p9- national mechanisms for protection and enforcement of

Human Rights and Duties

National Mechanisms for the Protection and Enforcement of Human Rights

Right to Information Act

P9- National Mechanisms for Protection and Enforcement of Human Rights


Principal Investigator:

Paper Coordinator:

Content Writer:

Content Reviewer:

Prof. (Dr.) YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University

Development Team



Prof. (Dr.) Padmanabha Ramanujam, Dean, School of Law, Auro University, Surat




Description of Module

Subject Name Human Rights and Duties

Paper Name National Mechanisms for the Protection and Enforcement of Human Rights

Module

Name/Title


Module Id 29

Pre-requisites

Objectives

Keywords




Right to Information Act Table of Contents

1. Learning Outcomes

2. Introduction

3. Relevant provisions/mechanism under the RTI Act 3.1 ‘Information’ under the Act

3.2 ‘Public authority’ under the Act

3.3 Exceptions to furnishing information

3.4 Provisions of Appeal

4. Powers and functions of the central and state level authorities empowered by the RTI Act

5. Third Party Information under the RTI Act

6. Conclusion 7. Further reading





1. Learning Outcomes

At end of this module, students would be able to analyse the importance of information

from the government on all matters which affect any person’s rights in the country and

the importance of the RTI Act in this respect.

Students would also be in a position to understand what constitutes ‘information’ under

the RTI Act, 2005, who can seek it, where it can be sought, and within what time should

such a request be replied to?

Understand various provisions in RTI Act and certain important judgments which

constitute the relevance of the Act in India.

2. Introduction

The Right to Information Act, 2005, (RTI Act), which replaced the Freedom of Information Act,

2002, was passed in pursuance of the freedom of speech and expression under Article 19(1) (a)

of the Indian Constitution. Its passage represents a paradigm shift from an era governed by the

Official Secrets Act to one marked by transparency and accountability. Article 19 of the

Universal Declaration of Human Rights and article 19 of the International Covenant for Civil and

Political Rights entitles a citizen, inter alia, to seek, receive, and impart information and ideas.

The Supreme Court of India, in S. P. Gupta v. Union of India1, has also stated that an open

government is a powerful safeguard against political and administrative aberrations and

inefficiency. Evidently, such inactions on the part of government often impinges on the rights

of the various sections of the population. In this respect, RTI Act is of utmost significance

wherein actions of the government attract public scrutiny and thus accountability. In fact, the

Preamble itself recognizes the fact that since the revealing of certain information is likely to

conflict with other public interests like "the preservation of confidentiality of sensitive

information", there is a need to harmonise these conflicting interests.2

The Act seeks to empower Indian citizens to seek information from a ‘Public Authority’, thus

making the Government and its functionaries more responsible.3 Every material that is included

within the meaning of ‘information’, which has been given a wide import in the Act, can be

sought from the concerned public information officer.

1 AIR 1982 SC 149 2 Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1 3 Understanding the “Key Issues and Constraints” in implementing the RTI Act, June 2009.

http://rti.gov.in/rticorner/studybypwc/Executive%20Summary.pdf (last accessed on 22nd May, 2017)

http://rti.gov.in/rticorner/studybypwc/Executive%20Summary.pdf




Information commissions have also been set-up at the central and the state-level to administer

the provisions of the Act. Further, the RTI Act has, vide section 22, an over-riding effect vis-à-vis

other laws, including the Official Secrets Act, 1923.

4 Relevant provisions/mechanism under the RTI Act

3.1 ‘Information’ under the Act

According to Section 2(f) of the RTI Act, 2005, ‘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”.

The Supreme Court in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay

and Ors.4 Observed that, “the effect of the provisions and scheme of the RTI Act is to divide

'information' into the three categories. They are:

(i) Information which promotes transparency and accountability in the working of every

public authority, disclosure of which may also help in containing or discouraging

corruption (enumerated in Clauses (b) and (c) of Section 4(1) of RTI Act).

(ii) Other information held by public authority (that is all information other than those

falling under Clauses (b) and (c) of Section 4(1) of RTI Act).

(iii) Information which is not held by or under the control of any public authority and

which cannot be accessed by a public authority under any law for the time being in

force.”

The Court held that information under the third category does not fall within the scope of RTI

Act. It went on to state that “Section 3 of RTI Act gives every citizen, the right to 'information'

held by or under the control of a public authority, which falls either under the first or second

category. In regard to the information falling under the first category, there is also a special

responsibility upon public authorities, under section 4 (2), to suo moto publish and disseminate

such information so that they will be easily and readily accessible to the public without any need

4 (2011) 8 SCC 497




to access them by having recourse to Section 6 of RTI Act. There is no such obligation to publish

and disseminate the other information which falls under the second category.”

Any person who desires to obtain any information under the act can make a request for the

information under section 6 of the act without giving a reason for such a request or any

personal details, except those that are necessary to contact him. This signifies that the act does

not prescribe to any specific format of application for making a request under this act. One

needs to pay relevant fees applicable for obtaining the information. However, in cases of

contention whether a particular information sought comes within the ambit of the Act, it is

eventually the Court which are asked to adjudicate.

