Information about CRPF operations in Silger & Chintalnar, Chhattisgarh - CIC: appropriate authority to decide whether an allegation of human rights violation is true; order of an enquiry by govt. & initiation of internal enquiry establish the allegations
21 Mar, 2014ORDER
1. The appellant is present for the hearing along with Govind Nayak. The respodnent is being represented by Smt Anupam Kulshreshtha (IPS/DIGP/Admin), Y.N Rai (Comdt. Law), Kumar Sourav (DC/Law) & Harpreet Kaur (ACPIO). The matter was heard on 29.8.2013. The additional submissions filed after the hearing dated 5.9.2013 by the appellant has been taken on record. In view of the typical facts of this case the Commission sought assistance from NHRC and thereafter the National Commission of Human Rights has deputed Shri Indrajeet Kumar (Asst. Registrar, Law) to assist in the hearing. The assistance extended during the hearing is appreciable.
2. The appellant filed an RTI application dated 5.7.2012 addressed to Directorate General, Central Reserve Police Force (CRPF) seeking information on (6) points. The appellant sought the following information:
i) The title of laws (Central and/or State) under which CRPF is authorized to conduct operations, armed with weapons, in Chattisgarh
ii) A clear photocopy of any document or record authorising CRPF personnel to conduct operations, armed with weapons, in the State of Chattisgarh
iii) A clear photocopy of any warrant or order or any official document authorising CRPF personnel to open fire with their firearms during operations in the State of Chattisgarh
iv) A list of Standard Operating Procedures (SOPs)/instructions/guidelines/communucations issued till date by CRPF to its personnel conducting operations in Chattisgarh regarding the use of firearms. Please indicate the topic/subject matter, date of issuance and the designation of the signatory officer
v) A clear photocopy of each of the SOPs/instructions/guidelines/communications referred to at para (iv) above
vi) The total number of CRPF personnel who participated in the operations conducted at Silger and Chintalnar, Chatttisgarh (please provide specific figures for each operation) and
vii)The total number of bullets fired by CRPF personnel during operations conducted at Silger and Chintalnar, Chattisgarh (please provide specific figures for each operation)
The appellant further states in his application that "I have enclosed two news item items (Annexure 2 & 3) which contain reports of allegations made by political parties in relation to the operations in Silger and Chintalnar. As more than one political party is said to have alleged that some of the deaths caused during the operations were of women, children and adivasis, this constitutes an allegation of violation of human rights of those women, children and adivasis. In my opinion the information sought above falls within the ambit of the first proviso to section 24 of the RTI Act because it pertains to the human rights violation alleged to have been committed during the CRPF-led operations."
3. The CPIO vide letter dated 19.7.2012 replied as under: "After careful consideration of your application on the subject, it is intimated that as per section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of Right to Information Act, 2005 Central Police Forces as listed in the Second Schedule of the Act, have been given qualified exemption from the Act in so far as the allegations of other than those connected with Human Right Violations and Corruption are concerned. From the facts of the case mentioned in your application cited above, there appears to be no violations of Human Rights as well as facts of the case do not attract ingredients to constitute the allegations of corruption. Moreover, the information sought are general in nature. Hence, this department is not liable to provide the information sought by you. Further it is also intimated that the information/documents sought by you relates to security/operational instructions which cannot be divulged to civilians in the normal course under section 8 (1) (a) of the RTI Act, 2005.”
4. The appellant filed first appeal dated 25.8.2012 which was disposed of vide order dated 7.9.2012 wherein the first appellate authority upheld the view taken by the CPIO. The appellant has filed the second appeal on various grounds, parts of which are being reproduced below:
i) The three Annexures that I attached to my RTI application contain adequate material for the purpose of the CPIO to make a determination as to whether the facts presented therein constitute “allegations” of human rights violation or not. Section 24 does not require an applicant to prove before before the CPIO that the actions constitute human rights violation. That is a determination that requires to be made not necessarily by the CRPF or its CPIO but by the appropriate High Court or the Supreme Court of India who are appointed custodians of human rights of citizens. I believe that the facts contained in the press release issued by the CRPF dated 29.6.2012 (Annexure 1A) make it clear that “16 dead bodies have been recovered from this location which also includes that of a female and two prominent naxals of that area.” This statement issued by the CRPF makes it clear that all individuals were killed in the said incident in Chattisgarh involving some its personnel. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
ii) The CRPF being an agency of the State under the Union Ministry of Home Affairs is under a strict obligation to protect human rights guaranteed under part III of the Constitution. There is no indication in the text of the said CRPF press release that the said CRPF personnel were implementing an order of a court of law requiring the execution of those individuals killed in the said incidents in Chattisgarh.
iii) I would like to submit that I am only pointing out that allegations made by third parties exist in the public domain and they clearly belong to the category of “allegations of human rights violation” specified in the provisions under section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act. The test required for the disclosure of information under the first proviso to section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: namely, the request must be for information “pertaining to allegations of human rights violations” is without an iota of doubt satisfied by the facts presented in my RTI application and the Annexures attached to it. I would like to submit that the CPIO has not taken these facts into account while making a decision on my RTI application.
