First Appellate Authority

New Delhi: The Central Information Commission recently held that the six appeals filed by noted transparency activist and executive director of the Internet Freedom Foundation Apar Gupta with the First Appellate Authority (FAA) of the Ministry of Home Affairs – seeking details of the orders passed or directions or instructions issued to various agencies pertaining to interception, phone tapping, monitoring or decryption – had not been “adjudicated properly”.

In his order, chief information commissioner Y.K. Sinha also noted that the oral submissions made by the public information officer during the course of the hearing were “unconvincing” and failed to satisfy the Commission. He, therefore, directed the FAA and joint secretary in the MHA, Ashutosh Agnihotri, to “revisit the cases and re-examine the issues raised, deciding the cases with a reasoned speaking order after hearing both parties”.

Plea asked for details of orders

In his applications, filed on December 28, 2019, Gupta had sought information related to the total number of orders passed or directions or instructions issued between January 1, 2016 and December 27, 2018, to various agencies pertaining to interception, phone tapping, monitoring or decryption under Section 69 of the Information Technology Act, 2000 and IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, for prevention of any offence affecting the sovereignty or integrity, defence or security of the country. He had also asked the names of the agencies to which such directions were issued.

In the six second appeals, he had sought additional information on the total number of orders or directions. The central public information officer sent a common reply on January 1, 2019 in response to all these six RTI applications and informed Gupta that the disclosure of information related to lawful interception, phone tapping, monitor or decrypt is exempt from disclosure under section 8(1) (a), 8(1) (g) and 8(1) (h) of the RTI Act, 2005.

Not satisfied with the response, Gupta filed the first appeals on February 15, 2019. However, the FAA upheld the reply of the CPIO on March 19, 2019 and disposed of the first appeals.

CPIO cannot withhold information without reasonable cause

Thereafter, Gupta approached the CIC for the second appeal. It was submitted by him that the MHA has in the past filed a counter-affidavit on February 21, 2019 in the case titled Internet Freedom Foundation & Anr vs Union of India & Ors in which it furnished similar information before the Supreme Court. Here, he submitted, the list of major cases detected on the basis of lawful interception was also attached.

Gupta also contended that in response to a similar RTI query filed by Shagun Belwal, the MHA had through its reply in 2014 revealed that on an average, around 7,500 to 9,000 phone interception orders were issued under Rule 49A by the Central government every month.

During the hearing in the case before the CIC on May 14, Vrinda Bhandari appeared on behalf of Gupta. Citing a Delhi high court ruling, she said the CPIO cannot withhold information without reasonable cause. She also placed reliance on two other decisions of the Commission to highlight instances amounting to incorrect denial of information under Section8 (1)(g) and (h) of the RTI Act.

Similar information was placed before parliament

During the hearing, Bhandari contended that Section 8(1) states that information which cannot be denied to the Parliament or a state legislature shall not be denied to any person. She stated that similar information about telephone tapping has been disclosed in the Lok Sabha in response to a question by an MP.

It was pointed out by her that on March 4, 2015, the minister of communications and information technology, Ravi Shankar Prasad, answered a question raised by an MP and stated that on average, 5,000 interception orders per month are issued by the Union home secretary under the Telegraph Act and Rules. Therefore, she said, the appellant’s request for statistical information cannot be denied when similar information has been disclosed in parliament.

Parliament House. Photo: PTI/Manvender Vashist

Bhandari also argued by citing a Supreme Court ruling in Anuradha Bhasin vs Union of India that the government has in the past been directed to reveal orders which restricted access to the internet in Jammu and Kashmir, even though the government had initially claimed ‘privilege’.

Furthermore, she said, the Delhi high court held in B.S. Mathur vs Public Information Officer of the Delhi High Court that the CPIO is required to provide a reasoned order, and the burden of proof is on them to show why the information cannot be given.

Sinha also recorded in his order how the PIO claimed that since phone tapping or decryption is done keeping in view the safety and security of the country, his predecessor had denied disclosure of the information, invoking inter alia section 8(1)(a) of the RTI Act. “He went on to state that minimal data is maintained for such highly classified operations and as per extant rules, such data are destroyed, all records are weeded out from time to time. He further contended that the information sought by the Appellant is not maintained with the CIS Division.”

CIC ‘not convinced’ with justification

On hearing both the parties, Sinha said the Commission was “not convinced with the justification provided” by the PIO for the denial of information, particularly because he had also not established how the provisions of Section 8(1)(g) of the RTI Act are attracted in disclosure of mere statistical information.

The CIC also noted that reliance placed by the respondent on the case of Amitabh Narayan was not applicable in this case as the appellant here had not sought any personally identifiable information in respect of any individual, or even the locations in which the orders under Section 69 of the IT Act were passed. As such, he said, “There is no question of endangering the life or physical safety of any person.”

Disposing of the appeals, Sinha directed the PIO to submit a copy of the FAA’s revised order before the Commission on July 31.

The Central Information Commission (CIC) earlier this week directed the Heaquarters, Integrated Defence Staff (HQ-IDS), Union Ministry of Defence to disclose the following joint operational doctrines under The Right to Information Act, 2005 (RTI Act):

a) Joint Doctrine for Perception Management and Psychological Operations; and

b) Joint Doctrine for Land and Air Operations.

In June 2010, the then chairman, Chiefs of Staff Committee and Chief of Air Staff (CAS), Air Chief Marshal P.V. Naik, had released these operational doctrines. However, the text of these doctrines was not available in the public domain. Now, after seven years, since I sought the information under the RTI Act, the CIC has directed the HQ-IDS to make the complete text of these doctrines public within 15 days.

