Information relating to enquiries & court-martials conducted by BSF, Rashtriya Rifles, CRPF, ITBP, SSB, CISF, IB, IRP in J&K denied u/s 24 - CIC: disclose the number of cases, allegation & punishment awarded in human rights violation & corruption cases5 Mar, 2014
Information relating to enquiries & court-martials conducted by BSF, Rashtriya Rifles, CRPF, ITBP, SSB, CISF, IB, IRP in J & K between 1990 and 2011 denied u/s 24 - IB provided a brief of allegation and penalty awarded in relation to the corruption case in J & K for the period from Jan 1990 to Feb 2012 - CIC: disclose the number of cases, allegation in brief and the punishment/ award granted relating to human rights violation & corruption cases on the lines as provided by the IB - information like name of the security personnel, details of incident, FIR No. is exempt from disclosure in view of the Supreme Court judgment in Girish Ramchandra Deshpande v. CIC & Ors. and u/s 8(1)(j)
1. The appellant is not present for the hearing. The respondent MHA is being represented by Dinesh Mahur (Director, Personal). Sashastra Seema Bal is being represented by David Lalrinsanga (DIG/Pers). Central Reserve Police Force is being represented by Smt Anupam Kulshreshtha (IPS), Marianus Minj (DIGP), A.K Bharadwaj (Comdt. Ops), Madan Mohan (Dy. Comdt.) & SBS Bist (Dy. Comdt.) Central Industrial Security Force is being represented by Jaideep Prasad (DIG), Harpreet Kaur (AIG/Ops) & Bhag Singh. Indo Tibetan Border Police is being represented by Ashok Kumar (DIG/Adm) and Pawan Kumar (2 I/C) (L). Border Security Force is being represented by KJS Bains (DIG). Intelligence Bureau is being represented by U.K Shukla (Dy. Director) & S.P Dubey (Asst. Director).
2. The appellant filed an RTI application dated 10.1.2012 (in file no. CIC/SS/A/2012/002139,CIC/SS/A/2012/002142,CIC/SS/A/2012/002144, CIC/SS/A/2012/002145,CIC/SS/A/2012/002146,CIC/SS/A/2012/002148) Addressed to MHA seeking information relating to the enquiries and court-martials conducted by Border Security Force, Rashtriya Rifles, Central Reserve Police Force, Indo-Tibetan Border Police Force, Sashastra Seema Bal, Central Industrial Security Force, Intelligence Bureau and Indian Reserve Police in Jammu and Kashmir between 1990 and 2011, including the following information :
“i) Number and details of enquiries and court martials conducted
ii) Names of the accused persons and their units
iii) Results of the enquiries/court martials including the quantum of punishment ordered
iv) Charges framed against the accused persons
v) FIR numbers where present
vi) Details of the incidents alleged/found to have been committed”
The Ministry of Home Affairs transferred the said RTI application under section 6 (3) of the RTI Act to the Ministry of Defence vide letter dated 17.1.2012 which was further transferred to the concerned forces vide letter dated 31.1.2012. The appellant filed first appeal before the MHA which was disposed off vide order dated 22.3.2012 wherein the said first appeal was also transferred to the first appellate authorities of the concerned forces.
3. The view taken by the concerned forces is being reproduced in a nutshell before dealing with the legal issues of the appeal. The respondent security force/s have relied on the exemption granted to them under section 24, second schedule of the RTI Act, 2005. Furthermore, the Commission observes that it is only at the stage of the second appeal and first appeal in case of CRPF, ITBP, BSF that the appellant specified/clarified that the information is sought only in relation to the allegations of human rights violation and/or corruption. The appellant submits in his appeal that if there has been no such case of corruption or human rights violation then that should also be specified/clarified by each concerned security force. The appellant has annexed the reply of Intelligence Bureau dated 27.3.2012 wherein the IB has provided a brief of allegation and penalty awarded in relation to the corruption case in J & K for the period from Jan 1990 to Feb 2012. IB has also specified that besides this one case there is no other case of corruption or Human Rights Violation.
4 The Sashastra Seema Bal vide its written submissions dated 1.2.2013 has apprised the Commission as under:
“The SSB which came under the overall control of Ministry of home Affairs has adopted the code of discipline in the form of court marshal system w.e.f 1.8.2009 after promulgation of SSB Act & Rules. SSB is now performing the Border guarding role alongwith Indo-Nepal and Indo-Bhutan Borders and accordingly the SSB was withdrawn from J & K immediately after its control was shifted to MHA from Cabinet Secretariat in 2001. As such, no proceedings in the form of Court Marshal against any SSB personnel in relation to any case pertaining to J&K has ever happened due to the reasons as explained above. Even prior to 2001 no such cases were reported involving SSB personnel against the common masses.”
