chapter-6 right to information and indian...
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CHAPTER-6
RIGHT TO INFORMATION AND INDIAN JUDICIARY
6.1 INTRODUCTION
In the previous chapter we have discussed the analysis of the
Right to Information Act, 2005. We have also seen as to how this
important piece of legislation has provided a vital tool of governance in
the hands of a common man. In this present chapter, an attempt
would be made to discuss in detail the attitude of the judiciary
particularly the Supreme Court, various High Courts and that of
Central Information Commission and State Information Commissions
towards right to information. In this part of the research work, all
important judgments of above mentioned Courts and Commissions
have been critically examined.
The Indian Judicial system is one of the oldest legal systems of
the world. It is part of the inheritance, India received from the british
after more than 200 years of their colonial rule, and the same is
obvious from the many similarities the Indian legal system shares
with the English legal system.1 The framework of the current legal
system has been laid down by the Indian Constitution and the judicial
system derive its powers from it.2 The Constitution of India is the
supreme law of the country, the fountain source of law in the country.
It not only laid the framework of Indian judicial system,3 but also has
defined the fundamental right and duties of the people and directive
principles which are the duties of state.
1 Nathubhai Bhat, Accountability of Judiciary to Bar and Society at Large, 28 Indian Bar Review
163 (2001). 2 Judiciary was a subject of the Constituent Assembly Debates on July 29, 1947. While interalia,
there was debate regarding the independence of judiciary and enshrining a distinct provision for
the same, one does not come across any discussion on making the judiciary accountable to its
citizenry. See Constituent Assembly Debates, Vol.VIII, 218. 3 See generally Constituent Assembly Debates, Vol.VIII, 258.The provisions of appointment of the
Judges to SC and High Courts (Article 124 (2) and Article 217 (1) ) and insulation of the conduct
of the Judges by the enactment of Articles 121 and 211, which provides that the discharge if the
duties by a SC or a High Court judge cannot be discussed in the Parliament or State Legislature
crystallize the concept of judicial independence by making the judiciary insulated from the
political processes of the outside.
369
The institution of judiciary in a democratic setup is perhaps one
of the most important organs as it is entrusted with the great
responsibility of administering justice, one of the core needs of the
citizenry. As the custodian of rights of the citizens of a country, the
judiciary is bestowed with the task of realizing the Constitutional
values to its fullest extent, in furtherance of the vision of the
Constitution makers.4 The Preamble to the Constitution enshrines the
ideals of securing social, economic and political justice to all its
citizens. Justice, failed to be meted out in a fair manner, jeopardizes
the interests of the civil society, vitiating the principle of rule of law.
An independent judiciary can be stated to be the cornerstone of a
democracy.5 It is needless to say that the judiciary and the judicial
decisions, over the years, have shaped the Indian polity to a great
extent. The role played by the judiciary has been pivotal in ensuring a
process of fairness in governance and administration.6 Thus, be it the
pragmatic interpretation of Article 19 or Article 21 or propounding
doctrines of equality, the judicial decisions in India have infiltrated
through every strata of the society.7 Judiciary, as one understands,
is the edifice of a strong democracy as it endeavors not merely to
interpret the black letter of the law but also adopting an activist
stance of creatively interpreting it to suit the needs of the society.8
The office of the robed brethren is based on the great trust reposed by
the citizens who seek recourse to judicial powers to defend their
democratic rights.9
4 R.S. Pathak, Administration of Justice and Public Accountability, 15 Indian Bar Review 213
(1988). 5 It is a part of the basic structure of the Constitution of India: see generally All India Judge‟s
Association v. Union of India (2002) 4 SCC 247 ¶ 24; S.C. Advocates –on- Record v.Union of
India AIR 1994 SC 268, 421; S.P. Gupta v. Union of India AIR 1982 SC 149,197,198; L. Chandra
Kumar v. Union of India (1997) 3 SCC 261,301; Kumar Padma Prasad v. Union of India AIR
1992 SC 1213, 1232. 6 Ibid.
7 Shirley Abrahamson, Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence
64 Ohio State Law Journal 3(2003). 8 As far the facets of Article 21 of the Constitution is concerned, it has been often seen that Judges
have read into the given law in an attempt to widen the scope and achieve the goals of social
justice. The recent judgment of Naz Foundation v. Government of NCT, (2009) 160 DLT 277, too
has been an indicator of the same where sexual orientation has been read into the grounds of “sex”
under Article 15(1) of the Constitution. These are the instances where the interpretation has
demonstrated judicial creativity and has realized the goals of the Constitution. 9 Nathubhai Bhat, Accountability of Judiciary to Bar and Society at Large, 28 Indian Bar Review
163 (2001).
370
The citizens‟ right to know the true facts about the
administration of a country is one of the vital ingredients of a
democratic State. People can play an important role in a democracy
only if it is an open government where there is full access to
information in regard to functioning of government.10 A citizen cannot
achieve knowledge unless he has certain basic freedoms such as
freedom of thought, information, conscience, speech, expression,
locomotion and so on and so forth.11 The freedom of information as
one of the members of the Constituent Assembly said, is one of the
terms around which the greatest and the bitterest of constitutional
struggles have been waged in all countries where liberal constitutional
prevail12. The said freedom is attained at considerable sacrifices and
suffering and ultimately it has come to be incorporated in the various
written Constitutions. It is, therefore, a basic right "Everyone has the
right to freedom of opinion and expression; the right includes freedom
to hold opinions without interference and to seek and receive and
imparts information and ideas through any media and regardless of
frontiers" proclaims as the Universal Declaration of Human Rights
(1948).13 The people of India declared in the Preamble of the
Constitution which they gave unto themselves their resolve to secure
to all citizens liberty of thought and expression.14 This resolve is
reflected in Article (19)(1)(a) which is one of the Articles found in Part
III of the Constitution which enumerates the Fundamental Rights.
These freedoms represent the basic values of life in a civilized society
10
V.R., Krishna Iyer, Freedom of Information 86 (1990). 11
A.B. Srivastava, Right to Information Laws in India 11 (2006). 12
Justice A.H. Saikia, “The Right to Information Act, 2005- An Instrument to Strengthen
Democracy” AIR 2007 (Journal) p. 119. 13
The Universal Declaration of Human Rights, 1948 is a declaration adopted by the United Nations
General Assembly on 10th
december1948 at Palais de Chaillot, Paris. The Declaration arose
directly from the experience of the second world war and represents the first global expression of
rights to which all human beings are inherently entitled. 14
Preamble of the Constitution of India- WE THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a {Sovereign Socialist Secular Democratic Republic} and to secure all its
citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith
and worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the {unity and integrity of the nation};
IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
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and have been given a place of pride in our Constitution15. Our
Constitution does not use the expression 'freedom of information' in
Article 19 but it is declared by the judiciary that it is included in
Article 19(1) (a) which guarantees freedom of speech and expression.
6.2 JUDICIAL INTERPRETATION OF FREEDOM OF SPEECH AND
EXPRESSION
Judiciary is the watchdog and custodian of our Constitution. It
draws the boundaries of the public authority functioning. The primary
object of the judiciary is to provide justice to each and every individual
in the country and put a cap on growing corruption.16
Rights are the interests which are recognized and protected by
law. The sanctity of right enhances if it is adopted by the Constitution
of a country.17 In Indian context, where the common people were
subject of negligence for centuries, constitutional principles are the
only messiahs that can ensure freedom of all sorts.18 Information has
a pivotal role in strengthening public by making them knowledgeable.
Accessing information, however in a developing country like India is a
cumbersome task to be accomplished by majority of less educated and
illiterate citizenry oblivious of its rights.19 Red tapism and
bureaucratic supremacy is highly hesitant in empowering people.
Moreover, the colonial legacy which was copious with policy of secrecy
still haunts the system.20 Here the Constitution of India comes to the
rescue of the „little man‟ by bestowing upon him certain fundamental
rights within Part III. These rights represent the basic values of life in
15
Jyoti Rattan, “Genesis of Right to Information under International and National Laws with Special
Reference to India: A Critical Analysis”, The Indian Journal of Public Administration, Vol.55, No.
3, July-September, 2009, pp. 672-688, at p.687. 16
N. Bhaskara Rao, “Information as a Right”, The Hindu, 25 September 2010, p. 10. 17
Mokta, Mamta and Vivek Jyoti, "The Right to Information Act 2005 as a Potent Weapon in the
Hands of Citizens: Present Status and Issues, Indian Journal of Public Administration, 55: 3 July-
Sept., 2009), pp. 594-608. 18
Monga, Anil and A. Mehta, "Right to information Act, 2005:Key for Effective Implementation",
Indian Journal of Public Administration, LIV: 2 (April-June, 2008), pp. 297-314. 19
Nikhil Dey, A Fight for Right to Know, Yojana, January 2006,. pp. 2-8. 20
Sanjeev Kumar Sharma, "Right to Information Act 2005: A Critique with Governance and
Administrative Reforms Perspective", Indian Journal of Public Administration, 55: 3 (july-Sept.,
2009), pp.481.
372
a civilized society and have been given a place of pride in our
Constitution.21 For many decades, despite the establishment of
parliamentary democracy in India, there was no legal right to
information and our Constitution also does not use the expression
'freedom of information' in Art. 19.22 It was through a creative
interpretation of Article 19(1)(a) of the Constitution that the Supreme
Court carved out a fundamental right to information as being implicit
in the right to free speech and expression.23 This right is of special
importance to the media whose lifeline is information and whose
business it is to communicate information to the electorate so that the
latter may make informed choices.24 These rights cannot be violated
except the procedures laid down by the law, which are in
consonance with spirit of Constitution.25 That is to say, right to
information is implicitly imbibed within the Constitutional framework.
Article 21 enshrine „right to life and a person liberty‟ are compendious
term which include within themselves variety of right and attributes.
Some of them are also found in article 19 and thus have two sources
at the same time.26 However, judiciary in several landmark cases has
expressly held right to information as natural concomitant of Article
19 (1)(a) and Article 21 of Constitution of India, i.e., right to freedom of
speech and expression and right to life and liberty include right to
information. Right to live loses much of its meaning if a citizen's right
to information is denied.27 In the preamble to the Act this has been
21
Palanithurai, G., "Problems and Scope in Handling Right to Information from Grassroots
Perspective", Indian Journal of Public Administration, 55: 3 (July-Sept., 2009), pp. 481. 22
Dhavan, Rajeev, “Information and Democracy in India”, Journal of the Indian Law Institute, Vol.
47, No. 3, July-September 2005, pp. 295-325. 23
Goel, S.L., "Right to Information and Administrative Reforms", Indian Journal of Public
Administration, 53:3(July-Sept., 2007), pp. 548-70. 24
Dhaka, Rajiv S., 'Right to Information Act and Good Governance: Operational Problems and Road
Ahead', Indian Journal of Public Administration, 55: 3 (July-Sept.,2009), 25
Dogra, Bharat, “Right to Information: Hope and Despair”, Economic and Political Weekly, Vol.
32, 1997, pp. 1794-1795. 26
Vidya Subramaniam, “Right to Information is Now a Common Man‟s Instrument”, The Hindu, 15
October 2008, p. 03. 27
Gupta, B. R., “Right to Information: Its Constitutional Validity”, JK Judgements, Vol. 1, Part 2,
February 2005, pp. J-05-11.
373
widely acknowledged as a necessity by way of commitment for creation
of an informed citizenry, to contain corruption and enhance
accountability and transparency in the working of every public
authority.28
One of the earliest cases where the Supreme Court laid
emphasis on the people's right to know was Romesh Thappar v State of
Madras29 In this case, the petitioner had challenged an order issued
by the then Government of Madras under Section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 imposing a ban on the
circulation of the petitioner's journal. Such order of ban was struck
down as violative of the right to freedom of speech and expression
under Article 19(1)(a). Following the trend in Hamdard Dawakhana v.