For instance, in Khanapuram Gandaiah v. Administrative Officer and Ors.5, the Court held that

the “definition (of “information”) shows that an applicant under Section 6 of the RTI Act can get

any information which is already in existence and accessible to the public authority under law.

Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices,

circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices,

circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions.”

3.2 ‘Public authority’ under the Act

A ‘public authority’ is any authority or body or institution of self-government established or

constituted by or under the Constitution; or by any other law made by the Parliament or a State

Legislature; or by notification issued or order made by the Central Government or a State

Government. The bodies owned, controlled or substantially financed by the Central

Government or a State Government are also public authorities. Non-Government organisations

substantially financed by the Central Government or a State Government also fall within the

definition of public authority. The term “substantially financed” is not defined in the act. Public

authorities have designated some of its officers as Public Information Officers who are

responsible to give information to a person who seeks information under the RTI Act.

The concerned public information officer is required to accept the request, if the information

sought is available with him and comes within the purview of the act, and provide the

information or reject the request within 30 days.

5 Khanapuram Gandaiah vs. Administrative Officer and Ors., AIR 2010 SC 615




In Thalappalam Ser. Coop. Bank Ltd. and Ors. v. State of Kerala and Ors.6, the Court held that

the “expression ‘substantially financed’, as such, has not been defined under the Act.

‘Substantial’ means "in a substantial manner so as to be substantial". The word 'substantial' is

not synonymous with 'dominant' or 'majority'. It is closer to 'material' or 'important' or 'of

considerable value.' 'Substantially' is closer to 'essentially'. The burden to show that a body is

owned, controlled or substantially financed or that a non-government organization is

substantially financed directly or indirectly by the funds provided by the appropriate

Government is the applicant who seeks information or the appropriate Government.”

3.3 Exceptions to furnishing information

Sub-section (1) of section 8 and section 9 of the Act enumerate the types of information which

are exempt from disclosure. Section 8 prescribes the following grounds for rejecting a person’s

request for disclosure of information:

National security or sovereignty and integrity of the nation

National economic interests

Relations with foreign states

Law enforcement and the judicial process

Information available to a person in one’s fiduciary relationship

Cabinet papers and other decision-making documents

Trade secrets, intellectual property and commercial confidentiality

Individual safety

Personal privacy

The following three grounds of rejection can be cited by the public information officer under

“public interest”:

Trade secrets, intellectual property and commercial confidentiality

Information available to a person in one’s fiduciary relationship

Personal privacy

6 Thalappalam Ser. Coop. Bank Ltd. and Ors. vs. State of Kerala and Ors., (2013) 16 SCC 82




Section 9 allows the rejection of a request for disclosure of information that would involve the

infringement of a copyright subsisting in a person other than the state.

The information which, in normal course, is exempt from disclosure under subsection (1) of

Section 8 of the Act, would cease to be exempted if 20 years have lapsed after occurrence of

the incident to which the information relates.

However, the following types of information would continue to be exempt and there would be

no obligation, even after lapse of 20 years, to give any citizen-

(i) Information, disclosure of which would prejudicially affect the sovereignty and

integrity of India, the security, strategic, scientific or economic interest of the State,

relation with foreign state or lead to incitement of an offence;

(ii) Information, the disclosure of which would cause a breach of privilege of Parliament

or State Legislature; or

(iii) cabinet papers including records of deliberations of the Council of Ministers,

Secretaries and other Officers subject to the conditions given in proviso to clause (i)

of sub-section(1) of Section 8 of the Act.

Additionally, section 24 excludes the operation of this act on the intelligence and security

organisations specified in the Second Schedule of the act. The Schedule can be amended by the

Central Government and the State Government.

In Shailesh Gandhi v. The Central Information Commission and Ors.7, the Court held that “[t]he

records maintained by the Income Tax Department in respect of an individual who is an assessee

before it cannot be said to be a public record as it is well settled that the Income Tax

Department holds the said records in a fiduciary capacity.”

Also, in, Central Board of Secondary Education and Anr v. Aditya Bandopadhyay and Ors.8, the

Court held that, “rules and regulations governing functioning of public authorities require

preservation of information for only a limited period, applicant for information will be entitled

to such information only if he seeks information when it was available with public authority.

Where information sought was not a part of record of a public authority and where such

information was not required to be maintained under any law or rules or regulations of public

authority, Act does not cast an obligation upon public authority to collect or collate such non-

available information and then furnish it to an applicant.”

7 The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors., 2015 (6) Bom CR91 : [2015] 232

TAXMAN 783 (Bom) 8 Central Board of Secondary Education and Anr vs. Aditya Bandopadhyay and Ors., (2011) 8 SCC 497




3.4 Provisions of Appeal

Provision of the act Presiding authority Limitation

period

Time limit for

disposal

Section 6- Request for

obtaining information

Public Information

Officer

30 days

Section 19 (1)- 1st

Appeal

Central Public

Information Officer or

the State Public

Information Officer,

as the case may be

30 days 30 days or such

extended period not

exceeding a total of

45 days from the

date of filing.

