Image courtesy: https://www.greaterkashmir.com/

Oct 16, 2019

By Venkatesh Nayak

Last week I sent a despatch about the Union Home Ministry's admission under The Right to Information Act, 2005 (RTI Act) that they do not have any information about orders issued to shutdown telecommunication channels, TV and radio reception and advisories for the return of tourists and pilgrims undertaking Amarnath Yatra from Jammu and Kashmir (J&K). They also admitted to lack of information about arrests/detentions of politicians, social activists and RTI activists. 

Now, under the RTI Act, the prison authorities in Uttar Pradesh have refused to provide any details of individuals shifted from J&K to Agra Central Prison around the time when fundamental changes were made to the status of J&K under India's Constitution. The Public Information Officer (PIO) has stated that I have asked "third party" information which cannot be provided as per a 2008 circular issued by the Administrative Reforms Department (AR Dept.) of Uttar Pradesh. Ironically, this circular cannot be found on that Dept.'s website or in the compilation of RTI-related Govt. of UP circulars uploaded on the website of the Uttar Pradesh Information Commission (UPIC).

The RTI Intervention

Soon after Parliament approved a slew of amendments to the Constitution and the law to divide the State of J&K into two Union Territories (UTs), several segments of the media reported instances of many residents of J&K being moved to prisons in Uttar Pradesh (UP) under detention orders. After reading one such report of more than a hundred persons from J&K being detained in four jails of UP, on 26th August, 2018, I filed an RTI application with one such jail, namely, the Agra Central Prison, seeking the following information:

"Please provide the following information relating to the persons from Jammu and Kashmir who have been detained in Agra Central Prison as on the date of this RTI application:

a)   the complete list of such detenues along with their names, age, gender and residential address;

b)   a clear photocopy of the pages of the relevant register containing the personal details of every such detenue at the time of his or her admission to Agra Central Prison;

c)   a clear photocopy of the report of the medical examination of every detenue conducted at the time of his or her admission to Agra Central Prison as per paragraphs 20-21 of the Uttar Pradesh Jail Manual;

d)   the prison inmate class which has been accorded to every detenue such as “superior” or “general” class or “casual” or “habitual” or “under-trial” as per the UP Jail Manual;

e)   a clear photocopy of the detention order and grounds for detention pertaining to every detenue as available on record;

f)    a clear photocopy of the rules and regulations as per the UP Jail Manual governing the treatment of every such detenue;

g)   a clear photocopy of the list of items supplied to the detenues upon admission such as clothing, bedding, soap, utensils, newspapers and magazines etc., if any

h)   a clear photocopy of any document that contains the details of action taken by the administration of Agra Central Prison to enable the detenues to make representations to the Advisory Board against their detention orders under Section 15 of the Jammu and Kashmir Public Safety Act, 1978;

i)    a clear photocopy of the solitary confinement ticket issued to the detenues, if any;

j)    the exact nature of physical lodgement of the detenues in the Agra Central Prison, namely, whether lodged in cells or barracks;

k)   the exact nature of the segregation of the detenues, namely, whether housed with convicts or undertrials;

l)    the total number of requests that have been received from any legal adviser for interviews with the detenues, till date; and

m) the total number of requests referred to at para #(l) above that have been permitted by the Superintendent of Agra Central Prison as per para 457-D of the UP Jail Manual, till date."

As this information concerns the life and liberty of the individuals being held in Agra Central Prison, I sought the information within 48 hours as per the proviso under Section 7(1) of the RTI Act.

The PIO's reply

The RTI application sent by Speed Post was delivered within 3 days (on the 29th of August). The Public Information Officer (PIO) showed no urgency while dealing with the matter. Instead he sought information from the Convicts' Entry and Release Office of the Agra Central Prison five days later that is, on 03 September 2019. That office replied three days later stating as follows:

"Information sought at points a, b, c, d, e, f, g, h,, i, j, k, l, is related to third party which cannot be disclosed as per para #37 of the Guidance Manual issued for PIOs vide Government Order of No. Sam.Bha.Sam. 16/43-22008-15/2(7)/07 issued by the Administrative Reforms Department-02, dated 14.02.2008.