Union of India,30 the Supreme Court declared right to information to
be part of Article 19 (1) (a) of the Constitution of India. The Apex Court
have played a major role in granting right to information, a
constitutional status via interpretation of Article 19 (1) (a) and
assimilation of the spirit with which framers of the Constitution
dedicated it to the people of India.31
The seeds of right to information were sowed in the landmark
judgment of State of Punjab v. Sodhi Sukhdev Singh32. In this case the
Supreme Court while interpreting Section 123 of Official Secrets Act,
1923 decided this case in favour of State as it was allowed to withhold
documents. But, Justice Subba Rao in his dissenting opinion
observed that at the time when the Indian Evidence Act, 1872 was
passed, the concept of welfare State was not evolved in India and
therefore, the word “affairs of State” used in Section 123 of Indian
Evidence Act, 1872 could not have comprehended the welfare
activities of the State. He further observed that if non disclosure of a
particular State document was in public interest the impartial and
28
Palanithurai, 'Problems and Scope in Handling Right toInformation from Grassroots Perspective',
in Indian Journal of Public Administration, 55: 3 (July-Sept., 2009), pp. 481-503 29
AIR 1950 SC 594. 30
AIR 1960 SC 554. 31
Prashant bhushan, Economic and Political Weekly, (September 12, 2009) VOL XLIV NO.37. 32
AIR 1961 SC 493.
374
uneven dispensation of justice by Court was also in public interest.33
Thus, the final authority to allow or disallow the disclosure of
document lies with the Court after the inspection of the document.
Similarly in the same fashion, the Apex Court in Amar Chand Butail v.
Union of India34 secured freedom of information to citizens on the
basis of public interest doctrine.
Following the trend the Summit Court in Bennett Coleman v
Union of India35, where it held Newsprint Control Order of 1972-1973
issued under the Essential Commodities Act, 1955 to be ultra vires
Article 19 (1) (a) of the Constitution. Ray, CJ in the majority judgment
opined that, “It is indisputable that by freedom of the press is meant
the right of all citizens to speak, publish and express their views. The
freedom of press embodies the right of the people to read.” Here what
is refereed as „right of the people to read‟ refers to the right of the
readers to get the information.
The strongest exposition in this regard came from Supreme
Court in the case of State of U. P. v. Raj Narain36 who emphasized that
in „government of responsibility like ours where all the agents of the
public must be responsible for their conduct, their can be but a few
secrets. The people of this country have a right to know every public
act, everything that is done in a public way by the public
functionaries.” The facts of this case were that Raj Narain who
challenged the validity of Mrs. Gandhi‟s election required disclosure
Blue Books which contained the tour program and security measures
taken for the Prime Minister. Though the disclosure was not allowed,
Mathew, J. held that the people of country were entitled to know the
particulars of every public transaction in all its hearing.
In the similar fashion, the Summit Court in the case of „In
Judges Transfer‟ known as S.P. Gupta v. Union of India37 a seven-
33
Shirley Abrahamson, Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence,
64 Ohio State Law Journal 3 (2003). 34
AIR 1964 SC 1658 35
AIR 1973 SC 106. 36
AIR 1975 SC 885. 37
1981 Supp. SCC 87.
375
Judge Bench of the Supreme Court followed Raj Narain38 case and
observed thus:
"Where a society has chosen to accept democracy as its creedal
faith, it is elementary that the citizens ought to know what their
Government is doing, The citizens have a right to decide by whom and
by what rules they shall be governed and they are entitled to call on
those who govern on their behalf to account for their conduct. No
democratic Government can survive without accountability and the
basic postulate of accountability is that the people should have
information about the functioning of the Government.39 It is only if
people know how Government is functioning that they can fulfill the
role which democracy assigns to them and make democracy a really
effective participatory Democracy.40 This is the new democratic
culture of an open society towards which every liberal democracy is
moving and our country should be no exception. 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. The approach of the court must be to
attenuate the area of secrecy as much as possible consistently with
the requirement of public interest, bearing in mind all the time that
disclosure also serves an important aspect of public interest.41"
38
(1975) 4 SCC 428. 39
While some scholars have recognized fairness and impartiality to be the ends sought to be
achieved by the means of judicial independence (See Shirley Abrahamson, Thorny Issues and
Slippery Slopes: Perspectives on Judicial Independence, 64 Ohio State Law Journal 3 (2003)),
some others have argued that ends are often politicized, i.e., politics does not remain outside the
confines of judiciary but well within it, often shaping the ends it seeks to achieve.(See Stephen
Burbank, What Do We Mean by “Judicial Independence”?, 64 Ohio State Law Journal 323
(2003)). 40
R.S. Pathak, Administration of Justice and Public Accountability, 15 Indian Bar Review 213
(1988). 41
Ibid.
376
Following the trend in Indian Express Newspapers (Born) (P) Ltd.
v. Union of India42 the Apex Court relied on the following decision (Per
Lord Simon of Glaisdale in Attorney General v. Times Newspapers
Ltd.43: (SCC pp. 68586, para 68) "The public interest in freedom of
discussion (of which the freedom of the press is one aspect) stems
from the requirement that members of a democratic society should be
sufficiently informed that they may influence intelligently the
decisions which may affect themselves."The Court concluded:
"Freedom of expression, as learned writers have observed, has four
broad social purposes to serve:
(i) it helps an individual to attain self-fulfillment,
(ii) it assists in the discovery of truth,
(iii) it strengthens the capacity of an individual in participating in
decision-making, and
(iv) it provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social
change All members of society should be able to form their
own beliefs and communicate them freely to others In sum,
the fundamental principle involved here is the people's right
to know.44 Freedom of speech and expression should,
therefore, receive a generous support from all those who
believe in the participation of people in the administration.45
Liberal approach of Apex Court towards the disclosure of
information is discernible in Sheela Barse v. Union of India46 where
court issued directions for release of information to her relating to
under trials kept in different parts of country. Point to be noted here is
that such direction was not issued by invoking Article 19 (1) (a).
Therefore, it can be inferred that a person having proper stand can
42
(1985) I SCC 641. 43
(1973) 3 All ER 54. 44
Avinash Sharma, “Right to Information: A Constitutional Perspective”, Nyayadeep, Vol VIII,
Issue 3 45
Ibid. 46
AIR 1986 SC 1773.
377
seek information from the government. Similarly, the court was
unequivocal of the importance of people‟s participation and upheld
their right to know in Bombay Environmental Action Group v. Pune
Cantonment Board.47
Following the same trend, the Supreme Court in a historic decision
provided the voter‟s right to know the antecedents of the candidates in
Union of India v. Association for Democratic Reforms,48 In this case
scope of Article 19 (1) (a) was widened and it was affirmed that the
right to know of the candidate contesting election to a House of
Parliament or a state legislature or a panchayat or a municipal
corporation is a precondition to the exercise of a citizen‟s right to vote.
Thus people have a constitutional right to know the antecedents of the
candidates contesting election for a post which is utmost importance
in democracy.49
In the similar fashion the Summit Court in Reliance Petrochemicals
Ltd. v. Indian Express Newspapers Bombay (P) Ltd.50 recognized the
right to know as emanating from the right to life. The question which
arose was whether Reliance Petrochemicals Ltd. was entitled to an
injunction against Indian Express which had published an article
questioning the reliability of the formers debenture issue. Justice
Mukherji the learned Judge, observed:
"We must remember that the people it large have a right to know in
order to be able to take part in a participatory development in the
industrial life and democracy. Right to know is a basic right which
citizens of a free country aspire in the broader horizon of the right to
live in this age on our land under Article 21 of our Constitution. That
right has reached new dimensions and urgency. That right puts
47
SLP (Civil) 11291/1986. (13th October, 1986), unreported, but reproduced in A. Rosencranz (et al
ed.), Environmental Law and Policy in India, Cases, Materials and Statutes, p.149(Tripathi
Publication, Bombay, 1991) cited in Avinash Sharma, “Right to Information: A Constitutional
Perspective”, Nyayadeep, Vol VIII, Issue 3. 48
AIR 2002 SC 2112 49
Election Commission of India, Compendium of Instructions, Conduct of Poll and Election
Expenditure available at http://eci.nic.in/eci_main/ElectoralLaws/compendium/vol4.pdf (Last
visited on January 13, 2010). 50
(1988) 4 SCC 592.
378
greater responsibility upon those who take upon themselves the
responsibility to inform.51
In a later judgment, the Supreme Court in Tata Press Ltd. v.
MTNL52 observed while considering the scope of Article 19(1) (a) in the
context of advertising or commercial speech, held that the public has
a right to receive information. The question which arose in that case
was whether advertisements being for commercial gain could avail of
the protection guaranteed under Article 19(1)(a). The Supreme Court
held that advertising as a 'commercial speech' has two facets.
Advertising which is no more than a commercial transaction, is
nonetheless dissemination of information regarding the product
advertised. Public at large is benefited by the information made
available through the advertisements.53 In a democratic economy free
flow of commercial information is indispensable. There cannot be
honest and economical marketing by the public at large without being
educated by the information disseminated through advertisements.54
The economic system in a democracy would be handicapped without
there being freedom of 'commercial speech.' Examined from another,
angle, the public at large has a right to receive the 'commercial
speech'. Article19(1)(a) not only guarantees freedom of speech and
expression, it also protects the rights of an individual to listen, read
and receive the said speech. So far as the economic needs of a citizen
are concerned, their fulfillment has to be guided by the information
disseminated through the advertisements.55 The protection of Article
19(1)(a) is available to the speaker as well as to the recipient of the
speech. The recipient of 'commercial speech' may be having much
deeper interest in the advertisement than the businessman who is
behind the publication. An advertisement giving information regarding
51
Ibid. 52
(1995) 5 SCC 139. 53
Susanta Kumar Mallick, Right to information in India, Stamford Journal of Law Number 3 July
2012. 54
G. Palanithurai, 'Problems and Scope in Handling Right to Information from Grassroots
Perspective', in Indian Journal of Public Administration, 55: 3 (July-Sept., 2009), pp. 481-503. 55
Mishra, Sweta, “Right to Information and Decentralised Governance”, The Indian Journal of
Public Administration, Vol. 55, No. 3, July- September 2009, pp. 689-701.
379
a life-saving drug may be of much more importance to general public
than to the advertiser who may be having purely a trade
consideration56.
In the similar fashion the Supreme Court in Secretary, Ministry of
Information and Broadcasting v. Cricket Association of Bengal57
observed while considering the rights of a person to telecast a sports
event on television through the use of air waves held that the right
under Article 19(1)(a) includes the right to receive and acquire
information and that viewers have the right to be informed adequately
and truthfully. In support of this right, the Court quoted from Article
10 of the European Commission on Human Rights58. The Court held
that although a person seeking to telecast a sports event when he
himself is not participating in the game is not exercising his right to
self-expression, he is seeking to educate and entertain the public
which is part of the freedom of expression. The Court held that the
right of the viewer to be entertained an informed is also, likewise,
integral to the freedom of expression. The Court observed "True
democracy cannot exist unless all citizens have a right to participate
in the affairs of the polity of the country. The right to participate in the
affairs to the country is meaningless unless the citizens are well
informed on all sides of the issues, in respect of which they are called
upon to express their views. One-sided information, disinformation,
misinformation and non- information all equally create an uninformed
citizenry which makes democracy a farce when medium of information
is monopolized either by a partisan central authority or by private
individuals or oligarchic organizations.59 This is particularly a in a
country like ours where about 65 per cent of the population is
illiterate and hardly 1 1/2 per cent of the population has an access to
the print media which is not subject pre-censorship."60
56
Ibid. 57
(1995) 2 SCC 161. 58
Everyone has a right to Freedom of Expression. This right shall include the freedom to hold
opinion and to receive and import information and ideas without interference by public authority
and regardless of frontiers. 59
S. Chadah, 'Right to Information Regime in India: A Critical Appraisal', in Indian Journal of
Public Administration, 50: I (Jan-March, 2006), pp. 1-17 60
Hemanta Joshi, 'Right to Information in India: Towards Transparent Governance and Empowered
Citizenrv", in Madhya Pradesh Journal of Social Sciences, 12: 2 (2007), pp. 97-111.
