Madras High Court
S.A.S.Alaudeen vs The Chairperson on 26 July, 2023
1 W.P.(MD)NO.22789 OF 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.22789 of 2017
S.A.S.Alaudeen ... Petitioner
Vs.
1. The Chairperson,
Tamil Nadu Information Commission,
Kamadhenu Co-operative Supermarket Building,
1st Floor, Teynampet (Near Vanavil),
New No.378, Anna Salai,
Chennai – 600 018.
2. The Appellate Authority-cum-
Inspector General of Police,
O/o.The Inspector General of Police(IGP),
Crime Branch Crime Investigation Department(CBCID),
Chennai – 600 008.
3. The Public Information Officer-cum-
Superintendent of Police SIU i/c SID, CBCID,
O/o.The Additional Director General of Police(ADGP),
Crime Branch Crime Investigation Department(CBCID),
No.220, Pantheon Road,
Egmore, Chennai – 600 008. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified
Mandamus, to call for the records, order passed by the first
respondent vide proceedings in case No.SA-7851/SCIC/2017
dated 10.05.2023 and quash the same as illegal and
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2 W.P.(MD)NO.22789 OF 2017
consequently direct the first respondent to furnish the
information sought on the application dated 20.07.2017.
(Prayer is amended vide order dated 26.07.2023 in W.M.P.(MD)
No.13389 of 2023)
For Petitioner : Mr.Henri Tiphagne,
for Mr.C.M.Arumugam.
For R-1 : Mr.K.K.Senthil
For R-2 & R-3 : Shri.R.Baskaran,
Additional Advocate General,
assisted by,
Mrs.K.Christy Theboral,
Additional Government Pleader.
***
ORDER
Heard the learned counsel appearing for the petitioner
and the learned Additional Advocate General assisted by the
learned Additional Government Pleader appearing for
respondents 2 and 3 and the learned counsel appearing for
the first respondent.
2. The petitioner is a practising lawyer. He participated
in an event organised by the Popular Front of India on
17.02.2014 at Ramanathapuram. PFI was not a banned
organisation then. The allegation of the petitioner is that
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3 W.P.(MD)NO.22789 OF 2017
gross human right violations were perpetrated by the police
while dealing with those who had gathered. According to him,
a number of persons suffered grievous injuries. In this regard,
one M.Mohamed Abbas filed W.P.(MD)No.2705 of 2014
seeking judicial enquiry and for awarding compensation to the
victims. The writ petition was disposed of on 26.02.2014 in the
following terms:-
“12. Accordingly, the Director General of
Police and Home Secretary to Government of Tamil
Nadu are directed to nominate an Inspector
General of Police, for taking up enquiry to submit a
report and for appropriate follow-up action. The
enquiry shall be taken up forthwith.
13. The investigation in this case shall
continue and the officer concerned is entitled to
pursue the proceedings in accordance with law
against any of the offenders, for which criminal law
has been set in motion. It shall continue and shall
not be disturbed by the enquiry. The proceedings
consequent to investigation and remand will be
dealt with by the competent Court in accordance
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4 W.P.(MD)NO.22789 OF 2017
with criminal law. We do not restrain the
Investigating Officer or any other superior officer
from proceeding with that enquiry and the criminal
proceedings initiated.”
3. Pursuant to the direction given by the Hon'ble Division
Bench, an enquiry was conducted by the then Inspector
General of Police, SID, CB CID. Enquiry report was submitted
to the Director General of Police. The petitioner wants copy of
the same. He applied to the third respondent under the
provisions of The Right to Information Act 2005. His request
was denied. Aggrieved by the same, the petitioner moved the
appellate authority / second respondent herein. The appellate
authority also endorsed the stand taken by the original
authority. Aggrieved by the same, the petitioner filed second
appeal before the Information Commission. The petitioner's
appeal was not disposed of. That led to the filing of this writ
petition.
4. During the pendency of this writ petition, the
Information Commission disposed of the petitioner's second
appeal on 10.05.2023. Paragraph Nos.8, 9 and 10 of the said
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5 W.P.(MD)NO.22789 OF 2017
order read as follows:-
“ 8. tprhuizapd; NghJ> nghJj; jfty;
mYtyh; kw;Wk; Nky;KiwaPl;L mYtyh; MfpNahh;
mspj;j gjpy;fspy; murhiz epiy vz;.1043> nghJ
(eph;thfk;) Jiw> ehs; 14.10.2005-d;gb Fw;wg;gphpT>
Fw;wg; Gydha;Tj; Jiw (IG-CBCID)> jfty; ngWk;
chpikr; rl;lj;jpd; fPo; jfty; toq;FtjpypUe;J
tpyf;fspf;fg;gl;l epWtdk; vd;W Vw;fdNt
gjpyspj;Js;sjhf nghJj; jfty; mYtyh;
njhptpj;jhh;.
