Transcript THE RIGHT TO INFORMATION

WORKSHOP ON
RIGHT TO INFORMATION
FOR
INFORMATION OFFICERS
OF BELGAUM DIVISION
[CONSTITUTIONAL BASIS FOR RTI, DEFINITIONS
AND EXEMPTION CLAUSES UNDER THE ACT]
DR. V. VIJAYAKUMAR
[email protected]
23 NOVEMBER 2006
Constitutional basis


Article 19 (1) (a) – ‘All citizens shall
have the right to freedom of speech
and expression’
This freedom is not an absolute
freedom and can be regulated by a
‘law’ made by the state under article
19 (2) of the Constitution

a.
b.
c.
d.
e.
f.
g.
h.
Grounds of restriction u/a 19 (2)
Sovereignty and integrity of India
Security of the state
Friendly relations with foreign states
Public order
Decency or morality
Contempt of court
Defamation
Incitement to an offence

Express Newspapers (P) Ltd. v Union of
India, AIR 1958 SC 578
‘…tendency to curtail circulation and
thereby narrow the scope of dissemination
of information, fetters on the petitioner’s
freedom under article 19 (1) (a)’
The court in this case also expanded the
meaning and scope of freedom of speech
and expression to include publication and
circulation

L.K. Koolwal v. State of Rajasthan, AIR
1988 Raj 2 - ‘the state can impose and
should impose reasonable restrictions on
the rights where it affects the national
security or any other matter affecting
nation’s integrity. But the right is limited
and particularly in the matter of sanitation
and other allied matters, every citizen has
a right to know how the state is
functioning and why state is withholding
such information in such matters’

Dinesh Trivedi v. Union of India,
(1997) 4 SCC 306 – ‘Citizens have a
right to know about the affairs of the
government. But the right is not
absolute, secrecy can be legitimately
claimed in respect of transactions
with repercussions on public security’
(Vohra committee report – case
arising out of this report)

Union of India v. Association for
Democratic Reforms (2002) 5 SCC 294
‘the court recognised the citizen’s
fundamental right to information and even
went to the extent of saying that such a
right should be recognised and fully
effectuated’
[right to know the antecedents of the
contesting candidates]

People’s Union for Civil Liberties v.
Union of India (2004) 2 SCC 476
‘Based on the right to know the
antecedents of contesting candidates,
the court held that reasonable
restriction on the exercise of the right
to know [of information] is always
permissible in the interest of the
security of the state’

Mr. X v. Hospital Z (1998) 8 SCC 296
before blood transfusion, on sample blood test,
the doctors found the individual a HIV infected
person – matter was informed to his fiancee,
who called off the marriage – for having
disclosed this information, the petitioner sought
damages from the respondent
rejected by the court and also it was held that
he cannot enforce any other legal right for
enforcing the promise to marry


State of U.P v. Raj Narain, AIR 1975 SC
865 – The court held that the failure to
disclose the details of the ‘Blue Book’ was
wrong and that every citizen of India was
entitled to know the particulars of every
public transaction in all its bearing. It was
also observed that the right to know is
derived from the concept of freedom of
speech, though it is not absolute.
Sheela Barse v. Union of India AIR 1986 SC 1771
Legislative developments
Explosion of information and
exclusion from information are two
competing trends in democratic policy
and governmental secrecy
 The right to information gained
prominence at the global level in
1949 when GA declared freedom of
information to be a fundamental
human right and touchstone of all
other liberties


The UDHR, 1948 as a common
standard of achievement for all
people and all nations – Article 19 –
‘Everyone has the right to freedom of
opinion and expression; this right
includes freedom to hold opinions
without interference and to seek,
receive and impart information and
ideas through any media and
regardless of frontiers’
 The
Commonwealth Law Ministers
meeting in Barbados in 1980
emphasised that ‘public
participation in the democratic
and governmental process was at
its most meaningful when citizens
had adequate access to official
information’
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
Article 51 (c) – ‘The State shall endeavour to
foster respect for international law and treaty
obligations in the dealings of organised people
with one another’
Article 253 – ‘notwithstanding anything in the
foregoing provisions of this chapter (Article 245
to Article 252), Parliament has power to make
any law for the whole or any part of the territory
of India for implementing any treaty, agreement
or convention with any other country or
countries or any decision made at any
international conference, association or other
body’