380
Following the same trend in Dinesh Trivedi v. Union of India61 which
concerned the questions of the disclosure of the Vohra Committee
Report, the Supreme Court once again acknowledged the importance
of open Government in a participative democracy. The Court observed:
"In modern constitutional democracies, it is axiomatic that citizens
have a right to know about the affairs of the Government which,
having been elected by them, seeks to formulate sound policies of
governance aimed at their welfare." It went on to serve that
"democracy expects openness and openness is concomitant of a free
society and the sunlight is a disinfectant".
Though there is no specific provision in the Constitution of India,
which provides for the citizens right to information. However, this
right can be inferred from Article 19(1)(a) which provides freedom of
thought and expression which indirectly includes right to get
information.62
This succinct analysis of the judicial decisions which have played a
major role in granting RTI constitutional status via interpretation of
Article 19 (1) (a) and assimilation of the spirit with which framers of
the Constitution dedicated it to the people of India.63
Article 21 guarantees right to life and personal liberty to citizens.
Right to life is incomplete if the basic human right i.e. right to know is
not included in it. Article 39(1) (b) &(C) provides for adequate means of
livelihood, equitable distribution of material resources of the
community, to check concentration of the wealth and means of
production. All these rights would be remained unfulfilled if right to
information is not guaranteed ahead of these rights64. Taking material
and strength from the above Constitutional provisions the Judiciary
has attempted and secured the right to know for citizens.
61
(1996) 4 SCC 306, 314. 62
Anil Monga and A. Mehta' Right to information Act, 2005: Key for Effective Implemention' in
Indian Journal of Public Administration, vol. LIY,no.2 (2008), April-June, pp. 297-314. 63
RajivDhaka, 'Right to Information Act and Good Governance: Operational Problems and Road
Ahead', in Indian Journal of Public Administration, 55:3 (July-Sept., 2009), pp. 534-61. 64
Bakshi P.M., “A Handbook on Right to Information” Universal Publishers New Delhi.
381
6.3 SUPREME COURT ON RIGHT TO INFORMATION
In Indian democracy, the Supreme Court plays important role of
safeguarding fundamental rights of the citizens which includes
providing fair justice also.65 Justice which is the soul of a democratic
society must be administered without fear or favor. The Supreme
Court of India is the highest court of law, the entire judicial system of
the country is controlled by it.66 The Right to Information Act, 2005,
has affected all wings of the government, be it the judiciary, executive
or legislature. The ambit of the Act is increasing as is evident from the
pro-disclosure judgments that are coming not only from the
Information Commissions, but also from the higher judiciary.67 Slowly
but surely, there is a growing realisation that access to information is
beneficial for one and all in the long run. The present chapter
analyses various landmark decisions relating to important and at
times, controversial issues, related to the RTI law. An attempt shall be
made to discuss some of the rulings on a particular issue and to
indicate the current stance of the Information Commissions and
courts on it. Judiciary can be said to be the backbone of the right to
information in India.68 Time and again it has vehemently supported
the principles of transparency and accountability in all spheres of
governance.69
However, in the recent times even the judiciary has been
embroiled in a controversy pertaining to the issues of disclosure. This
is indicative of conflicts and contradictions coming to the fore after the
access law has actively been enforced.70
The Apex Court in LIC v. Manubhai D. Shah,71 also explained the
65
Article 124 of the Constitution of India provides for establishment and the composition of
Supreme Court. 66
Article 131 to 140 of the Constitution of India deals with the powers of the Supreme Court. 67
S.K. Sarkar, 'Right to Information:Towards Transparecy and Openness'in Splander in the Grass:
Innovations in Administration (Penguin Enterprise, Penguin Books India, Govt. of India, 2008),
pp. 42. 68
RT Nimmer, et al , 'Information as a Commodity: New Imperatives of Commercial Law' in Law
and Contemporary Problems, 55:3(1992), pp. 105. 69
Mander, H and Mohammed Asif, Good Governance Resource Book, Books for Change, India,
2004 70
P. Saxena, 'Public Authority and the RTI' in Economic and Political Weekly, .44:16 (April, 2009),
pp. 13-16. 71
SCC 1992 (3) 641.
382
importance of freedom of speech and expression, and freedom of
information being an integral part of it. Speech is God's gift to
mankind. Through speech a human being conveys his thoughts,
sentiments and feeling to others. Freedom of speech and expression is
thus a natural right which a human being acquires on birth. It is,
therefore, a basic right. The Court emphasized that the freedom of
expression means the right to express ones opinion by word of mouth,
writing, printing, picture or in any other manner. It would thus
include the freedom of communication and the right to propagate or
publish opinion.72
Similarly, following the same trend the Supreme Court in D.K.
Basu v. State of West Bengal,73 held that the detainees have right to
know the charges framed or reasons for arrest, place of arrest, right to
get the relatives informed about the arrest and to have a lawyer of
one‟s own choice. In this famous case the Supreme Court laid down
certain guidelines on the rights of arrested person, Justice A.S. Anand
who delivered the judgment on behalf of the Division Bench
incorporated a few basic rights that encompass the right to
information. The Supreme Court consider it appropriate to issue the
following requirements to be followed in all cases of arrest or detention
till legal provisions are made in that behalf as preventive measures :
a) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and
clear identification and name tags with their designations. The
particulars of all such police personnel who handle
interrogation of the arrestee insist be recorded in a register.
b) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such
memo shall be attested by at least one witness, who may be
72
Ibid. 73
AIR 1997 SC 610.
383
either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made It shall also
be counter signed by the arrestee and shall contain the time
and date of arrest.
c) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other
lockup, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being
informed, as soon as practicable,
d) The time, place of arrest and venue of custody of an arrestee
must be notified by the police where the next friend or relative of
the arrestee lives outside the district within a period of 8 to 12
hours after the arrest.
e) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
f) An entry must be made in the diary at the place of detention
regarding the arrest of the person.
g) The arrestee should, where he so requests, be also examined at
the time of his arrest and major and minor injuries, if any
present on his/herbed, must be recorded at that time.
h) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody
by a doctor on the panel of approved doctors.
i) Copies of all the documents including the memo of arrest, -
referred to above, should be sent to the Ilaqa Magistrate for his
record.
j) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation. Failure
to comply with the requirements herein above mentioned shall
apart from rendering the concerned official liable for
departmental action also render him liable to be punished for
contempt of court and the proceedings for contempt of court
384
may be instituted in any High Court of the Country, having
territorial jurisdiction over the matter. The requirements,
referred to above flow from Articles 21 and 22(1) of the
Constitution and need to be strictly followed. These would apply
with equal force to the other governmental agencies also to
which a reference has been made earlier. From the observations
made by the judiciary in India more particularly the Supreme
Court of India as mentioned above, it becomes clear that the
courts in India have not declared emphatically that the right to
information is a fundamental right. However, the above
observations help in understanding the scope, importance and
limits of the rights to information apart from the prevailing
position in other countries.
k) In the similar fashion the Apex Court in Peoples Union for Civil
Liberties, v. Union of India74 held that, true democracy cannot
exist unless the citizens have a right to participate in the affairs
of the policy of the country. The right to participate in the affairs
of the country is meaningless unless the citizens are well
informed on all sides of issues in respect of which they are
called upon to express their views.
Deviating from the earlier trend the Supreme Court in Indira
Jaising v. Registrar General, Supreme Court of India75, declined
disclosure with a reasoning that is difficult to reconcile with, its own
bold pronouncements in the past. A report made on such inquiry if
given publicity will only lead to more harm than good to the institution
as judges would prefer to face inquiry leading to impeachment. In
such a case the only course open to the parties concerned if they have
material is to invoke the provisions of Article 124 or Article 217 of the
Indian Constitution. The said report is purely preliminary in nature,
adhoc and not final ... the only source or authority by which the Chief
74
AIR 2003 SC 2363. 75
SCC 2003(5) 494.
385
Justice can exercise this power of inquiry is moral or ethical and not
in exercise of powers under any law. Exercise of such power of the
Chief Justice of India based on moral authority cannot be made the
subject matter of a writ petition to disclose a report made to him.76
Surely, the public has a right to know about the integrity of those who
dispense justice. That the Supreme Court had instituted an inquiry
into the incident was a fact allowed to be widely publicised. This was a
measure that inspired public confidence and was intended to do so. It
was therefore, in the fitness of things that the report itself be made
public. Quite apart from the public interest was in the interest of the
judges concerned to have the report made public; the more so if it
established their innocence. Evidently, old mindsets die hard.77 It is
going to be a slow and reluctant transition from a deeply ingrained
psyche of secrecy to openness and the freedom of information.78
Similarly, The Apex Court held in State of Andhra Pradesh v.
Canara Bank,79 that the right to information is not an absolute right.
It is a part of right to freedom of speech and expression. Section 8(1)(i)
of the Right to Information Act 2005, balances right to privacy and
right to information. It recognises that both rights are important and
requires protection and in case of conflict between two rights the test
of overriding public interest is applied to decide whether information
should be withheld or disclosed.
The Summit Court evolved the principle of community
participation in Research Foundation for Science Technology and
Natural Resource Policy v. Union of India,80 where it was held that the
right to information and community participation for protection of
76
P.J. Dhan, Dr. Ambedkar and the Principle of Independence of Judiciary, 24 Indian Bar Review 97
(1997). 77
V.R. Krishna Iyer, Limits of Judicial Conduct, The Hindu, August 7, 2009, available at http:/ /
www.thehindu.com. 78
Mamta Mokta, and Vivek Jyoti, 'The Right to Information Act 2005: as a Potent Weapon in the
Hands of Citizens: Present Status and Issues' in Indian Journal of Public Administration, 55: 3
(July-Sept.,2009), pp. 594-608. 79
AIR 2005 SC 186. 80
JT 2007 (11) SC 49.
386
environment and human health is also a right which flows from
Article 21 of the Constitution of India. The Government and
authorities have, thus to motivate the public participation. These well
enshrined principles have been kept in view by Court while examining
and determining various aspects and facets of the problems in issue
and the permissible remedies.
Deviating from earlier trends, the Supreme Court in
Khanapuram Gandaiah v. Administrative Officer,81 held that the
litigant cannot be allowed to seek information as to why and for what
reasons the judge had come to a particular decision or conclusion.
The Court further illustrated that a Judge is not bound to explain
latter on for what reasons he/she had come to such a conclusion.
Similarly on the same pattern the Apex Court in Central Board
of Secondary Education v. Aditya Bandopadhyay,82 held that the
examining bodies Universities, Examination Boards, etc are neither
security nor intelligence organisations and therefore the exemption
under section 24 will not apply to them. Therefore they are bound to
provide access to information and any applicant can either inspect the
document/record, take-notes attracts or obtain certified copies
thereof.
In another important case, Central Public Information Officer,
Supreme Court of India v. Subhash Chandra Agrawal,83 In this case
the information to which applicant has any right to get information
regarding correspondence/notings relating to appointment of judges84
objected by Prime Ministers Office, then the matter was referred to
Chief Justice of India for being placed before appropriate Bench.
Questions have been raised as to the existence of a right to obtain the
81
AIR 2010 SC 615. 82
(2011) SCC 497. 83
(2011) 1 SCC 496. 84
See generally Constituent Assembly Debates, Vol.VIII, 258.The provisions of appointment of the
Judges to SC and High Courts (Article 124 (2) and Article 217 (1) ) and insulation of the conduct
of the Judges by the enactment of Articles 121 and 211, which provides that the discharge if the
duties by a SC or a High Court judge cannot be discussed in the Parliament or State Legislature
crystallize the concept of judicial independence by making the judiciary insulated from the
political processes of the outside.
