Political convenience shouldn’t lead to exemptions from RTI

The Right to Information Act, 2005 says nothing contained in the RTI Act will apply on the organization which are listed in the second schedule of the Section 24, provided that the information (any material in any form) held by or under the control of the public authorities related to allegations of corruption and human rights violation shall not be covered under the exemption.

Recent inclusion of CBI in the list of exempted organizations is one of the most debated as it primarily deals with corruption cases which are not covered in the protection given to organizations under Section 24 of the RTI Act.

Subsequently, a two-member committee constituted by the CIC has said that such decisions (inclusion of CBI in the list of exempted organizations) to shield organizations from the transparency law should not be the result of “political convenience or other extraneous factors“.

Quick Reference

Section 24: Act not to apply to certain organizations

  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 sub‑section: 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 the 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 the receipt of request.
  2. The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organization established by that Government or omitting there from any organization already specified therein and on the publication of such notification, such organization shall be deemed to be included in or, as the case may be, omitted from the Schedule.
  3. Every notification issued under sub‑section (2) shall be laid before each House of Parliament.
  4. Nothing contained in this Act shall apply to such intelligence and security organizations, being organizations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub‑section: 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 the approval of the State Information Commission and, notwithstanding anything contained in Section 7, such information shall be provided within forty five days from the date of the receipt of request.
  5. Every notification issued under sub‑section (4) shall be laid before the State Legislature.

Subramanian Swamy v. Director, Central Bureau of Investigation & Anr

Related to the corruption issue where, the Supreme Court held that the Central Bureau of Investigation did not need sanction from higher authorities to investigate top bureaucrats.

Subramanian Swamy v. Director, Central Bureau of Investigation & Anr

Constitution Bench of the Apex Court, comprising five judges, headed by Chief Justice R M Lodha quashed Section 6A of the Delhi Special Police Establishment Act, which mandated prior sanction in case of senior officers in corruption cases.

Section 6-A of the Delhi Special Police Establishment Act, 1946 (for short, ‘the DSPE Act’), which was inserted by Act 45 of 2003, reads as under;

Section 6-A: Approval of Central Government to conduct inquiry or investigation

  1. The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to –
  2. the employees of the Central Government of the Level of Joint Secretary and above; and
  3. such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
  4. Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).

The bench further said that, this section also violates Article 14 of the Constitution. Terming that the provision is discriminatory and divides the bureaucracy into two sets of officers and shields those at the senior level, the Court observed that, “All government officials have to be treated equally and have to face the same process of inquiry in graft cases.”

Court further noted that, “Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”

Read the Judgment

Supreme Court orders CBI Chief to keep off 2G cases

In an unprecedented order, the Supreme Court on Thursday ordered CBI director Ranjit Sinha to completely keep off the 2G case as it found prima facie “credible” the charges that he had attempted to help the accused in the spectrum scam, as well as delay prosecution in the Aircel-Maxis case which involves former telecom minister Dayanidhi Maran.

“We direct the CBI director not to interfere in the 2G-scam investigation or prosecution. He will recuse himself from the case. The investigation team constituted in the CBI to probe this case will take over the handling of the case in place of Ranjit Sinha,” the court said.

A bench of Chief Justice HL Dattu and justices Madan B Lokur and AK Sikri refrained from spelling out the reasons for its extraordinary decision which rendered Sinha’s tenure as head of the investigating agency ignominious.

“To protect the fair name of the CBI and to protect the reputation of the CBI director, we are not giving elaborate reasons. Suffice it for us to observe that information furnished by the applicant (CPIL) appears to be prima facie credible. So, it needs to be accepted. We reiterate that we are not giving elaborate reasons as the CBI has its own reputation and we don’t intend to tarnish it,” the bench said.

SC-appointed special public prosecutor Anand Grover, who on court orders examined the evidence on Sinha’s alleged misdeeds in the 2G-scam case, held that the evidence provided by the petitioner was credible. Grover slammed the CBI director’s conduct and, in fact, said he could even face criminal contempt for attempting to obstruct administration of justice in the 2G-scam case.

The bench emphatically rejected the defence of Sinha’s counsel Vikas Singh that the CBI chief had done no wrong. “He is the head of the CBI. He should have the independence to take administrative decisions. All decisions taken were within the four corners of law and CBI manual,” Singh said.

The order, just days before Sinha’s retirement, will ensure that he leaves on an embarrassing note, perhaps keeping with the trajectory of a tenure which saw the court coming down hard on him for getting the ‘Coalgate’ probe report vetted by the UPA government before submitting it to court. The episode saw the court likening the agency to a “caged parrot”.