The Delhi High Court has ruled that the Enforcement Directorate, as an intelligence and security organisation listed in the Second Schedule of the Right to Information Act, is exempt from the Act's except , when the information in question relates to allegations of corruption or human rights violations.
A case was heard before Justice Manmohan and Justice Sudhir Kumar Jain over an RTI application filed by a Superintendent (respondent in the matter) working in the Enforcement Directorate's Administration.
The said application requested copies of all seniority lists for Lower Division Clerks (LDCs) from 1991 to the present, as well as copies of proposals for promotion of LDCs presented to the DPC, as well as copies of Minutes of Meetings and copies of promotion orders issued on the DPC's recommendations from time to time.
The Central Information Commission had directed the said information to be provided to the respondent. However, the said order was challenged by the Union of India before a Single Judge which had dismissed the said plea vide order dated 7th December 2018.
While Letter Patent Appeal was filed before the division bench , the application for stay filed by the Union or India was disposed of. Accordingly, an Special Leave petition was filed in the Supreme Court challenging the division bench order refusing grant of stay .
...“C.M.No.54608/2018
Subject to the outcome of the writ petition and taking note of the fact that the information sought for is only the service particulars of respondent No.2 like seniority list and DPC, the information sought for be provided to respondent No.2. The legal objections with regard to the applicability of Right to Information Act shall be considered at the time of hearing. The application is, accordingly, disposed of”
The Supreme Court had then disposed of the Special Leave Petition order dated 1st October, 2021 with a direction to the High Court to decide the issue with respect to applicability of the Right To Information Act to the Appellant and then decide the stay application.
“O R D E R
Leave granted.
Heard the learned counsel appearing for the parties.
By the impugned order, the High Court, by way of an interim order, has directed the Appellant to furnish the information sought for like Seniority List and DPC etc. which are sought under the provisions of the Right to Information Act (‘RTI Act’ for short). It was/is the specific case on behalf of the Department that the RTI Act was not applicable to the Organization/Department. Despite the above and without deciding such an objection, the High Court has directed the Appellant to furnish the documents sought under the RTI Act without deciding the applicability of the RTI Act. That will be putting the cart before the horse. The High Court ought to have decided the issue with respect to the applicability of the RTI Act to the Organization/Department first.
Under the circumstances, the impugned order passed by the High Court in C.M No. 54608 of 2018 in LPA No. 734 of 2018 is hereby quashed and set aside. We direct the High Court to decide first the issue with respect to the applicability of the RTI Act to the Appellant organization/department and thereafter decide the stay application/LPA. The aforesaid exercise shall be completed within a period of eight weeks from today.
The present Appeal is partly allowed to the aforesaid extent.
No costs”
It was argued on the behalf of the centre that the learned single Judge while passing the impugned order has held that the information sought by respondent does not fall under the purview of Section 24 of the RTI Act. [1]
According to the learned Counsel , it is of no consequence whether the information sought for is in relation to intelligence and security functions of the organization or not, because only information furnished by such organization to the Government pertaining to the allegations of corruption and human rights violation is allowed to be provided and everything else is barred. In support of the submission, the learned Counsel relies upon the judgment of this Court in Dr. Neelam Bhalla Vs. Union of India and Ors., LPA 229/2014 .
It was thus argued that the Single Judge erred in observing that the information should be given to respondent because it did not pertain to the Appellant organization's intelligence, security, or secrecy.
On the other hand learned counsel for the respondent states that in the absence of information sought for, the respondent is unable to enforce her fundamental and legal right to promotion. He specifically asserts that despite the order dated October, 2018 passed by Central Administrative Tribunal, no information has been furnished by the Appellant to the respondent till date.
COURT’S REASONING
THE APPELLANT IS AN INTELLIGENCE AND SECURITY ORGANIZATION SPECIFIED IN SECOND SCHEDULE OF THE RTI ACT AND IS EXEMPT FROM THE PURVIEW OF THE RTI ACT EXCEPT WHEN THE INFORMATION PERTAINS TO ALLEGATION OF CORRUPTION AND HUMAN RIGHTS VIOLATION.
