Exemption no licence to be secretive

While passing the transparency law, the Central and the State governments have retained power to exempt any organisation. Pro-RTI sections have criticised this provision. It is aimed at protecting all sundry information generated by organisations like RAW or other intelligence agencies. Police or defence is not exempted.

The so-called ‘exempted’ public authorities should understand that ‘exemption under the Section 24 is not a licence to be secretive or silent on corrupt, unaccountable, non-transparent, ignoring all the legal guarantees of right to information under the RTI Act.

The exempted organisations are still liable to disclose voluntarily the information under Section 4, also answerable under other provisions of law, amenable to jurisdiction of Information Commissions and supposed to give permissible information subject to Sections 8 & 24, provided the information is not related to core areas of ‘security’ and ‘intelligence’

They cannot be. But in Manipur the state has exempted the police from the RTI. CBI is a police organisation established in Delhi. The Central government has notified CBI though it is not ‘security or intelligence agency.’ Any public authority which has information given by these exempted bodies also need not disclose that information under the RTI.

Section 24 is an anti-transparency section. It says: “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 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.

Similar provisions are made for state governments also. A State government also can notify that a particular organisation is exempted from purview of RTI Act. Even that organization has to give information pertaining to corruption and human rights violations.”

This means the organisations like Intelligence Bureau as specified in Second Schedule are exempted. The information furnished by such organisation to the government also cannot be given as per the last part of section 24(1). However, the first proviso specifically exempts the information pertaining to the allegation of corruption and human rights violation.

The Central Information Commission has power and authority to approve/disapprove to provide the information if the information sought for is in respect of allegation of violation of human right. If Central Information Commission approves the information, it shall be given within 45 days from the date of receipt of request notwithstanding anything contained in the Section 7.

The information pertaining to allegations of corruption and human rights violations shall not be excluded. Even IB has to give such information. But the expression ‘pertaining to the allegations of corruption and human rights violations’ is not defined anywhere. For understanding this expression, one needs to study the High Court decisions on this section.

In Hon’ble Delhi High Court in W.P (C) No. 7453 of 2011 dated 09.10.2013 between Union of India and Adarsh Sharma, Dr Vijay Kumar Vyas sought to know certain details of a doctor who left the country and died abroad. His RTI applications were transferred to the Intelligence Bureau which denied, saying they are exempted by the Section 24.

In second appeal, the CIC stated that present case squarely attracts the Proviso (I) to Section 24 (1) of the RTI Act, the information sought pertains to allegation of corruption and directed the IB to provide information.

The Delhi High Court held that information sought was neither related to corruption nor human rights violation and set aside the order of CIC. However, the Judge said, “if information of the nature sought by the respondent is easily available with the Intelligence Bureau, the agency would be well-advised in assisting a citizen, by providing such information, despite the fact that it cannot be accessed as a matter of right under the provisions of Right to Information Act.”

Based on this judgment, some exempted public authorities have contended that it was their discretion not the right of appellant to seek information.

The so-called ‘exempted’ public authorities should understand that ‘exemption under the Section 24 is not a licence to be secretive or silent on corrupt, unaccountable, non-transparent, ignoring all the legal guarantees of right to information under the RTI Act.

The exempted organisations are still liable to disclose voluntarily the information under Section 4, also answerable under other provisions of law, amenable to jurisdiction of Information Commissions and supposed to give permissible information subject to Sections 8 & 24, provided the information is not related to core areas of ‘security’ and ‘intelligence’. This has been explained by various High Courts:

A Division Bench of Punjab & Haryana Court has explained that if information sought is ‘pertaining to allegation of corruption” even exempted organisation has to give that information. Dismissing the LPA 744 and 755 of 2011, First Appellate Authority and Addl DGP v CSIC, Haryana, the bench of Hemant Gupta, AN Jindal, JJ, stated that in the absence of any statutory definition, the ordinary meaning has to be applied. It includes within its meaning many colours and shades of corruption.

There cannot be any exhaustive definition that what are the allegations pertaining to corruption. Bench explained: The Act is to step-in-aid to establish the society governed by law in which corruption has no place. The Act envisages a transparent public office.

Therefore, even in organisations which are exempt from the provisions of the Act, still information which relates to corruption or the information cannot be denied for the reasons that the organisation is exempted under the Act.. The information sought in the present case is about the number of vacancies which have fallen to the share of the specified category and whether such posts have been filled up from amongst the eligible candidates.

If such information is disclosed, it will lead to transparent administration which is anti-thesis of corruption. If organisation has nothing to hide or to cover a corrupt practice, the information should be made available. …The information sought may help in dispelling favoritism, nepotism or arbitrariness. Such information is necessary for establishing the transparent administration.

If information is not concerning security and intelligence, the organisation has to share. In an earlier case FAA, Addl DGP CID of Haryana v CIC CWP No. 12904/2009 decided by Mehinder Singh Sullur J on 27th Jan 2011, it was explained that all information sought not concerned with security and intelligence shall be given.

Justice Sullur said: A combined reading of these provisions would reveal, only that information is exempted, which is directly effecting and co-related to the “Intelligence” and “Security” of that organization of the State and not otherwise.

The Judge said: “The information sought is general in nature, such as number of posts, occupied, vacant and adjusted between 1989-2003 of ASI/SI and Inspector. Applicant has also sought the copy of inquiry report of complaint sent to Additional Director General of Police of Criminal Investigation Department which related to corruption and human rights violation by the recruitment agency.

Taking the nature of the information sought into focus, the argument of State counsel that the information cannot be supplied in view of the notification, pales into insignificant, particularly, when such information pertaining to allegations of corruption and human rights violation are not otherwise covered under the exemption clause of Section 24(4) of the Act as urged on behalf of the petitioners.”

From these two decisions, it is clear that the exempted organisations have to provide information which can be useful in preventing corruption. In these two cases, the information sought was about vacancies and action on a complaint.