Knowledge in Right to information
The Right to Information Act
Right to Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution. If we do not have information on how our Government and Public Institutions function, we cannot express any informed opinion on it. Democracy revolves around the basic idea of Citizens being at the center of governance. And the freedom of the press is an essential element for a democracy to function. It is thus obvious that the main reason for a free press is to ensure that Citizens are informed. Thus it clearly flows from this, that the Citizens Right To Know is paramount.
AKSHAT RAO PATIL
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, 2005The 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 5Section 5(1):Designation of PIO’SEvery 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 APIOWithout 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 PIOsEvery 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 PIOs1) To receive applications for information or appeal from public file under this act2) To provide all types of assistance needed to the public requesting for such information3) Applications filed for other Public Authority shall within the time period of five days should be transferred to that such Public Authority4) 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 PIOThe 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 InformationSection 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 InformationAn 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 PublicAuthorityWhere 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 AuthorityThe 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 transferProvided 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, 2014Brief 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 JainVs.GNCTDBrief 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 MISUSERThere 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 ApplicationsBy 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 COMMISSIONNEW DELHIDecided On: 22 .01.2007Appeal No. CIC/WB/A/2006/00365Appellants: Shyam Singh Thakur Vs. Respondent: Department Of Science & TechnologyBrief 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 7Section 7(1): Time Limit For The Supply Of InformationSubject 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 AspectsA) 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 JudgmentsREASONS WHERE DIRECTIONS ISSUED TO MAKE AVAILABLE INFORMATION WITHIN 48 HOURS IN THE CENTRAL INFORMATION COMMISSIONNEW DELHIDecided On: 20 .01.2012Appeal No. CIC/SG/A/2011/003366Appellants: Pratap Kumar JenaVs.Respondent: Minister of Health and Family AffairsBrief 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 2005IN THE CENTRAL INFORMATION COMMISSIONNEW DELHIDecided On 30 .03.2017Appeal No. CIC/BS/A/2016/001238Appellants: Amrika BaiVs.Respondent: PIO, EPFO RaipurJudgment: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 daysb) 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 PersonsWhere 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 InformationWhere 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 costNotwithstanding 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 JudgmentGuideline Relating to Section 7(6) & Section 19(8)(b) & Section 20(1) of the RTI Act 2005 IN THE CENTRAL INFORMATION COMMISSIONNEW DELHIDecided On 29 .06.2006Appeal No. CIC/WB/C/2006/00182Appellants: Gita Dewan VermaVs.Respondent: Urban Development Department, DelhiBrief 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 representationBefore 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 rejectionWhere a request made has been rejected under subsection (1) of Section 7 the CPIO or SPIO shall made available to the person making such requesta) The Reason for Such RejectionB) The time limit in which appeal can be preferredC) The Particulars of the Appellate AuthoritySection 7(9): Form Of Supplied InformationInformation 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 JudgmentGuideline Relating to Section 7(9) of the RTI Act 2005 IN THE HON’BLE HIGH COURT OFKERELADecided On 30 .08.2010W.P. (C) NO. 6532 OF 2006Appellants: Tressa IrishVs.Respondent: The Central Public Information OfficerBrief 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.
Ramya Thoti
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 8 (Exemptions under RTI Act 2005)Section 8(1): Notwithstanding anything contained in this act, there shall be no obligation to give citizen-A) Information if discloses would prejudicially affect the sovereignty & Integrity of the state, relation to foreign state or lead to incitement of an offenceB) Information which has been expressly forbidden by court of law or tribunal or disclosure would lead to Contempt of CourtC) Disclosure of Information would cause breach of privilege of Parliament or State LegislatureD) Information including Commercial Confidence, Trade Secrets or IPR, the disclosure would harm the competitive position of third party unless the competent authority is satisfied that larger public interest is involvedE) Information available to a person in fiduciary relationship unless the competent authority is satisfied that larger public interest is involved F) Information received in confidence from Foreign GovernmentG) Information whose disclosure would endanger the life or physical safety of any personH) Information which would impede the process of investigation or apprehension of offendersI) Cabinet papers include deliberation of Council of Ministers, Secretariat & other officersJ) Information which relates to personal information and has no relation to public activity and whose disclosure would lead to invasion of privacy unless CPIO or SPIO or AA satisfied that larger public interest is involvedSection 8(2): Notwithstanding anything contained in the official secrets act or exemptions provided under subsection (1) unless the case may be provided access if Public Authority is satisfied that public interest would outweighs the harm to the protected interestSection 8(3): Subject to clause (a) & (c) of subsection (1) information related to occurrence or matter which has taken place before twenty years before the date on which such request has been made under Section 6. The decision of Central government shall be final while computing twenty years.Landmark JudgmentsGuideline Relating to Section 8(1) of the RTI Act 2005 IN THE Central Information CommissionNew DelhiDecided On 07 .07.2006Decision No. CIC/OK/A/00163Appellants: Dhananjay TripathiVs.Respondent: Banaras Hindu UniversityBrief Facts:The appellant had applied for seeking information in relation to the death of the student of the university due to the negligence by the university doctor. The PIO denied to provide information to the appellant under section 8(1)(g) without providing any further reason why such information could not be given to the appellant.Judgment:The commission held that under Section 8(1), the authority has to provide proper reason while denying or refusing to give the information and if proper reason is not provided by the concerned authority it would lead to mala fide denial of legitimate information. Not Providing the reason for how the application was rejected would attract the penalties under Section 20(1) of the act.Guideline Relating to Section 8(1)(e) of the RTI Act 2005 IN THE Central Information CommissionNew DelhiDecided On 19.08.2009Case No. CIC/AD/A/2009/000857Appellants: Ms. TarunaPahujaVs.Respondent: A.I.I.M.SBrief Facts:The Appellant has filed the RTI Application seeking her information while she was under psychiatric treatment in AIIMS. She has divorced her husband and all the documents is with him and he has not providing to produce before court of law. the PIO has said that communication has already been provided. Not satisfied with the order she has filed appeal and it was dismissed that patient information should be disclosed to himself/herself or court of law. It was ordered that appellant has to prove his identity as Mrs.TarunaPahujabefore CPIO. not satisfied with the order she has filed second appeal before appellate authority. Judgment:The commission has upheld the order of the appellate authority that such information is in fiduciary relationship and falls under Section 8(1)(e) of the act and would only be disclosed to the patient himself/herself or to court of law. As the appellant has to prove its identity to the CPIO by providing any document which provide veracity of its identity. Unless the identity is not established, no information should be provided to the appellant and Appellate Authority is justified in its action of denying of access to such information.Guideline Relating to Section 8(1)(j) of the RTI Act 2005 In The Hon’ble High Court of New DelhiDecided On 24.01.2017WP (C) No. 624/2107Appellants: B.B. DashVs.Respondent: Central Information Commission &Anr.Brief Facts:The petitioner impugned the order dated 22.11.2016, the CIC has held the CPIO liable for not providing information to the concerned party without any cogent reasons and has imposed a liability of maximum amount of Rs 25,000 on the petitioner.Judgment:The High Court of Delhi in its order held that the Central Information Commission has not erred in imposing liability on the CPIO because the information has not been provided to the concerned party without giving cogent explanation. Thus, order of the Central Information Commission is within the framework of the law. Section 9.Grounds for rejection to access in certain cases.