CASE TITLE:
Subhash Mohapatra & Ors Vs State of Odisha & Anr
DATE OF ORDER:
20thJUNE, 2022
JUDGE(S):
Hon’ble Justice Dr. S. Muralidhar and Hon’ble Justice Radha Krishna Pattanaik
PARTIES:
PETITIONER: Subhash Mohapatra & Ors
RESPONDENT: State of Odisha & Anr
IMPORTANT PROVISIONS
Right to Information Act, 2005
SUBJECT
The Orissa High Court has ruled that the State Vigilance Department cannot be completely exempted from the provisions of the Right to Information Act, 2005 ('RTI'). It directed that information pertaining to allegations of corruption and human rights violations, as well as information pertaining to Department activities that are not sensitive or confidential, be disclosed under the RTI.
BRIEF FACTS
- Three writ petitions, each filed as a Public Interest Litigation (PIL), challenged the notification issued by the Commissioner-cum-Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 on August 11, 2016.
- According to the notification, "nothing in the RTI Act shall apply to the General Administration (Vigilance) Department of the Government of Odisha and its organisation."
- The primary basis for the challenge to the contested notification was that it violated Article 19(1)(a) of the Constitution, which guarantees all citizens the fundamental right to information.
- According to the RTI Act, disclosure is the norm and refusal of information is the exception.
- It was argued that the power of exemption granted to the State Government under Section 24(4) of the RTI Act, and particularly the proviso thereto, is not available even in the case of intelligence and security organisations where the allegations pertain to corruption and human rights violations.
- As a result, the impugned notification is ultra vires Section 24(4) because it seeks to exempt the entire Vigilance Department in Odisha from the purview of the RTI Act, regardless of the proviso to Section 24(4).
ADVANCED ARGUMENTS BY THE PETITIONER
- It was argued that by issuing the contested notification, the government intends to avoid disclosing instances of corruption and human rights violations to the public, despite the proviso to Section 24(4) of the RTI Act.
- It was also argued that the notification issued under Section 24(4) of the RTI Act, or even the Rules made under Section 28 of the RTI Act, could not go beyond the scope of the restriction imposed by Section 24 of the RTI Act.
- The Rules and notifications are intended to carry out the provisions of the RTI Act, not to limit or eliminate what the RTI Act guarantees, they added. They also claimed that the contested notification imposes a restriction not contemplated by Sections 8 and 9 of the Act.
ADVANCED ARGUMENTS BY THE RESPONDENT
- Mr. Sailaza Nandan Das, Additional Standing Counsel for the State of Odisha, and Mr. Srimanta Das, Senior Standing Counsel for the Vigilance Department submitted that if the Department were not exempted from the purview of the RTI Act, all types of information regarding the operation of the Department would become available to the public, which would be detrimental to security and public interest.
- The State Vigilance Department contended that disclosing confidential information under the RTI Act to an individual, organisation, or even an aggrieved person at any stage would stymie the entire investigation into corruption. It was argued that RTI Act Section 8(1)(h) does not adequately cover the confidential process which is carried out in order to build a case against a corrupt person.
ANALYSIS BY THE COURT
- The Court rejected the opposing parties' argument that information protected from disclosure under Section 8 of the RTI Act would become immediately available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act.
- The Court noted that Section 8 of the RTI Act begins with a non-obstante provision. Another factor is that the category of information highlighted in the first proviso to Sections 24(1) and 24(4) of the RTI Act, namely "information pertaining to allegations of corruption and human rights violations," is not mentioned in Section 8 of the RTI Act.
- Thus, what is protected by Section 8 of the RTI Act remains protected, and when such information relates to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act must also be considered.
CONCLUSION
- The Court issued a declaratory writ declaring that the impugned notification dated 11th August, 2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act will not allow the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, as well as other information that does not touch on any of the sensitive and confidential activities undisclosed.
It also directed that the Government of Odisha issue a further clarifying notification to that effect within four weeks.
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