State Vigilance Department Can't Be Completely Exempted From Operation Of RTI Act: Orissa High Court

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"Thus, it is seen that what cannot be kept outside the purview of disclosure under the RTI Act as spelt out in the proviso to Section 24(4) of the RTI Act is information pertaining to "allegations of corruption and human rights violations" in both sub-categories of cases as noted hereinbefore viz., cases generally concerning allegations of corruption and human rights violations which are under investigation by or have been investigated by the concerned intelligence and security organisations established by the State Government' or cases concerning allegations of corruption and human rights violations involving those working for or employed by the said organisations established by the State Government."

Brief Facts:

Three writ petitions, each filed by way of Public Interest Litigation (PIL), involved challenges to the notification dated 11th August 2016 issued by the Commissioner-cum-Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005. The said notification provided that "nothing contained in the RTI Act shall apply to the General Administration (Vigilance) Department of the Government of Odisha and its organization".

Contentions of the Petitioners:

The main ground of challenge to the impugned notification was that it violates Article 19(1)(a) of the Constitution which guarantees to all citizens the fundamental right to information. It was submitted that under the RTI Act, disclosure is the norm and refusal of information is the exception.

Referring to Section 24(4) of the RTI Act and, in particular, to the proviso thereto, it was contended that the power of exemption granted to the State Government thereunder is not available even in the case of intelligence and security organizations where the allegations pertain to corruption and human rights violations. Therefore, inasmuch as the impugned notification seeks to exempt the entire Vigilance Department in Odisha from the purview of the RTI Act, irrespective of the proviso to Section 24(4), it is ultra vires Section 24(4).

It was also submitted that by the impugned notification the Government intends to keep away from disclosure to the public, instances of corruption and human right violations, notwithstanding the proviso to Section 24(4) of the RTI Act. It was further submitted that the notification issued under Section 24(4) of the RTI Act or even the Rules made under Section 28 of the RTI Act cannot exceed the scope of the restriction under Section 24 of the RTI Act. The Rules and the notifications are meant to carry out the provisions of the RTI Act and not whittle down or take away what is guaranteed by the RTI Act, they added. They further alleged that the impugned notification imposes a restriction not envisaged under Sections 8 and 9 of the Act.

Contentions of the Respondents:

Mr. Sailaza Nandan Das, Additional Standing Counsel for the State of Odisha and Mr. Srimanta Das, Senior Standing Counsel for the Vigilance Department submitted that if the Department were not to be exempted from the purview of the RTI Act then all kinds of information regarding the functioning of the said Department would become available to the public and that would be against the interests of the security and public interest.

Specific reference was made to the fact that under Section 8(1)(h) of the RTI Act, information that is otherwise to be made available only under the orders of the Court like the information under Section 91 read with Section 311 of Cr.P.C. or under Section 162 of the Indian Evidence Act read with Section 123 thereof, would become easily available to an applicant and this in turn might impede the progress of investigation or the prosecution of the case and delay the trials.

The State Vigilance Department contended that revealing confidential information under the RTI Act to an individual, or an organization or even an aggrieved person at any stage would impede the entire process of an enquiry into corruption. It was argued that Section 8(1)(h) of the RTI Act does not adequately cover the confidential process which is undertaken in order to build up an enquiry against a corrupt person.

Further, it was stressed that the first proviso to Section 24(4) of the RTI Act regarding allegations of corruption and human rights violation is in an entirely a different context and should not be misconstrued as information regarding corruption which is under investigation. Reliance was placed on the decision of the Madras High Court in S. Vijayalakshmi v. Union of India, AIR 2011 Mad 275.

They also highlighted the fact that the Allahabad High Court in its order dated 25th October, 2010 in Saleem Baig v. State of U.P. and the Madras High Court in Superintendent of Police v. M. Kannappan, (2013) 1 MLJ 348 had upheld the constitutional validity of a similar notifications under Section 24(4) of the RTI Act keeping their respective Vigilance Departments out of the purview of the RTI Act and held it not to be ultra vires the RTI Act.

Therefore, it was submitted that if the Vigilance Department is not exempted from the scope of the RTI Act, it would frustrate the intent of the legislature while inserting Section 8(b) of the RTI Act. While highlighting the possible repercussions, it was contended that even under Section 172 of the Cr.P.C., an accused does not have a right to seek to see the Case Diary whereas in the absence of the impugned notification such statements may become easily available under the RTI Act.

Relying on the decision in Girish Ramchandra Deshpande v. Central Information Commissioner, (2013) 1 SCC 212, it was submitted that protection from the "probing eyes of outsiders" needs to be provided to vigilance officers in performing their duties. The performance of an employee in an organisation is a matter between the employee and employer which would be governed under service rules falling under "personal information" under Section 8(1)(j) of the RTI Act, they added. It was also submitted that the Government issued the impugned notification after receiving representations from the Vigilance Department that they were facing difficulties due to queries raised under the RTI Act.

Court's Observations:

The Court held that first proviso is an important check on the above power of the State Government. It specifically states that information pertaining to the allegations of corruption and human rights violations shall not be excluded under sub-section (4) of section 24 of the RTI Act. According to the Bench, there could be at least two broad sub-categories here, viz.

• cases generally concerning allegations of corruption and human rights violations which are under investigation by or have been investigated by the concerned 'intelligence and security organisations, being organisations established by the State Government'; and
• cases concerning allegations of corruption and human rights violations involving those working for or employed by the concerned 'intelligence and security organisations, being organisations established by the State Government'.

The Court did not accept the plea of the opposite parties that the information that stands protected from disclosure under Section 8 of the RTI Act will straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act. The Court observed that Section 8 of the RTI Act opens with a non-obstante clause. The other factor is that the category of information that is highlighted in the first proviso to Section 24(1) and Section 24(4) of the RTI Act viz., "information pertaining to the allegations of corruption and human rights violations" is not found mentioned as such in Section 8 of the RTI Act. Thus, what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well.

Further, it was noted, the second proviso under Section 24(4) of the RTI Act provides a second layer of protection to a public servant, when it states that the information sought in respect of the allegations of violation of human rights shall be only be provided "after the approval of the State Information Commission". Therefore, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other, it held.

Thus, as regards the process to be adopted in dealing with the applications under the proviso to Section 24(4) of the RTI Act, inasmuch as Section 8 of the RTI Act opens with a non-obstante clause, if the information sought is covered thereunder it can be disclosed after satisfying the requirements of Section 8 of the RTI Act with regard being had to the true purport of the proviso Section 24(4), the Court observed.

Accordingly, the Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. "In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 2 (4) of the RTI act and, by that yardstick, would be unsustainable in law. 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 added.

Consequently, the Court issued a declaratory writ to the effect that the impugned notification dated 11th August, 2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, 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. It also directed that a further clarificatory notification to the above effect be issued by the Government of Odisha within four weeks.

Case Title: Subash Mohapatra & Ors. v. State of Odisha & Anr.

Case No.: W.P.(C) No. 14286 of 2016

Judgment Dated: 20^th June 2022

Coram: Dr. S. Muralidhar, CJ. & Radha Krishna Pattanaik, J.

Judgment Authored By: Dr. S. Muralidhar, CJ.

Counsel for the Petitioners: Mr. S.P. Das, Advocate

Counsel for the Respondents: Mr. Sailaza Nandan Das, Additional Standing Counsel (for the State) & Mr. Srimanta Das, Senior Standing Counsel (for the Vigilance Department)

Citation: 2022 LiveLaw (Ori) 104

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