- Without prejudice to the provisions of section 8, a Central Public Officer or State Public Information Public Officer, as the case may be reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.The section basically states that without abridging the exemptions under section 8 of the Act, the authorities, as appointed under the provisions of the Act, receiving an application requesting an information disclosure of which might be infringe the copyright subsisting in a person, the concerned authorities under the said section may reject such application. The exemption under the section is not applicable upon any work of the State though the work is covered under the Copyright Act, 1957.The exemption provided under the section does not add any qualification to the exemption rather it is an absolute exemption. It is a step in order to avoid any misuse of the RTI Act by the Government Agencies, especially in regard to the matter related with infringement of copyright. The other importance of the section is to safeguard the copyright of any person.The legislature should amend the provisions clarifying the works which might be covered under the section to avoid any unnecessary initiation of proceedings before the exemption as the section which explicitly defines the ambit covered under the exemptions.Mr. Kuldeep Singh Tomer v. Mcd, Gnct Delhi, in the instant case the third party relied upon the definition of the ‘artistic work’ under Section 2(c) of the Copyright Act and other relevant authorities to argue that the disclosure of the building sanction plan(s) would be an violation of the intellectual property rights of the architect. The Commission accepted the contention of the third party and stated that disclosure of the building sanction plan may be an infringement of the intellectual property right and may be exempted from disclosure under Section 9 of the RTI Act. The closing lines of the section clearly states that the information with held under the authorities which are state as defined under Article 12 of the Constitution whether covered under the provisions of the Copyright Act, 1957 or not cannot be exempted from disclosure of such information underlining the exemption provided under section 9 of the Act which are exempted only in the case of copyright vested in any other person. In Sudhir Vohra v. Delhi Metro Rail Corporation, the Central Information Commission held that the Delhi Metro Rail Corporation, being ‘state’ under 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.In the case of Pramod Sarin v. University, the Commission held that the copies of test booklets, solutions etc. cannot be denied on the grounds that it would harm the competitive position of other candidates and solutions are the intellectual property of the University. The Commission also held that by no stretch of imagination can mere solutions of questions be treated as a matter of either copyright or intellectual property and there is no element of creativity involved in setting an objective type question paper for any examination. Section10 Severability-1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the information which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part of that contains exempt information.2) Where access is granted to part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be shall give a notice to the applicant, informing-a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;b) the reasons for the decision, including any findings on any material questions of fact, referring to the material on which those findings were based;c) the name and designation of the person giving decision;d) the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; ande) his or her rights with respect to review of decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access. The section is based upon the principles imbibed under the Doctrine of Severability. The doctrine states that if any part does not fall within the words of law in spite of discarding it in whole any part of the main article is valid and in accordance with the law which can be severed from the main article and can stand alone such part should be severed. Under the Act the principle is included in the context of the information which is not exempted from disclosure. The doctrine provides for an opportunity to the part of the information which can be disclosed and it does not fall within any exemption which might have been rejected due to the information requested containing few part to be exempted from disclosure and if such part can be easily severed from the information which cannot be disclosed such information can be disclosed with the help of this section by the authorities having power to make such decision.This section of the Act states that if the information requested falls under any exemption provided within the Act and such application is rejected upon the same grounds, in spite of anything containing in the Act, those part of the information may disclosed which does not fall within the exemption provided under the Act and such part can be reasonably be dissociated from that part of the information which is exempted from disclosure [sub-section 1]. The sub-section (2) of the section states that if such information is disclosed within the sub-section (1) the authorities allowing disclosure of such information shall provide the applicant with following particulars through a notice- I. that only part of the information requested is provided after severing that part of the information which is exempted from disclosure; II. the reasoning behind the decision so taken and other finding upon the material question of fact and on which the decision is based; III. the name and designation of the person finalizing the decision; IV. the details of the fees calculated by the officer and the amount payable by the applicant which is to be deposited; and V. the rights of the applicant in relation to review the decision of non-disclosure of the part of the information, the fees charged or the form of access provided, time limit, process to be followed and any other form of access including the particulars of the senior officer as provided under section 19(1) or the Central Information Commission or State Information Commission. This section is important to safeguard the right of the applicant whose application can be out rightly rejected upon the grounds of non-disclosure without scrutinizing all the portions of the application and severing those parts which can be disclosed and are not exempted under any part of the Act.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section11. Third party information-1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:Provided 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.2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of such information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. This section in whole protects the rights of any third party in relation to whom any information is requested to be disclosed and the same information has been treated as confidential by the third party. No one has right to disclose any information which is confidential to any person without his or her permission or without providing an opportunity to represent his views upon non-disclosure of the information. This section more or less is an implementation of the right to privacy conferred on all the citizens of India. The section avoids the misuse of the right to information in order to bother someone with unnecessary disclosure of the information which is more private and personal to a person. The section should always be read with the section 8(1) (j) which will add more meaning to the section and clarify the intent of legislature behind this section.The sub-section (1) of the section states that the CPIO or SPIO upon receiving an application for the information which is related to or supplied by any third party and that information is regarded as confidential by the party. The CPIO or SPIO intends to disclose such information upon the application in respect of any information or record or any part thereof so received, within five days from the date of the receipt of the application serve a written notice upon the third party stating the request and that the CPIO or SPIO intends to disclose the information and invite the third party to make its submission whether the information should be disclosed in writing or orally. The submission by the third party upon the service of such notice should be kept in view while deciding upon the disclosure or non-disclosure of the information. The proviso to sub-section (1) states that except in the cases which is related to trade and commercial secretes which are protected under the law for the time being in force in India can be disclosed if the disclosure of the information outweighs the public interest at large in comparison to the harm or injury to interests of the third party involved. The sub-section (2) of the section states that the third party upon receiving a notice under sub-section (1) by the CPIO or SPIO in respect of any information or record or part thereof the third party shall be given an opportunity to represent against the proposed disclosure within ten days from the date of the receipt of the notice by the third party.The sub-section (3) states that the in spite of the time limits provided under section 7 of the Act, the CPIO or SPIO shall make an decision upon disclosure or non-disclosure of the information within forty days from the date of the receipt of the application under section 6 of the Act if the third party has been given an opportunity of representation under