The information sought cannot be provided under Section 8(1)(g) of the Right to Information Act, 2005" (unofficial translation from the original)

In his reply dated 18th September, 2019 (13 days after receiving these inputs), the PIO of Agra Central Prison stated that the information sought cannot be provided as per Section 8(1)(g) the RTI Act and attached a copy of the communication sent by the Convicts' Entry and Release Office of the Agra Central Prison. The PIO took 20 days to reply to an RTI application which he ought to have disposed within 2 days (48 hours). Click here for the RTI application and replies.

What is wrong with the RTI reply?

Through the RTI application I had hoped to find out two categories of information:

1) the names and addresses of people from J&K who were being held in Agra Central Prison; and

2) whether the detenues were receiving treatment as per the provisions of the UP Jail Manual and were able to make representations against their detention to the concerned authorities.

The PIO's reply is gravely erroneous for the following reasons:

1) The Convicts' Entry and Release Office of the Agra Central Prison, obviously being untrained in the provisions and procedures of the RTI Act could not understand the difference between Section 8(1)(g) and the "third party" provisions of the RTI Act. Section 8(1)(g) of the RTI Act is reproduced below:

" 8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—

X X X X

 (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;"    

Nothing under Section 8(1)(g) of the RTI Act exempts the supply of "third party" information merely on that ground. Disclosure of information is exempt only if certain harm will be caused on two accounts, namely:

a) endangerment of the life or safety of an individual; or 

b) if the identity of an informer to the police or any other law enforcement agency will be revealed. 

To argue that the lives of detenues, who are housed in a Central Prison with high level security measures already in place, would be endangered by disclosing their names and addresses is absurd. It also speaks volumes about the lack of faith the prison officials have about the very security measures they have put in place to guard the inmates.

Obviously, the second limb of this exemption- that the identity of informers will be revealed does not apply to the present RTI application as I have only sought information about people who are already being held in prison. Neither the PIO nor the officials of the Convicts' Entry and Release Office of the Agra Central Prison have properly appreciated the true meaning and purpose of this exemption.

Further, none of the 10 exemptions listed under Section 8(1) of the RTI Act permit refusal of access to information on the mere ground that it relates to a "third party". Information Commissions and High Courts have explained in scores of decisions, that it is for the PIO to demonstrate what harm will be caused by disclosing the requested information. Mechanically mentioning one exemption in a reply is not enough for the requirements of the RTI Act. According to Section 19(5) of the RTI Act, the PIO has the duty to justify why information cannot be provided. 

2) Under Section 11 of the RTI Act, "third party" procedure is provided only to seek objections from any person about whom "confidential" information is sought. Information about people being detained by the police cannot be treated as confidential for a very important reason. Section 41C of the Criminal Procedure Code, 1973 (CrPC) requires every District Police Control Room (PCR) to display the names of persons arrested by the police across the district on a notice board along with the reasons for arrest and the name of the police officer effecting the arrest. Every State Police Headquarters is required to compile this information into a database for the reference of the general public. Interestingly, these key provisions requiring transparency about arrests and detentions made by the police across India, do not figure in J&K's CrPC. As this provision will apply to J&K only 31st October, 2019 onwards, when the J&K Reorganisation Act, 2019 will be enforced (which replaces the J&K CrPC and the Ranbir Penal Code with the Central CrPC and the Indian Penal Code, 1860 respectively) J&K Government does not have a statutory obligation to publicise these details. However, as several detenues are now in the custody of the UP Government, the concerned authorities there have a duty to make this information public, because Section 41C, CrPC must be implemented in UP. The PIO of Agra Central Prison has completely ignored this statutorily ordained transparency requirement while rejecting my RTI application.

