CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/00182 dated 24-2-2009
Right to Information Act 2005 – Section 19
Appellant:
Brig. Ujjal Dasgupta
Respondent:
Cabinet Secretariat.
FACTS
1. By an application of 29-10-2008 Brig. Ujjal Dasgupta now lodged in Tihar
Jail applied to the CPIO, RTI Cell, Cabinet Secretariat seeking the following
information:
“a.
Please provide Para/sub Para wise replies to the
following queries along with certified copies of documents
sought, in regard to the replies given by you vide D2 and
D4, and reproduced at Paras 7 & 8 above.
17. Q (ii) and Ans (ii)- Access to Anveshak Software.
(a)
Uninstalled software:- Were the CDs/ other magnetic
media containing the uninstalled Anveshak Software
handed over by C-DAC to Director (Computers)/
computer Cell? If yes, please provide certified copies of
the following:(i)
Receipt given by Computer Cell of R&AW to C-DAC for
the same/-receipted copy of the issue voucher under
which the software was handed over.
(h)
Extract of ledger entry of relevant ledger showing the
Anveshak Software having been letter on change of
Computer Cell of R&AW.
(b)
(i)
(ii)
If no, please specify so.
Installed software.
has any computer dedicated for independent use of
Director (Computers) in any of the user branches where
Anveshak was installed? If yes, has an exclusive user ID
and password allotted to him to enable such independent
access? If no, please specify so.
Was Director (Computer) allowed access to any user’s
computer in any branch where Anveshak was in use,
independent of the actual user? If yes, was the user ID
and password of such computer used for accessing the
Anveshak database made available to him toper5mit
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such access independent of the actual user?
please specify so.
18.
a.
b.
c.
d.
e.
f.
19.
(a)
(b)
If no,
Q. (iii) and Ans (iii)- Taking the Anveshak Software or its
populated contents outside the office.
As clarified in your Ans (iv), Anveshak relates to a
database management system used for storage and
retrieval of data. The database is an intrinsic part of the
software, that being so, can any of the data populating
the Anveshak database he accessed accept though the
Anveshak software?
Was the Anveshak software present on the office laptop
as per the recovery made from me and forwarded to you
vide Annexure A to D1? If yes, was the software
complete and functional? If no, please supply so.
Was the Anveshak software present on the residence
computer as per the recovery made from me and
forwarded to you vide Annexure A to D1? If yes, was the
software complete and functional? If no, please specify
so.
Were any populated contents of Anveshak database
present on the office laptop as per the recovery made
from me and forwarded to you vide Annexure A to D1? If
yes, please list out these documents that were found, if
no, please specify so.
Were any populated contents of Anveshak database
present on the residence computer as per the recovery
made from me and forwarded to you vide Annexure A to
D1? If yes, please list out these documents that were
found? If no, please specify so.
If the answer to question at sub paras (b) to (e) above are
in the negative, there was the Answer (iii) given by you
specific only to the Q (iii) asked by special cell and
unrelated to the recoveries made from me and forwarded
to you vide Annexure A to D1?
A (iv) and Ans (iv)- Connection of Anveshak to Defence
Matters.
Does the recovery made from me and forwarded to
R&AW vide Annexure A to D1 substantiate that sensitive
data pertaining to security or defence matters of the
country was present on the office laptop? If yes, please
provide a list of such document. If No, please specify so.
Does the recovery made from me and forwarded to
R&AW vide Annexure A to D1 substantiate that sensitive
data pertaining to security or defence matters of the
2
(c)
20.
(a)
(b)
country was present on any residence computer? If yes,
please provide a list of such documents. If No, please
specify so.
If the answers to the questions at sub paras (a) & (b)
above one in the negative then Ans (iv) given by you
specific only to the Question (iv) and unrelated to the
recoveries made from me and forwarded to R&AW vide
Annexure A to D1?
Q (vi) and Ans (vi)- Connecting to the Internet
Connection.
Does the recovery made from me and forwarded to
R&AW vide Annexure A to D1 substantiate that the
software or populated contents of Project Anveshak were
sent out from the desktop PC of the undersigned over an
insecure internet connection? If yes, please provide
details of what was sent out and when, if no please
specify so.
