p9- national mechanisms for protection and enforcement of
TRANSCRIPT
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
P9- National Mechanisms for Protection and Enforcement of Human Rights
Right to Information Act
Principal Investigator:
Paper Coordinator:
Content Writer:
Content Reviewer:
Prof. (Dr.) YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University
Development Team
Prof. (Dr.) YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University
Prof. (Dr.) YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University
Prof. (Dr.) Padmanabha Ramanujam, Dean, School of Law, Auro University, Surat
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Description of Module
Subject Name Human Rights and Duties
Paper Name National Mechanisms for the Protection and Enforcement of Human Rights
Module
Name/Title
Right to Information Act
Module Id 29
Pre-requisites
Objectives
Keywords
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Right to Information Act Table of Contents
1. Learning Outcomes
2. Introduction
3. Relevant provisions/mechanism under the RTI Act 3.1 ‘Information’ under the Act
3.2 ‘Public authority’ under the Act
3.3 Exceptions to furnishing information
3.4 Provisions of Appeal
4. Powers and functions of the central and state level authorities empowered by the RTI Act
5. Third Party Information under the RTI Act
6. Conclusion 7. Further reading
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Right to Information Act
1. Learning Outcomes
At end of this module, students would be able to analyse the importance of information
from the government on all matters which affect any person’s rights in the country and
the importance of the RTI Act in this respect.
Students would also be in a position to understand what constitutes ‘information’ under
the RTI Act, 2005, who can seek it, where it can be sought, and within what time should
such a request be replied to?
Understand various provisions in RTI Act and certain important judgments which
constitute the relevance of the Act in India.
2. Introduction
The Right to Information Act, 2005, (RTI Act), which replaced the Freedom of Information Act,
2002, was passed in pursuance of the freedom of speech and expression under Article 19(1) (a)
of the Indian Constitution. Its passage represents a paradigm shift from an era governed by the
Official Secrets Act to one marked by transparency and accountability. Article 19 of the
Universal Declaration of Human Rights and article 19 of the International Covenant for Civil and
Political Rights entitles a citizen, inter alia, to seek, receive, and impart information and ideas.
The Supreme Court of India, in S. P. Gupta v. Union of India1, has also stated that an open
government is a powerful safeguard against political and administrative aberrations and
inefficiency. Evidently, such inactions on the part of government often impinges on the rights
of the various sections of the population. In this respect, RTI Act is of utmost significance
wherein actions of the government attract public scrutiny and thus accountability. In fact, the
Preamble itself recognizes the fact that since the revealing of certain information is likely to
conflict with other public interests like "the preservation of confidentiality of sensitive
information", there is a need to harmonise these conflicting interests.2
The Act seeks to empower Indian citizens to seek information from a ‘Public Authority’, thus
making the Government and its functionaries more responsible.3 Every material that is included
within the meaning of ‘information’, which has been given a wide import in the Act, can be
sought from the concerned public information officer.
1 AIR 1982 SC 149 2 Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1 3 Understanding the “Key Issues and Constraints” in implementing the RTI Act, June 2009.
http://rti.gov.in/rticorner/studybypwc/Executive%20Summary.pdf (last accessed on 22nd May, 2017)
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Information commissions have also been set-up at the central and the state-level to administer
the provisions of the Act. Further, the RTI Act has, vide section 22, an over-riding effect vis-à-vis
other laws, including the Official Secrets Act, 1923.
4 Relevant provisions/mechanism under the RTI Act
3.1 ‘Information’ under the Act
According to Section 2(f) of the RTI Act, 2005, ‘information’ means,
"any material in any form, including records, documents, memos, e-mails, opinions,
advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information relating to any private
body which can be accessed by a public authority under any other law for the time being
in force”.