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Hurdle created by the pre-constitutional law, the
Official Secrets Act, 1923
Section 123 of the Indian Evidence Act, 1872,
provides that and head of the department can
refuse to part with an information [he/she has to
merely swear that it is a state secret]
Rule 11 of the Central Services (Conduct) Rules,
1964 prohibits a government servant to part
with any official document
Rule 9- All India Services (Conduct) Rules, 1968
– no unauthorised communication of information

Archives Policy Resolution of 22 December
1972 states that all documents are
classified for 30 years and thereafter only
non-confidential material is available to a
restricted range of people. Even
‘unclassified’ material cannot be
communicated to any one outside the
government without permission. All
communications to the Press are handled
through the Press Information Bureau


Public Records Act, 1993 [Act no.69 of
1993] - Came into force w.e.f 1.3.1995
‘An act to regulate the management,
administration and preservation of public
records of the central government, Union
territory administration, public sector
undertakings, statutory bodies & corps.,
Commissions and Committees constituted
by the central government or a Union
territory Administration and matters
therewith or incidental thereto’
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The Freedom of Information Act, 2002
[No. 5 of 2003]
Result of Chief Ministers’ Conference on
‘Effective and Responsive Government’
held in Delhi on 24 May 1997 – recognised
the need for such a law unanimously
The Parliamentary Standing Committee on
Home Affairs in its 38th Report
recommended for such legislation
GoI appointed a Working Group on Right
to Information and promotion of Open and
Transparent Government (H.D. Shourie)

Justice P.N.Bhagwati
“open government is the new democratic culture of an
open society towards which every liberal democracy is
moving and our country should be no exception…where
a society has chosen to accept democracy as its ordeal
faith, it is elementary that the citizens ought to know
what their government is doing…No democratic
government can survive without accountability and the
basic postulate of accountability is that the people
should have ‘information’ about the functioning of the
government…openness in government is a guarantee
against administrative misconduct. It is, therefore,
essential that the people have as much information
about the government operations as possible”


Justice V.R.Krishna Iyer in Maneka
Gandhi v. Union of India [AIR 1978
SC 597] observed that ‘a government
which functions in secrecy not only
acts against democratic decency but
also buries itself with its own burial’
Rajasthan, Goa, A.P, M.P, U.P, Delhi,
Goa, J&K, Kerala, Karnataka, Orissa,
Maharastra, Tamil Nadu have taken
initiatives in this regard
Research Foundation for Science and
Technology National Resource Policy
v. Union of India, (2005) 10 SCC 510
- DB
The right to information and
community participation for the
protection of environment and human
health falls under Article 21 of the
Constitution

District Registrar & Collector v. Canara
Bank (2005) 1 SCC 496 - ‘Articles 19 (1)
(a) & (d) and 21 – Right to Privacy of the
person – right to freedom from
unreasonable search and seizure –
confidentiality of bank documents,
telephone calls and correspondence – SC
held that state cannot have unrestricted
access to inspect and seize or make roving
inquiries into all bank records relating to a
person, without any reliable information
before it prior to such inspection’…
‘Search, taking notes or extracts or
seizure of the said documents would
amount to a breach of confidentiality
and be violative of privacy rights of
customers of the bank, unless there
is some probable or reasonable cause
or basis, to be recorded in writing, or
materials before the authority making
or authorizing the search etc.’