Does the recovery made from me and forwarded to
R&AW vide Annexure A to D1 substantiate that the
software or populated contents of Project Anveshak were
sent out from the office laptop of the undersigned over an
insecure internet connection? If yes, please provide
details of what was sent out and when. If No, please
specify so.
Point for Consideration
21.
It will be apparent from all above that special cell has
provided printouts of some recoveries made from the
office Laptop, but they have asked ‘comments’ from
R&AW to some general questions without any reference
to these recoveries, and unrelated to the said recoveries.
While R&AW may have given straight forward answers to
each specific question, special cell has taken advantage
of the fact that R&AW has not clarified whether the
answers given by them are substantiate by the recoveries
made from me or otherwise.
22.
The relevant Para in the Charge sheet (at Appx ‘E’)
states that the recoveries made from my residence
computer and office laptop were sent to R&AW for
opinion, and the reproduces the answers given by
R&AW. This gives the impression that the replies given
by R&AW are borne out by the recoveries made from me.
High Court in its order (at Appx F) has drawn reference to
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the opinion given by R&AW as being the basis for
deciding not to grant me bail.
23.
R&AW has already gone on record to the media to assent
that I have done nothing wrong and that they have no
evidence to present to support the government’s case.
Front page article in Hindustan Times of 27th may, 2007
titled ‘Man of Honour or Super Spies?” attached at Appx
G refers. Your reply to this RTI application will help to
cheer the factual portion and get justice in a count of law.
Period of which Information sought
24.
June 2006 to October, 2006.”
2. In the opening of this request Brig. Ujjal Dasgupta has referred to subSection (1) of Section 24 of the RTI Act with a view to contesting the
applicability of this Section of the Act in this case. He has also stated that the
information sought is not exempt from disclosure under sub-Sections (a) (b)
and (h) of Section 8 (1) of the RTI Act. In response to this application CPIO
Smt. Sumati Kumar, Director, Cabinet Secretariat has in her response of 1911-08 simply stated that sub-Section (1) of Section 24 is applicable since the
information concerns Research & Analysis Wing (R&AW) and that it is also
exempt under sub-Section (h) of Section 8 (1). Clearly Ms. Sumati Kumar
had applied her mind not at all to the contentions made in the application of
appellant Brig. Ujjal Dasgupta.
Consequently, Brig. Dasgupta moved an
appeal on 11-12-08 before Shri Ashok Kapur, Addl. Secretary (SR) and
Appellate Authority, Cabinet Secretariat with the following prayer:
“The Cabinet Secretariat may be directed to provide the
information requested. The information may be provided within
48 hours since it concerns the liberty of the applicant.”
3. Brig. Ujjal Dasgupta has based this prayer on the following grounds:
“(a)
(b)
The Cabinet Secretariat is not in the list of organisation
exempted in Section 24 of the RTI Act. In her reply, the
CPIO has stated that the R&AW is exempted (NOT that
Cabinet Secretariat is exempted). The reply of the CPIO
is misleading and amounts to refusal of information.
Further, as the CPIO has herself stated, the exemption
does not apply in cases of corruption and human rights
4
(c)
(d)
4.
violation. It is relevant that I am incarcerated in Tihar Jail
for over two years four months 1 . The trial is yet to begin
and even the charges have not been framed as yet. This
is clear violation of human rights.
I have been denied by the High Court based on a letter
written by R&AW (Appendix D of Annexure 1). The
refusal of the Cabinet Secretariat to provide the
information will prolong my incarceration indefinitely,
further violating any human rights.
There is no provision in the RTI Act for denial of
information concerning matters that are sub-judice.”
To this Brig. Ujjal Dasgupta received an interim response on 18-12-06
in which Shri Ashok Kapur stated that he is processing the appeal and has
called for further information. However, subsequently in a detailed reasoned
order of 14-1-2009 Shri Ashok Kapur has dismissed the appeal as below:
“On examination of material placed on record and the grounds
raised by you in your appeal, I am of the view that your
application under the RTI Act, 2005 has rightly been rejected by
the CPIO. It may also be mentioned that apart from the findings
recorded by the CPIO, I have independently applied my mind
and have come to the conclusion that your application dated
29.10.2008 cannot be allowed given the facts and
circumstances of the present case. Therefore, the present
appeal stands disposed off accordingly.”
