither have they provided me any of the information requested by me.

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karira
Karira Sir,the CBI has not tried to obtain stay on this decision? Usually they are very quick about it, aren't they?

 

Just received the copy of the WP to be filed by CBI in Delhi HC praying for quashing of the CIC order.

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akhilesh yadav

Reported by Shyamlal Yadav in indianexpress.com on Jan 15, 2014

CBI sought part RTI exemption, Govt gave it full | The Indian Express

 

CBI sought part RTI exemption, Govt gave it full

 

Almost three years after the controversial decision to exempt the CBI from the purview of the Right To Information Act, it has come to light that the Solicitor-General and the investigating agency itself wanted only partial immunity from the transparency law, but got total exemption from the UPA government.

The government felt that exempting the premier investigating agency only partially would lead to other bodies asking for the same, and this push for full exemption was strongly backed by the Prime Minister’s Office, according to file notings and official records accessed by The Indian Express.

The documents show that the CBI hesitatingly began its campaign to step out of the transparency regime in July 2010 with the Central Vigilance Commission recommending that only the agency’s special unit — which deals with collection of intelligence — be exempted from the RTI Act just as in the case of other intelligence agencies.

In its follow-up request filed with the Department of Personnel and Training on February 14, 2011, the agency mentioned that departments related to administration, personnel, accounts/finance, budget and training remain open to disclosures under the RTI Act.

This partial exemption formula was backed by the then Solicitor-General Gopal Subramanium. “I am, however, not convinced that all aspects of the organisation of the CBI must be given exemption,” he wrote in his 23-page opinion, adding that a “qualification” be added so that the above-mentioned five departments are retained under the RTI Act.

However, the DoPT said this was not feasible and its joint secretary Rajeev Kapoor backed the CBI’s original proposal of keeping only its intelligence gathering Special Unit out of the RTI Act.

Subsequently though, even this proposal fell out of favour. A DoPT note of April 2011 signed by its Secretary Alka Sirohi said that “partial exemption may not serve the purpose…according to the CBI they are in favour of full exemption”.

This note also recorded the anxiety of the PMO to exempt the CBI from the RTI Act.

“It may also be noted that PMO had also sent us a note sent by Hon’ble Minister of Law to Hon’ble Prime Minister where in the Law Minister had indicated that it has been decided to include CBI in the second schedule of RTI Act 2005..’’

The second schedule of the law exempts agencies from making disclosures as long as the information sought does not involve allegations of corruption or human rights violations.

On April 25, 2011, at a meeting of the Committee of Secretaries – chaired by the Cabinet Secretary and attended by M N Prasad, secretary in the PMO – the government pushed its argument that partially exempting the CBI from the RTI Act could open a Pandora’s box.

“Making such a dispensation in the case of CBI may lead to demands for similar qualification to be made in the second schedule in respect of other organizations which may not be feasible in view of the nature of their working,” the minutes of the meeting said.

It also said that the proposal for “partial exemption” needed “re-examination” and that “the DoPT would resubmit the proposal after seeking fresh legal opinion”.

This fresh legal opinion was sought from Attorney-General Goolam E Vahanvati. In his opinion dated May 9, 2011, Vahanvati said that partial relief for the CBI “will render the whole process of exemption nugatory…”

“A qualified exemption will have serious consequences with respect to other intelligence/security organisations already notified. Such a truncated exemption in the case of one agency may lead to serious questions being asked as to why other agencies specified in the second schedule may not be similarly placed, something which is not at all justifiable or feasible. Such an approach, in my opinion will render the whole process of exemption nugatory,” he said.

A note written on the same day by S K Sarkar, then additional secretary, DoPT, indicates the PMO was stressing on the CBI being fully exempted.

“M N Prasad, secretary to PM called me twice today to convey that the Law Ministry is obtaining the advice of the Ld. AG on the basis of reference from DoPT on the above subject,” Sarkar wrote.

Again, on the covering letter of Vahanvati’s advice dated May 10, 2011, Sarkar noted: “Secretary to PM (MN Prasad) rang me today to say that the meeting of CoS (Committee of Secretaries) be convened on May 13, 2011 and he be invited. Shri Prasad, I was told, also spoke to Cabinet Secretary today on the subject.”

On May 13, the CoS approved the CBI being fully exempted. This was then okayed by the PM on June 7, 2011 and ratified by Parliament two months later.

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Sajib Nandi

Reported by Shyamlal Yadav in Indianexpress.com on January 15, 2014

CBI sought part RTI exemption, Govt gave it full | The Indian Express

 

Almost three years after the controversial decision to exempt the CBI from the purview of the Right To Information Act, it has come to light that the Solicitor-General and the investigating agency itself wanted only partial immunity from the transparency law, but got total exemption from the UPA government.

 

The government felt that exempting the premier investigating agency only partially would lead to other bodies asking for the same, and this push for full exemption was strongly backed by the Prime Minister’s Office, according to file notings and official records accessed by The Indian Express.

