Superintendent of Police vs M. Kannappan and Another

D. Hariparanthaman, J.—The first respondent is an advocate practicing at Dindigul. He made an application dated 24.3.2011 under the

Right to Information Act (for short ""the RTI Act"") to the Public Information Officer to furnish him a copy of the Vigilance Manual of the Directorate

of Vigilance and Anti-Corruption. The Superintendent of Police, Central Range, Vigilance and Anti-Corruption Unit, Chennai, the Public

Information Officer passed the order dated 8.4.2011 rejecting the request of the first respondent on the ground that the Directorate of Vigilance

and Anti-Corruption (for short, ""the DVAC"") has been exempted from furnishing information under the RTI Act as per G.O.Ms. No. 158.

Personnel and Administrative Reforms Department dated 26.8.2008. The first respondent filed an appeal before the Joint Director of Vigilance

and Anti-Corruption, Chennai, the appellate authority. The appeal was rejected by order dated 28.6.2011. The appellate authority also noted that

though Writ Appeal Nos. 320 and 321 of 2010 were tiled by the DVAC and a direction was issued by this Court to furnish the information

regarding the number of police officials who were caught during the raid by DVAC together with the list of names, the designation and the address

of officials, number of investigations completed and convictions arrived at between the years 2003-04 and 2007-08 etc. in corruption matters to

the applicants therein, the DVAC decided to question the same before the Apex Court and a proposal was sent to the Government on 20.5.2011.

The first respondent herein took up the matter before the Tamil Nadu Information Commission, the second respondent against the order of the

appellate authority by way of second appeal. The Tamil Nadu Information Commission, by the impugned order dated 28.11.2011, allowed the

second appeal and directed the writ petitioner to furnish a copy of the manual on payment of appropriate charges. The Tamil Nadu Information

Commission held that Section 2(f) of the RTI Act includes the manual maintained by the DVAC and therefore, the first respondent is entitled to

have a copy of the same. This writ petition is filed to quash the said order.

The learned Special Government Pleader appearing for the petitioner has submitted that G.O. Ms. No. 158, Personnel and Administrative

Reforms Department dated 26.8.2008 was issued u/s 24(4) of the RTI Act exempting DVAC from the purview of the RTI Act and, therefore, the

authorities were correct in refusing to give the copy of the manual to the first respondent. He has further submitted that G.O. Ms. No. 158 dated

26.8.2008 was questioned before this Court in W.P. No. 4907 of 2009 and the said Government Order was upheld on 30.3.2009. Therefore, the

impugned order is erroneous and the same is liable to be quashed. It was also submitted that since DVAC is exempted from the purview of the

RTI Act. Section 2(f) cannot be made applicable to the DVAC.

On the other hand, Mr. G. Rajagopalan, learned senior counsel appearing for the second respondent has submitted that as per the provisos to

Section 24(4) of the RTI Act, the information pertaining to allegations of corruption and human rights violations are not excluded and the authorities

shall provide the information relating to those allegations. He has relied on the judgment of a Division Bench of this Court in The Superintendent of

Police Vs. R. Karthikeyan, . He has also taken me through Sections 2(f), 4(1)(b)(v) and 8 of the RTI Act and has submitted that in view of the

aforesaid provisions viz., Sections 2(f), 4(1)(b)(v) and 8 and the provisos to Section 24, the first respondent is entitled to a copy of the manual.

I have considered the submissions made on either side. It is not in dispute that the Government issued G.O. Ms. No. 158, Personnel and

Administrative Reforms Department dated 26.8.2008 u/s 24(4) of the RTI Act stating that the RTI Act shall not apply to Tamil Nadu State

Vigilance Commission and the Directorate of Vigilance and Anti-Corruption organizations. Section 24 of the RTI Act is extracted hereunder:

Act not to apply to certain organizations.-(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in

the Second Schedule, being organizations established by the Central Government or any information furnished by such organizations 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:

Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be

provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be

provided within forty-five days from the date of the receipt of request.

