RTI Judgement Series: RAW does not know if memoirs of its first chief exist
Moneylife Digital Team 31 May 2013

The applicant alleged that the memoirs written by RN Kao, the founder of RAW, are in possession by certain members of the agency. The PIO merely cited exemption, which was overruled by the CIC. This is the 104th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

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.”

 

CENTRAL INFORMATION COMMISSION

                                                                              

Decision No. CIC/SM/A/2011/000292/SG/13617

https://ciconline.nic.in/cic_decisions/CIC_SM_A_2011_000292_SG_13617_M_63328.pdf

Appeal No. CIC/SM/A/2011/000292/SG

 

 

Appellant:                                          : Nisha Priya Bhatia

 New Delhi-110028       

 

Respondent:                                      : Sumati Kumar,

  CPIO & Director

  Cabinet Secretariat, 

                                                                    Bikaner House (Annexe), Shahjahan Road,

                                                                    New Delhi-110 011

Comments
Ranjit Kumar
9 years ago
The most of information are denied by such organisation like RAW and CBI using Section 24(1). This is really an exemplary decision of the commission which shows very close interpretation and also show the way how to keep spirit of RTI Act despite of using Section 24(1)as safeguard by the organisation.
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