The Wire: New Delhi: Saturday, June 03, 2017.
The Supreme
Court on Friday issued notice to the Assam Government on an appeal from
N.Rajamarthandan, a 2008-batch Indian Police Service (IPS) Officer who is under
arrest for disclosing information under the Right to Information Act (RTI. relating to the investigation of the attack
on the office of All Assam Students Union (AASU) in March.
In March
2017, the All Asam Students Union’s office was allegedly attacked by theNikhil
Bharat Bangali Udbastu Samannay Samiti (NBBUSS), a group that supports granting
citizenship to Hindu Bengalis from Bangladesh.
Rajamarthandan,
who was the supervisory officer of the Special Investigation Team (SIT) probing
the attack was arrested for disclosing allegedly confidential information
relating to the ongoing investigation to an RTI applicant.
The arrest
has led to dismay among IPS officers across the country. The Indian Police Service (Central) Association
Secretary, P.V.Rama Sastry, has urged an independent probe into the incident by
the Central Bureau of Investigation.
Rajamarthandan
has been in jail custody since April 7 in connection with alleged offences
under Section 120B and other provisions of the Indian Penal Code read with
Section 98(a) of the Assam Police Act, 2007 and Section 5(1)(b) of the Official
Secrets Act, 1923.
Rajamarthandan’s
senior counsel, Nitya Ramakrishnan, submitted before the Gauhati high court
that as the head of the SIT, constituted by the Assam Police to monitor,
supervise and assist the investigating officer of Silapathar,he only provided
the relevant information as regards the progress report prepared by him.
Rajamarthandan duly forwarded its copy to the Director General of Police, Assam
and four other officers and also to the Court of Chief Judicial Magistrate,
Dhemaji, Assam. The court rejected his plea for bail on May 15,
Nevertheless,
it was contended before the high court that Rajamarthandan was duly authorised
to prepare the progress report, which could not even be remotely inferred as
confidential. Nor did that information fall under the category exempted under
the RTI Act from disclosure. The case diary was prepared by the investigating
officer who was investigating it under Section 172 of Cr.PC., and
Rajamarthandan’s progress report relied on it.
In terms of
the proviso to Section 7 of the RTI Act, it is mandated that wherever any
information sought for concerns the life or liberty of a person then the same
shall be provided within 48 hours of receipt of the request. The High Court was told that Rajamarthandan
disclosed the information in discharge of his duty under the RTI Act and
therefore, no legal proceedings is maintainable against him.
It was
further submitted before the high court that Section 22 of the RTI Act has
overriding effect over the operation of any of the provisions of the Official
Secrets Act, 1923 and any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act and that CID
being a State Government Organization cannot claim exemption under the Act.
Further, as
any information pertaining to the allegation of corruption and human rights
violation is not being excluded, Rajamarthandan was bound to provide the
information to the RTI applicant as the information sought related to the
violation of human rights, the High Court was told.
However,
additional public prosecutor, T.K.Mishra alleged before the high court that
Rajamarthandan filed the RTI fee of Rs.10, through the Indian Postal Order, in
the name of the RTI applicant and even forged his signature.
Ramakrishnan,
however, has described these allegations as fabricated and submitted before the
high court that although the allegation of forgery is serious, it does not
require his detention. Although the option of transfer of Rajamarthandan to any
other place during the investigation, so as to rule out scope for undue
influence, is available to the state, the state has chosen to not exercise this
option.
Besides, the
state has suggested to the high court that the CID is one of the categories
exempted from disclosure of information under the RTI Act, and therefore, he
could not have overcome the statutory bar in the manner he did. This gives rise to the question, whether
arrest and detention should be the response if the officer honestly believed
that the bar against disclosure would not apply in this case because it
involved human rights.
As the
Supreme Court hears Rajamarthandan’s plea for bail on June 19, it may turn out
to be a test case for deciding whether an officer can proactively disclose
information, thus complying with the larger objectives of the RTI Act, without
violating the requirements of confidentiality. It may also reveal how the
absence of a provision in the RTI Act to defend officers who are proactive in
disclosure of information may defeat the Act’s very objectives.