 

The documents show that the CBI hesitatingly began its campaign to step out of the transparency regime in July 2010 with the Central Vigilance Commission recommending that only the agency’s special unit — which deals with collection of intelligence — be exempted from the RTI Act just as in the case of other intelligence agencies.

 

In its follow-up request filed with the Department of Personnel and Training on February 14, 2011, the agency mentioned that departments related to administration, personnel, accounts/finance, budget and training remain open to disclosures under the RTI Act.

 

This partial exemption formula was backed by the then Solicitor-General Gopal Subramanium. “I am, however, not convinced that all aspects of the organisation of the CBI must be given exemption,” he wrote in his 23-page opinion, adding that a “qualification” be added so that the above-mentioned five departments are retained under the RTI Act.

 

However, the DoPT said this was not feasible and its joint secretary Rajeev Kapoor backed the CBI’s original proposal of keeping only its intelligence gathering Special Unit out of the RTI Act.

 

Subsequently though, even this proposal fell out of favour. A DoPT note of April 2011 signed by its Secretary Alka Sirohi said that “partial exemption may not serve the purpose…according to the CBI they are in favour of full exemption”.

 

This note also recorded the anxiety of the PMO to exempt the CBI from the RTI Act.

 

“It may also be noted that PMO had also sent us a note sent by Hon’ble Minister of Law to Hon’ble Prime Minister where in the Law Minister had indicated that it has been decided to include CBI in the second schedule of RTI Act 2005..’’

 

The second schedule of the law exempts agencies from making disclosures as long as the information sought does not involve allegations of corruption or human rights violations.

 

On April 25, 2011, at a meeting of the Committee of Secretaries – chaired by the Cabinet Secretary and attended by M N Prasad, secretary in the PMO – the government pushed its argument that partially exempting the CBI from the RTI Act could open a Pandora’s box.

 

“Making such a dispensation in the case of CBI may lead to demands for similar qualification to be made in the second schedule in respect of other organizations which may not be feasible in view of the nature of their working,” the minutes of the meeting said.

 

It also said that the proposal for “partial exemption” needed “re-examination” and that “the DoPT would resubmit the proposal after seeking fresh legal opinion”.

 

This fresh legal opinion was sought from Attorney-General Goolam E Vahanvati. In his opinion dated May 9, 2011, Vahanvati said that partial relief for the CBI “will render the whole process of exemption nugatory…”

 

“A qualified exemption will have serious consequences with respect to other intelligence/security organisations already notified. Such a truncated exemption in the case of one agency may lead to serious questions being asked as to why other agencies specified in the second schedule may not be similarly placed, something which is not at all justifiable or feasible. Such an approach, in my opinion will render the whole process of exemption nugatory,” he said.

 

A note written on the same day by S K Sarkar, then additional secretary, DoPT, indicates the PMO was stressing on the CBI being fully exempted.

 

“M N Prasad, secretary to PM called me twice today to convey that the Law Ministry is obtaining the advice of the Ld. AG on the basis of reference from DoPT on the above subject,” Sarkar wrote.

 

Again, on the covering letter of Vahanvati’s advice dated May 10, 2011, Sarkar noted: “Secretary to PM (MN Prasad) rang me today to say that the meeting of CoS (Committee of Secretaries) be convened on May 13, 2011 and he be invited. Shri Prasad, I was told, also spoke to Cabinet Secretary today on the subject.”

 

On May 13, the CoS approved the CBI being fully exempted. This was then okayed by the PM on June 7, 2011 and ratified by Parliament two months later.

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karira

CBI should be under the purview of RTI Act: Gopalkrishna Gandhi

Delivering his keynote lecture to mark the CBI’s 50-year celebrations, former West Bengal governor Gopalkrishna Gandhi, who was the guest speaker, rebuked the agency for being the government’s alleged ‘department of dirty tricks’ instead of being honesty’s ally.

Warning against the menace of corporate greed and black money as a parallel economy, Gandhi also described business group Reliance as an alleged parallel state.

 

“The CBI has a very mixed image. Not all of it is flattering. It is seen as government’s hatchet, rather than honesty’s ally. It is often called DDT- meaning not dichloro-diphenyl-trichloroethane, the colourless, tasteless, odourless insecticide it should be, but the department of dirty tricks,” Gandhi said at the 15th DP Kohli Memorial Lecture titled “Eclipse at Noon: Shadows over India’s Conscience”.

 

Read more at: http://www.firstpost.com/india/to-remove-cbi-from-the-purview-of-rti-act-is-unwise-gopalkrishna-gandhi-1481585.html?utm_source=ref_article

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karira
Just received the copy of the WP to be filed by CBI in Delhi HC praying for quashing of the CIC order.

 

With the following decision of the Delhi High Court, the matter is now settled....and I should easily win my case on 07 Sep 2017 (next date of hearing) and hopefully also get my compensation of Rs. 153.

 

https://www.rtiindia.org/forum/172172-cic-ib-why-report-sanjiv-chaturvedi-not-post444946.html#post444946

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