Summary: Under the Right to Information Act, certain organizations like the CBI, are exempt from providing information to applicants due to the sensitive nature of information they possess. The only exception under which they are mandated to give information are in cases concerning human rights violations or corruption. In this piece, the author argues that this exception does not offer meaningful protection to citizens who may need the disclosure of other information which do not fall under these two exceptions. Additionally, in Part II of the article, the author also contends that the current standard fails the reasonable classification test under Article 14 and instead proposes a different standard to evaluate when such organizations could be exempt from disclosing information.           

I. Introduction                                                                              

The Right to Information Act, 2005 (the “Act”) was enacted in the backdrop of a protracted mass campaign by the Mazdoor Kisan Shakti Sangathan (“MKSS”) and the National Campaign for People’s Right to Information (“NCPRI”) demanding greater transparency and accountability in the government. It gave legislative effect to the Supreme Court’s dicta in S.P. Gupta v UoI which had expanded the ambit of Article 19(1)(a) of the Constitution to implicitly include the ‘right to know’. Apart from being a facet of the right to freedom of “speech and expression,” citizens’ ‘right to know’ has also been held to be encompassed under the broader horizon of the ‘Right to Live’ under Article 21 of the Indian Constitution.

Section 24 of the Act creates an exclusion for certain organisations in the Second Schedule (for e.g. the CBI, CRPF, IB etc.), which are considered to have important confidential information, from the provisions of the Act. The proviso states that matters relating to allegations of ‘corruption’ and ‘human rights violations’ shall not enjoy the exemption benefits under Section 24 and must be disclosed. Thus, under Section 24, courts and tribunals can (and have) refused to disclose information in Right to Information (“RTI”) applications issued against Second Schedule organisations unless the applicant proves a clear-cut case of either ‘human rights violations’ or ‘corruption.’

In this article, I argue that first, the two exceptions under Section 24 provide an extremely narrow pathway to citizens in their exercise of their right to information whilst dealing with exempted organisations. Through an analysis of judgments from the Central Information Commission (“CIC”), I show that there are other matters which do not fall under the two recognised heads, but nonetheless warrant disclosure under the Act. Second, I argue that Section 24 is unconstitutional vis-à-vis Article 14 of the Indian Constitution on account of it being over-inclusive under the ‘Reasonable Classifications’ test. Lastly, I propose an alternative approach of dealing with RTI applications against intelligence and security organisations – based on the ‘Public Interest’ test which can be utilised to disclose information in certain additional matters and thus, serve justice.

II. The problem with Section 24: The need to look beyond ‘corruption’ and ‘human right violations’

Rejection of RTI applications, based on valid or invalid grounds, entails a restriction on citizens in their access to justice and hence, must be exercised cautiously. In 2022-23, public authorities had to deal with a total of 20.8 lakh RTI requests. Of these, 58,905 applications were rejected invoking various sections of the Act. Section 24 was invoked in 16.55% of these rejected applications to deny disclosure of information to citizens. Ideally, courts are expected to meticulously examine each case involving Section 24 to determine whether the case falls under either of the two exceptions – ‘corruption’ or ‘human rights violations.’ Whilst both these terms remain undefined in the Act, courts have attempted to interpret them using extraneous sources. For instance, in CPIO, CBI v CIC, the Delhi HC defined the expression ‘human rights violations’ as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India” by relying upon the Universal Declaration of Human Rights (“UDHR”) and The Protection of Human Rights Act, 1993. While the broad principle remains well settled, the precise contours of these two exceptions, especially that of ‘human rights violations,’ remains doubtful. As I indicate further, courts have added to this confusion by their inadequate reasoning leading to inconsistent rulings. 

In Rahul Banerjee’s Case, the appellant had sought information about the grounds of confiscation of his GPS tracker by Central Industrial Security Force (“CISF”) personnel and whether the tracker would be returned to him. Since CISF was an exempted organisation under the Act, the CIC rejected his RTI request by invoking Section 24 because the matter did not fall under either ‘corruption’ or ‘human rights violations’. A case of wrongful confiscation raises questions about the violation of the appellant’s right to property, a recognized human right under the UDHR and Indian case law. Further, if the GPS tracker contained vital personal information such as the appellant’s location data, it may have also implicated the appellant’s right to privacy. However, instead of inquiring into how the wrongful confiscation of the GPS tracker violated the appellant’s constitutional and human rights, the CIC rejected his RTI petition without any reasoning.

