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Chapter-5

RIGHT TO INFORMATION ACT, 2005:


A CRITIQUE
5.1 INTRODUCTION
Traditionally man is inquisitive and from the time immemorial
he has been busy in his mission of knowing and discovering the truth
in whatever field his aptitude and imagination ventured. There is
ample evidence in this context in our great Vedic erudition where it is
written that Life is a perennial search for the truth. The restless soul
is on the journey infinite to find the truth1. Ancient India had a feudal
culture and hierarchical social structure. The Maharajas, the Mughals
and the British Rulers defended themselves behind ramparts of
secrecy.2 The Britishers passed Official Secrets Act 19233, which was
mainly a defense mechanism against the rising tide of nationalism. As
Indians were distrusted by British Government, so nobody had any
access to official information under this Act.4 The Indian Legal
System, largely being a colonial vintage, stresses on secrecy laws and
such provisions are contained in Official Secrets Act 1923, in the
Indian Evidence Act 18725, the infamous Rowlatt Act 19196 and
Bengal Criminal (Amendment) Act 19257 etc. After the birth of
Republic, freedom of speech and expression became a fundamental
right under Article 19(1)(a) of the Constitution.
The battle for appropriate legislation for the right to information
in our country has been fought on two main planks, the first being a
demand for amendment of the draconian colonial Official Secrets Act
1923 and the second in the form of a campaign for an early and

1
Rigveda 10.8.18.
2
John F. Riddick, The History of British India: a chronology 45(2006).
3
Act no. 19 of 1923.
4
Kuhad, Paras, Official Secrecy and Right to Information, Administrative Change, Vol. 26, No. 2
January December, pp.46-59.
5
Chapter IX sections 121 to 131.
6
The Rowlatt Act was passed by the Imperial Legislative Council in London on 10 March 1919.
7
Act no.8 of 1925.

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effective law on right to information.8 Very serious objections to
Official Secrets Act were raised in 1948 when the Press Laws Enquiry
Committee recommended certain amendments in it. In 1977, Working
Group was formed9 to look into possibilities of amending this Act to
enable greater dissemination of information to the public.10 This group
recommended that no change was required in the Act as it pertained
only to protect national safety and not to prevent legitimate release of
information to the public.11 In 1989, another committee was setup,12
which identified certain areas where information could be hidden by
government and all other spheres of it should be open.13
The right to information movement started in Rajasthan in the
last phase of 19th century with the efforts of Mazdoor Kisan Shakti
Sangathan14 (MKSS), an Non-Governmental Organization led by
Megsese Awardee Aruna Rai. This movement led to the enactment of
Right to Information laws in several states.
5.2 STATE LAWS ON RIGHT TO INFORMATION
Tamil Nadu was the first state to pass such legislation in 199615
and the states of Goa, Karnataka, Madhya Pradesh, Rajasthan and
Delhi followed the suit16. Uttar Pradesh passed executive orders for
providing access to information17. In 2001, similar laws ensuring
access to information were passed in the states of Andhra Pradesh
and Assam.18 Kerala and Orissa passed such laws in 2002.19 The
Punjab and Haryana Right to Information Rules, 2005 was passed to

8
Justice VR Krishna Iyer, Freedom of Information 9 (19).
9
Committee formed by Janta Party Governmnt.
10
Malhotra, Abhishek and Gaurav Agrawal, Right to Information Central India Law Quarterly,
Vol. 11, July September 1998, pp. 309-320.
11
Dr.Madhabhushi Sridhar, Right to Information Law & Practice 16 (2006).
12
Committee was formed by V.P. Singhs National Front Government.
13
Kumbhar, Sita Ram, Role of Civil Society in Taming Development Through Information, Social
Action, Vol. 56, October-December 2006, pp. 333-343.
14
An Non-Governmental Organization led by Megsese Awardee Aruna Rai.
15
Tamil Nadu Right to Information Act, 1997.
16
Goa Right to Information Act, 1997, Karnataka Right to Information Act, 2000, Madhya Pradesh
Right to Information Bill, 2003, Rajasthan Right to Information Act, 2000 and Delhi Right to
Information Act, 2001.
17
Uttar Pradesh Code of Practice on Access to Information, 2000.
18
The Andhra Pradesh Right to Information Bill, 2001 and The Assam Right to Information Act,
2001.
19
Kerala Right to Information Bill, 2002 and Orissa Right to Information Act, 2002.

