RTI Act 2005 – Discretionary Or Discriminatory

Author: RAVI AHUJA, IV YEAR BLS LLB, M. S COLLEGE OF LAW, MUMBRA

*Author has written this article while pursuing training program on article writing by indianlegalsolution.com

INTRODUCTION:

RTI ACT 2005[1][i] refers to the Right to Information Act 2005, which was enacted on the 15^th of July 2005 and was to be made enforceable across India after 120 days, meaning 4 months from the date of enactment.

THE PREAMBLE OF RTI ACT 2005

The underlying intention in the enactment of the RTI Act 2005 is essentially stated in its preamble, where the act specifically makes three vital assertions.

Firstly it recognises that the constitution of India has established a democratic republic and that a democracy requires an informed citizenry. Secondly, it holds that to keep the citizen informed, there must exist, transparency of information. Thirdly it states that citizens can be informed only if there is transparency in information in respect to the affairs and functioning of the Government and its Instrumentalities.

Finally, the Preamble justifies the aforesaid assertions by stating that Informed Citizenry and Transparency of Information, are vital to its functioning, here the word “Its” does not refer specifically to the Legislative, Judiciary or the Executive or the elected government of the day, but fundamentally to the democratic spirit of the Nation as is enshrined in our constitution. The secondary purpose is to contain corruption and to hold Governments and their instrumentalities accountable to the governed.

The preamble also makes a distinction, between the right of the citizen to seek information and the actual disclosure of information, which is likely to conflict with other Public Interests of the Government – this includes three aspects First, being the efficient operations of the government, Second, making optimum use of limited financial resources and Thirdly, preserving the confidentially of the sensitive information. However, the preamble, more or less in the same breathe, goes ahead to harmonise these conflicting interests by enacting the RTI Act 2005.

The Preamble then states that the purpose of the said act is to set out a practical system or a style to ensure that the Citizens can secure information, to promote transparency and accountability, the information that is under the control of the Public Authorities. It also seeks to constitute a State Commission and Central Information Commission, through which information regarding matters related to State or Centre or incidental thereto would be disseminated.

A cursory reading of the Preamble distinctly establishes two sets of facts, which ironically are contradictory in nature.

1. Although the RTI Act reads as Right to Information, this Right is not unconditional, it is subject to certain conditions, the fulfilment of which is a subject to the satisfaction of the PIO , Appellate Authority or the Information Commissioner, either of the State or at the Central Level as the  case may be.

• This clause which confers upon these Authorities, unfettered discretionary powers, for which they are not only immune and protected but also not at all accountable and hence answerable.

• The choice of phrasing of the object clause in the preamble, which is reproduced here for better understanding of facts, brings the reader to question the real motive of this very act.

“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…. “

A cursory reading of this object of the preamble leads to two interpretations.

The first interpretation leads the reader to hold that even though the government intends to let citizens seek information, this spirit of inquiry is more to “promote” transparency and accountability and less to recognise the Right of the citizen to hold the Executive Accountable and Answerable for his decisions and actions. It, therefore, implies, that citizens cannot claim that they have the “Right” to seek information because Govt does not recognise it as their Right but has instead facilitated it as a conditional privilege granted to the citizens. Ironically, the title of the said act given the impression that seeking information is the Right of the Citizen.

The Second Interpretation pertains to the phrase “Information under Control of Public Authorities” The aforesaid phrase can be interpreted in at least two ways.

First, it implies that there is a set of information to which the PIO has access to and which he in his own understanding and judgment, can supply to the information seeker.

The second interpretation is suggestive of the quantum of information that the PIO will release after an application of the information seeker

From the above, it can be reasoned that the PIO has the power to determine how much information can be given or declined, without necessarily assigning reasons for his decisions thereof.

Sec 8 of RTI Act 2005:

This power conferred upon the PIO reflects in Sec 8 of RTI Act 2005 details the grounds on which information can be declined. Ironically, the language of the act conflicts with the grounds of exemption listed in Sec 8 of the Act, when it states that, “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

This clause by itself exempts all information from being exempted. This further leads the reader to another question, which is,  Does the person elected by the masses to the Parliament or the State Legislature stand on a different footing when compared with the very masses who elected him in the first place, to the Parliament or the State Legislature, in so fact as the RTI Act 2005 is concerned? If yes, which clause of RTI Act 2005 affords this extra privilege to the elected representative?

Is this therefore not a violation of Article 14 of the Constitution of India?

Sec 11 of RTI Act 2005:

11. (1) Where a Central Public Information Officer or a 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 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 submit in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while deciding 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.

A close examination of this clause raises the following questions.

When the PIO has intentions to disclose the information, it is suggestive of the fact that information sought, has passed the test laid down under Sec 8 of the Act.

The second test, for making the decisions on whether the information related to a third party can be disclosed on not, lies on the following 3 tests.

The information or record or a part thereof:-

1. Relates to a third party ,
2. Has been supplied by third party
3. Has been treated as confidential by the Third Party

This clause, leads one to question, does the third party have the right to supply its information under the clause of confidentiality? In the alternative, has the concerned keeper of the public records accepted the information so supplied by the third party under a clause of confidentiality?

If the answer to these questions is in the negative, then this leads us to examine, how does the fact that the third party holds the information it has supplied to the Public Authority, impede the decision of the PIO to disclose the information?

Further, if the PIO in his own discretion, (for which he is neither answerable nor accountable) decides to disclose the information, despite the objections registered by the said third party, does it not then, violate the Right to Privacy as laid down in the famous Puttuswamy case?

Is this not a violation of Art 21 of the Constitution of India?

CONCLUSION:

The fundamental conflict that arises, in this act are enumerated as under:

1. While the said act through its Title Clause, suggests that it intends to give the information seeker the right to seek information, per contra, the act as a matter of fact, intends only to promote transparency and accountability vis-à-vis the RTI Act 2005. The implication, of such as convoluted enactment is that it gives way to collusion and cover-up, if and when the decisions made by the Executive impacts the right of a third person. It is irrelevant to examine, whether the number of people constitute to justify larger public interest or not. The right of a individual when effected by the violation of decision of a public authority need not stand up to the test of larger public interest, as the RTI was not intended to protect Larger Public Interests over and above individual interest.

• Is the use of the test for larger public interest, as a standard for deciding and devising exemptions fair and reasonable? How fair is it to hold that every decision taken by the Executive through the Office, of the Public Authority, in respect of any matter that deals with the Rights and Liabilities of the Individual, no matter who or how insignificant;  prima facie, must have a larger impact on Public Interest?

For example, don’t the entries made fraudulently in the Revenue Records, by an individual in respect to a given piece of land, not impact the rights of others, who may be concerned, related, interested in the said land? Of what significance is then, the phrase Larger Public Interest, if the said defective decision of the Executive affects the rights of even one individual? 

• If the RTI Act seeks to bring about a harmony between the Right to Know, and the Right to Privacy, the RTI Act must show, how an information created by an individual by virtue of his own actions and decisions, and brought by himself, voluntarily, in public domain, by way of supplying the information to a given public authority, with the intention to establish a claim, right or liability – in Rem; can he then claim confidentiality while supplying the information to the Public Authority?  

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[1] Gazette of Govt of India, issued by Ministry of Law and Justice, publishing the RTI Act 2005

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