Sunday, July 10, 2011

CBI cannot be taken out of RTI Act

CIC says pulling out CBI from scope of RTI Act is a violation of the law itself
July 06, 2011 03:59 PM Bookmark and Share 
Vinita Deshmukh

Central Information Commissioner says Central Bureau of Investigation cannot be categorised as an “intelligence” or “security” organisation, as it traces its origin to the Special Police Establishment which was set up in 1941 

In a recent order dated 9th June, the central government has amended the RTI Act and placed the Central Bureau of Investigation (CBI) out of the orbit of transparency, by including it in the Second Schedule which exempts "intelligence and security organisations established by the central government" from the purview of the RTI Act.

However, in a powerful and hard-hitting order by the Central Information Commissioner (CIC) Shailesh Gandhi on 11th June, the government's move has been seen as a violation of the norms of the RTI Act, as the CIC questions the nature of the CBI which is purely a "police establishment" and does not come under "intelligence'' and "security" as categorised by the central government. As per the RTI Act only "investigative and intelligence" agencies can come under the Second Schedulequalifications.

The CIC order is based on a second appeal made by a citizen who was not provided information by a public information officer (PIO) of the CBI, under the pretext that it is not under the purview of the RTI Act.

The CIC ruled that "no reason has been given by the DOPT or the Ministry of Personnel, Public Grievances and Pensions, as required under Section 4(1)( d) of the RTI Act" for bringing the CBI under the Second Schedule, along with the National Intelligence Agency and National Intelligence Grid. Hence, the order says, "In the absence of reasons, inclusion of CBI in the Second Schedule along with National Intelligence Agency and National Intelligence Grid appears to be an arbitrary act."

In the backdrop of heavyweight corporate leaders and influential politicians coming under the scanner of the premier investigative agency, which traces its origin to the Special Police Establishment Act, the timing of this decision is strange and hints at protecting the corrupt from the watchful eyes of the citizenry. What else can one derive when the reason given by the central government to pull it out of RTI Act is because the CBI addresses "investigations of several politically sensitive cases which have inter-state and international ramifications"?

Chennai-based RTI activist S Vijaylakshmi has knocked the doors of the Madras High Court, which in turn has asked the CBI to explain why it cannot come under the RTI Act. RTI activists across the country are livid over the government's move, and leading RTI campaigner Aruna Roy has said that she will take up the issue with the National Advisory Council chaired by UPA president Sonia Gandhi.

The CIC's order pertains to a second appeal made by Allahabad-based Justice RN Mishra demanding a first information report (FIR) lodged by the CBI and the report of the superintendent of police, CBI, in a provident fundscam case. The PIO denied the information for various reasons and stated that, "as per notification dated 9.6.2011 of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Annexure 'C') CBI has been included in the Second Schedule of the RTI Act, 2005 at Sl. No. 23". This propelled judge Mishra, who was one of the accused in the scam, to go for a second appeal to the CIC.

The CIC, Mr Gandhi, stated in his order, quoting generously from the CBI website ( :

CBI does not qualify to be an intelligence or security organisation
"…under Section 24(2) of the RTI Act, the Central Government has been given the power to include any other intelligence or security organisations, apart from the 18 in the original list-within the Second Schedule-by way of a notification. This power does not appear to have been extended to any other body, and is restricted to only intelligence or security organisations. In view of the same, it becomes pertinent to understand whether the CBI qualifies as "intelligence or security organisation" as per Section 24(2) of the RTI Act."

The CBI was formerly a special police establishment outfit 
"The Commission has perused the CBI website and the relevant extracts thereof have been reproduced below:

The Central Bureau of Investigation traces its origin to the Special PoliceEstablishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II. Even after the end of the War, a need was felt for a Central Government agency to investigate cases of bribery and corruption by Central Government employees. The Delhi Special PoliceEstablishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act."

CBI investigates offences of bribery and corruption 

"The Delhi Special Police Establishment acquired its current name, CBI, through a home ministry resolution dated 01/04/1963. The relevant provisions of the Delhi Special Police Establishment Act, 1946, which describe the powers of CBI are provided as follows:

2. Constitution and powers of police establishment, (1) Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special police force to be called the Delhi Special PoliceEstablishment 2[***] for the investigation 3 [in any 4 [Union territory]] of offences notified under section 3.

(2) Subject to any order which the Central Government may make in this behalf, Members of the said police establishment shall have throughout 5 [any 4 [Union territory]] in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of six [that Union territory] have in connection with the investigation of offences committed therein.

What types of crimes does the CBI investigate today?

The CBI has grown into a multi-disciplinary investigation agency over a period of time. Today, it has the following three divisions for investigation of crime.

(i) Anti-Corruption Division - for investigation of cases under the Prevention of Corruption Act, 1988 against public officials and employees of the central government, public sector undertakings, corporations or bodies, owned or controlled by the government of India-it is the largest division having presence in nearly all the states of India.

(ii) Economic Offences Division - for investigation of major financial scams and serious economic frauds, including crimes relating to fake Indian currency notes, bank frauds and cyber crimes.

(iii) Special Crimes Division - for investigation of serious, sensational and organised crime under the Indian Penal Code and other laws on the request of the state governments, or on the orders of the Supreme Court and High Courts.