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provide for freedom to every citizen of the State to secure access to
information under the control of public authorities consistent with
public interest and as a right to promote openness and transparency
in administration and for matters connected therewith incidental
thereto.20 The Maharashtra Right to Information Act, 200321 was
passed by the State Legislature on the ground that the right to
information has been recognized by the Supreme Court as a part of
the fundamental right guaranteed to the citizens under Article 19(1) of
the Constitution of India; and this right to information is the bed-rock
of democracy and can pave the way for transparency, openness and
accountability in governance of the affairs of the State and ensure
effective participation of the people in a democratic society.22 In the
year 2004, the Legislature of Jammu and Kashmir also passed the
J&K Right to Information Act, 2004.23
5.3 THE FREEDOM OF INFORMATION ACT, 2002
The Freedom of Information Act, 2002,24 was enacted by the
Government of India to provide for freedom to every citizen to secure
access to information under the control of public authorities,
consistent with public interest, in order to promote openness,
transparency and accountability in administration and in relation to
matters connected therewith or incidental thereto.25 The Statement of
Objects and Reasons appended to the Freedom of Information Act,
2002 laid down that the Freedom of Information Bill sought to achieve
the following objects:
(i) The need to enact a law on right to information was recognized
unanimously by the Chief Ministers Conference on Effective and

20
Sharma, Vishal, Punjab, Haryana rules in Right to Information Muddle, The Times of India, 02
January 2008, p.04.
21
Maharashtra Right to Information Act, 2003 was notified on 11th August 2003, with retrospective
effect from September 23, 2002 to save actions initiated under the erstwhile short lived
Maharashtra Right to Information Ordinance, 2002
22
Jyoti Rattan, Genesis of Right to Information under International and National Laws with Special
Reference to India: A Critical Analysis, The Indian Journal of Public Administration, Vol.55, No.
3, July-September, 2009, pp. 672-688, at p.687.
23
Act no. 1 0f 2004.
24
Act no.5 of 2003
25
Freedom of Information Bill Passed, The Hindu, 17 December 2002, p. 13.

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Responsive Government.26 The Parliamentary Standing Committee on
Home Affairs recommended that the Government should take
measures for the enactment of such legislation.27
(ii) In order to make the Government more transparent, and
accountable to the public, the Government of India appointed a
Working Group on the Right to Information and Promotion of Open
and Transparent Government.28 The Working Group was asked to
examine the feasibility and need for either full -fledged Right to
Information Act or its introduction in a phased manner to meet the
needs of open and responsive governance and also to examine the
framework of rules with reference to the Civil Services (Conduct) Rules
and Manual of Office Procedure.29 The said Working Group submitted
its report in May 1997 along with a draft Freedom of Information Bill
to the Government. The working group also recommended suitable
amendments to the Civil Services (Conduct) Rules30 and Manual of
Departmental Security instructions with a view to bring them in
harmony with the proposed Bill.31
(iii) The draft Bill submitted by the Working Group was subsequently
deliberated by the Group of Ministers constituted by the Central
Government to ensure that free flow of information was available to
the public, while inter alia, protecting the national interest,
sovereignty and integrity of India, and friendly relations with foreign
States. 32
(iv) The proposed Bill is in accord with both - Article 19 of the
Constitution as well as Article 19 of the Universal Declaration of
Human Rights, 1948.33

26
Held on 24th May1997, New Delhi.
27
In its 38th Report relating to Demand for Grants of the Ministry of Personnel, Public Grievances
and Pension.
28
Under the Chairmanship of H.D. Shourie.
29
Chopra, Sanjeev, Right to Information: A Paradigm Shift from Representative to Participatory
Democracy, All India Reporter, Vol.96, Part 1148, August 2009, pp. 113-120.
30
Civil Services (Conduct) Rules,1964.
31
Dalal, Rajbirsingh, Right to Information Act, 2005: Expectations and Constraints, The Indian
Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 649-659
32
Dr. Madabhushi Sridhar, Right to Information Law and Practice 22 (2005).
33
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United
Nations General Assembly (10 December 1948, Paris) at Palais de Chaillot, Paris. The
Declaration arose directly from the experience of the second world war and represents the first
global expression of rights to which all human beings are inherently entitled.

