Delhi High Court Seeks Centre's Stand On Plea For Disclosure Of Statistical Information On State Sponsored Electronic Surveillance

The Delhi High Court on Tuesday sought response of the Central Government in a plea regarding disclosure of statistical information pertaining to electronic surveillance.

Justice Yashwant Varma directed the Central government standing counsel to obtain instructions while posting the matter for further hearing on April 28.

The court was dealing with a plea filed by Apar Gupta, a lawyer and the Co-founder and Executive Director of the Internet Freedom Foundation, assailing an order dated January 28, 2022 passed by the Central Information Commission under Section 19 of Right to Information Act.

Troubled by the opacity surrounding the use of Electronic Surveillance, where the public authorities refuse to publish even aggregate statistical information to indicate the adequacy or functioning of the legal supervisory mechanisms of Electronic Surveillance under the 2009 Interception Rules, the Petitioner had on 28 December 2018 filed six RTI applications seeking information from Ministry of Home Affairs. The RTI requests did not ask for any granular detail in the form of specific interception orders, but were limited to aggregate figures alone.

It has been the case of the petitioner that on 29.01.2019, the CPIO had without application of mind, disposed of the Petitioner's requests for information, citing provisions of the RTI Act as well as some case law.

Thereafter, first appeals against were preferred before the FAA. According to the petitioner, the appeals were disposed of without providing any reasons.

Thereafter, Second Appeals were preferred before the CIC on the grounds that FAA's order suffered from non-application of mind, as exemptions under Sections 8(1)(a), 8(1)(g) and 8(1)(h) of the RTI Act were invoked without providing reasons.

The plea thus places reliance on the order passed by the High Court dated December 2, 2022 wherein the the Central Information Commission was directed to decide within 8 weeks, the appeals filed by the petitioner.

In this backdrop, the plea states:

"…the Impugned Order is illegal and liable to be set aside for the following reasons. Firstly, the Impugned Order also considers a new ground that the data is not held by or under the control of the public authority in question. This has not been raised by the Respondent Nos. 1 and 2 at any stage of these proceedings, and the Petitioner has had no opportunity to respond to such claim. Secondly, in the Impugned Order, despite recognising that the Respondent Nos. 1 and 2 have belatedly raised the claim the data sought by the Petitioner was destroyed and did not exist, and even recording admonishments towards the Respondent No. 1 in its Order, the Respondent No. 4 has nevertheless accepted this claim and held that the data cannot be provided as it does not exist. Thirdly, the Impugned Order has inexplicably held that all previous instances where the Respondent No. 3 has disclosed similar data related to cases where "approximate data" could be provided, but that in the present case, the Petitioner's large list of queries precluded the Respondent No. 1-3 from providing the data to him."

Accordingly, the plea seeks setting aside the impugned order as well as all proceedings emanating therefrom.

It also seeks framing of appropriate guidelines and directions to prevent destruction of information sought in RTI proceedings on account of statutory or executive rules or practices on weeding out of documents, during the pendency of RTI proceedings and adequate preservation of the same.

The plea was filed by Advocate Vrinda Bhandari and was argued by Senior Advocate Trideep Pais.

Case Title: APAR GUPTA v. CENTRAL PUBLIC INFORMATION OFFICER, MINISTRY OF HOME AFFAIRS & ORS