The laws under which the CBI can investigate crime are notified by the central government under section 3 of the DSPE Act.

What is the difference between the nature of the cases investigated by the National Investigation Agency (NIA) and the CBI? 

The NIA was constituted after the Mumbai terror attack in November 2008, mainly for investigation of incidents of terrorist attacks, funding of terrorism and other terror-related crime, whereas the CBI investigates crimes ofcorruption, economic offences and serious and organised crime, other than terrorism.

Does CBI perform any other important function other than investigation of crime?

Yes. The CBI has been notified as the Interpol of India. CBI has a training academy in Ghaziabad, where it organises training courses on various subjects, not only for its own officers, but for officers from other countries, as well as from state & union territory police organisations, vigilance officers of public sector undertakings, banks, and so on."

The CIC further states in his order: "On a careful perusal of the material, it can be ascertained that the CBI was established for the purposes of investigation of specific crimes including corruption, economic offences and special crimes. It continues to discharge its functions as a multi-disciplinary investigating agency and evolve more effective systems for investigation of specific crimes. Members of the CBI have all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences.

The CBI does not claim it is involved in intelligence gathering or is a security organisation 

"There is no claim in its mandate and functions, as described above, that the CBI is involved in intelligence gathering or is a security organisation. Even the additional functions performed by the CBI, other than investigation of crimes, do not include any function which would lend it the character of an intelligence or security organisation. In view of the same, the CBI does not appear to fit the description of an "intelligence or security organisation" under Section 24(2) of the RTI Act.

In case the CBI wants to deny information, use Section 8 of the RTI Act 

"Even by virtue of the fact that certain organisations such as the CBI, during the course of investigation, may touch upon terrorist-related crimes or matters that may have an impact on the security of the nation, the same cannot be a reason for classifying such an organisation as intelligence or security organisation. If such a claim was to be accepted, it would mean that every organisation which is involved in some investigation or the other, including the police, would come within the realm of Section 24(2) of the RTI Act.

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RNandakumar 3 days ago
congrats and hearty thanks for saving the RTI ACT from the veste interest. This piece of elaborate information should also embolden CBI to invigourate it for fasterprobe into 2G scam which makes the present govt highly devious in its public postures.
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M K TYAGI 3 days ago
Hats off to IIT'ian Shailesh Gandhi for BOLD DECISION.
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Nagesh KiniFCA 4 days ago
Absolutely agree with the CIC.
The CBI, President, PM, Judiciary, Armed Forces should no longer be treated as Sacred Cows to be worshipped. They are also humans and found to have feet of clay and susceptible to dipping their fingers. After all we the people paying their salaries and they should be made accountable to the aam admi. No exceptions for anyone whatsoever!
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Kris Dev 4 days ago
All actions of all individuals and organizations including government organizations must be transparent to public. This can be ensured only if all information is made electronic. Information storage must be controlled by the individual similar to a bank locker. But if any citizen or organization(s) has doubt(s) on the genuineness of any action, the same can be challenged and the concerned must hold themselves accountable to make transparent the details

The only way to ensure this is to make all transaction tracking mandatory using Biometric Smart card with ample security.
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B V KRISHNAN 4 days ago
Even after several scams the Govt has still not guaged the mood of the public. This blatant protection of the corrupt by excluding CBi from the RTI is another blunder of the Manmohan Singh Govt and they will pay dearly for this during the next election.
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Nitin Kirtane 4 days ago
Yes the CBI has to come under the RTI act , very surprising move to keep it out of this act , as they are scared of the innumerable cases going on and if CBI comes under RTI government will be more scared as their ministers will be in trouble, an excellent article by Mrs Deshmukh again to take this issue up , keep up the good work in taking up these issues , i am enjoying reading your articles NK
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Babubhai Vaghela Ahmedabad 9427608632 4 days ago
When the Act is Promulgated by the Parliament, can Govt exclude CBI from the Act without Parliament approval. If not, then earlier exclusion of Income Tax Directorate of Investigation would also be illegal and unconstitutional. I would request you to kind get this legal point verified by legal luminaries.
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  Vinita Deshmukh 2 days ago  in reply to Babubhai Vaghela Ahmedabad 9427608632
Dear Mr Vagehla - i consulted Central Information Commissioner Mr Shailesh Gandhi and here is his explanation that yes Public Authorities can be excluded under the act: Section 24 of the RTI Act:
(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:
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 organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation 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.
Thus as per Section 24 (2) the Government can include or omit organisations from Scedule 2 by a notification and such a notification only needs to be laid in the Parliament subsequently 
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  Babubhai Vaghela 1 day ago  in reply to Vinita Deshmukh
Thanks Seen - (3) Every notification issued under sub-section (2) shall be laid before each House of Parliament. The crucial question is what for it will be laid and when shall it be laid to Parliament. For information or ratification. If for information then it amounts to Govt taking over the power to amend the Act without Parliament approval. Is Govt authorised to do? If for approval, then it that case, whether Notification comes into effect only after ratified by Parliament or earlier. In any case, in my openion, when Act is promulgated by Parliament, Govt cannot & should not have the authority to amend Act without Parliament approval.
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