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(v) In our present democracy, the Civil Services (Conduct) Rules and
Manual of Office Procedure frame work, free flow of information for the
citizens and Non-Government institutions suffer from several
bottlenecks including the existing legal framework, lack of
infrastructure at the grass root levels and an attitude of secrecy within
the Civil Service as a result of the old framework of rules.34 The
government proposes to deal with all these aspects in a phased
manner so that the Freedom of Information Act becomes a reality
consistent with the objective of having a stable, honest, transparent
and efficient Government.35
(vi) The proposed Bill will enable the citizens to have an access to
information on the statutory basis. With a view to further this
objective, clause 3 of the proposed Bill specifies that subject to the
provisions of this Act, every citizen shall have right to freedom of
information. Obligation is cast upon every public authority under
clause 4 to provide information and to maintain all records consistent
with its operational requirements duly catalogued, indexed and
published at such intervals as may be prescribed by the appropriate
Government or the competent authority.36
The Bharatiya Janata Party led National Democratic Alliance
reworked on the Shourie Draft to finalise the Freedom of Information
Bill, 2000.37 However, even after the Presidential assent, the Act could
not be notified in the Official Gazette. Although, the Bill included new
provisions like fixing the time-limit of forty eight hours for life and
liberty related information, yet it suffered from a number of flaws.38
Primary amongst which was the fact that it reinforced the controlling
role of the government officials who retained wide discretionary
powers to withhold information. Further, it conferred sweeping
exemptions and there was neither a penalty provision nor any sort of

34
Agarwal, U.C., The Official Secret Act to the Right to Information Act Dawn of Glasnost, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 336-345.
35
Chakravarti, Prithvi S., Freedom of Information, Press Council of India Review, Vol. 19, No. 1
January 1998, pp. 63-67.
36
J.N. Barowalia, Commentary on the Right to Information Act 18 (2006).
37
It was introduced in the Lok Sabha on July 25, 2000.
38
Freedom of Information Bill Passed, The Hindu, 17 December 2002, p. 13.

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provision for the constitution of Information Commission.39 Hence, it
was found that even this Act did not fulfill the aspirations of the
citizens of India.
Therefore, in order to ensure greater and more effective access
to information, it was thought that the Freedom of Information Act,
200240 must be made more progressive, participatory and meaningful.
In view of the significant changes proposed in the existing Act, the
government decided to repeal the Freedom of Information Act and
another legislation was proposed to provide an effective framework for
effectuating the right to information. Ultimately after a lot of
discussion and deliberation, the Right to Information Act, 2005, was
passed.41 It came into force in totality42 with effect from 12th October,
2005 and came to be regarded as a milestone in the history of social
legislation to impart information to citizens of India regarding working
of the government and its corporations etc. to make them more
transparent as a result of which corruption, if not eliminated at all,
would be checked to a great extent.43
The Right to Information Act, 200544 repealed the Freedom of
Information Act, 2002. The provisions of the Act have to be read in
consonance and in harmony with the objects and reasons given in the
Act which have been given widest meaning in order to ensure that
unscrupulous persons do not get benefits of concealment of their
illegal activities by being exempt under the Act and are able to hide
nothing from the public.45 Therefore, from the perusal of the objects
and reasons for enacting the Right to Information Act, it is apparent
that the government desired to establish a practical regime of right to

39
Chakravarti, Prithvi S., Freedom of Information, Press Council of India Review, Vol. 19, No. 1
January 1998, pp. 63-67.
40
Ibid.
41
By both the houses of the parliament in the summer session of 2005 and it received the Presidential
assent on June 15, 2005.
42
With effect from 12th October, 2005.
43
Ahmed, A., Towards Transparent Governance, Lawyers Collective, Vol.11, No. 10, October
1996, p. 13-18.
44
Section 31 of the Right to Information Act, 2005.
45
Bhargava, G.S., Bangalore Seminar on Right to Information, Mainstream,Vol. 38, No. 18, 2000,
pp. 31-32.

