DHC directs CIC to decide IFF’s appeals within 8 weeks


tl;dr

We filed six RTI applications in December 2018 seeking statistical data regarding the surveillance orders under Section 69 of the Information Technology Act, 2000. The information was, at first, denied on grounds of national security. Thereafter, on appeal, when the matter was remanded back, the information was denied on a new ground that records were destroyed as per ‘extant’ provisions (without providing the provision). We appealed this order in August 2021 before the Chief Information Commission (‘CIC’) but we did not get a hearing because of heavy pendency. We approached the Delhi High Court to expedite the process. On December 2nd, 2021, Justice Yashwant Varma of the Delhi High Court directed CIC to decide our appeals within 8 weeks. Sr. Advocate Trideep Pais appeared on behalf of the Petitioner.

Background

Six RTI Applications were filed by us in 2018 seeking information from the MHA on the total number of electronic surveillance orders that were rejected at first instance by the information officer - i.e. the CPIO, MHA citing reasons related to national security.

This was affirmed in the first appeal by the appellate authority - i.e. the FAA, but, on the second appeal, which was heard for the first time after two years of filing, the Central Information Commission (CIC) held that the information sought could not be rejected on grounds of national security and remanded the matter back to the FAA for re-examination.

Surprisingly, when issues were re-examined by the FAA, the CPIO made a fresh claim for the first time: the information sought was no longer available since records were destroyed every six months, and this was accepted without question by the FAA in its revised order (‘FAA Order’)!

We filed another second appeal in August 2021 before the CIC, and then two applications for urgent listing, but the CIC has not responded. We were then forced to file a writ petition before the Delhi High Court. You can read more about the petition, and the first hearing here and here.

Proceedings before the Delhi High Court

On November 12th, 2021, Justice Yashwant Varma of the Delhi High Court directed the Counsel for the Respondents to take instructions from the CIC by December 2nd, 2021, regarding the time frame within which the pending second appeal can be decided.

On 2nd December 2021, the matter was listed for hearing. At the start of the hearing, the counsel for the CIC submitted that there was massive pendency before the CIC because of which our second appeals were not taken up. At this juncture, Sr. Advocate Trideep Pais appeared on behalf of the Petitioner and submitted that CIC ought to be directed to decide all the prayers raised in the writ petition, which are -

  1. Set aside the order of the first appellate authority;
  2. Declare that destruction of information during the pendency of RTI proceedings was illegal;
  3. Direct the CPIO to provide the information sought by us in the six RTI Applications regarding Electronic Surveillance, or to provide similar information for the time period for which information is available with the MHA; and
  4. Frame appropriate guidelines for the prevention of destruction and adequate preservation of information sought in RTI proceedings during their pendency.

Mr. Pais also asked the Court to permit the petitioners to file additional documents before the CIC. After hearing all counsels, the Delhi High Court directed CIC to decide our appeals, and all the prayers raised in the writ petition within 8 weeks. Delhi High Court also permitted us to file additional documents before the CIC.

We are grateful to Sr Adv Trideep Pais for leading the matter and appearing on our behalf. Mr. Pais was assisted by our team of lawyers who drafted the writ petition, which includes Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Anandita Mishra, Krishnesh Bapat, and Natasha Maheshwari.

The information sought by us on electronic surveillance affects every citizen’s right to privacy and must be made available in the public domain for an effective discourse around the issue. It is only through continued discourse that the law will progress in sync with technology. We have pursued this information for 3 years before 4 different forums and will continue to do so.

  1. Copy of the Writ Petition in “Apar Gupta v CPIO, MHA & Ors.” (link)
  2. Previous blogpost titled “The Delhi High Court directs the CIC to provide a time frame within which our second appeal for information on surveillance orders will be decided” (link)
  3. Previous blogpost titled “IFF files a Writ Petition against MHA’s refusal to provide information on electronic surveillance orders issued under the IT Act” (link)
  4. Previous blogpost titled ““Information sought is not available”: MHA claims to have destroyed all records when asked total number of Surveillance orders” (link)
  5. Previous blogpost titled “IFF keeps pushing against secrecy in surveillance. CIC orders MHA to adjudicate on our request for transparency” (link)
  6. Previous blogpost “We won’t give up! IFF approaches CIC against MHA’s refusal to disclose surveillance figures.” dated 14th May, 2019 (link)
  7. Previous blogpost titled “TOP SECRET: MHA Refuses to reveal total number of snooping requests” (link)