It is a human right of person accused of sexual harassment to get info to defend himself
Balkrishna Porwal vs PIO, Department of Posts
Central Information Commission
About/from the judgment:
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.
“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.
“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.
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