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information for citizens to have access to information under the
control of public authorities, in order to promote transparency and
accountability in their working.46
5.4 THE FREEDOM OF INFORMATION ACT, 2002 VERSUS THE
RIGHT TO INFORMATION ACT, 2005
The Freedom of Information Act, 2002, was weak on many fronts
that the Right to Information Act has improved upon. The first and
biggest flaw with the Freedom of Information Act was that it came into
force only on notification and not immediately.47 The absence of a time
bound period for implementation resulted in the Freedom of
Information Act remaining in executive abeyance for over eighteen
months under the pretext that the rules for its implementation were
being formulated.48 The Right to Information Act addresses this
problem by ensuring that a few of its provisions come into effect
immediately and the rest on the one hundredth and twentieth day of
its enactment49.
The second area where the Freedom of Information Act was weak
and inadequate was its suo moto disclosure policy which has been
improved to some extent in the Right to Information Act.50 Under the
Freedom of Information Act, only the particulars of an organisation; its
functions, powers and the duties of its officers: norms; rules and
regulations; list of records available to citizens; details of facilities to
get information; facts related to any decision; reasons for its decision,
and, project schemes were to be disclosed suo moto.51 The Right to
Information Act, on the other hand, contains powers to review the Acts
disclosure policy that are vested with an Information Commission. The
Commission has the authority to add to the list of information to be

46
Bansal, J.P., Right to Know, Indian Socio-legal Journal, Vol. 23, 1997, pp. 95-108
47
Bapat, Minal M., Right to Information: Its Scope and Need, All India High Court Cases, Vol.
14, No. 4, January 2008, pp. J-14-16.
48
PK Dass, Handbook on Right to Information 43 (2005).
49
Ibid.
50
Bhargava, G.S., Of Professional Rights and Responsibilities, Mainstream,Vol. 35, No. 21, 3
May 1997, p.35-36
51
Ahmed, A., Towards Transparent Governance, Lawyers Collective, Vol.11, No. 10, October
1996, p. 13-18.

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disclosed suo moto. In addition, the Right to Information Act enables
the publishing of more routine and detailed information at regular
intervals.52 The Freedom of Information Act only required information
to be maintained and indexed to meet operational requirements but
was weak on a uniform documentation policy.53 Other than
maintaining and indexing records, the Right to Information Act also
requires public authorities to ensure that all records that are
appropriate to be computerized and connected through a network all
over the country so that access is facilitated.54 The third area where
the Freedom of Information Act left much to improve upon was the
number of specific, general and blanket exclusions that blocked a
citizens access to information.55 The exclusions under the Right to
Information Act are fewer and more specific. The four general
exemptions under Freedom of Information Act56 have been deleted in
the Right to Information Act. While the blanket exclusion the Freedom
of Information Act provided to intelligence and security agencies has
been retained in the Right to Information Act, information relating to
human rights violations and corruption charges in these agencies is
not exempt following the National Advisory Council recommendations
to that effect. This is a major step towards making the exclusion to
intelligence agencies compatible with the norms of transparency and
good governance. The specific exemptions57 of the Freedom of
Information Act have been retained in the Right to Information Act with
two exclusions. These are:(a) The exemption provided to matters
affecting Centre-State relations has been removed in the Right to
Information Act58 and the decision making process for any policy is

52
Bindra, Jasneet, Citizen Can Choose RTI Even If Theres Another Way to Get Info-Restrictions
to RTI Have to Come From Within the Act, The Tribune, 01 January 2010, p. 02.
53
Chadah, Sapna, "Right to Information Regime in India: A Critical Appraisal", Indian Journal of
Public Administration, Vol. 52, No.1,January-March 2006, pp. 1-17.
54
Arora, Ramesh K., People's Participation in Development Process, Rajasthan Institute of Public
Administration, Jaipur, 1979.
55
Blanton, Thomas, S., The Openness Revolution: The Rise of a Global Movement for Freedom of
Information, Development Dialogue, Vol. 1, 2002, p. 7-21.
56
Section 9 of Freedom of Information Act, 2002.
57
Section 24 and Schedule-2 of the Right to Information Act, 2005.
58
Ibid.

