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CENTRAL INFORMATION COMMISSION

Block IV, 5th Floor, Old JNU Campus

New Delhi 110067

Appeal No. CIC/AT/C/2006/00087

Dated July 5, 2007

Name of the Complainants: Shri Sayantan Dasgupta AG-I/85C, Vikaspuri New Delhi-110 018. Name of the Public Authority: Ministry of Home Affairs Lok Nayak Bhavan, Khan Market New Delhi-110 003. Date of Hearing 05.06.2007 Date of Decision 05.07.2007

FACTS:

The complainant submitted an application under Right To Information Act,

2005 (hereinafter referred to as “Act”) on June 22, 2006 before the Central Public

Information Officer (CPIO) of the Respondent Public Authority seeking certified

copies of all documents exhibited before the Netaji Enquiry Committee of 1956

constituted under the Chairmanship of Shri Shah Nawaz Khan and the One-man

Commission of Enquiry constituted under the chairmanship of Justice G.D. Khosla to

enquire into the circumstances leading to the disappearance of Netaji Subhash

Chandra Bose.

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2. The RTI application of the complainant was transferred by Shri S.K.

Bhatnagar, Deputy Secretary, Ministry of Home Affairs (MHA) to Shri M.M. Chopra,

Deputy Secretary and CPIO, Ministry of Home Affairs. However, the applicant was

informed by Shri S.C. Bardhan, OSD, Security, MHA vide his letter dated 30.6.2006

that his request seeking the information cannot be acceded to under Section 8(3) of

the RTI Act.

3. The Public Authority while rejecting the request for information did not provide

particulars of the First Appellate Authority who could have been approached by the

complainant under Section 19(1) of the RTI Act. The complainant thereafter

approached the Commission seeking review of the decision of the respondent Public

Authority. The complainant also prayed that the respondent Public Authority be

directed to provide him certified copies of all documents and also to initiate action

against the respondent Public Authority for violating Section 7(8) of the RTI Act. The

complainant also submitted that the documents requested by him under the RTI Act

are the very basic ones concerning Netaji Subhash Chandra Bose. Recourse to

Section 8(3) and maintaining secrecy in a matter of such vital national importance

was against the spirit of RTI Act, 2005.

4. In response to a notice issued by the Single Bench of this Commission, the

respondent Public Authority submitted their comments which are summarized as

below:

“As per Section 8(3), information relating to any occurrence, event or

matter which has taken place, occurred or happened twenty years

before the date on which any request is made under Section 6 shall

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not be provided to any person making a request under that Section. In

the instant case, the matter happened more than 20 years from the

date of the request i.e. 23.6.2006 and as such, it was refused. It is

submitted that if the Commission interprets the provision otherwise,

then the information, as available, would be provided as per prescribed

procedure.”

5. The respondent Public Authority also regretted that due to oversight they

could not communicate to the applicant the reasons for rejection of his RTI

request, the period within which the appeal should be filed and the particulars of

the appellate authority.

6. in their subsequent letter dated 25.8.2006, a copy whereof was also

marked to the complainant, the following information was furnished by the

respondent Public Authority:

“(3) In the instant case, the Shah Nawaz Committee was appointed by

Ministry of External Affairs in 1956 to enquire into the alleged

disappearance of Netaji Subhash Chandra Bose and the

Committee submitted its report in July, 1956. The Khosla

Commission was appointed in the year 1970 by Ministry of Home

Affairs under the Commission of Inquiry Act, 1952 and this

Commission submitted its report in June 1974.

(4) The request of the applicant, Shri Sayantan Dasgupta was

examined by the CPIO. The then CPIO took the view that both

these matters relate to a period which is more than 20 years old

from the date of the request i.e. 22.6.2006. It was viewed that the

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information relating to events which took place up to 22.6.1986

(date of request being 22.6.2006) only needed to be supplied. As

information in question related to a period before the cut-off date,

the information was declined.

(5) The reports of the Shah Nawaz Committee of 1956 and the Khosla

Commission of 1970-74 do not contain any list of exhibits with

description unlike the report of justice Mukherjee Commission of

Inquiry (Mukherjee Commission) of 2005. Efforts, therefore, need

to be made to identify such exhibits from the available records and

ascertain whether they are subject to the provision of clauses (a),

(c) and (i) of Section 8(1) of the RTI Act.

