Moneylife: Pune: Saturday,
June 01, 2013.
The Central
Information Commission (CIC), while allowing an appeal, directed the Public
Information Officer (PIO) of the Cabinet Secretariat to provide the information
sought by the appellant about the memoirs of RN Kao, the first chief of the
Research and Analysis Wing (RAW) and if, however, the allegation was false, the
PIO will state this in his reply.
While giving
this judgement on 22 July 2011, Shailesh Gandhi, the then Central Information
Commissioner said, “The appellant has sought information on ‘steps taken by RAW
to establish organizational control over the memoirs of RN Kao’ currently in
the personal possession of members of the Bajpai-Tripathi clan in the RAW. If
the allegation is false, the PIO will only have to state this. If, however, the
allegation is not false the PIO would state whether any steps have been taken
or not.”
New Delhi
resident Nisha Priya Bhatia, on 21 June 2010 sought information regarding the
status of memoirs written by the first chief of RAW, from the PIO of the
Cabinet Secretariat. Here is the information she sought under the RTI (Right to
Information) Act...
Certified
copy of the document detailing steps taken by the RAW to establish
organizational control over the above-mentioned memoirs of Shri RN Kao
currently in the personal possession of members of the Bajpai-Tripathi clan in
the RAW.
Citing
exemption from furnishing the information the PIO in his reply stated, “The
requisite information pertains to Intelligence and Security Organisation under
the Cabinet Secretariat mentioned at Sr No2 of the Second Schedule, which is
exempted from the purview of the RTI Act, 2005 vide statutory bar of
sub-section (1) of Section 24 (subject to the conditions stipulated therein) of
the Act except on the grounds of allegations of human rights violation and
corruption. The averment made in para 4 of your application is presumptive in
nature. Moreover the information sought for, neither falls under the ambit of
human rights violation, nor of corruption”.
Bhatia, then
filed an appeal before the First Appellate Authority (FAA). In her first
appeal, she stated, “It is most respectfully submitted that the information I
seek pertains to an act of corruption where a few members of the organisation
have unauthorized established control over volumes of memoirs written by the
founder member of the RAW, Shri RN Kao—possibly with eyes on commission and
fame that would ensue from their publication at a time considered appropriate
by these officials—when there may be no other claimants to compete with them.”
The FAA,
while upholding the PIO’s reply said, “In your grounds for appeal, you have
also mentioned that there was apprehension of corruption in the matter. This
averment in your appeal is devoid of any merit because you have failed to point
out any specific instance of ‘alleged corruption’. The law cannot proceed on assumptions.”
Not satisfied
with the PIO’s reply and order of the FAA, the appellant (Bhatia) then
approached the Commission. In her second appeal she stated, “Shri RN Kao, the
first chief of the RAW and its founding father left behind his memoirs with instructions
that they be published after a certain number of years. These memoirs, running
into several volumes were handed over by one chief of the RAW to another until
one of the many members of the Bajpai-Tripathi family employed in the RAW
established personal control over them—the applicant has reasons to believe.
This is an act of corruption since it involves issues of royalty, name and
fame. The memoirs are the property of the RAW and the heritage of this country.
They need to be traced and accounted for.”
Bhatia,
during the hearing before the Commission, stated that she was an employee of
RAW and she heard about this (the memoirs) from Balachandran, former special
secretary and some other secretaries.
She stated that she asked various people within the department and they all
pleaded ignorance except the present chief of RAW SK Tripathi. She claimed that
he told her not to worry about these and that they are in safe hands.
The PIO
maintained that RAW was exempted from providing the information and hence no
information can be provided. The PIO was claiming exemption from providing
information based on Section 24(1) of the RTI Act, which states as follows:
"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;"
The PIO also
contended that in decision no.CIC/SM/A/2011/000285, the Commission had in
another matter accepted the plea of the PIO that the organization (RAW) is
exempt and it has been stated, “If information has to be disclosed by exempted
organizations merely on the basis of suspension or certain perceptions of
information seeker, it would be pointless to classify certain organizations as
exempt.”
The
Commission at that has perused the decision and in that matter the CIC had come
to a clear conclusion that “none of the information sought by her in the six
cases convincingly established any human rights violation or act of
corruption.”
This bench
has also accepted the exemption claimed by RAW under Section 24(1) of the RTI Act
in various cases. However, each case has to be examined by the Commission, to
see whether a reasonable allegation of corruption or human rights violation has
been made.
Mr Gandhi,
the then CIC, noted that it has been explicitly stated that allegations of
corruption or human rights' violation shall not be excluded under the
sub-section. Hence the Commission will have to see whether an allegation of
corruption or human rights violation has been made when seeking the
information. The Commission will also see whether an allegation appears to be
specific and mentions adequate information. The allegation may be true or false
but so long as it mentions specifics it would have to be taken into account
when deciding whether the information should be provided or not, he said.
“In the
instant case the appellant has provided specific information that Kao the first
chief of RAW had written memoirs and given them to RAW with the intention that
the organization would publish them at some future date. Bhatia has also
alleged that these are not with the RAW any longer. If any of this is false the
PIO only needs to state this. However, if the allegation is not denied then it
fulfils the condition provided in Section 24(1) to qualify for information
being provided. If the allegation is true it could constitute criminal
misconduct as defined in Section 13(d) of the Prevention of Corruption Act
1988,” Mr Gandhi said in his order.
While
allowing the appeal, the CIC said, “The appellant has sought information on
‘steps taken by the RAW to establish organizational control over the
above-mentioned memoirs of RN Kao’, currently in the personal possession of
members of the Bajpai-Tripathi clan in the RAW. If the allegation is false the
PIO will only have to state this. If however the allegation is not false the
PIO would state whether any steps have been taken or not.”
.JPG)
.JPG)