(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security

organization established by that Government or omitting therefrom any organization already specified therein and on the publication of such

notification, such organization shall be deemed to be included in or, as the case may be, omitted from the Schedule.

(3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.

(4) Nothing contained in this Act shall apply to such intelligence and security organization being organizations established by the State Government,

as that Government may, from time-to-time, by notification in the Official Gazette, specify:

Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section.

Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be

provided after the approval of the State Information Commission and, notwithstanding anything contained in Section 7, such information shall be

provided within forty-five days from the date of receipt of request.

We are not concerned with sub-sections (1) to (3) of Section 24 and are concerned only with sub-section (4) of Section 24 and the provisos

thereto. The provisos to Section 24(4) make it clear that even if the intelligence and security organizations established by the State Government are

exempted from the application of the Act u/s 24(4), the information pertaining to the allegations of corruption and human rights violations shall not

be excluded. In these circumstances, this Court dismissed the Writ Petition Nos. 23507 and 23508 of 2009 by a common order dated 12.1.2010,

which were preferred by the writ petitioner herein questioning the order of the Tamil Nadu Information Commission directing the authorities to

furnish the details relating to the number of police officials who were caught during the raid by DVAC together with the list of names, designation

and the address of officials, number of investigations completed and convictions arrived at between the years 2003-04 and 2007-08 etc., in

corruption matters to the applicants therein. The order of the learned single Judge was upheld by the Division Bench in the judgment in The

Superintendent of Police, Central Range, Office of the Directorate of Vigilance and Anti-Corruption v. R. Karthikeyan and Others (supra).

Paragraphs 4 and 5 of the order dated 12.1.2010 in W.P. Nos. 23507 and 23508 of 2009 and paragraphs 16 and 17 of the judgment of the

Division Bench in The Superintendent of Police, Central Range, Office of the Directorate of Vigilance and Anti-Corruption v. R. Karthikeyan and

Others (supra) are extracted hereunder:

In W.P. No. 23507 of 2009, the first respondent sought for information regarding the number of police officials who were caught during the raid

by DVAC together with the list of names, the designation and the address of officials, who were caught during raids along with the amount

recovered from each officials as well as the details of departmental action taken against each officials, the details of prosecution launched against

the officials under the Prevention of Corruption Act and the status of such prosecution against each officials and whether the persons whose names

are furnished were reinstated in service and if so, the date on which they had rejoined service as well as the details of list of action taken by the

department to prevent corruption at Police Station/Branches/Wings in Chennai City.

The letter which was originally sent to the State Government was forwarded to the Director of Vigilance and Anti-Corruption. On such

redirection, the appellate authority further directed the petitioner organization to examine the scope of giving such information in accordance with

law. It was, thereafter, the petitioner organization by an order dated 2.2.2009 informed the first respondent that they are exempted from the

purview of the RTI Act. When the first respondent made a complaint to the second respondent Information Commission, the second respondent

passed the impugned order directing the petitioner to furnish the information.

The validity of the said Government Order was questioned before this Court in P. Pugalenthi v. State of Tamil Nadu represented by the

Secretary to Government, Personnel and Administrative Reforms (N) Department, Chennai and Others, W.P. No. 4907 of 2009 and the same

has been upheld by order dated 30.3.2009. The contention of the learned Special Government Pleader is that in view of the above, the Chief

Information Commissioner should not have directed the furnishing of information required by each of the first respondent in the appeals and

consequently the learned Judge should not have dismissed the writ petitions filed by the department. In our opinion, the said contention is totally

unacceptable. Even in the said judgment, the Division Bench has categorically held that in the event the information required by an applicant relates

to the allegations of corruption, the said Government Order cannot be made applicable and accordingly the department cannot claim the exemption

from furnishing those particulars relating to corruption. The learned Judge has correctly applied the above judgment with reference to the

particulars required by each of the first respondent in these appeals, as they relate only to corruption.