(6) It is further clarified that all available documents relating to the

Shah Nawaz Committee and Khosla Commission had been

provided to the Mukherjee Commission. The exhibits, if any, have

to be traced from the voluminous records made available and since

returned by it after submission of the report in November, 2005.

(7) While the Ministry is keen to trace and examine the documents,

keeping in view the magnitude of the task including volumes to be

perused, Ministry would require at least two months’ time to trace

out relevant records.”

7. The comments of the respondent Public Authority, however, provided no

information to the complainant. The complainant expressed his dissatisfaction

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about the respondents’ attitude vide his letter submitted to the Commission. The

matter was listed for hearing on October 30, 2006. In the meanwhile, the

complainant submitted a rejoinder stating, inter-alia, as follows:

(1) There is no restriction on provision of any information for the sole

reason of its being more than 20 years;

(2) Such restriction can be imposed only in conjunction with clauses

(a), (c) and (i) of Section 8(1) of the RTI Act. In other words, the

respondent Public Authority is required under the RTI Act to provide

information no matter how old unless the same is exempted under

clauses (a), (c) and (i) of Section 8(1) of the RTI Act.

(3) The only ground of denial of information taken by the respondent

Public Authority is under Section 8(3) and since there is no

objection from the Ministry of Home Affairs regarding the relevant

clause of Section 8(1), it cannot decline the requested information

on any valid ground.

(4) The complainant further submitted that the Ministry has expressed

its willingness that if the Commission interprets the provision

otherwise, then the information as available would be provided as

per prescribed procedure and in view of this, the Commission

should direct the Ministry to provide the requested information as

keeping such crucial information outside public access is itself in

violation of sub-sections (1)(b)(xiv) and (2) of Section 4 of the RTI

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Act 2005. To make inquiries into matters of such national

importance, credible and transparent, particularly when previous

findings have been negated by a more recent inquiry, all related

documents should be placed into the public domain and not stored

in secret.

(5) The complainant further contended that the requested information

cannot be exempted under section 8(1) of the RTI Act and pointed

out that the request is aptly supported by Section 8(2) which clearly

directs a public authority to allow access to information, if public

interest in disclosure outweighs the harm to protected interests.

8. The matter was heard by the Single Bench of the Commission and at the

time of hearing, it was noticed that there was lack of clarity about the exact

information the complainants wanted. The complainants were called upon to

clarify what exhibits they have had in mind and what was the source of their

information about the presence of these exhibits. It was also noted that the

matter was quite old and the institutional memory was quite blurred. Some

definitive indication from the complainant about the exact range of information

requested would be helpful in identifying the documents for a decision as to

whether those could be disclosed. The complainant in pursuance of these

directions given at the time of hearing submitted a detailed description of his

requirements which was as follows:

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“(1) The Justice Mukherjee Commission of Inquiry had noted in its

report that 202 documents were marked as exhibits by the Khosla

Commission. The Ministry of Home Affairs be directed to provide

the applicant with the certified copies of all these 202 documents.

(2) Since the list of documents marked as exhibits by the Shah Nawaz

Committee were not publicly available, the complainant expressed

his inability to provide their details. He, however, drew attention to

the fact that references to the existence of these exhibits could be

found in the dissenting report of Suresh Chandra Bose, who was a

member of the Shah Nawaz Committee. The Commission was

urged to direct the Ministry of Home Affairs to provide the certified

copies of the documents marked as exhibits by the Committee.”

9. The matter was again heard on 12.12.2006. The hearing had to be

adjourned as no clear response was received from the respondent Public

Authority. They were, therefore, directed to come up with clear responses to the

queries for information made by the complainant. On 26.3.2007, the respondent

Public Authority vide their letter bearing Ref. No.11012/62/06-CDN. Dated

26.3.2007 submitted that the matter had been considered carefully at the highest

level in the Ministry and submitted as follows:

(i) In compliance with the directions of the Commission, a thorough

search for locating the exhibits of Khosla Commission, including the

89 documents (26 certified copies and 63 photo copies), which

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were reportedly given to Mukherjee Commission, was made by

taking up the matter with the appropriate Sections of MHA,

including those who had actually handed over the documents to

Mukherjee Commission. They were inspected to check whether

documents were returned by Mukherjee Commission to them (the

Ministry of Home Affairs) and also to search the records of

Mukherjee Commission available with this Ministry;