iv) The information sought at para (vi) and (vii) of my RTI application are specific in nature as they relate to factual information about number of CRPF personnel who participated in the operations conducted in Chhattisgarh and the number of bullets fired by CRPF personnel during those operations. The CPIO has erred in labeling these two requests as being general in nature. I am aggrieved by the CPIO’s decision. v) Further, the CPIO’s determination that the information sought at para (1) to (v) of my RTI application are general in nature is also indicative of an error of judgment. I have sought information about the laws, rules, regulations, authorizations and standard operating procedures relating to the CRPF’s operations in Chhattisgarh. These categories of information directly relate to the authority invested in the CRPF to use force while conducting operations in Chhattisgarh. ……………………………………………………………………... , I am only seeking information about laws, rules, regulations, authorizations and standard operating procedures followed by the CRPF personnel as they directly pertain to the deprivation of the lives of the deceased individuals in Chhattisgarh.
vi) Further, the CPIO has invoked section 8 (1) (a) of the RTI Act to deny access to information on the ground that I have sought information relating to security/operational instructions which cannot be divulged to civilians in the normal course. I would like to submit that CPIO has committed an error by laying claim on section 8 (1) (a) for protecting this information and rejecting my request. I would like to submit that an organization exempted from ordinary obligations of transparency and information disclosure under section 24 (1) read with Schedule 2 cannot also claim the protection of section 8 or 9 of the RTI Act.
5. The main points raised by the respondents in their written submissions is as under:
“i) Applicant has sought procedure/instruction of the case/operation and there is no specific information/case of human right violation has been asked for. Therefore his request was rejected under section 24 (1) of RTI Act under which CRPF is exempted to provide information except the allegation of human right violation/corruption.
ii) Allegation allegedly construed by the appellant basing on the report in the print media.
iii) The information/documents sought by the applicant relates to security/ operational/ intelligence instructions which cannot be divulged to civilians in the normal course under section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act, 2005.
iv) Security forces had fired in retaliation/self defense and allegation allegedly construed by the appellant basing merely on the report in the print media. However an enquiry Commission has already been ordered to enquire into the incident dated 28-29/6/2012 by Govt. of Chhattisgarh vide their notification dated 11.7.2012 (copy enclosed). Besides, CRPF has also ordered two separate CoI into the incident dated 28.6.2012 at Sarkeguda, PS-Basaguda, Distt-Bijapur (Chhattisgarh) and dated 29.6.2012 at village Chimli Penta, PS-Jagargunda, Distt-Sukma (Chhattisgarh) vide IG CRPF Chhattisgarh Sector Order No. I-X-1/12- DA-1 dated 20.9.2012.
v) As per available record no NHRC case/complaint has been received on the matter.
vi) Since enquiries in this regard yet to be finalized and allegation made by print media against CRPF not yet proved, we cannot treat this information at this stage as human right violation.
vii) Moreover, there is no specific directive regarding human right violation for public authorities.
6. The appellant has further submitted vide his written submissions dated 5.9.2013: “During this hearing I expressed my inability to furnish documentary evidence from National Human Rights (NHRC) pertaining to the information I am seeking from the Central Reserve Police Force despite filing an application under the RTI Act. Subsequently the Public Information Officer of NHRC has sent me relevant information from their files about the two incidents of deaths due to police action involving CRPF personnel and Chhattisgarh police force in Silger-Chintalnar area of Chhattisgarh. This is directly related to the subject matter of my twin appeals mentioned above. I have attached self-attested copies of 10 pages containing the relevant orders issued by the NHRC upon taking cognizance of the said incidents.”
The appellant filed copy of orders passed by NHRC dated 5.7.2012, 1.10.2012 & 23.5.2013 in a complaint filed by RH Bansal. In the order dated 23.5.2013 the NHRC has issued following direction:
“ It is further intimated that a team of four police officers has been constituted under the chairmanship of the DIG, Anti Naxal Operation for investigation. The investigation is still going on. Further, a judicial enquiry ordered by the State Government regarding the incident is still going on. The Commission has perused the above report and papers. The DIG, Police Headquarters, Raipur, Chhattisgarh is directed to send within six weeks, the following reports/documents;-
i) Complete report of investigation
ii) Forensic/ballistic report on the finger prints, hand swabs, arms and ammunitions.
iii) The result of judicial enquiry set up by the State Government.”
The appellant also filed two orders of NHRC dated 16.10.2012 and 26.6.2013 in which one of the party is Superintendent of Police. Vide order dated 26.6.2013 also the NHRC has directed for filing of investigation report, FSL report etc. During the hearing the appellant has raised a contention that once it is held that the matter pertains to allegations of human rights violation or corruption, the exemption clauses of the section 8 of the RTI Act will not apply to the information sought. During the hearing the representative form NHRC has invited the attention of the Commission to section 19 of the Protection of Human Rights Act, 1993 which is being reproduced as under:
“19. Procedure with respect to armed forces.-
(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:-
a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;
b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central Governments and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.