5. This has brought Brig. Dasgupta to his second appeal before us with the
following prayer:
“R&AW may be directed to provide the information sought
by me vide my application No. UD/RTI/ 21 of 29 October,
2008.
R&AW may be asked to explain the reasons for delaying
action on my application to the CPIO and also on my appeal
to the First Appellate Authority.”
6. In response to our appeal notice CPIO Ms. Sumati Kumar, Director,
Cabinet Secretariat in her letter of 4-5-09 has submitted as follows:
“It is submitted that the appellant, is in judicial custody in
pursuance to the registration of a criminal case against him. His
bail application was rejected by the Trial Court and as well as
1
Underlined by us as pivotal to the argument
5
the Hon’ble High Court of Delhi. The averments made in this
paragraph are beyond the scope of provisions of RTI and
therefore no comments are being offered regarding his trial
which is pending in the Court of Law.”
She has specifically contested the plea of Human Rights. Since it is
her contention that the custody of the appellant is in accordance with the law,
the Brigadier cannot claim violation of human rights on account of his
detention in Tihar Jail. On this ground she has submitted as follows:
“2.
That the perusal of the grounds of appeal before this
Hon’ble Commission, go to show that the main grievance
of the appellant is his continued detention in the jail. In
this regard it is submitted that the documents and the
material, which were seized by the investigating agency,
during the investigation of the crime, is part of the judicial
record in the criminal trial. The documents, which have
been relied upon by the investigating agency have
already been supplied to the appellant/ accused in terms
of Section 207 of the Cr. P. C. In any event, if the
appellant is aggrieved by non-supply of any material/
document that the prosecution wishes to rely upon during
the trial of the case, the appellant/ accused, is at liberty to
make an appropriate application before the trial court for
getting such material/ document in accordance with law.
3.
That Section 8 (h) of the RTI Act, 2005 also exempts from
disclosure of such information that would impede the
process of investigation or apprehension or prosecution
of offenders. As already submitted above that the entire
case is being prosecuted by the Special cell of Delhi
Police and the charge sheet in terms of Section 173 Cr.
P.C has already been filed in the competent court of law,
the scope of the present appeal will have to be examined
in the light of this background.
4.
That it is the admitted case of the appellant that the
information which has been sought by him or the charge
against him is based on violation of the provisions of The
Official Secrets Act, 1923 read with other provisions of
Indian Penal Code, and the trial court is seized of the
matter. Apart from this, the functioning of “Database
Management System” of R&AW is connected with the
security and defence matters of the country and therefore
the provisions of the RTI Act, 2005 are not made
6
applicable to certain organizations, in terms of Section 24
of the Act, read with second Schedule.”
7. A copy of this response was delivered personally to the appellant on 4-509. We have received a representation dated 29-4-09 from CPIO Ms. Sumati
Kumar, Director, Cabinet Secretariat requesting adjournment and from
appellant Brig. Ujjal Dasgupta on 1-5-09 for personal appearance rather than
videoconference as originally planned. The appeal was then heard in Tihar
Jail on 6-5-09 with the following present:
Appellant
Brig (Retd) Ujjal Dasgupta.
Shri Venkatesh Nayak, assisting appellant.
Ms. Namrata Yadav.
“
Ms. Bharati Dasgupta.
“
Respondents
Ms. Sumati Kumar, Director & CPIO, Cabinet Secretariat.
Shri Sudhir Walia, Advocate.
Shri V. K. Singh, Director.
8. Appellant Brig. Ujjal Dasgupta submitted that this was a “cooked up” case
in support of which he submitted a copy of a news report published in the
Hindustan Times on 27-5-2007, a copy of which he has submitted to us with
his appeal, which has never been rebutted. According to this report headlined
“Men of honour or super spies?” HT has spoken separately to NSCS and
R&AW officials, as well as a highly placed American official, and all concur
that the three are not guilty of espionage.
8. Brig. Ujjal Dasgupta specifically invited our attention to Para 16 of his
appeal to us, which reads as follows:
“It is also relevant that my application to the CPIO at Annexure 1
was responded by an interim reply from the CPIO vide letter No.
