IBNLive: New Delhi: Monday, May 27, 2013.
Army has
refused to make public under RTI information on soldiers whose bodies were
mutilated in skirmishes with Pakistani Army or infiltrators along the Line of
Control during the last five years even though such details have been given by
Defence Minister in Rajya Sabha.
Three months
after the application was filed, Army cited Section 8(1)(a) of the RTI Act to
refuse the information without giving any reason for denial, which is mandatory
whenever information is denied to an RTI applicant. Section 8(1)(a) allows to
withhold "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".
Ironically,
the class of information, the disclosure of which is considered by Army to be
detrimental to national interests and security, had been made public by Defence
Minister AK Antony on February 27 in Rajya Sabha. Giving complete details of an
incident in which two Indian soldiers were killed and their bodies mutilated,
Antony had said, "On January 8, 2013, a Pak Border Action Team (BAT)
ambushed our patrol party in Krishna Ghati, Mendhar Sector in which Lance Naik
Sudhakar Singh and Lance Naik Hemraj were killed. Lance Naik Hemraj was found
beheaded and both bodies were mutilated. In addition, their weapons were
taken."
In the above
statement, the minister had placed on record complete class of information
including date of incident, names of soldiers, place of incident and nature of
injury. When asked whether class of information which has been placed on the
floor of Parliament can be denied to an RTI applicant, Chief Information
Commissioner Satyananda Mishra said "absolutely not." He said once
information has been placed before Parliament, it cannot be denied to an RTI
applicant.
His views
were supported by former Chief Information Commissioners Wajahat Habibullah and
AN Tiwari, who said information which has been placed before Parliament is
already in public domain and cannot be denied to an applicant. Tiwari said even
if it has been denied by a public authority, justifiable reasons should be
given while withholding the information, and then CIC can take a view.
"The
fact that this information has been placed before Parliament will certainly go
in favour of the applicant when the matter is heard by the CIC, as the class of
information would be considered 'disclosable'," he said. The Right to
Information Act gives an applicant two separate provisions complaint under
section 18 which is filed for no receipt of information within mandatory 30
days and first appeal under section 19 where applicant gives reasons why an information
should be disclosed for raising his grievance before higher authorities in a
public body.
Maj Gen Anil
Mehta, the first appellate authority, wrongly treated complaint filed by the
applicant for non-receipt of information as First Appeal, thus giving him no
chance to present his reasons why information should be disclosed. Subsequent
communications to his office citing this glaring error on part of a senior
officer did not change the stand of the Army, which insisted that a
"speaking order" has been given.
Former
Information Commissioner Shailesh Gandhi said a first appeal can only be filed
once an applicant receives some information from a public authority. A
complaint for non-receipt of information cannot be treated as first appeal, he
said.
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