As the present case primarily involves interpretation of section 24 of the RTI Act the Hon’ble Court placed reliance on the case of Esab India Limited v. Special Director of Enforcement & Ors.,[2]has upheld the Constitutional validity of Section 24 of the RTI Act.
“27. In the case at hand, as far as Section 24 is concerned, it is evincible that the said provision excludes the intelligence and security organizations specified in the Second Schedule. We have already reproduced the Second Schedule. The Petitioner is concerned with the Directorate of Enforcement which comes at Serial No. 5 in the Second Schedule. What has been denied in first part of Section 24 is the intelligence and security organizations. The first proviso adds a rider by stating that an information pertaining to allegations of corruption and human right violations shall not be excluded under the Sub-section. Thus, it is understood that information relating to corruption and information pertaining to human rights are not protected. In our considered opinion, the restriction on security and intelligence aspect cannot be scuttled as the same has paramountcy as far as the sovereignty and economic order is concerned. Article 19(1)(2), which deals with reasonable restriction, mentions a reasonable restriction which pertains to security of the State, integrity of India and public order.”
The Hon’ble Court observed that
“Undoubtedly, the Appellant is an intelligence and security organization specified in Second Schedule of RTI Act and is exempt from the purview of RTI Act except when the information pertains to allegation of corruption and human rights violation. Consequently, the submission made by Mr. Amit Mahajan is correct that the Appellant cannot be called upon to disclose information under the provisions of RTI Act except when the information sought pertains to the allegations of corruption and human rights violation.
The Court also added that:
THE EXPRESSION ‘HUMAN RIGHTS’ CANNOT BE GIVEN A NARROW OR PEDANTIC MEANING. HUMAN RIGHTS ARE BOTH PROGRESSIVE AND TRANSFORMATIVE.
“This Court is of the opinion that the expression ‘human rights’ cannot be given a narrow or pedantic meaning. It does not refer to the rights of the accused alone. Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medial neglect. In fact, the human rights are both progressive and transformative”.
After this the Hon’ble Court said that employees have a legitimate expectation of promotion. It is not the case of the Appellant that its employees and officers cannot file legal proceedings to air their grievances with regard to service conditions and wrongful denial of promotions.
“The intent of service jurisprudence at the level of any establishment/organization is to promote peace and harmony and at the level of the society, the objective is to promote human rights. If employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic”.
Importantly , the court also said that
“In fact, RTI Act is a tool which facilitates the employees and officers in airing their grievances systematically. According to Statement of Objects and Reasons, the intent and purpose of RTI Act is to secure access to information in order to promote transparency and accountability in the working of every public authority. It is said that ‘Sunlight is the best disinfectant’ and RTI Act promotes the said concept. Consequently, both service and RTI laws ‘act like a safety valve in the society”
In the opinion of the Hon’ble Court
“The employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment. To hold so would amount to holding that those who serve in these organizations have no human rights”.
Also in the present case, non-supply of the information/documents is a human rights violation as in the absence of the same respondent would not be able to agitate her right to promotion. However, this Court is of the view that information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Sections 8(1)(j) [3]and 11 of the RTI Act[4]
JUDGMENT
The Hon’ble Court held that
“Consequently, this Court directs the Appellant to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time”.
Accordingly, the present appeal stands disposed of with the above directions
[1] Section 24 in The Right To Information Act, 2005
24. Act not to apply to certain organizations.—
(1) 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.
( emphasis supplied)
[2] 2011 SCC OnLine Del 1212
[3] Section 8 in The Right To Information Act, 2005
8. Exemption from disclosure of information.—
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(j) information which relates to personal information the disclosure of which has not 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.
[4] Section 11 in The Right To Information Act, 2005
11. Third party information.—
(1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub‑section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub‑section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub‑section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.
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