Delhi HC says public authority should give reasons why disclosure can affect investigation, dismisses CIC order

The Delhi High Court has reiterated that the public authority bears the burden of showing disclosure of information can impede investigation while dismissing a Central Information Commission (CIC) order.

The Delhi High Court reiterated that where a “public authority” takes recourse to Section 8(1)(h) of the Right To Information Act to withhold information, the burden is on the “public authority” to show that in what manner disclosure of such information could impede the investigation.

Justice Jayant Nath of the Delhi High Court said the legal position as settled by this court is that cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question.

The Section 8(1)(h) of the Right to Information (RTI) Act, 2005, reads as follows:-

“Section 8. Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, –

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

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The Court noted that in the impugned order of CIC, there is no attempt made whatsoever to show as to how giving the information sought for would hamper the investigation and the on-going disciplinary proceedings. The impugned order concludes that a chargesheet has been filed in the criminal case by the CBI but in disciplinary proceedings, the matter is still pending that is why Section 8(1)(h) is attracted and information cannot be given. No reason are spelled out as to how the investigation or prosecution will be hampered.

The Court also noted that petitioner has also suppressed material and vital facts in his writ petition which could be ascertained by the impugned order of the CIC.

“The impugned order of the CIC shows that there are serious and grave allegations and proceedings including the criminal proceedings and departmental proceedings pending against the petitioner,” said the Court.

Justice Jayant Nath said,

“…suppression of facts itself, in my opinion, is sufficient to dismiss the writ petition. However, I have examined the impugned order of the CIC on merits. In the interest of Justice. I have chosen to decide the present case of its merits..”

The Delhi High Court has quashed the impugned order of the CIC and directed it to consider the matter afresh.

The Court pronounced its order on an appeal filed by Amit Kumar Shrivastava, who had challenged the dismissal of his appeal by CIC against the order of First Appellate Authority which had dismissed his application filed under the RTI Act, by which he had sought certain information from CPIO.

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The Delhi High Court pronounced its order on the basis of Judgments passed in following cases: –

1. Director of Income Tax (Investigation) and Ors. vs. Bhagat Singh & Ors. MANU/DE/9178/2007 of Delhi High Court held as follows:

“…Under Section 8(1)(h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason.”

2. In Union of India vs. Manjit Singh Bali, 2018 SCC OnLine Del. 10394, a Coordinate Bench of Delhi High court held as follows:-

“…A plain reading of the aforesaid provision indicates that in order to deny information under Clause (h) of Section 8(1) of the RTI Act, it must be established that the information sought is one which would impede the process of investigation or apprehension or prosecution of the offenders. In the facts of the present case, a charge sheet has already been filed and, therefore, the investigation stage is now over. Thus, in order for the petitioner to claim exemption from disclosure under Clause (h) of Section 8(1)(h) of the RTI Act, it would be essential for the petitioner to indicate as to how such information would impede the investigation or apprehension or prosecution of the offender.

…In the present case, the petitioner has not indicated any possible reason or ground to establish that the disclosure of information as sought by the petitioner would impede prosecution of the offender. It is also relevant to observe that denial of any information available with a public authority, which could assist an alleged offender from establishing his innocence or for pursuing his defence may, in fact, impede the course of justice. After the investigations are complete, the information as sought by the respondent can be denied under Section 8(1)(h) of the RTI Act only if the public authority apprehends that such disclosure would interfere with the course of prosecution or in apprehending the offenders. It will not be open for the public authority to deny information on the ground that such information may assist the offender in pursuing his defence (and therefore impede his prosecution). This is clearly not the import of Section 8(1)(h) of the RTI Act.

…It is also necessary to bear in mind that the RTI Act is a statutory expression of one of the facets of Article 19(1)(a) of the Constitution of India and any exclusionary clause under the RTI Act must be construed keeping in view the object for providing such exclusion. By virtue of Article 19(2) of the Constitution of India, reasonable restrictions in exercise of rights under Article 19(1)(a) of the Constitution of India are sustainable if they are in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The exclusion under Section 8(1)(h) of the RTI Act – information which would impede process of investigation or apprehension or prosecution of the offenders – has to be read in conjunction with Article 19(2) of the Constitution of India. Such denial must be reasonable and in the interest of public order.”

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3. Bhagat Singh vs. Chief Information Commissioner & Ors., (2008) 100 DRJ 63 where the court held as follows:-

“…Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration,

Section 8 (1) (h) and other such provisions would become the haven for dodging demands for information.