[HumJanenge] Challenge to the Vigilance Notification rejected , rule discharged by High Court Allahabad

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 63607 of 2010
Petitioner :- Saleem Baig
Respondent :- State Of U.P. And Another
Petitioner Counsel :- D.K. Tiwari
Respondent Counsel :- C.S.C.

Hon'ble Ferdino Inacio Rebello,Chief Justice
Hon'ble Amreshwar Pratap Sahi,J.
Rule. Heard forthwith.
Considering the issue of law involved in the present writ petition, it is not necessary to call upon the State to file its counter.
The writ petitioner has come to this Court challenging the notification dated September 22, 2010, whereby the Uttar Pradesh Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965 is kept out of the purview of the provisions of the Right to Information Act, 2005 (hereinafter referred to as 'the Act, 2005'). The writ petitioner, by means of the present writ petition, in his relief clause has sought to quash this notification by a writ of certiorari with further consequential reliefs.
It is the case of the writ petitioner that the impugned notification issued by the State Government is against the constitutional provisions as well as the intention of the legislature while enacting the Right to Information Act, 2005. Section 24 of the Right to Information Act,2005 is relevant for deciding the present controversy, which reads as follows:-
"24. Act not to apply to certain organizations.--(1) 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:
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.
(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organization established by that Government or omitting therefrom any organization already specified therein and on the publication of such notification, such organization shall be deemed to be included in or, as the case may be, omitted from the Schedule.
(3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.
(4) Nothing contained in this Act shall apply to such intelligence and security organizations, being organizations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
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 State 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.
(5) Every notification issued under sub-section (4) shall be laid before the State Legislature."
A bare reading of Section 24 (4) of the Act, 2005 would show that it is open to the State Government to notify the vigilance and security organizations to fall outside the purview of the provisions of the Act, 2005. The first proviso of sub-section (4) of Section 24 clarifies that even if such notification is issued, the allegations of corruption and human rights violations will not be excluded. The second proviso thereof, further clarifies that these informations will only be provided after the approval of the State Information Commission insofar as corruption and human rights violations are concerned.
The U.P. Vigilance Establishment has been constituted under the U.P. Vigilance Establishment Act, 1965. As the Act, 1965 itself shows, it is a special police force established for the investigation of offences notified under Section 3 of the said Act. The offences to be investigated under Section 3 are such as has been notified by the State Government.
The preamble to the impugned notification itself shows that the object of the notification is that the U.P. Vigilance Establishment has been formed and is functioning to collect intelligence, investigate criminal offences and file chargesheet against the accused in the appropriate court, requiring top secrecy and precautions. Once that be the case, it cannot be said that the notification is ultra vires to the provisions of Section 24 (4) of the Act, 2005. Challenge, therefore, to the impugned notification, as set out in the writ petition, will have to be rejected.
While dismissing the writ petition, we however, make it clear that as contemplated by the first proviso to sub-section (4) of Section 24 of the Act, 2005, all the information pertaining to corruption cannot be excluded from the provisions of the Act, 2005 and similarly, the information pertaining to the human rights violations also cannot be excluded, but that would be subject to the second proviso of sub-section (4) of Section 24 of the Act, 2005.
Similar issue had also come up for consideration before the Madras High Court in Superintendent of Police, Central Range, Office of the Directorate of Vigilance and Anti-Corruption, Chennai Vs. R. Karthikeyan and another, (Writ Petition Nos.23507 and 23508 of 2009), decided on 12.01.2010.
Accordingly, rule discharged. However, there will be no order as to costs.
Order Date :- 25.10.2010
RKK/-
(F.I. Rebello, CJ) (A.P. Sahi, J)