Nandkishore Ganesh Joshi v. Municipal
Corporation of Kalyan, Dombivali (2004) 11 SCC
417 – ‘Under the Bombay Provincial Municipal
Corporation Act, 1949 the Standing Committee
sought additional documents from Commissioner
with a bona fide performance of its statutory
functions – Commissioner is bound to comply
with such request unless there exist strong and
cogent reasons for not doing so – Commissioner
cannot contend that all information have been
supplied in a proforma and cannot seek
protection u/s 123 of Evidence Act (privileged
documents) – tenders – duty bound to provide
additional documents sought by the Standing
Committee under R.24 of Working Rules’

PUCL v. Union of India (2004) 9 SCC 580
‘section 14 of POTA – obligation to furnish
information – intra vires articles 14, 19,
20(3) and 21 – Neither a lawyer can claim
professional communication beyond what
is permitted u/s 126 of Evidence Act, nor
is there any law permitting a newspaper
or a journalist to withhold relevant
information from courts, nor can
withholding of such information be traced
to the right to privacy, which itself is not
an absolute right’


Aruna Roy v. Union of India, AIR 2002 SC
3176 – ‘The S.C located the right to
information under Article 21’ (composite
code theory of the SC in Maneka Gandhi v.
Union of India)
Consumer Education & Research Centre v.
Union of India, AIR 1995 SC 922 – The
right of the workers (asbestos) to know
the details of the mandatory medical
examination, held to be valid by the S.C

Saiyad Mohd. Saiyaad Umar Saiyed v.
State of Gujarat, 1995 (3) JT SC 489 –
The court by implication read the
obligation on the part of authorised officer
to inform the person to be searched, of his
right to information that he could be
searched in the presence of a Gazetted
Officer or the Magistrate under the NDPS
Act, 1985.

If the Supreme Court could lay down
these principles as indicated earlier
without a law on the right to information,
then just imagine what it could do by
interpreting the provisions of the Right to
Information Act, 2005 (irrespective of
section 23) in the years to come to the
benefit of the people and making the
government responsible and accountable.

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Judicial innovation under article 19 (1) (a)
Judicial innovation under article 21
Composite code as developed by the
Supreme Court in Maneka Gandhi v. Union
of India, AIR 1978 SC
Conflict between these two interpretations
on one hand and these interpretations and
the R T I Act on the other
Future judicial interpretations under RTIA
DEFINITIONS AND EXEMPTION
CLAUSES
UNDER
THE RIGHT TO INFORMATION
ACT, 2005
THE RIGHT TO INFORMATION
ACT, 2005






Act No. 22 of 2005
Received President’s assent on 15 June 2005
Notified in Official Gazette No. 25, dated 21 June
2005 – came into force on 12 October 2005
Repeals the Freedom of Information Act, 2002
[section 31 of the Act]
Does not include ‘openness’ in preamble as in
Freedom of Information Act, 2002
Does not extend to Jammu and Kashmir (Ltd)
Preamble - ‘An Act to provide for setting out
the practical regime of right to information
for citizens to secure access to information
under the control of public authorities, in
order to promote transparency and
accountability in the working of every
public authority, the constitution of Central
Information Commission and State
Information Commissions and for matters
connected therewith or incidental thereto’

In the objectives to the Act it is
provided that ‘democracy requires an
informed citizenry and transparency
of information which are vital to its
functioning and also to contain
corruption and to hold governments
and their instrumentalities
accountable to the governed’
Chapter I - Preliminary
Sections 4 (1), 5 (1) and (2), 12, 13,
15, 16, 24, 27 and 28 came into force
with immediate effect, while the other
provisions shall come into force on
the 120th day of its enactment (15
June 2005)
 Section 2 provides various definitions
for phrases used like, competent
authority, information, record, right to
information, third party and the like


Section 2 (e) – competent authority – means
(i) the Speaker in the case of House of People or
Legislative Assembly, Chairman in case of
Council of States or Legislative Council;
(ii) the CJI in case of Supreme Court;
(iii) Chief Justice of H.C in case of a H.C;
(iv) the President or the Governor in case of
other authorities established or constituted by or
under the Constitution;
(v) the administrator appointed under article 239
of the Constitution

