CIC rejects access to files on denial of prosecution in 47 J&K AFSPA cases “in larger public interest”

KT NEWS SERVICE. Dated: 6/12/2020 12:35:44 AM

JAMMU, Jun 11: The Central Information Commission (CIC) has rejected access to files pertaining to the Centre denying prosecution sanction under the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, in 47 cases involving allegations of custodial deaths and disappearance of civilians, fake encounters, instances of rape and kidnapping, torture, and extortion in J&K.
Acting on a plea filed under the Right to Information (RTI) by activist Venkatesh Nayak, in February 2018, seeking permission to inspect the files, the CIC issued an order on June 5 last, rejecting access to the documents in the larger public interest.
The appeal pertains to the government of Jammu and Kashmir having sought sanction from the Centre for prosecuting the accused in 50 such alleged cases that had occurred between 2001 and 2016. This is an essential requirement under the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, under which the armed forces of the Union operate in J&K.
The Union government had informed the Rajya Sabha in January 2018 that request for sanctioning the prosecutions was refused in 47 cases due to lack of sufficient evidence, prima facie.
Nayak said that the request had come for 50 cases that occurred between 2001-2016, many of them more than 20 years old. He elaborated that while the requests were pending in three cases, the Government had denied sanction to prosecute the accused in 47 cases involving allegations of “murder or killing of civilians" (16 cases), "rape" (2 cases), "death in security operations" (10 cases), "custodial death" (3 cases), " beating or torture" (2 cases), "abduction and death (of the abducted person)" (3 cases), "disappearance" (7 cases), "illegal detention" (1 case) "fake encounter" (1 case) and "theft and molestation" (2 cases).
Under Section 7 of J&K AFSPA "no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred..." by the Act.
In February 2018, Nayak had submitted an application to the Ministry of Defence under the RTI Act seeking copies of the Standard Operating Procedures, criteria and standards of measuring evidence used, designation of the final decision-making authority and inspection of the 47 case files. MoD transferred the RTI application to the Indian Army. Both public authorities denied they held in their custody any of the information described in the RTI application.
The matter escalated to the Central Information Commission in August 2018. The CIC conducted a hearing in February 2020, issued an interim order and reserved the final order to allow for additional submissions to be made after the hearing.
On June 5, the CIC issued its final order permitting access to a copy of the orders issued by MoD refusing sanction to prosecute in each of the 47 cases. The CIC, however, rejected access to the concerned case files in the larger public interest.
“Given the limited jurisdiction of the Commission under the RTI Act, the bench is neither adjudging the merits of the violation of human rights argument of the appellant in relation to the alleged victims or their families nor the conjecture and surmises associated with the denial of prosecution sanction in the 47 cases referred to hereunder. Rather, the facts of the instant case require a dynamic attribution to the meaning of larger public interest within the framework of RTI Act by associating non-disclosure with larger public interest,” the CIC said in its order.
“The commission is in complete agreement with Respondent No 3 (the CPIO and the Army) that disclosure of the elaborate aspects of the Army Operations will impact future operations. The disclosure of operational details will gravely impact the security and strategic preparedness of the armed forces, which by common knowledge, is vital to the state's diaspora,” the CIC further said.
The appellate body said that the other aspect of sensitivity lies in the inevitable vulnerability of this subject matter to speculations cutting across national and international borders. “...perhaps even trial by media that will emanate from such disclosure. As a cumulative effect, these eventualities may further compound the situation of unrest and instigate festering emotions in the state, in addition to the international ramifications... Indisputably, the larger public interest of the state (vis-a-vis its susceptibility to unrest) prevails over that of the alleged victims,” ruled the CIC.
In the light of the disclosures by the union home minister in 2018, Venkatesh Nayak in his application had sought a clear photocopy of all official records containing details of the procedure that is required to be followed by the home ministry in dealing with pleas for granting sanction for prosecution including channels of supervision over and accountability of such decision making procedure. He had also sought a clear photocopy of all official records/documents containing the norms, criteria and standards that are required to be applied for assessing the evidence submitted as well as details of the rank or designation of the officer authorized to make a final decision on pleas for sanctioning prosecution of defence personnel under AFSPA.
He had also sought a clear photocopy of the communication denying sanction for prosecution in the concerned cases and details of every file including all papers, correspondence, file notings and emails relating to the denial of sanction for prosecution.
Nayak pointed out that “in its final decision the CIC did not rule on the prayer included in the Appellant's additional submission that it may call for and examine the 47 case files before making a determination regarding the applicability of Section 8(1)(a) of the RTI Act and the public interest override contained in Section 8(2) of the Act.”



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