Section 19 (3)- 2nd

Appeal

Central Public

Information Officer or

the State Public

Information Officer,

as the case may be

90 days Not specified

Where the Information Commission at the time of deciding any complaint or appeal is of the

opinion that the Public Information Officer has without any reasonable cause, refused to

receive an application for information or has not furnished information within the time

specified or denied the request for information with a mala fide intention 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, it shall impose

a penalty of two hundred and fifty rupees each day till application is received or information is

furnished subject to the condition that the total amount of such penalty shall not exceed

twenty five thousand rupees.

4. Powers and functions of the central and state level authorities empowered by the RTI Act

Under the Act, sections 12, 13, and 14, deal with the setting up and functioning of the Central

Information Commission. The Central Government has to appoint the Central Information




Commission which shall consist of the Chief Information Commissioner; and such numbers of

Central Information Commissioners not exceeding ten as may be deemed necessary. The Chief

Information Commissioner and the other members are appointed by the President on the

recommendation of a committee consisting of the Prime Minister, who shall be the Chairperson

of the committee, the Leader of Opposition in the Lok Sabha, and a Cabinet Minister to be

nominated by the Prime Minister.

Section 15, 16, and 17 of the Act deal with the setting up and functioning of the State

Information Commission. The State Government has to appoint the State Information

Commission consisting of the State Chief Information Commissioner; and such numbers of State

Information Commissioners not exceeding ten as may be deemed necessary. The State Chief

Information Commissioner and the other members are appointed by the President on the

recommendation of a committee consisting Chief Minister, who shall be the Chairperson of the

committee, the Leader of Opposition in the Legislative Assembly, and a Cabinet Minister to be

nominated by the Chief Minister.

The powers of the commissions constituted are enumerated in section 18.

The Central Information Commission/State Information Commission has a duty to receive

complaints from any person -

who has not been able to submit an information request because a PIO has not been

appointed;

who has been refused information that was requested;

who has received no response to his/her information request within the specified time

limits;

who thinks the fees charged are unreasonable;

who thinks information given is incomplete or false or misleading; and

any other matter relating to obtaining information under this law.

They have the power to order inquiry if there are reasonable grounds. CIC/SCIC will have

powers of Civil Court. They have the power to secure compliance of its decisions from the

Public Authority for-

providing access to information in a particular form;

directing the public authority to appoint a PIO/APIO where none exists;




publishing information or categories of information;

making necessary changes to the practices relating to management, maintenance and

destruction of records ;

enhancing training provision for officials on RTI;

seeking an annual report from the public authority on compliance with this law;

require it to compensate for any loss or other detriment suffered by the applicant;

impose penalties under this law; or

reject the application.

The appellate provisions under section 19 are distinct and independent of the powers and

functions of the SIC/CIC to inquire based on a complaint received under section 18. Under

Section 18 of the Act the SIC/CIC is not empowered to pass a direction to the State Information

Officer/Central Information Officer for furnishing the information sought for by the

complainant.9

5. Third Party Information under the Act

If an applicant seeks any information which relates to or has been supplied by a third party and

that third party has treated that information as confidential, the Public Information Officer shall

consider whether the information should be disclosed or not. The guiding principle in such

cases is that except in the case of trade or commercial secrets protected by law, disclosure may

be allowed if the public interest in disclosure outweighs in importance any possible harm or

injury to the interests of such third party.

If the Public Information Officer intends to disclose the information, he shall within five days

from the receipt of the application, give a written notice to the third party that the information

has been sought by the applicant under the RTI Act and that he intends to disclose the

information. He shall request the third party to make a submission in writing or orally,

regarding whether the information may be disclosed. The third party shall be given a time of

ten days, from the date of receipt of the notice by him, to make representation against the

proposed disclosure, if any.

6. Conclusion

9 Chief Information Commr. and Anr. v. State of Manipur and Anr., AIR 2012 SC 864




The right to information is derived from our fundamental right to freedom of speech and

expression under Article 19 of the Constitution. Access to information promotes transparency

and accountability of the government for its actions. This is especially pertinent in cases of

human rights where due to violations, the circumstances of the victims become urgent.

Moreover, in order to tackle systematic culture of violations, it is imperative to locate the

source of decision-making in the government which is allowing the government to deprive

sections of persons from basic fundamental rights. RTI Act has laid down a thorough

mechanism where such information can be accessed and thus it has contributed to holding the

relevant authorities and bodies responsible and will continue to do so. However, the

indifference of the authorities as well as successive attempts to dilute the provisions of this Act

must be resisted since as already reiterated right to information is of paramount importance in

a liberal democracy such as India.

7. Further Reading

1. Right to Information Act, 2005.

2. Guide on Right to Information Act, 2005 issued by Ministry of Personnel, Public

Grievances & Pensions Department of Personnel & Training

http://rti.gov.in/RTICorner/Guide_2013-issue.pdf

3. Website of Central Information Commission, http://www.cic.gov.in/.

4. Commonwealth Human Rights Initiative website,

http://www.humanrightsinitiative.org/.

http://rti.gov.in/RTICorner/Guide_2013-issue.pdf

p9- national mechanisms for protection and enforcement of

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