Govt officials to justify denial of information about Aarogya Setu in secret hearing before CIC #SaveOurPrivacy

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Tl;dr

Last week, we sent a legal notice to the Central Information Commission on behalf of RTI activist and independent journalist, Saurav Das. The legal notice challenges the CIC's refusal to let Mr. Das attend the show cause hearing in his complaint which seeks action against government officials who claim to have no information about the creation of the Aarogya Setu app . The show cause hearing is scheduled for November 24, 2020 i.e. tomorrow and government officials from MeitY, NeGD and NIC have been summoned to explain why they should not be penalized under the RTI Act for obstructing access to information by providing evasive replies. Denying a complainant the right to attend proceedings in his own case is a gross violation of principles of natural justice and such actions go against the letter and spirit of the RTI Act.

Background

On August 01, 2020, RTI activist and independent journalist, Saurav Das filed RTIs with the Ministry of Electronics & Information Technology (MeitY) and its National E-Governance Division (NeGD) seeking information about the creation of the Aarogya Setu app. The RTI applications sought a copy of the entire file relating to Aarogya Setu which would contain information about the origin of the proposal, people and government departments involved, correspondence between private sector executives and government officials, file notings, minutes of meetings etc.

On September 10, 2020, Mr. Das filed a complaint before the Central Information Commission (CIC) because the public information officers of MeitY and NeGD failed to provide any meaningful reply to his RTI applications. Prior to this, the National Informatics Centre (NIC) had also stated that it does not have any information about Aarogya Setu. An urgent hearing was held before the CIC on October 22, 2020 because the Aarogya Setu app could affect the privacy of millions of Indians during the COVID-19 pandemic and irreversible harm would be caused if the usual wait time of 2 years was insisted upon.

During this hearing on October 22, 2020, the CIC heard Mr. Das's submissions about the conduct of government officials who were providing evasive responses about Aarogya Setu to frustrate RTI applicants. When questioned by the CIC, public information officers from MeitY, NeGD and NIC could not explain which government department held all information related to creation of Aarogya Setu. In its interim order, the CIC held that denial of information by government authorities in such manner could not be accepted and while files may move between departments, "a citizen cannot go round in circles to find out the custodian."

Violation of principles of natural justice

The interim order issued by the CIC directed public information officers from MeitY, NeGD and NIC to appear for a show cause hearing on November 24, 2020 to explain why penalty under Section 20 of the RTI Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply. The CIC also directed the public information officers to send copies of all documents they intend to rely upon during the hearing at least five days in advance.

Despite multiple requests, the CIC has denied the complainant, Mr. Das permission to attend the show cause hearing scheduled on November 24, 2020 and he has not been provided access to the documents being submitted by government officials either.  In response to his requests, the Registry has merely stated  that the show cause hearing is a “matter between the Commission and the respondents and the presence of the complainant is not required.”  Mr. Das has not been provided the video conferencing details for the show cause hearing, and was instead told that a copy of the order issued by the CIC would be shared with him after the show cause hearing was over. However, the order issued by the CIC may not reflect the entirety of the submissions made by government officials before it, and there would be no way for Mr. Das to reply to any contentions taken in real time.

Denying a complainant the right to attend proceedings in his own case is a gross violation of principles of natural justice and such actions go against the letter and spirit of the RTI Act. Furthermore, Mr. Das has not been provided access to the material being submitted by government officials to the CIC, which has severely hampered his ability to prosecute his complaint. Unless he is provided access to the written and oral submissions made by the government officials, he cannot ascertain the veracity of their justifications or rebut their claims by producing contrary evidence.

On November 19, 2020, we sent a legal notice to the CIC on behalf of Mr. Das which emphasized that the RTI Act 2005 and the RTI Rules 2012 do not contain any provision which would support the Registry's stance. In fact, Rule 12 of the RTI Rules 2012 actually requires the CIC to provide a hearing to appellants through video conferencing. The legal notice further notes that while undertaking any kind of quasi-judicial action or administrative action with civil consequences, authorities must comply with principles of natural justice and provide the aggrieved person access to relevant material and a meaningful opportunity to be heard.

In view of the above, the legal notice seeks immediate course correction by the CIC and raises the following three demands:

  1. Allow Mr. Das to attend the show cause hearing scheduled on 24 November 2020 by sharing venue details for the video conferencing or the video conferencing link.
  2. Provide Mr. Das access to all written material submitted by government officials to the CIC in relation to his complaint and the show-cause notice issued by the CIC.
  3. Refrain from taking any final decision about Mr. Das’s complaint without providing him an opportunity to be heard.

RTI activist, Saurav Das's view

IFF was able to assist Mr. Das with this legal notice and here is what he had to say about this headline grabbing case which has implications for the privacy of millions of Indian citizens.

“In any democracy if the makers of a heavily marketed government app are unknown, it would cause a huge uproar. The same happened in India when the CIC lambasted the central govt for failing to provide me details about the making of this app. Since then, the NIC and Ministry have been submitting information to the CIC in response to the show cause notice in my case. However, it has been wrapped in secrecy. So much so that even I am not being allowed to witness my own case. It is extremely important that the Appellant or complainant is allowed to witness his own case proceedings to ensure that the concerned officers do not mislead the Commission into believing something that may not be entirely true. The right to rebut their points is my legal right and will only help the Commission reach a fair decision. But a failure to do so is nothing short of a violation of principles of natural justice and is adverse to my case. I have been told this is their normal way of operating. I am shocked that nobody has challenged this arbitrary, illegal, opaque system of hearing, ironically, at the transparency commission. This needs to change now.”

Important Documents

  1. Legal Notice sent by Saurav Das to CIC (link)
  2. Interim Order dated 26.10.2020 issued by CIC (link)