sub-section (2) and shall in writing serve the notice upon the third party of the decision. The sub-section (4) states that the notice served upon the third party under sub-section (3) include a statement that the third party has right to appeal against the decision of the disclosure in accordance with the provisions under section 19 of the Act.This section of the Act holds an importance in safeguarding the right of privacy of any person. In this particular section, the information requested is related to a third party which had kept the information as a confidential information, disclosure of such information cannot be disclosed without providing an opportunity to the third party to make an submission against the disclosure of the information, disclosure of which might invade the privacy of the third party. The section does not give any veto power to the third party in relation to non-disclosure of the information lest it provides only an opportunity to present its objections against the disclosure of the information.In the case of Arvind Kejriwal v. Central Public Information Commission, the appellant has primarily questioned and challenged the interpretation of the Section 11 of the Right to Information Act, 2005 in the impugned decision. The question, therefore, arises as to what is the intent of the legislative intent behind section 11. The intent of the legislature is clear and reflected in the proviso which spells out the parameters when third party information can be furnished or denied to the information seeker. The said proviso has to be read with along with the exemptions which is provided under section 8 specially section 8(1)(j) which permits denial/disclosure of personal information which has no relationship with a any public activity or interest; or which cause unwarranted invasion of the privacy of an individual unless larger public interest justifies disclosure of such information. The court further observed that Section 11(1),(2),(3) and (4) are the procedural provisions which have to be complied with by the PIO/Appellant authority; when they are required to apply the said test and give a finding whether information should be disclosed pr not disclosed. If the said aspect is kept in mind, there would be no difficulty in interpreting section 11(1).In the case of Mr. Anand D Kharade v. Ministry of Communication and Information Technology, the applicant in the instant case has requested to disclose the number of charge sheet had been issued in their tenure against Shri. N.B. Kepkar and Shri. S.G. Mallapur. The CPIO in reply stated that two charge sheet were issued against the first person and the second person has requested not to disclose personal information under section 11 of the RTI Act, 2005. The applicant has appealed against the information as he was unsatisfied with the information provided. The Commission was of the view that section 11 of the RTI Act prescribes a procedure to be followed in case of the third party information and cannot be used as an exemption for non-disclosure. The commission observed that the information sought by the appellant is not covered by any exemption stipulated in section 8 of the RTI Act. In the case of J.B. Kohli v. New Delhi Municipal Council (NMDC), the Central Information Commission clarified following two issues on the information provided by the third party- i. Every document provided by the third party is not governed by the provision of section 11(1) of the Act. It is only those documents which are personal or private in nature attract the provisions of section 11(1). Thus, section 11 (1) of the RTI Act is applicable to only that information which has been given in good faith or in confidence by the third party. ii. The second issue clarified was that the third party which was involved at the lower level, has to be heard by the Commission at appeal level also. If it is not allowed it would be against the principles of natural justice and fair play, such third party has right t protect his interest at every level, once he is involved in the proceedings.Section 12 Constitution of Central Information Commission –1) The Central Government shall, by notification in the Official Gazette, constitute a body to be known as Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.2) The Central Information Commission shall consist of-a) the Chief Information Commissioner, andb) such number of Central Information Commissioners not exceeding ten as may be deemed necessary.3) The Chief Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of- i. the Prime Minister, who shall be the Chairperson of the committee; ii. the Leader of Opposition in the Lok Sabha; and iii. a Union Cabinet Minister to be nominated by the Prime Minister.4) The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioners who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.5) The Chief Information Commissioner and Information Commissioners shall be person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.6) The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any office of profit or connected with any political party or carrying on any business or pursuing any profession.7) The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with previous approval of the Central Government, establish offices at other places in India. The section 12 of the Act states the provisions related to the establishment and composition of the Central Information Commission. The commission is appointed by the Central Government. The section further deals with the appointment and tenure of the Chief Information Commissioner and Information Commissioners. The section also deals with the qualifications and disqualification of the members of the commissions as well as the provisions related to their salary and allowances. The duties and powers of the commission as prescribed in the other provisions of the Act. The sub-section (1) of section 12 states that by notification in the Official Gazette the Central Government shall constitute a body to be known as Central Information Commission. The body so constituted shall exercise all the duties and perform all the functions conferred upon it under this Act. The sub-section (2) states the composition of the Central Information Commission which shall consist of the Chief Information Commissioner and Information Commissioners as may be deemed necessary but not exceeding ten in number. The sub-section (3) states that the Chief Information Commissioner shall be appointed by the President upon recommendation of the committee consisting of Prime Minister, Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The Prime Minister shall be the chairperson of the committee.The sub-section (4) states that the Chief Information Commission shall be the governing authority of the Commission and all the powers related to management, superintendence and direction shall vest in the Chief Information Commissioner. The Chief of the Commission shall be assisted by the other Information Commissioners. The Information Commissioners may exercise all the powers and things to do any act which is to be performed autonomously by the Chief Information Commission without any prior consent of any other authority as per the provisions of this Act.The sub-section (5) states that the Chief Information Commissioner and Information Commissioners shall be an eminent person in public life and hold wide knowledge and experience in the fields of law, science and technology , social service, management, journalism, mass media or administration and governance. The sub-section (6) states that the Chief Information Commissioner or the Information Commissioner shall not be member of any legislative body at the Central or in any States or in the Union Territory. They should not hold any other office of profit under any political party or carry on any business or any other profession. The sub-section (7) states that the headquarters of the Central Information Commission shall be at Delhi and at other places in India with previous approval of the Central Government. The section holds its importance in its clarity which precisely shows the manner of the appointment, the composition, the qualifications and disqualifications, the parameters of salary and allowances. This unambiguous provisions shows that the legislature intended to have a procedure without any vagueness which might have delayed the appointment of the commissioners which might have further delayed the other main objectives inserted in the provisions of the Act which were to be performed under the supervision and guidance of the Central Information Commission. The section 12 of the Act is out and out a complete provision in itself the only problem is in the composition of the committee for the recommendation of the Chief Information Commissioner to the President. The composition has an imbalance and the majority is always in the favor of the Prime Minister because the third member is nominated by the Prime Minister who might always favor the decision of the Prime Minister because of which the opinion of the Leader of the Opposition would have no value in the final decision of the committee.The Honorable High Court has observed in Delhi Development Authority v. Central Information Commission that:“Thus the flow of information is not to be an unregulated flood. It needs to be controlled just as the flow of water is controlled by a tap. Those empowered to handle this tap of information are imbued with great power. Under this Act, this power is to be exercised by the Information Commission (State or Central). But, the power is clearly not plenary, unrestricted, limitless or unguided. The Information Commissions are set up under the said Act and they have to perform their functions and duties within the precincts marked out by the legislature.” Namit Sharma v. Union of India, the petitioner alleged that the eligibility criteria under Section 12(5) and 12(6) are vague and ultra vires the Constitution. The court did not agree that Section 12(5) of the Act offended the doctrine of equality as they did not discriminate against any person in the matter of appointment. Nor did Section 12(6) offend the doctrine of equality, as it should be interpreted to mean that an individual, once appointed as a Chief Information Commissioner or Information Commissioner, “cannot continue to be a Member of Parliament or Member of the State Legislature or Union Territory,” so as to avoid any potential conflict of interest. Although the Court acknowledged that there may have been valid concerns about individuals appointed to the Information Commissions not having “the required mind to balance the interests indicated in the Act,” it concluded that it was ultimately “for the Parliament to consider” whether appointment required judicial experience.Section 13 in The Right To Information Act, 200513. Term of office and conditions of service.