387
notes made by the CJI and the collegium of judges in the appointment
of the Judges to Supreme Court and the High Courts in accordance
with the law laid down in the Second Judges Appointment case.85 In
the event of such notes being made public, there are greater concerns
if a candid opinion on the merit of individual judges will be expressed
by the Collegium. We believe that the task of the legislature should
therefore be addressing these critical points in the proposed legislation
so as to overcome the conundrum. It is indeed a matter of great
concern that the Collegium appointed to recommend Judges for
elevation to the Apex Court missed out on such crucial information of
one of its recommended appointees.86
6.4 DIFFERENT HIGH COURTS ON RIGHT TO INFORMATION
The High Courts of different States by taking material and
strength from the Constitutional provisions has attempted and
secured the right to know for citizens.
The Madras High Court in Karanthai Tamil Sangam v. R.
Sivaprakasham,87 held that the Non- government Organisations which
receive allocations or the provision of funds are to be treated as public
authorities.
Following the same trend in Public Information Officer v.
Manohar Parrikar,88 The Bombay High Court has held that the posts of
President and Governors are created by Constitution of India, hence
they are public authorities under section 2(h) of Right to Information
Act, 2005.
85
V. Venkatesan, Of Accountability to the People, Frontline, September 2009, 33. 86
R.S. Pathak, Administration of Justice and Public Accountability, 15 Indian Bar Review, 213
(1988). It is also interesting to note that while Article 235 was included to make the subordinate
judiciary accountable to the higher judiciary, no similar provisions were enacted for the higher
judiciary. The underlying idea was to subject the higher judiciary to self regulation. Former Chief
Justice J.S. Verma notes that the enactment of Article 235 is per se a clinching evidence of
accountability being intricately associated with the idea of judicial independence. The element of
accountability thus was envisaged to co exist with independence, ensuring the relationship to be
harmonious. See J.S.Verma, CJI, please declare my assets, August 12, 2009, available at http://
www.indianexpress.com /news/ cjiplease- declare-my-assets/ 501022/ (Last visited on August 21,
2009). 87
AIR 2011 Mad 13. 88
AIR 2012 BOM 71.
388
Deviating from the earlier trends the Madras High Court in the
case of V Madhar v. Tamil Nadu Information Commission,89 held that
the asset details of government servants filed before government
though in sealed cover cannot be said to be information and could not
be accessed by government.
Similarly, following the trend, the Allahabad High Court in Km.
Mehraj Khan v. Madhyamik Shiksha Parishad, Uttar Pradesh,90 held
that the photocopies of answer copies of the Board Examinations
cannot be provided under the Right to Information Act. The petitioner
can only seek information or may be provided copies of the documents
which are permissible to be provided under the law.
In the similar fashion, the Karnataka High Court in Syndicate
Bank, Manipal v. Central Information Commission, New Delhi,91 held
that the Minutes of Board Meeting of Bank dealing with settlement of
pending claim of applicant should not be treated as confidential in
nature by authorities of Bank.
In contrast to earlier decisions, the Jharkand High Court in
Jharkand Public Service Commission, Ranchi v. State of Jharkand,92
held that the information regarding names of members of interview
board cannot be furnished as it violates confidentiality.
On the similar pattern, the Bombay High Court has held that
Right to Information Act, 2005 is not applicable to trusts and colleges
in the case of Nagar Yuvak Shikshan Sanstha, Wanadongri, Nagpur v.
Maharashtra State Information Commissioner, Nagpur,93 The Court
further states that Public Trust is not run by the government either
directly or indirectly and its management and affairs are controlled by
the trustees.
89
AIR 2012 Mad 5. 90
AIR 2010 All 1. 91
AIR 2012 (NOC) 303 (Kar). 92
AIR 2011Jhar 7. 93
AIR 2010 BOM 1.
389
In one of the important cases, the Delhi High Court has held
that file notings are exempted from disclosure of information in Union
of India v. R.S. Khan,94 The Court further states that the government
servant performing official functions and making notes on file about
the performance or conduct of another officer, such noting cannot be
said to be given to the Government pursuant to a “fiduciary
relationship”, with the government within the meaning of section
8(1)(e)95 of RTI Act, 2005. The Section 8(1)(e), is, at best, a ground to
deny information to a third party on the ground that information
sought concerns a government servant, which information is available
with the government pursuant to a fiduciary relationshoip, that such
person, has with the government as an employee. It will be no ground
for Government of India to deny an employee against whom the
disciplinary proceedings are held to withhold the information available
in the government files about such employee on ground that such
information has been given to it by some other government official
who made the noting in a fiduciary relationship.96
The Karnataka High Court in Basawanappa v. Karnataka State
Information Commission97 has held that incase of appeal against order
passed by State Information Commission then such appeal does not
lie under section 19 of the Right to Information Act, 2005. Similarly
incase of third party information the Delhi High Court in Arvind
Kejriwal v. Central Information Officer98 has held that the procedure
prescribed under section 11 of Right to Information Act, 2005 is to be
followed where the information is confidential. Following the trend the
Madras High Court in Superintendant of Police Central Range Office of
the Directorate of Vigilance and Anti–corruption, Chennai v. R.
94
AIR 2011 Del 50. 95
Section-8(1)(e) of Right to Information Act, 2005, Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen, 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. 96
Mistry, Indra J(2006) Breaking the Bureaucratic Mould. Yojana, Jan, pp. 1O. 97
AIR 2012 (NOC) 302 (kar). 98
AIR 2012 Del 29.
390
Karthikeyan99 has held that the State Government can notify
exempting intelligence and security organisation but it cannot notify
information pertaining to allegations of corruption and human rights
violation even in case of intelligence and security organisation.
6.5 CASES UNDER RIGHT TO INFORMATION ACT, 2005 (RTI)
A very important legislative step was taken in the history of
right to information movement in India in the form of Freedom of
Information Act 2002100. Though it was adopted in January 2003 but
it never came into force. This caused very much resentment among
people and consequently government passed Right to Information Act
2005101 with added sharpness which replaced Freedom of Information
Act 2002. It also overrides102 provisions of all existing Acts relating to
information. Under this Act, any citizen of India may get any
information from central and statutory public authorities103. The
public authorities must respond to request for information in 30
days104. An independent Information Commission has to be setup at
the national level105 and Information Commissions at state levels106.
99
AIR 2012 Mad 84. 100
Act No.5 of 2003. 101
Act No.22 of 2005. 102
Section-22 Act to have overriding effect- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and
any other law for the time being in force or in any instrument having effect by virtue of any law
other than this Act. 103
Section-6 Request for obtaining information - A person, who desires to obtain any information
under this Act, shall make a request in writing or through electronic means in English or Hindi or
in the official language of the area in which the application is being made, accompanying such fee
as may be prescribed, to the Central Public Information Officer or State Public Information
Officer, as the case may be, of the concerned public authority. 104
Section-7 Disposal of request- The Central Public Information Officer or State Public Information
Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as
possible, and in any case within thirty days of the receipt of the request, either provide the
information on payment of such fee as may be prescribed or reject the request for any of the
reasons specified in sections 8 and 9: Provided that where the information sought for concerns the
life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the
request. 105
Section-12 Constitution of Central Information Commission The Central Government shall, by
notification in the Official Gazette, constitute a body to be known as the Central Information
Commission to exercise the powers conferred on, and to perform the functions assigned to, it under
this Act. 106
S-15 Constitution of State Information Commission- Every State Government shall, by notification
in the Official Gazette, constitute a body to be known as the State Information Commission to
exercise the powers conferred on, and to perform the functions assigned to, it under this Act.
391
There are 11 subjects107 in this Act on which information can be
refused to a citizen and there is a list of 22 agencies108 to which this
Act does not apply. However information has to be given in the cases if
it relates to issues of corruption or human rights violations. Right to
Information Act has been enacted aiming to bring transparency,
openness and accountability in governance in India.109 The
Central Information Commission in a landmark case asks Union
Public Service Commission to show marks to Civil Services aspirants
and directed to declare individual marks scored by 2,400 candidates
appeared for the Civil Services Preliminary examinations in 2006 and
ordered it to declare cut-off marks for each subject.110 In the similar
fashion the Central Information Commission in Paramveer Singh v.
Punjab University111 has held that Record management should be
improved by all public authorities and every public authority, must
take all measures in pursuance of Section 4(1)(a), to implement
efficient record management systems in their offices so that the
requests for information can be dealt promptly and accurately.
Following the trend the Central Information Commission in the case of
Shyam Yadav v. Department of Personnel Training112 has held that
property statements filed by civil servants are not confidential and
information can be disclosed after taking the views of concerned
officials as per the provisions of the RTI Act. In the similar fashion the
Central Information Commission in the case of Ram Bhaj v. Delhi
government113, has directed the Delhi government to inform the
107
S-8 Exemption from disclosure of information- Where a request has been rejected, the Central
Public Information Officer or State Public Information Officer, as the case may be, shall
communicate to the person making the request, the reasons for such rejection; the period within
which an appeal against such rejection may be preferred; and the particulars of the appellate
authority. 108
Schedule-2 of the Act. 109
Jain, Abhishek, "RTI Implementation at District Level: Issues and Challenges", Indian Journal of
Public Administration, 55(3): July- Sept.2009, pp.346- 363. 110
CIC/WB order, November 13, 2006 111
CIC/OK/A/2006/16, 15/6/06. 112
CIC/WB/A/2009/000669, June 17, 2009 113
CIC/SG/A/2010/000537+000538/7492, April 19, 2010
392
common man about the timeframe required to redress their
grievances.
The Central Information Commission has addressed two very
serious constitutional issues pertaining to higher executive and
judiciary, namely, disclosure of correspondence about appointment of
judges and the need for declaration and disclosure of assets by the
higher judicial officers.114 Despite the fact that there were certain
established principles as well as several judicial pronouncements on
these issues, yet requisitions from the information seekers generated a
debate process pertaining to these critical and complex issues.115
Hence the need for accountability in Judiciary arises from
within, to ensure a system of checks and balances operative to
prevent any unwarranted usurpation of power. Of late however, as
stated earlier, the integrity of this great institution has been called
into question,116 more so since there has been a complete absence of a
transparent mechanism in place to cure the malady. It is interesting
to note that while the demand for greater accountability on such
counts has been constantly pressed for, unanimous voices of dissent
have also risen in a defence “to enforce silence in the disguise of
preserving dignity.117 But it is very strange that the Supreme Court
is not sending a right message to the nation by saying that its
judges are not bound under RTI to disclose their assets to the
114
Sir Moti Tikaram, Public Accountability – Who Judges the Judges?, 19 COMMW.L. BULL. 1231
(1993). 115
Triranjan Raj and Sanjeev Kumar Sharma, ibid., pp. 481·503. 116
With respect to the Indian position, one of the landmark controversy regarding the same was of
Justice Ramaswamy when he was sought to be impeached on grounds of brazen financial
irregularities committed during his tenure as the Chief Justice of Punjab and Haryana High Court.
(See Sarojini Ramaswami v. Union of India AIR 1992 SC 2219). In recent times, there were
allegations against the former Chief Justice of India, Y.K.Sabharwal of having directly benefited
his sons by ordering the demolition of the commercial outlets in New Delhi. In an interview with
Tehelka, Prashant Bhushan, spear heading the movement of Campaign for Judicial Accountability
Reform (CJAR) opined it to be a watershed in the movement for demanding judicial
accountability. 117
Justice Black in Bridges v. California (314 V.S. 252) observed that “the assumption that respect
for the judiciary can be won by shielding judges from published criticism wrongly appraises the
character of American public opinion...An enforced silence, however limited, solely in the name of
preserving the dignity of the Bench, would probably endanger resentment, suspicion and contempt
much more than it would enhance respect.”
393
general public.118 The Central Information Commission (CIC) and
Delhi High Court had ruled that under right to information
Supreme Court judges have to make their assets public. From
these decisions we can say that SIC, CIC and High Courts are in
favour of transparency laws. At this time too, the higher judiciary
is not ready to disclose the assets of its Judges. When the
declaration by members of Parliament about their assets is only a
decade old, the delay by the Supreme Court in doing so is
unpardonable.119 There is, therefore, no logic for exempting
Supreme Court judges from this provision.