Military doctrines should be made accessible to public

Official records containing details of military strategy and tactics are usually covered by exemptions relating to national security in RTI laws, which are based on internationally recognised good practice standards. Conversely, military doctrines contain broad-brush information, such as what the military service perceives itself to be, what its mission is, how a mission is to be carried out (without revealing the actual operational strategies and tactics), how a mission been carried out in the past, etc. NATO’s Glossary of Terms and Definitions defines doctrine as: “Fundamental principles by which the military forces guide their actions in support of objectives. It is authoritative but requires judgement in application.” So, military doctrines must be made accessible to any citizen without having to ask for it.

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In 2010, the official website of the HQ-IDS had displayed the joint doctrines of the USA, UK and France apart from some older doctrines developed by India. The 2017 Joint Doctrine of the Indian Armed Forces was posted on the HQ-IDS website on October 1, 2018, i.e. the date of the hearing in my RTI case. Publishing military doctrines also helps reassure the citizenry about its own safety. It is also a requirement under Section 4(1)(c) and 4(1)(d) of the RTI Act.

According to the press note released in June 2010, the Joint Doctrine on Perception Management and Psychological Operations provides guidelines “for activities related to perception management… in an internal environment wherein misguided population may have to be brought in to the mainstream.” Some media reports published at the time indicated that this joint doctrine might be used to counter the influence of Left wing extremist groups in some states. Clearly, there is enormous public interest in making this document publicly accessible.

RTI Intervention

In September 2010, after waiting for more than two months (from the date of the press release) for the defence establishment to make the text of the two joint doctrines public, I sent an ordinary letter requesting the Central Public Information Officer (CPIO) of the Headquarters, Integrated Defence Staff (HQ-IDS) to proactively disclose them under Section 4(1) of the RTI Act. I also requested them to repair the broken link on their website, which mentioned the Report of the Group of Ministers containing recommendations to reform the national security system. This report had been prepared in the aftermath of events such as the Kargil War and the 2001 attack by armed militants on the parliament. The CPIO did not bother to send any reply to this letter.

Later, in November that year, I sought a copy of the two joint doctrines and the text of the recommendations of the group of ministers through a formal RTI application. The CPIO of HQ-IDS rejected the request for the joint doctrines, stating that they were classified with the label ‘Restricted’ and therefore were covered by Section 8(1)(a) of the RTI Act. Readers will recollect that Section 8(1)(a) contains at least seven grounds for rejecting an RTI application but does not include the reason mentioned by the CPIO. The reason cited by the CPIO while denying knowledge of the report of the group of ministers was that the HQ-IDS was not a repository of that document.

Subsequently, I submitted a first appeal. The First Appellate Authority reiterated the CPIO’s reply and stated that an unclassified version of the joint doctrine relating to perception management may be prepared in future without indicating any time limit. He refused to direct the disclosure of the Joint Doctrine for Land and Air Operations and threw up his hands regarding the link to the Report of the Group of Ministers on National Security.

Then, in 2011, I filed a complaint case against the HQ-IDS and also the Union Ministry of Home Affairs (MHA). I requested that the MHA be made a party because the CIC had in 2009 rejected my request for the Manual of Departmental Security Instructions (MoDSI), which contains the criteria and procedure for classifying official documents as ‘top secret’, ‘secret’, ‘confidential’ and ‘restricted’. So I argued that without a copy of the MoDSI, I would not be able to contest the correctness of the classificatory label of ‘restricted’ given to the joint doctrine. I also argued that according to the Government of India Guidelines for Official Websites, it is the webmaster’s responsibility to ensure that all links to external websites are kept alive and broken links are repaired (for the report of the group of minsters). I also sought the CIC’s directions for creating a system of deferred access to official records as the RTI Act does not contain such a provision.

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Unfortunately, the complaint case went into cold storage for the six years that followed. The file was reconstructed at my request in 2017 and the hearing held a year later. As the complaint case had been filed in 2011, ten months before the Supreme Court distinguished between the complaints and appeals procedures under the RTI Act (Chief Information Commr. & Anr. vs Manipur vs State of Maniour & Anr., December 2011), I also prayed for a conversion of the complaint into an appeal case. As I had already filed a first appeal with the HQ-IDS already, this request for conversion did not pose any difficulty.

During the hearing, the CIC perused the two joint doctrines that the representative of the HQ-IDS had brought along. The CIC has now ruled in favour of disclosure, rejecting the plea of the HQ-IDS as unconvincing and “laboured”. However, the CIC refused to allow my plea for disclosure of MoDSI as it was not included in the original RTI application. The HQ-IDS’s plea that they did not know who held a copy of the Report of the Group of Ministers on Reforming National Security was also accepted. I did not press the CIC otherwise as this requires a separate RTI intervention involving the National Security Council Secretariat, which is excluded under Section 24(1) of the RTI Act from ordinary obligations of transparency. I also did not press for a direction on deferred access to official records as I wanted to wait for the CIC’s decision on the core requests. Perhaps this issue is better taken up in another appropriate case.

Whether the HQ-IDS will comply with the CIC’s direction and disclose the joint doctrines or challenge that decision in the Delhi high court remains to be seen.

Venkatesh Nayak is programme coordinator, access to information, Commonwealth Human Rights Initiative, an independent NGO based in Delhi.

Tag: First Appellate Authority

In Landmark Case, CIC Directs MoD to Disclose Two Joint Operational Doctrines