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privy only during deliberation but must be disclosed after the decision
is taken; and, (b) Information received from foreign governments and
information which would constitute contempt of court on disclosure
has been excluded under the Right to Information Act.59 Safeguards to
protect privacy of individuals have been included in the Right to
Information Act. Despite a greater number of exemptions in the Right
to Information Act, their brevity and preciseness serve it better than
the Freedom of Information Act.60 Incidentally, none of the exemptions
of the Freedom of Information Act were subject to the public interest
override clause, which has been provided for in the Right to
Information Act.61 For the information excluded currently, the de-
classification period has also been reduced from 25 years in the
Freedom of Information Act to 20 years in the Right to Information Act.62
The fourth area where the Right to Information Act largely
improves upon the Freedom of Information Act is the provision for
penalising the officers who refuse information or give incorrect
information. Interestingly, such a provision does not exist in many
similar laws of other countries, but the experience of the states right
to information laws and the general mindset of the Indian
bureaucracy have made it an important aspect of the Right to
Information Act.63 As a matter of fact, on almost every aspect, the Right
to Information Act has improved upon the Freedom of Information Act,
but the most crucial is the creation of the Information Commissions at
the Center and States.64 This ensures that there is an apex authority
to form rules, review and implement the Right to Information Act in
India.65 This will also introduce a system of independent appeals to

59
Chandrasegaran, K. and Ambedkar, Rule of Law and Right to Information, Journal of Indian
Legal Thought, Vol. 1, 2003, pp. 187-196.
60
Channaraj, Kathyayini, Exercising the Right to Seek Information, Yojana,Vol. 50, January 2006,
p. 21.
61
Chakravarti, Prithvi S., Freedom of Information, Press Council of India Review, Vol. 19, No. 1
January 1998, pp. 63-67.
62
A.B. Srivastava, Right to Information Laws in India 11(2006).
63
V.R., Krishna Iyer, Freedom of Information 86 (1990).
64
Section-12 and Section -15 of the Right to information Act, 2005.
65
Goyal, K. N., Some Aspects of the Right to Information, All India Reporter, Vol. 84, Part 1007,
November 1997, pp. J-179-188.

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the Information Commission for each transaction under the Right to
Information Act.66
Non enforcement of Freedom of Information Act, 2002 caused
very much resentment among people and they demanded an effective
law in this respect. After years of struggle for the central legislation on
right to information the civil society groups emerged into the National
Campaign for Peoples Right to Information (NCPRI) in 1996. Justice
P.B. Sawant,67and other prominent persons drafted a Bill for NCPRI,
known as Press Council Draft.68 This was the first major draft
legislation on right to information in the country that was widely
debated and generally welcomed and was circulated by Press Council
of India in 199669. The most detailed proposed Freedom of Information
Bill was the one drafted by the Consumer Education Research Council
(CERC).70
The Government set up a National Advisory Council to supervise
the implementation of its program which discussed Karnataka and
Maharashtra Acts and tried to incorporate many amendments on the
principal of maximum disclosure and minimum exemptions consistent
with Constitutional provisions, independent appeal mechanisms,
penalties for failure to provide information as per the law, effective
mechanism for access to information and disclosure by authorities.71
This led to the passing of Right to Information Act, 200572 with
significant improvements.
5.5 TITLE AND SCHEME OF THE ACT
The title of an Act is a part and parcel of the Act itself. The title
of the present RTI Act is clearly worded and lays down that it relates
to the right to information. The Supreme Court in Commissioner of

66
Section- 19 of the Right to information Act, 2005.
67
Chairman of Press Council of India.
68
Chakravarti, Prithvi S., Freedom of Information, Press Council of India Review, Vol. 19, No. 1
January 1998, pp. 63-67.
69
Draft laws can be accessed from Right to Information section of CHRIs website .
70
Dalal, A.S and L.C. Dhingra, Consumers Right to Information: A Case Comment, M.D.U. Law
Journal, Vol. 7, 2002, pp. 235-236
71
Chandrasegaran, K. and Ambedkar, Rule of Law and Right to Information, Journal of Indian
Legal Thought, Vol. 1, 2003, pp. 187-196.
72
Act No. 22 of 2005.