In Subhash Chander Agrawal v. Secretariat of President,120 it
was argued on behalf of the appellant that the relationship between a
judge and the Chief Justice cannot be construed to be fiduciary as
claimed by the CPIO, Department of Justice. The Counsel for the
appellant relied on the ruling in S.P. Gupta v Union of India and
others121 The CIC did not agree with this contention and said that the
disclosure part of the decision was not overruled at all. The CIC held
that the case was overruled in so far as it was in conflict with the view
relating to the primacy of the opinion of the Chief Justice of India in
matters of appointment, transfer and the justiciability of these matters
as well as in relation to judge strength, but it did not find that the
decision in the Gupta case on the question of disclosure was
overruled. However, since the disclosure of the information sought
pertains to third parties, the CIC directed the PIO to process the
disclosure after duly issuing notice to third parties concerned.122 It
was further directed that in case of a valid objection to disclosure in
118
See generally David Pimentel, Reframing the Independence v. Accountability Debate: Defining
Judicial Structure in light of Judge‟s Courage and Integrity, 57 Cleveland State Law Review 1
(2009). 119
D.V. Shylendra Kumar, Reluctance to disclose assets create impression that judge has something
to hide... majority of judges are definitely not reluctant, available at http://
www.indianexpress.com/ news/ reluctance-to-disclose-assets-creates-impression-that-judgehas-
something-to-hide-majority-of-judges-are-definitely-not-reluctant/505436/7 . 120
Appeal No. CIC / WB / A / 2006 / 00460, dated 29 July 2006. 121
AIR 1982 SC 149. 122
P.J. Dhan, Dr. Ambedkar and the Principle of Independence of Judiciary, 24 Indian Bar Review 97
(1997).
394
any case, the information sought might be supplied to the exclusion of
the objectionable portion, as prescribed under section 10 of the RTI
Act.123
Following the trend the Central Information Commission in D.
K. Mishra v. Ministry of Law and Department of Justice,124 has directed
the CPIO to disclose information pertaining to appointment process.
More recently, following the trend, the Central Information
Commission in Subhash Chandra Agrawal v. Department of Justice,125
has held yet again that the class of documents consisting of
correspondence exchanged between the Law Ministry or other high
level of functionaries of the central government, the Chief Justice of
the state and the CJI in regard to the appointment or non
appointment of a High Court Judge, a Supreme Court Judge or the
transfer of a High Court Judge and the notes made by these
constitutional functionaries in that behalf cannot be regarded as a
protected class entitled to immunity against disclosure.126
Similarly, in K.K. Mahajan v. Pritpal Singh127, it was held that
the Right to Information Act does not give a third party an automatic
veto on disclosure of information. The Public Information Officer and
Assistant Public Information Officer are required to examine the third
party's case in terms of provisions of section 8 (1) (j) or section 11 (1)
as the case may be and arrive at the findings by properly assessing
the facts and circumstances of the case. A speaking order should
thereafter be passed.
Following the trend in Shri Mukul Srivastava v. Indian Institute
of Banking & Finance,128 the CIC made the ruling while hearing an RTI
application, applicant seeking information in respect of the JAIIB
Examination, including the complete marks obtained by candidates
123
Section- 10 of the Right to Information Act, 2005 deals with Severability. 124
MANU /CI / 0008 / 2009. 125
2010 (1) ID 275 (CIC, New Delhi). 126
Frances Kahn Zemans, The Accountable Judge: Guardian of Judicial Independence, 72 Southern
California Law Review 625 (1999). 127
Central Information Commission, A-14,2006. 128
Central Information Commission, A-610,2009.
395
for both tests of the examination with their respective answer sheets.
The Institute refused to give any information, saying it was not
covered under the RTI Act prompting Applicant to file a complaint with
the Commission.129 The Commission held that: The Indian Institute of
Banking and Finance (IIBF) is an organisation covered under the RTI
Act and must comply with its provisions. “This Institute, a Non
Governmental Organisation being substantially financed by the Public
Sector Banks directly and indirectly, is nothing but a Public Authority.
We, therefore, hold that this Institute is a Public Authority and the
provisions of the Right to Information (RTI) Act shall apply to it”.130
Deviating from the trend, the Central Information Commission in
Mukesh Kumar v. S. Chatterjee, Additional Registrar, Supreme Court of
India & P.K. Sethi, Joint Secretary and AA, Department of Justice,
Ministry of Law and Justice,131 wherein it directed that the process of
selection of judges of the Supreme Court and High Courts need not be
disclosed under the RTI Act. In this case, the CIC, A. N. Tiwari, had
observed that there was merit in the contention that certain processes
are best conducted away from the public gaze, for that is what
contributes to sober analysis and mature reflection, unaffected by
competing pressures and public scrutiny.132 However, in another case,
the Central Information Commission analysed the issue of disclosure
of the process of appointment from a different perspective.133
Following the trend, the Delhi High Court in C. Ramesh v.
Ministry of Personnel, Public Grievances and Pensions134, for the first
time after the enactment of the RTI Act, issued stay on a decision
taken by the Central Information Commission. The Delhi High Court
stayed the CIC decision directing the government to make available to
129
Ibid. 130
Dadwal, Lalit, “Right to Information”, M.D.U. Law Journal, Vol. 10, No. 1, 2005, pp. 255-268. 131
Manu / CI / 0306 / 2006. 132
Judiciary was a subject of the Constituent Assembly Debates on July 29, 1947. While inter alia,
there was debate regarding the independence of judiciary and enshrining a distinct provision for
the same, one does not come across any discussion on making the judiciary accountable to its
citizenry. See Constituent Assembly Debates, Vol.VIII, 218. 133
Frances Kahn Zemans, The Accountable Judge: Guardian of Judicial Independence, 72 Southern
California Law Review 625 (1999). 134
Central Information Commission,A-121,2006.
396
it copies of the late President K. R. Narayanan's letters written to the
then Prime Minister relating to 2002 communal violence in Gujarat.
Justice stayed 8 August 2006 order till 11 January 2007 on an
application moved by the Union Government saying that the letters
could not be made available to the CIC as it would impunge on the
national security and integrity.135
Similarly, the CIC in Farida Hoosenally v. The Chief
Commissioner of Income Tax136, held that Income Tax Returns filed by
an assessee are confidential information which includes details of
commercial activities and that it relates to the third person. These are
submitted in fiduciary capacities. There is no public action involved in
the matter and the disclosure is exempted.
The Central Information Commission (CIC) in Ajay Kumar Goel
v. MCD137, for the first time, imposed a penalty of Rs. 25,000 on a PIO
who has failed to appear before the commission on due date and time
despite a telephone reminder. Because the burden of proving that he
acted reasonably and diligently is on the PI0 under Provision II to
Section 20(1), it is assumed that he has no reasonable cause to show
why penalty should not be imposed. Under the aforementioned section
of the Act, penalty shall be imposed on any of the following grounds, if
the PIO has refused to receive an application not furnished the
information within the time frame specified in Section-7(1) malafidely
denied the request for information or knowingly given incorrect
information.138
Following the trend, the Central Information Commission in
Anand Akhila v. Council of Scientific and Industrial Research139
recommended disciplinary action against an appellate officer. The
appellate authority is not covered under the penal provisions of the
135
R.S. Pathak, Administration of Justice and Public Accountability, 15 Indian Bar Review 213
(1988). 136
CentralInformationCommission, A-22, 2006. 137
CentralInformationCommission, C-40, 2006. 138
Dalal, Praveen and Shruti Gupta, “New Horizons of Right to Information”, Apex Court
Expressions, Vol. 1, 2004, J-1-9. 139
CentralInformationCommission, C-43, 2006.
397
Act. But in this case, he clearly failed to uphold the act in the public
interest. It was observed that this decision may be sent to public
authority to consider disciplinary action under their service rules.
In the wake of the deemed university controversy, Central
Information Commission has slammed University Grants Commission
(UGC) for lack of transparency in information related to deemed
universities.140 An applicant, A N Prasad, had sought information
related to the number of times the review committee had rejected
applications of colleges and universities for deemed status during the
period between 2005-2009 and copies of reports on the basis of which
the recognition could not be granted to a college or university during
the same period.141
The order added, "UGC appears to be operating with no respect
for the rule of law and it is behaving as if the RTI Act does not apply to
it. The commission takes a very dim view of such behaviour by UGC
and recommends the chairman to ensure that its officers are trained
in the RTI Act and learn how to respect the law.142" Ruling that UGC
had failed to provide the required information leading to "undue
harassment" of the applicant, CIC has asked it to pay compensation of
Rs 2,000 and also issued a showcause notice to the UGC PIO directing
him to explain the reasons for the delay within 30 days.143
In P K Dalmia of Noida v. Supreme Court of India144, the
applicant sought information from the Public Information Officer of
the Supreme Court on what action had been taken on three of his
complaints made in 2007 and 2008 against the judges of Allahabad
High Court on some matter of embezzlement. The PIO replied in
negative as information relating to complaints against High Court
judges were not part of the routine SC registry.145 Though such
140
Times of India, dated 29 Jan 2010. 141
Dalal, A.S and L.C. Dhingra, “Consumers Right to Information: A Case Comment”, M.D.U. Law
Journal, Vol. 7, 2002, pp. 235-236. 142
Dalal, Rajbirsingh, “Right to Information Act, 2005: Expectations and Constraints”, The Indian
Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 649-659. 143
Ibid. 144
Central Information Commission, A-184, 2009. 145
R.S. Pathak, Administration of Justice and Public Accountability, Indian Bar Review 213 (1988).
It is also interesting to note that while Article 235 was included to make the subordinate judiciary
398
information was available with the 'office of the Chief Justice of India
(CJI)', the PIO neither attempted to get it from there nor transferred
the RTI application to that office. Dalmia appealed to the Central
Information Commission (CIC), which ordered the PIO on 24 February
2009 to provide the information sought by him. At this stage too, the
Supreme Court did not comply; instead, this order of CIC was
challenged in the Delhi High Court.
Following the trend, in Subhash Chander Agrawal v. Supreme Court of
India146, the applicant had sought information from the Supreme
Court whether any declarations of assets147 have been made by the
judges of the Supreme Court and the High Courts to their respective
Chief Justices, as expected under the resolution passed by the All
India Judges Conference in May 1997. The Supreme Court declined to
provide this information, arguing instead that the May 1997
resolution was an 'in house mechanism'.148 Moreover, the court took
the view that assets declared by judges to their respective chiefs, were
given 'voluntarily', and received in the 'personal capacity' of the Chief
Justices (implying, therefore, that they were not official documents
subject to RTI).149
This case center around a key legal issue, namely, whether the
Office of Chief Justice of India, in his capacity as Chief Justice not
sitting in a Court is subject to the application of Right to Information
accountable to the higher judiciary, no similar provisions were enacted for the higher judiciary.
The underlying idea was to subject the higher judiciary to self regulation. Former Chief Justice J.S.
Verma notes that the enactment of Article 235 is per se a clinching evidence of accountability
being intricately associated with the idea of judicial independence. The element of accountability
thus was envisaged to co exist with independence, ensuring the relationship to be harmonious. See
J.S.Verma, CJI, please declare my assets, August 12, 2009, available at http://
www.indianexpress.com /news/ cjiplease- declare-my-assets. 146
Central Information Commission, A-426, 2008. 147
D.V. Shylendra Kumar, Reluctance to disclose assets create impression that judge has something
to hide... majority of judges are definitely not reluctant, available at
http://www.indianexpress.com/ news/ reluctance-to- something-to-hide-majority-of-judges-are-
definitely-not-reluctant/505436/7 (Last visited on January 17, 2010). disclose-assets-creates-
impression-that-judgehas-something-to-hide-majority-of-judges-are-definitely-not-reluctant. 148
Prashant Bhushan, Judicial Accountability: Asset Disclosures and Beyond, Economic and Political
Weekly, September 12, 2009, 8. 149
Sriram Panchu, Make declaring judges‟ assets mandatory for all further appointments, The Hindu,
September 8, 2009.
