It has to be said in all fairness that in the fitness of things, a Single Judge Bench of Justice Raja Vijayaraghavan V of Kerala High Court has on March 17, 2021 in a persuasive, pertinent, penetrating and powerful judgment titled The State Public Information Officer and Deputy Superintendent of Police vs The State Information Commission in WP (C) No. 5724 of 2020 directed the Kerala Police to publish in its official website the details of police officers who have been found guilty of corruption or human rights violations. It was clearly, correctly and cogently held that police cannot shield the names of officers who have been found guilty or dismissed from service on charges of corruption or human rights violations. This is really an exemplary step in the right direction and all States must emulate this so that the highest standards are set in the public domain with police themselves also being no exception. There cannot be any valid reason for not doing so!
Moreover, at a time when we are seeing how in Maharashtra top police officers are themselves coming under the scanner and so also some senior politicians for collecting a huge Rs 100 crore as extortion money in just one month from different sources as was revealed by none other than former Mumbai Police Commissioner Parambir Singh and who has also gone to Mumbai High Court seeking an impartial inquiry into it, this becomes all the more imperative. This most serious issue directly affecting the country’s national image cannot be just brushed aside any longer. This all the more necessitates the functioning of police to be transparent and not opaque where left hand does not know what the right hand is doing!
Needless to say, it must be mentioned here that this bold, brief, blunt, balanced and brilliant pronouncement was made when disposing of a petition filed by the State Public Information Officer of the Crime Records Bureau (Deputy Superintendent of Police, Thiruvananthapuram). The Information Officer moved the High Court challenging an order of the State Information Commission (SIC) which required police to publish details of corrupt officers found guilty in a court of law or dismissed from service on charges of corruption and human rights violations. In addition, the SIC had also directed clearly the information authorities to upload on the police website the names of the officers against whom charges of corruption or human rights violations were established after an investigation.
To start with, it is first and foremost pointed out by Justice Raja Vijayaraghavan V of Kerala High Court in para 1 of this highly commendable judgment that, “The 2nd respondent is a journalist and a public spirited citizen. In the year 2010, the State Information Commission had occasion to pass an order in an application filed by the 2nd respondent wherein, he had sought for the following information:
i) The details of the corrupt Police officers in the State of Kerala, their name, the post which they held, and also the reasons for holding them as corrupt.
ii) The censures/criticisms made against the State Police by other agencies/Central agencies/Central Government during the past two years.”
While elaborating further, it is then pointed out in para 2 that, “The State Information Commission as per order dated 21.1.2012, vide No. AP599(5)/SIC/ 2010, reminded the State Police of its obligation as a public authority under Section 4 of the Right to Information Act, 2005 to maintain its records duly catalogued and indexed in such a manner as to facilitate the right of information under the Act and also to ensure that all records that are appropriate to be computerised shall within a period of 30 days from 21.1.2012 be computerised and connected through a network so that access to such records is facilitated. Directions were also issued to the State Police Chief to initiate appropriate proceedings to ensure that the directions issued by the State Information Commission are complied with.”
To put things in perspective, it is then pointed out in para that, “On 20/9/2018, an application was lodged by the 2nd respondent before the State Information Officer, Police Headquarters seeking the following information:
I) The steps taken by the State Police to comply with the Order vide No. AP599(5)/SIC/ 2010 of the State Information Commission.
II) Furnish details of
a) The officers in the State Police Department who are considered to be corrupt, the specific allegation against them and the post that they were holding.
b) Criminal cases under investigation which were withdrawn after 25.5.2016 and the details of the individuals at whose instance, those cases were withdrawn.
c) Police officers in the State Police Departments who are accused in criminal cases, their name, rank, post which they are holding and the gist of accusations against them.
d) Police officers in the State Police Department who are accused of committing atrocities against women, their name, rank, the post which they were holding and the gist of allegations against them.
e) Political activists who have been categorised as absconders, their name, address and other details.
III) Permission was also sought to inspect the information catalogued by the Police as directed by the State Information Commission vide No. AP599(5)/SIC/2010.”
As it turned out, it is then mentioned in para 4 that, “On receipt of Ext.P1, the 2nd respondent was informed that the information sought for by him was retained in the Crime Records Bureau and he was informed that his request would be forwarded to the said office under Section 6(3) of the Act. Later, by Ext.P3 communication, he was informed by the State Public Information Officer that the name and other details of the police officers facing corruption charges or human rights violations cannot be disclosed as the said information is exempted from disclosure under section 8(1)(j) and 8(1)(h) of the Act. However, without naming the officers or their rank, a district wise list was forwarded which revealed that about 59 police officers are facing corruption allegations. He was also requested to check the website of the Kerala Police to get information of the crimes registered by the Kerala Police. Insofar as the withdrawal of criminal cases on or after 25.5.2016 is concerned, the 2nd respondent was informed that the cases are withdrawn by the State and that no records are maintained by the Police Department. Insofar as the details of cases relating to political activists, who are categorised as absconders, the 2nd respondent was asked to approach the State Crime Records Bureau to get such information. Later, he received Exhibit P4 communication from the State Public Information Officer, Crime Records Bureau, that the said organisation is exempted from the purview of the Act by notification dated 7.2.2006 and that the information sought for cannot be disclosed. He was requested to approach the office of the District Police Chief and seek such information.”
