Army has refused to make public under RTI information on soldiers whose bodies were mutilated in skirmishes with Pakistani Army or infiltrators along the Line of Control during the last five years even though such details have been given by Defence Minister in Rajya Sabha.
Three months after the application was filed, Army cited Section 8(1)(a) of the RTI Act to refuse the information without giving any reason for denial, which is mandatory whenever information is denied to an RTI applicant.
Section 8(1)(a) allows to withhold "information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence".
Ironically, the class of information, the disclosure of which is considered by Army to be detrimental to national interests and security, had been made public by Defence Minister A K Antony on February 27 in Rajya Sabha.
Giving complete details of an incident in which two Indian soldiers were killed and their bodies mutilated, Antony had said, "On January 8, 2013, a Pak Border Action Team (BAT) ambushed our patrol party in Krishna Ghati, Mendhar Sector in which Lance Naik Sudhakar Singh and Lance Naik Hemraj were killed. Lance Naik Hemraj was found beheaded and both bodies were mutilated. In addition, their weapons were taken."
In the above statement, the minister had placed on record complete class of information including date of incident, names of soldiers, place of incident and nature of injury.
When asked whether class of information which has been placed on the floor of Parliament can be denied to an RTI applicant, Chief Information Commissioner Satyananda Mishra said "absolutely not."
He said once information has been placed before Parliament, it cannot be denied to an RTI applicant.
His views were supported by former Chief Information Commissioners Wajahat Habibullah and A N Tiwari, who said information which has been placed before Parliament is already in public domain and cannot be denied to an applicant.
Tiwari said even if it has been denied by a public authority, justifiable reasons should be given while withholding the information, and then CIC can take a view.
"The fact that this information has been placed before Parliament will certainly go in favour of the applicant when the matter is heard by the CIC, as the class of information would be considered 'disclosable'," he said.
The Right to Information Act gives an applicant two separate provisions -- complaint under section 18 which is filed for no receipt of information within mandatory 30 days and first appeal under section 19 where applicant gives reasons why an information should be disclosed -- for raising his grievance before higher authorities in a public body.
Maj Gen Anil Mehta, the first appellate authority, wrongly treated complaint filed by the applicant for non-receipt of information as First Appeal, thus giving him no chance to present his reasons why information should be disclosed.
Subsequent communications to his office citing this glaring error on part of a senior officer did not change the stand of the Army, which insisted that a "speaking order" has been given.
Former Information Commissioner Shailesh Gandhi said a first appeal can only be filed once an applicant receives some information from a public authority. A complaint for non-receipt of information cannot be treated as first appeal, he said.