NOTES ON RIGHT TO INFORMATION ACT, 2005
This article is primarily based on the chapter 4 of the Right to information Act, 2005. Right to information is the sine quo none to the democracy, the citizens of must be vigilant of the issues related to the Government and others as well.It is the responsibility of the authorities to provide information to the citizen. Hon’ble Supreme Court of India has also expressed that right to information is flows from the concept of freedom of speech and expression under Article 19(1) (a). Right information is globally recognized, it is considered to be the sacred right of the citizen. Several convention/treaties (ICCPR,UDHR) has propounded that right to information is the human right. This article also relates to the overriding effect of the aforesaid act over the other statues. It has also discussed about the concept of non-disclosure or exemptions have provided to certain organizations as well as the bar of jurisdiction of the court in certain matters.
A Brief Introduction about the RTI law in India:
The story behind the making of RTI law in India was started way back in 1990.
MazdoorKisan ShaktiSangathan(MKSS) has made persistence effort in order to attain the transparency in the process. They have reported the situation in several parts of India (specifically in Rajasthan) where the workers were not getting minimum wage, violation of human right in such areas. This step led to the formation of Rajasthan Right to Information Act,1999.
In 1993, the Consumer Education and Research Council (Ahmendabad) proposed a draft RTI law. Also, in 1996 the Press council of India which was led by Justice P.B Sawant drafted the RTI law at the national level. The Government of India failed to considered these draft and it has never came into the existence.
In 1997, the central Government appointed a working group which was headed by Mr. H.D. Shourie, the main purpose of this group is to formulate the RTI law in state as well as national level. The Shourie’s committee report was completed by 1997. The report was criticized by the civil society group because it has not provided appropriate method of disclosing the information.
Again in 2000, the national freedom of information bill was presented in the LokSabha. It was passed the test of both the houses. It has also received the assent of the President of India in 2003. But due to some reason it was never came into the force.
At this juncture it is pertinent to mention that The National Commission Review of Constitution was set up in 2002 which was headed by Hon’ble Chief Justice of India M.N. Venkatchaliah (as he then was), the commission has submitted its report in 2002, it has recorded that right to information is the fundamental right.[1]
And finally in 2004, the Right to Information Act was tabled in the house. The bill was send to the standing committee. After discussed at length the report/suggestion of the said committee was passed in the house. In 2005, it has received the assent of President APJ Abdul Kalam. The act finally came into the force in 2005.
The Right to Information Act, 2005
The object and purpose of the act to provide free access of information, transparency in the procedure, free flow of information, maximum information and minimum exemption, must maintain the accountability in the working process of authority, provide expeditious information. The fulcrum object of the act is to preserve the ideals of the democracy.
Section 21 Protection of action taken in good faith-No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.[2]
The mail ingredient of the section as follows:
1) Action taken in good faith.
2) Doctrine of Immunity.
3) Any person.
This section is clearly mentioned that the protection is granted to the person who has been provided the information to the other in a good faith. The aforesaid provision is emphatically strengthenthe working process of the public authority. It ensures them to provide information freely and sans having any influence. One of the foremost object of the present provision is to provide maximum information and minimum interference.
It is pertinent to explain the word “Good Faith” given under the section in relation to the mentioned statute. The term Good Faith has not been defined under the RTI Act, 2005. But the definition of “Good Faith” has been mentioned under section 52 of the IPC, 1860. It follows as: Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
As in the case of State of Orissa vsBhagabanBarik[3], the Hon’ble Apex Court held that “the question of good faith must be considered with the reference to the position of the accused and the circumstances under which he acted. Good faith requires not logical infallibility but due care and attention. The question of good fait is always a question of fact to be determined in accordance with the proved facts and circumstances of each case”.
The analogy of the word good faith is that the person is not acting in a good faith if he has not proceeded with due care and attention. It also means that intention of concerned person must not be mala fide, not involved any dishonest intention. The duty of the public officer is to work fearlessly and uphold the objectives enshrined in the statute.
The word due care and attention is sine quo non to the principle of good faith which means that the act of concerned person must be based on appropriate logics or due diligence and proceeded by rational/intangible approach. The degree of reasonableness is depends upon the facts and circumstance of each case.It is pertinent to mention that in the case of Re SK Sundaram[4], the apex court held that “a degree of case, precaution or diligence as may fairly and of the subject matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent would exercise under the condition existing at the time he is called upon to act”.
[1]The Report of NCRWC, referred in J.N. Barowalia, Commentary on the Right to Information Act, 2005 (Universal Law Publishing Co., New Delhi, 3rdedn., 2012).
[2]The Right to Information Act, 2005 (Act 22 of 2005).
