Govt fights its whistle blower

Govt fights its whistle blower

By Madabhushi Sridhar | THE HANS INDIA |   Aug 29,2017 , 02:46 AM IST

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A whistle blower IFS officer Sanjiv Chaturvedi sought a copy of the IB (Intelligence Bureau) report clearing his name in some false cases foisted by corrupt netas, whose corruption he exposed. The IB objected to the Ministry of Environment sharing that report, contending that it was exempted under Section 24 of the RTI Act.

When the CIC directed disclosure, surprisingly the IB decided to fight the officer of the government whom it found to be vindictively harassed by corrupt state of Haryana before Delhi High Court. Can they misuse public money and harass an honest officer? Does it not amount to supporting corrupt officers?

This writ petition is another example of irrational use of power. The Delhi High Court found no infirmity in any angle with the view taken by CIC and dismissed the appeal of IB.   The court quoted the following findings of CIC:

a) It is factually proved that appellant was put to extreme hardship by the corrupt political rulers and corrupt public servants in retaliation of his unstinted Implementation of rule of law.
b) The gist of IB report as furnished by IB in response to the RTI request of appellant in this case shows that its disclosure could cause no harm to core activity of security or intelligence of IB.
c) Section 24 of RTI Act does not authorise the public authorities exempted under this section to block entire Information held by it or generated and given to other public authorities en bloc, but its exclusion from disclosure is limited to that which pertains to core functioning of ‘security’ and ‘intelligence' aspect of exempted organisation.
d) The IB report sought by the appellant is not the information excluded from purview of disclosure by RTI Act.
e) The IB report is information as per Section 2(f) held by MoEF and also information pertaining to the allegation of corruption or human rights violation as per Section 24 second proviso and hence a certified copy of the same shall be given to the appellant.
f) The public authorities exempted under S. 24 cannot use it to stonewall all RTI requests indiscriminately. The IB has a statutory duty to make all arrangements to provide the information other than that concerning ‘security’ and ‘Intelligence’ if it pertains to corruption or human rights violation, or useful to prevent corruption or human rights violation either under voluntary disclosure clauses or other provisions of RTI Act.”

The IB relied on the judgment dated 09.10.2013 in WP(C) 7453/2011 Union of India & ors, vs Adarsh Sharma to contend that the exception carved out from the exemption would be applicable in case the allegation of corruption and the human rights violation was with regard to the Intelligence Bureau. Further, reliance is placed on the decision of the Supreme Court in the case of S. Sundaram Pillai & Ors vs V R Pattabiraman & ors.: 1985 SCC 591 to contend that a proviso cannot be interpreted as a general rule that has been provided for nor can it be interpreted in a manner that would nullify the enactment or to take away in entirety a right that has been conferred.

Further, that a Court has no power to add or subtract even a single interpretation to legislation. Justice Sachdeva held: “The interpretation as rendered above, does not nullify the enactment or take away a right in entirety. In fact, the right to obtain information, conferred by the Act, is taken away by the exclusion in Section 24 of the Act. The proviso carves out an exception to the exclusion clause and further brings the information within the ambit of the Act. The proviso is in line with the very object of the Act. (Paras 32)”

Analysing Section 24 (1), the Judge said: “it inter alia make the Act inapplicable to intelligence and security organisations, established by the Central Government, specified in the Second Schedule and further excludes any information furnished by such organisations to the Central government from being liable to be disclosed. However, an exception is carved out to the exclusion clause with respect to information covered by the proviso. The proviso stipulates that if the information pertains to allegations of corruption and human rights violations, it shall not be excluded under this sub-section. 

A distinction is drawn by the proviso between intelligence and security organisations and the information furnished by such organisation to the Central government. The exception carved out by the proviso to the exclusion clause is only with regard to the information and not with regard to the intelligence and security organisations.

The plain reading of the proviso shows that the exclusion is applicable with regard to any information. The term, “any information,” would include within its ambit all kinds of information. The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organisations. If the information sought, furnished by the exempt intelligence and security organisations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause.”

The proviso, “Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section” has to be read in the light of the preceding phrase, “or any information furnished by such organisations to that government.”  When read together, the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human rights violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not.” (Paragraphs 27-31)

A Division Bench of the Madras High Court in Superintendent of Police, Central Range, Office of Directorate of Vigilance and Anti-Corruption versus R Karthikeyan,  AIR 2012 Mad 84 has very aptly culled out the necessity and the object for enactment of the Act in the following manner:

“8. ……. Right to information is basic to any democracy. A vibrant citizenry is a pre-requisite for survival of democratic society and governance. … Information, more than any other element, is of critical importance in a participatory democracy.
 
9. The Right to Information Act is a rights-based enactment more akin to any other enactments safeguarding fundamental rights. …...

11. Though the Indian Constitution has no express provision guaranteeing the right to information, it has been recognised by the Courts in a plethora of cases as implicit in Article 19(1)(a), which guarantees to all citizens the right to free speech and expression, and Article 21 of the Constitution which guarantees the right to life in accordance with due process to all citizens.

Later, the DHC referred to a finding of CIC that the gist of IB report as furnished by the IB in response to the RTI request of appellant shows that its disclosure could cause no harm to core activity of security or intelligence of IB. The IB report is information as per Section 2(f) held by MoEF and the information pertains to allegation of corruption and human rights violation.  (Para 34)

The court drew comparison with the judgment in the case of Adarsh Sharma that was relied upon by the petitioner to say that it has no applicability in the facts of the present case. The Court in that case was dealing with information sought, concerning one doctor from the Ministry of Home Affairs. The information sought was about the date of last departure of the doctor from India, the destination, airlines and the passport number. The application was transferred by the CPIO, Ministry of Home Affairs, to the Intelligence Bureau. The Intelligence Bureau claimed exemption under Section 24 of the Act.

The information sought for pertained to the Immigration Department of the Intelligence Bureau. Since the information was not related to the allegations of corruption or human rights violation, learned Single Judge held that the said information did not come within the purview of the exceptions carved out by the proviso to Section 24 of the Act. It is, in these circumstances, that the directions of the CIC, directing supply of information, were quashed.

Finally, it was held: “Clearly, the information sought by the respondent falls in the category of being exempt from the exclusion clause and is liable to be supplied (Para 35). In view of the above, looked at from any angle, there is no infirmity with the view taken by the CIC by the impugned order dated 21.04.2016. [Based on Delhi High Court Judgment in IB vs Sanjiv Chaturvedi, in W.P.(C) 5521/2016, 23rd August 2017 confirming order of CIC Sridhar Acharyulu, dated 21.4.2016]

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