By Venkatesh Nayak*
In November 2015, the arrest of the notorious underworld don- Chhota Rajan in Indonesia and his eventual deportation to India hit the headlines in the print and electronic media. According to media reports he was caught in Bali travelling under an assumed identity and an allegedly fake passport. The Central Bureau of Investigation (CBI) is said to have registered a First Information Report (FIR) against unknown officials under the Prevention of Corruption Act, 1988 (PoCA) and other applicable penal laws in this case. A tremendous achievement for India’s law enforcement agencies, no doubt.
Within less than a week of this news report about CBI’s swift action being published in the media, I submitted a formal request under The Right to Information Act, 2005 (RTI Act), seeking a copy of the FIR from the CBI- nothing more, nothing less. The CBI has rejected the request after 49 days of receiving the request claiming that the RTI Act does not apply to it because it is an exempt organisation under Section 24 of the Act. What is problematic with the CBI’s reply?
The Central Public Information Officer (CPIO) of the CBI has claimed that being exempted through a notification issued in June 2011 by the Department of Personnel and Training, the RTI Act is not applicable to that organisation. This is another instance of the impunity with which several exempt organisations treat RTI applications.
The proviso underneath Section 24 of the RTI Act makes it clear that even exempt organisations must provide information about allegations of corruption. According to the media report attached to the RTI application, the FIR is said to have been registered under PoCA. Clearly, no FIR would have been registered suo motu under the provisions of PoCA if the CBI were not investigating a case of corruption involving issuance of the allegedly fake passport by officials of the Indian Mission in Sydney.
By CBI’s own admission, there is an allegation of corruption. Nevertheless it does not want to part with a copy of the FIR. It must be pointed out that this is another addition to the long list of cases where the CBI has not only refused to disclose information about corruption cases it has been investigating but also cases of corruption charged against its own officers, despite several decisions from the Central Information Commission (CIC) requiring disclosure. All these orders have been stayed in various High Courts and there is no end in sight for this litigation.
According to the Department of Posts, the envelope containing the RTI application was delivered to the CBI on 10th November- within less than a week.
Nevertheless the CPIO claims that the information request was received in his branch only on 12/12/2015. Where all did the RTI application go for more than a month remains a mystery. Once again the CBI does not find itself bound to respond to an RTI application within the statutory time limit. Another demonstration of impunity and lack of respect for the law passed by Parliament.
While the Hon’ble Supreme Court chose to describe the CBI as a “caged parrot” in 2013, implying how it acted at the best of its political masters, its attitude towards ordinary citizens is haughty to say the least. In all likelihood disclosure of the FIR may not jeopardise the investigations because according to media reports no official has been named in it. While the police in Delhi, Punjab, Maharashtra and Odisha are taking progressive steps towards making FIRs readily accessible to people through their websites, the CBI is hanging on to the age old practice of secrecy despite a clear statutory mandate to act otherwise.
Now the battle moves to the First Appellate Authority of the CBI who in all likelihood will support the CPIO’s decision. From there one goes to the CIC where it will take a couple of years for this matter to be resolved, given the huge pendency of appeals and complaints. By then the information would be of little value to any person. So, the noble intention of Parliament in carving out transparency exceptions for excluded organisations like the CBI is frustrated again.
Foreign Ministry earlier denied information about the fake passport on grounds of “privacy”!
Around the same time as the RTI application sent to the CBI, I had submitted another RTI application to the Ministry of External Affairs (MEA) asking for all records relating to the issuance of the allegedly fake passport. Although the RTI application did not mention the underworld don or the person in whose name the passport was issued, the fact that the MEA transferred a part of the RTI application to the Indian Consulate in Sydney makes it clear that they knew which passport was being referred to in the RTI application.
Nevertheless the MEA invoked Section 8(1)(j) of the RTI Act to reject the request holding that it was “personal information” and also cited a judgement of the Hon’ble Delhi High Court in support of its rejection. In this case the High Court overturned an order of the Central Information Commission to disclose certain information relating to an individual’s passport citing absence of public interest.
To cite this judgement in order to protect the disclosure of information relating to a fake passport is a misinterpretation of the law indeed. It is not clear whose privacy MEA is desirous of protecting – the fake individual in whose name the passport was issued or the individual who used the fake passport. Its is also strange that a few months ago the same Government expressed doubts about whether Article 21 of the Constitution was correctly interpreted to include the right to privacy of individuals and urged the Hon’ble Supreme Court to conclusively decide this matter through a Constitution Bench of appropriate strength.
The very constitutional basis for Section 8(1)(j) as a trump on citizens’ right to information has disappeared thanks to the submissions of the Government of India made through the Attorney General of India. My previous email alerts on this issue linked to the constitutionality of UID/Aadhaar are accessible at the hyperlinks. One would have expected the MEA to reject access to information by invoking national security or protection for fair police investigation and fair trial – both of which would have been valid grounds under the RTI Act to some extent, but that does not seem to be the case here. The PIO who is authorised to determine whether the information can be released to promote the public interest did not even apply that test while making his decision.
The MEA gave a vague reply to the query about the procedures followed to determine the legality and correctness of the procedures followed for issue of fresh passports by Indian Missions Abroad. It only replied with information that is already known about the laws and rules that apply for the issue of passports. Obviously the bureaucracy does not want to be transparent about such major issues of immense public interest.
Citing in my RTI application, a reference to the speech made by the Hon’ble Prime Minister at the CIC’s Annual RTI Convention about the right of citizens to demand accountability from public authorities was also of no use. The Indian Consulate in Sydney has not yet replied to queries 3-4 of my RTI application sent to MEA which is about the name and designation of the officer who issued the ‘fake passport’ and all file notings related to that decision. 30 days have lapsed since the RTI application was transferred to the Indian Consulate in Sydney.
Why is seeking all this information important? Obviously, the strength of laws such as the RTI Act are tested best in their application to rare but important cases that have a major public interest angle such as this one. In the 11th year of the implementation of the RTI Act, it is important to test the limits of the law in addition to seeking other kinds of routine information about governance.
Even such information about routine matters is increasingly difficult to obtain in many jurisdictions. It would help if readers would also seek information of this kind in large numbers. When more and more people seek information of this nature, public interest in the matter would be evidenced in a big way making it difficult for the public authorities to deny access to such information.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi