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

In a significant decision, the Orissa High Court has held that the Vigilance Department of the State cannot be completely exempted from the operation of the Right to Information Act, 2005 ('RTI'). It directed that information pertaining to allegations of corruption and human rights violations and also information pertaining to activities undertaken by the Department, which are not sensitive or confidential, should be disclosed under the RTI. 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...

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

Jyoti Prakash Dutta

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