CIC upholds denial of information relating to grant of sanction for prosecution: Prof. Sridhar dissents [Read Order]
A Full Bench of Central Information Commission, in a split verdict of two to one, has upheld the decision of a Bank which had denied the information to a person accused of corruption, who had sought information relating to the grant of sanction for his prosecution.
The Bank had denied information on the following grounds
- RTI Act does not apply to the CBI, by virtue of the Second Schedule to the RTI Act, read with Section 24. The information sought cannot be disclosed since it relates to the sanction for prosecution accorded to the CBI and exchanges between the CBI and the Respondents.
- The information sought by the Appellant is exempted from disclosure under Section 8 (1) (g) and (h) of the RTI Act.
- Disclosure of the details concerning the process of grant of sanction for prosecution could endanger the officers who participated in the process.
- Information is exempted from disclosure under Section 8 (1) (h) as its disclosure would impede the ongoing process of prosecution in the CBI Court.
The Information Commissioners, Shri Sharat Sabharwal and Shri Sudhir Bhargava, referring to Surinder Pal Singh case, held that the invocation of Section 8 (1) (h) by the Bank is justified. They also observed that the exemption granted to the CBI from applicability of the RTI Act, in terms of Section 24 (1), would become meaningless if RTI applicants could get from another public authority the very information that they cannot get from the CBI or information inextricably linked to the information and material provided by the CBI to a public authority.
However, in a strong dissenting opinion, Information Commissioner Professor M. Sridhar Acharyulu held that the decision of IOB to deny the information to the accused is illegal, unconstitutional and in serious violation of appellant’s internationally recognized human rights besides the RTI Act. He made the following pertinent observations:
- There are several judicial pronouncements to the effect that RTI is extension of right to freedom of speech and expression as guaranteed by the Constitution of India. It is a fundamental right granted by our Constitution, which cannot be undermined because of an alternative remedy is available.
- The contention of the CBI that information sought cannot be given because it is ‘confidential and secret’ can’t stand because no such exemption is recognized under Section 8 or 9.
- It is the right of the accused to challenge the legality of the ‘sanction’ on sufficient grounds. This Commission cannot decide legality of the sanction, but need to understand the prima facie case to do so to examine the interests of justice. Even according to CBI the investigation was over, charge sheet was filed and the trial commenced. Hence, apprehension of impeding the prosecution is baseless. As accused, he is legally entitled to challenge the validity of sanction of prosecution, but denial of information about details of sanction will obstruct him from exercising the legal right. The Commission has a duty to analyse whether denial to sanction related information on the ground of impeding the trial is impeding the fair trial. Can information be denied at the cost of fair trial? Is it in public interest? No.
- As far as Bank is concerned, the information sought pertains to corruption in the bank. Appellant is obviously seeking these notes to challenge the sanction in court of law. It is his right to access to justice, if he is wrongfully implicated it would be breach of his human right. Hence the information sought by him pertains to either corruption in the organization or violation of human rights. Thus, even if the CBI advised Bank not to give, the Bank is expected to apply its judicious mind, exercise its own discretion and decide based on the provisions of RTI Act, especially the proviso to Section 24, 8(1) (h) and 8(2).
- Placing whole reliance on Surinder Pal Singh (2006) which per incuriam, and ignoring seven reasoned decisions of the same Delhi High Court from 2007 to 2014 as explained above is neither legal nor justified and against express provisions of RTI Act.
- The decision of IOB to deny the information to accused appellant is illegal, unconstitutional and in serious violation of appellant’s internationally recognized human rights besides the RTI Act. The investigating agency, CBI, performing police functions, was a contributor of investigative inputs, while the IOB as sanctioning authority has complete decision making power. It is established that Section 24 was illegally invoked ignoring its proviso
- Regarding section 24 contentions, respondents have to understand that information sought is not ‘security’ or ‘intelligence’ related information, but only about sanction for prosecution, which is part of administrative decision by the concerned authority, disclosure of which would not harm anybody nation, government or the organization, while its denial could prevent accused from exercising his right to challenging it.
Read the order here.