Section 2 (f) – 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’

Section 2 (h) – Public authority means
‘any authority or body or institution of selfgovernment established or constituted (a)
by or under the Constitution; (b) by any
other law made by Parliament; (c) by any
other law made by state legislature; (d) by
notification issued or made by the
appropriate government, and includes any
(i) body owned, controlled or substantially
financed; (ii) non-government
organization substantially financed,
directly or indirectly by funds provided by
the appropriate government’

Section 2 (i) – record includes
(a) any document, manuscript & file;
(b) any microfilm, microfiche and
facsimile copy of a document;
(c) any reproduction of image or
images embodied in such microfilm
(whether enlarged or not); and
(d) any other material produced by a
computer or any other device

Section 2 (j) – right to information means ‘the
right to information accessible under this Act
which is held by or under the control of any
public authority and includes the right to(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of
documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of
diskettes, floppies, tapes, video cassettes or in
any other electronic mode or through printouts
where such information is stored in a computer
or in any other device
Chapter II–Right to Information and
Obligations of Public Authorities


Section 3 – Subject to the provisions of this Act, all
citizens shall have the right to information
Section 4 – Every Public Authority shall maintain all its
records duly catalogued and indexed in a manner and
the form which facilitates the right to information and
ensure that all records that are appropriate to be
computerized are, within a reasonable time and subject
to availability of resources, computerized and connected
through a network all over the country on different
systems so that access to such records facilitated – also
to provide the information suo motu to the public at
regular intervals through various means of
communications, including internet – dissemination,
keeping in mind the cost effectiveness, local language -


Section 5 – Designation of Public
Information Officers [Central Public
Information Officers and State Public
Information Officers] within 100 days of
the enactment of this Act
Section 6 (2) – No reason need to be
given for requesting the information or
any other personal details by the applicant
except those that may be necessary for
contacting him

Section 7 – Disposal of request – as
expeditiously as possible, and in any case
within thirty days of the receipt of the
request, either provide the information on
payment of such fee as may be prescribed
or reject the request for any of the
reasons specified in sections 8 and 9 –
failing which it shall be deemed to have
refused the request


Section 8 – Exemptions from disclosure of
information
8 (1)-Notwithstanding anything contained in this
Act, there shall be no obligation to give any
citizen,—
(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity
of India, the security, strategic, scientific or
economic interests of the State, relation with
foreign State or lead to incitement of an offence;
(b) information which has been
expressly forbidden to be published
by any court of law or tribunal or the
disclosure of which may constitute
contempt of court;
 (c)information, the disclosure of
which would cause a breach of
privilege of Parliament or the State
Legislature;
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(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
position of a third party, unless the competent
authority is satisfied that larger public interest
warrants the disclosure of such information;
(e) information available to a person in his
fiduciary relationship, unless the competent
authority is satisfied that the larger public
interest warrants the disclosure of such
information;
(f) information received in confidence from
foreign Government;
(g) information, the disclosure of
which would endanger the life or
physical safety of any person or
identify the source of information or
assistance given in confidence for law
enforcement or security purposes;
 (h) information which would impede
the process of investigation or
apprehension or prosecution of
offenders;


(i) cabinet papers including records of
deliberations of the Council of Ministers,
Secretaries and other officers:
Provided that the decisions of Council
of Ministers, the reasons thereof, and the
material on the basis of which the
decisions were taken shall be made public
after the decision has been taken, and the
matter is complete, or over:
Provided further that those matters
which come under the exemptions
specified in this section shall not be
disclosed;

(j) information which relates to personal
information the disclosure of which has no
relationship to any public activity or interest, or
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public
Information Officer or the appellate authority, as
the case may be, is satisfied that the larger
public interest justifies the disclosure of such
information:
Provided that the information which cannot
be denied to the Parliament or a State
Legislature shall not be denied to any person.