As we see, it is then brought out in para 5 that, “The 2nd respondent challenged the order by preferring an appeal under Section 19 of the Act before the First Appellate Authority. However, by Ext.P9 order, his request was rejected.”
To state the obvious, it is then stated in para 6 that, “In the said circumstances, he approached the State Information Commission and filed an appeal under Section 19(3) of the Act.”
Significantly, it is then envisaged in para 7 that, “By Ext.P11 order dated 24.4.2019, the State Information Commissioner came to the conclusion that the information sought by the party respondent under clause (a) to (e) of the application cannot be denied relying on Section 24(4) of the RTI Act. However, it was held that the information sought against clause (d) was vague and it relates only to allegations. As an interim measure, a direction was issued to the State Public Information Officer, State Crime Records Bureau to compile the information sought for by the 2nd respondent which are available in the records of the Kerala Police Department in the State of Kerala and also to produce it before the Commission in a sealed cover within a time frame. In compliance with the said directions, the information was gathered from various sources and the same was compiled as directed by the State Information Commission and was produced in a sealed cover. The Commission, after perusal of the records, held that though the State Crime Records Bureau is an Organization exempted from the purview of the RTI Act by orders issued by the Government in exercise of powers vested under Section 24(4) of the Act, 2005, it would not provide a blanket cover for the Organization to shield information of matters relating to corruption and violation of human rights. After considering the proviso to Section 24(4) of the Act, it was held that the information pertaining to the allegations of corruption and human right violations cannot be excluded under the said provision. The State Information Commission proceeded to categorize the cases into four types. The cases in which police officers were convicted on corruption charges or were removed from service after a due process of inquiry formed the first category. The second category comprised of those police officers who were convicted by a court of law or were removed from service after due inquiry for committing acts of violation of human rights such as use of abusive language, misbehaviour towards complainants, wrongful confinement, sexual abuse, rape etc. The third category of cases were those wherein, the investigating officer had laid the final report before Court based on materials collected by him during investigation and wherein, the allegations were of commission of corruption or human rights violation. The fourth category of cases were those wherein, the investigation is still pending against the accused. Insofar as the first three categories are concerned, the State Information Commission was of the view that the information sought for by the applicant should be disclosed. Insofar as the fourth category is concerned, it was held that the details of the officer concerned shall not be disclosed under the RTI Act. Directions were issued to segregate the cases accordingly and to publish the information in the website of the Kerala Police as provided under Section 4 of the RTI Act in order to enable every citizen to have access to the said information from the website. The above order is under challenge in this Writ Petition.”
Be it noted, it is then stated in para 27 that, “Let us now consider the contention of the petitioners that the information sought for by the 2nd respondent is exempted from disclosure under Section 24 of the Act. Of course by Exhibit P5 notification, the State Government in exercise of powers under sub section (4) of Act 22 of 2005 has specified the State Crime Records Bureau, as an organisation to which the provisions of the Act shall not apply. The Crime records bureau is an organisation which maintains and analyzes crime statistics in the State. (See https://keralapolice.gov.in/page/state-crime-records-bureau). The information which the State Information Commission has ordered to divulge pertains to corrupt officers and those officers who have committed human rights violations. The proviso to Section 24(4) says that the information pertaining to the allegations of corruption and human rights violations cannot be excluded under this sub-section.”
While citing the relevant case law, it is then enunciated in para 28 that, “In Yashwant Sinha and Others v Central Bureau of Investigation [(2019) 6 SCC 1], it was held by the Apex Court that information pertaining to allegation of corruption and human rights violations should be excluded from privilege of secrecy and should be made accessible by virtue of the proviso. The Apex Court went on to hold that even such information which is exempted from disclosure in respect of matters set out in Section 8 (1) (a) which include information the 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 can also be waived if by balancing process, public interest in disclosure comparatively outweighs harm to protected interest. There cannot be any doubt that no purpose would be served in keeping the details of the corrupt officers a secret and by shielding it from the eyes of the citizen as the public interest in the disclosure far outweighs the harm to protected interest. In that view of the matter, the petitioner cannot bank on section 24 to deny the information which has been sought by the party respondent.”
Furthermore, it is then brought out in para 29 that, “The second contention raised by the learned Government Pleader is that the information sought for is protected from disclosure under Section 8 (1) (j) of the Act. Section 8 (1) (j) grants exemption only in respect of information which relates to personal information the disclosure of which has no relationship to any public activity or interest. The details of corrupt officers or those officers who have been found guilty or against whom the final report has been laid cannot be regarded as personal information, the disclosure of which has no relationship to any public activity or interest. It is the information that every citizen is entitled to have access to. Equally feeble is the contention that disclosure of which information would disable the morale of the police force.”