The Supreme Court in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay
and Ors.4 Observed that, “the effect of the provisions and scheme of the RTI Act is to divide
'information' into the three categories. They are:
(i) Information which promotes transparency and accountability in the working of every
public authority, disclosure of which may also help in containing or discouraging
corruption (enumerated in Clauses (b) and (c) of Section 4(1) of RTI Act).
(ii) Other information held by public authority (that is all information other than those
falling under Clauses (b) and (c) of Section 4(1) of RTI Act).
(iii) Information which is not held by or under the control of any public authority and
which cannot be accessed by a public authority under any law for the time being in
force.”
The Court held that information under the third category does not fall within the scope of RTI
Act. It went on to state that “Section 3 of RTI Act gives every citizen, the right to 'information'
held by or under the control of a public authority, which falls either under the first or second
category. In regard to the information falling under the first category, there is also a special
responsibility upon public authorities, under section 4 (2), to suo moto publish and disseminate
such information so that they will be easily and readily accessible to the public without any need
4 (2011) 8 SCC 497
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
to access them by having recourse to Section 6 of RTI Act. There is no such obligation to publish
and disseminate the other information which falls under the second category.”
Any person who desires to obtain any information under the act can make a request for the
information under section 6 of the act without giving a reason for such a request or any
personal details, except those that are necessary to contact him. This signifies that the act does
not prescribe to any specific format of application for making a request under this act. One
needs to pay relevant fees applicable for obtaining the information. However, in cases of
contention whether a particular information sought comes within the ambit of the Act, it is
eventually the Court which are asked to adjudicate.
For instance, in Khanapuram Gandaiah v. Administrative Officer and Ors.5, the Court held that
the “definition (of “information”) shows that an applicant under Section 6 of the RTI Act can get
any information which is already in existence and accessible to the public authority under law.
Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices,
circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices,
circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions.”
3.2 ‘Public authority’ under the Act
A ‘public authority’ is any authority or body or institution of self-government established or
constituted by or under the Constitution; or by any other law made by the Parliament or a State
Legislature; or by notification issued or order made by the Central Government or a State
Government. The bodies owned, controlled or substantially financed by the Central
Government or a State Government are also public authorities. Non-Government organisations
substantially financed by the Central Government or a State Government also fall within the
definition of public authority. The term “substantially financed” is not defined in the act. Public
authorities have designated some of its officers as Public Information Officers who are
responsible to give information to a person who seeks information under the RTI Act.
The concerned public information officer is required to accept the request, if the information
sought is available with him and comes within the purview of the act, and provide the
information or reject the request within 30 days.
5 Khanapuram Gandaiah vs. Administrative Officer and Ors., AIR 2010 SC 615
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
In Thalappalam Ser. Coop. Bank Ltd. and Ors. v. State of Kerala and Ors.6, the Court held that
the “expression ‘substantially financed’, as such, has not been defined under the Act.
‘Substantial’ means "in a substantial manner so as to be substantial". The word 'substantial' is
not synonymous with 'dominant' or 'majority'. It is closer to 'material' or 'important' or 'of
considerable value.' 'Substantially' is closer to 'essentially'. The burden to show that a body is
owned, controlled or substantially financed or that a non-government organization is
substantially financed directly or indirectly by the funds provided by the appropriate
Government is the applicant who seeks information or the appropriate Government.”
3.3 Exceptions to furnishing information
Sub-section (1) of section 8 and section 9 of the Act enumerate the types of information which
are exempt from disclosure. Section 8 prescribes the following grounds for rejecting a person’s
request for disclosure of information:
National security or sovereignty and integrity of the nation
National economic interests
Relations with foreign states
Law enforcement and the judicial process
Information available to a person in one’s fiduciary relationship
Cabinet papers and other decision-making documents
Trade secrets, intellectual property and commercial confidentiality
Individual safety
Personal privacy
The following three grounds of rejection can be cited by the public information officer under
“public interest”:
Trade secrets, intellectual property and commercial confidentiality
Information available to a person in one’s fiduciary relationship
Personal privacy
6 Thalappalam Ser. Coop. Bank Ltd. and Ors. vs. State of Kerala and Ors., (2013) 16 SCC 82
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Section 9 allows the rejection of a request for disclosure of information that would involve the
infringement of a copyright subsisting in a person other than the state.
