The CIC has given a "final opportunity" to Union home secretary Rajiv Gauba to produce records related to alleged fake encounter in Assam last year, reported by then CRPF IG Rajnish Rai, before initiating penal proceedings against him for "obstructing" the flow of information.
Irked by the stance of the Home Ministry to not present records for the Central Information Commission's perusal, the statutory body said since the decision in the matter has "undoubtedly" been taken at the highest level, the Secretary of the Ministry of Home Affairs is designated as deemed Public Information Officer (PIO).
"A final opportunity is granted to the MHA to produce relevant records of the case. The Union Home Secretary shall produce the relevant records before the Commission in person or through his authorised representative on December 19, 2018 failing which, ex parte decision shall be announced," the order said.
The Commission also said that in case records are not produced penal proceedings can be initiated against him for obstructing the process of "adjudication of the Commission and causing obstruction to the flow of information.
"Under the RTI Act, no records can be withheld from this Commission under any pretext," the order said.
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It said the CIC has statutory power and the same has also been acknowledged by the Supreme Court.
"The unusual resistance exhibited by the MHA in producing the records before the Commission cannot be countenanced and the Commission perceives the same to be a direct onslaught on the RTI regime," it said.
It said contention of the MHA on the applicability of relevant clauses under Section 8(1) of the RTI, which exempts certain information from being made public under certain conditions, is still not concluded and the Commission has not yet decided on the same.
"Apart from a bald assertion made by PIO, MHA, there is nothing on record to substantiate the argument of NHRC/ Assame SHRC having ruled out violation of human rights. No records or findings from any court of Law are produced before the Commission," it said.
The Commission clarifies that genuineness of an encounter killing/extrajudicial killing and allegation of human rights violation are two distinct things, it said.
"Lawful justification of extrajudicial killing cannot be confused with the right of citizenry to know the truth," it said.
The matter pertains to an RTI application seeking to get a copy of the report filed by Rajnish Rai, the then CRPF IG.
Rai has alleged in the report that a joint team of the Army, the Assam Police, the CRPF, its jungle warfare unit CoBRA and the border guarding force Sashastra Seema Bal (SSB) conducted the encounter on March 29-30, 2017 in Simlaguri area of Chirang district and killed what they called were two insurgents of the banned group NDFB (S).
The copy was denied by the CRPF claiming that its an exempted organisation under the RTI Act.
The applicant had said even if it is an exempted organisation, the information held by it pertaining to allegations of human rights violation is not covered under that exemption.
Agreeing with the view of the applicant, the Commission said the information will not come under blanket exemption to the CRPF from RTI Act and asked for the report to adjudicate whether it attracts Section 8 of the transparency act.
The CRPF then said the report was with the Home Ministry.
The Home Ministry in spite of repeated orders to produce the report did not comply and later claimed the information was not held by it.
"Denial of information to appellant cannot be a ground to deny a record to the CIC. Irrespective of the outcome of the present appeal, there is nothing to fetter power of the Commission to call for any record in process of adjudication of present appeal," the Commission said in its latest order.
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