Since CBI is an investigation agency, it cannot claim exemption under Second Schedule of the RTI Act meant for intelligence or security organisation, the CIC ruled. This is 160th 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 a complaint, directed the Central Public Information Officer (CPIO) and senior superintendent of police (SSP) at head quarter of Central Bureau of Investigation (CBI) to provide complete information on appointment of its director. The CIC also directed the PIO and assistant inspector general (AIG) to provide the details of movable and immovable property of existing CBI officials working in Delhi and Mumbai. The CPIO had claimed exemption by citing a notification issued by the Department of Personnel & Training (DOPT) that included CBI in the Second Schedule the Right to Information (RTI) Act.
While giving this judgement on 4 July 2011, Shailesh Gandhi, the then Central Information Commissioner said, “Springing such a Notification to shroud CBI with an armour of opacity without giving any reasons, is violative of the promise made by the Parliament in Section 4(1)(d) of the RTI Act. Since no reasons have been advanced, citizens are likely to deduce that the purpose of including CBI in the Second Schedule was to curb transparency and accountability from the investigations of several corruption cases against high-ranking Government officers.”
Bhilwara (Rajasthan) resident SS Ranawat, on 4 August 2010, sought from the PIO information about appointment of CBI director and also properties of all officials of the investigating agency working at Delhi and Mumbai. Here is the information he sought under the RTI Act and the reply given by the PIO...
1. File notings of the appointment as Director, CBI, New Delhi, of the existing and the then Director of CBI.
PIO's Reply-Information not provided.
2. List of existing CBI officials working in New Delhi & Mumbai with their permanent & existing addresses and their movable and immovable property with sources of earning during last ten years
PIO's Reply- Copy of list of officers working in New Delhi and Mumbai along with their place of posting provided to the applicant.
Information about permanent address of officers based at Delhi and Mumbai not provided on ground of Section 8 (1) (g) of RTI Act.
Citing information provided by the CPIO as 'misleading and incomplete' as well as saying that no grounds are provided for denying information on the basis of Section 8 (1)(g)of RTI Act, Ranawat filed his complaint before the CIC.
During the hearing before the Bench of Mr Gandhi, the then CIC, the PIO stated that since a notification had been issued by the Department of Personnel & Training (DOPT) on 9 June 2011 placing CBI at serial no23 of the Second Schedule to the RTI Act, pending appeals should be considered infructuous.
Mr Gandhi noted that the PIO had not provided the permanent addresses of the officers and the details of the assets.
The PIO stated that the custodian of information regarding the assets of the officers was AIG (P-II) and the RTI application had been transferred to him by AIG (P-I) on 10 September 2010.
Ranawat told the Bench that he had not received any information from PIO & AIG (P-II).
The Bench then reserved its order.
During the next hearing on 4 July 2011, the PIO argued that the DOPT notification CBI is included in Second Schedule of the RTI Act at serial No23 and, in accordance with Section 24 of the RTI Act, the provisions of the RTI Act would not apply to CBI, except allegations of corruption and human rights violation and therefore, all pending appeals should be considered infructuous.
Section 24(1) of the RTI Act stipulates inter alia that nothing contained in the RTI 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. Further, Section 24(2) of the RTI Act provides inter alia that the Central Government may, by notification in the Official Gazette, amend the Second Schedule by including therein any other intelligence or security organisation established by that Government and on the publication of such notification, such organisation shall be deemed to be included in the Second Schedule.
Under Section 24(2) of the RTI Act, the DOPT, Ministry of Personnel, Public Grievances and Pensions has, vide the said notification stated as follows:
"GSR 442 (E).- In exercise of the powers conferred by sub- section (2) of Section 24 of the Right to Information Act, 2005 (22 of 2005), the Central Government hereby makes the following further amendments in the Second Schedule to the said Act, namely:-
In the Second Schedule to the Right to Information Act, 2005, after serial number 22 and the entry relating thereto, the following serial numbers and entries shall be added, namely:-
23. Central Bureau of Investigation
24. National Investigation Agency
25. National Intelligence Grid" (Emphasis added)
From the above, it appears that since CBI has been brought within the Second Schedule of the RTI Act it is exempted from the application of the RTI Act in accordance with Section 24 of the RTI Act. However, on a plain reading of the notification, it does not appear to have a retrospective effect, Mr Gandhi said.