[3] AIR 1987 SC 1265: AIR 1966 SC 97.
[4](2001) I CCR 45 (SC).
Section 5
Section 5(1):Designation of PIO’S
Every public authority within 100 days from the date of an enactment of this act (15th July 2005) shall appoint as many officers as Central Public Information Officer (CPIO) or State Public Information Officer (SPIO) in all the administrative units or officers as may be necessary for providing information to the people who are requesting for such information under this act.
Section 5(2):Designation of APIO
Without Prejudice to the provision of section 5(1), every Public Authority shall designate an officer within 100 days of the enactment of the act as Central Assistant Public Information Officer (CAPIO) or State Assistant Public Information Officer (SAPIO) to receive applications or appeal under this act and same forwarding to the CPIO or SPIO or other senior officer mentioned under section 19 or Central Information Commission or State Information Commissionas the case may be. Where an application for information or appeal is filed before CAPIO or SAPIO a period of 5 days shall be added in computing for time period for response specified under section 7(1).
Section 5(3):Role and functions of PIOs
Every CPIO or SPIO shall deal with the request from person seeking information and render reasonable assistance to the persons seeking such information.
Role and Functions of PIOs
1) To receive applications for information or appeal from public file under this act
2) To provide all types of assistance needed to the public requesting for such information
3) Applications filed for other Public Authority shall within the time period of five days should be transferred to that such Public Authority
4) The concerned PIOs should respond to the request within the time period specified under this act.
5) The PIOs should take assistance of the third parties
Section 5(4):Deemed PIO
The Public Information Officer shall take assistance of the other officers as he or she considers necessary for proper discharge of his duties. The officer whose assistance has been sought is under obligation to provide all necessary assistance and for the purpose of contravention the said officers is concerned as Public Information Officer under the said act.
Section 6: Request For Obtaining Information
Section 6(1):Any person who desires to obtain information shall be made in writing or electronic means in English or Hindi or in other Vernacular language along with the requisite fees (Rs 10) to PIO or APIO specifying the particulars of information sought by him or her.
Provided that if such request cannot be made in writing the CPIO or SPIO shall render all reasonable assistance to the concerned person who is requesting orally to reduced it into writing.
Section 6(2):Cause of Information
An applicant who is requesting to extract or sought information has in no obligation to provide the reasons for requesting such information or personal details except the details needed for contacting such persons.
Section 6(3):Transfer of Application to other PublicAuthority
Where an application is made to a Public Authority requesting for information:
a) is held by another Public Authority or
b) the subject matter of information is closely connected with the functions of another Public Authority
The Public Authority to which such application is made shall transfer such application or part as it may be necessary to such Public Authority and shall inform to the applicant immediately of such transfer
Provided that transfer of application pursuant to this sub section shall be made as soon as practicable and in no way not later than five days from filing such application.
Landmark Judgments
(Multiple application on same subject matter IN THE CENTRAL INFORMATION COMMISSION NEW DELHI)
Nitesh Kumar Tripathi Vs. Respondent: GNCTD, 2014
Brief Facts:
The Appellant/ Complainant in all the Applications/ First appeals made to the respective PIOs/ first Appellate Authority seeking almost similar information and does not enclose the replies made by the PIOs/ Orders made by the first appellate authority. The Appellant is seeking information of number of information in different hospital, number of advertisements made by the different hospital in JS/JR Category, amount of expenditure made for the payment of electricity bill, salary of staff & each and every roster system for reserved category. The Appellant/Complainant alleging that such information is not provided and he files 2nd appeal in all the respective 13 cases.
Judgment:
The Commission records its reprimand against the appellant and directed all the public authority not to take into consideration the repeated RTI Applications filed by the appellant without specifying or focus of requirements for seeking such information. The Commission also directed that reply of the same RTI applications should be made it into consolidated form and should be displayed on the website to avoid the filing of multiplicity of applications in the future and such applications if filed in the future to be disposed of in limine by directing to the website and such consolidated reply should be made available in office premises.
No scope for repeating under RTI Act
Ramesh Chand Jain
Vs.
GNCTD
Brief Facts:
The Appellant has filed RTI applications seeking information of the assets and service details of then CMD, DTC Mr. Rajiv Verma and also the total amount of pensions paid to the retired employees. Not Satisfied with the information of PIO, Appellant has filed the first appeal. The appellate order the PIO to provide Particular Information of the unit or department and provide within 15 days. Not satisfied with the order, the Appellant has filed the 2nd Appeal before this Commission.
