Section 24 and Schedule II and section 8(1)(g) & (h) and sections 4(i)(d), 10 and 22:
In the last RTI article of July 2011 in Part B it was reported that CBI is now exempted from RTI. I had also reported that in the Madras High Court the validity of the said Notification is challenged. Now it is learnt that the same is challenged also in the Delhi High Court.
Further development is that IC, Shailesh Gandhi on 1st July passed an order holding that the said Notification is ultra vires.
The complaint of Mr. Justice R. N. Mishra (Retired) v. PIO-CBI was made on 5-2-2011. While the Notification exempting CBI u/s. 24 of the RTI Act was issued on 9-6-2011. So firstly, IC held that the said Notification cannot be made retrospective. The order reads:
“It follows from the above that CBI has been brought within the Second Schedule of the RTI Act, thereby exempting it from the application of the RTI Act in accordance with section 24 of the RTI Act. However, on a plain reading of the Notification, it does not appear to have a retrospective effect. Reliance may be placed upon the decision of the Supreme Court of India in P. Mahendran v. State of Karnataka AIR 1990 SC 405, wherein it observed as follows:
“It is well-settled rule of construction that every statute or statutory rule is prospective, unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights, the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intention, the rule cannot be given retrospective effect except in matter of procedure.”
The Notification was issued on 9-6-2011 and there is no express stipulation whatsoever, the Notification shall come into force with effect any date prior to 9-6-2011. Moreover, the Notification does not appear to indicate any intention of affecting existing rights and therefore, must be construed as prospective in nature. Hence, information sought in any RTI application filed prior to 9-6-2011 with CBI must be provided in accordance with the provisions of the RTI Act.
IC then examined whether the Notification itself is within the letter and spirit of the RTI Act. The Commission perused the CBI website to find out what are its functions. It then wrote:
“On careful perusal of the material, it can be ascertained that CBI was established for the special purposes of investigation of specific crimes including corruption, economic offences and special crimes. It continues to discharge its functions as a multi-disciplinary investigating agency and evolve more effective systems for investigation of specific crimes. Members of CBI have all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences. There is no claim in its mandate and functions, as described above, that CBI is involved in intelligence gathering or is a security organisation. Even the additional functions performed by CBI other than investigation of crimes do not include any function which would lend it the character of an ‘intelligence or security organisation’ u/s. 24(2) of the RTI Act.”
“By enacting the Notification and bringing CBI within the Second Schedule, the Government appears to have increased the scope of section 24(2) of the RTI Act, which was not envisaged by the Parliament. Given the fact that the Right to Information is a fundamental right, any provision by which the said right is sought to be curtailed must be strictly construed. The Government, however, appears to have stretched the interpretation of section 24(2) of the RTI Act far beyond what the Parliament had intended, by including an investigating agency such as CBI within the Second Schedule, which was envisaged exclusively for intelligence or security organisations. The Government has read additional qualification into section 24(2) of the RTI Act which were hitherto not contemplated. By this method the Government could keep adding organisations to the Second Schedule, which do not meet the express criteria laid down in section 24(2) of the RTI Act and ultimately render the RTI Act ineffective. The Government cannot frustrate a law made by the Parliament by resorting to such colourable administrative fiat.”
“Therefore, by enacting the Notification and placing CBI in the Second Schedule, the Government appears to be claiming absolute secrecy for CBI without the sanction of law. The RTI Act was a promise to citizens by the Parliament of transparency and accountability. Given that the previous year has been characterised by unearthing of various scams in the Government which are being investigated by CBI, inclusion of CBI in the Second Schedule by the Government would be a step to avoid the gaze and monitoring of citizens in matters of corruption.”
Finally the Commission concluded:
“In view of the foregoing reasons, the Commission is of the view that the Notification is not in consonance with, either the letter or spirit of the RTI Act, — in particular section 24, — for the following reasons:
(1) As observed above, CBI is not an ‘intelligence or security organisation’, which requirement needs to be satisfied in order for it to be covered u/s. 24 of the RTI Act and therefore, it cannot be included in the Second Schedule.
(2) No reasons have been provided by the DoPT or the Ministry of Personnel, Public Grievances and Pensions, as required u/s. 4(1)(d) of the RTI Act, to justify the inclusion of CBI in the Second Schedule. In the absence of reasons, inclusion of CBI in the Second Schedule along with National Intelligence Agency and National Intelligence Grid appears to be an arbitrary act. The promise made to citizens u/s. 4(1)(d) of the RTI Act must be fulfilled.
This Commission rules that the said Notification of 9-6-2011 is not in consonance with the letter or spirit of section 24 of the RTI Act, since it constricts the citizen’s fundamental right in a manner not sanctioned by the law.”
CBI had before the Commission also submitted that in any case the information sought is exempt u/s.8(1)(g) and (h) of the RTI Act. The Commission also held that the said clauses also do not cover the denial of information sought by the applicant. Finally the Commission held:
“The Complaint is allowed.
The CPIO is directed to provide to the complainant copy of the FIR lodged by CBI. The CPIO is further directed to send copies of FR-I, FR-II and GEQD Expert report to the complainant. The information should be sent to the complainant after servering the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purpose. The information as directed here should be sent to the complainant before 25th July 2011.”
Everyone is awaiting now the response of CBI to this decision.
This is a landmark decision and the full text is posted on the website of BCAS and PCGT.
[Mr. Justice R. N. Mishra (Retired), Allahabad v. PIO & Head of Branch, CBI Anti-Corruption Branch, Decision No. CIC/SM/C/2011/000117/SG/13230, dated 1-7-2011]