(ii) No exhibits of Khosla Commission could be located except 12

documents which formed part of Mukherjee Commission exhibits;

(iii) The suggestion of the Commission to transfer these documents to

National Archives including the record of Mukherjee Commission

had been carefully considered in the Ministry;

(iv) Most of the documents of Mukherjee Commission are voluminous,

secret and top secret in nature which have already been taken

cognizance of by the Commission, whose report has been made

public;

(v) The above documents are sensitive in nature, the public disclosure

of which may lead to a serious law and order problem in the

country, especially in West Bengal;

(vi) It is the considered view of this Ministry not to supply the

documents relating to various Commissions of Inquiry on

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disappearance of Netaji Subhash Chandra Bose in public interest

more so when these relate to an event which took place more than

20 years ago.

(vii) The applicant has also not filed any appeal to the appellate

authority and has instead approached the Commission directly.

10. Taking note of the above submissions, the Commission stated that the

matter was of a serious national importance. In spite of that, the Ministry of

Home Affairs, as respondents, had been taking a somewhat perfunctory position

in this case. They were seen to be unwilling or unprepared to take a considered

view regarding which parts of the Netaji Subhash Chandra Bose’s papers should

be kept secret and for what reason. However, recognizing the seriousness of the

matter that this particular case involved, it was decided that the matter be heard

and decided by the Full Bench of the Commission and that Ministry of Home

Affairs be given a longer date to prepare and present their case after holding

such inter-ministerial consultations as might be considered necessary by them.

The Full Bench heard the matter on 5.6.2007, which was attended by the

following:

Appellant:

1. Shri Sayantan Dasgupta

2. Shri Arun Dhar

3. Shri Chandrachud

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Respondents:

1. Shri L.C. Goyal, Jt. Secretary, MHA

2. Shri S.K. Malhotra, Dy. Secretary, MHA

3. Shri S.K. Goswami, Under Secretary, MHA

11. The arguments advanced at the time of hearing by the complainant may

be summarized as under:

(a) The complainant pointed out that while rejecting his request for

information, the complainant should have been communicated with

the following:

i) reasons for rejection;

ii) period within which the appeal can be filed;

iii) particulars of appellate authority.

(b) Even after rejection of his request, the respondents sought two

months’ time to trace the records. In reply to the contention that the

information can be exempted under Section 8(1) of the RTI Act, the

complainant submitted that even exempted information can be

disclosed under Section 8(2) of the RTI Act if public interest in

disclosure outweighs harm to protected interest.

(c) The complainant submitted that it was only for the convenience of

the respondents and as requested by them that he had stepped

down from his request initially made for certified copies of all

documents exhibited before the Shah Nawaz Committee, 1956 and

G.D. Khosla Commission, 1970, and that he now only wants

certified copies of —

(i) 202 documents exhibited by Khosla Commission;

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(ii) Documents which are marked as exhibits by the Shah

Nawaz Committee.

(d) The complainant said that 8(1)(a) does not apply to the present

case as it is already concluded that Netaji had died in a plane crash

and, therefore, there cannot be any threat as mentioned under

8(1)(a). The complainant asserted that the citizens of this country

have a right to know every thing about such an eminent personality

for whom they have so much respect and regard.

(e) The Complainant wanted to know at what level the decision about

sensitive nature of the documents has been taken and who has

taken this decision. He submitted that every body by now knows

that the respondents are not going to disclose this information but

the point is who has taken this decision.

(f) Complainant also alleged that the documents have been destroyed

to which the respondents said that it is only a conjecture and they

cannot say any thing about it. Complainant said that the intention

of the Ministry is to hide and to not disclose. Their responsibility

does not end just by saying that certain documents are missing or

cannot be located. We are not sure whether the respondents are

really making the exercise as claimed by them.

12. The arguments advanced at the time of hearing by the respondent Public

Authority are summarized as under:

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(a) That the documents sought under the RTI Act are voluminous and

top secret in nature and may lead to chaos in the country if

disclosed.

(b) That the information asked for is more than 20 years old and as

such, its disclosure is exempted under section 8(3) of the RTI Act.

