N. Kotiswar Singh, J.:— Heard Mr. Th. Khagemba, learned counsel for the petitioner and Mr. R.S Reisang, learned Sr. Government Advocate for the State Respondents.
[2] The present writ petition has been filed by a candidate for recruitment to the post of Sub-Inspector of Police (Male, Civil) in the Manipur Police Department for directing the respondents to furnish certain information relating to marks awarded to him and other successful candidates.
[3] The petitioner was a candidate for recruitment to the post of Sub-Inspector of Police (Male, Civil) in the Manipur Police Department held in the year 2007-2008. Being unsuccessful in the said recruitment process, the petitioner submitted an application on 6.01.2014 to the State Public Information Officer/Special Security (Home), Government of Manipur for furnishing the following information:
(i) Marks scored by the petitioner in the physical efficiency test, written test and Viva Voce;
(ii) Answer Sheets of the petitioner in the written test;
(iii) Names of the selected candidates along with their detail particulars and mark tabulations in the written test as well as in the Viva Voce, who had scored the highest marks and lowest marks in the above mentioned recruitment.
[4] Not having been furnished with the information, the petitioner preferred an Appeal under Section 19(1) of the Right to Information Act, 2005 to the appellate authority, i.e, the Principal Secretary (Home), Government of Manipur which was disposed of by the Appellate Authority by his order dated 08.05.2014 directing the Police Department to consider the petitioner's application dated 06.01.2014 and to furnish the information which falls within the purview of the Act by holding that the information sought for does not come under the exemption clause of para 2 of the Notification dated 25.10.2005 issued by the Government of Manipur by which the Manipur Police Department has been exempted under sub-section 4 of Section 24 of the Right to Information Act, 2005. Subsequent to the direction of the appellate authority, Superintendent of Police, D.G.P Control Room-cum-ASPIO, Police Department, Manipur, Imphal vide letter dated 9.09.2014 however, informed the petitioner that the information cannot be provided in view of the Government of Manipur Notification No. 11/4/2005-AR dated 15.10.2005 Being aggrieved, the petitioner has approached this Court for a direction to the respondent authorities to provide the information as sought for by the petitioner.
[5] The writ petition has been contested by the State authorities by filing affidavit-in-opposition in which it has been stated that the petitioner has not made any allegation either of corruption or human rights violation. Since the Manipur Police Department is exempted from the purview of the Right to Information Act in view of the Government of Manipur Notification dated 15.10.2005 and subsequent corrigendum dated 25.10.2005 and subjected to the provisions of sub-section 4 of Section 24 of the Right to Information Act, 2005 which provides that this exemption will not lie in respect of information pertaining to the corruption and human rights violation. It has been contended that since the petitioner has not made any such allegations, he will not be entitled to the information sought for. This contention of the State respondents has been objected to by the petitioner contending that non-furnishing of the information sought relates to violation of the human rights. It has been also submitted that in an ealeir occasion, the Hon'ble Gauhati High Court vide its order dated 10.09.2012 in W.P(C) No. 554 of 2012 had directed the State respondents to furnish copies of the answer scripts of all the candidates who had been declared to be qualified in the written examination for recruitment to the posts of Sub-Inspector of Police (Male, Civil) in the Manipur Police Department in terms of the application dated 10.01.2012 The petitioner has also relied on the decisions of Chief Information Commission in Case No. CIC/SS/A/2013/000353 passed on 17.10.2013 directing the Ministry of Home Affairs to furnish information relating to interception of telephone number in issue by overruling the objection that such information would attract exemption clause under Section 8(1) of the RTI Act nor it would amount to revelation of information relating to operation of the CBI as contended by the respondents therein. That apart, the petitioner has also relied on the decision of the Hon'ble Supreme Court in CBSE v. Aditya Bandapadhyay, (2011) 8 SCC 497 contending that inspection of the answers scripts is permissible. Petitioner has also relied on the decision of the Hon'ble Punjab and Haryana High Court dated 28.04.2011 rendered in LPA No. 744 of 2011 and LPA No. 745 of 2011 (First Appellate Authority cum Additional Director General of Police v. Chief Information Commission Haryana). In the aforesaid case, Hon'ble Punjab and Haryana High Court, held that information sought for by a candidate relating to the number of posts available and filled in the cadre of the ASIs/Sis/Inspectors and language stenographers could not be denied, by holding that such information pertains to allegation of corruption and disclosure of such information would lead to transparent administration which is antithesis of corruption and information sought for may help in dispelling favouritism, nepotism or arbitrariness.