The information which, in normal course, is exempt from disclosure under subsection (1) of
Section 8 of the Act, would cease to be exempted if 20 years have lapsed after occurrence of
the incident to which the information relates.
However, the following types of information would continue to be exempt and there would be
no obligation, even after lapse of 20 years, to give any citizen-
(i) Information, disclosure of which would prejudicially affect the sovereignty and
integrity of India, the security, strategic, scientific or economic interest of the State,
relation with foreign state or lead to incitement of an offence;
(ii) Information, the disclosure of which would cause a breach of privilege of Parliament
or State Legislature; or
(iii) cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other Officers subject to the conditions given in proviso to clause (i)
of sub-section(1) of Section 8 of the Act.
Additionally, section 24 excludes the operation of this act on the intelligence and security
organisations specified in the Second Schedule of the act. The Schedule can be amended by the
Central Government and the State Government.
In Shailesh Gandhi v. The Central Information Commission and Ors.7, the Court held that “[t]he
records maintained by the Income Tax Department in respect of an individual who is an assessee
before it cannot be said to be a public record as it is well settled that the Income Tax
Department holds the said records in a fiduciary capacity.”
Also, in, Central Board of Secondary Education and Anr v. Aditya Bandopadhyay and Ors.8, the
Court held that, “rules and regulations governing functioning of public authorities require
preservation of information for only a limited period, applicant for information will be entitled
to such information only if he seeks information when it was available with public authority.
Where information sought was not a part of record of a public authority and where such
information was not required to be maintained under any law or rules or regulations of public
authority, Act does not cast an obligation upon public authority to collect or collate such non-
available information and then furnish it to an applicant.”
7 The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors., 2015 (6) Bom CR91 : [2015] 232
TAXMAN 783 (Bom) 8 Central Board of Secondary Education and Anr vs. Aditya Bandopadhyay and Ors., (2011) 8 SCC 497
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
3.4 Provisions of Appeal
Provision of the act Presiding authority Limitation
period
Time limit for
disposal
Section 6- Request for
obtaining information
Public Information
Officer
30 days
Section 19 (1)- 1st
Appeal
Central Public
Information Officer or
the State Public
Information Officer,
as the case may be
30 days 30 days or such
extended period not
exceeding a total of
45 days from the
date of filing.
Section 19 (3)- 2nd
Appeal
Central Public
Information Officer or
the State Public
Information Officer,
as the case may be
90 days Not specified
Where the Information Commission at the time of deciding any complaint or appeal is of the
opinion that the Public Information Officer has without any reasonable cause, refused to
receive an application for information or has not furnished information within the time
specified or denied the request for information with a mala fide intention or knowingly given
incorrect, incomplete or misleading information or destroyed information which was the
subject of the request or obstructed in any manner in furnishing the information, it shall impose
a penalty of two hundred and fifty rupees each day till application is received or information is
furnished subject to the condition that the total amount of such penalty shall not exceed
twenty five thousand rupees.
4. Powers and functions of the central and state level authorities empowered by the RTI Act
Under the Act, sections 12, 13, and 14, deal with the setting up and functioning of the Central
Information Commission. The Central Government has to appoint the Central Information
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
Commission which shall consist of the Chief Information Commissioner; and such numbers of
Central Information Commissioners not exceeding ten as may be deemed necessary. The Chief
Information Commissioner and the other members are appointed by the President on the
recommendation of a committee consisting of the Prime Minister, who shall be the Chairperson
of the committee, the Leader of Opposition in the Lok Sabha, and a Cabinet Minister to be
nominated by the Prime Minister.
