Conflicting decisions on Section 24 of the RTI Act
On 26th April, 2023, a single judge of the Delhi High Court in Nisha Priya Bhatia v. CPIO, Ministry of Urban Development, upheld the decision of the Central Information Commission to not direct the Research and Analysis Wing (‘RAW’) to disclose applications made by an IPS officer seeking allotment of government accommodation. The Court ruled that RAW was an exempted “security and intelligence organisation” under Section 24 of the Right to Information Act, 2005 (‘RTI Act’) and as such, did not have an obligation to disclose any information unless it pertains to allegations of corruption and human rights violations. In this post, I argue that the Court should have purposively interpreted Section 24, considering the intention of the RTI Act to promote accountability in the working of every public authority. The Court’s interpretation absurdly results in exempted organisations even denying information that is entirely unrelated to the “security and intelligence” functions they perform – an outcome antithetical to the right to information, which is a fundamental right and cannot be curtailed disproportionately.
As a preliminary point, it is important to note that the RTI Act is a ‘Constitutional Statute’, i.e. a statute enacted in pursuance of the State’s positive obligation to enable the citizens to exercise their right to information. Thus, the Act empowers citizens to demand information from public authorities. Public authorities, in turn, are required to disclose such information unless they can claim an exemption under one of the grounds listed in Section 8(1) (such as security of state or privacy). Furthermore, even when an exemption is applicable, public authorities are required to disclose the information if the “public interest in disclosure outweighs the harms to protected interests” [See Section 8(2)].
Section 24(1) is an extraordinary provision that grants impunity from the provisions of the Act to the “intelligence and security organisations” established by the Central Government and specified in the Second Schedule. Section 24(2) permits the Central Government to include in the Second Schedule any other intelligence or security organisation established by it. As a result, Central Government has exempted 26 organisations, such as the Intelligence Bureau, RAW, and Directorate of Enforcement, from the RTI Act. Section 24(4) similarly permits State Governments from excluding “intelligence and security organisations” established by them. In the exercise of this power, several State Governments have even questionably exempted departments of their home ministries from the RTI Act and then relied on that exemption to not provide copies of internet shutdown orders, which Supreme Court’s decision in Anuradha Bhasin v. Union of India, requires them to publish.
This is precisely the absurd outcome highlighted above. The RTI Act only provides the procedure to exercise the right to information. The right can be restricted based on the nature of the information the applicant is seeking but not based on who is the custodian of that information. The latter results in disproportionately restricting the right. Thus, the correct interpretation of Section 24 is that it permits exempted organisations from denying information that directly relates to their intelligence or security functions.
Indeed, High Courts other than the Delhi High Court have espoused this interpretation. A single-judge of the Punjab and Haryana High Court in First Appellate Authority, Additional DGP, CID of Haryana v Chief Information Commissioner, directed the Haryana Police (an organisation exempted under Section 24(4) by the Government of Haryana) to disclose information regarding vacancies for the post of stenographer. The single-judge ruled that Section 24 only exempts information “which is directly effecting and co-related to the ‘intelligence’ and ‘securtiy’ of that organisation of the State and not otherwise.” This decision of the single-judge was upheld by a division bench and later, the Supreme Court dismissed a special leave petition challenging the decision of the division bench. The Manipur High Court has taken a similar view in Md. Abid Hussain vs State of Manipur, when it held that the purpose of Section 24, “is to merely protect and ensure the confidentiality of the sensitive works and activities undertaken by these organsations.” More recently, the Orissa High Court in Subash Mohapatra v. State of Odisha & Anr., has also held that a notification under Section 24(4) of the RTI Act exempting the State Vigilance Department, will not permit the Government to deny information that “does not touch upon any of the sensitive and confidential activities undertaken by the Vigilence Department.”
The single judge of the Delhi High Court in Nisha Priya Bhatia, did not consider any of these decisions. While this may be because no one appeared for the petitioner, it does result in an outcome antithetical to the RTI Act. In any case, this conflict in decisions of the High Courts requires a resolution. Beyond this aspect of the decision in Nisha Priya Bhatia, it is important to flag that the single-judge has also stated that the only exemption which is provided in Section 24 (exempted organsations should disclose information pertaining to allegations of corruption and human rights) should be narrowly interpreted. The single judge arrived at this conclusion even though the facts did not require her to do so. This, again, is not consistent with the Act and requires a detailed analysis at a later stage.