9. tprhuizapd; NghJ kDjhuh;> fhty; Jiwapd;
kdpj chpik kPwy;fshy; Neubahf jhd;
ghjpf;fg;gl;Ls;sjhfTk;> jfty; ngWk; chpikr; rl;lk;
gphpT 24-y; tuk;Giuahf Coy; kw;Wk; kdpj chpik
kPwy;fs; njhlh;ghd jfty;fis toq;fhky; kWf;fg;
$lhJ vd;W cs;sijAk; Fwpg;gpl;L> vdNt jhd;
Nfhhpa jfty;fis jdf;F toq;FkhW Nfhhpdhh;.
10. ,Ujug;G thjq;fisAk; gjpT nra;j
Mizak; fPo;fz;lthW KbT nra;fpwJ.
murhiz epiy vz;.1043> nghJ (eph;thfk;)
Jiw> ehs; 14.10.2005-y; tpyf;fspf;fg;;gl;l epWtdk;
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6 W.P.(MD)NO.22789 OF 2017
vd;W njspthff; Fwpg;gplg;gl;Ls;sjhy; nghJj; jfty;
mYtyhpd; thjk; rhpNa vd;W Mizak; Vw;Wf;
nfhs;fpwJ.
kDjhuh; NfhUk; jfty; kdpj chpik kPwy;fs;
njhlh;ghd jfty; vdpy;> mth; kdpj chpik
Mizaj;ij mZFkhW mwpTWj;jg;gLfpwhh;. kDjhuh;
kdpj chpik Mizaj;jpy; chpa cj;juT ngw;W>
kPz;Lk; jfty; Mizaj;jpy; kD nra;jhy;> mk;kD
kPJ chpa cj;juT
gpwg;gpf;fg;gLk;. ,j;Jld; ,t;tof;F Kw;whf;fp
Mizaplg;gLfpwJ.”
Thereupon, the petitioner with the leave of this Court
amended the writ prayer.
5. The learned counsel appearing for the petitioner
submitted that the impugned order passed by the Commission
as well as the stand taken by the department are
unsustainable. He drew my attention to the first and second
Proviso to sub section (4) of Section 24 of The Right to
Information Act. He relied on a catena of case laws and called
upon this Court to set aside the impugned order and allow the
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7 W.P.(MD)NO.22789 OF 2017
writ petition as prayed for.
6. The third respondent filed counter-affidavit and the
learned Additional Advocate General took me through its
contents. He drew my attention to G.O.Ms.No.1043 Public
(ESTT.I & LEG) Department dated 14.10.2005 which was
issued in exercise of powers conferred by sub-section (4) of
Section 24 of the Act exempting as many as 18 organisations
from the purview of the Act. Crime Branch CID is figuring at
serial No.1 in the said notification. The learned Additional
Advocate General submitted that the impugned orders are
very much sustainable in view of the said G.O. He also
contended that the enquiry report filed by the Inspector
General of Police contains sensitive information and that
disclosure of the same would seriously harm public interest.
He pressed for dismissal of the writ petition.
7. I carefully considered the rival contentions and went
through the materials on record.
8. The first question that calls for consideration is
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8 W.P.(MD)NO.22789 OF 2017
whether the department could have taken shelter behind the
notification issued under Section 24(4) of the Act. Section 24
of the Act is as follows:-
“ Act not to apply to certain organisations.-
(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.
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9 W.P.(MD)NO.22789 OF 2017
(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.
(4) Nothing contained in this Act shall apply to
such intelligence and security organisation being
organisations 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
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10 W.P.(MD)NO.22789 OF 2017
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 the receipt of request.
(5) Every notification issued under sub-section
(4) shall be laid before the State Legislature.”