Decision:
The Commission is of the view that indeed it is for the appropriate authority to decide whether an allegation of human rights violation is found to be true or not which can be conclusively determined once the process initiated under the law has concluded. However, as per the RTI Act the “allegations of corruption and human rights violation” shall not be excluded from disclosure for the organisations exempt from the RTI Act, 2005. The term “allegation” as defined in the Black's Law Dictionary (7th Edition, 1999) is as under:
“1. The act of declaring something to be true.
2. Something declared or asserted as a matter fact, especially in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its having yet been proved.”
The word “allegation of human rights violation” has been added with a purpose. Whether the allegation is found to be true or not can only be established as per the due process of law. As for the Information Commission it shall only assess whether the information sought pertains to “allegations of human rights violation”. The appellant has brought on record the press release of the CRPF dated 29.6.2012. In view of the fact that an enquiry Commission has already been ordered by state govt. of Chattisgarh to enquire into the incident and also that internal enquiry has been initiated in relation to the said incident, it cannot be ruled that the allegations have been made without any substance or merely on media report. Therefore, the Commission is of the view that there is enough material to establish that the allegations of human rights violation exist. As far as the contention raised by the appellant that an organization exempted from ordinary obligations of transparency and information disclosure under section 24 (1) read with schedule 2 cannot also claim the protection of section 8 or 9 of the RTI Act is concerned, the Commission does not find merit in this contention raised by the appellant. The Commission is of the view that once the information is held to be disclosable as per the proviso to section 24 of the RTI Act, it will be open for the Commission to examine the information sought as per provisions of the section 8 and 9 of the RTI Act, 2005. In the present appeal before the Commission, at point no. (i), (ii) & (iii) the appellant has sought information which pertains to laws, rules and regulations under which the CRPF functions in Chhattisgarh which should be provided as per record. However, with regard to point (iv) & (v) where the Standard Operating Procedure, (SOPs)/ instructions/ guidelines/ communucations issued till date by CRPF to its personnel conducting operations in Chattisgarh regarding the use of firearms is concerned, the Commission finds merit in the contention of the respondent that 8 (1) (a) of the RTI Act 2005 would apply. The respondent has also further explained in written submissions that the said information “relates to security/ operational/ intelligence/ instructions”. With regards to information sought at point (vi) & (vii) is particularly in relation to the incident at Silger & Chintalnar, the Commission is of the view that disclosure of such information would impede the process of the said ongoing enquiries and therefore section 8 (1) (h) of the RTI Act is applicable at the present stage. In any case, the status of the enquiry shall be informed to the appellant.
CIC/SS/A/2012/003431
1. The appellant filed an RTI application dated 6.7.2012 adressed to CPIO, CRPF seeking information on (6) points being reproduced below:
(i) The complete text of the intelligence inputs recevied by the CRPF from any source about the situation/developments in Silger and Chintalnar, Chattisgarh on the basis of which the operations, cited in the aforementioned press release, were launched.
ii) A list of all reports along with annexures, if any, submitted by the CRPF to the Union Ministry of Home Affairs clearly indicating the subject-matter of the report and the date of dispatch after the said operations in Silger and Chintalnar, Chhattisgarh
iii) A clear photocopy of all reports along with annexures, if any, referred to at para (ii) above
iv) A clear photocoy of the list of reports/ documents/ papers and any information in material form furnished by the CRPF to the State Government of Chhattisgarh in relation to the said operations in Silger and Chintalnar; and
v) A clear photocopy of the order/ warrant issued or decision taken by CRPF to launch an internal into the said operations in Silger and Chintalnar, Chhattisgarh along with related file notings.
vi) A clear photocopy of all documents containing details of the procedure to be adopted for the purpose of conducting an inquiry into the actions of CRPF personnel involved in operations of the kind undertaken at Silger and Chintalnar, Chhattisgarh.
2. The CPIO, CRPF vide order dated July 2012 denied the information citing reference to section 24 (1) and section 8 (1) (a) of the RTI Act. The CPIO took the view that from the facts of the case mentioned in the application there appears to be no violations of Human Rights or allegation of corruption. The appellant filed first appeal dated 25.7.2012 which was disposed off vide order dated 12.9.2012 wherein the FAA upheld the view of the CPIO. 3. The appellant filed second appeal mostly on similar grounds as filed in file no.CIC/SS/A/2012/003394. Also the additional documents filed by the appellant on 5.9.2013 are common for both the files.
4. At point no. (I) the information sought is in relation to intelligence inputs received by the CRPF which is an exempted organisation. The Commission is of the view that section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; would apply to such kind of information as it could have consequences on security related issues. Information sought at point (ii), (iii), (iv) & (v) pertains to report submitted by CRPF on the subject of operations conducted at Silger and Chintalnar. The Commission is of the view that the disclosure of the said information at point (ii), (iii), (iv) & (v) attracts section 8 (1) (h) of the RTI Act at the present stage as the disclosure of the said information would impede the process of the ongoing enquiries. Information sought at point no. (vi) shall be provided. Directions of the Commission shall be complied within two weeks from the receipt of the order.
Sushma Singh
Chief Information Commissioner
Citation: Mr Venkatesh Nayak v. Central Reserve Police Force in Case No. CIC/SS/A/2012/003394 CIC/SS/A/2012/003431