Section 20

20. (1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (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, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed 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, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.

Explanation

Section 20(1) of the right to information act states that while deciding any complaint or appeal, central or state information commission may impose a penalty of rupees 200 for each day till the application received or information is furnished on information officer which shall not exceed 25,000/- Rs. If it was found that central or state public information officer:

1)    Has, without reasonable reason, refused to receive an application ,or

2)    Has not furnished information within the specified period of time, or

3)    Knowingly given incorrect, incomplete or misleading information, or

4)    Destroyed information which was the subject of the request, or

5)    Obstructed in any manner in furnishing information

It was also stated that before imposing the penalty the concerned information officer shall be given a reasonable opportunity of being heard.

The burden will lie upon the central public information officer or the state public information officer to prove that he acted reasonable and diligently.

Section 20(2) of the said act states that while deciding any complaint or appeal central or state information commission shall recommend for disciplinary action against the central or state officer under the service rules applicable to him. The action shall be taken against the said officer if it was found that the officer,

a)    Has, without any reasonable reason, failed to receive an application, or

b)    Has not furnished information within the specified period of time, or

c)    Has malafidely denied the request for information, or

d)    Has knowingly given incorrect, incomplete or misleading information, or

e)    Has destroyed information

f)     Obstructed in any manner in furnishing information 

Cases:

Mr. Vinod Kumar v. The Executive Engineer (Bldg.) NGZ & APIO, Office of the Dy. Commissioner Municipal Corporation of Delhi[1]

The commission found this case fit under section 20(1) of the act and had seen the error for 100 days. The commission has passed an order of penalizing for 25000/- which is maximum under the act.

Johnson B Fernandes v. Goa State Information Commission[2], it was held by Bombay High Court that the information was not supplied within 30 days. In such cases imposition of penalty is proper.

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.[1]

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[2], 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[3], 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”.

Doctrine of Immunity:

Under the said provision the immunity is provided to the person in criminal and civil liability. The immunity is not only provided to the public official but applicant as well and before claiming protection under this provision a person need to established its case under the mentioned provision. The burden is upon the person who has claiming the protection. The main purpose of this section is to avoid unnecessary litigation. It has also grant additional responsibility upon the officials to maintain the confidence in the eyes of public and achieve the object enshrined behind the said statute.

Recently in 2016 the Kerela High court has granted immunity to the applicant under section 21 of RTI. The court held that the petitioner’s statement did not make any allegation against the respondent. Apart from merely expressing the reason that weighed with the petitioner for seeking documents under the RTI Act, the statement did not refer to any particular officer/officers. The act of the applicant qualified the test of good faith and it should afford the benefit under section 21 of the Act.[4]

It can be understood from the above mentioned case is that the freedom of information is considered to be vital part of our democracy. The right to information is considered as basic human right of the citizen. As in the famous case of state of State of Uttar Pradesh vs Raj Narain&ors[5], the Hon’ble apex court propounded that “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries”

Section 22 Act to have overriding effect:[6]

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.

The main object and purpose of this provision is to put RTI Act on a higher pedestal. The fulcrum objective of the statue is to enlighten the citizen in terms of education, knowledge, to make participatory regime, public authorities must be accountable to the citizen. In our democratic framework“checks and balances is the basic feature of our constitution”[7].

A right to information is directly flow from the concept of freedom of speech and expression as provided under Article 19(1) (a) of the Indian Constitution. This provision enlarges the scope of RTI law in order to bring transparency in various fields. Nothing should be better than to be an informed citizen. The right to information act has transformed the India’s public authorities as well as the other into responsible/accountable/openness and brings confidence in the eyes of general public. The idea behind the statue is to eradicate the corruption into the various fields. “Corruption is an antithesis to our democracy”[8].

Section 22 relations with the provision of other statues:[9]

It must be stated that when there is conflict between the RTI Act and other Acts, than the formal would be given more weightage. As importantly mentioned in the case of P.C Wadhwavs C.I.C, the court held that the “insertion of non obstante clause in section 22 was a conscious choice of the Parliament to safeguard the citizens fundamental right to information. It is a rule statutory interpretation that a legislature does not introduce unnecessary clauses in legislations. Hence, it is imperative that section is applies and not rendered ineffective.”[10]

The intention and purpose behind the present provision is maintain the supremacy, if an application has been filed before the authorities with respect to seeking of any information, than the public officer has a statutory duty to provide particular information but this provision is subject to the provision of section 8 of the act. The fundamental right of information is not an absolute right the authorities may deny if such information is pertains to the non-disclosure matter.

It is pertinent to mention that recently Government of India has tried to taken an advantage under the Official Secret Act, 1923 of some documents related to Rafal Aircraft, the Attorney General of India Shri K.K Venugopal has said that the documents are protected under the said act and are not liable to disclosed in the public. Also, said that it is a matter of security of India. But the bench comprises of Hon’ble chief Justice of India RanjanGogoi and Ho’ble Justice K.M Joseph rejected the arguments of the Government of India, and allowed the preliminary objection of the appellant. The court held that as the claim of immunity under section 123 of the Evidence and official Secret act is not tenable. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest. The purpose of the RTI Act is to provide information of non-disclosure matters if there is any allegation of corruption and human right violation are attached to it.[11]

The relation of the present provision with the Constitution of India, under article 361, the Governor has the right to claim immunity and is not answerable to the court of law in exercise and performance of duties under the constitution. But it does not take away the power of the court to examine the validity of his action including on the ground ofmala fide or any arbitrarily decision or exercise power beyond the Constitution. In such circumstances “the Governor or the PIO in his office cannot claim immunity from disclosure of any information under the Act.”[12]

[1]The Right to Information Act, 2005 (Act 22 of 2005).

[2] AIR 1987 SC 1265: AIR 1966 SC 97.

[3](2001) I CCR 45 (SC).

[4]https://www.thehindu.com/news/national/rti-applicant-gets-protection-against-legal-action/article7619764.ece.

[5]AIR 1975 SC 865.

[6]The Right to Information Act, 2005 (Act 22 of 2005).

[7]AIR 1973 SC 1461.

[8](2012) 3 SCC 64.

[9]The Right to Information Act, 2005 (Act 22 of 2005).

[10]AIR 2011 P&H 137 (138-39).

[11]WRIT PETITION (CRIMINAL) NO. 298 OF 2018.

[12] P.I.O v ManoharParrikar, AIR 2012 Bom 71.