News18: New
Delhi: Tuesday, December 04, 2018.
The
CIC has given a "final opportunity" to Union home secretary Rajiv
Gauba to produce records related to alleged fake encounter in Assam last year,
reported by then CRPF IG Rajnish Rai, before initiating penal proceedings
against him for "obstructing" the flow of information.
Irked
by the stance of the Home Ministry to not present records for the Central
Information Commission's perusal, the statutory body said since the decision in
the matter has "undoubtedly" been taken at the highest level, the
Secretary of the Ministry of Home Affairs is designated as deemed Public
Information Officer (PIO).
"A
final opportunity is granted to the MHA to produce relevant records of the
case. The Union Home Secretary shall produce the relevant records before the
Commission in person or through his authorised representative on December 19,
2018 failing which, ex parte decision shall be announced," the order said.
The
commission said if the case records are not produced, penal proceedings can be
initiated against him for obstructing the process of "adjudication of the
Commission and causing obstruction to the flow of information. "Under the
RTI Act, no records can be withheld from this Commission under any
pretext," the order said.
It
said the CIC has statutory power and the same has also been acknowledged by the
Supreme Court. "The unusual
resistance exhibited by the MHA in producing the records before the Commission
cannot be countenanced and the Commission perceives the same to be a direct
onslaught on the RTI regime," it said.
It
said contention of the MHA on the applicability of relevant clauses under
Section 8(1) of the RTI, which exempts certain information from being made
public under certain conditions, is still not concluded and the Commission has
not yet decided on the same.
"Apart
from a bald assertion made by PIO, MHA, there is nothing on record to
substantiate the argument of NHRC/ Assame SHRC having ruled out violation of
human rights. No records or findings from any court of Law are produced before
the Commission," it said.
The
Commission clarifies that genuineness of an encounter killing/extrajudicial
killing and allegation of human rights violation are two distinct things, it
said. "Lawful justification of extrajudicial killing cannot be confused
with the right of citizenry to know the truth," it said.
The
matter pertains to an RTI application seeking to get a copy of the report filed
by Rajnish Rai, the then CRPF IG.
Rai
has alleged in the report that a joint team of the Army, the Assam Police, the
CRPF, its jungle warfare unit CoBRA and the border guarding force Sashastra
Seema Bal (SSB) conducted the encounter on March 29-30, 2017 in Simlaguri area
of Chirang district and killed what they called were two insurgents of the
banned group NDFB (S).
The
copy was denied by the CRPF claiming that its an exempted organisation under
the RTI Act. The applicant had said even if it is an exempted organisation, the
information held by it pertaining to allegations of human rights violation is
not covered under that exemption.
Agreeing
with the view of the applicant, the Commission said the information will not
come under blanket exemption to the CRPF from RTI Act and asked for the report
to adjudicate whether it attracts Section 8 of the transparency act.
The
CRPF then said the report was with the Home Ministry. The Home Ministry in
spite of repeated orders to produce the report did not comply and later claimed
the information was not held by it.
"Denial
of information to appellant cannot be a ground to deny a record to the CIC.
Irrespective of the outcome of the present appeal, there is nothing to fetter
power of the Commission to call for any record in process of adjudication of
present appeal," the Commission said in its latest order.
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