—(1) The Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty‑five years.(2) Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty‑five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner: Provided that every Information Commissioner shall, on vacating his office under this sub‑section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub‑section (3) of section 12: Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.(3) The Chief Information Commissioner or an Information Commissioner shall, before he enters upon his office make and subscribe before the President or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.(4) The Chief Information Commissioner or an Information Commissioner may, at any time, by writing under his hand addressed to the President, resign from his office: Provided that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under section 14.(5) The salaries and allowances payable to and other terms and conditions of service of—(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;(b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.(6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to, and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.Meaning:SECTION13(1): -MAXIMUM TIME PERIOD AND AGE FOR THE CHIEF INFORNMATION COMMISSIONER ISTime period: - 5 years.Age: - 65 years.Also, the chief information commissioner shall not be eligible for reappointment.Section 13(2): -MAXIMUM TIME PERIODAND AGE FOR THE INFORMATION COMMISSIONER ISTime period: - 5 years.Age: - 65 years.Also, the Information commissioner shall not be eligible for reappointment. But, on vacating his office can be eligible for the appointment as a chief information commissioner and his term of office shall not be more than aggregate as the information commissioner and the chief information commissionerACCORDING TO SECTION13(3),SECTION13(4),SECTION13(5),· THE CHIEF INFORMATION COMMISSIONER OR AN INFORMATION COMMISSIONER MAY, AT ANY TIME RESIGN BY WRITING HIS HAND ADDRESSED TO THE PRESIDENT, RESIGN FROM THE OFFICE.· THE CHIEF INFORMATION COMMISSIONER SHALL BE THE SAME AS THE CHIEF ELECTION COMMISSIONER;· AN INFORMATION COMMISSIONER SHALL BE SAME AS THAT OF AN ELECTION COMMISSIONER.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 14 in The Right To Information Act, 2005.14. Removal of Chief Information Commissioner or Information Commissioner.—(1) Subject to the provisions of sub‑section (3), the Chief Information Commissioner or any Information Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Chief Information Commissioner or any Information Commissioner, as the case may be, ought on such ground be removed.(2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Chief Information Commissioner or Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub‑section(1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.(3) Notwithstanding anything contained in sub‑section (1), the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be,—(a) is adjudged an insolvent; or(b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude; or(c) engages during his term of office in any paid employment outside the duties of his office; or(d) is, in the opinion of the President, unfit to continue in office by reasonof infirmity of mind or body; or(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or a Information Commissioner.(4) If the Chief Information Commissioner or an Information Commissioner is, in any way, concerned or interested in any contract agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub‑section (1), be deemed to be guilty of misbehaviour.MEANING: - · SECTION 14 OF THE RTI ACT, 2005 TALKS ABOUT THE REMOVAL OF INFORMATION COMMISSIONER OR DEPUTY INFORMATION COMMISSIONER.· THE CHIEF INFORMATION COMMISSIONER OR THE INFORMATION COMMISIONER CAN BE REMOVED BY THE ORDER OF THE PRESIDENT IF ANY KIND OF MISBEHAVIOUR OR INCAPACITY IS FOUND ON THE PART OF THE CHIEF INFORMATION COMMISSIONER OR THE INFORMATION COMMISSIONER.· THE PRESIDENT HA ALSO THE POWER TO SUSPEND THEM FROM THE OFFICE AND IF DEEM NECESSARY CAN ALSO PROHIBIT THEM FROM ATTENDING THE OFFICE DURING THE ENQUIRY PROCESS.· THE PRESIDENT CAN REMOVE THE CHIEF INFPORMATION COMMISSIONER OR THE INFORMATION COMMISSIONER ON THE FOLLOWING GROUNDS: -(1) IS ADJUDGED AN INSOLVENT;(2) HAS BEEN CONVICTED OF AN OFFENCE;(3) ENAGES DURING HIS TERM OF OFFICE IN ANY PAID EMPLOYMENT OUTSIDE THE DUTIES OF HIS OFFICE;Section 15 in The Right To Information Act, 200515. Constitution of State Information Commission.—(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the____________.(name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.(2) The State Information Commission shall consist of—(a) the State Chief Information Commissioner; and(b) such number of State Information Commissioners, not exceeding ten, as may be deemed necessary.(3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of—(i) the Chief Minister, who shall be the Chairperson of the committee;(ii) the Leader of Opposition in the Legislative Assembly; and(iii) a Cabinet Ministrer to be nominated by the Chief Minister. Explanation.—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of the Opposition.(4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act.(5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.(7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish Offices at other places in the State.MEANING: - · SECTION 15 OF THE RIGHT TO INFORMATION ACT TALKS ABOUT THE CONSTITUTION OF STATE INFORMATION COMMISSION· ALSO, IT IS MENTIONED UNDER THE CHAPTER IV OF THE RIGHT TO INFORMATION ACT, 2005.· THE STATE INFORMATION COMMISSION SHALL CONSIST OF THE STATE CHIEF INFORMATION COMMISIONER AND SUCH NUMBERS OF STATE INFORMATION COMMISSIONERS MUST NOT EXCEED BY 10.· THE STATE CHIEF INFORMATION COMMISIONER AND THE STATE INFORMATION COMMISIONERS SHALL BE APPPOINTED BY THE GOVERNOR ON THE RECOMMENDATION OF A COMMITTEE CONSISTING OF-----(1) THE CHIEF MINISTER WHO WILL BE CONSIDERED AS THE LEADER OF THE OPPOSITION IN THE LEGISLATIVE ASSEMBLY;(2) A CABINET MINISTER TO BE NOMINATED AS THE CHIEF MINISTER.· ALL THE DIRECTION , MANAGEMENT, GENERAL SUPERINTENDANCE OF THE AFFAIRS OF THE STATE INFORMATION COMMISSION SHALL VEST IN THE STATE CHIEF INFORMATION COMMISSIONER.· THE STATE CHIEF INFORMATION COMMISIONER OR A STATE INFORMATION COMMISIONER MUST NOT BE A MEMBER OF PARLIAMENT OR MEMBER OF THE LEGISLATURE OF ANY STATE OR UNION TERRITORY Section 16 in The Right To Information Act, 200516. Term of office and conditions of service.—(1) The State Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty‑five years.(2) Every State Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty‑five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner: Provided that every State Information Commissioner shall, on vacating his office under this sub‑section, be eligible for appointment as the State Chief Information Commissioner in the manner specified in sub‑section (3) of section 15: Provided further that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner.(3) The State Chief Information Commissioner or a State Information Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.(4) The State Chief Information Commissioner or a State Information Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office: Provided that the State Chief Information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17.(5) The salaries and allowances payable to and other terms and conditions of service of—(a) the State Chief Information Commissioner shall be the same as that of an Election Commissioner;(b) the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government: Provided that if the State Chief Information Commissioner or a State Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Information Commissioner or a State Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that where the State Chief Information Commissioner or a State Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State Chief Information Commissioner or the State Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment.(6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.MEANING: -· The state Chief Information Commissioner and the state Information Commissioner can hold the office for a time period of 5 years and after that they will have to vacate the office. Also, the maximum age for above mentioned position is up to 65 years of age. The state Chief Information Commissioner or a state Information Commissioner may at any time, by writing under his hand addressed to the Governor, resign the office. The state Chief Information Commissioner is same as an Election Commissioner, The state Information Commissioner is same as that of the Chief secretary to the State Government. It is the duty of the State Government to provide the State Chief Information Commissioner and the State Information Commissioner with such officers and employees as may be necessary for the efficient performance of their function under this act, and the salaries and the allowances payable to and the terms and conditions of the service of the officers and the other employees appointed for the purpose of this act shall be such as may be prescribed. · .·
