IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.09.2011 CORAM: The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.14788 of 2011 & M.P.No.1 of 2011 S.Vijayalakshmi ... Petitioner Vs. 1. Union of India, Rep. by its Secretary to Government, Ministry of Personnel, PG & Pensions, North Block, New Delhi. 2. Director, Central Bureau of Investigation Lodhi Road, CGO Complex, New Delhi. ... Respondents Prayer :- Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records and quash the 1st respondent's impugned notification No.GSR 442(E), dated 09.06.2011, cuccooning the second respondent from the purview of the RTI Act, as being ultra vires section 24 of the RTI Act, and violative of Article 14 of the Constitution. For Petitioner :Mr.Manikandan Vathan Chettiar For Respondents :Mr.Gouravab Banerji Additional Solicitor General of India assisted by Mr.P.Chandrasekaran SCGSC for R1 Mr.M.Ravindran Additional Solicitor General of India assisted by Mr.N.Chandrasekaran Spl. P.P. for R2 O R D E R THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM, J. By way of this Public Interest Litigation, the notification issued by the Government of India in G.S.R.No. 442E, dated 09.06.2011, including the Central Bureau of Investigation (CBI) within the ambit of the second schedule to the Right to Information Act, 2000 (RTI Act) has been questioned as being ultra vires Section 24 of the RTI Act and Article 14 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner, in the light of the various scams, the country has become rudderless in the war on corruption and at this juncture, the Government instead of becoming more transparent has become reactionary by resorting to Section 24 of the RTI Act by granting blanket exemption to the CBI. It is further contended that the respondents over looked the first proviso to Section 24(1) of the Act excluding information pertaining to allegations of corruption and human rights violation from being exempted under Section 24 of the Act. Further, Section 24 exempts only intelligence and security agencies and CBI is an investigating agency cannot be granted a blanket exemption. Further, it is contended that the plea that investigative data require confidentiality has been adequately taken care in Section 8(1)(g) and (h) of the RTI Act. It is further contended that Section 24(3) of the Act mandates that every notification issued under Section 24(2) shall be laid before each house of Parliament, which failure renders the exemption null and void. It is the further case of the petitioner that the exemption is bound to create a chaos as several writ petitions will be filed challenging the orders passed by the Central Information Commission in their decisions against the CBI, since the CIC has no power to set aside the notification. 3.The first respondent has filed the counter affidavit inter alia contending that the exemption granted to CBI under Section 24 is not a blanket exemption inasmuch as it is subject to the provisos to Section 24 of the Act. The exemption was granted after the Government received the representation from CBI stating that difficulty were being faced by them in their working due to the queries raised under the RTI Act and such exemption was granted on the basis of the legal opinion received that CBI qualifies as a security and intelligence organisation under Section 24 of the Act. In the representation made by CBI, it was stated that cases handled by them are very sensitive in nature where inputs are based on intelligence collected which may relate to the security of the State. It is further stated that collection of intelligence leads to registration of cases and then trial. In many sensitive cases the collection of intelligence and the process of investigation and trial are intertwined and cannot be separated. The list of important cases pertaining to National security dealt by CBI has been furnished. It was further submitted that intelligence plays a vital role in every aspect of the functioning of CBI. Many of the important and sensitive cases are registered on the basis of intelligence inputs, information with regard to modus operandi and sources, which are an essential part of investigation by CBI, are very important and any disclosure of such information may not only jeopardize the functioning of CBI in future investigations but also public safety and national security. It is further submitted that CBI represented it has developed its unique processes for functioning where each officer is given full freedom to express his/her views independently, this helps in bringing to the fore every facet of the issue under consideration, which helps in taking a balanced final decision in the matter. It was felt that disclosures under RTI may lead to targeting of officers which may ultimately affect the credibility of CBI which https://hcservices.ecourts.gov.in/hcservices/ would not be in national interest. That CBI brought to the notice of the Government that entire investigation and trial of CBI cases is under close scrutiny of the courts and all relied upon documents are always made available to the accused. The CBI's proposal for exemption further merited acceptance because various other security agencies and police departments had been included in the Second Schedule to the RTI Act. It is further stated that the exemption has been granted bearing in mind the interest of the security of the State, which cannot be overlooked while protecting the right of the citizens to seek information. That the Right to Information is not an absolute right and there is a need to balance the right of the citizen against the need to ensure security of the Nation, which should not be jeopardised due to disclosure of information which has security implications. That section 24 of the RTI Act represents this balance, and the legislature has left the discretion with the Executive to assess which organisation possesses information, the disclosure of which may cause threat to the security of the State. It is further stated that the Court in exercise of its power of judicial review may examine whether the discretion has been exercised based on some material, but not the adequacy of the material which forms the basic of the decision. The first respondent has further stated that the matter regarding inclusion of Central Public Authorities in the Second Schedule to the Act is exercised by the Central Government based on the recommendation of the Committee of a Secretary