[6] Learned counsel for the petitioner has also relied on a number of decisions rendered by the Central Information Commission in support of his contention that furnishing of information relating to marks obtained in a recruitment process is permissible under law.
[7] Heard learned counsel for the parties and perused the records.
[8] The Right to Information Act, 2005 (hereinafter referred to as the “Act”) was enacted in the year 2005 for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority as mentioned in the Preamble to the said Act. The said Act was enacted keeping in mind the necessity of democracy of having an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed and to harmonise the conflicting interests of the equally public importance which may arise to maintain efficient operations of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. Thus, while enacting the Right to Information Act, 2005, the Parliament had kept into consideration these two conflicting public interests and while allowing access to information relating to the public authorities, certain restrictions have been also placed, for example, by enumerating the areas as provided under Section 8 of the Act, which provides that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information relating to the matters indicated in Section 8 of the Act. Similarly, certain information relating to the third party has also been restricted as provided under Section 11 of the Act. Section 24 of the Act further provides that nothing contained in the Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government and such organisations established by the State Government as the State Government may from time to time by Notification in official gazette specify. Thus, in respect of these intelligence and security organisations referable to Section 24 of the Act no one will have a right under the Act to seek for information. Yet, a certain exception has been made by opening a window of limited access in respect of information pertaining to allegations of corruption and human rights violation relating to these intelligence and security. In other words, even though these intelligence and security organisations are outside the purview of the Right to Information Act, 2005, yet, in respect of any information pertaining to allegations of corruption and human rights violation relating to these organisations, provisions of the Right to Information Act will become applicable.
[9] It is clear from the pleadings and submissions made, the core objection of the respondents in denying the information to the petitioner relating to the recruitment process of Sub-Inspector of Police is that the Manipur Police Department has been exempted from the applicability of the Right to Information Act, 2005 in terms of Section 24(4) of the Act. Since the Manipur Police Department has been exempted and as no allegation pertaining to corruption and violence of human rights had been made, the petitioner is not entitled to the information sought for.
[10] In view of the above objection of the respondents, the scope of Section 24 of the Right to Information Act, 2005 needs to be understood properly. In this regard, the relevant portion of Section 24 (4) may be reproduced hereinbelow:-
“Section 24(4). Nothing contained in this Act shall apply to such intelligence and security organisations, being organisations 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 not 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.”
[11] Thus, a reading of the aforesaid provisions of the Act would clearly show that what had been taken out from the purview of the Right to Information Act, 2005 by the main part of sub-Section 4 of Section 24 of the Act, has been brought back by the proviso as far as information pertaining to allegations of corruption and human rights violation are concerned. In other words, even if any intelligence or security organisations have been excluded from the purview of the Act on the basis of notification issued in the official gazette by the State such exemption would not be applicable as regards information pertaining to allegations of corruptions and human rights violence. Hence, if the information sought for pertains to allegations of corruptions and human rights violence, even in respect of such intelligence and security organisations, the provisions of the Right to Information Act, 2005 will be applicable. In that context, the expression “information pertaining to allegations of corruption and human rights violence” needs to be understood properly for if any information is covered by the said expression, the authorities are under obligation to provide the information. As to the scope of the aforesaid expression “information pertaining to allegations of corruption and human rights violence” this has been analysed and explained by the Hon'ble Punjab and Haryana High Court in an order dated 28.04.2011 rendered in LPA No. 744 of 2011 and LPA No. 745 of 2011 (supra) which has been relied on by the counsel for the petitioner. The Hon'ble Punjab and Haryana High Court has examined the scope of the expression “information pertaining to allegations of corruption and human rights violence” with reference to the issue involved in the said case as to whether any information in respect of encroachment of the public post or of filling up the public post can be said to be “information pertaining to allegations of corruption and human rights violence”. The Hon'ble High Court observed that this expression is not defined in the Act and even in the definition clauses in the Corruption Act, 1988. Referring to the resolution of the General Assembly of the United Nations in its meeting held on 8th January, 1997 which dealt with the seriousness of the problems of corruption and various facets of corruption, the Hon'ble High Court observed that the public officers are to be attentive, fair and impartial in the performance of their functions and at no time should afford any undue preferential treatment to any group or individual or improperly discriminate against any group or individual, or otherwise abuse the power and authority vested in them and information which relates to the working of a public office and whether such office acted in accordance with laws would be relevant so as to exclude the allegation of corruption. The Hon'ble High Court in the said case held that the information sought for which is in respect of the number of vacancies which have fallen to share of the specified category and whether such posts have been filled up from amongst the eligible candidates, if disclosed, will lead to transparent administration which is antithesis of corruption and help in dispelling favouritism, nepotism or arbitrariness. Accordingly, the Hon'ble Punjab & Haryana High Court directed furnishing of such information.