18 (29)/2008-EA-II-RTI-314 dated 03rd November, 2008 (copy at
Annexure 2), telling me that the request information had been
called from the concerned office and advising me to await a
further communication in this regard. Sixteen days later she
sent the rejection letter at Annexure 3 dated 19th November,
2008. In a report of the same procedure, my appeal to the First
Appellate Authority (Annexure 4) dated and speed posted on
7
11th December 2008 was responded by an identically worded
interim reply vide his letter No. 18 (34)/2008-RA-II-RTI-368
dated 18th December, 2008 (copy at Annexure 5) advising me to
wait since the information had been called from the concerned
office, followed 27 days later by the rejection letter at Annexure
14 January, 2009. In both cases, the response has not been
given written the specified time as give at Sec 7 (1) of the RTI
Act. Such interim replies can to circumvent the stipulation of 48
hrs for providing information where the queries concern the
liberty of the applicant.”
9. In this context he also invited our attention to a letter of 14-9-06 from the
Assistant Commissioner of Police, Special Cell to the Secretary (R) Cabinet
Secretariat in which ACP, Special Cell has submitted as follows regarding
questions pertaining to Anveshak:
“3.
Examination of Dasgupta’s office Laptop found presence
of a keyword Anveshak in unused cluster area and slack
area of the hard disk with some information (print outs
enclosed as Annexure ‘D’). As per the portion recovered
from the hard disk Anveshak system appears to be a
sensitive project, which has been developed by CDAC,
Pune for exclusive use of Cabinet Secretariat.
4.
When a similar exercise was carried out on the hard disk
of residence computer of Brig (Retd) Ujjal Dasgupta,
keyword Anveshak was found occurring at many places
in unused cluster area of the hard disk including file
names such as ‘Anveshak detail exe’, Project Anveshak
Revised ppt’, Project Anveshak Revised Link. A file
‘Project Anveshak.ppt’, was also found on the residential
PC but had been overwritten with a song. In both these
cases, technical exami9ntion suggests that these
‘Anveshak’ related files might have been accessed from a
removable media. In this regard, comments on the
following points may please be provided.
(i)
Whether ‘Anveshak’ is/ was in use in Cabinet
Secretariat? If so, whether it is a classified
project? It becomes all the more relevant in view
of the fact that similar name files were found
accessed and deleted both at residential PC as
well as office. Laptop and Ujjal Dasgupta during
his interrogation has categorically denied being
privy to any classified software.
8
(ii)
(iii)
(iv)
(v)
(vi)
If ‘Anveshak’ is a classified project then whether
Ujjal Dasgupta was having authorization to access
software developed under Project Anveshak or
Anveshak?
Whether Ujjal Dasgupta was at any point of time
allowed to take the Software or its populated
contents outside office?
Whether disclosure of the Project or Project details
directly or indirectly connected with the security or
defence matters of the country?
Whether the information/ contents of this Project, if
passed on to an unauthorised person or any
foreign agents, can be used for a purpose
prejudicial to safety or interests of the State or is
likely to affect sovereignty and integrity of India,
the security of the State or friendly relations with
foreign states?
Whether Ujjal Dasgupta was authorized to connect
his office desktop PC or laptop to an insecure
Internet connection?”
10. He also referred to a memorandum of 25-9-06 of R&AW from Shri R.K.
Chaudhry, Sr. Field Officer to Shri Sajjan Singh, Investigation Officer, Delhi
Police in which Shri R.K. Chaudhry has affirmed as follows:
“(iii)
Yes, Shri Dasgupta had the authorization to access
software developed under Anveshak.”
11. Besides the above, he has referred also to a memorandum of 16-10-06
from the same Shri R.K. Chaudhry to Shri Sajjan Singh, IO in which it is
clearly stated as below:
“The Anveshak project or its project details are not directly
connected with the security or defence matters of the country.
However, since it relates to a database management system
used for storage and retrieval of sensitive data collected by the
R&AW on such issues, it may be construed as being indirectly
connected with the security or defence matters of the country.”
12. With this letter is attached an Annexure i.e. charge sheet which states as
below:
“Documents/ information relating to “Project Anveshak”
recovered from the house Computer and Laptop computer of
accused Ujjal Dasgupta were sent to Cabinet Secretariat
9
(R&AW) for opinion on classification and authorization of
possession.