8 (2) Notwithstanding anything in the Official Secrets
Act, 1923 nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may
allow access to information, if public interest in
disclosure outweighs the harm to the protected interests.
8 (3) Subject to the provisions of clauses (a), (c) and (i)
of sub-section (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under secton 6 shall be
provided to any person making a request under that
section:
Provided that where any question arises as to the
date from which the said period of twenty years has to
be computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for
in this Act.

Section 9. Without prejudice to the
provisions of section 8, a Central
Public Information Officer or a State
Public Information Officer, as the case
may be, may 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.

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
Section 10 – severability of information to
be given – possible
Section 11 – third party information – time
schedule – five days – written notice to
the third party inviting to make a
submission in writing or orally and such
submission of the third party shall be kept
in view while taking a decision about
disclosure of information [10 days]
CIC and SIC
Section 20 – Penalties [mandatory?]
 for mala fide actions
 Rupees 250 for every day but subject
to a maximum of 25,000
 Also for initiating disciplinary
proceedings against CPIO or SPIOs
under the respective service rules
applicable to them

Chapter VI - Miscellaneous

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Section 21 – protection of action
taken in good faith
Section 22 - Overriding effect over
the Official Secrets Act 1923
Section 23 – Bar on the jurisdiction of
courts – Kihoto Hollohon v. Zachilhu

Section 24 – Act not to apply to agencies
specified in Schedule II to the Act – IB,
RAW, DRI, CEIB, DE, NCB, ARC, SPF, BSF,
CRPF, ITBP, CISF, NSG, ASSAM RIFLES,
SPECIAL SERVICE BUREAU, SPECIAL
BRANCH (CID) ANDAMAN & NICOBAR,
THE CRIME BRANCH-CID-CB DADRA AND
NAGAR HAVELI, SPECIAL BRANCH OF
LAKSHADWEEP POLICE

District Registrar & Collector v. Canara Bank (2005) 1
SCC 496
‘Articles 19 (1) (a) & (d) and 21 – Right to Privacy of the
person – right to freedom from unreasonable search and
seizure – confidentiality of bank documents, telephone
calls and correspondence – SC held that state cannot
have unrestricted access to inspect and seize or make
roving inquiries into all bank records relating to a person,
without any reliable information before it prior to such
inspection, Search, taking notes or extracts or seizure of
the said documents would amount to a breach of
confidentiality and be violative of privacy rights of
customers of the bank, unless there is some probable or
reasonable cause or basis, to be recorded in writing, or
materials before the authority making or authorizing the
search etc.’

Onkar Lal Bajaj v. Union of India (2003) 2
SCC 673 - ‘Articles 21 & 14 – right to
information – allotment of retail outlets,
distributorships and dealerships of
petroleum products – political patronage
for allotment was alleged by the press –
Under such circumstances, the public in
general has a right to know under what
basis their elected representatives got
such allotments’

Nandkishore Ganesh Joshi v. Municipal
Corporation of Kalyan, Dombivali (2004) 11 SCC
417 – ‘Under the Bombay Provincial Municipal
Corporation Act, 1949 the Standing Committee
sought additional documents from Commissioner
with a bona fide performance of its statutory
functions – Commissioner is bound to comply
with such request unless there exist strong and
cogent reasons for not doing so – Commissioner
cannot contend that all information have been
supplied in a proforma and cannot seek
protection u/s 123 of Evidence Act (privileged
documents) – tenders – duty bound to provide
additional documents sought by the Standing
Committee under R.24 of Working Rules’

PUCL v. Union of India (2004) 9 SCC 580
‘section 14 of POTA – obligation to furnish
information – intra vires articles 14, 19,
20(3) and 21 – Neither a lawyer can claim
professional communication beyond what
is permitted u/s 126 of Evidence Act, nor
is there any law permitting a newspaper
or a journalist to withhold relevant
information from courts, nor can
withholding of such information be traced
to the right to privacy, which itself is not
an absolute right’
POSTSCRIPT