Judgment:
The act does not provide such ground specifically for refusing such information but it is implied from the various sections of the act that the applicant has only one chance to seek information on particular subject matter. Repeated Applications will lead to clogging of the office and it would act as a hurdle in discharging of their daily routine duties and to avoid wastage of such time on such applications the PIOs & Public Authority has a right to refuse such information.
Commission shall note MISUSE, Rebuke MISUSER
There is no direct statutory provision penalizing the applicant who has abusing his right to seek information under this act by filing multiple applications on same subject matter and acts as a hurdle for authorities in discharging their general duties. the commission has to record such abuse/misuse and admonish the applicant not to repeat this. if there are repeated acts by the applicant the commission may order for removing such abuse and direct the concerned authority or other authorities not to entertain such applicant anymore.
Citizen has no right to file multiple Applications
By a combined reading of the statutory provisions and objectives of the act and above orders of the commissioner, the applicant has no right to file multiple applications on the same subject matter or slightly altered information which he has received and such applicant should be refrained from filing such subject matter and if the commission is of the opinion that information has been provided the Public Authority or CPIO has a right to refuse such applications and shall intimate to the applicant along with reasons.
Guideline Relating to Section 6(3) of
the RTI Act 2005
IN THE CENTRAL INFORMATION COMMISSION
NEW DELHI
Decided On: 22 .01.2007
Appeal No. CIC/WB/A/2006/00365
Appellants: Shyam Singh Thakur
Vs.
Respondent: Department Of Science & Technology
Brief Facts:
The Appellant has filed application before the Department of Science and Technology seeking information on different issues. The PIO & Appellate Authority of the Department of Science and Technology that the particulars of the information is not related to the Department of Science & Technology and advised him to approach the concerned Public Authority.
Judgment:
The Central Information Commission, through its order held that the PIO & the Appellate Authority in the Department of Science & Technology is wholly justified in intimating the applicant that the particulars of the information sought by the appellant is not concerned with their department. It was further held that the concerned authority is in full obligation to transfer such application to the appropriate authority within the five days of receipt of such applications as has been laid down under Section 6(3) of the act.
Section 7
Section 7(1): Time Limit For The Supply Of Information
Subject to the provisions of subsection (2) of Section 5 or proviso to the subsection (3) of Section 6 the CPIO or SPIO as the request under section 6 shall as expeditiously as possible and within the 30 days of the said request by providing payment of fees or refuse the request on the grounds mentioned under Section 8 & 9.
Provided that if Information sought concern to the life or liberty of person the said Information should be sought within 48 hours of the receipt of such request.
Practical Aspects
A) If request has been made to the PIO, it is to be provided within 30 days.
B) If request is made to APIO, then information should be provided within 35 days. 5 days should be added to enable APIO to transfer application to PIO.
C) If it concerns with life & Liberty of Person it should be provided within 48 Hours.
D) If the information relates to Third Party then it is to be provided within 40 days.
E) Information concerning corruption or Human Rights Violations by the Security Agencies mentioned under Schedule of the act should be made available within 45 days but with the prior approval of Central Information Commission.
Landmark Judgments
REASONS WHERE DIRECTIONS ISSUED TO MAKE AVAILABLE INFORMATION WITHIN 48 HOURS
IN THE CENTRAL INFORMATION COMMISSION
NEW DELHI
Decided On: 20 .01.2012
Appeal No. CIC/SG/A/2011/003366
Appellants: Pratap Kumar Jena
Vs.
Respondent: Minister of Health and Family Affairs
Brief Facts:
Appellant has filed Applications for seeking information providing the complaint of the self, name of the person enquired, date of Enquiry, Action taken on the enquiry Report on Competent Authority, inform about the decision regarding the evidence produced that RTI clerk having two living spouse, Name of the witnesses, name of the persons in the Committee.
Judgment:
As per the proviso to the section 7 of the act the information if related to life or liberty of person same should be provided within 48 hours. Such norm should be followed in exceptional circumstances otherwise information should be provided within 30 days of the request. If information sought concern to the life or liberty of person the same should be scrutinized very vigilantly. The concerned authority should not be designed in such a way that all the information should be provided within 48 Hours. If broad interpretation would be given to Life or Liberty of person then it results into deviation of manpower in providing all the information within 48 hours. To provide information within 48 Hours it should be provided only in those condition in which there is imminent threat to life or personal liberty.
Guideline Relating to Section 7(1) of the RTI Act 2005
IN THE CENTRAL INFORMATION COMMISSION
NEW DELHI
Decided On 30 .03.2017
Appeal No. CIC/BS/A/2016/001238
Appellants: Amrika Bai
Vs.
