Unlawful rejection of RTI applications by Certain Security Forces
Sai Krishna Muthyanolla
December 28, 2016
In response to a RTI application filed by Factly, two of the Central Armed Police Forces disclosed information on the number of cases of alleged Human Rights violation while few other forces rejected and cited Sec 24 of the RTI act. Why is it unlawful?
In the wake of the 2016 unrest in Jammu and Kashmir, Factly filed an application under RTI with the Ministry of Home Affairs and the Ministry of Defence seeking information on records of human rights violations by all central combat forces stationed in the state of Jammu and Kashmir and North-Eastern states of Nagaland, Assam, Manipur, Mizoram and Arunachal Pradesh between 1990 and 2016. The application also requested to furnish how many of the personnel guilty of such violations were court-martialed.
Three types of forces are stationed/operational in various regions of the country.
The Defence forces & the Indian Coast Guard are under the Ministry of Defence while the Central Armed Police Forces are under the Ministry of Home Affairs. The Assam Rifles and the National Security Guard (NSG) are also under the operational jurisdiction of the Ministry of Home Affairs.
Varied response from the Security Forces
Out of all the above stated 11 organizations, the reply to the application seeking human rights violations and corresponding court martial details was given by only two organizations – the Border Security Force (BSF) and the Indo- Tibetan Border Force (ITBF). These two organizations responded with the information sought for.
The Army, Navy & the Air Force are yet to respond while the other Central Armed Police Forces like the CISF refused to provide information stating that they are exempted from disclosing any information as per Section 24 of the RTI Act.
What is problematic with these rejections?
Section (24) (1) of the RTI Act states, “Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the Central Government or any information furnished by such organizations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub‑section.”
In fact, there is another provision in Section 24(1) that states, “Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request.”
This section of the Act clearly states that information with regard to human rights violations cannot be exempted and they should take the approval of Central Information Commission. The petitioner was denied his right to know from unwilling public authorities. They have in all capacities misconstrued and misinterpreted a very straightforward clause.
The most unconvincing aspect of it is the fact that two of the central armed forces have furnished the information and the rest of them have conveniently decided that they are exempted.  This inconsistency indicates that this is not an accidental or ignorant denial.  All these organizations come under the same umbrellas – The Ministry of Defence and The Ministry of Home Affairs.
The idea that the security forces under two of the country’s most critical central departments are not able to interpret a legislation that has been in place since 2005 seems far-fetched.
The Right to Information Act, 2005 (RTI) is considered a landmark legislation not just within the country but also looked upon as one of the best transparency legislations in the world.
The most critical feature of the RTI Act always has been the distinction it has made between transparency and privacy. Before the Act, a 1923 legislation called the Official Secrets Act (OSA) deemed that all information held by public authorities a secret unless they disclose it voluntarily.
In spite of having a progressive legislation in place that can create a more open and transparent relationship between the armed forces and the people, the particular government departments in question did not seem to have entered the era beyond the OSA.
According to the Indian Army’s Human Rights Cell, records dating till December 2011 indicate that the Indian Army alone received 995 human rights allegations in Jammu and Kashmir, 485 allegations in the north eastern states and 52 in other states. It also indicates that a majority of them were investigated and found to be false and baseless. Out of 1532 complaints, only 54 allegations were considered true and 129 personnel were punished.
1532 cases of human rights violations were allegedly committed by one security force, out of the many different security forces stationed in various parts of the country. When the Indian Army has put out such details in the public domain, it is rather unfortunate that the other security forces want to withhold such basic information.
A 1999 document by the National Human Rights Commission states “The bulk of the complaints received by the National Human Rights Commission concerns security forces. Again most of such complaints relate to alleged commissions and omissions on the part of the police during the investigation. Many of them pertain to non-registration of complaints, delayed investigations, investigations not being done fairly, objectively and impartially and the inaccessibility of police officers. It goes without saying that to be effective and successful, the police must enjoy the trust, confidence, and respect of the people living in the jurisdiction.”
In a Supreme Court case filed by Manipur –  Extra Judicial Victim Families Association ( EEVFAM) vs Union of India, the petitioners claim to have compiled 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur. It is alleged that a majority of them have been carried out in cold blood while the victims were in custody and allegedly after torturing them. The compilation was presented in the form of a Memorandum to the United Nations Special Rapporteur on extra-judicial, summary or arbitrary executions during his mission to India in March 2012.
The Supreme Court in the above case said, “Excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible. As is evident from the Dos and Don’ts and the Ten Commandments of the Chief of Army Staff, the Army believes in this ethos and accepts that this principle would apply even in an area declared as a disturbed area under AFSPA and against militants, insurgents, and terrorists. There is no reason why this principle should not apply to the other armed forces of the Union and the Manipur Police “
It is very evident from the above-quoted sources that citizens in areas where security forces have been extensively deployed have alleged gross human rights violations over the years. It is then in the interest of the citizens in these parts of the country and every person interested to understand the reason for these allegations and be given the details of these incidents. If the security forces have investigated and found their personnel not guilty, it is also in the interest of their public image that they should be more transparent about these investigations.
Citing reasons of exemption, denial and impunity only aggravate these allegations and create more doubts in the minds of citizens on the integrity of those wearing the uniform in the name of the country.
Featured Image: Security Forces