[What was finally sent to Mr Habibullah and the other ICs]
Dear Mr Habibullah
(cc: all Central Information Commissioners, for information as it
involves contempt of court
in WP(C) 7604/2009 in Delhi High Court)
I am writing this letter to you in your private capacity, as I am
given to understand that you have joined the World Bank w.e.f 01 July
2010.
[source http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:22634909~menuPK:34463~pagePK:34370~piPK:34424~theSitePK:4607,00.html
]
I am shocked that you have passed an order in the case of one Dr. Raja
Muzaffar Bhat versus Border Security Force
[http://www.rti.india.gov.in/cic_decisions/CIC_WB_C_2010_000155_M_37194.pdf]
directing that information is to be supplied by Armed Forces to
persons from J&K. It is pertinent that your decision was delivered on
02-July-2010 and was on a direct email complaint to you sent from J&K
and received on 04-April-2010.
I draw your attention to section 1(2) of the RTI Act. The RTI Act
"extends to the whole of India except the State of Jammu and Kashmir."
As such I submit that Dr. Bhat, despite the fact that he is a citizen
of India, as a resident of J&K is barred from using the RTI Act 2005.
Neither is the BSF required to supply information outside the
jurisdiction to which the RTI Act applies. Conversely Indian citizens
not resident in J&K are barred from using the J&K RTI Act or accessing
information under it, as you well know.
It is also true that since there is no extra-territorial scope
explicitly mentioned in RTI Act, you cannot direct a Central Govt
functionary to provide information to persons located in J&K. The
consequence of such an interpretation would be that persons from the
Pakistani or Chinese controlled portions of J&K would similarly apply
in RTI against "human right violations" of Indian Army, and being
within what India cannot deny as part of J&K must be similarly given
information.
It is also pertinent that the person concerning whom information was
sought (Mohd Ashraf Yattoo) was an employee of the J&K State Govt to
whom the RTI Act 2005 does not extend and was also presumably resident
in J&K.
The history of Dr Bhat's RTI travails in J&K are available on the CIC
website [http://cic.gov.in/CIC-Articles/rti_act_in_jandk.htm] It is
noteworthy from this that Dr Bhat is relying on a letter from you to
him conveying that CIC has jurisdiction over Central government
organisations in J&K. The reasoning for his, however, is not in public domain.
If my information concerning the status of your present assignment
with World Bank is incorrect, and you are still discharging your
duties as Chief Information Commissioner of India (excluding J&K), I
request you to kindly immediately set up a Full Bench, ie. each and
every member of the body defined in 12(1) of RTI Act, to review this
decision on such an important question of law. I am also circulating
this email to all other Information Commissioners for information
considering the question/s of law involved and previous decisions of
this Commission
[http://cic.gov.in/CIC-Orders/LS-05102009-05.pdf],
[http://cic.gov.in/CIC-Orders/LS-08102009-10.pdf]
[http://cic.gov.in/CIC-Orders/Decision_05042007_05.pdf]
[http://www.cic.gov.in/CIC-PublicViews/jk1_inf.htm] etc.
There is also a stay order concerning part of this from the Delhi High
Court in WP(C) 7604/2009 which is still pending.
On the last occasion on which I sent you such an email seeking review
of your decision, you ignored it, and the Delhi High Court upheld my
view with considerable force. I request you to reconsider this
decision too considering the national interest and the CONTEMPT OF
COURT involved in your order especially since the next date of the
court is on 6.July.2010 when the court will consider this issue based
on affidavit of DoPT. However, the court is not considering the aspect
of whether persons in J&K can apply for information located in India.
Yours sincerely
Sarbajit Roy
B-59 Defence Colony
New Delhi-110024
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