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This particular decision is upheld by the High Court of Odisha through the division bench of Justice Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik in the case of Subash Mohapatra & Ors. v. State of Odisha & Anr (W.P.(C) No. 14286 of 2016).

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”.

 

JUDGEMENT

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.

JUDGEMENT REVIEWED BY NAISARGIKA MISHRA

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