June 29, 2018

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It Is A Human Right Of Person Accused Of Sexual Harassment To Get Info To Defend Himself, Says CIC; Penalises “Penny-wise” CPIO

Written By Admin on Jun 29, 2018 | June 29, 2018


The Central Information Commission (CIC) has held that it is the human right of a person accused of sexual harassment in his capacity as a citizen and accused under the RTI Act and under the principles of criminal justice, to get all the related information to defend himself in a penal proceedings while imposing a penalty of Rs 25,000 on a Public Information Officer for denying the information to an officer accused of sexual harassment at workplace and recommended disciplinary enquiry be conducted against him.

CIC Madabhushi Sridhar Acharyulu also criticised the CPIO for demanding Rs. 6 for three pages supplied to the appellant by writing a letter, as the CIC said, “The RTI Rules say the CPIO can collect the copying fee at Rs 2 per page but did not authorize him to demand Rs 2 by spending more than that. This reflects at least, the harassing nature of the CPIO, which is surely a sign of malice. The problem of CPIO is the mindset and attitude. It is part of malice.”

“It is the human right of the appellant in his capacity as a citizen and accused under RTI Act and under the principles of criminal justice, to all the related information to defend himself in penal proceedings. The expression ‘human rights’ is defined in Section 2(d) of the Protection of Human Rights Act, 1993. “human rights” means the rights relating to life liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India,” said Acharyulu.

“There are, in fact, two human rights—one, right to defend himself in penal proceedings and second, right to information to prepare for that defence. These two human rights are founded on a) principles of natural justice and due process, b) principles of criminal justice, c) the provisions of SHW Act of 2013, d) the provisions of RTI Act 2005,” he added.

The CIC was hearing an appeal moved by an officer facing an inquiry on a complaint of alleged sexual harassment. He had sought information on 15 points, including copies of Statements of the named individuals obtained by the Internal Complaints Committee (ICC) during the preliminary inquiry and copies of correspondences between an official and the president of the ICC.

While the CPIO denied him the information, three documents were given to the appellant which included a copy of the order by which ICC, Mandsaur, was formed, a copy of order by which a particular member of ICC was placed on superannuation list and a copy of his retirement charge report.

The CPIO also wrote to the appellant to pay Rs. 6 for a page.

To the CIC’s surprise, the appellant was denied the other information by the CPIO citing Section 16 of the Sexual Harassment at Workplace Act, 2013 which is prohibition of publication of information to and by the media about the identity and addresses of aggrieved woman, respondent and witnesses during the conciliation and inquiry proceedings, and action taken etc.

The CIC noted that “the provision does not mean that information could be denied to respondent-accused. Hence denial of information sought by the appellant is in clear breach of all above provisions of SHW Act of 2013”.

The CPIO also invoked exemption clauses 8(1)(d) and (g) of RTI Act to deny the appellant the information, which the CIC said, should have been given as per principles of natural justice, rules of disciplinary inquiry, Act of 2013, Rules made thereunder, official handbook of the Ministry containing guidelines for prevention of Sexual Harassment. The CPIO used exemption clauses under the RTI Act also.

Section 8(1)(d) of RTI Act says; information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

Section 8(1)(g) says: information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.

The first appellate authority also upheld the denial of information.
The appellant moved the CIC saying as a charge-sheeted accused before ICC, the principles of natural justice demand that certified copies of all documents relating to the inquiry report, including copies of the statements of witnesses, should be given to him to facilitate him to substantiate his defence and for the conduct of the inquiry in a fair manner.

How are statement of witnesses a trade secret?
The CIC observed, “The CPIO neither explained nor justified how these clauses could be invoked in this case. He has not applied his mind at all. How the statement of witnesses and other documents relating to sexual harassment complaint could be considered as ‘trade secret’, ‘commercial confidence’ or ‘intellectual property’ of the third party or public authority? This is absolute absurdity.
“The appellant himself gave the names of the four witnesses and asked for their statements of evidence given during inquiry. This information was denied under an excuse that their physical security is threatened. These excuses are laughable and amounts to misuse of law by authority to deny the right to information of the appellant. It also reflects malafide on the part of the CPIO. If this is the way information is denied and accused is not allowed to defend, false allegations will increase and real purpose of Act of 2013 and RTI Act will be totally defeated.”

“The charge of sexual harassment is a serious allegation which if falsely made and proved by suppression of information to the accused, it can ruin the career of the accused, cause permanent and irreparable damage to the reputation and also disturb his domestic life affecting his relations with his wife and children. Society will look him down and people talk badly about him in his absence or some may even insult him openly. As per SHW Act 2013, he would be shifted, and he might even face criminal prosecution under IPC which in our country would span over a decade or more involving huge expenditure and going to courts for several rounds as an accused person. A false allegation can render his life a hell for the accused officer and if innocent, the officer might suffer serious mental torture also. It can destroy a person totally. The due process, principles of natural justice and legal provisions of the SHW Act of 2013 provide him a right to defend himself from allegation of sexual harassment, and the right to information to secure those related documents will strengthen that right”.

Referring to the Supreme Court verdict in Maneka Gandhi v. Union of India in which it was held that right to live under Article 21 is not merely a physical right but includes within its ambit the right to live with human dignity, the CIC said, “An unproven charge of sexual harassment seriously affects the dignity of a person. And not facilitating the procedural rights including right to information/documents that are being used against him will deprive him of a due opportunity to defend himself, which is the human right to free and fair trial that amount to breach of Article 21.”
The CIC also referred to various provisions of the CrPC and also the Sixth Amendment to the US Constitution which provide for an accused to be informed of the nature and causes of accusations and the right to cross-examine while being allowed to put the witness in his defence.

It also referred to another recent judgment of CIC in M Dinesh v PIO, Bureau of Immigration/Intelligence Bureau, wherein it was held that it was a human right of the accused facing inquiry to have complete information.

“By denying the information the appellant was not only harassed by the public authority, but also by the CPIO. While public authority denied him the documents which he was entitled under SHW Act of 2013, the CPIO denied them under RTI Act besides wrongfully invoking Section 8(1) (d) and (g). It is absurd to think that copy of inquiry report and statements of witnesses could be ‘trade secret’, ‘intellectual property’ or of ‘commercial confidence’,” said Acharyulu.
A pennywise CPIO
“The CPIO was penny wise when he demanded Rs 6 to give 3 pages. The CPIO might have spent at least Rs 15 to Rs 100 approximately (taking into account the time, energy, paper, typing or correcting mistakes, which is quite possible, and posting) to write a letter demanding Rs 6. If it is his personal money, no prudent man would spend Rs 100 for collecting Rs 6. Is it not wrongful spending of public money? If this CPIO is demanding money up to Rs 18, by spending Rs 20 to Rs 100 every day hypothetically, what should be the loss of exchequer per year? Even if the appellant positively responds and pays Rs 6 promptly, still the loss would be Rs 94. The RTI Rules say the CPIO can collect the copying fee at Rs 2 per page but do not authorize him to demand Rs 2 by spending more than that. This reflects at least, the harassing nature of the CPIO, which is surely a sign of malice,” said the CPIO.
Read the Order Here
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