The RTI Act, 2005 (RTI Act) is often used by an accused to gain access to the complaint and other associated papers such as the show cause notice, note sheets, policy/guidelines basis which further action was initiated against him under any internal Departmental Inquiry or under other Statutes such as the Prevention of Corruption Act, 1988. And lurking behind the need to know the contents of the records, is the urge to discover the identity of the person who made the complaint, which could be due to the natural curiosity of the accused or due to his desire to avenge the spilling of the beans. The RTI Act can be conveniently employed to find out the whodunit.
Safeguards in the RTI Act, 2005:
Sensing that the RTI Act may be used to ascertain the identity of the informant, the legislature in its wisdom built in some safeguards in the form of Sections 8(1) (g)[1] and 8(1) (h)[2] of the RTI Act, 2005 itself, to thwart the attempt of the accused to gain the identity of the complainant. These two Sections help in protecting the identity of an informant.
Section 8(1) (g) or Section 8(1) (h)?
As regards the question as to which of the two Sections is more formidable in protecting the identity of an informant, then Section 8(1) (g) is more potent as it can be applied directly (i) if the concerned authority is of the view that disclosing the identity of the informant would endanger his life or physical safety or (ii) will identify the informant when he gave the information or assistance in confidence for law enforcement or security purposes. Mostly informants give information in good faith and to assist in law enforcement. No one would want his identity to be disclosed. Section 8(1) (h) on the other hand will apply only when the investigations/prosecution is pending and disclosure of the identity of the informant would impede the process of investigation. While, it can be argued by the accused that mere disclosure of the identity of the informant may not impede the process of investigation, to argue against the invocation of Section 8(1) (g) can be more difficult.
Court’s view:
There have been many instances, when, after being turned down by the Central Public Information Officer (CPIO) and the First Appellate Authority (FAA), the RTI Applicant approached the Central Information Commission and the Courts requesting for disclosure of the identity of the informant. Thus, in the case of Ashok Kumar Sharma Vs. Union of India (UOI) and Ors[3], when the CIC denied disclosure of information[4] under Section 8(1) (h) of the RTI Act, the Applicant approached Delhi High Court. Before the Court, UOI interalia, submitted that the informant would certainly have not wanted his name and identity to be disclosed. Accepting the contention, the single bench held that so far as the name or identity of the informant is concerned, it need not be disclosed to the petitioner but other information[5] may be of value to the RTI Applicant and is to be provided after redacting the information which may indicate or disclose the identity of the informant. On appeal by the UOI, against the order of the single bench for disclosure of the other information, the division bench vide its judgment dated 17.08.2015[6] took the same view as that of the single bench. Not satisfied with the order to supply the information, the UOI approached the Supreme Court, the Supreme Court accepted the reasoning of the information commission that nothing should be done which compromises the position of sources of information or affects the investigation proceedings and set aside the order of the division bench of the High Court in respect of the other information.[7]
Conclusion:
As can be seen from the above, both the RTI Act and the Courts protect the identity of an informant under the RTI Act and rightly so, as a beneficial legislation aimed at transparency, accountability and good governance should not become a tool for revenge and vendetta.
[1] information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
[2] information which would impede the process of investigation or apprehension or prosecution of offenders;
[3] Ashok Kumar Sharma Vs. Union of India and Ors, WP (C) 2272/2013 dated 16.09.2014
[4] Copy of letter of the Chief Engineer referring the case to the then Chief Engineer/Vigilance Unit, Copy of the note sheet for processing the decision to refer the case to Anti Corruption Branch of CBI, copy of the letter of the competent authority of CPWD referring the case to CBI
[5] Supra at 4 above
[6] Union of India & ors Vs. Ashok Kumar Sharma, LPA 471/2015 dated 17.08.2015
[7] Union of India & ors Vs. Ashok Kumar Sharma, CA No. 1632/2019 @ SLP (C) No.5640/2016 dated 12.2.2019
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