headed by the Cabinet Secretary and the matter was considered at length by the Government and it was felt that there was substance in the representation of CBI by virtue of the cases handled by them and the nature of its functioning and then a decision was taken to include CBI in the Second Schedule to the Act. That legal opinion was sought for and it was opined that CBI may be classified as Security and Intelligence Organisations for the purpose of section 24 of the RTI Act. 4.The various allegations made in the affidavit filed in support of the writ petitions were denied in the counter affidavit. It is further stated that earlier during 2007, the request of CBI for inclusion in the Second Schedule was considered by the Government and when the matter was placed before the Committee of Secretaries, they expressed a view that CBI could resort to exemption under section 8 of the RTI Act to deny disclosure of sensitive information. This view was accepted by the Government and it was not included in the Second Schedule. Subsequently, CBI again represented to the Government that in its experience since 2007, it had been found that the functioning of CBI was being affected due to various difficulties, due to exposure to queries under the RTI Act; that due to the RTI Act, queries being posed on the officers of CBI were deterred from recording their views in the files fearlessly and independently and therefore legal opinion was obtained as to whether CBI was a Security and Intelligence Organisation. The legal opinion confirmed that in view of the nature and functions of CBI it could be included in the Second Schedule as a Intelligence and Security Organisation. https://hcservices.ecourts.gov.in/hcservices/ 5.It is further stated that if a person wishes to make a complaint, the Office address and contact details of the Offices of CBI in each State are easily accessible on the website of CBI and the allegations made by the petitioner are purely speculative. It is further stated that the Act does not provide that the impugned Notification would become operative only after it is laid before the Parliament, however, the Government would lay the Notification before both Houses of Parliament. 6.The CBI have filed a separate counter affidavit reiterating that the Right to Information as it is, with respect to other fundamental right recognized under Article 19(1) of the Constitution is not an unfettered right and subject to reasonable restrictions, on the ground of security of the State and Public Order etc. Ensuring the security of the State and Public Order are essential for the protection of democratical ideal of the country. The ever increasing degree of corruption in public life is a direct threat to maintenance of security of the State, Public Order and to the democratic State itself. 7.After setting out as to how the CBI was established, it is submitted that CBI has evolved as premier Investigating Agency of Government of India, which also investigates cases referred to by the State Governments, Constitutional Courts and cases reported from Union Territories and that the cases investigated/handled by CBI are of sensitive nature not only in terms of magnitude of corruption and economic crimes, but also in terms of polity as whole and also at times having bearing on security of the country. The CBI investigates offences covering vide spectrum including complex terrorists claims and big financial frauds involving functions relating to intelligence collection and security of the country. It is further stated that CBI has investigated and is investigating extremely sensitive cases having Inter-State and Inter National ramifications which have a direct bearing on the National/Internal Security. That apart, CBI has been entrusted with the task of investigating cases which threaten the financial security of the Country. 8.After setting out in paragraph 9 of the counter affidavit the important and sensitive cases handled by CBI, it is submitted that intelligence plays a very vital role at every stage of investigation by the CBI and some of the leads provide information about conspiracy, modus operandi, motive etc. and those inputs obtained during information are further corroborated by collecting specific intelligence on the finding of the investigation leading to deduction of crime and identification and tracing of accused persons. Therefore, it is stated investigation and intelligence collections are inter twined activities. It is further stated that CBI has a inbuilt mechanism of transparency and accountability and documents which are relied on by the Agency in a case of prosecution, are given https://hcservices.ecourts.gov.in/hcservices/ to the accused free of cost and there are several provisions in the Criminal Procedure Code and the accused can summon any document/record etc. under section 91 Cr.P.C. to defend himself. Further it is stated that CBI maintains and regularly updates its websites which contains information in public domain as envisaged under section 4 of the RTI Act. It is further stated that the subject matters of most of the RTI applications dealt by CBI relate to ongoing investigation or under trial cases or discreet verifications/enquiries, the disclosure whereof under the RTI Act would be prejudicial to the investigation itself. Though, exemptions have been provided under section 8 of RTI Act against disclosure of information relating to under investigation and under trial cases, which would impede the process of investigations or apprehensions or prosecution of offenders, these provisions are not adequate to provide protection from disclosure of information having bearing on national security. It is further stated that the information pertaining to activities prior to registration of case and also post conclusion of investigation/trial is not protected under RTI Act and that most of such information has a direct bearing on security of the country and thus needs to be kept confidential. Further, it is contended that many a time, innocuous/unobjectionable pieces of information might seem harmless but when they are placed in conjunction with each other and some times with seemingly unconnected information the mosaic of a dangerous picture affecting the security of the nation can emerge. 