The Calcutta High Court ruled that the Vigilance Department of the State was not exempted from the operation of the Right to Information.
The three writ petitions, each filed by way of Public Interest Litigation (PIL), involve a challenge to the impugned notification issued by the Commissioner-cum-Secretary, Information and Public Relations Department, Government of Odisha under Section 24 (4) of the Right to Information Act, 2005 (RTI Act), and are accordingly being disposed of by the common judgment. The said notification provides that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.
Advocate S. P. Das, appearing for the petitioner, submitted that the main ground of challenge in the three writ petitions to the impugned notification is that it violates Article 19 (1) (a) of the Constitution of India which guarantees to all Indian citizens the fundamental right to information.
He submitted that under the RTI Act disclosure is the norm and refusal of information, the exception. Reliance in this regard is placed on the decisions in State of Uttar Pradesh v. Raj Narain, S.P. Gupta v. President of India and Union of India v. Association for Democratic Reforms.
Referring to Section 24 (4) of the RTI Act and, in particular, to the proviso thereto, he argued that the power of exemption granted to the State Government thereunder is not available even in the case of intelligence and security organizations where the allegations pertain to corruption and human rights violations.
In reply to the writ petitions, the stand of the Opposite Parties (State) is that the activities of the Vigilance Department and its organizations are similar to that of the Central Bureau of Investigation (CBI) which is entrusted with the responsibility of administering anti-corruption laws. It is pointed out that the Government of India has exempted the CBI from the purview of the RTI Act since 2011. Likewise, the States of Tamil Nadu, Madhya Pradesh, Uttar Pradesh and Sikkim have issued notifications exempting their respective Vigilance Departments from the purview of the RTI Act.
It is submitted that the Vigilance Department of the Government of Odisha and its organization are functioning as the premier anti-corruption agencies of the State and are entrusted with the responsibility of implementing an effective prevention, enforcement and prosecution mechanism thereby ensuring transparency and good governance for the benefit of the people. The essential tasks of the Vigilance Department are stated to be the collection of secret intelligence and making of secret discreet inquiries on the corrupt activities of public servants.
The division bench of the Chief Justice S. Muralidhar and Justice R.K. Pattanaik found 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 1st proviso to Section 24 (4) of the RTI Act.
The court said that 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 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 stated that in effect, therefore, by virtue of the decision of the Court, the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification, 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.
The Court issued a declaratory writ to the effect that the impugned notification issued by the Information and Public Relations Department, Government of Odisha under Section 24 (4) of the 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 court ordered that a further clarificatory notification to the above effect be issued by the Government of Odisha within four weeks.
Case title: Subash Mohapatra v/s State of Odisha and another
Citation: W.P.(C) Nos.14286, 16718 and 17950 of 2016