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Income Tax, Bombay v. Ahmedbhai Umarbhai & Co., Bombay,73 has
held that the title of the statute is an important part of the Act and
may be referred to for the purposes of ascertaining its general scope
and for throwing light on its construction although it cannot override
the clear meaning of the enactment. In the similar fashion the Apex
Court in M.P.V. Sundararamier & Co. v. State of Andhra Pradesh,74
has held that the title of a chapter cannot legitimately be used to
restrict the plain terms of an enactment. The true nature of a law has,
therefore, to be determined not on the label given to it in the statute
but on its substance.
5.6 SPECIAL LAW - SOCIAL WELFARE LEGISLATION
The Right to Information Act, 2005 is a special law by providing
the powers to citizens for getting information. It is a social welfare
legislation and is a special law75 as far as the penalties provided under
the Act are concerned76. The purpose of the Act is to ensure smoother
and greater access to information by establishment of an appellate
machinery with investigating powers to review decisions of Public
Information Officers, provisions to ensure maximum disclosure and
minimum exemptions consistent with constitutional provisions,
effective mechanism for access to information and disclosure by
authorities as well as penal provisions for failure to provide
information as per the law.77 In the case of A.K.Ghosh v. A.Bose78, The
Supreme Court held that the title of the statute is an important part of
the Act.
5.7 COMMENCEMENT OF THE ACT
The Right to Information Bill was introduced in the Lok Sabha
in December 20th and was passed by both the Houses of Parliament
with major amendments in May 2005. It received the assent of the

73
AIR 1950 SC 134.
74
AIR 1958 SC 468.
75
Under Section-41 of Indian Penal Code,1860.
76
Section-20 of The Right to Information Act, 2005.
77
Scope and object of The Right to Information Bill.
78
AIR 1952 SC 369.

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President of India79 and then the Act was notified in Gazette of
India.80 As per section 1(3) of the Act, the provisions of sub-section (1)
of section 4, sub-sections (1) and (2) of section 5, sections 12, 13,
15,16, 24, 27 and 28 shall come into force at once, and the remaining
provisions of this Act shall come into force on the one hundred and
twentieth day of its enactment which means that all the provisions of
the Act came into force w.e.f. 12th day of October 2005. This Act has
repealed the Freedom of Information Act, 2002.81 The Act extends to
the whole of India except the State of Jammu & Kashmir. However,
the State of Jammu & Kashmir has its own separate Act.82
5.8 EXTENT OF THE ACT
The certain provisions of the Act83 came into force at once, and
the remaining provisions of this Act came into force on the one
hundred and twentieth day of its enactment. Thus, all the provisions
of the Act came into effect with effect from 12th October, 2005 in
whole of India except the State of Jammu & Kashmir, which has its
own Act.84
The Right to Information Act extends to,
(a) All the States and Union territories in India;
(b) Territorial waters of India;
(c) Ships flying Indian flags; and
(d) Air and aircrafts.
5.9 DEFINITIONS :
It is well-settled principle of interpretation that when definition
clause is added to an Act, the definitions of the words given therein
merely define the meaning of the words to make the terms definite in
the sense in which these are used in various sections of the Act.85 If in
the definition, the word 'means' is used, it implies the exhaustive
definition and if word 'includes' is used, it implies that it include
certain matters which ordinary definition of the word might not have
79
On June 15, 2005.
80
On June 21, 2005.
81
Ibid.
82
The Jammu and Kashmir Right to Information Act, 2004.
83
Section-4(1),5(1) 5(2) and Section- 12,13,15,16, 24,27,28.
84
Maxwell, Interpretation of Statutes101 (2000).
85
Ibid.

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included.86 It is, at all events, reasonable to presume that the same
meaning is implied by the use of the same expression in every part of
the Act.87 This rule of construction is only one element in deciding
what the true import of the enactment is, to ascertain which, it is
necessary to have regard to the purpose behind the particular
provision and its setting in the scheme of the Statute.88 The Supreme
Court in Shamrao Vishnu Parulekar v. District Magistrate, Thane,89
held that the rule of statutory construction is only one element in
deciding what the true import of the enactment is, and to ascertain
the true import, it is necessary to have regard to the purpose behind
the particular provision and its setting in the scheme of the statute.
The presumption that the same words are used in the same
meaning is, however, very slight, and it is proper if sufficient reasons
can be assigned to construe a word in one part of an Act in different
sense from that what it bears in another part of an Act.90 The Right to
Information Act 2005, implies that the definitions of various words
and expressions given in this section should be followed generally; but
if the context otherwise requires then the interpreter has the
discretion to adopt such other meaning of the particular word or
expression which is in harmony with the context of the expression and
for this purpose sufficient flexibility is provided by the insertion of
these words.91
The Supreme Court in the case of State of U.P. v. M.L.
Srivastava,92 held that the word Shall in a statute does not mean in

every case it shall have that effect, that unless the words of a statute

are punctiliously followed, the proceed or the outcome of the


proceeding would be invalid.

