Orissa High Court | Notification exempting Orissa Vigilance Department from the purview of RTI is ultra vires of RTI Act, 2005

Orissa High Court

   

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘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.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, 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.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, WP (C) No 14286 of 2016, decided on 20-06-2022]


Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

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