NOTES ON RIGHT TO INFORMATION ACT ,2005
Section 17:The state government through official gazette shall constitute State information commission which shall consist Chief information commissioner and other information commissioners as it deemed necessary and shall be appointed by the governor of the state. This is a statutory body which is constituted under section 15 of the Right to information act, 2005. The procedure for suspension and removal of State chief information commissioner or a state information commissioner is being inserted under section under 17 of the said act.Section 17 of Right To Information Act, 2005. 17. (1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report ofthe Supreme Court on such reference.(3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,—(a) is adjudged an insolvent; or(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or(c) engages during his term of office in any paid employment outside the duties of his office; or(d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.Explanation:Section 17 grands power to the governor of the state to suspend or remove State chief information commissioner or state information commissioner.The governor of the state shall make a reference to the supreme court after due inquiry over commissioner. There are 5 grounds mentioned under section 17(3) of this act on which a chief information commissioner or state information commissioner shall be removed or suspended. 1. If the person becomes insolvent, or 2. If the person has been convicted of an offence which involves moral turpitude according to the opinion of governor, or3. If the person, during the term of the office gets engaged in any paid employment outside the duties of his office, or4. According to the opinion of the governor, the person is not fit to continue the office because of infirmity of mind or body, or5. If it was found that the person has acquitted some financial or other interest which will affect his functions. Section 17(1) states that subject to the above mentioned grounds, a person shall be removed from the office if misbehaviour or incapacity is proved on the order of governor of state after the report of the supreme court. The governor shall refer the matter to the supreme court. Section 17(2) talks about the suspension of chief information commissioner or state information commissioner will be made by governor of state and if it deem necessary, governor can also prohibits commissioner from attending his officer at the time of Inquiry. Governor shall refer this it supreme court and on the receipt of report of supreme court the order of suspension shall be passed by governor of state. Section 17(4) states what amounts to misbehaviour?If the person is concerned or is interested in any type of contracts or agreements made by the government of state or on his behalf or if he has participated in any type of profits or any kind of emoluments or benefits are arising out of such participation. This amounts the person guilty of misbehaviour under section 17(1). Cases:Virender Singh Choudhary v. Union of India & Others[1]In this particular case the question was arose in front of the Madhya Pradesh High Court that appointment of chief information commissioner or information commissioner is in violation of Article 14 of the Constitution of India. It was held that exclusion of certain categories are not unreasonable. Therefore, it was held that provisions for appointment for commissioner are not hit by Article 14 of the constitution of India. Section 18The chief information commissions have been allotted some powers and function which is being inserted under section 18 of the Right To Information Act, 2005. 18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,—a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in subsection (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;b) who has been refused access to any information requested under this Act;c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;d) who has been required to pay an amount of fee which he or she considers unreasonable;e) who believes that he or she has been given incomplete, misleading or false information under this Act; andf) in respect of any other matter relating to requesting or obtaining access to records under this Act.(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:—a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;b) requiring the discovery and inspection of documents;c) receiving evidence on affidavit;d) requisitioning any public record or copies thereof from any court or office;e) issuing summons for examination of witnesses or documents; andf) any other matter which may be prescribed.(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds. Explanation:section 18(1) says that it will be the duty of the commissions to receive and inquire into a complaint from any person. If the commissioner is satisfied that grounds on which the complaint is filed is reasonable, may initiate an inquiry. Further reasons were specified on which complaint can be filed by any person under this sub-sectiona) if no such officer has been appointed or because his application has not been accepted for information or appeal under this act.b) if any person who has been refused access to any information which was requested under this act. c) If any person who has not received any response for his information within the specified time limit under this act. d) If a person has been required to pay certain amount which is according to him is considered unreasonable, e) If a person believes or has reason to believe that he has been provided incomplete, misleading and false information.f) Any matter which is related for requesting or obtaining access to records. The Madras High in V.V. Mineral Tisaiyanvilai District v. Director of Geology and Mining, Chennai[2], Under this case it was held that commission is a wider body with all powers of civil court.The Supreme Court in Chief Commissioner v. State of Manipur[3], in this case it was held that the information request which is refused cannot be directed to be given by commission. Public Information Officer v. Manohar Parrikar[4], apex court held that if the State Information Commission is not a multimember body. It cannot exercise its power under section 18 of the ActSection 18(2) states that if the central information commission or state information commission is satisfied that reasons on which the complaint has been filed are reasonable, it may initiate an inquiry in that matter. Section 18 sub-section 3, states that central information commission or state information commission shall be having same powers as vested in a civil court. Code of civil procedure, 1908 will be applicable in the matters listed below. a) When the person has been summoned and enforced the attendance and for giving oral or written evidence on oath and to produce the documents or things.b) Then person was required to discover and inspect documents.c) When the evidence on affidavit was receivedd) Requisition of any public record or copies form any court or officee) When the summons were issued for examination of witness or documents and f) Any other prescribed manner.Section 18(4) of the said act states that in spite of anything inconsistent contained in any other acts, the commission may inquire any record, · To which the appeal lies · Record which is under the control of any public authority· The records will not be withheld from it on any grounds Cases:In the case of Shri Manjay Kumar Singh, v. The First Appellate Authority (RTI), Roorkee Uttrakhand[5], it was complained by an Applicant to the Central Information Commission that he did not receive any reply from the Central Public Information Officer on his RTI-Application. It is noted that the Complainant did not have an opportunity to go to the Appellate Authority and has directly approached the Commission with his complaint. In exercise of powers vested under Section 18(2), it was directed to the Appellate Authority to enquire into the allegations made by the Complainant and to pass an order after giving him an opportunity of being heard.Section 1919. (1) Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to—a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including— i. by providing access to information, if so requested, in a particular form; ii. by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; iii. by publishing certain information or categories of information; iv. by making necessary changes to its practices in relation to the maintenance, management and destruction of records; v. by enhancing the provision of training on the right to information for its officials; vi. by providing it with an annual report in compliance with clause (b) of subsection (1) of section 4;b) (b) require the public authority to compensate the complainant for any loss or other detriment suffered;c) (c) impose any of the penalties provided under this Act;d) (d) reject the application.