By Arushi Garg

The government’s notification exempting the CBI under Section 24 of the RTI Act (which allows exemption of intelligence gathering agencies from the RTI Act) has sparked a controversy. A PIL has been filed in the Madras HC challenging its constitutional validity. In the light of the above, the Attorney General’s opinion on the same becomes pertinent, since the exemption has been granted solely based on his opinion. This exemption is in contradiction of the reports of both the Law Ministry as well as the Department of Personnel and Training.

The primary argument in the AG’s opinion, a copy of which is with the LAOT, is that the CBI’s investigation affects the security of the nation and the term “intelligence” extended not just to information gathered for the prevention of the occurence of events, but also post-event intelligence gathering. The AG has used the term `intelligence’ primarily to refer to information relating to the security or defence of a nation.

Since many cases investigated by the CBI are related to the security of India, he concluded that CBI was eligible for an exemption. Even if it is assumed that intelligence gathering need not always be preventive, and covers investigation, his opinion fails to take into account the fact that no investigation would be hindered by covering the CBI under the RTI since information relating to pending investigations has already been exempted under Section 8(1)(h) (as I have argued on June 16 on the Legal Notes page).

There could be no interference with the process of investigation, or with the security of India, even if the information is related to substantive aspects of the investigation, let alone the other procedural aspects (such as administration, personnel, accounts/finance budget and training) for which no exception is carved out in the AG’s opinion. The CBI investigation would already be complete at the time any RTI application is filed.

The least convincing part of the AG’s opinion is his refusal to recommend notification of only those parts under Section 24 as are related to intelligence gathering. He justifies it because Section 24 exempts not just intelligence agencies but also organisations dealing with the security of the country. This seems to imply that even if the investigation of the CBI doesn’t concern intelligence gathering, it will still magically be connected to the security of India. This argument crumbles in the face of numerous Supreme Court rulings that have iterated over and over again that the scope of matters dealing with security is extremely narrow, and not all breaches of public order and law and order are concerns related to security.

Case law on the subject, as cited by the AG, can be traced to the judgment of Hidayatullah, J., in the Ram Manohar Lohia case, wherein it was stated:

“One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

It was also observed that “When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.”

The import of this statement (which later developed into the “Even Tempo” test, as it has been referred to by the AG) is that if the disruption of law and order involves only certain individuals, and not the society at large, only then can it be regarded as a disturbance of public order. The scope for what is to be regarded as a threat to security is then even smaller, and cases involving individuals cannot be included within this narrow scope.

This observation has been quoted with approval till very recently by High Courts as well as the Supreme Court. In fact, just last year, a division bench of the Supreme Court reaffirmed this understanding. Thus, while public order is a broad area, only the “most serious and aggravated forms of public disorder” endanger public security.

This distinction has been acknowledged and in fact, explored in rather comprehensive detail by the AG. But his opinion then goes on to enumerate the cases investigated by the CBI which have a bearing on national security while not dealing with the fact that a substantial number of them don’t. Many of these cases involve allegations of specific crimes committed against specific people that do not meet the threshold for cases involving national security.

The most famous example that comes to mind is the Aarushi Talwar case that was handled by the CBI. The CBI has also dealt with the charges of kidnapping and attempted rape against Noida based businessman Moninder Singh Pandher. Both are instances of brutal and shocking crimes, but had no ramifications on the “security” of the State as has been understood by the courts of this country. Curiously, AG’s opinion expressly states that a separation of the various types of cases investigated by the CBI is not possible because “we are concerned not just with intelligence but also with the security of the State.”

The fact that the provisos to Section 24 anyway forbid exemption of information relating to corruption and violation of human rights has also been wilfully overlooked by the blanket exception that has been carved out for the CBI. Even commentators who have defended the inclusion of the CBI have advocated laying down rules that limits this exemption in accordance with the Section 24 provisos, and providing the exemption only during the pendency of the investigation.

Based on the above, despite the AG’s faith in this exception, it is unlikely that it is justified in law.

(The author who has just completed an internship with LAOT, is a IV Year student of the NALSAR University of Law, Hyderabad)