More pertinently, it is then stipulated in para 30 that, “The next question is whether the Kerala Police can be required to publish the information of corrupt officers and human rights violators in the website of the Kerala Police. Under Section 4 of the Act, it is the obligation of the public authorities to maintain all its records duly catalogued and indexed in a manner so as to facilitate the right to information under the Act and ensure that all records that are appropriate to be computerized are computerized and connected through a network, subject to availability of resources so that access to such records are facilitated. Sub clause (b) of Section 4(1) of the Act mandates that within 120 days from the enactment of the Act, the public authorities are obliged to publish the information as detailed in Section 4(1)(b)(i) to (xvii). In other words, Section 4 does not merely oblige the public authority to give information on being asked for it by a citizen but requires it to suo moto make the information accessible. The specific contention of the petitioner is that the information sought for by the petitioner would not come within the purview of clause (i) to (xvii) of Section 4 of the Act and therefore, there cannot be a direction to the Department to publish the same in the website. It would be profitable to bear in mind that the order of the State Information Commission dated 21.1.2012 vide No. AP 599(5)/SIC/2010 requiring the police to maintain its records, duly catalogued and indexed has not been subjected to any challenge. The said order stands unchallenged. However, while passing Ext.P12, the State Information Commissioner has ordered that the details of corrupt officers who have been found guilty in a Court of law or dismissed from service on charges of corruption and against whom, charges of corruption or human rights violation has been established through investigation should be uploaded in the website of the police to enable easy access. At this juncture, it needs to be borne in mind that Section 8 of the Act exempts certain information from being disclosed. Section 8 (2) however states that notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with sub section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harms to the protected interest. Conjointly reading Section 4 which deals with obligations of public authorities and Section 8 which details the exempted categories of information, what the authority should bear in mind is that the provisions of the Act should not be interpreted in such a manner as to impose a fetter on the right to information. In other words, the provisions are to be read in such a manner which would further public interest as it is essential for the fulfillment and preservation of democratic ideals.”
While citing yet another relevant case law, it is then pointed in para 31 that, “In ICAI V. Shaunak H. Satya [(2011) 8 SCC 781, dealing with the above question, the Apex court occasioned to observe as follows:
“25. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. Therefore, in dealing with information not falling under Sections 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in Section 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.
26. Among the ten categories of information which are exempted from disclosure under Section 8 of the RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, that is, the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of Section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest.”
Most significantly, it is then held in para 32 that, “Having considered the entire facts, I am of the view that the information authority cannot shield the name of those officers who have been found guilty or were dismissed from service on charges of corruption or human right violations. The petitioners will not be justified in shielding the names of such officers and will be bound to publish the same notwithstanding the fact that Section 4 does not oblige them to publish such information. However, the information authority under the Police department will not be obliged to publish the names of such officers against whom the offenses have been established on investigation but a conclusive finding has not been arrived at by a court of law. The competent authority will have to bear in mind that while dealing with information not falling within Section 4(1)(b) and (c), the authorities cannot read the exemptions in a restrictive manner but in a practical manner so that public interest is preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interest.”
Equally significant is that it is then held in the final para 33 that, “The challenge to Exhibit P12 will stand repelled except to the limited extent of making it clear that the details of such officers against whom the offenses have been established on investigation but a conclusive finding has not been arrived at by a court of law need not be published in the website of the Kerala Police. All other directions in Exhibit P12 order shall be strictly complied with. The information shall be furnished to the 2nd respondent forthwith and the details as ordered above shall be put up in the website of the Kerala Police within a period of 30 days from 20.3.2021. This Writ Petition is disposed of.”
No doubt, if India has more and more such Judges like Justice Raja Vijayaraghavan V who delivers such brief, brilliant, bold and balanced judgment which makes sure that police is always held accountable and not given a free hand as we see is the case given to them by the politicians in power in various states then police cannot feel that it has untrammelled and unfettered power to do anything as it wants, whenever it wants, whatever it wants and yet not held accountable for anything done! It is now the bounden duty and job of the Kerala police to publish details of police officers who have been found guilty or dismissed from service on charges of corruption or human rights violations as has been directed by the Kerala High Court. If this is done uniformly all over India it will ensure that “encounter specialists” are not brought back to service even after being for suspension for many years as we saw in case of Mumbai cop Sachin Vaze who is mired in several serious controversies and is currently being interrogated by NIA. Why can’t all the States in India emulate what is now being propagated for Kerala by Kerala High Court?
It is high time and this must be done right now without forwarding any “ifs” and “buts”! Public interest must reign supreme and not vested interests of top politicians or top cops because if this is not ensured then it is our national interests which will suffer the most in the longer run! There can be no denying it!