(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.Explanation:In sub-section 1 of section 19 of this act, it was stated that a person can appeal to the officer who is senior in rank to the central public information officer of state public information officer if he did not receive decision within specified in sub-section 1 or clause (a) of sub-section 3 of section 7, or if a person is aggrieved by the decision of information officer. The appeal can be filed within 30 days from the expiry of such period or from receipt of such decision. Appeal can also be accepted after the expiry of such period if the said officer is satisfied that appellant was prevented by sufficient reasons from filing the appeal on time. In sub-section 2 of section 19, it is stated that appeal should be made within a period of 30 days from the date of order by concerned third party if the appeal is made against the order by central information officer or state information officer in respect of order under section 11 to disclose third party information. In sub-section 3 of section 19, it is stated that appeal should against the order under sub-section 1 of section 19 should be made within 90 days from the decision from the decision should have been made or was actually received. The appeal may be accepted after 90 days period if it was found that the appellant has sufficient reason for the delay. In sub-section 4 of section 19, it is stated that if the decision of the appeal is related to information of a third party, then third party should be given reasonable opportunity of being heard.In sub-section 5 of section 19, it is stated that in any appeal proceeding the onus to prove that the denial was justified will be upon the central or state commission information officer who denied the request. In sub-section 6 of section 19, it is stated that the appeal under sub-section 1 or 2 shall be disposed with 30 days from the receipt or period not extending 45 days from the filing with recording the reasons for the same in writing. In sub-section 7 of section 19, it is said that the decision of the central and state information commission shall be binding in nature.In sub-section 8 of section 19 grants some powers to central or state information commission in its decision.a) To require to take steps to secure compliance with the provision of this act, including I. Providing access to information II. Appointing a central or state information officer III. Publication of certain documents or categories of information IV. Making necessary changes in relation to maintenance, management and destruction of records, V. Provision of training on the right to information for its officials, VI. Providing annual repotb) To require the authority for compensation of any loss or other detriment sufferedc) To impose penalties provided under this act, d) To reject the applicationIn sub-section 9 of section 19, it is stated that notice for decision, including any right of appeal should be given by the central or state information commission to the complainant and the public authority.In sub-section 10 of section 19, it is stated that the appeal shall be decided in accordance with the procedure prescribed in the act. Cases:Mumbai v. Rui Ferriera[6], Bombay High Court in this case held that remedy available to person aggrieved is to file appeal in accordance with section 19 of the Act. Sh. Uday Nath v. CPIO, Department of Post[7], in this case department of posts declined to furnish the information and also advised the applicant to the applicant to prefer an appeal directly to the commission on the ground that the decision has been taken at the highest level in the department. It was made clear by the commission that irrespective of at what level a decision is taken the procedure prescribed by the statute cannot be given a go by. [1] AIR 2007 MP 26. [2](2007)4 MLJ 394.[3]AIR 2010 SC 864.[4]AIR 2006 SCW 494.[5] CIC/LS/C/2013/000083/RM. [6]AIR 2012 Bom 1.[7]ICPB/A-6/CIC/2006.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 2020. (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.ExplanationSection 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 ,or2) Has not furnished information within the specified period of time, or3) Knowingly given incorrect, incomplete or misleading information, or4) Destroyed information which was the subject of the request, or5) Obstructed in any manner in furnishing informationIt 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, orb) Has not furnished information within the specified period of time, or c) Has malafidely denied the request for information, ord) Has knowingly given incorrect, incomplete or misleading information, ore) 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.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 23 Bar of Jurisdiction of Courts:[1]No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.The present provision the act bars the jurisdiction of all the courts including High Court to the extent of its original or appellate jurisdiction to entertain the suit. The provision is aims to provide expeditious information to the applicant sans any delayed in the process.Timely and fair/effective information is the sine quo none to the right to information act. Nothing can bar the jurisdiction of the court to decide the matters if it is in gross violation of the principles of natural justice or in contraventionof the prescribed procedure as laid down under the act. Section 24 Act not to apply to certain organizations:[2]The provision protects the information if it relates to the intelligence and security organizations as specified under second schedule of the Act, and it is established by the Central Government or by the state Government. The proviso of the aforesaid section explains that if the allegation is pertains to the corruption and human right violation than the information shall not be excluded. The provision has also specified that if the allegation related to the human right violation then the information shall only be provided after the approval of theCentral Information Commission and such information shall be provided within the 45 days of the said request.The key word reflects in the provision are follows as:1.) Human Right.2.) Corruption.Right to Information is considered to be the basic fundamental right in our democratic society. As under Article 19 (1) (a) of the Constitution the Apex Court has several times expressed that the right to information is the fundamental right. It has subject to the law made by Parliament. To be an informed citizen is one of the highest privilege for any individual. No authority as provided under the second schedule of the act can claim immunity from any information if it proceeded by the act of human right violation. The word human right is not defined in the Constitution nor in the RTI Act, 2005 but definition of Human Right is provided under the NHRC Act, 1993 which comprises of all the rights that mentioned under ICCPR, UDHR and other as well. Under Article 19 of the ICCPR it secures the right to information. The right to information is crucial in order to achieve the end of justice. India is signatories to these convention or treaties and it is bound by the provision mentioned under unless otherwise provided. At this juncture it is pertinent to mentioned that in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express[3],the apex court held that “the ‘right to know’ is an integral part of the ‘right to life’, and unless one has the ‘right to information’, the ‘right to life’ cannot be enjoyed meaningfully”.Also, it is important to note the observation of the Supreme Court in case of S.P Gupta v. Union of India[4], the court held that “an open Government directly emanates from the right to know which is implicit in the right of free speech and expression”. This section is also clarifies that when the corruption is involved in any of the public authorities whether it is exempted or not then it is bound to disclosed the information that has been asked. When the allegation relates to the corruption then there is no need to take approval of the Central Information Commission in reference to the application. This section 24 must be read with section 8 of the RTI Act, 2005. Section 8 of the act provides an exemption from disclosure of information. The provision specifies that in certain situation such as when the information would prejudicially affect the sovereignty and integrity of India, the security, any foreign relation, economic relation and other information as well. Butthe information in relation to the corruption and human right violation then the authorities under section 8 is bound to disclose the information. It is pertinent to note that in the case of VineetNarain v. Union of India[5], the apex held that “The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Increasing corruption has led to investigative journalism which is of value to a free society.”The offence of corruption is erodes the basic values of free and fair procedure. Also, undermine the basic human right of a citizen. It dilutes the concept transparency and expeditious process.The Central Government under sub-section (2) of section 24 may, by notification in the Official Gazetteinclude any other intelligence or security organization as established by the Government or omit any organization already specified in the second schedule of the Act. Every notification issued under sub section 2 must be laid before the each house of the Parliament.Under sub section 4 of section 24 nothing contained under this act shall apply to such intelligence and security organization as established by the State Government as subject to the proviso of the sub section 4. Any changes made by State Government by way of notification in the Official Gazette, it need to be laid before the state legislature.Section 25 of Right to Information Act, 2005 (Same as Bare act)Monitoring and reporting-(1) The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government.