Above: The Allahabad High Court/Photo Courtesy: Wikimedia.org

In a tough stand, the Allahabad High Court has struck down a UP Vigilance Department order which tried to protect this office from the purview of the RTI Act

~By Atul Chandra in Lucknow

In 2017, the Allahabad High Court had ruled that the office of Lokayukta cannot be kept out of the Right to Information Act of 2005. But the state Vigilance Department, which had issued a notification to protect the ombudsman from nosey activists, sat over the judgment.

This prompted social and RTI activist Nutan Thakur to file a contempt petition. That spurred the Department to rescind its notification of August 8, 2012, through a government order dated March 22, 2018, bringing the institution under the RTI Act. The High Court quashed the 2012 notification which declared the Lokayukta and Up-Lokayukta out of bounds for RTI activists under the Act as illegal.

QUESTIONABLE NOTIFICATION

The government order of March 22 was issued by Arvind Kumar, principal secretary, vigilance, and said that the earlier notification was being “set aside pursuant to the court’s order”. As the Vigilance Department rescinded the questionable notification only after a contempt petition was filed by the petitioner, Thakur, the Court also ordered the government to pay Rs 25,000 as cost to her.

While striking down the UP Vigilance Department’s order in November last year, the High Court ruled that the August 8, 2012, notification was “illegal and beyond the authority of State as also being outside the purview of Section 24 (4) of Act 2005”. Section 24 (4) of the RTI Act provides immunity to intelligence and security organisations unless the information sought pertains to allegations of corruption and human rights violations.

Thakur, a lawyer whose husband, Amitabh Thakur, an IAS officer, alleged that he was threatened by former Chief Minister Mulayam Singh Yadav, was prompted to move the High Court after the then Lokayukta, Justice NK Mehrotra, ordered that the office of the ombudsman and the Vigilance Department be kept out of the RTI Act. When Thakur moved an RTI application asking the Lokayukta for a copy of the government order, his office refused to part with the information on the ground that it did not come under the RTI Act.

It was then that she challenged the notification on the ground that “Lokayukta” is not an organisation of the nature covered under Section 24(4) of the Act, 2005, which can be excluded or exempted, and hence it was ultra vires of the RTI Act, 2005.

Upholding Thakur’s contention, the Court said that the Lokayukta “primarily is empowered to look into the complaints of ‘allegations’ and ‘grievances’ relating to … ‘corrupt activities’ or ‘misuse of power’ on the part of various functionaries which are within the definition of Public Servant”.

COURT NOT CONVINCED

The Court did not find any provision to show that the Lokayukta at any stage was “engaged in such functions which may be termed as relating to ‘intelligence’ and ‘security of state’.” The Court was not convinced by the government counsel’s argument defending the impugned notification.

“The respondents have not disclosed or pleaded any reason whatsoever as to why Office of ‘Lokayukta’ has been sought to be excluded from the purview of Act, 2005 when the entire endeavour on the part of State is towards transparency and to uphold right of information of Public,” the Court said while setting aside the government notification.

Justices Sudhir Agarwal and Virendra Kumar who quashed the notification said in their order: “Except contending that power of exemption has been conferred under Section 24(4), therefore, State Government has issued notification, we do not find any justification provided, pleaded or stated by respondents so as to show the necessity felt by respondents for excluding ‘Lokayukta’ from the purview of Act, 2005.”

Referring to the Second Schedule of the 2005 Act which lists the agencies that have been kept out of RTI, the judges said that the office of Lokayukta was not among them. The Intelligence Bureau, Research and Analysis Wing of the Cabinet Secretariat, Directorate of Revenue Intelligence, Directorate of Enforcement, National Security Guards and the Indo-Tibetan Border Police are some of the 25 agencies granted exemption under the RTI Act (see box).

Thakur had moved the Lokayukta levelling charges of corruption against the then mining minister of UP, Gayatri Prajapati. As Prajapati was close to Mulayam, the battle turned bitter and personal. Besides Amitabh Thakur being allegedly threatened by Mulayam, the IPS officer was also accused of attempted rape and suspended. The “rape” victim accused Nutan of complicity. The Thakur couple was recently exonerated of the rape charges.