In Dharmendra Kumar Maurya’s Case, the information sought was regarding the educational qualifications required for an employment post in the Defence Research and Development Organisation (“DRDO”) against an advertisement. Denying access to information about job requirements, including educational qualifications, may lead to arbitrary or discriminatory practices in recruitment, thus violating the right to equality of opportunity in public employment. However, the RTI request was rejected invoking Section 24 of the Act without any substantive inquiry.

In Udhav Shanker Maurya v CPIO, NTRO, the appellant’s services had been terminated by National Technical Research Organisation (“NTRO”) after 10 years without any notice provided to him. He had thereafter filed an RTI application seeking a copy of his termination notice and his APAR, which he argued, would have been required as evidence in the court trial. The CIC granted the required information noting that the non-communication of a public servant’s APAR would be a violation of the principle of fairness, which is the soul of natural justice. To what extent this principle of natural justice can be used in deciding the contours of ‘human rights violations’ is again an enquiry that courts have not adequately undertaken.

In Surendra Singh v PIO, CRPF, the information sought concerned the fixation of seniority in the Central Reserve Police Force (“CRPF”) under a standing order. The CIC rejected the RTI application ruling that the expression “human rights violation” cannot be extended to include such service-related controversies. Similarly, in Director General of Security v Harender, the Delhi HC dramatically noted – “No violation of human rights is involved in service matters, such as promotion, disciplinary actions and retiral benefits.” This reasoning has been used to reject multiple other RTI requests involving service-related matters (see here and here) and other RTI petitions (here and here). Such blanket statements by courts excluding all service-related issues from the purview of the exception under Section 24 overlooks the profound implications of employment issues like wrongful termination, arbitrary denial of promotions or unjust disciplinary actions on an individual’s right to livelihood, equality and dignity i.e. his basic human rights.

Alternatively, consider the 2018 Delhi HC judgement of UoI v CIC, where the applicant had sought copies issued by her employer – the Enforcement Directorate, of all the seniority lists, promotion orders and minutes of the meetings where promotion of officers was discussed. The HC noted that the expression ‘human rights’ cannot be given a pedantic meaning and that their progressive and transformative purport must be carefully regarded. It ruled that the said information had a direct implication on the applicant’s human rights as in the absence of the same, she would not be able to agitate her fundamental right to promotion, and thus the said information was liable to be disclosed under the Act.

Thus, the precise contours of the expression ‘human rights violations’ under the section remains unclear. Moreover, the lack of reasoning provided in most CIC judgements coupled with contradictory judgements from the Delhi HC adds to the confusion. This leaves us with a lot to ponder upon. How would the courts rule if the RTI application involved disclosure of information regarding minutes of sexual harassment proceedings against an accused officer in these exempted organisations? Would information be disclosed if the matter pertained to an instance of rejection of valid entitlement benefits under employment in these exempted organisations? Would these requests also be rejected just because they cannot be labelled as either a ‘corruption’ or a ‘human rights violations’ matter? Perhaps this confusion exists because the precise boundaries of the right to know itself rest on an unsettled foundation. Or, maybe it is because Section 24 creates an unnecessary filter that eliminates all possibility of a context-based inquiry. The examples mentioned above indicate that the question of whether information is to disclosed or not depends highly on the facts and circumstances of each case along-with a thorough inquiry into the specific ramifications of disclosure or non-disclosure of the sought information.

This aspect of Section 24 was of particular interest to the Delhi High Court in CPIO CBI v Sanjeev Chaturvedi. The HC placed emphasis on the purpose behind Section 24, which, it noted must be kept in mind in deciding whether information is to be disclosed or not. The court reasoned that if the disclosure of information did not compromise the sensitivity of the covert operations carried out by Second Schedule organisations, then the said information must be granted under the Act, adding a whole new threshold/test for disclosure under Section 24. While such a test does not flow from the section itself, the court’s observations are worth probing, considering the inherent flaws in the section. Such a threshold effectively dilutes the provisos to Section 24 and grounds the decision of the court in a context-specific inquiry, thereby balancing the protective intent behind Section 24 with the citizens’ right to information.

With this background, in Part II, I will argue that the non-disclosure of matters apart from ‘corruption’ and ‘human rights violations’ under Section 24 is arbitrary and violative of Article 14 of the Indian Constitution.

Samik Basu is a first-year student at NLSIU. 

[Ed Note: This article has been edited by Saranya Ravindran and published by Harshitha Adari from the student editorial board.]