26/11 attack reports accessed from M’shtra legislature: MHA denied access

By Venkatesh Nayak*
Next Monday (November 26, 2018), marks the completion of a decade since a group of armed militants launched attacks at multiple places in Mumbai in 2008. On this occasion, I am placing in the public domain, two reports obtained through RTI — one from an inquiry held by Government-appointed Committee and the other the action taken by the Government on the Committee’s findings and recommendations.
According to available estimates, at least 164 people including police personnel and NSG commandos died and more than 300 were injured in the attacks, engineered to strike terror in the hearts of the citizenry. The attacks began on the night of 26/11 and ended on 28/11. Ajmal Kasab, the only perpetrator who was captured alive, was executed in November 2012, at the end of a multi-stage judicial process. A plethora of facts and evidence emerged during this process showing their linkages with a neighbouring country.
Within a month of the attacks, the Government of Maharashtra set up a High Level Commission of Enquiry (HLEC) headed by former Governor of Arunachal Pradesh RD Pradhan. V Balachandran, former Special Secretary, Cabinet Secretariat, who served in the Mumbai-cadre of the Indian Police Service, was the other member of the HLEC. The Committee was given the following terms of reference:
“1) (Lapses) to act on intelligence inputs provided by the Central Intelligence Agencies;
2) (Lapses) to promptly act or react to the various terrorist attacks perpetrated on 26/11 in Mumbai in order to save lives and safeguard property; and
3) (The Committee) to make appropriate recommendations to deal with such acts in future” (excerpted from the HLEC Report).
After conducting its inquiry over a year-long period, the HLEC handed over its report along with a slew of recommendations to the State Government. A few days later, the Maharashtra government tabled this report along with an Action to be Taken Report (ATB Report) in Marathi in the State Legislature.
While several media reports about some of the findings of the HLEC and its recommendations have been published since, this report itself is not easily accessible in the public domain. A Google Search throws up an MSWord File which purports to be a copy of this report without any attribution to the source.
I am placing the HLEC’s report and the State Government’s ATB report obtained under the RTI Act, in the public domain for the use of researchers, mediapersons and advocates of stronger systems for internal security.

The RTI Intervention with the Central Government

In May 2017, I filed a request under The Right to Information Act, 2005 with the Union Ministry of Home Affairs (MHA) seeking the following information:
“1) A clear photocopy of the Report of the High Level Enquiry Committee (HLEC) on 26/11 appointed by the Government of Maharashtra in December 2008, as received by your public authority from that Government, along with Annexures, if any (please note, the underlined phrase above is the official title of the report);
2) The exact date on which the said Report of the HLEC was received in your public authority;
3) A clear photocopy of all correspondence conducted by your public authority with the Government of Maharashtra in relation to the said Report of the HLEC, till date; and
4) A clear photocopy of all file notings generated in your public authority in relation to the said Report of the HLEC, till date.”
Initially, I elected to request this information from the Central Government as I expected the State Government to reject access to these reports. As I am based in Delhi, approaching the Central Information Commission in the event of a refusal from the MHA would have been easier than moving the State Information Commission based in Mumbai. I must admit, my assumption was proved wrong.
The MHA’s Central Public Information (CPIO) rejected the request stating that the information was “classified” and therefore covered by Section 8(1)(a) of the RTI Act.
Readers will recognise that this clause contains at least seven grounds for refusing access to information and a document’s “classified” nature is not one of them. Upon receipt of my first appeal, the MHA’s First Appellate Authority directed the CPIO to re-examine the issue in light of my arguments.
In my first appeal, I had primarily argued that as the HLEC’s report had been tabled in the Maharashtra State Legislature, it could not be withheld from any citizen as per the proviso underlying Section 8(1) of the RTI Act. In summary, this proviso contains the principle that information which cannot be denied to Parliament or a State Legislature cannot be denied to a citizen. I know, some readers will dispute the applicability of this proviso to all 10 exemptions under Section 8(1) of the RTI Act, but that is a debate which remains to be resolved by the Hon’ble Supreme Court of India.
Even after the first appeal, the MHA’s CPIO reiterated his decision that Section 8(1)(a) of the RTI Act was applicable to the HLEC and ATB reports. Interestingly, he admitted that there was no correspondence with the State Government at all after receipt of the reports on the subject matter. I find this difficult to believe.
So, rather than waste time filing a second appeal before the CIC, I filed a fresh RTI application with the Secretariat of the Maharashtra Legislative Assembly in December 2017 seeking the following information:
“1) A clear photocopy of the Report of the High Level Enquiry Committee (HLEC) on 26/11 tabled in the Maharashtra Vidhan Sabha in December 2009, along with Annexures, if any (please note, the underlined phrase above is the official title of the report); and
2) A clear photocopy of any action taken report (ATR) of the Government of Maharashtra tabled in the Maharashtra Vidhan Sabha in relation to the report specified at para #1 above, along with Annexures, if any.”
In less than a month, the PIO of the Legislative Assembly Secretariat sent a fee request for INR 411 (less than US$ 6) inclusive of postage charges and supplied the entire information on receipt of the payment.
I am not an expert on matters of internal security, intelligence gathering and anti-terror operations. So I am not making any comments on the contents of the HLEC’s report or the ATB report. As the State Government’s ATB Report is in Marathi, we have prepared an unofficial translation in English. I thank my former colleague at CHRI, Navaz Kotwal for attempting this unofficial translation.
The last page of the ATB report is a list of arms, ammunition and other equipment procured by the State Government between 2004-2009 to counter the HLEC’s findings about shortages. As this table contains several technical terms of materials purchased, we have not attempted a translation. Readers are requested to refer to the original document. We have tried to provide as accurate a translation as possible to the best of our ability. In case of any confusion between the Marathi original of the ATB Report and the unofficial translation, the latter prevails.
The purpose of placing these reports in the public domain is to enable researchers, mediapersons and advocates of better internal security systems to study them and examine the conclusions, recommendations and the actions that the Government of Maharashtra assured to take. Key portions of the State Government’s ATB Report are highlighted in yellow to help readers identify possible RTI interventions to ascertain the progress made in the implementation of the State Government’s assurances.

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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi