Public interest? Sanction for prosecution under J&KAFSPA: CIC rejects detailed information

By Venkatesh Nayak*

Readers may remember reading a previous despatch sent in April 2018, about an RTI intervention, regarding certain data tabled in Parliament that year, about cases involving allegations of custodial deaths and disappearances of civilians, alleged fake encounters, alleged instances of rape, and allegations of kidnapping, torture and extortion in Jammu and Kashmir (J&K). The Government of J&K had sought sanction from the Central Government for prosecuting the accused in 50 such alleged cases that had occurred between 2001 and 2016. This is an essential requirement under the The Armed Forces (Jammu and Kashmir) Special Powers Act,1990 (J&K AFSPA) under which armed forces of the Union operate in J&K. The Government had informed the Rajya Sabha  that request for sanctioning prosecution was refused in 47 cases due to lack of sufficient evidence, prima facie

Subsequently, an application was submitted to the Union Ministry of Defence (MoD) under The Right to Information Act, 2005 (RTI Act) seeking copies of Standard Operating Procedures (SOPs), criteria and standards of measuring evidence used, designation of the final decision making authority and inspection of the 47 case files. MoD transferred the RTI application to the Indian Army. Both public authorities denied they held in their custody any of the information described in the RTI application. The matter was escalated to the Central Information Commission (CIC) in August 2018. 

The CIC conducted a hearing in February 2020, issued an Interim Order and reserved the final order to allow for additional submissions to be made after the hearing. 

Now in June 2020, the CIC has issued its final order permitting access to a copy of the orders issued by MoD refusing sanction to prosecute in each of the 47 cases. The CIC has rejected access to the concerned case files in the larger public interest.

The RTI Intervention and its Background

On 1st January, 2018, the Union Ministry of State for Defence informed the Rajya Sabha that it had received requests from the J&K Government for sanction to prosecute defence personnel in 50 cases that occurred between 2001-2016. While the requests were pending in three cases, the Government had denied sanction to prosecute the accused in 47 cases involving allegations of “murder or killing of civilians” (16 cases), “rape” (2 cases), “death in security operations” (10 cases), “custodial death” (3 cases), ” beating or torture” (2 cases), “abduction and death (of the abducted person)” (3 cases), “disappearance” (7 cases), “illegal detention” (1 case) “fake encounter” (1 case) and “theft and molestation” (2 cases).  Under Section 7 of J&K AFSPA “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred…” by the Act.

In February 2018, an RTI application was submitted to the Union Ministry of Defence stating as follows:

Apropos of the reply to Unstarred Question No. 1463 tabled in the Rajya Sabha on 01/01/2018 (copy along with Annexure is enclosed), by the Hon’ble Minister of State in your Ministry, I would like to obtain the following information under the RTI Act:

1) A clear photocopy of all official records containing details of the procedure that is required to be followed by your Ministry while deciding whether or not to grant sanction for prosecuting any member of the defence forces for actions committed under the Armed Forces (Jammu and Kashmir) Special Powers, 1990 (J&K AFSPA), including channel(s) of supervision over and accountability of such decision making procedure;

2) A clear photocopy of all official records/documents containing the norms, criteria and standards that are required to be applied for assessing the evidence submitted by the Government of Jammu and Kashmir in relation to its request for sanction for prosecuting any member of the defence forces for actions committed under J&K AFSPA;

3) The rank or designation of the officer who is competent to make a final decision on whether or not to grant sanction for prosecuting any member of the defence forces for actions committed under J&K AFSPA in any case (name of the officer is not required);

4) A clear photocopy of the communication sent by your Ministry to the Government of J&K denying sanction for prosecution of members of the defence forces in all cases listed in the Annexure to the reply to the said Unstarred Question; and

5) Inspection of every file including all papers, correspondence, file notings and emails, if any, relating to the denial of sanction for prosecution of members of the defence forces as per the list annexed to the reply to the said Unstarred Question and supply of clear photocopies of the relevant papers and electronic files identified by me during the inspection.”

The CPIOs’ replies

The Central Public Information Officers (CPIOs) of MoD eventually transferred the RTI application to the CPIO of the Indian Army. After a round of first appeals submitted to both public authorities, the bottom line that emerged was, both of them claimed, they did not have in their custody any information sought in the said RTI application. Click here for the CPIOs’ replies and first appeals related documents.

The CIC directs disclosure of some information and rejects access to case files

second appeal was filed with the CIC in August 2018. The Chairperson and International Director of CHRI and Commodore Lokesh Batra (retd.) assisted during the hearing scheduled on 18th February, 2020 (i.e., almost 18 months after the second appeal was filed). A week later the CIC issued an Interim Order allowing additional submissions to be filed by all parties to the case. In its Interim Order, the CIC recorded the factual status regarding the physical custody of the 47 case files as follows:

“At this point, Respondent No. 2” (i.e., CPIO, MoD) “clarified that the cases of prosecution sanction are processed by the Ministry in a single file system originating from Army Headquarters and all the files in which cases of prosecution were processed are in the custody of AHQ” (i.e., Army Headquarters)… “Respondent No.3″ (i.e., CPIO, Indian Army) did not refute the submissions of Respondent No.2 and agreed to abide by the order of the Commission.”