He said, reliance may be placed upon the decision of the Supreme Court of India in P Mahendran vs State of Karnataka (AIR 1990 SC 405) wherein the Court observed as follows:
"It is well- settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language, which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure."
The Bench noted that the DOPT Notification was issued on 9 June 2011 and there was no express stipulation whatsoever that the Notification shall come into force with effect from any date prior to 9 June 2011. Moreover, the Notification does not appear to indicate any intention of affecting existing rights and therefore, must be construed as prospective in nature. Hence, information sought in any RTI application filed prior to 9 June 2011 with CBI must be provided in accordance with the provisions of the RTI Act, the Bench said.
Having established this, the Bench then examined whether the Notification itself is within the letter and spirit of the RTI Act.
Under Section 24(2) of the RTI Act, the central government has been given the power to include any other intelligence or security organizations,-apart from the eighteen in the original list, within the Second Schedule by way of a notification. This power does not appear to have been extended to any other body, and is restricted to only intelligence or security organisations. In view of the same, it becomes pertinent to understand whether CBI qualifies as "intelligence or security organisation" as per Section 24(2) of the RTI Act.
The Bench said it perused the CBI website and the relevant extracts thereof have been reproduced below:
"The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War and Supply Department of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act." (Emphasis added)
Mr Gandhi said, the Delhi Special Police Establishment acquired its popular current name, CBI through a Home Ministry resolution dated 1 April 1963. The relevant provisions of the Delhi Special Police Establishment Act, 1946, which describe the powers of CBI, are provided as follows:
"2. Constitution and powers of police establishment- (1) Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special police force to be called the Delhi Special Police Establishment 2[***] for the investigation 3 [in any 4 [Union territory]] of offences notified under section 3.
(2) Subject to any order which the Central Government may make in this behalf, Members of the said police establishment shall have throughout 5 [any 4 [Union territory]] in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of 6 [that Union territory] have in connection with the investigation of offences committed therein.
2. The words "for the State of Delhi" omitted by Act 26 of 1952, sec. 3, (w.e.f. 6-3-1952).
3. Subs. by Act 26 of 1952, sec. 3 for "in that state" (w.e.f. 6-3-1952).
4. Subs. by A.L.O. 1956, for "Part C State".
5. Subs. by A.L.O. 1956, for "the State of Delhi".
6. Subs. by A.L.O. 1956, for "that State"." (Emphasis added)
The Mission and Vision of CBI in its Annual report of 2010 have been provided as follows:
To uphold the Constitution of India and law of the land through in-depth investigation and successful prosecution of offences; to provide leadership and direction to police forces and to act as the nodal agency for enhancing inter-state and international cooperation in law enforcement.
Based on its motto, mission and the need to develop professionalism, transparency, adaptability to change and use of science and technology in its working, the CBI will focus on
1. Combating corruption in public life, curb economic and violent crimes through meticulous investigation and prosecution.
2. Evolve effective systems and procedures for successful investigation and prosecution of cases in various law courts.
3. Help fight cyber and high technology crime.
4. Create a healthy work environment that encourages team-building, free communication and mutual trust.
5. Support state police organizations and law enforcement agencies in national and international cooperation particularly relating to enquiries and investigation of cases.
6. Play a lead role in the war against national and transnational organized crime.
7. Uphold Human Rights, protect the environment, arts, antiques and heritage of our civilization.
8. Develop a scientific temper, humanism and the spirit of inquiry and reform.
9. Strive for excellence and professionalism in all spheres of functioning so that the organization rises to high levels of endeavour and achievement." (Emphasis added)
Further, the FAQs on the CBI website provide an insight on the functioning and mandate of the CBI. The relevant portions have been reproduced below:
"1. Please give brief background of CBI.
During the period of World War II, a Special Police Establishment (SPE) was constituted in 1941 in the Department of War of the British India to enquire into allegations of bribery and corruption in the war related procurements. Later on it was formalized as an agency of the Government of India to investigate into allegations of corruption in various wings of the Government of India by enacting the Delhi Special Police Establishment (DSPE) Act, 1946 . In 1963, the Central Bureau of Investigation (CBI) was established by the Government of India with a view to investigate serious crimes related to Defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications. CBI derives its legal powers to investigate crime from the DSPE Act, 1946.
5. What types of Crimes CBI investigate today?
CBI has grown into a multidisciplinary investigation agency over a period of time. Today it has the following three divisions for investigation of crime:-
(i) Anti-Corruption Division - for investigation of cases under the Prevention of Corruption Act, 1988 against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India - it is the largest division having presence almost in all the States of India.
(ii) Economic Offences Division - for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime.
(iii) Special Crimes Division - for investigation of serious, sensational and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts.
The laws under which CBI can investigate Crime are notified by the Central Government under section 3 of the DSPE Act.
6. What is the difference between the nature of the cases investigated by the National Investigation Agency (NIA) and the CBI?
The NIA has been constituted after the Mumbai terror attack in November 2008 mainly for investigation of incidents of terrorist attacks, funding of terrorism and other terror related crime, whereas CBI investigates crime of corruption, economic offences and serious and organized crime other than terrorism.
29. Does CBI perform any other important function other than investigation of crime?
Yes. CBI has been notified as the Interpol of India. CBI has a training academy in Ghaziabad, where it organizes training courses in various subjects not only for its own officers but for officers from other countries as well as from State & UT police organizations, vigilance officers of Public Sector Undertakings, Banks etc." (Emphasis added)
Mr Gandhi said, on a careful perusal of the material, it can be ascertained that CBI was established for the purposes of investigation of specific crimes including corruption, economic offences and special crimes. It continues to discharge its functions as a multi- disciplinary investigating agency and is evolving more effective systems for investigation of specific crimes. "Members of CBI have all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences. There is no claim in its mandate and functions, as described above, that CBI is involved in intelligence gathering or is a security organisation. Even the additional functions performed by CBI other than investigation of crimes do not include any function, which would lend it the character of an intelligence or security organisation. In view of the same, CBI does not appear to fit the description of an 'intelligence or security organisation' under Section 24(2) of the RTI Act," he said.
Even by virtue of the fact that certain organisations such as CBI, during the course of investigation, may touch upon terrorist- related crimes or matters that may have an impact on the security of the nation, the same cannot be a reason for classifying such an organisation as intelligence or security organisation, the Bench noted.
"If such a claim was to be accepted, it would mean that every organisation which is involved in some investigation or the other, including the police, would come within the realm of Section 24(2) of the RTI Act. The absurdity of this proposition may be seen from an instance where terrorists launch bomb attacks in trains, the Ministry of Railways and other local authorities may obtain certain information which can be classified as 'intelligence' or such information may have an impact on the security of the nation. However, that cannot be a reason for bringing the Ministry of Railways or such other local authorities within the Second Schedule of the RTI Act. It is pertinent to note that on the CBI website, in response to FAQ 6, it has been clearly stated that the CBI investigates crimes of corruption, economic offences, and serious and organized crimes other than terrorism," it said.
Even where organisations such as CBI may obtain certain information that can be classified as 'intelligence' or may have an impact on the security of the nation, the same may be sought to be exempted from disclosure under Section 8(1) of the RTI Act. When Parliament codified the said right in the form of the RTI Act, it took care to lay down 10 exemption clauses in Section 8(1) on the basis of which information may be denied to citizens, unless there was a larger public interest. Here is the list of exemptions under Section 8(1) of the RTI Act:
"8. Exemption from disclosure of information.-
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a) 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;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign government;
(g) 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;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
Mr Gandhi said the right to information is a fundamental right of the citizens. "However, when the fundamental right to information was being codified by way of the RTI Act, the Parliament felt that certain 'intelligence and security organisations' may require greater protection from disclosure of information and therefore stipulated Section 24(1) of the RTI Act. Therefore, even at the cost of abridging the fundamental right to information of citizens, the Parliament identified certain bodies as "intelligence and security organisations" that required to be protected from disclosure of information to serve a greater purpose. These organisations were consequently included in the Second Schedule," he said.
"Given the stature and mandate of CBI, it does not seem plausible that the Parliament could have inadvertently omitted to include CBI in the Second Schedule when the RTI Act was being enacted. By enacting the Notification and bringing CBI within the Second Schedule, the Government appears to have increased the scope of Section 24(2) of the RTI Act, which was not envisaged by the Parliament. By this method the Government could keep adding organisations to the Second Schedule, which do not meet the express criteria laid down in Section 24(2) of the RTI Act and ultimately render the RTI Act ineffective. The Government cannot frustrate a law made by the Parliament by resorting to such colourable administrative fiat," the CIC noted.
