CIC Rejects RTI On Centre Denying Prosecution In 47 J&K AFSPA Cases

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Srinagar: The Central Information Commission (CIC) has rejected a Right to Information Act (RTI) petition seeking access to the files over Centre denying prosecution sanction under the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, in 47 cases involving allegations of custodial deaths and disappearance of civilians, fake encounters, instances of rape and kidnapping, torture, and extortion in Jammu and Kashmir.

The CIC on June 5, rejected the petition filed by activist Venkatesh Nayak, who had sought permission to inspect the files. The CIC rejected Nayak’s plea to access the documents in the “larger public interest”.

The appeal pertains to the government of Jammu and Kashmir having sought sanction from the Centre for prosecuting the accused in 50 such alleged cases that had occurred between 2001 and 2016. This is an essential requirement under the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, under which the armed forces of the Union operate in J&K.

In January 2018, the Union government had informed the Rajya Sabha that request from the government of Jammu and Kashmir for sanctioning the prosecutions was refused in 47 cases due to lack of sufficient evidence, prima facie.

A month later in February, Nayak had submitted an application to the Ministry of Defence under the RTI Act seeking copies of the Standard Operating Procedures, criteria and standards of measuring evidence used, designation of the final decision-making authority and inspection of the 47 case files. MoD transferred the RTI application to the Indian Army. Both public authorities denied they held in their custody any of the information described in the RTI application.

The matter escalated to the Central Information Commission in August 2018. The CIC conducted a hearing in February 2020, issued an interim order and reserved the final order to allow for additional submissions to be made after the hearing.

On June 5, the CIC issued its final order permitting access to a copy of the orders issued by MoD refusing sanction to prosecute in each of the 47 cases. The CIC, however, rejected access to the concerned case files in the larger public interest.

“Commission has considered the detailed arguments of the Appellant and the stance of Respondent No. 3 (the CPIO and the Army) as regards the denial of information on Para 5… under Section 8(1)(a) of RTI Act. While admittedly, Appellant has raised quite valid objections expounding larger public interest citing the Hon’ble Supreme Court judgement in the matter of Extrajudicial Victim Families Association Manipur (EEVFAM) & Anr Vs. Union of India & Anr.,,” the CIC said in its order

“however we ought to appreciate the fact that the instant case hinges on an extremely sensitive aspect of the Kashmir conundrum. Given the limited jurisdiction of the Commission under RTI Act, the bench is neither adjudging the merits of the violation of human rights argument of the Appellant in relation to the alleged victims or their families nor the conjecture and surmises associated with the denial of prosecution sanction in the 47 cases referred to hereunder. Rather, the facts of the instant case require a dynamic attribution to the meaning of larger public interest within the framework of RTI Act by associating non-disclosure with larger public interest,” the order adds.

The appellate body further said that the Commission is in complete agreement with Respondent No. 3((the CPIO and the Army) that disclosure of the elaborate aspects of the Army Operations will impact future operations.

“The disclosure of operational details will gravely impact the security and strategic preparedness of the Armed Forces, which by common knowledge is vital to the State’s diaspora,” the order reads. It adds that the other aspect of sensitivity lies in the inevitable vulnerability of this subject matter to speculations cutting across national and international borders; perhaps even trial by media that will emanate from such disclosure.

“As a cumulative effect, these eventualities may further compound the situation of unrest and instigate festering emotions in the State in addition to the international ramifications…. Indisputably, the larger public interest of the State (vis-a-vis its susceptibility to unrest) prevails over that of the alleged victims,” the order by CIC reads.

“As regards, the contention of the Appellant that Section 10 of RTI Act can be invoked to severe [sic] the operational details, Commission finds the argument far fetched given the nature and form of information sought. Identifying and severing such intricate details from the papers, correspondence, file notings, emails etc desired in the RTI Application will invariably cause disproportionate diversion of the resources of the public authority as per Section 7(9) of RTI Act,” it adds.

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