R&AW categorically opined that Project
“Anveshak” is a classified project, Ujjal Dasgupta had access to
the software developed under this project. Ujjal Dasgupta was
not allowed to take the software or its populated contents
outside the office. He was also not allowed to connect his
official Laptop computer of PC Computer to an Internet
connection. The Project is related to the security or defence
matters of the country and if the project or its details were
passed on to an unauthorized person or foreign agent, it could
be prejudicial to the safety or interest of the State.”
13. Shri Sudhir Walia, learned Counsel for respondent submitted that this is a
case concerning R&AW and therefore, clearly falls outside the jurisdiction of
RTI Act as, contrary to the claim of appellant Brig. Dasgupta, this cannot
constitute an allegation of human rights violation since it relates to an arrest
made under the law. In this context he cited a decision of the High Court of
Delhi in “Crl: M. C. 1255/2008 and Crl. M. A. 4760/2008, Decided on :
25.4.2008-- Appellant: Ujjal Dasgupta Vs. Respondent: State”. This case is
still pending before Shri S. Murali Dhar J. and bail has been refused. The
matter being before the trial court, the RTI Act cannot be used to circumvent
the processes of law already in operation.
14. Since it is apparent that this matter has also been investigated by the
press, we enquired from Shri Manoj Joshi Editor, Mail Today regarding his
findings. He has in an e-mail of 20.5.’09 submitted as follows:
“Most of what I have is from the charge sheet and talking to
NSCS people on background. But the following is also in my
notes though I do not have a copy of the letter itself:
R.K. Chaudhury, Senior Field Officer wrote to the Investigating
Officer ( I think Sajjan Singh of the Special Cell) on October 16,
2006 from 7, Bikaner House office, that “The Anveshak project
or its project details are not directly connected with the security
of the country or defence matters of the country.”
He said that it related to a database management system used
for storage and went on to add that “it may be construed as
being indirectly connected [to the country’s security.]”
10
15. Although earlier appellant’s contention was that Cabinet Secretariat which
in itself is not listed in the Second Schedule held the information, it is now
admitted that the information sought is held by R&AW, which is admittedly a
wing of the Cabinet Secretariat, but is listed at No. 2 `of the Second Schedule.
The key issue before us is whether the continued detention of Brig. Dasgupta
amounts to an allegation of human rights violation on the ground that there is
no case against him. This Commission has had occasion in another case
concerning appellant Brig. Ujjal Dasgupta and Centre for Development of
Advanced Computing, in which the Commission in its order of 4-5-09 to rule in
favour of appellant Brig. Ujjal Dasgupta. That case also concerned
“information with respect to the ANVESHAK software developed for R&AW by
CDAC, Pune” In that case, however, the public authority from whom the
information was sought was well within the pale of RTI Act 2005.
16. In this case, therefore, we must satisfy ourselves that this case indeed
amounts or does not amount to an allegation of human rights violation
meriting disclosure as per proviso to sub sec. (1) of Sec. 24 of the R.T.I. Act.
The issues are two :
1. The applicability of the above proviso to this case.
2. If applicable, what is the procedure to be followed in such cases by this
Commission?
17. For a decision on this the matter was referred to a full Bench consisting of
the following:
1.
Chief Information Commissioner Shri Wajahat Habibullah
2.
Information Commission Shri M. L. Sharma
3.
Information Commissioner Ms. Annapurna Dixit
4.
Information Commissioner Shri Satyender Mishra
5.
Information Commissioner Shri M. M. Ansari
11
18. The case was accordingly heard through videoconference on 16,6.009.
The following are present:
On behalf of the Appellants
(at CIC Studio)
Shri Shekhar Singh
Ms. Bandana Malhotra
(at Tihar)
Brig. (Retd.) Ujjal Dasgupta
On behalf of the Respondents (at CIC Studio):
Shri Ravi Mathur, Joint Secretary
Shri Sudhir Walia, Advocate
Shri Rajnish Kumar, Director.
19.