In terms of Section 24(4), the State Government is empowered to notify in the Official Gazette that nothing contained in the Right to

Information Act shall apply to such intelligence and security organization being organizations established by the State Government. Nevertheless, in

the light of the first proviso, such power being conferred on the State Government to notify exempting such intelligence and security organizations, it

cannot notify in respect of the information pertaining to the allegations of corruption and human rights violations. As a necessary corollary, the

power to exempt from the provisions of the Act is not available to the State Government even in case of intelligence and security organizations in

respect of the information pertaining to the allegations of corruption and human rights violations. The application of the notification depends upon

the nature of information required. In this context, we may refer that the first respondent in W.A. No. 321 of 2010 has sought for the particulars

relating to the number of investigations completed and the number of persons convicted for the years from 2003-2004 to 2007-2008 with the

details as to the names of such convicted persons, the post held by them when the act of corruption was done, the charges framed and the

recommendations given to the Vigilance Commissioner after investigation. Likewise the first respondent in W.A. No. 320 of 2010 has sought for

the particulars relating to the number of police stations/wings/branches within the Chennai city were raided by the DVAC officials during the last

five years i.e., from January, 2003, how many police officials were caught during the raids, the list of names, the designation and the address of

such officials who were caught and the amount recovered from each official, details of departmental actions taken against such official including the

copy of enquiry report, the details of prosecution launched against such officials, the status of prosecution against each official, how many have

been re-inducted into active service including the date of rejoining the service and their present place/station of service, the details of action taken

by the Department to prevent corruption at police stations/branches/wings especially in Chennai city and the grievance redressal machinery for the

public to make a complaint against such corrupt official demanding bribe/favour to do the duty. As all these particulars would certainly relate to

corruption, the Government Order has no application to the facts of this case.

The Division Bench has taken note of the fact that G.O. Ms. No. 158 dated 26.8.2008 was upheld in W.P. No. 4907 of 2009 on 30.3.2009.

Thereafter, the Division Bench upheld the order of the learned single Judge dis-missing the writ petitions preferred by the Public Information

Officer, the petitioner herein in refusing to furnish the information.

The first appellate authority has stated that a proposal had been sent to the Government for preferring Special Leave Petition. The Tamil Nadu

Information Commission also noted that no stay order was produced staying the operation of the order of the Division Bench. Even today, though

the learned Special Government Pleader has stated that an SLP was preferred against the order of the Division Bench, he is not able to state that

the order of the Division Bench is stayed by the Apex Court.

In view of the judgment of the Division Bench read with the provisos to Section 24(4) of the RTI Act, I am of the view that the first respondent

herein is entitled to have the manual of the DVAC. The manual cannot be kept as a secret document. It is nothing but a set of rules as to how the

DVAC is functioning. I am not able to understand as to why the DVAC feels shy to furnish the manual. In fact, the information that were the

subject matter before the Division Bench were concerned with the corruption and the consequent action taken by the DVAC and those details

were directed to be furnished. Hence, the DVAC cannot refuse to furnish the manual maintained by it. At this juncture, I wish to refer to the

submission made by the learned senior counsel for the second respondent that the manual is not exempted from disclosure as per Section 8 of the

RTI Act. While Section 8 states that there shall be no obligation to give the information relating to various documents mentioned therein, the manual

of the DVAC is not one among them. Likewise, the public authorities shall maintain the rules, regulations, instructions, manuals and records for

discharging their functions as contemplated u/s 4(1)(b)(v) of the RTI Act. Section 2(f) defines ""information"" and the same is also extracted

hereunder:

Definitions.-- In this Act, unless the context otherwise requires,-

(f) ""information""'' means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars,

orders logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private

body which can be accessed by a public authority under any other law for the time being in force.

On a cumulative reading of Sections 2(f), 4(1)(b)(v), 8 and the provisos to Section 24(4), I am of the view that the first respondent is entitled to

the manual of DVAC. Hence, finding no infirmity in the impugned order, the writ petition fails and the same is dismissed. No costs.