The Central Information Commission (CIC) has held that it is the human right of a person accused of sexual harassment in his capacity as a citizen and accused under the RTI Act and under the principles of criminal justice, to get all the related information to defend himself in a penal proceedings while imposing a penalty of Rs 25,000 on a Public Information Officer for denying the information to an officer accused of sexual harassment at workplace and recommended disciplinary enquiry be conducted against him.
CIC Madabhushi Sridhar Acharyulu also criticised the CPIO for demanding
Rs. 6 for three pages supplied to the appellant by writing a letter, as
the CIC said, “The RTI Rules say the CPIO can collect the copying fee at
Rs 2 per page but did not authorize him to demand Rs 2 by spending more
than that. This reflects at least, the harassing nature of the CPIO,
which is surely a sign of malice. The problem of CPIO is the mindset and
attitude. It is part of malice.”
“It is the human right of the appellant in his capacity as a citizen and
accused under RTI Act and under the principles of criminal justice, to
all the related information to defend himself in penal proceedings. The
expression ‘human rights’ is defined in Section 2(d) of the Protection
of Human Rights Act, 1993. “human rights” means the rights relating to
life liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable
by courts in India,” said Acharyulu.
“There are, in fact, two human rights—one, right to defend himself in
penal proceedings and second, right to information to prepare for that
defence. These two human rights are founded on a) principles of natural
justice and due process, b) principles of criminal justice, c) the
provisions of SHW Act of 2013, d) the provisions of RTI Act 2005,” he
added.
The CIC was hearing an appeal moved by an officer facing an inquiry on a
complaint of alleged sexual harassment. He had sought information on 15
points, including copies of Statements of the named individuals
obtained by the Internal Complaints Committee (ICC) during the
preliminary inquiry and copies of correspondences between an official
and the president of the ICC.
While the CPIO denied him the information, three documents were given to
the appellant which included a copy of the order by which ICC,
Mandsaur, was formed, a copy of order by which a particular member of
ICC was placed on superannuation list and a copy of his retirement
charge report.
The CPIO also wrote to the appellant to pay Rs. 6 for a page.
To the CIC’s surprise, the appellant was denied the other information by
the CPIO citing Section 16 of the Sexual Harassment at Workplace Act,
2013 which is prohibition of publication of information to and by the
media about the identity and addresses of aggrieved woman, respondent
and witnesses during the conciliation and inquiry proceedings, and
action taken etc.
The CIC noted that “the provision does not mean that information could
be denied to respondent-accused. Hence denial of information sought by
the appellant is in clear breach of all above provisions of SHW Act of
2013”.
The CPIO also invoked exemption clauses 8(1)(d) and (g) of RTI Act to
deny the appellant the information, which the CIC said, should have been
given as per principles of natural justice, rules of disciplinary
inquiry, Act of 2013, Rules made thereunder, official handbook of the
Ministry containing guidelines for prevention of Sexual Harassment. The
CPIO used exemption clauses under the RTI Act also.
Section 8(1)(d) of RTI Act says; information
including commercial confidence, trade secrets or intellectual
property, the disclosure of which would harm the competitive position of
a third party, unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information.
Section 8(1)(g) says: 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.
The first appellate authority also upheld the denial of information.
The appellant moved the CIC saying as a charge-sheeted accused before
ICC, the principles of natural justice demand that certified copies of
all documents relating to the inquiry report, including copies of the
statements of witnesses, should be given to him to facilitate him to
substantiate his defence and for the conduct of the inquiry in a fair
manner.
How are statement of witnesses a trade secret?
The CIC observed, “The CPIO neither explained nor justified how these
clauses could be invoked in this case. He has not applied his mind at
all. How the statement of witnesses and other documents relating to
sexual harassment complaint could be considered as ‘trade secret’,
‘commercial confidence’ or ‘intellectual property’ of the third party or
public authority? This is absolute absurdity.
“The appellant himself gave the names of the four witnesses and asked
for their statements of evidence given during inquiry. This information
was denied under an excuse that their physical security is threatened.
These excuses are laughable and amounts to misuse of law by authority to
deny the right to information of the appellant. It also reflects
malafide on the part of the CPIO. If this is the way information is
denied and accused is not allowed to defend, false allegations will
increase and real purpose of Act of 2013 and RTI Act will be totally
defeated.”
“The charge of sexual harassment is a serious allegation which if
falsely made and proved by suppression of information to the accused, it
can ruin the career of the accused, cause permanent and irreparable
damage to the reputation and also disturb his domestic life affecting
his relations with his wife and children. Society will look him down and
people talk badly about him in his absence or some may even insult him
openly. As per SHW Act 2013, he would be shifted, and he might even face
criminal prosecution under IPC which in our country would span over a
decade or more involving huge expenditure and going to courts for
several rounds as an accused person. A false allegation can render his
life a hell for the accused officer and if innocent, the officer might
suffer serious mental torture also. It can destroy a person totally. The
due process, principles of natural justice and legal provisions of the
SHW Act of 2013 provide him a right to defend himself from allegation of
sexual harassment, and the right to information to secure those related
documents will strengthen that right”.
Referring to the Supreme Court verdict in Maneka Gandhi v. Union of India in
which it was held that right to live under Article 21 is not merely a
physical right but includes within its ambit the right to live with
human dignity, the CIC said, “An unproven charge of sexual harassment
seriously affects the dignity of a person. And not facilitating the
procedural rights including right to information/documents that are
being used against him will deprive him of a due opportunity to defend
himself, which is the human right to free and fair trial that amount to
breach of Article 21.”
The CIC also referred to various provisions of the CrPC and also the
Sixth Amendment to the US Constitution which provide for an accused to
be informed of the nature and causes of accusations and the right to
cross-examine while being allowed to put the witness in his defence.
It also referred to another recent judgment of CIC in M Dinesh v PIO, Bureau of Immigration/Intelligence Bureau, wherein it was held that it was a human right of the accused facing inquiry to have complete information.
“By denying the information the appellant was not only harassed by the
public authority, but also by the CPIO. While public authority denied
him the documents which he was entitled under SHW Act of 2013, the CPIO
denied them under RTI Act besides wrongfully invoking Section 8(1) (d)
and (g). It is absurd to think that copy of inquiry report and
statements of witnesses could be ‘trade secret’, ‘intellectual property’
or of ‘commercial confidence’,” said Acharyulu.
A pennywise CPIO
“The CPIO was penny wise when he demanded Rs 6 to give 3 pages. The CPIO
might have spent at least Rs 15 to Rs 100 approximately (taking into
account the time, energy, paper, typing or correcting mistakes, which is
quite possible, and posting) to write a letter demanding Rs 6. If it is
his personal money, no prudent man would spend Rs 100 for collecting Rs
6. Is it not wrongful spending of public money? If this CPIO is
demanding money up to Rs 18, by spending Rs 20 to Rs 100 every day
hypothetically, what should be the loss of exchequer per year? Even if
the appellant positively responds and pays Rs 6 promptly, still the loss
would be Rs 94. The RTI Rules say the CPIO can collect the copying fee
at Rs 2 per page but do not authorize him to demand Rs 2 by spending
more than that. This reflects at least, the harassing nature of the
CPIO, which is surely a sign of malice,” said the CPIO.
Read the Order Here