Respondent: PIO, EPFO Raipur
Judgment:
The Commission requires as per Section 19(8) (i, iii & iv) of the RTI Act, the public authority that information seeking related to the pension matters should be considered as a matter of life or personal liberty and the same should be provided within the 48 hours as laid down in the proviso of section 7(1) of the said act. This order should be circulated amongst all the CPIOs and the officials should be train to provide all pension related matter within 48 hours and the FAA should initiate the proceedings within 48 hours.The applicant has to provide all the substantive evidences that such matter is concerned with life or liberty of the person.
Section 7(2): If the CPIO or SPIO as the case may be fails to give decision on such request of information within the period specified under section 7(1) the CPIO or SPIO shall deemed to have refused the request.
Section 7(3): Where a decision is taken to provide the information on payment of further fee representing the cost of providing information, the CPIO or SPIO shall send an intimation to the person making such request
a) the details of further fee along with the cost of providing information and the method in arriving such calculation and shall exclude the time for calculating the thirty days
b) information concerning his or her with respect to review the decision as to the amount of fees charged including the particulars of appellate authority, time limit, process and any other forms.
Section 7(4): Succour To Disabled Persons
Where access of a particular document or a part thereof is to be provided under this act has to be made available to a person who is sensorially disabled the CPIO or SPIO shall provide all reasonable assistance to provide access to the information or in such form as per the concerned person for purpose of inspection.
Section 7(5): Fees For Information
Where access to such information has to be made available in printed or electronic form, the applicant shall subject to the provision of sub section (6) pay such fee as may be prescribed.
Provided that the subsection (1) of Section 6 and subsection (1) & (5) of Section 7 shall be reasonable and no such fee should be made available to the person who are below poverty line as may be determined by appropriate Government.
Section 7(6): Furnish of information free of cost
Notwithstanding in subsection (5) of Section 5, the person making request such information shall be made available to the concerned person free of charge where public authority does not provide information within the prescribed time limits under subsection (1) of Section 7.
Landmark Judgment
Guideline Relating to Section 7(6) & Section 19(8)(b) & Section 20(1) of
the RTI Act 2005
IN THE CENTRAL INFORMATION COMMISSION
NEW DELHI
Decided On 29 .06.2006
Appeal No. CIC/WB/C/2006/00182
Appellants: Gita Dewan Verma
Vs.
Respondent: Urban Development Department, Delhi
Brief Facts:
The Appellant has made an application seeking information regarding slum clearance from the urban development department, Delhi Government. The Public Authority has not provided information regarding such to the applicant within the prescribed time limit and thus results into filing of appeal before the first Appellate authority against the actions of the concerned authority.
Judgment:
The CIC held that the Information should be provided free of cost to the appellant as there is delay in providing information within the stipulated time period prescribed under Section 7(6). The Appellant was held entitled for the reimbursement under Section 19(8)(b). A Show Cause Notice was issued to SPIO as to why penalties prescribed under Section 20(1) of the act be not imposed on him.
Section 7(7): Third Party Interest and representation
Before giving decision under subsection (1), the CPIO or SPIO shall take into consideration the representations made by the third party under Section 11.
Section 7(8): Reason to rejection
Where a request made has been rejected under subsection (1) of Section 7 the CPIO or SPIO shall made available to the person making such request
a) The Reason for Such Rejection
B) The time limit in which appeal can be preferred
C) The Particulars of the Appellate Authority
Section 7(9): Form Of Supplied Information
Information should be made in the said form in which it is sought by the applicant unless it lead to disproportionately diversion of human resources of the Public Authority or would be peril to the safety of such Document or Record.
Landmark Judgment
Guideline Relating to Section 7(9) of
the RTI Act 2005
IN THE HON’BLE HIGH COURT OF
KERELA
Decided On 30 .08.2010
W.P. (C) NO. 6532 OF 2006
Appellants: Tressa Irish
Vs.
Respondent: The Central Public Information Officer
Brief Facts:
The petitioner appears for the written examination for selection to the postman for the postal department of Government of India Kerala Circle. When the results was published it was held that no one was qualified for the said post. when she applied for the mark list before CAT, she got the knowledge that she was not able to clear one of the papers. she applied for getting evaluated answer sheet of 3rd paper before CPIO. His request was rejected because there is no involvement of larger public interest. the 2nd Appeal was also rejected by the Central Information Commission that such disclosure would be detrimental to impartiality of selection process.
Judgment:
Section 7(9) does not give any right to the public authority to hold back the information, unless there is an exemption is provided for such disclosure. The Public Authority has a right of discretion to change the form in which information should be sought by the applicant if it would lead to disproportionately diversion of manpower of the Public Authority. There is no presence of a statutory ground in which right has been provided to the Public Authority to withhold the information if it would lead to disproportionately diversion of manpower of the Public Authority.
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