Fake encounter: Will take ex parte decision, CIC warns

In a stern warning to the Home Ministry, the Chief Information Commission has said it will take an "ex parte" decision, on the disclosure of information related to a CRPF Inspector General's report alleging a fake encounter in Assam, if its official remains absent on the next hearing.

Information Commissioner Yashovardhan Azad has noted in his order that three queries -- action initiated on the report, copy of the report and whether an inquiry is going on against IG CRPF Rajnish Rai for his report pertain to the domain of the Union Home Ministry.

Rajnish Rai, a 1992-batch IPS officer of Gujarat cadre, had filed a report last year with the CRPF top brass chronicling how a joint team of the Army, paramilitary and Assam Police had conducted the encounter on March 29-30, 2017 in Simlaguri area of Chirang district and killed what they called were two insurgents of the banned group NDFB (S) in a fake encounter.

The CRPF had refused to share any information related to the report and related issues to a journalist, who had sought the details through an RTI application, saying it is an exempted from the transparency law.

The force was directed to provide information held by it as the Information Commissioner noted that the appellant was able to make "prima facie" case for disclosure of information as fake encounter was a human rights violation which is not covered under the exemption given to the CRPF.

"The expression 'allegations of corruption and human rights violations' do not cast a burden upon the information seeker to establish the instance of actual corruption or human rights violation beyond reasonable doubt. 'Allegation' has to be interpreted purposely in line with the Act," Azad noted.

He said the information about two points--whether Rai sent the report and when was this report received--should be disclosed by the CRPF as neither does its come under blanket exemption given to the force nor any other exemption clauses of the RTI Act.

Azad, however, noted remaining three points held by the home ministry may have a national security angle as the area in which the alleged encounter took places is covered under the Armed Forces Special Powers Act and may attract Section 8(1)(a) of RTI Act for the information held by the MHA.

The three points of the information sought were held by the Home Ministry for which the CPIO of the Home Ministry was asked to present its case before the commission during the hearing as to how clause of national security would apply in the case to withhold information.

The Home Ministry CPIO chose not to present himself for hearing on two occasions-- March 23, 2018 and May 28, 2018.

"In view of the absence of PIO, MHA in course of hearing, a final opportunity of hearing is granted to MHA. PIO, MHA to remain present with complete records of the case and report authored by Mr. Rajnish Rai under question," Azad, himself a former Special Director of the Intelligence Bureau, said in his order.

He said the PIO is at liberty to file submission clearly bringing out a reply as against each of the remaining unreplied queries of the RTI application.

"It is clarified that ex-parte decision shall be taken if the PIO, Police I Division, MHA remains absent on next date of hearing," he said.

Rai, in his 13-page report, alleged that information about the incident and FIR filed by the joint squad of forces present a "fictitious account" of the operation to "conceal pre-planned murders of two persons in custody and present it as some brave act of professional achievement".