399
Act, 2005. The Information Commission's view was that the Chief
Justice is a custodian of the information available with him, and that
it is available for perusal and inspection to every succeeding office-
holder.150
Therefore, the information cannot be categorized as "personal
information" even if the CJI holds it in his personal capacity. The Full
Bench of the CIC held that CJI's office comes within the ambit of RTI
Act and judges' assets be made public under the transparency law.
The Supreme Court filed a writ petition in the Delhi High Court.151
The petitioners challenged an order of the Central Information
Commission, upholding the request of the respondent who had
applied for disclosure of certain information concerning such
declaration of personal assets, by the judges of the Supreme Court.
The Single Bench of Delhi High Court upholds CIC's order saying that
CJI's office comes within the ambit of RTI Act and judges' assets be
made public under the transparency law. This proceeding, under
Article 226 of the Constitution of India, requires the examination of
questions and issues involving declaration as to personal assets of
judges of the Supreme Court, made to the Chief Justice of India,
pursuant to a Full Court resolution of the Supreme Court of India,
made in 1997.152
150
At this juncture, one could perhaps trace the history of the Bill back to the RTI application filed by
S.C. Aggarwal which sought to know whether the Judges declared their assets under the May 7,
1997, Resolution which provided that every Judge is to make a declaration of all the assets within
a reasonable period of time after assuming office or adopting the Resolution. The beauty of the
Resolution was however that the disclosure was to be made to the Chief Justice and all such
disclosures where to be confidential in nature. The Chief Information Commission ruled in favour
of Agarwal and ruled that SC is an institution created by the Constitution and thus a „Public
Authority‟. It also held the Chief Justice to be a „competent authority‟ under S- 2(e) of the Right to
Information Act, 2005. (See Subhash Agarwal v. Supreme Court of India, Case No. W.P.(C)
288/2009. It was this decision that was put to appeal before the Delhi High Court and the judgment
was subsequently delivered which ruled the same and as has been discussed in the preceding §.
The Lok Sabha Speaker Somnath Chaterjee said “Judges of higher Judiciary should also be
subjected to accountability on issues like declaration of assets”. See Judge assets: CIC Wonders
why SC opposing „innocuous‟ order, January 22, 2009, THE INDIAN EXPRESS, available at
http:// www.indianexpress.com /news / judge-assets-cic-wonders-why-scopposing. 151
The CPIO, Supreme Court of India v/s Subhash Chandra Aggarwal & Anr, W.P. (C) 288/2009. 152
J.S.Verma, CJI: Please Declare my Assets, available athttp://www.indianexpress.com/news/ cji-
please-declare-my-assets/501022/ (Last visited on September 9, 2009). See also, Restatement of
400
The Apex Court filed Letters Patent Appeal against single bench
decision of Delhi High Court in Secretary General of Supreme Court of
India v. Subhash Chander Agrawal153. In this case the Full Bench of
Delhi High Court held that the office of the Chief Justice of India
comes within the ambit of the Right to Information (RTI) law, saying
judicial independence is not a judge's privilege but a responsibility
cast upon him.
After the adverse ruling of Delhi High Court,(F.B.) the Supreme
Court filed an appeal154 before itself challenging the judgment of
Delhi High Court where it will seek immediate stay on High Court
rulings otherwise it would be under obligation to reveal the
information under RTI Act.
Interestingly, the real issue was no longer the assets of the
Supreme Court judges. In fact, perhaps at least partly in response to
public pressure and perception, judges of the Supreme Court and
various high courts (including Delhi) and other states had already put
the list of their assets on the web.155 The dispute seemed to be about
more sensitive issues, arising out of recent controversies about the
basis on which high court judges were recommended for elevation to
the Supreme Court.156 Newspaper reports suggested that some
members of the higher judiciary were concerned that if the office of the
Chief Justice of India was declared to be a public authority then the
basis on which individual judges were recommended or ignored for
elevation would also have to be made public.157
Values of Judicial Life, adopted by a Full Bench of Supreme Court on May 7, 1997,
http://www.judicialreforms.org. 153
I.D. 2010(1) p-1, Delhi High Court (Full Bench). 154
The Statesman, dated 12 march, 2009. 155
High Court of Kerala, Declared Assets & Liabilities of Hon‟ble Judges at a glance, available at
http://highcourtofkerala.nic.in/assets.html (Last visited on February 5, 2010).See also, assets of the
Chief Justice of Kerala available at http://highcourtofkerala.nic.in/ assets/cj.pdf (Last visited on
February 5, 2010)High Court of Madras, Assets of the Honourable Judges, available at
http://www.hcmadras.tn.nic.in/assetsofjudges.htm (Last visited on February 5, 2010).Himachal
HC judges to make public their assets, August 30, 2009, available at
http://blog.taragana.com/law/2009/08/30/himachal-hc-judges-to-make-public-their-assets-
11545/(Last visited on January 17, 2010).; Punjab & Haryana HC judges to declare assets,
September 1, 2009, available at http://www.punjabnewsline.com. 156
The current system in India gives exclusive power to a Collegium of Supreme Court judges,
headed by the Chief Justice and comprising four senior most judges, to decide on whom to elevate. 157
Dogra, Bharat, “Passage of Right to Information Bill in Parliament: Strengthening Democracy and
the Struggle Against Corruption.”, Mainstream, Vol. 43, No. 22, 21 May 2005, p. 4.
401
The RTI Act is considered one of the most enabling pieces of
legislation for probity and transparency in public life, but the
Judiciary continue to evade public scrutiny.158 The heavens will
not fall if Judges declare their assets in public. It‟s a folly to claim
that they are above the Right to Information Act.159
6.6 OTHER IMPORTANT ORDERS UNDER THE RIGHT TO
INFORMATION ACT, 2005.
In August 2011, the Central Information Commission directed
the Supreme Court to make public its rules, if any, about the
appointment of its retired judges as arbitrators and also the total
amount of medical reimbursements made to individual judges during
the last three years. The CIC also directed the Apex Court to disclose
the list of all resolutions passed in the meetings of all the judges since
1997. This order of the CIC came on three appeals filed by RTI
activist, Subhash Chandra Agrawal, who was denied information by
the Supreme Court either on the grounds that it was personal in
nature or it was not available in the form sought by him.160 However,
here it may be noted that seeking information on issues such as
medical reimbursement made to individual judges is perhaps taking
matters a little out of the context of good governance and
transparency- the very objects of the transparency law.161 Demand for
such types of information may be characterised as frivolous. Here, the
observations of the Supreme Court in Central Board of Secondary
Education & Another v. Aditya Bandhopadhyay & Others162 seem very
relevant. In this case the Apex Court has observed that in regard to
information which is not related to achieving transparency,
accountability and prevention of corruption, the emphasis is different
and the other public interests (like privacy, confidentiality of sensitive
information, fidelity and fiduciary relationships, efficient operation of
158
Chopra, Sanjeev, “Right to Information: A Paradigm Shift from Representative to Participatory
Democracy”, All India Reporter, Vol. 96, Part 1148, August 2009, pp. 113-120. 159
Chhibber, Bharti, “Right to Information Act: An Instrument for Stronger and Vibrant Democratic
Process in India”, Mainstream, Vol. 41, No. 15, March 2008, pp. 17-18. 160
“CIC Asks SC to Make Rules Public”, The Hindustan Times, 06 August 2011, p. 03. 161
P.J. Dhan, Dr. Ambedkar and the Principle of Independence of Judiciary, 24 INDIAN BAR
REVIEW 97 (1997). 162
MANU / SC / 0932 / 2011.
402
governments) should be given equal importance. Indiscriminate
demands or directions for disclosure of all and sundry information
(unrelated to accountability and eradication of corruption) under the
RTI Act would be counter-productive as it will adversely affect the
efficiency of the administration and result in the executive getting
bogged down with the non-productive work of collecting and
furnishing information.163 In yet another order of the CIC, the
Supreme Court has been directed to make public details of cases
where orders have been reserved so that the citizens know the „status
of pendency‟.164 Overruling the stand of the Apex Court that it does
not maintain such data, the Chief Information Commissioner directed
the Court to „start the practice now‟ and make arrangements in future
for compiling and disclosing such records.165
i) Disclosure of File Notings
Another debatable issue relates to the disclosure of file notings
under the RTI Act. Though the Department of Personnel and Training
on its website has mentioned that file notings cannot be disclosed,
however, the CIC is of the opinion that file notings are very much
within the ambit of the Act.166 The CIC has on a number of occasions
expressed this view. In Satyapal v. TCIL167, the CIC held that most of
the discussions on the subject matter are recorded in the note sheets
and decisions are mostly based on the recordings in the note sheets.
Even the decisions are recorded on the note sheets. These recordings
are generally known as “file notings”. Therefore, no file would be
complete without note sheets having these “file notings”. These “file
notings” are an integral part of the file and are, therefore, not exempt
from disclosure.168 As a matter of fact the Ministry of Personnel,
Public Grievances and Pensions has been advised time and again to
amend from its website‟s administrative instructions which say that
163
David Pimentel, Reframing the Independence v. Accountability Debate: Defining Judicial
Structure in light of Judge‟s Courage and Integrity, 57 CLEVELAND STATE LAW REVIEW 1
(2009). 164
Ibid. 165
“Make Public Details of Reserved Orders: CIC to SC”, The Statesman, 05 August 2011, p. 07. 166
Ibid. 167
Appeal No. ICPB / A-1 / CIC / 2006. 168
Ibid.
403
file notings need not be disclosed.169 In R.K. Garg v. Ministry of Home
Affairs,170 the CIC held that when the file notings by one officer meant
for the next officer with whom he may be in a hierarchical
relationship, is in the nature of a fiduciary entrustment, it should not
ordinarily be disclosed and surely not without the concurrence of the
officer preparing the note. When read together, section 11(1) and
section 8(1) (e), unerringly point to a conclusion that notings of a
“confidential” file should be disclosed only after giving opportunity to
the third party (the officer/officers writing those notes) to be heard.
However, file notings in the case of files classified as confidential
attract the exemption of section 8(1)(j) and if in a given case it is
decided to disclose notings of a confidential file, it has to be done only
after completing the procedure under section 11(1)171. Thus, from
whichever angle the provisions of the RTI Act are looked into, “file
notings” cannot be held to be excluded unless they come in conflict
with public interest or are excluded under any of the provisions of the
Act.172 The (RTI) Act aims at bringing total transparency. The
Preamble to the Act clearly states that it intends to harmonize the
need to keep certain matters secret but at the same time reiterating
the paramountacy of the right to know.173 Thus, the Act intends to
bring in a total change in the mindset of “secrecy” generated by the
colonial legislations such as the Official Secrets Act, 1923 and the
Indian Evidence Act, 1872. The Preamble also outlines the grounds
that may necessitate withholding of information from the citizens. The
Preamble permits non-disclosure of information that is likely to cause
conflict with public interests including:-
(i) Efficient operations of the governments
(ii) Optimum use of limited fiscal resources
169
Suchi Pandey v. Ministry of Urban Development, Appeal No. CIC / WB / A / 2006 /00133 and
Mahendra Gaur v. Department of Consumer Affairs, Appeal No.35 / ICPB / 2006. 170
F. No. CIC / AT / A / 2006 / 00363. 171
A.P. Sharma v. Ministry of Defence, F. No. CIC / AT / A / 2006 / 00296. 172
Pyare Lal Verma v. Ministry of Railways, Ministry of Personnel, Public Grievances and Pensions,
Appeal No. CIC / OK / A / 2006 / 00154. 173
P.J. Dhan, Dr. Ambedkar and the Principle of Independence of Judiciary, 24 Indian bar Review 97
(1997).
404
(iii) Preservation of confidentiality of sensitive information.
Thus, any information the disclosure of which is likely to cause
conflict with public interest can be withheld by a public authority
whether it is a part of the correspondence side or it is a part of the
„Noting‟ side.174
The Government of India is now reportedly considering the
exemption of file notings, particularly cabinet notes, from the ambit of
the RTI Act. It is further reported that the government may, however,
keep file notings on social and development issues well within the
right of an individual to seek information. If this proposal of the
government goes through, it would inevitably give a severe blow to the
citizen‟s right to information.175 Such an amendment would give
enormous powers to selectively rule on what is or is not a
developmental or social issue. There is no denying the fact that the
honest political executives and civil servants would not be afraid of the
disclosure of file notings. It is the corrupt who fear such a disclosure.