3) Further, it is reasonable to believe that all individuals from J&K being held in Agra Central Prison (among several others in UP) have been detained under the Jammu and Kashmir Public Safety Act, 1978 (J&K PSA). If they had been arrested on suspicion of committing criminal offences, they would not be removed from J&K as they would be required to stand trial in the court of local jurisdiction. J&K PSA is a law that that permits detention of a person merely on a police report/dossier and under written orders from a District Magistrate or Divisional Commissioner in J&K even if the individual has not yet committed any criminal offence. A detenue may be held in jail for up to two years on a mere suspicion that he or she may act against the security of the State or indulge in activities that may disturb public order without recourse to a lawyer and other due process safeguards. 

An Advisory Board reviews these detentions. But RTI interventions undertaken by J&K RTI Movement (led by Dr. Shakh Ghulam Rasool) has revealed that more than 81% of these detentions upheld by the Advisory Board were quashed by the J&K High Court between 2016 and 2018. Another RTI intervention by the same group revealed that no Rules or Standard Operating Procedures has been issued under the J&K PSA even after more than four decades of its existence. In July 2018, when J&K was already under Governor's Rule, the then Governor Mr. N. N. Vohra promulgated an Ordinance omitting a proviso under Section 10 of the J&K PSA which prohibited the lodgement of detenues in jails outside J&K . Click here for the text of the amendment. 

No popularly elected Government was in place in J&K at that point in time. This amendment appears to have been made on the basis of the recommendation of babus comprising the State Administrative Council. Ironically, one member of this Council had served earlier as the State Chief Information Commissioner in J&K. J&K PSA is one of the laws which has not ben repealed through the J&K Reorganisation Act. The Central Government seems to believe this draconian law will have its uses even though it was enacted by the J&K State Legislature under the protection of Article 370 in its original avatar.

There is an enormous amount of public interest in ascertaining the conditions in which the detenues are living because only some of their freedoms have been curtailed by the detention- such as freedom of movement, freedom of assembly, freedom to pursue any trade or profession etc. All other freedoms and liberties are intact including the right to move a representation against the detention before the Advisory Board set up under the J&K PSA. It is also important to know whether they are lodged along with under-trials who are accused of criminal offences or with convicts whose guilt has been declared by competent courts or of if they have been lodged in separate quarters and if they are being allowed to meet with their families and legal advisors without undue restrictions. 

Most important, it is in the public interest to know what rules and regulations govern the living conditions of detenues from J&K in Agra Central prison. This information must be proactively disclosed under Section 4(1)(b) of the RTI Act. The PIO however has treated this also as "third party information" without due application of mind.

The commitment to transparency and accountability declared by the Union Home Minister does not resonate in UP

 In his address to the 14th Annual Convention of the Central Information Commission, on 12th October, 2019, the Union Home Minister declared:

"RTI has channelized and transformed civil society into a force that ensures accountability from the government....India is the first nation to have successfully created an accountability system till the last leg of governance. ... RTI removes arbitrariness from governance and acts as a major grievance redressal tool....Under the leadership of Prime Minister Shri Narendra Modi, the government is committed to creating a system where there is enough suo moto declaration of information that the need to file RTI applications itself is reduced.... the success of a transparent government lies not in an increase in the number of RTI applications but in the fact that RTI applications reduce in spite of the RTI process being completely accessible to people." (emphasis supplied)

As neither his Ministry nor the concerned authorities in UP, where his party is in power, have proactively disclosed any information about the detenues from J&K, I had no alternative to seeking such information through a formal RTI application. It looks like these transparency commitments simply do not percolate down to the "last mile" in UP where transparency and accountability is required the most.

 I will be doing the usual appeals in this case and keep you posted.

All facts are in the public domain. Views are personal.

Media coverage: Deccanherald.com|outlookindia.com |tribuneindia.com | thehindu.com | theprint.in | sabrangindia.in |liistudio.com