This provision had been considered both by the Hon'ble
Supreme Court as well as the Madras High Court. In (2019) 6
SCC 1 (Yashwant Sinha and Others V. Central Bureau of
Investigation), it was held as follows:-
“ 37. ... The first proviso to Section 24 indeed
marks a paradigm shift, in the perspective of the
body polity through its elected representatives that
corruption and human rights violations are
completely incompatible and hence anathema to
the very basic principles of democracy, the Rule of
law and constitutional morality. The proviso
declares that even though information available
with intelligence and security organisations are
generally outside the purview of the open
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11 W.P.(MD)NO.22789 OF 2017
disclosure regime contemplated under the Act, if
the information pertains to allegations of
corruption or human rights violations such
information is very much available to be sought for
under the Act. ... “
In S.Vijayalakshmi V. Union of India ((2011) 5 CTC 376)
(DB), inclusion of CBI within the ambit of the second schedule
to the Act was questioned. The Hon'ble Division Bench held as
follows:-
“ 37. The apprehension that the CBI by virtue
of its inclusion in the Second Schedule has got a
blanket exemption, cannot be countenanced for the
simple reason that what has been contemplated
under Section 24 is no such blanket exemption.
The Act was intended among other things to
contain corruption and to hold Governments and
their Instrumentalities accountable to the
Government. This purpose and intent of the Act is
sufficiently provided for in the two provisos to
Section 24(1) of the Act. The information
pertaining to allegation of corruption and human
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12 W.P.(MD)NO.22789 OF 2017
rights violation are not excluded under Sub-section
(1) of Section 24. Therefore, the exemption by
virtue of inclusion of CBI in the Second Schedule
to a RTI Act is not a wholesale or a blanket
exemption as contended by the Petitioner. After
taking note of the facts placed before this Court
and the law discussed above, it cannot be stated
that every Police Thana is an intelligence Agency
and should be treated on par with the CBI for the
benefit of the exemption under Section 24 of the
Act.
38. The Government of Tamil Nadu by a
Government Order in G.O. Ms. No. 158, Personnel
and Administrative Reforms Department dated
26.8.2008, in exercise of its powers under Section
24(4) of the RTI Act ordered that the Act shall not
apply to two organisations viz. Tamil Nadu State
Vigilance Commission and Directorate of Vigilance
and Anti Corruption. The said Government Order
was challenged before this Court in a public
interest writ petition in W.P. No. 4907 of 2009 and
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13 W.P.(MD)NO.22789 OF 2017
was heard by the Hon'ble First Bench of this Court
presided over by the then Hon'ble Chief, Hon'ble
Mr. Justice H.L. Gokhale. In the said Writ Petition it
was contended that to qualify for exemption under
Section 24(4), such organisation must be both
intelligence as well as Security Organisations. The
Hon'ble First Bench after analysing the language
employed in Subsection (4) of Section 24 by
judgment dated 30.3.2009, held thus:
“5. As can be seen from the language used in
the main part of Sub-Section 4, it states that
nothing contained in this Act shall apply to such
intelligence and security organisation. Thus, in the
first part, two entities are mentioned in singular as
organisation. Subsequently, they are referred as
'organisations' established by the State
Government. If intelligence and security
organiation was only one, there was no need to use
the plural term 'organisations' subsequently. It
clearly indicates that such an organisation can be
for intelligence purpose or for security purpose.
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14 W.P.(MD)NO.22789 OF 2017
The word "and' between the two words intelligence
and security organisation will have to be read as
"or". Therefore, the second submission of Mr.
Radhakrishnan cannot be accepted.” ”
A recent decision reported in (2023) 3 MLJ 420 (V.Vidya V.
State Chief Commissioner) is on the same lines. It was held
that the exemption granted under Section 24 of the Act is
circumscribed by excluding information relating to corruption
and human right violations, placing such situations on a
higher pedestal.
9. In the case on hand, the public information officer /
Superintendent of Police, SID, CB CID, Chennai summarily
rejected the petitioner's RTI petition by citing the exemption
granted to CB CID by virtue of G.O.Ms.No.1043 Public (ESTT.I
& LEG.) Department dated 14.10.2005. The appellate
authority also took the same stand. Both the orders are liable
to be set aside because the first proviso to Section 24 of the
Act was not even taken note of. The Commission has fared
only slightly better. Instead of undertaking the exercise if the
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15 W.P.(MD)NO.22789 OF 2017
information sought by the petitioner would fall within the
scope of the first proviso to Section 24 of the Act, the State
Information Commission chose to abdicate its responsibility. It
relegated the petitioner to move the Human Rights
Commission. It took the stand that appropriate order will be
passed on the petitioner's application after he obtains an
appropriate order from the Human Rights Commission. When
the Parliament has passed a special law with regard to the
right to information, it is the statutory body created under the
special law that must discharge the statutory function. It
cannot be delegated to or passed on to some other agency. On
this ground, the order passed by the first respondent has to be
set aside.