They also submitted that the committee appointed to go into the

disappearance part of Netaji Subhash Chandra Bose has come to

the conclusion that Netaji Subhash Chandra Bose died in an air

crash. It was tabled before the Parliament and is in public domain.

So, there is nothing that the Government hides in this respect.

They also submitted that the findings of the Committee are also in

public domain.

(c) That apart from the 202 exhibits which the complainant had

requested, there are 308 more exhibits running into 70,000 pages

and, therefore, to give copies of all of those are a Herculean task.

(d) The respondents denied that they have ever said that all the

documents are classified and secret. They have only said that

many of those documents are classified.

(e) Respondents submitted that time given to the respondents is too

short to look at such voluminous documents. They require some

more time.

(f) That the decision concerning disclosure has to be taken at the

highest level and that they cannot say any thing on their own.

ISSUES FOR DETERMINATION:

I. Whether the denial of information under Section 8(3) of the RTI Act is

justified under the RTI Act, 2005?

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II. Is the Public Authority entitled to claim exemption under Section 8(1) of

the RTI Act at this stage?

III. What directions, if any, can be issued by the Commission?

DECISION AND REASONS:

13. The Right to Information Act, 2005 was enacted in order to promote

transparency and accountability in the working of every public authority. The Act

entitles every citizen to secure access of information under the control of every

public authority. The Act recognizes that disclosure of information in actual

practice is likely to conflict with other public interests which may include

preservation of confidentiality of sensitive information. However, the principal

object of the Act is to harmonize these conflicting interests by preserving the

paramountcy of the democratic ideals. Looking into this perspective enshrined in

the Preamble to the RTI Act, 2005, it may be inferred that a public authority is

obliged to provide access to information to a citizen unless furnishing of such

information is covered by one of the exemptions provided for in the Act either

under Section 8 or under Section 9.

14. The provisions of Section 8 of the RTI Act are very pertinent in this context

and they provide that a public authority shall not be obliged to give —

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relations with foreign State or lead to incitement of an offence;

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(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

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Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

15. We have quoted fully from Sec 8(1) because Sub-section 2 of Section 8

empowers a public authority to disclose information even though it may be

exempted under any of the above provisions, if the public authority is satisfied

that public interest in disclosure outweighs the harm to the protected interest.

16. In the instant case, the access to information was denied by the Ministry of

Home Affairs on the ground that the information is more than 20 years old and as

such it need not be disclosed under Section 8(3). It will be pertinent in this

context to quote directly the provisions of Section 8(3) of the RTI Act, which

reads as under:

“8(3). Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:1

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.”

17. A plain reading of sub-section 3 makes it clear that a public authority is

obliged to provide information which is more than 20 years old. This is an

obligation subject only to the provisions of clauses (a), (c) and (i) of Section 8(1)

of the RTI Act. This clearly means that information which is more than 20 years

1 Emphasis added

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old and only if it is covered by clauses (a), (c) and (i) of sub-section (1) of Section

8, the public authority may decline to furnish the information. But in all other

cases, even though they may fall within the ambit of Section 8(1), the

disclosure by the Public Authority is mandatory. In the instant case, the

public authority while denying the information and communicating its decision to

the complainant has not communicated anything about the applicability or

otherwise of either of the aforesaid clauses of section 8(1). However,

subsequently, in their submissions before this Commission, they have mentioned

that efforts need to be made to identify such documents from the available

records and ascertain as to whether they are subject to the provisions of clauses

(a), (c) and (i) of Section 8(1) of the RTI Act.

The first issue is disposed of accordingly.

18. It is astonishing to note that although the Single Bench of this Commission

while hearing the matter on 12.2.2006 directed the respondent Public Authority to

come up with clear responses as to which parts of Netaji Subhash Chandra

Bose’s papers should be kept secret and for what reason, but the respondent

public authority has done nothing even after a lapse of almost 6 months. On the

one hand they have reiterated that there is nothing that the Government seeks to

hide in this respect, that the report of the committee appointed to go into the

alleged disappearance of Netaji Subhash Chandra Bose has already been

tabled before Parliament and that the same is in the public domain, on the other

hand they have mentioned that since the documents are voluminous, they need

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time to examine them and then in the same breath, they say that the documents

are so sensitive in nature that if disclosed could lead to chaos in the country.