In the similar fashion, the Apex Court in State of U.P. v.

86
Paranjpe, Interpretation of Statutes 82 (2001).
87
Supra.
88
Maxwell, Interpretation of Statutes 102(2000).
89
AIR 1957 SC 23.
90
Ibid.
91
G.B. Singh, General Principles of Interpretation of Statutes 342 (1999).
92
AIR 1957 SC 912.

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Jogender Singh,93 the Apex Court held that the word May does not

means must or shall in every case but in the light of context it may
mean must or shall.

Following the trend the Supreme Court in Kalyan Singh v.


Gainda Lal,94 observed that the frame of any definition, more often
than not, is capable of being made flexible. However, the precision and
certainty in law requires that it should not be made loose and should
be kept tight as far as possible. It is not correct to give as wide a
meaning as possible to the terms used in a statute simply because the
statute does not define an expression.
i) Appropriate Government
Appropriate Government"95 means in relation to a public
authority which is established, constituted, owned, controlled or
substantially financed by funds provided directly or indirectly,-
(i) by the Central Government or the Union territory
administration, the Central Government;
(ii) by the State Government, the State Government.
Therefore, 'appropriate Government' means the Central
Government or the State Government. It is necessary for the
government to make a list of such non government/private
organizations that are substantially financed by the Central or the
State Government and the department which is controlling the
finances for such organizations must advise such non-
government/private organizations to set up information access system
for the benefit of the citizens of India and they should be advised to
give all information as per the Act to citizens on payment of
reasonable fee.96 If any such non-government/private organization
which is substantially financed by funds directly or indirectly by the
Central or the State Government fails to supply the information to any
citizen of India on request, the aggrieved person is competent to bring
93
AIR 1963 SC 1618.
94
AIR 1975 SC 1634.
95
Section-2(a) of Right to Information Act, 2005.
96
Ibid.

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the matter to the notice of the higher authority in the department,
which is financing such non-government/private organization and
then second appeal would lie to the Central Information
Commissioner or the State Information Commission, as the case may
be97.
ii) Central Information Commission
The Central Information Commission is the backbone of the
Right to Information Act and is an independent and impartial
statutory body which has to discharge its duties without being
subjected to directions by any other authority. "Central Information
Commission98" means the Central Information Commission
constituted under sub-section (1) of section 12 of the Act. The Central
Information Commission is statutory body constituted under section
12 of the Right to Information Act.
iii) Central Public Information Officer
According to the Right to Information Act 2005, "Central Public
Information Officer99" means an officer designated under subsection
(1) of section 5 and includes a Central Assistant Public Information
Officer designated as such under sub-section (2) of section 5 of the
Act. The Central Public Information Officer and the Central Assistant
Public Information Officer are those officers, who are designated as
such either by the public authorities; or the competent authorities in
their respective administrative offices/units with the object to provide
information to the citizens on their making request for the same under
the Act.100 The public authorities are duty bound to designate,101 an
Officer at each sub-divisional level or other sub-district level as a
Central Assistant Public Information Officer which means they should
have been designated as such on or before 23rd day of September
2005. The Public Information Officer is the nodal officer in the public

97
Section 19 of the Right to Information, Act, 2005.
98
Section-2(b) of the Right to Information Act, 2005.
99
Section-2(c) of the Right to Information Act, 2005.
100
Mishra, Sweta, Right to Information and Decentralised Governance, The Indian Journal of
Public Administration, Vol. 55, No. 3, July- September 2009, pp. 689-701.
101
Within one hundred days of the enactment of the Right to Information Act, 2005.