Section 15, 16, and 17 of the Act deal with the setting up and functioning of the State
Information Commission. The State Government has to appoint the State Information
Commission consisting of the State Chief Information Commissioner; and such numbers of State
Information Commissioners not exceeding ten as may be deemed necessary. The State Chief
Information Commissioner and the other members are appointed by the President on the
recommendation of a committee consisting Chief Minister, who shall be the Chairperson of the
committee, the Leader of Opposition in the Legislative Assembly, and a Cabinet Minister to be
nominated by the Chief Minister.
The powers of the commissions constituted are enumerated in section 18.
The Central Information Commission/State Information Commission has a duty to receive
complaints from any person -
who has not been able to submit an information request because a PIO has not been
appointed;
who has been refused information that was requested;
who has received no response to his/her information request within the specified time
limits;
who thinks the fees charged are unreasonable;
who thinks information given is incomplete or false or misleading; and
any other matter relating to obtaining information under this law.
They have the power to order inquiry if there are reasonable grounds. CIC/SCIC will have
powers of Civil Court. They have the power to secure compliance of its decisions from the
Public Authority for-
providing access to information in a particular form;
directing the public authority to appoint a PIO/APIO where none exists;
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
publishing information or categories of information;
making necessary changes to the practices relating to management, maintenance and
destruction of records ;
enhancing training provision for officials on RTI;
seeking an annual report from the public authority on compliance with this law;
require it to compensate for any loss or other detriment suffered by the applicant;
impose penalties under this law; or
reject the application.
The appellate provisions under section 19 are distinct and independent of the powers and
functions of the SIC/CIC to inquire based on a complaint received under section 18. Under
Section 18 of the Act the SIC/CIC is not empowered to pass a direction to the State Information
Officer/Central Information Officer for furnishing the information sought for by the
complainant.9
5. Third Party Information under the Act
If an applicant seeks any information which relates to or has been supplied by a third party and
that third party has treated that information as confidential, the Public Information Officer shall
consider whether the information should be disclosed or not. The guiding principle in such
cases is that except in the case of trade or commercial secrets protected by law, disclosure may
be allowed if the public interest in disclosure outweighs in importance any possible harm or
injury to the interests of such third party.
If the Public Information Officer intends to disclose the information, he shall within five days
from the receipt of the application, give a written notice to the third party that the information
has been sought by the applicant under the RTI Act and that he intends to disclose the
information. He shall request the third party to make a submission in writing or orally,
regarding whether the information may be disclosed. The third party shall be given a time of
ten days, from the date of receipt of the notice by him, to make representation against the
proposed disclosure, if any.
6. Conclusion
9 Chief Information Commr. and Anr. v. State of Manipur and Anr., AIR 2012 SC 864
Human Rights and Duties
National Mechanisms for the Protection and Enforcement of Human Rights
Right to Information Act
The right to information is derived from our fundamental right to freedom of speech and
expression under Article 19 of the Constitution. Access to information promotes transparency
and accountability of the government for its actions. This is especially pertinent in cases of
human rights where due to violations, the circumstances of the victims become urgent.
Moreover, in order to tackle systematic culture of violations, it is imperative to locate the
source of decision-making in the government which is allowing the government to deprive
sections of persons from basic fundamental rights. RTI Act has laid down a thorough
mechanism where such information can be accessed and thus it has contributed to holding the
relevant authorities and bodies responsible and will continue to do so. However, the
indifference of the authorities as well as successive attempts to dilute the provisions of this Act
must be resisted since as already reiterated right to information is of paramount importance in
a liberal democracy such as India.
7. Further Reading
1. Right to Information Act, 2005.
2. Guide on Right to Information Act, 2005 issued by Ministry of Personnel, Public
Grievances & Pensions Department of Personnel & Training
http://rti.gov.in/RTICorner/Guide_2013-issue.pdf
3. Website of Central Information Commission, http://www.cic.gov.in/.
4. Commonwealth Human Rights Initiative website,
http://www.humanrightsinitiative.org/.