On the request of Shri Shekhar Singh who was assisting the appellant
Shri Sudhir Walia learned Counsel for respondent reiterated his argument in
which he emphasised the fact that under Section 207 Cr. P.C. all documents
issued against the accused have to be provided to him. Appellant Brig. Ujjal
Dasgupta on the other hand submitted that he had not sought any document
but only the information whether answers related to his case were related to
recovery or simply general answers. Shri Shekhar Singh submitted written
arguments in which he submitted that it was not required that a violation of
human rights be established to invoke proviso to sub section 1 of Section 24
of the RTI Act 2005 but that only allegations of such violation be made, and
for this purpose the information sought required to have a relationship to such
an alleged violation.
20. In this context he specially emphasised the following:
“The point that the CPIO is making is that in her opinion his
continued incarceration is legitimate and therefore it is not a
violation of his human rights. But in saying this, she has herself
admitted that if it was illegitimate then it would have been a
violation of his human rights”.
21. In the context of the above it was decided that respondents would submit
a chart of questions asked and answers sought together with the clarification
of how the answer sought is not related to human rights violation and how
12
disclosure would violate exemption under Section 8 (1). Similarly, Shri
Shekhar Singh on behalf of the appellant will submit his written arguments as
to how if the information is disclosed it will in no way require invocation of
exemption u/s 8 (1).
22.
The Full Bench of the Commission heard the case on 29th July, 2009.
The following were present:
ON BEHALF OF THE APPELLANT:
1.
Brig (Retd) Ujjal Dasgupta
2.
Shri Shekhar Singh
3.
Smt. Bandana Malhotra
ON BEHALF OF THE RESPONDENT:
1.
Ms Sumati Kumar, Director & CPIO, Cabinet Secretariat
2.
Shri Rajnish Kumar, Director, Cabinet Secretariat
3.
Shri D. Bhargava, Dy. Secretary, Cabinet Secretariat
4.
Shri Sudhir Walia, Advocate
23. At the time of hearing, written submissions were filed by the appellant as
well as by the respondent Public Authority. The appellant confined his written
submission to the question of applicability of exemption under Section 8(1) of
the RTI Act and submitted as under:
(i)
(ii)
(iii)
(iv)
(v)
that the respondent Public Authority has not sought any
specific exemption other than mentioning that the
information, which the appellant has sought, is fully
protected and that any disclosure of the same would be
prejudicial to the security of the State.
that the provisions of Section 19(5) of the Act squarely
puts the onus of proof on the CPIO and as such the mere
statement that such and such exemption would apply is
not enough;
that queries listed in a tabular statement were not of such
a kind as reply thereto could compromise the security of
the country.
that of the 26 questions asked therein, 18 were asked for
a `yes’ or `no’ answer, which cannot attract any of the
exemptions under Section 8(1)(a);
that the other questions asked related to copy of receipt,
copy of relevant extract of a ledger, list of documents
recovered, if any, details and date of what was allegedly
sent out on an insecure internet connection. The same
13
(vi)
(vii)
(viii)
24.
cannot in any way attract any of the exemptions listed
under Section 8(1)(a).
that even though what were allegedly sent out on an
insecure internet connection concerned the names of files
or documents, that also cannot qualify for exemption
under Section 8(1)(a).
that since the information is alleged to have been sent out
over an insecure Internet connection, it would have
immediately lost any confidentiality value and would get
totally declassified. R&AW can have no objection to
providing the information that has already been sent out
over the Internet.
that there is an allegation that these matters have been
revealed by the appellant to unauthorized persons. It is
only reasonable to expect that the R&AW must have
done all that is necessary, in the last three years, to
ensure that the content of these documents are no longer
sensitive and that their revelation can no longer harm any
interests of the country.