10. The next question that arises is whether the
petitioner has brought his case within the scope of the first
proviso. The proviso employs the expression “pertaining to the
allegations of corruption and human rights violations”. The
word “and” has been interpreted as “or”. In P.Ramanatha
Aiyar's “Advanced Law Lexicon”, the expression “pertaining
to” has been defined as follows:-
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16 W.P.(MD)NO.22789 OF 2017
“The expression 'Pertaining to' presupposes
another subject-matter and it means to bring into
association or connection with.”
In AIR 2011 P&H 168 (First Appellate Authority-cum-
Additional Director General of Police V. Chief
Information Commissioner, Haryana), it was held as
follows:-
“7. The expression "pertaining to allegation
of corruption'' is not defined in the Act. Even, the
Prevention of Corruption Act, 1988 does not define
what are the allegations pertaining to corruption?
In the absence of any statutory definition in the
Act, the ordinary meaning to the expression used
in the Act has to be applied. The expression
"pertaining to allegation of corruption" cannot be
defined. It includes within its meaning many
colours and shades of corruption. ... ”
Gulab Singh Rana V. CPIO (2021) SCC OnLine Mad
16171 is another decision in which several decisions on the
subject have been dealt with.
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17 W.P.(MD)NO.22789 OF 2017
11. The information sought for by the petitioner
obviously, pertains to the allegations of human rights
violations. According to him, the police used excessive force
and caused injuries while dealing with the members of a group
who had assembled on 17.02.2014 at Ramanathapuram. The
High Court had ordered an enquiry to be conducted by an
officer in the rank of IG of Police. The enquiry report had been
submitted. Copy of the said report is sought by the petitioner.
The information which the petitioner seeks clearly comes
within the scope of the first proviso.
12. When an application seeking information is made to
the public information officer of an organisation exempted
under Section 24(4) of the Act, it shall not be rejected
straightaway. The officer must see if the subject matter relates
to allegations of corruption or human rights violations. If the
case relates to allegations of corruption, an order on merits
has to be passed by the PIO. If the case pertains to allegations
of human rights violations, then the application has to be
straightaway forwarded to the State Information Commission
with a note along with a copy of the information. After getting
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18 W.P.(MD)NO.22789 OF 2017
approval from the Commission, the information shall be
provided to the applicant. The entire exercise must be
completed within 45 days from the date of receipt of the
request.
13. In the case on hand, such an approach was not
adopted. The first appellate authority could not have been
involved at all. The original authority must have got in touch
with the Commission and thereafter, furnished the petitioner
with a copy of the report. As already noticed, the Commission
also misdirected itself in law. The impugned orders are set
aside.
14. The police were dealing with the members and
sympathizers of Popular Front of India. It is now a banned
organisation. It is quite possible that the report of the IG
contains sensitive information that do not deal with the human
rights violations. Such portions of the report can be redacted
while furnishing the petitioner with a copy. Section 10 of the
Act provides for such severability.
15. The third respondent is directed to furnish the
petitioner with a copy of the report on or before 02.08.2023.
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19 W.P.(MD)NO.22789 OF 2017
This writ petition is allowed. No costs.
26.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PMU
Note : Issue order copy on 28.07.2023.
To:
1. The Chairperson,
Tamil Nadu Information Commission,
Kamadhenu Co-operative Supermarket Building,
1st Floor, Teynampet (Near Vanavil),
New No.378, Anna Salai,
Chennai – 600 018.
2. The Appellate Authority-cum-
Inspector General of Police,
O/o.The Inspector General of Police(IGP),
Crime Branch Crime Investigation Department(CBCID),
Chennai – 600 008.
3. The Public Information Officer-cum-
Superintendent of Police SIU i/c SID, CBCID,
O/o.The Additional Director General of Police(ADGP),
Crime Branch Crime Investigation Department(CBCID),
No.220, Pantheon Road,
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Egmore, Chennai – 600 008.
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21 W.P.(MD)NO.22789 OF 2017
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.22789 of 2017
26.07.2023
https://www.mhc.tn.gov.in/judis
