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

The Odisha High Court passed a judgement on 20.06.2022. In the case of Subash Mohapatra & Ors. v. State of Odisha & Anr (W.P.(C) No. 14286 of 2016) And the Judgement was passed by S. Muralidhar, CJ. & Radha Krishna Pattanaik, . .In a significant decision, the Orissa High Court has held that the Vigilance Department of the State 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.

FACTS OF THE CASE

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 organization”. 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 u vires Section 24(4). 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. 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. 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.PC, 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.

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 Investigation by or Rights violations which are under have been security Concerned Investigated by the Intelligence And Organisations, being organisations established by the State Government. · cases concerning allegations of Corruption and human rights violations involving those working for or employed by the concerned organisations, being organisations Intelligence And security Established by the State Government. 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. 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 KUNMUN DAS..

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