In their written submissions, the respondent Cabinet Secretariat
submitted as under:
(i)
(ii)
(iii)
(iv)
(v)
that the information sought by the appellant cannot be
disclosed in view of the provisions of Section 24(1) read
with Second Schedule of the Right to Information Act,
2005;
that the information sought would also be covered by the
exemption provided under Section 8(1) of the RTI Act.
that at the relevant point in time, Brig. (Retd.) Ujjal
Dasgupta was the sole nodal officer from Cabinet
Secretariat, who was
in-charge of the Project
"Anveshak". He directly received the uninstalled
Anveshak Software from C-DAC being the Director
Computer Cell.
that in view of the provisions under section 24(i) of the
RTI Act, 2005 read with the Second Schedule of the Act
the documents sought in the paras under reply cannot be
provided as they are classified and providing of such
documents would reveal the internal functioning of the
Cabinet Secretariat and could be used by the state’s
adversaries thereby compromising the security of the
state.
that a dedicated computer for independent use by
Director (Computer) was provided where "Anveshak" was
installed. Insofar as allotment of an ID and password to
14
(vi)
(vii)
(viii)
the Director (Computer) are concerned, he himself was
the System Administrator enabling him independent
access.
that the applicant has sought similar information in the
matter, which is pending, before the Hon'ble High Court
of Delhi at Para 10(1) point (vi). The applicant has only
changed the language of the information, which he is
seeking before the Hon'ble Commission and before the
matter pending with the Hon'ble High Court of Delhi. In
any event it is submitted that, any disclosure of the mode
of operation like independent use, ID, password, etc.
would reveal the configuration and functioning of the
software. Such declassification would amount to
compromising the national interest and would be
prejudicial to the security of state. In this regard, it has
already been submitted herein above, that at the relevant
point of time, the applicant was Director (Computer), and
System Administrator thereby enabling him independent
and complete access to the Project "Anveshak".
that as per the charge sheets filed by the investigating
agency, before the competent court of law, the recoveries
were affected from the laptop of the applicant/accused
from his office as well as the hard disc drive of the
computer installed at his residence. As already submitted
above, the recoveries affected from the accused are part
of ongoing investigations, which are being carried out by
the Special Cell, Delhi Police. As per the information
received, the investigating agency has submitted two
reports regarding the investigations, before the Additional
Sessions Judge, Delhi, who is seized of the matter. It is
submitted that under section 207 Cr. PC, the accused is
entitled to the copy of the Police Report and other
documents which the prosecution wishes to rely upon
against the accused. The applicant/accused has already
exercised his right, by making a formal application for
seeking the documents, which the prosecution has relied
upon in its reports under section 173 Cr. PC. Thus, the
information sought in sub Para (b) to (e) of the Para
under reply, it would be appropriate, that the applicant
should approach the competent court of jurisdiction
where the criminal case is pending.
that since the questions relate to the investigation of the
case, the applicant ought to have taken appropriate steps
before the trial court, where the case is pending
adjudication.
15
(ix)
that the applicant has invoked the provisions of RTI Act,
2005, for seeking an opinion of the organisation, with
regard to the recoveries affected from him during the
investigation of the case. It is respectfully submitted that
the questions raised herein, do not fall within the ambit
and scope of the Act. In view of this factual position it is
not necessary to express any opinion on these queries,
especially in view of the fact that the trial of the case is
pending and the matter sub-judice.
25.
ISSUES FOR DETERMINATION:
I.
Whether the proviso to Section 24(1) of the RTI Act is applicable in this
case and, if so, what is the procedure to be followed in such cases by
the Commission?
II.
Whether the information asked for by the appellant is covered by any of
the clauses of Section 8(1) of the RTI Act?
DECISIONS & REASONS:
26.
Under the Protection of Human Rights Act, 1993, `human rights’ have
been defined to mean and include the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenant enforceable by courts in India.
The appellant has
stated that the information that he is seeking relates to his liberty and
continued detention in jail.
Prima facie, the information relates to human
rights. But the proviso to Section 24 of the RTI Act applies only when there
are allegations of human rights violations. It would be worthwhile to quote
Section 24(1) of the RTI Act, which reads as under:
“Sec.24:
(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:
16
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.”
27.
Presumption of innocence has been recognized to be a human right
and an accused, as has been observed by the Apex Court in Noor Aga Vs.
State of Punjab & ors [2008 (56) BLJR 2254]
“it is a trite law that
presumption of innocence being a human right cannot be thrown aside.”
However, the Hon’ble Apex court has recognized that this right has to be
applied subject to exceptions.
28.
It is an admitted fact that Research and Analysis Wing (RAW) is an
intelligence wing of the Government and has been listed at S. No. 2 in Second
Schedule of the RTI Act, 2005. The provisions of the RTI Act do not apply in
cases of exempted organizations unless the information sought pertains to the
allegations of corruption or human rights violation.