[12] This Court respectfully agrees with the reasoning and conclusion arrived at for holding that information in the nature sought for in the said case could not be withheld and ought to be disclosed. In the present case, the information sought for relates to the marks obtained by the successful candidates as well as the petitioner and it is the case of the petitioner that the information sought for before this Court is to dispel any doubt over corruption. Therefore, it can be said that the information sought for by the petitioner in the present case also pertains to the allegations of corruption. In this respect, it may be observed that the expression used in this provision is about “information pertaining to the allegations of corruption” and not “information pertaining to corruption”. The earlier expression is of wider import. As per the earlier expression which has been used in the statute, the allegation need not be about a proven corruption or clearly shows existence of corruption. Allegation of corruption may or may not result in proving existence of corruption but there must be indication of the possibility of existence of corruption. However, it does not mean that anybody can seek information by making an allegation of corruption. There must be some proximity or nexus with the information sought and possibility of a corruption. In the present case, if it is found on the basis of the information sought by the petitioner that persons who do not otherwise qualify in terms marks obtained by the candidates have been included in the select list, obviously, the charge of corruption can certainly be validly raised. To that extent such information sought for by the petitioner can be said to be pertaining to allegations of corruption. It is not necessary that the information so furnished would prove an instance of corruption. It would be sufficient if the information so provided leads to a genuine complaint or allegation about the existence of corrupt practice. Therefore, this Court would hold that if the information sought for has a proximate link with the charge of corruption, such information would be covered by the expression “information pertaining to allegations of corruption”. Similar position is with the case where there is allegation of human rights violation. The information sought for so provided per se may not establish corrupt practice or violation of human rights but it forms a valid and reasonable basis for making allegations of corrupt practice or violation of human rights, such information would come within the scope of the expression “information pertaining to allegations of corruption and human rights violation”. This Court would hold that if any such information has the potential to raise a serious question of the existence of corruption or violation of human rights, it can be certainly considered to be “pertaining to allegations of corruption and human rights violation”. In that event, such information cannot be withheld, if sought for.
[13] One may look at this issue from another perspective. The exclusion of certain organisations under the main provisions of Sub-sections(1) and (4) of Section 24 is to ensure efficient functioning and operations of the Government, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information and as such other public interest and to protect such other public interest as clearly mentioned in the Preamble to the Act. It is a well established principle that provisions of preamble could be invoked for a proper construction of the statute if the language used is too general. As already discussed above, the expression used in the proviso i.e, “information pertaining to allegations of corruption and human rights violence” is of too general and of wide amplitude which has not been defined in the Act or any cognate Act. However, giving a too wide interpretation may defeat the very purpose of ensuring preservation of the public interests as clearly mentioned in the Preamble. Therefore, a balanced and reasonable interpretation of the said expression can be done by referring to the Preamble as mentioned above. The Preamble is a key to open the mind of the Legislative and proves the board parameters of the enactment which impelled the lawmakers to craft such statutes. The aforesaid preamble is reproduced hereinbelow:-
“An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.”