(2) Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section.(3) Each report shall state in respect of the year to which the report relates,—a) The number of requests made to each public authority;b) The number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the number of times such provisions were invoked;c) The number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals;d) Particulars of any disciplinary action taken against any officer in respect of the administration of this Act;e) The amount of charges collected by each public authority under this Act;f) Any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act;g) Recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information.(4) The Central Government or the State Government, as the case may be may, as soon as practicable after the end of each year, cause a copy of the report of the Central Information Commission or the State Information Commission, as the case may be, referred to in sub-section (1) to be laid before each House of Parliament or, as the case may be, before each House of the State Legislature, where there are two Houses, and where there, is one House of the State Legislature before that House.(5) If it appears to the Central Information Commission or State Information Commission, as the case may be that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.2) Meaning/ Significance of Article 25 RTI Act, 2005As the title suggests, Monitoring and Reporting system, the Section 25 of Right to Information act 2005, consists of guidelines for functioning of the monitoring and reporting system so that the act can be implemented and enforced in the best possible manner. One of the biggest issues with the Indian socio-political landscape has been the poor implementation of Acts within the society. Therefore, it is necessary to have a monitoring system to ascertain the success and failures with regards to the enforcement of the Act. This is important in order to achieve the aim of the Act itself. Right to Information Act was brought to strengthen the Democratic structure of the country where the real power lies with the people. 3) Explanation of Clauses of Article 25 RTI Act, 2005As per Section 25(1) of the RTI Act, 2005, The Central as well as State Information Commission is required to prepare a report at the end of each year on the implementation of the provisions of this Act during that year and forward a copy thereof to the “appropriate Government” [defined in Section 2(a)].In order to increase accountability, Section 25(2) mandates that each Ministry or Department in relation to the public authorities within their jurisdiction shall collect and provide such information to the Central/State Information Commission which is required to prepare the report under this section and the report shall basically consist of all the information as given in the Section 25(3). Section 25(3) consists of all the information that needs to be included in the report which help in monitoring and betterment of the Act.Section 25(4) of the same Act is in furtherance with the Section 25(3). By laying down the report before the Parliament and State Legislature, the basic purpose is to essentially involve the Legislature. This report is an analysis of the factual statement of all the action taken by the Public Authorities under the Act and its overall assessment of awareness and social impact, which would allow the Legislature to have an overall look at the actual status of the Act and implement it in a possibly better manner after analyzing all the errors effectively.Section 25(5) of the Act is to maintain the spirit of the Act. If any Public Authority does not effectively conform to the provisions of the act, the “appropriate government” could recommend amendments and reforms. Thereby, making Public Authorities keep up with the spirit and aim of the Right to Information Act. This is more of a remedial clause. The Legislature must be made aware about the progress of the Public authority with regards to conformity to the Act. 4) Need and Importance of Section 25 RTI Act, 2005To ensure the Act penetrates every layer of the society in the best possible manner, this section holds immense significance. It is necessary to-1- Increase Accountability: Annual report system makes the authorities more accountable towards public in general. It becomes simpler to judge the performance of the public authorities and their shortcomings2- Rectification of Errors: With the annual reports, it becomes easier for the state/central government to identify the shortcomings of the public authorities and work upon them in the best possible manner so that the public welfare can be maximized.3- Penetration within the society: It is important that the Right to Information Act, impacts each and every layer of the society from rich to poor, urban to rural. This is for the benefit of the Democratic spirit of the country and ensures people are not exploited with the hands of the authorities.CONCLUSION: Right to information is vital to the democratic society. It empowers the citizen to be informed and participatory. The “right to information is a natural right flowing from the concept of democracy”[6], it is inbuilt in the freedom of speech and expression. It is one of the sacred right of the citizen. It has attains the global acknowledgement. Various countries of world regarded it as a fundamental right. In order to strengthen and promote the true objective of the democracy then the right to information must be preserves. [1]The Right to Information Act, 2005 (Act 22 of 2005).[2]The Right to Information Act, 2005 (Act 22 of 2005).[3]AIR 1989 SC 190.[4]AIR 1982 SC 149. [5]AIR 1998 SC 889.[6]UOI vs. ADR, Writ Petition (civil) 294 of 2001.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 26 of Right to Information Act, 2005 Appropriate Government to prepare programmes.—(1) The appropriate Government may, to the extent of availability of financial and other resources,—a) develop and organize educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under this Act;b) encourage public authorities to participate in the development and organization of programmes referred to in clause (a) and to undertake such programmes themselves;c) promote timely and effective dissemination of accurate information by public authorities about their activities; andd) train Central Public Information Officers or State Public Information Officers, as the case may be of public authorities and produce relevant training materials for use by the public authorities themselves.(2) The appropriate Government shall, within eighteen months from the commencement of this Act, compile in its official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right specified in this Act.(3) The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub‑section (2) at regular intervals which shall, in particular and without prejudice to the generality of sub‑section (2), include—a) the objects of this Act;b) the postal and street address, the phone and fax number and, if available, electronic mail address of the Central Public Information Officer or State Public Information Officer, as the case may be of every public authority appointed under sub‑section (1) of section 5;c) the manner and the form in which request for access to an information shall be made to Central Public Information Officer or State Public Information Officer, as the case may be;d) the assistance available from and the duties of the Central Public Information Officer or State Public Information Officer, as the case may be of a public authority under this Act;e) the assistance available from the Central Information Commission or State Information Commission, as the case may be;f) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act including the manner of filing an appeal to the Commission;g) the provisions providing for the voluntary disclosure of categories of records in accordance with section 4;h) the notices regarding fees to be paid in relation to requests for access to an information; andi) any additional regulations or circulars made or issued in relation to obtaining access to an information in accordance with this Act.