The Commission is,
therefore, required to determine as to whether the information asked for by
the appellant in this case pertains to allegation of human right’s violation.
29.
The appellant submitted and it was also argued during the course of
hearing that if the information asked for concerns violation of human rights of
a citizen, the proviso to Section 24 of the RTI Act would apply and the
Commission will have the jurisdiction to direct the concerned public authority
to disclose the information.
It has also been submitted on behalf of the
appellant that it is not necessary to prove violation of human rights and that an
averment which merely alleges violation of human rights would be good
enough for bringing the matter within the ambit of proviso to Section 24 of the
RTI Act, provided that the allegation is substantiated to concern human rights.
17
30.
The appellant has further stated that the information asked by him is
directly affecting his liberty and that the reply to the question asked by him is
directly causative of the bail being denied to him both in the trial court and the
High Court. Apparently, his detention is under the court orders. Admittedly,
the bail petitions have been rejected by the trial court and also by the High
Court. The question, therefore, arises as to whether questioning detention in
connection with a case and under the orders of a court can be termed as an
allegation of violation of human rights.
31.
A trial in a competent court of law does not take away human rights of
a citizen. In a country like ours, where supremacy of Rule of Law is deeply
embedded in the legal system, fairness in trial is a matter of presumption and
an accused gets a fair opportunity to defend himself. Detention, therefore,
under the orders of a court cannot be treated as violative of human rights.
From the above submissions of the parties, it appears that the appellant has
already moved the trial court for providing of copies of documents under
Section 207 of Cr.P.C. and it is for the concerned court to take a view in that
matter.
A decision from this Commission in this matter is, therefore, not
warranted.
32
The next issue that needs be determined is as to whether the
information can be held to be exempted under any of the clauses of Section
8(1) of the RTI Act. In the initial response, CPIO has denied the information on
the ground that the matter is sub-judice and still under trial in the Special
Sessions court, Patiala House, New Delhi on the charge brought by the Delhi
Police and that the charge sheet has already been submitted.
Even the
Appellate Authority in his order has stated that the information sought is
directly part of investigation and the investigating agency has already
submitted the charge sheet against the appellant in the competent court of
law and, therefore, the disclosure of information would impede the process of
investigation in terms of Section 8(1)(h) of the RTI Act. It has further been
stated by the Appellate Authority that the appellant has already invoked the
18
provisions of Section 207 of the Cr.P.C. and has claimed certain documents
proceedings of which are pending in the court.
33.
In their written submission, the respondent Public Authority has also
emphasized this issue and averred that the information relates to prosecution
and that any disclosure at this stage would adversely affect the prosecution of
the appellant.
34.
The respondent Public Authority has also claimed that the disclosure of
information will prejudicially affect the national interest and security of the
State.
The grounds taken by the respondent Public Authority claiming
exemption is covered by Section 8(1)(a) which reads as under:
“Sec.8
(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;”
35.
The appellant on the other hand has disputed the grounds taken by the
respondent Public Authority.
It is not for the Commission, however, to
determine as to whether the disclosure of information will adversely affect the
security of the State. It is definitely for the concerned authority charged with
this responsibility to so determine. The Commission is only expected to see
as to whether the claim of exemption is prima facie justified or not.
The
nature of information asked for by the appellant and the organization to which
it relates gives credence to the claim of the Public Authority that its disclosure
may affect security of the State and the pendency of a criminal trial in a
competent court leaves no doubt that the disclosure of information in a matter
like this may prejudicially affect national security.
In view of this, the
Commission is of the view that claim of exemption under both Section 8(1)(a)
and 8(1)(h) is justified. In view of the above observations, the appeal petition
cannot succeed and is hereby dismissed
19
Announced on this the twenty-fifth day of August 2009. Notice of this
decision be given free of cost to the parties.
(M.L. Sharma)
(Ms. Annapurna Dixit)
(Satyananda Mishra)
Information Commissioner Information Commissioner Information Commissioner
(M.M. Ansari)
(Wajahat Habibullah)
Information Commissioner Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the
CPIO of this Commission.
(L.C. Singhi)
Registrar
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