While the Supreme Court, on the facts of the case, did not entertain the petition by the ED, it disapproved the reasoning offered by the high court that non-supply of the information or documents was a human rights violation as in the absence of the same, the information seeker would not be able to agitate for her right to promotion.
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ON Tuesday, a Supreme Court Bench comprising Justices M.R. Shah and C.T. Ravikumar diluted the Delhi High Court's judgment from last year holding that the employees of a security establishment could not be deprived of their fundamental and legal rights just because they work at an intelligence and security establishment as it would amount to holding that those who serve in these organisations have no human rights. It held that it was "keeping the question of law open".
The Bench was hearing an appeal filed by the Directorate of Enforcement (ED) against the high court's order directing to provide copies of all the seniority lists in respect of lower division clerks (LDCs) from 1991 onwards, and copies of the proposals for promotion of LDCs placed before the Departmental Promotion Committee (DPC) together with copies of the minutes of the meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time. The information was sought through an application under the Right to Information Act (RTI Act), filed by an employee of the ED.
While the Supreme Court, on the facts of the case, did not entertain the petition by the ED, it disapproved the reasoning offered by the high court that non-supply of the information or documents was a human rights violation as in the absence of the same, the information seeker would not be able to agitate for her right to promotion.
"Though we do not approve the reasoning given by the high court, however, taking into consideration the fact that what was sought was the service record, namely, seniority list and copies of the proposal for promotion of the lower division clerks placed before the DPC, keeping the question of law open, whether on other aspects or with respect to other information whether RTI Act shall be applicable to the appellant or not, we do not entertain the present Special Leave Petition in the peculiar facts and circumstances of the documents sought," the court held.
Solicitor General of India Tushar Mehta, who appeared for the petitioner, the ED, submitted that though the petitioner had no objection to the supply of information asked for, the reasoning offered by the high court in the impugned judgment required interference by the Supreme Court.
The ED contended that Section 24(1) (Act not to apply to certain organisations) of the RTI Act expressly excludes intelligence and security organisations specified in the Second Schedule of the Act from the purview of the Act. The said sub-Section reads:
"Act not to apply to certain organisations.— (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government:
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 only be provided after the approval of the Central 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 requests"
At present, there are 22 organisations, including the ED, which are listed in the Second Schedule to the RTI Act, giving them immunity from the applicability of the RTI Act. However, as can be seen from the reading of the proviso to Section 24, it is not blanket immunity. If the information sought pertains to allegations of corruption and human rights violations, it is not protected from disclosure under Section 24.
Interpreting Section 24, the Delhi High Court had observed that the expression 'human rights' cannot be given a narrow and pedantic meaning. It had opined that human rights do not refer to the rights of the accused alone. "Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medial neglect. In fact, human rights are both progressive and transformative," it said.
"It is settled law that employees have a legitimate expectation of promotion. It is not the case of the appellant that its employees and officers cannot file legal proceedings to air their grievances with regard to service conditions and wrongful denial of promotions. The intent of service jurisprudence at the level of any establishment/organisation is to promote peace and harmony and at the level of the society, the objective is to promote human rights. If employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic," the high court had held.
Highlighting the importance of the RTI Act, the high court had said that it was a tool which facilitates the employees and officers in airing their grievances systematically. "It is said that 'Sunlight is the best disinfectant' and the RTI Act promotes the said concept. Consequently, both service and RTI laws 'act like a safety valve in the society'," the high court had laid down.
The high court had rejected the argument of the ED that only such information that is furnished by the exempted organisation to the government pertaining to allegations of corruption and human rights violation was to be provided under the RTI Act. It emphasised that the information seeker was not seeking information with regard to any investigation or intelligence or covert operations carried out nationally or internationally.
The high court however, held that information pertaining to proposals for the promotion of third parties should not be provided to the information seeker in view of Sections 8(1)(j) (exemption from disclosure of information) and 11 (third party information) of the RTI Act.
Click here to view the Supreme Court's full order in Union of India versus Central Information Commission & Anr.