The high court made it clear that the state government cannot deny information pertaining to the vigilance department involving allegations of corruption and human rights violations, and disclosure that does not touch upon any of the sensitive and confidential activities undertaken by the vigilance department.
In a significant judgment delivered on 20th June, the Orissa High Court (HC) held that the General Administration (vigilance) of the Government of Odisha cannot enjoy blanket immunity from the applicability of the Right to Information (RTI) Act, 2005. A division bench comprising Chief Justice Dr S Muralidhar and Justice RK Pattanaik held that information pertaining to corruption and human rights violations, as well as information which does not touch upon any of the sensitive and confidential activities undertaken by the vigilance department, cannot be withheld.
The issue before the bench was the validity of a notification issued by the state government in August 2016 under Section 24
of the RTI Act whereby it excluded the vigilance department from the purview of the RTI Act. Section 24 confers power upon the government to specify “such intelligence and security organisations, being organisations established by the State Government”
to which the RTI Act would not apply. However, the first proviso to Section 24 states that information pertaining to allegations of corruption and human rights violations shall not be excluded.
The bench said, “If under the RTI Act disclosure is the norm, and non-disclosure the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is, therefore, ultra vires the RTI Act.” It accordingly issued a declaratory writ to the effect that the notification will not permit the government to deny information pertaining to the vigilance department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the vigilance department.
The bench, after examining Section 24, opined that its legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.
Interplay between Sections 8 and 24
of the RTI Act provides for certain categories of information which are not subject to disclosure. It, among others, includes the information, the disclosure of which would endanger the life or physical safety of any person, or identify the source of information or assistance given in confidence for law enforcement or security purposes; information which would impede the process of investigation or apprehension or prosecution of offenders; information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, and so on.
The state government sought to contend that the information which is protected from disclosure under section 8 would somehow straightway become available to an applicant in the absence of its notification under challenge.
The bench found the contention made by the state government untenable. It said that the first provisos to Section 24(1) and Section 24(4) of the RTI Act, viz.,“information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section” is not mentioned as such in Section 8. In other words, what stands protected by Section 8 would remain protected as such; additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) would have to be considered as well.
Responding to the apprehension expressed by the state government that, if the RTI Act were to be made applicable to the Vigilance Department then sensitive information pertaining to the criminal investigation would become easily available to an applicant, the bench said such requests will obviously be evaluated on a case-by-case basis, applying, where it is so warranted, section 8.
“That, however, cannot be the justification for exempting the entire Vigilance Department from the purview of the RTI Act. Strangely, the argument of the Opposite Parties in support of the impugned notification misses the point that if the RTI Act is entirely excluded from application, then the shield of Section 8 of the RTI Act would also not be available”, the bench ruled. It further opined that not each and every aspect of the functioning of the Vigilance Department would involve issues concerning security and the sanctity of investigation. There could be many instances where information concerning an organization would not be amenable to protection from disclosure. One instance of such information could be that pertaining to recruitment in the organisation
The bench also held that Sections 8 and 24 of the RTI Act have to be read together to hold that, even while dealing with requests for information falling in the domain of Section 8, if such information pertains to allegations of human rights violations or corruption, regard will have to be had to the first provisos to Section 24(1) and Section 24(4).
Click here to view the Orissa High Court’s full judgement.