5. CRPF has also filed its written submissions of which some relevant points are being reproduced below:
i. Since information sought by the appellant was common/very lengthy/ so old and he had not sought any specific information about any incident which are related to human right violation, his request was rejected under section 24 (1) under which CRPF is exempted to provide information except human right violation/corruption. ii. Moreover, there is no specific case of human right violation has been asked for. COI/PE/DE in this department can be held for various reasons i.e incidents/ accident/ death/ injury/ loss of arms/ammunition and any Govt property/ money/ OSL case/ deserter from force/ indiscipline/ misconduct/ theft etc. COI/PE is being conducted to find out the actual facts/cause of the case. On the finding/opinion of COI/PE, DE can be initiated against personnel to prove the allegation of COI/PE, DE can be initiated against the personnel to prove the allegations leveled against him, if found necessary according to rule on the subject. Therefore, without specifics it is very difficult to shortlist cases of human right violations. iii. As per instruction, retention period of COI files related to incidents/accident/death is 5 years only. iv. That also the information sought is too wide as there are so many COIs/PEs/DEs. The units deployed in CRPF are also changed from time to time…………… therefore, without specific indication of a person/unit/year of deployment, it is very difficult to sort out the exact cases. Further, it is also not possible to transfer applications/case to respective CPIO or collect the information from lower formations from which information are related because as on date 221 Bns of CRPF are presently deployed in different places in India for which 100 CPIOs and 34 Appellate Authorities have been designated by this department. As per DOPT OM No. 1/18/2011-IR dated 16/9/2011 “only such information can be supplied under the Act which already exists and is held by the public authority or held under the control of the public authority. The public information officer is not supposed to create information.” The same issue has been elaborated by the Supreme Court in the matter of Central Board of Secondary Education & Anr Vs Aditya Bandopadhyay & Ors. (Civi Appeal No. 6454 of 2011) as follows: “Where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions.” v. No specific directive regarding human right violation for CRPF, however as per law it, a) Tortured & death, abused, custodial death , rape, killing of innocent person, Harm/hurt somebody, harassment by police leads to suicide, police harassment/mistreatment and torture, illegal detention /abduction, torture and false implication by police. Fake encounter by police, unjustified arrest/detention of person.
b) Negligence of public authorities/police, restricted in their freedom
c) Safe place to stay, payment for work, social security, freedom of thought, expression, democracy, education, play privacy, freedom to move, right to life, equality, human dignity freedom and security of the person.
d) Freedom from slavery servitude and forced labour, privacy, freedom religion, belief and opinion, freedom of expression, freedom of association, freedom of movement and residence, labour relations, housing, health care, food water and social security education, access to information, language and culture. That also is too wide a definition to zero in out of so many COIs/PEs/Des.”
6. The Central Industrial Security Force has filed following submissions before the Commission: “The information asked by the applicant i.e. Enquiries and Court Martial on corruption and human rights violations (in relation to civilians and fratricidal killing) in Jammu and Kashmir during the period 1990-2011. Moreover, Court Martial is the system of trying cases of breach of military law or war crimes committed by military personnel but not for CISF personnel which is a CAPF (Central Armed Police Force). The information asked by the applicant pertaining to enquiries in J & K is not specific; hence his appeal is not maintainable.”.
The Indo Tibet Border Police and Central Reserve Police Force has referred to the provisions of section 24 (1) of the RTI Act seeking directions/approval from the Commission.
7. Section 24 (1) of the RTI Act, 2005 is being reproduced : “(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the Central Government or any information furnished by such organizations to that Government : Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this subsection: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of receipt of request.
8. In the present appeal before the Commission the appellant has sought information in relation to cases pertaining to corruption and human rights violation. The Commission is of the view that there is no harm in providing such information after the conclusion of the case. It will only be in the furtherance in relation to functioning of transparency of the organization. The proviso to the section 24 specifically states that the information regarding the allegation of corruption and human rights violation shall not be excluded. The said provision has been added due to certain reasons. In the era of transparency and also that human rights violations and corruption are very important issue/s and therefore such proviso has been added to the exempted organizations. In view of the above the Commission directs disclosure of the number of cases, allegation in brief and the punishment/award granted relating to human rights violation and corruption on the lines as provided by the Intelligence bureau. The CPIO shall seek assistance of the other CPIO as per section 5 (4) of the RTI Act, 2005 and provide the information as held on record within three weeks from the receipt of the order. If no such incident/case has occurred the same shall also be intimated to the appellant. However, the respondent security force has submitted that the definition is too wide to zero in out of so many COIs/PEs/Des. The Commission is of the view that the CPIO shall provide such details in relation to the para 5 (v) (a) of the submissions of the CRPF wherein incidents of the nature of custodial death, rape, killing of innocent person, fake encounter etc have been referred to. The said para 5 (v) (a) is being reproduced here as under: “Tortured & death, abused, custodial death , rape, killing of innocent person, Harm/hurt somebody, harassment by police leads to suicide, police harassment/mistreatment and torture, illegal detention /abduction, torture and false implication by police. Fake encounter by police, unjustified arrest/detention of person.”
9. In the matter of Girish Ramchandra Deshpande Vs Central Information Commission & Ors. The Hon’ble Supreme Court vide Judgement dated 3.10.2012 has held as under: “13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.”
10. In the present appeal, the Commission is of the view that the rest of the information like name of the security personnel, details of incident will attract, FIR No. is exempt from disclosure in view of the decision of the Hon’ble Supreme Court and under section 8 (1) (j) of the RTI Act, 2005. The appeal is disposed off accordingly.
Chief Information Commissioner
Citation: Mr. Gautam Navlakha v. Ministry of Home Affairs, Border Security Force, Central Industrial Security Force, Central Reserve Police Force, Indo-Tibet Border Police, Sashastra Seema Bal in Case No. CIC/SS/A/2012/002139 CIC/SS/A/2012/002142 CIC/SS/A/2012/002144 CIC/SS/A/2012/002145 CIC/SS/A/2012/002146 CIC/SS/A/2012/002148 7.1.2014