Access to file notings is the heart of the right to information. File
notings expose the considered opinions of the concerned officers on an
issue and thus express the dynamics of decision-making. File notings
make it clear whether the official has written anything illegal or if
he/she has delayed a particular file. If file notings are taken out of the
purview of the Act, dishonest officers would get an open hand and the
basic purpose of the Act would be defeated. As a matter of fact, it
would be in the interest of sincere and honest officials, if the public
can know what opinion was given by them and on what grounds.
Otherwise such officials, very often, become a party to a wrong
decision taken at a higher level.176
174
Ibid. 175
Jaytilak Guha Roy, “The Right to Information: Some Emerging Issues of Public Concern”, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 406-412, at p.
407. 176
Asok Kumar Mukhopadhyay, “The RTI ACT: A Critical Assessment”, The Indian Journal of
Public Administration, Vol. 55, No. 3, July-September 2009, pp. 434-454, at p. 447.
405
In the ultimate analysis, it seems better to disclose file-notings
because the sheer accessibility of all records acts as a deterrent
against corrupt practices. Furthermore, by having access to all
information, the informed public can participate in the policy-making
and administration.177
ii) ‘Information’
What constitutes „information‟ has been debated upon in a
number of cases. The Information Commissions have consistently held
that Information about a non-public authority as available with the
public authority can be given.178 Now even the Delhi High Court in the
case of Poorna Prajna Public School v. Central Information
Commission179, has ruled that if law or a statute permits and allows
the public authority to access information relating to a private body
then it will fall within the four corners of section 2(f) of the Act. The
last part of section 2(f) broadens the scope of the term „information‟ to
include information which is not available but can be accessed by the
public authority from a private body. If there are requirements in the
nature of preconditions and restrictions to be satisfied by the public
authority before information can be accessed and asked to be
furnished from a private body, then such preconditions and
restrictions have to be satisfied. It was also held that the public
authority cannot act contrary to the law/statute and direct a private
body to furnish information. The court went on to say that the terms
„information‟ and „right to information‟ have been defined in sections
2(f)180 and 2(j)181 respectively of the Act. The two definitions have to be
177
Ibid. 178
Decision No. 309 / IC(A) / 2006. 179
2010(1) ID 61 (Delhi High Court). 180
Section 2(f)- "information" means 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. 181
Section 2(j)"right to information" means the right to information accessible under this Act which is
held by or under the control of any public authority and includes the right to-(i) inspection of work,
documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii)
taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies,
tapes, video cassettes or in any other electronic mode or through printouts where such information
is stored in a computer or in any other device.
406
read harmoniously. The term “held by or under the control of any
public authority” in section 2(j) of the Act has to be read in a manner
that effectuates and is harmony with the definition of the term
„information‟ as defined in section 2(f). The expression used in section
2(j) of the Act should not be read in a manner that it negates or
nullifies definition of the term „information‟ in section 2(f) of the Act. It
is well settled that an interpretation which renders another provision
or part thereof redundant or superfluous should be avoided. It was
further held that the term “held by or under the control of the public
authorities” used in section 2(h) of the Act will include information
which the public authorities are entitled to access under any other law
from a private body.182
Following the trend, in Secretary General, Supreme Court of
India v. Subhash Chandra Agrawal183, full bench of the Delhi High
Court affirmed the ruling of its single judge bench and held that
declaration of assets by the Supreme Court Judges is „information‟
within the meaning of the expression defined in Section 2(f) of the Act
and further that the information pertaining to declarations given to
the Hon‟ble CJI and the contents of such declarations are
„information‟ which is subject to the provisions of the Right to
Information Act.
FIR and Post Mortem report are „information‟ as defined under
section 2(f) as they are material in form of record, documents or
reports which are held by a public authority.184 Similarly, answer
sheets also constitute „information‟.185 It has also been held that the
information relating to future course of action which is not in any
material form is not „information‟ within the definition of information
as contained in section 2(f).186 Also, queries demanding explanation
182
Ibid. 183
2010 (1) ID 1 (Delhi High Court FB). 184
Union of India v. Central Information Commission & Another, 2010 (1) ID 113 (Delhi High
Court). 185
T. Balaji & Others v. TN Public Service Commission & Others, 2010 (1) ID 337 (Madras High
Court). 186
Appeal No. ICPBA / A-15 / CIC / 2006.
407
regarding a decision taken either in favour or against the information
seeker are not covered under the definition of‟ information‟.187
In the similar fashion, the Central Information Commission in
the case of B.H. Veeresha v. Canara Bank,188 has held that the
information has to be provided in the form in which it exists with the
public authority and that too without disproportionately diverting the
resources of the information provider. If information is not available in
electronic form, it does not have to be created for the appellant.
Following the trend, in Pratap Singh Gandas v. District
Administration, South District, Delhi,189 the Central Information
Commission ruled that the RTI Act does indeed require that
information asked for by any citizen of India be provided,
notwithstanding his or her personal standing or reasons for seeking
information {section 6(2)} except in specific cases under which
information may be held exempt from disclosure and can therefore be
refused. If for the supply of information there is a disproportionate
diversion of funds of the public authority, such information can be
denied in the form requested but has nevertheless to be made
available in any other convenient form. Further, records have to be
provided even if they are to be procured from another authority.190
iii) Examination Process and Inspection and Disclosure of Answer-
Sheets
As regards inspection of answer sheets, in University of Calcutta
v. Pritam Rooj,191 a plea was given that giving the examinees access to
their answer sheets would not serve any public interest, but it was
held to be untenable, the court said that disclosure of evaluated
answer scripts would as a matter of fact be conducive to improve the
quality of assessment and make it fairer, more reasonable and
absolutely free from arbitrariness and defects. It was further held that
every person discharging public functions must be accountable to the
187
F. No. CIC / AT / A / 2006 / 00649. 188
Appeal No. 14 / IC(A) / 2006. 189
Appeal No. CIC / AT / A / 06 / 16. 190
Appeal No. CIC / OK / A / 2006 / 00069. 191
2009 (1) ID 161 (Calcutta High Court).
408
people and there is no reason as to why examiners, who also
discharge a public duty, should not be made accountable. The matter
has now been settled finally with the Supreme Court ruling that
answer sheets can be accessed under RTI.
This was recently held in the case of Central Board of Secondary
Education & Another v. Aditya Bandhopadhyay & Others192 In this
case the following questions arose for consideration: Whether an
examinee‟s right to information under the RTI Act includes a right to
inspect his evaluated answer books in a public examination or taking
certified copies thereof? Or whether the decisions of this court in
Maharashtra State Board of Secondary Education193 and other cases
referred to above, in any way affect or interfere with the right of an
examinee seeking inspection of his answer books or seeking certified
copies thereof? Or Whether an examining body holds the evaluated
answer books “in a fiduciary relationship” and consequently has no
obligation to give inspection of the evaluated answer books under
section 8 (1)(e) of RTI Act? or if the examinee is entitled to inspection
of the evaluated answer books or seek certified copies thereof, whether
such right is subject to any limitations, conditions or safeguards?
The Supreme Court held that the examining bodies
(Universities, Examination Boards, CBSE etc.) are neither security nor
intelligence organisations and therefore the exemption under section
24 will not apply to them. The disclosure of information with reference
to answerbooks does not also involve infringement of any copyright
and therefore section 9 will not apply.
Following the trend, the Allahabad High Court has held that the
words “substantially financed” in section 2(h) ii), clearly mean that the
institution concerned has not to be one hundred percent financed by
192
MANU/SC/0932/2011. 193
Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth,
1984 (4) SCC 27.
409
the state. Here the object of the Act was to cover those institutions
which even indirectly receive funds from the government.194
In Kousthubha Upadhyaya v. Department of Personnel &
Training,195 it was held that the Annual Property Returns filed by
Government employees are in the public domain and, therefore, there
is no reason why they should not be freely disclosed. This should be
considered as a step to contain corruption in government offices since
such disclosures may reveal instances where property has been
acquired which is disproportionate to the known sources of income.
In the similar fashion in J.I. Buch v. State Bank of Saurashtra,196
the appellant had sought a large number of information which covered
not only all branches and offices of the bank but also pertained to
several years in time. The CIC upheld the view of the CPIO that
collection and collation of such voluminous information would indeed
divert resources of the Public Authority disproportionately from its
normal public duty. In the instant case, the appellant agreed to revise
his request for information and file a revised request before the CPIO
concerned to enable the CPIO to provide him the information.
Following the trend, the same was held in S.Thangavel v. BSNL,
Chennai,197 where the appellant had asked for photocopies of
voluminous BSNL records. Also in this case, thousands of third
parties were involved and getting their submissions would
disproportionately divert the resources of BSNL. As regards
Performance Appraisal Reports, the CIC held that these were
maintained in confidence and may contain information the disclosure
of which might adversely affect the privacy of an individual.198
Information sought regarding police officials who were caught during
raids along with the amount recovered from each official as well as
details of departmental action or prosecution launched against them
194
Committee of Management, Ismail Girls National Inter College v. State of Uttar Pradesh, 2010 (1)
ID 102. 195
2009 (1) ID 284 (CIC, New Delhi). 196
2010 (1) ID 291 (CIC, New Delhi). 197
2010 (1) ID 319 (CIC, New Delhi). 198
Om Prakash v. Gurgaon Grahmin Bank, 2010 (1) ID 330 (CIC, New Delhi).
410
under the Prevention of Corruption Act, whether they were reinstated in
service etc. etc. Held that exemption under section 24(4) of the RTI Act
cannot be taken advantage of, since the proviso to section 24(4) clearly
states that information pertaining to allegations of corruption and
human rights violations shall not be excluded from the purview of
public access.199
In Khanapuram Gandaiah v. Administrative Officer and
Others,200 the Supreme Court held that a judicial officer was not
obliged to give any reasons as to why he had taken a particular
decision in the matter before him. It was held that a judge could not
be expected to give reasons other than those that had been
enumerated in the judgement or order. A judge speaks through his
judgements. If a person is aggrieved by an order or judgement passed
by a judge, the remedy available to such a party is either to challenge
the same by way of appeal or by revision or any other legally
permissible mode.
With respect to missing or untraceable documents, the CIC in,
Dharmendra Aggarwal v. S.C. Jana, Central Customs and Excise,201
held that the rule of thumb in such cases is whether there could be a
concealed purpose for making such a plea by the public authority.
Since, old papers going missing from government records is not an
uncommon happening, the only way motive for withholding such
information by the public authority can be gauged, is by applying the
test of reason for withholding such information. In the present case
the commission found no reason why such information shall be
withheld by the public authority for any undisclosed motive or
purpose, especially after much of the related information had been
given to the appellant.
The information appeared fairly innocuous, withholding which
might not serve any ostensible or concealed purpose. In Devanga
199
SPIO, Directorate of Vigilance v. R. Karthikeyan, 2010 (1) ID 253 (Madras High Court). 200
2010 (1) ID 287. 201
2009 (1) ID 123.
411
Sankia Rachappa v. State Bank of India,202 it was held that a foreign
branch of State Bank of India was also covered under the RTI Act. In
Sudhir Vohra v. Delhi Metro Rail Corporation,203 the CIC held that the
Delhi Metro Rail Corporation, being „state‟ in terms of Article 12 of the
Constitution of India, could not claim exemption on the ground that
the engineering and structural design was its intellectual property and
was covered under the Copyright Act, 1957. As far as the power of
review is concerned, the absence of a provision for review shall not be
a bar or in other words does not prohibit a statutory authority from
undertaking review in specific circumstances.