"By enacting the Notification and placing CBI in the Second Schedule, the government appears to be claiming absolute secrecy for CBI without the sanction of law," Mr Gandhi said adding that, "The RTI Act was a promise to citizens by Parliament of transparency and accountability. Given that the previous year has been characterized by unearthing of various scams in the Government which are being investigated by CBI, inclusion of CBI in the Second Schedule by the government would be considered to be a step to avoid the gaze and monitoring of citizens in matters of corruption."
"In addition," the Bench said, "Under Section 4(1)(d) of the RTI Act, it is mandated that every public authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons. In the instant case, the CIC has noted that neither in the Notification nor on its website or otherwise, the DOPT or the Ministry of Personnel, Public Grievances and Pensions has provided any reasons for including CBI in the Second Schedule. In the absence of any reasons, the Government's move appears to be arbitrary in nature. It appears an attempt is being made to slip in the CBI with National Investigation Agency and the National Intelligence Grid into Schedule two."
In view of the foregoing reasons, the CIC said it is of the view that the Notification is not in consonance with, either the letter or spirit of the RTI Act, in particular Section 24,- for the following reasons:
1. As observed above, CBI is not an 'intelligence or security organisation', which requirement needs to be satisfied in order for it to be covered under Section 24 of the RTI Act and therefore, it cannot be included in the Second Schedule.
2. No reasons have been provided by the DOPT or the Ministry of Personnel, Public Grievances and Pensions, as required under Section 4(1)( d) of the RTI Act, to justify the inclusion of CBI in the Second Schedule. In the absence of reasons, inclusion of CBI in the Second Schedule along with National Intelligence Agency and National Intelligence Grid appears to be an arbitrary act. The promise made to Citizens under Section 4 (1) (d) of the RTI Act must be fulfilled.
Mr Gandhi said, "This Bench rules that the said notification of 9 June 2011 was not in consonance with the letter or spirit of Section 24 of the RTI Act, since it constricts the citizen's fundamental right in a manner not sanctioned by the law."
On perusal of the papers, the CIC noted that information about permanent address of officers based at Delhi and Mumbai was not provided on the basis that it was exempted under Section 8 (1)(g) of the RTI Act. "Given the nature of the functions carried out by CBI, disclosure of permanent address of officers may endanger the life or physical safety of such officer. Therefore, the Bench is of the view that the information regarding permanent address of officers based at Delhi and Mumbai was rightly denied by the PIO on the basis of Section 8(1)(g) of the RTI Act. The list of officers working in Delhi and Mumbai along with their place of posting has already been provided to the complainant," it said.
Mr Gandhi further noted that information regarding assets of the officers was held by AIG (P-II). The RTI application was transferred to AIG (P-II) by AIG (P-I) on 10/09/2010. However, no information has been received by the complainant till date. Moreover, no information regarding query 1 has been provided by the CPIO till date. The PIO has also claimed no exemption under Section 8 (1) for denying this information. Hence, it appears to be denial of information without any reason, he said.
While allowing the complaint, the Bench directed the CPIO to provide complete information to Ranawat (the complainant) in relation to query1 before 30 July 2011. It further directed PIO & AIG (P- II) to provide the details of movable and immovable property of existing CBI officials working in Delhi and Mumbai to the Complainant before 30 July 2011.
In addition, the CIC directed Ashwani Kumar, CPIO & SSP (HQ) and the PIO & AIG (P- II) to appear before the Bench on 1 August 2011 along with their written submissions to show cause as to why penalty should not be imposed on them under Section 20 of the RTI Act for failure to provide the complete information to the complainant within the 30 days.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SM/C/2011/000129/SG/13251
Complaint No. CIC/SM/C/2011/000129/SG
Complainant : SS Ranawat,
Bahala, Bhilwara- 311001 (Rajasthan)
Respondent : Ashwani Kumar
CPIO & SSP (HQ),
(HQ)/CBI, Administrative Division,
5-B, 7th Floor, CGO Complex,
Lodhi Road, New Delhi- 110003
After the initial fanfare and enthusiasm for introducing the Aadhaar identification, the interest has slowly died down. Why should this be so?
