Balancing secrecy and transparency: The scope of the RTI Act’s applicability to the CBI

Although there is a tendency to invoke exception clauses every time information is sought from the Central Bureau of Investigation under the Right to Information Act, 2005, courts have time and again ruled against such a blanket exemption.

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THE statement of objects and reasons of the Right to Information (RTI) Act, 2005 states that the Act was enacted "to set out the practical regime of the right to information for citizens to secure access to information under the control of public authorities, to promote transparency and accountability in the working of every public authority."

The overarching sweep of the Act over every public authority is, however, curtailed by Section 24 of the Act, which excludes the applicability of the Act to certain intelligence and security organisations specified in the Second Schedule.

The proviso to Section 24, however, permits the disclosure of information pertaining to allegations of human rights violations and corruption in the scheduled organisations.

The information pertaining to human rights violations in any of the organisations specified in the Second Schedule has to be provided with the approval of the Central Information Commission (CIC). Sub-section (2) of the Section provides that the Union government can amend the schedule by notification in the official gazette and omit or include any intelligence or security organisation.

CBI's inclusion in the Second Schedule

On June 9, 2011, the Union government excluded the Central Bureau of Investigation (CBI) from the applicability of the RTI Act by including it in the Second Schedule by way of a notification in the official gazette. This exclusion resulted in the rejection of numerous applications for information sought from the CBI, leading to multiple rounds of litigation before the courts.

This article discusses the scope of the applicability of the RTI Act to the CBI, as established by various judicial decisions, along with circumstances where the information sought under the Act can be disclosed by the CBI.

CBI not totally exempt from disclosures

On January 30 this year, the High Court of Delhi held that the CBI is not entirely exempted under the RTI Act and that inclusion in the Second Schedule does not provide it with blanket immunity from the disclosure of any information sought by an applicant.

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In the matter of CPIO CBI versus Sanjiv Chaturvedi, the court held that the proviso to Section 24 permits the disclosure of information regarding allegations of human rights violations and corruption and the exemption provided to scheduled organisations does not totally exempt the CBI from the purview of the RTI Act.

The court noted that under certain circumstances, the CBI may be required to prove that the information sought about a particular investigation is sensitive. In such cases, the Central Public Information Officer (CPIO) shall have the authority to deny access to such information, depending on the sensitivity of the information.

The court directed the CBI's CPIO to provide Indian Forest Service (IFS) Officer Sanjiv Chaturvedi with the information pertaining to his complaint of alleged corruption regarding certain purchases made by AIIMS, New Delhi.

The CBI contested the CIC's Order, claiming that the RTI Act did not apply to them since the CBI stands included in the Second Schedule vide the notification dated June 9, 2011.

The court rejected the arguments put forth by the CBI, as Chaturvedi's allegations of corruption regarding the procurement of cleaners disinfectants and fogging solutions at AIIMS did not involve any sensitive investigation or information.

The Court held that in cases where the information relates to corruption or human rights violations and the disclosure of the information is not likely to expose the officers or other persons involved in the investigation or endanger their lives, the court would not accept the invocation of Section 24 by the CBI.

The court relied on another judgment of the High Court of Delhi in CPIO, Intelligence Bureau versus Sanjiv Chaturvedi, wherein it held that the proviso kicks in if the information sought pertains to allegations of human rights violations and corruption.

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The court had held as follows: "The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organisations.

"If the information sought pertains to the allegations of corruption and human rights violations, the same would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organisations or not or pertains to an officer of the Intelligence Bureau or not."

Requests saved by Section 24 proviso can still be denied under Section 8

In September 2017, the High Court of Delhi in CBI versus C. J. Karira held that blanket immunity and absolute exemption cannot be claimed by the CBI since the proviso to Section 24 lays down circumstances where the information sought would have to be disclosed.

The case was related to a request for information concerning corruption allegations within the CBI after the agency arrested two of its own officers for taking bribes.

The two officers were part of the team investigating the Coalgate scam. The applicant filed an RTI application seeking information on how the CBI shares information with the media about the action taken against its own officials accused of corruption.

The CBI argued that it is exempt from the RTI Act as it is included in the Second Schedule and falls under Section 24(1) of the Act. However, the court pointed out that the first proviso of Section 24(1) of the Act explicitly states that information related to allegations of human rights violations and corruption is not excluded from its purview.

The court held that the request for the information cannot be denied solely on the ground that Section 24 and the Second Schedule exempt the CBI from disclosure of information.

The information, if falling within the scope of the proviso, would have to be furnished, provided it is not exempted under clauses (a) to (j) of Section 8, which provides for certain types of information that are completely exempt from disclosure.

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The court held that it would be open to the CBI to entertain a request for information, notwithstanding Section 24, and examine whether the information sought is otherwise exempt under Section 8(1).

Enquiry reports in ongoing investigations exempt from disclosure

In October 2023, the High Court of Delhi in Brij Mohan versus Central Information Commission and Ors. held that the enquiry reports of the CBI regarding ongoing investigations are exempted from disclosure under Section 8(1)(h) of the RTI Act.

The court observed that if such information falls into the hands of the coaccused, it is highly likely to impede the ongoing investigation process. The denial of access to an enquiry report while the investigation was ongoing would not constitute a human rights violation and, thus, the proviso to Section 24 of the Act would not save such an application as the information sought does not pertain to any human rights violations.

The need for sensitising CPIOs

In April 2019, the CIC in Manoj Kumar versus CPIO, CBI (File number: CIC/CBRUI/A/2017/180749/SD ) passed an Order advising the director of the CBI to sensitise CPIOs regarding the scope and ambit of the RTI Act and that of Section 24 by way of appropriate workshops.

The Order was passed while hearing an appeal preferred by an RTI applicant who had sought information relating to an investigation into irregular appointments in the postal department in Bihar. The CPIO invoked Section 24 to deny the request even though the proviso allows disclosure of corruption-related information.

During the hearing of the appeal, the CPIO contended that the proviso to Section 24(1) of the RTI Act is applicable only in cases involving allegations of corruption against the CBI officials and not concerning the routine cases inquired into by the anti-corruption branch (ACB) of the CBI.

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The CIC rejected the CPIO's contention that he is required to provide information only if the allegations relating to corruption pertain to the CBI's own employees.

It held: "The CPIO grossly erred in invoking the veil of Section 24 of the RTI Act mechanically without assessing the nature of the information sought. The RTI Act nowhere provides for any such exception and Section 24 of the RTI Act does not provide for any further exemptions from disclosure once it is established that the information sought pertains to allegations of corruption and human rights violations."

Principles of disclosures summarised

The position of law as it stands today vis-à-vis the applicability of the RTI Act to the CBI, as settled by the judicial decisions discussed hereinabove, can be summarised as follows:

1. Section 24 does not provide an absolute exemption to the CBI. Information relating to corruption and human rights violations would have to be provided by the CBI, in view of the proviso to Section 24. However, the same can be refused, notwithstanding the proviso, if the information is otherwise exempt from disclosure by clauses (a) to (j) of Section 8(1).
2. The CPIO of the CBI has the power to examine whether the information sought, though within the protective umbrella of the proviso to Section 24, can be refused in view of the exemption clauses contained in Section 8.
3. Information relating to allegations of corruption pertaining to employees of other public bodies can be disclosed by the CBI as no provision in the RTI Act prohibits the same.
4. The disclosure of the enquiry report in an ongoing investigation into allegations of corruption cannot be permitted as the same may impede the ongoing investigation. The proviso to Section 24(1) cannot be invoked for the disclosure of the same.