Last week, on 5th June, 2020, the CIC has issued its final order (uploaded on the CIC’s website on 9th June) in this case ruling inter alia as follows:

“Adverting to the aforesaid discussion, Commission is not in a position to order any relief on para 5” (i.e. inspection of 47 case files in which sanction for prosecution was denied). “Yet keeping in view the Appellant’s contention in his written submission that Respondents have not claimed Section 8(1)(a) of RTI Act for denial of information on para 5… till date, Commission directs Respondent No. 3” (i.e., CPIO, Indian Army) “to provide a copy of their written submission (sent in compliance of Interim Decision) dated 17.03.2020 to the Appellant free of cost.” (emphasis in the original)

“2. Now… for paras 1 & 2 of the RTI Application, Commission directs the Respondent No. 2” (i.e., CPIO, MoD) “to file an appropriate affidavit stating that there are no official records containing details of procedure or the norms, criteria and standard that is required to be followed by the Ministry while deciding the evidence submitted by Jammu and Kashmir Government in prosecution sanction cases. The said affidavit should be sent to the Commission with a copy duly endorsed to the Appellant.” (emphasis in the original)

“3. Further, as regards para 3 of the RTI Application, although the submission of Respondent No. 2 has been recorded in the Interim Decision stating to the effect that the Defence Minister is the competent authority for taking decision, on sanction/denial to prosecute the accused army personnel, however, Appellant has expressed his objection that the same has not been recorded in writing. In view of this, Commission directs Respondent No. 2 to resend a copy of his written submission dated 11.02.2020 (sent prior to the hearing of 18.02.2020) free of cost to the Appellant wherein relevant inputs have been recorded.” (emphasis in the original)

“4. Furthermore, Commission directs Respondent No. 2 to provide a copy of the communication sent by the Ministry to the Government of J&K denying sanction for prosecution as sought at para 4 of the RTI Application to the Appellant, free of cost. In doing so if the information needs to be accessed from any other record holder, Respondent No. 3 will procure the same and provide it directly to the Appellant.” (emphasis in the original)

“5. The aforesaid directions should be complied by Respondent No. 2 & 3, respectively, within 15 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission.”

In support of its decision to reject the request for inspection of the 47 case files, the CIC has reasoned as follows:

“Commission has considered the detailed arguments of the Appellant and the stance of Respondent No. 3 as regards the denial of information on Para 5… under Section 8(1)(a) of RTI Act. While admittedly, Appellant has raised quite valid objections expounding larger public interest citing the Hon’ble Supreme Court judgement in the matter of Extrajudicial Victim Families Association Manipur (EEVFAM) & Anr Vs. Union of India & Anr., however we ought to appreciate the fact that the instant case hinges on an extremely sensitive aspect of the Kashmir conundrum. Given the limited jurisdiction of the Commission under RTI Act, the bench is neither adjudging the merits of the violation of human rights argument of the Appellant in relation to the alleged victims or their families nor the conjecture and surmises associated with the denial of prosecution sanction in the 47 cases referred to hereunder. Rather, the facts of the instant case require a dynamic attribution to the meaning of larger public interest within the framework of RTI Act by associating non-disclosure with larger public interest.”…

“Commission is in complete agreement with Respondent No. 3 that disclosure of the elaborate aspects of the Army Operations will impact future operations. The disclosure of operational details will gravely impact the security and strategic preparedness of the Armed Forces, which by common knowledge is vital to the State’s diaspora. The other aspect of sensitivity lies in the inevitable vulnerability of this subject matter to speculations cutting across national and international borders; perhaps even trial by media that will emanate from such disclosure. As a cumulative effect, these eventualities may further compound the situation of unrest and instigate festering emotions in the State in addition to the international ramifications…. Indisputably, the larger public interest of the State (vis-a-vis its susceptibility to unrest) prevails over that of the alleged victims.” (emphasis in the original)

“As regards, the contention of the Appellant that Section 10 of RTI Act can be invoked to severe [sic] the operational details, Commission finds the argument far fetched given the nature and form of information sought. Identifying and severing such intricate details from the papers, correspondence, file notings, emails etc desired in the RTI Application will invariably cause disproportionate diversion of the resources of the public authority as per Section 7(9) of RTI Act.”

In its final decision the CIC did not rule on the prayer included in the Appellant’s additional submission that it may call for and examine the 47 case files before making a determination regarding the applicability of Section 8(1)(a) of the RTI Act and the public interest override contained in Section 8(2) of the Act.

Future developments in this two-years-and-four-months-old case will be posted as and when the Respondent Public Authorities comply with the CIC’s directions or take any other action in this regard.

Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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