A close look at the Aadhaar application form will reveal that it is truly not a complete document. This is so, particularly, when foreigners can also apply and get one. In this category, one should include Overseas Citizens of India (OCI), who hold the non-resident Indian (NRI) status, and, by virtue of obtaining the OCI certificate (looks exactly like the passport), is entitled to dual citizenship on application, after completion of five years stay in India. In fact, holder of OCI document can do almost anything that a citizen can do, except, of course, to vote!
It is altogether a different matter that a large percentage of Indian citizens do not exercise their right to vote!
First and foremost, the Unique Identification Authority of India (UIDAI) must ensure that the application itself is printed in better quality paper, which is available and made in India. It is so thin that while signing, one tends to tear the paper!
Second, in order to process the Aadhaar application form, the verification officer can ask for original and photocopy of some documents, which will be presumably attached to the application, when it is accepted.
After this phase, another officer incorporates all the information into the system and a computerised photo ID, including that of the Iris, is taken, and a print out of the Aadhaar data is given to the applicant. Generally, within 90 days, the original ID arrives by post! All, for free!
Third, the application form must provide adequate space to cover relevant details of whether one is a foreigner, including OCI. And, when the Aadhaar is issued, it may contain some linkable, codified reference, to indicate the above special status of the applicant. But, for all other purposes, it may be uniform to all holders.
Fourth, when there is so much interest shown by the government for all citizens to have access to banking facilities, it is imperative that acceptance of Aadhaar Card by Banks must be mandatory, for opening accounts. At present, it is impossible to open accounts without proof of address, PAN card, voters ID, ration card and, of course, introduction from an existing account holder. Not an easy task for most wage earners.
It is highly regrettable that banks do not accept Aadhaar as sufficient proof to open accounts. In fact, even to open a second account in the same bank, photocopies of these have to be provided! Perhaps, banks do not recognize the fact that to obtain Aadhaar one has to provide various documents in original, including some photocopies, even before the application itself is processed.
One’s experience in obtaining and utilising Aadhaar number varies from one person to another. Axis Bank asked for supporting documents as per their printed application form, which included proof of residence, current electricity or water bill, passport copy etc. Aadhaar number was neither accepted nor demanded. In another case, in the case of HDFC Bank, a friend's mother simply walked into the bank with her Aadhaar number (she had the ID with her, of course) as single proof, which was accepted without a question. The bank did not ask for any other document. In fact, they even waived the question of an introducer to open her account!
In other words, there is no uniformity in recognizing Aadhaar number as a valid instrument.
In a separate development, Reserve Bank of India (RBI) has proposed to credit card-issuing banks that they should consider Aadhaar number for authentication, when shops accept credit cards for transactions.
Such a move, if made mandatory, will involve huge investments for upgrading the credit-card swipe machines. Banks will resist this move and may comply by resorting to recovery of such investment by adding extra charges to the customers. If it is nominal the credit card holder may ignore and carry on the use, as otherwise, they would rather use cash when possible. Even the process of setting up the upgraded equipment/ system will take time, and may have to be done in several phases. A working group constituted by RBI, with PK Sinha, general manager, State Bank of India (SBI) to study the feasibility of Aadhaar as an additional factor in the above is expected submit its findings shortly.
RBI has directed the banks that they need to migrate to Europay, MasterCard and Visa (EMV) cards and PIN based authentication for transactions. It may be noted that EMV cards are "smart" cards that have an embedded chip while PIN authentication involves the cardholder to punch in a secret code on the card-swiping machine, for each transaction.
Separately, the UIDAI has developed electronic– know your customer (e-KYC) service, which promises to substantially improve customer services in the near future. E-KYC allows an Aadhaar number-holder to authorize UIDAI to release his personal details to any service provider to allow instant activation of services like bank account and mobile connection.
If it is the intention of the government to cover all the citizens, it may be a good idea to install this facility to process Aadhaar applications in one selected post office in each area or to attach them to police stations, and set a time frame to complete this job.
By the way, is the government ultimately hoping to bring about some kind of a social security system in the country?
(AK Ramdas has worked with the Engineering Export Promotion Council under the Ministry of Commerce. He was also associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)
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