[14] Therefore, in the context of the Preamble, what is evident is that these organisations referred to in Section 24 of the Act have been specifically sought to be taken out of the purview of the Right to Information Act, 2005 in order to protect certain public interests including efficient operations of Government, optimum use of limited resources and preservation of confidentiality of sensitive information. However, an exception has been made to this exclusionary provision by inserting the said proviso where the “information pertaining to allegations of corruption and human rights violence” will be subject to the provisions of the Right to Information Act, 2005. This Court is of the view that if any information sought for does not relate to any of these areas referred to in the Preamble which the Act seeks to protect and preserve and thus keep away from public domain but are also relatable to any allegation of corruption and violence of human rights, there is no reason why such an information should be withheld, if sought for.
[15] This issue can be viewed from another perspective. The legislature in their anxiety to keep certain organisations which are engaged in activities involving sensitive information, secrecy of the State, have sought to keep these organisations away from the purview of the Act by including such organisations in the Second Schedule of the Act as far as Central Organisations are concerned and in the official gazette in respect of State organisations. It does not, however, mean that all information relating to these organisations are completely out of bound of the public. For example, even though the Central Bureau of Investigations is one of the organisations included in the Second Schedule to the Act, it does not mean that all information relating to it are out of bound of the public. If one looks at the website of the Central Bureau of Investigation which is in the public domain, there are so many information about the organisation which are already voluntarily made open to the public. This is for the simple reason that disclosure of these information does not in any way compromise with the integrity of the organisation or confidentiality of the sensitive nature of works undertaken by this organisation. The purpose of excluding all these organisations from the purview of the Act as provided under Section 24 is to merely protect and ensure the confidentiality of the sensitive works and activities undertaken by these organisations. Therefore, if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organisation 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 organisations 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. We may further clarify this position by borrowing the concept of doctrine of “pith and substance”. The doctrine of “pith and substance” was evolved by the courts primarily to determine whether a particular law relates to a subject mentioned in one list or the other and while doing so, the Court looks into the substance of the enactment. Thus, if the substance of the enactment falls within the Union List then the incidental and encroachment by the enactment on the State list would not make it invalid. Thus, the essence of this doctrine centred round the substantive part of the enactment or the core subject of the enactment. Though this doctrine cannot be invoked to decide the issue raised in this petition, the principle behind it may be referred to while deciding the issue at hand. By doing so, this Court will hold that if any information relates to the core activity of the organisation because of which such an organisation has been excluded from the purview of the Act, any such information can be withheld except which relates to allegation of corruption and violation of human rights. Therefore, if there be any information which does not relate to the principal or the core function of the organisation which is sought to be protected by including in Section 24 of the Act, but if it can have some reference or relatable to corruption or violation of human rights, such an information cannot be withheld. It may be observed that the core function of the police organisation is to maintain law and order, security of the State and discharge such activities which are related to and ancillary to these functions. It that context, undertaking the exercise of a recruitment process is not part of the core function of the police department. It is some function which could be outsourced to any other agency like the Public Service Commission etc. and this activity does not form part of the core function of the Police Department which cannot be outsourced to any other agency. Of course, recruitment of intelligence officials may form part of the core function. But in the present case, such is not the case. The recruitment in issue is the general recruitment process of the personnel of the police department generally.
[16] There is of course, one aspect this Court has to keep in mind. Section 8 of the Act provides for exemption from certain information. It starts with the non-obstantive expression “Notwithstanding anything contained in this Act.” Therefore, even if any information sought for comes under any of the clauses mentioned in Section 8 of the Act, the authority can withheld such information. In the present case, disclosure of the marks obtained by a candidate in a recruitment process cannot be said to be hit by any of the clauses mentioned in Section 8 of the Right to Information Act, 2005. This Court has already observed that such information is relatable to the allegations of corruption and human rights violations, such information cannot be withheld.
[17] The information sought for by the petitioner as mentioned above, in the opinion of the Court will not be covered by any of the inhibiting factors mentioned in Section 8 of the Act, nor impinge upon the core activity of the Manipur Police Organisation and if furnished would rule out any allegation of corruption, hence is “pertaining to allegations of corruption”. The Court, therefore, holds that such information cannot be withheld on the strength of any provision of the Act.
[18] Accordingly, the letter dated 9.09.2014 issued by the respondent no. 3 is set aside and respondent no. 3 is directed to furnish the information sought for by the petitioner within the period of 3 (three) weeks from today.
[19] Petition is allowed.
Section 24 of the Right to Information Act, 2005
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