19. It is therefore clear that the respondent Public Authority in spite of the

direction given by the Commission has made no attempt either to examine the

documents requested, or to analyze as to whether their disclosure need be

withheld and if so, on what grounds.

20. It appears that neither before nor now, the respondent Public Authority

has been able to establish a clear nexus or any co-relation between the decision

of non-disclosure and the objectives which they seem to achieve by such non-

disclosure. If it has not even looked into or analyzed the documents, on what

basis could they come to the conclusion that any disclosure of such information

will be prejudicial to the security or sovereignty and integrity of the country or

would prejudicially affect its relations with any foreign State? No study has been

conducted nor any analysis so far made about the sensitive nature of the

documents and as such, it seems to be only a facile hypothesis that the

disclosure of the documents would lead to serious law and order problem in the

country particularly in the state of West Bengal. This seems to be a position

repeated without any discernable application of mind.

21. As has been explained above, the denial of information under Section 8(3)

is prima facie untenable unless the public authority itself comes to a conclusion

on the basis of verifiable grounds that the disclosure of such information is

exempted under section 8(1) (a) and then convinces the CIC about the

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genuineness of their conclusion. The other two sub-clauses (c) and (i) of Section

8(1) are inapplicable to the facts and circumstances of the present case.

The 2nd issue is decided accordingly.

22. The Commission is aware that the present proceedings are basically

complaint proceedings and the matter has not come before it by way of an

appeal but there is no purpose in remanding the matter to the first appellate

authority at this stage as it is not likely to serve any purpose other than further

delaying the matter. The Commission is also aware of the fact that this is a

matter of wide public concern and therefore of national importance. We accept

that the respondent public authority is the authority to best judge to determine

whether the disclosure of the information would prejudicially affect the national

interest or not. However, such determination cannot and, should not, be

superficial, jejune or perfunctory. The reasons should exhibit the hallmarks of

application of mind and an objective sifting of information germane to that

decision. The Commission cannot allow an indefinite period to the public

authority to arrive at a decision, or indeed arrival at its decision. Any decision in

this regard must factor in the changed transparency scenario after the advent of

the RTI Act. Earlier, a public authority could bar any information from disclosure

under the Official Secrets Act, simply by classifying the information as secret or

top-secret. That option has been effectively excluded by the RTI Act. Any

decision to withhold information from public access is to be justified rationally,

under the provisions of the Act. The decision to bar an information from

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disclosure can no more be arbitrary. It will need to pass the Commission’s

scrutiny.

DECISION NOTICE:

23. After careful consideration of the facts and circumstances of the case and

after hearing the parties, and in view of the reasons recorded above, in keeping

with our decision on issues I and II above, the Commission directs as under:

(i) That the respondent Public Authority will furnish information sought

by the complainant within a period of three months from the date of

receipt of this order. The Public Authority (respondent) may in the

meanwhile examine and analyze as to which specific documents

are covered by Section 8(1) (a) and as such exempted from

disclosure. In case the Public Authority decides not to disclose

certain documents or any part thereof, it shall record reasons for

such non-disclosure together with the name and designation of the

authority arriving at the conclusion of non-disclosure, and submit

the same before this Commission not later than three months from

the date of the receipt of this order.

(ii) The reasons so recorded shall be submitted before this

Commission on or before 30th September so as to enable this

Commission to give further directions, if any, in this regard.

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24. The Commission has noted that the MHA has expressed its resolve before

us to examine these records of undoubted national importance and send them to

the National Archives as required under the Public Records Act, 1993 (No.69 of

1993). Under the authority vested in us u/s 25(5) of the Act, the Commission

recommends that this resolve be translated into action as early as possible as by

doing so, the MHA would not only be discharging its legal duties and rendering

an essential service to a public cause, it may finally help resolve an unsolved

mystery of independent India.

Dated this the 5th day of July, 2007

(Wajahat Habibullah) (Smt. Padma Balasubramanian) Chief Information Commissioner Information Commissioner

(A.N. Tiwari) (Dr. O.P. Kejariwal) Information Commissioner Information Commissioner

(Prof. M.M. Ansari) Information Commissioner Authenticated true copy.

(L.C. Singhi) Additional Registrar

Note: Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.