9.The second respondent further contend that the impugned notification was issued after appreciating and considering the proposals of CBI and after obtaining the opinion of the Attorney General of India and the Solicitor General of India and the Notification is not issued as reaction to any exposure, but, it is a well considered and reasoned decision after due consultation bearing in mind the interest of the security of the nation. It is further submitted that proviso to section 24 (1) of the RTI Act clearly mentions that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under the section. Therefore, the apprehension of the petitioner that blanket exemption has been granted to CBI is not correct. In the counter affidavit the second respondent has denied the various allegations made in the affidavit filed in the writ petition including the contentions raised in the grounds. With the above facts, the second respondent prayed for dismissal of the writ petition. 10.We have heard Mr.Manikandan Vadhan Cherttiar, learned counsel for the petitioner, Mr.Gaurav Banerji and Mr.M.Raveendran, learned Additional Solicitors General of India for the respondents and perused the materials on record. 11.The issue which falls for consideration is as to whether the Government of India were justified in including CBI in the second schedule to the RTI Act thereby exempting CBI from the provisions of https://hcservices.ecourts.gov.in/hcservices/ the RTI Act subject to the provisos contained in section 24(1) of the RTI Act. Before we examine the provisions of the RTI Act, it would be useful to look into the enactment which occupied field prior to coming into force of the RTI Act. 12.Freedom of Information Act 2002, was enacted by the Parliament as an Act to provide for freedom to every citizen to secure access to information under the control of the Public Authorities, consistence with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. This Act received the assent of the President on 6.1.2003. Section 2(d) of the Act defined information to mean any material in any form relating to the administration, operations or decisions of a public authority. Section 2(f) defined Public Authority to mean any authority or body established or constituted by or under the Constitution and by any law made by the appropriate Government and included any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government. Section 3 of the Act stated that subject to the provisions of the Act, all citizens shall have freedom of information. Section 4 dealt with obligation of public authorities, section 8 regarding exemption from disclosure of information, section 16 dealt with the organisations to which the Act shall not apply. Section 16(1) states, nothing contained in the said Act shall apply to the Intelligence and Security Organisations specified in the schedule being organisations established by the Central Government or any information furnished by such organisation to that Government. 13.After a period of about two years, when the Freedom of Information of Act, 2002, was in force, the National Advisory Council deliberated on the issue to ensure greater and more effective access to information and that the 2002 Act, needs to be made more progressive, participatory and meaningful and the Council suggested certain important changes to be incorporated in the 2002 Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law and decided to repeal the Freedom of Information Act 2002, and brought the Bill on the Right to Information Act, with the object that the proposed legislation will provide an effective frame work for effectuating the right of information recognised under Article 19 of the Constitution of India. The Bill contained 31 clauses of which clause 24 dealt with exempting certain Intelligence and Security Organisations from the purview of the legislation, but information pertaining to allegation of corruption, shall, without prejudice to the exemption, be provided. This Bill after much deliberation was enacted as the Right to Information Act, 2005, (RTI Act) and received the assent of the President on 15.6.2005 and published in the Gazette of the India on 21.6.2005. The RTI Act was 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 https://hcservices.ecourts.gov.in/hcservices/ every public authority, the constitution of a Central Information Commission and State Information Commission and for matters connected therewith or incidental thereto. It further states that revelation of information in actual practice is likely to conflict with other public interest including efficient operation of the Governments, optimum use of limited physical resources and the preservation of confidentiality and sensitive information and it is necessary to harmonize these conflicting interest while preserving the paramoutcy of the democratic ideal. The RTI Act, is a concise enactment of 31 sections contained in 6 chapters. The First schedule deals with the form of oath or affirmation to be made by the Chief Information Commissioners and others and the Second Schedule lists out the Intelligence and Security Organisations established by the Central Government. 14.Some of the relevant sections of RTI Act which we shall be dealing with in this order are re-produced hereunder for easy reference: 2. Definitions.—In this Act, unless the context otherwise requires,— (f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; (h) “public authority” means any authority or body or institution of self-government established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; (i) “record” includes— (a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device; https://hcservices.ecourts.gov.in/hcservices/ (j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to— (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; 3. Right to information.—Subject to the provisions of this Act, all citizens shall have the right to information. 4. Obligations of public authorities.—(1) Every public authority shall— (a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; (b) publish within one hundred and twenty days from the enactment of this Act— (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (ii) the procedure followed in the decision-making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; https://hcservices.ecourts.gov.in/hcservices/ (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed; 8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders; https://hcservices.ecourts.gov.in/hcservices/ (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) information which relates to personal information the disclosure of which has no relationship to