(4) The appropriate Government must, if necessary, update and publish the guidelines at regular intervals.Meaning/Significance of Article 26 of RTI Act, 2005 The most important aspect of formulation of any Govt. scheme, act, benefit or regulation is the public awareness of the same. The Section 26 of the Right to Information Act, 2005 ensures public awareness. The intent of this section is to maximize awareness among the different classes of the society and create a bridge between the Government and the Public. This section also puts pressure on public authorities to provide information to people and put information in public domain. The objective of this section is to maximize the impact of Right to Information in the society as much as possible by connecting with each and every individual. The people have to be educated by various programmes to be conducted by the Government. It requires publicity among the masses through social media campaigns and other modes of media on constant basis. The benefit of this Act must reach the marginalized and unprivileged. They need to be encouraged to come forward and get their personal problems mitigated through its use. Therefore, the new procedure and proceedings need to be taught to the people as well as the Government officials so that, there is no ignorance regarding the Act and its functioning. The Government officials have to be trained to execute the Act properly for the benefit of people. And the public has to be more open and participative towards the Act, and reap maximum benefit out of it. Explanation of clauses of Section 26 of RTI Act, 2005Section 26(1) and 26(2) talk about initiating new programmes to increase awareness and connecting with the people effectively and efficiently, respectively. Section 26(1) talks about the promotion of the Act and ensuring it reach more and more people in the society. Organizing training programmes for public as well as authorities so that they can get acquainted with the procedure of the Act. Section 26(2) directs the appropriate Government to compile guides within 18 months which should contain useful information for the public as well as officials concerned. Section 26(3) is in furtherance to Section 26(2). Which directs the appropriate Government shall, if necessary, update and publish the guidelines referred to in sub-section (2) at regular intervals. It further includes all the information that requires to be updated and published in the public domain.Section 26(4) basically directs the appropriate Government that it must update and publish the guidelines for the information to the general public includes objective of the Act, name and designation of Public Information Officer (PIO)/Assistant Public Information Officer (APIO), name and designation of First Appellate Authority (FAA), the procedure for getting the information, fee structure, procedure for filing an appeal and assistance available to the public and matters regarding implementation of the Act.Need and Importance of Section 26 RTI Act, 2005The importance of Section 26 of the Right to Information Act, 2005 surrounds awareness and creating a larger impact in the society. It can be summed up in-1- Public Awareness- The objective of this Section is to create Public awareness so that the Act reaches each and every individual of the society. Since, this Act serves a great purpose in a functional constitutional democracy like ours. It is important that ignorance towards such important legislations is minimized. 2- Training of Authorities- It is important that the officials in the Public Authorities are made aware about the functioning of the Act, so that they may serve the public more efficiently. The purpose of the Act fails in practicality if the officials responsible for its implementation are ignorant about the functioning of the Act.3- Training of Public- The people, along with awareness, need to be trained the know-how of the Act and how they may use it for their benefit. Organizing programmes will help people to get acquainted with the Act and the Authorities. And will also minimize abuse of the Act. Section 27 of Right to Information Act, 2005Power to make rules by Appropriate Government.—(1) The Appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—a) the cost of the medium or print cost price of the materials to be disseminated under sub‑section (4) of section 4;b) the fee payable under sub‑section (1) of section 6;c) the fee payable under sub‑sections (1) and (5) of section 7;d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub‑section (6) of section 13 and sub‑section (6) of section 16;e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub‑section (10) of section 19; andf) any other matter which is required to be, or may be, prescribed.2) Meaning/Significance of Section 27 of RTI Act, 2005The Section 27 of the Right to Information Act is relevant because it allows the appropriate government to make provisions for smooth implementation of the Act. This also helps in keeping up the Federal or rather Quasi-Federal nature of the Constitution since; it allows the State Governments to make provisions as per their requirements. Pertaining to the diverse nature of the Indian society, this Section is highly relevant for the execution of this Act. Explanation of clauses of Section 27 of RTI Act, 2005Section 27(1) of the Right to Information Act empowers the appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. The appropriate Government in the case of Union Territory Administration shall be the Central Government. And rest will follow the definition of appropriate Government given in Section 2(a) of the Act. Given the social diversity of India, and the federal nature of the constitution, the State Governments are given liberty to implement the Act in the most suited manner for their territory. And for that purpose they make certain provisions in order to carry out the Act. According to section 27(2) of the Act, in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters mentioned above in the clauses itself. This is in order to ensure smooth functioning within the Authorities so that the Act may be enforced appropriately. Need and Importance of Section 27 RTI Act, 2005The importance of appropriate Government is asserted by the Parliament itself. Powers have been given to the appropriate Government to make rules including procedure to be adopted for deciding request application for seeking information or appeals by First Appellate Authority or by Central/State Information Commission, fee structure for various purposes and any other issue which may be necessary for smooth implementation of the Act. The Section 27 of the Right to Information Act, 2005, is important for the smooth implementation of the Act throughout India. Moreover, it finds importance in maintaining the spirit of the Constitution as well.1- Maintaining Quasi-Federal structure- The power to State Governments to make provisions as per their requirements for better implementation helps in keeping up with the “Federalist” nature of the country.2- Smooth functioning- By the virtue of Section 27, the appropriate government can adjust salaries, fees etc. in order to maintain and better the implementation and impact of the Act in their respective region.3- Avoids conflict of interest- Section 27 ensures there is no conflict of interest between Central Government and State Government in terms of the implementation of the Act. Section 28 in The Right To Information Act, 2005Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (i) the cost of the medium or print cost price of the materials to be disseminated under sub‑section (4) of section 4; (ii) the fee payable under sub‑section (1) of section 6; (iii) the fee payable under sub‑section (1) of section 7; and (iv) any other matter which is required to be, or may be, prescribed.Meaning/ Significance of Article 28 of RTI Act, 2005The Article 28 of the Right to Information Act, 2005, is in furtherance with the Article 27 as it gives recognition to other competent authorities, other than Central/State Government, to make necessary provisions for better and smooth functioning of the Act.Explanation of clauses of Section 28 of RTI Act, 2005Section 28(1) of the RTI Act the competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. This is in respect of other institutions not covered by section 27 of the Act i.e. Central or State Governments. Sub-section (2) of section 28 provides that, in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters mentioned above. It is important to distinguish distribution of Power to implement the Act in the most effective and efficiency moment.Need and Importance of Section 28 RTI Act, 2005It is important to reach to the minutest level of the society in order to reap maximum benefit of the Right to Information Act. For that it is important that competent authorities at every level are given some power for the sake smooth functioning of the Act and to ensure better penetration within the society.1- Benefit to the authorities- By the virtue of Section 28, the competent authorities at smaller level can make rules for their own better functioning. This helps the officials to work for better implementation of the Act throughout the society2- Reaching the minutest layer of the society- India is diverse and it is difficult to reach at every layer of the society, from urban to rural without delegating some power to different authorities. The said authorities may have a better connection with the local population and thus, the benefit of the Act can be maximized.3- Delegation of powers- Section 28 of the Right to Information Act ensures that power is not concentrated or centralized at any level. The more power is given to competent authorities at smaller level, the better connection it will create with the people and will also ensure officials at smaller level are not exploited.
Iist of Power , Responsibilities of a Chief Minster
We all know that Chief Minster is an very Important person who had a big responsibility in his shoulders he has a power remove any member from the mystery ministry.. he has the power to execute the construction of any problem infrastructure (highway bridges Road etc ) Chief minister is the head of of Council of ministers... everyone knows chief Minster play behind the working and affairs of the state.
Syed Sadique Hussain