19 Right to Information in India

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. Supreme Court on the Right to Information

4. Right to Information Act, 2005 4.1 Provisions under the Act

4.1 Exemptions

4.2 Third-party Information

5. Conclusion

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to information;
• To help the students understand the manner in which the right to information has been codified by the Right to Information Act, 2005;
• To give the students an overview of the Right to Information Act and the manner of its functioning.

2. Introduction

Perhaps the most significant Act of Parliament in recent times was the Right to Information Act, 2005. Following a sustained movement by civil society organizations such as National Campaign for People’s Right to Information, the Government of the day decided to empower India’s citizens with the Right to Information. This module will first give the students a brief overview of Supreme Court judgments on the right to information. The module will then focus on the Right to Information (RTI) Act, 2005 and its working.

3. Supreme Court on the Right to Information

The Supreme Court has, in many instances upheld the right to information as an integral part of the proper functioning of a democracy and as a fundamental right under Part III of the Constitution of India. The right to information is read into Article 19(1)(a) of the constitution which is broadened to include not only the right to freedom of speech and expression but also the right to access of information.

In Secretary, Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal the Supreme Court summarised the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2) and held “he freedom of speech and expression includes right to acquire information and to disseminate it.”

In State of Uttar Pradesh v. Raj Narain with regard to the importance of freedom of information the court held that:

“…in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”

In S.P. Gupta v. Union Of India the court held “The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands”

In People’s Union for Civil Liberties v. Union of India, the court also held that since all fundamental rights under part III are subject to reasonable restriction, the right to information must also be read in a way to embody the same.

The Right to Information (RTI) Act was enacted with these basic principles in mind.

4. Right to Information (RTI) Act, 2005

The Right to Information Act was passed by Parliament in May 2005 and signed by the President in June 2005, with the entire Act coming into force in October 2005. Under the Act, all Indian citizens have a right to ask for information not only from the Central Government, but also from public authorities under the jurisdiction of the states. This includes local level bodies (panchayats). The Act covers all public authorities set up by the Constitution or statute, as well as bodies controlled or substantially financed by the Government or non-government organizations which are substantially funded by the Government. Citizens can not only request to inspect or copy information, but the Act also allows them to make an application to inspect public works and take samples1.

4.1 Provisions under the Act

Section 2(f) defines the right to information as “the right to access information held by or under the control of any Public Authority. It includes the right to:

• inspection of work, documents or records
• taking notes, extracts or certified copies of documents or records
• taking certified samples of material
• obtaining information – stored in a computer or in any other device – in the form of diskettes, floppies, tapes, video cassettes or in any form electronic mode or through print outs.”

Information under the Act is any material in any form. Section 2(f) of the Act defines “information” as any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

There is no prescribed format of application for seeking information. The application can be made on plain paper. The applicant should mention the address at which the information is required to be sent. The information seeker is not required to give reasons for seeking information.

Public authorities have to designate some of its officers as Public Information Officers. They are responsible to give information to a person who seeks information under the RTI Act. Each public authority in turn has a Central Public Information Officer (CPIO).

A citizen who desires to seek some information from a public authority is required to send, along with the application, a demand draft or a bankers cheque or an Indian Postal Order of Rs.10/- (Rupees ten), payable to the Accounts Officer of the public authority as fee prescribed for seeking information. The applicant may also be required to pay further fee towards the cost of providing the information, details of which shall be intimated to the applicant by the Public Information Officer as prescribed by the Right to Information Rules, 2012.

For inspection of records, the public authority shall charge no fee for the first hour. But a fee of rupees five (Rs.5/-) for each subsequent hour (or fraction thereof) shall be charged. If the applicant belongs to the below poverty line (BPL) category, he is not required to pay any fee. However, he should submit a proof in support of his claim as belonging to the below poverty line category.

Section 12 of the RTI Act, 2005 constitutes a Central Information Commission, headed by a Chief Information Commissioner, and Section 15 constitutes State Information Commissions. An applicant whose application has been delayed or rejected by a public authority can appeal to the first appellate authority, who is an officer in the public authority senior in rank into the Central Public Information Officer (CPIO).

If the first appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Information Commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.

4.2 Exemptions

The Act provides for exemptions from disclosure. Exemptions under the RTI Act can be divided into two types:

• Absolute exemptions- these are exemptions which are not subject to the public interest test. Section 9 is the only absolute exemption.
• Qualified exemptions- exemptions which are subject to public interest test. All the exemptions under the section 8(1) are qualified exemptions. In the case of these exemptions the Public Authority must consider whether there is greater public interest in disclosing the information or withholding the information.

Under Section 8 (1), information that falls under or relates to the following categories need not be disclosed to the public:

• information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
• information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
• information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
• 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;
• information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
• information received in confidence from foreign Government;
• 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;
• information which would impede the process of investigation or apprehension or prosecution of offenders;
• cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Further information protected under the Official Secrets Act, 1923 is also exempt except in cases where public interest in disclosure outweighs the harm to the protected interests.

Additionally under Section 9 the Public Information Officer or a State Public Information Officer, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.

However in cases where information which is exempt from disclosure forms the part of a record which does not contain any information which is exempt from disclosure under the Act and such information can be reasonably severed from any part that contains exempt information the information may be provided after removing the exempt part. In such cases the Central Public Information Officer or State Public Information Officer shall give a notice to the applicant, informing them that only part of the record requested, after severance of the record containing information which is exempt.

In Mangla Ram Jat vs. PIO, Banaras Hindu University the Commission explained its role, ambit and scope of exemptions in the context of the RTI Act:

“Creating new exemptions by the adjudicating authorities will go against the spirit of the Act. Under this Act, providing information is the rule and denial an exception. Any attempt to constrict or deny information to the Sovereign Citizen of India without the explicit sanction of the law will be going against rule of law.”

They also took into account the fact that right to information was read into Article 19(1)(a) as a fundamental right of all citizens. Therefore, the Commission held that it had no authority to import new exemptions and in the process curtail the Fundamental Right to Information of the citizens.

The public authority which denies information under one of these exceptions must provide reasons as to why the information falls under such and how the provisions of the RTI apply to that information. In Dhananjay Tripathi v. Banaras Hindu University the applicant had applied for information relating to the treatment and subsequent death of a student in the University hospital due to alleged negligence of the doctors attending to him.

The appellant was, however, denied the information by the PIO of the University saying that the information sought could not be provided under Section 8(1)(g) of the RTI Act. No further reasons as to why the information sought could not be provided was given. The Commission held that quoting the provisions of Section 8(1) of the RTI Act to deny the information without giving any justification or grounds as to how these provisions are applicable is simply not acceptable, and clearly amounted to malafide denial of legitimate information.

The public authority must provide reasons for rejecting the particular application. The Commission further held that not providing the reasons of how the application for information was rejected according to a particular provision of the Act would attract penalties under Section 20(1) of the Act.

Similarly in G.S. Gangadharappa v. Senior Personnel Officer the Commission held that denial of information has to be only on the basis of the exemptions under Section 8(1). It was necessary to carefully explain the reasons of how any of the exemptions apply, when a PIO wished to deny information on the basis of the exemptions. Merely quoting the Subsection of Section 8 would not be adequate. Giving information is the rule and denial the exception. And in the absence of any reasoning, the exemption under Section 8(1) would be held to have been applied without any basis.

4.3 Third-party Information

Under the Act a “third party” is defined as a person other than the citizen making the request for information and includes a public authority.

With regard to disclosure of any information or record, or part thereof on a request made under the Act, which relates to information supplied by a third party, the Public Information Officer or State Public Information Officer, should within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Public Information Officer intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information .

The RTI Act however does not give the third party an absolute right to reject disclosure of information pertaining to them. Under the Act, except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

5. Conclusion

The basic object of the Right to Information Act is to empower the citizens, to promote transparency and accountability in the working of the Government, to contain corruption, and to enhance people’s participation in democratic process thereby making our democracy work for the people in a real sense. This module has demonstrated how this objective has to be balanced with the consequences of disclosure of information that might be prejudicially to the national interest or is of a privileged or confidential nature. While the right to information is by no means absolute, the Central Information Commission has emphatically stated that disclosure of information is the rule, and denial the exception. It would not be an exaggeration to say that the RTI Act is the most significant legislative instrument in modern democratic India.