This was held by the CIC, in Rajnish Singh Chaudhary v. Union
Public Services Commission.204 The CIC held that it was competent to
review an order which was erroneous on the face of it or where there
had been a violation of principles of natural justice. The touchstone
for assuming the power of review is not always the presence of that
specific power in the statute but a considered view of the statutory
authority that without review there was an apprehension of
miscarriage of justice. The power to correct through review is germane
to promoting justice.205
In Pyare Lall v. PIO, Punjab & Haryana High Court,206 it has
been held that merely because a certain matter was sub-judice did not
render information regarding thereto exempt from disclosure unless
its disclosure was expressly forbidden by the court or the disclosure
constitutes contempt of court. In case of a matrimonial dispute, the
petitioner husband had sought information in respect of his wife‟s
service records. His argument was that he was entitled to this
information because his wife was a public servant. The CIC as well as
the Delhi High Court held that there is no public interest element in
the disclosure of such personal information. The litigation between the
202
2009 (1) ID 231 (CIC, New Delhi). 203
2010 (1) ID 560 (CIC, New Delhi). 204
2009 (1) ID 429. 205
Ibid. 206
2008 (2) ID 263 (State Information Commission, Punjab).
412
husband and the wife was a private one and hence the husband could
not use the Right to Information Act to get information against his
wife.207
In Uma Kanti v. Navodaya Vidyalaya Samiti,208 the CIC noticed
that the RTI application actually comprised thick piles of paper
containing „questions proforma‟ and the information sought was
spread over a period of twenty years and concerned thousands of
employees. The Commission opined that it is perhaps the worst case
to have come before the bench, showing the worst misuse of the RTI
Act. The Commission directed the Respondents not to consider the
RTI applications filed by the appellant and his wife since RTI cannot
be turned into a tool for vendetta of an employee against his
organisation for some grievance. The Commission also expressed its
desire to have some provision in the Act for taking punitive action
against appellants who seek to misuse the Act. Moving to a path
breaking decision, perhaps the first in the Northern region following
the implementation of the RTI Act, a consumer court (the District
Forum) in Mohali has held that a person seeking information under
the RTI Act is a „consumer‟ and the department delaying the
information beyond the stipulated period of thirty days can be held
liable for „deficiency in service‟ under the Consumer Protection Act as
the fees of Rupees Ten paid by the applicant amounts to
„consideration‟. The forum directed the APIO of the Rural Development
and Panchayats Department, Punjab to pay Rupees Five Thousand as
fine along with litigation cost of Rupees Two Thousand for delay in
supplying information.209
iv) Penalty and Compensation
The Right to Information Law in India is indeed a landmark
legislation in the sense that it also has a provision of imposition of
penalties against an erring Central Public Information Officer or the
207
Vijay Prakash v. Union of India and Others, 2009 (2) ID 384. 208
2009 (2) ID 404. 209
Ajay Sura, “Person Seeking Information Under RTI Act is a Consumer”, The Times of India, 22
September 2011, p. 04.
413
State Public Information Officer, as the case may be, who has, without
any reasonable cause, refused to receive an application for
information or has not furnished information within the time specified
under subsection(1) of section 7 or „malafidely‟ denied the request for
information or knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject of the
request or obstructed in any manner in furnishing the information. In
such a case the Information Commission shall impose a penalty of two
hundred and fifty rupees each day till application is received or
information is furnished, however, the total amount of such penalty
shall not exceed twenty-five thousand rupees. This penalty shall be
imposed after giving a reasonable opportunity of being heard to the
PIO concerned. It has been further provided that the burden of
proving that he acted reasonably and diligently shall be on the PIO
concerned.210 The Information Commissions have made use of this
provision time and again to reprimand the erring officers. However,
there has been adebate on this provision as well. It has been observed
that at times it becomes difficult to provide information within the
stipulated time frame of thirty days as ordained by the RTI Act. This
could be due to a number of factors such as difficulty in locating the
information asked for, nature of the information, administrative
emergencies, preoccupation with some other important work and so
on. Some are of the view that there should be a blanket imposition of
penalty in order to ensure effective implementation of the Act, while
others feel that the Commission should take the above mentioned
factors into consideration before imposing penalties because at times
the PIO‟s face genuine hardships in supplying the requisites
information. Another cause for concern is that while the Information
Officer is subject to the disciplinary jurisdiction of the Information
Commission, and to penalties for failure, to furnish information within
the time limit, no such penalties are provided for with regard to the
appellate authorities. Penal provisions should also extend to the
210
Section 20 of the Right to Information Act, 2005.
414
Appellate Officers. In one of its earliest rulings, the CIC held that
under section 20(1) of the RTI Act, the Information Commission before
imposing a penalty upon the PIO, must satisfy itself that the CPIO has
without reasonable cause:
(i) Refused to receive an application
(ii) Not furnished information within the specified time limit
(iii) „Malafidely‟ denied information
(iv) Knowingly given incorrect, incomplete or misleading information
(v) Destroyed information or obstructed giving information.211
As a matter of fact, the Information Commission is empowered to even
penalize the deemed PIO. In K.D. Mahto v. Coal Mines Provident Fund
Manager,212 the CIC held that section 5(5) of the RTI Act reads that,
“Any officer, whose assistance has been sought under sub-section (4),
shall render all assistance to the Central Public Information Officer or
State Public Information Officer, as the case may be, seeking his or
her assistance and for the purposes of any contravention of the
provisions of this Act, such other officer shall be treated as a Central
Public Information Officer or State Public Information Officer, as the
case may be”, it is, therefore, clear that a person whose assistance has
been sought by the PIO in discharging his duty under the RTI Act
shall be treated as a PIO. This section when read with section 20(1)
empowers the Information Commission to impose penalty on the
equally culpable officer who may not be the designated PIO but due to
whom the information was either delayed or denied. Also, when there
are separate applications and a case is made out for imposition of
penalty, then penalty shall be imposed on the PIO for each of the
applications hence, in Pramila Sharma v. Daulat Ram College,213 the
Central Information Commission imposed a penalty of Rupees One
Lac Twenty Five Thousand, as there were five separate RTI
applications. And the amount of penalty is recovered from the PIO 211
Ravinder Kumar v. MCD, Complaint No. CIC / WB / A / 2006 / 00008. 212
F. No. CIC / AT / C / 2006 / 00095 213
Appeal No. CIC / OK / A / 2006 / 00013
415
either directly or through deduction from salary.214 The Madras High
Court, in the case of PIO/GM, Villupuram v. Tamil Nadu Information
Commission & Others,215 held that when maximum and minimum
penalties have been prescribed, the proportionality of such penalties
can also be granted, which can be pleaded by any officer. Therefore, it
obliges the Information Commission to pass a separate order after
issuing separate show cause notice to the Information Officer so as to
enable him to satisfy the Information Commission with their defence.
The imposition of penalty and recommendation for disciplinary action
can be taken on several grounds including grounds of delay, malafide
denial, incorrect, incomplete or misleading information etc.etc.
Therefore, in each of the cases, penalty has to be in proportion to the
charge levelled against the information officer. Unless the information
officer is personally notified with the proposal of the commission to
impose a maximum penalty together with a direction to recommend
disciplinary action, imposition of penalty may not be legally valid. The
impugned order is thus liable to be set aside both on grounds of
procedural violation and also on the question of proportionality of the
penalty.
If the information sought is not supplied within the time limit
specified under section 7(1), then the information will be provided free
of charge in light of section 7(6). In appropriate cases even the
damages suffered by the applicant are reimbursed.216As regards
payment of compensation, the CIC held in Devendra Narain v. Ministry
of Health and Family Welfare,217 that the power of the Commission to
award compensation is limited to matters connected with the RTI
applications only and therefore, if any hardship had been caused to
214
Navin Neeraj and Subroto Roy v. MCD, Adjunct to Appeal Nos. CIC / WB / A/ 2006/ 00386, 388
& 389 215
2010 (1) ID 241 (Madras High Court). 216
Gita Dewan Verma v. Urban Development Department, Delhi, Appeal No. CIC /WB / C / 2006 /
00182. 217
Appeal No. 102/ICPB/2006.
416
the appellant in his having to send eight letters/e-mails etc., the same
cannot be taken cognizance of by the Commission for the purpose of
awarding compensation. However, compensation shall be paid by the
public authority in case of any mental harassment caused to the
applicant.218 Further, the appellant can claim damages under section
19(8)(b) of the RTI Act but he shall have to satisfy the Information
Commission that he had actually suffered damages with an account of
the amount lost before compensation can be considered. The
appellant may, therefore, submit a statement of the expenses incurred
for which he is seeking compensation.219 It is also clarified that the
compensation cannot be claimed from the penalty imposed. That
would be required to be claimed separately under section 19(8)(b) of
the RTI Act.220 Under section 19, it is essential that the complainant
brings out clearly what loss or detriment has been suffered by him by
the non-supply of information within the stipulated time. Where an
application has been made in public zeal and there is no intended
follow up action to be taken up after the receipt of the information and
it has neither been brought out that as to what loss or detriment has
been suffered by the complainant due to the non-supply of the specific
information for which he is seeking compensation, no compensation
can be granted.
Attending all the hearings or pursuing a complaint filed by him
before the commission cannot by itself constitute the detriment or
loss. Hence, in such a case, compensation is declined.221 In the case of
D.P. Shukla v. All India Radio,222 where the appellant had travelled to
218
M.N. Trivel v. CGHS, Pune, Appeal No. 30 / ICPB / 2006. 219
S.K. Bagga v. Estate Office, Union Territory of Chandigarh, Complaint No. CIC / WB /C / 2006 /
00188. 220
P.S Sawhney v. Law and Prosecution Department, Union Territory of Chandigarh, Appeal No.
CIC / WB / A / 2006 / 00268. 221
Rohit Sabharwal v. PIO, District Transport Officer, 2010 (1) ID 363 (SIC Punjab).44 2009 (1) ID
128 (CIC, New Delhi). 222
2009 (1) ID 128 (CIC, New Delhi).
417
Delhi from Lucknow for the hearing but the PIO was not present to
explain the case and in view of the harassment caused to the
appellant, the commission ordered a compensation of Rupees Two
Thousand to be paid to the appellant by the department concerned.
On 22nd September, 2011, the Punjab and Haryana High Court set
aside an order passed by the Punjab State Information Commission,
vide which he had closed the case of the petitioner, Krishna Devi by
awarding her a meagre compensation of Rupees Two Thousand only
without deciding the issue of imposing penalty against a PIO at the
office of Civil Surgeon, Patiala. The Court has further asked as to why
the complainant should not be compensated for the harassment and
financial loss suffered in getting the information. The Court recorded
that the State Information Commissioner had in his order directed the
PIO concerned to show cause why supply of information was delayed
and also why penalty be not imposed on him for the delay. The PIO,
however, in his affidavit did not respond to these issues. The State
Information Commission then vide its order dated 28 December, 2010
directed the respondent public authority to pay Rupees Two Thousand
to the petitioner and thereafter closed the case on 20 January, 2011.
On approaching the High Court, the Hon‟ble Court directed that both
parties appear before State Information Commission for the purpose of
assisting the Commission in deciding the issue of delay in the supply
of information and also on the issue of imposition of penalty.223
6.7 CONCLUSION
In the present chapter we have seen how the Information
Commissions, and the judiciary are promoting and enforcing
democratic accountability via the RTI Act. All efforts are being directed
to ensure that accountability shall target mismanagement, abuse of
discretion, corruption and other administrative malpractices.
However, it is well recognised that right to information is not sufficient
to improve governance and a lot more needs to be done to usher in
223
“HC Sets Aside Order of Info Panel Directive”, The Indian Express, 22 September
2011, p. 05.
418
good and clean administration, including protection to the whistle
blowers, decentralisation of power and fusion of authority with
accountability at all levels. Thus, we see that the Right to Information
has been seen as the key to strengthen participatory democracy and
promoting people-centric governance. Access to information can
empower the downtrodden sections of the society to demand their
welfare and actually bring into operation the numerous beneficial
schemes of the government, which mostly remain on paper due to a
lack of administrative intent to bring them in action. In a fundamental
sense, therefore, the Right to Information Act, if used and
implemented prudently, has the potential to unleash good governance
and to make the governmental system more responsive to community
needs, which is the basic premise of democracy.