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authority responsible for implementation of the Act.
iv) Chief Information Commissioner and Information
Commissioner
The Central Information Commission is the backbone of the
Right to Information Act and is an independent and impartial
statutory body. It shall be headed by the Chief Information
Commissioner to be assisted by the Central Information
Commissioners.102 The terms 'Chief Information Commissioner' and
'Information Commissioner'103 have been defined in the Act, to mean
the 'Chief Information Commissioner' and 'Information Commissioner'
appointed under sub-section (3) of section 12 of the Act. The Chief
Information Commissioner and Central Information Commissioner
shall be appointed by the President on the recommendation of a
committee.104
v) Competent Authority
The competent authority has been empowered with the power of
delegated legislation to frame rules to carry out the provisions of this
Act.105 Competent Authority under section 2(e) of the Right to
Information Act means, and include-
(i) the Speaker in the case of the House of the People or the
Legislative Assembly of a State or a Union territory having
such Assembly and the Chairman in the case of the
Council of States or Legislative Council of a State;
(ii) the Chief Justice of India in the case of the Supreme
Court;
(iii) the Chief justice of the High Court in the ease of a High
Court;
(iv) the President or the Governor, as the case may be, in the

102
Narain, Siddharth, Information Commission - Its Role - It is to Act as a Non-Government
Arbiter, Labour Law Notes, Vol. 87, Part 11, November 2005, pp. J-264-270.
103
Section 2(d) of the Right to Information Act.
104
Consisting of Prime Minister, who shall be the Chairperson of the Committee; the Leader of
Opposition in the Lok Sabha; and a Union Cabinet Minister to be nominated by the Prime
Minister.
105
Section 28 of the Right to Information Act.

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case of other authorities established or constituted by or
under the Constitution;
(v) the administrator appointed under Article 239 of the
Constitution.
vi) Information
The term 'Information' has been defined in the Act,106 to mean
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 Delhi High Court in the case of Union of India v. R.S.
Khan,107 held that the definition of Information includes file notings
during disciplinary proceedings which are in the form of of views and
comments expressed by various officials dealing with the files. In
another case of V. Madhar v. Tamil Nadu Information Commission,108
the Madras High Court has held that the asset details of government
servants filed before government though in sealed covers cannot be
said to come in the definition of information that could not be
assessed by government. Similarly in Shekhar Chandra Verma v. State
Information Commissioner,109 It was held that Right to Information Act,
2005, contemplates furnishing of information which is available on
records, but it does not go so far as to require an authority to first
carry out enquiry and thereby create information, which appears to be
what the information seeker had required from the appellant.
vii) Record
The term "Record" under the Act110 means and to include,-
(i) any document, manuscript and file;
(ii) any microfilm, microfiche and facsimile copy of a
document;
106
Section 2(f) of the Right to Information Act,2005.
107
AIR 2011 Del 50.
108
AIR 2012 Mad 5.
109
AIR 2012 Pat 60.
110
Section 2(i) of the Right to Information Act, 2005.

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(iii) any reproduction of image or images embodied in such
microfilm (whether enlarged or not); and
(iv) any other material produced by a computer or any other
device.
viii) Prescribed
The term 'prescribed' has been defined under the Right to
information Act111 to mean prescribed by rules made under this Act by
the appropriate Government or the competent authority, as the case
may be. The Right to Information Rules framed by the Central
Government has been incorporated in Part II, while the Right to
Information Rules framed by various State Governments have been
incorporated in Appendices of the book. It should be remembered that
the use of the word 'prescribed' is the normal expression for conferring
a power to make a rule.112
ix) Public Authority
The term 'Public Authority' has been defined under the Act113 to
mean any authority by or under the Constitution or by any other law
made by Parliament or State Legislature or by notification issued or
order made by appropriate government and includes any-
(1) Body owned, controlled or substantially financed.
(2) Non Government Organisation substantially financed directly or
indirectly by funds provided by appropriate government.
The Madras High Court in Karanthai Tamil Sangam v. R.
Sivaprakasham,114 held that non government organisations receiving
allocation or provision of funds has to be treated as public authority
under Right to Information Act, 2005. Similarly in Karnal Cooperative
Sugar Mills Ltd. v. State Information Commissioner, Haryana,115 The
Punjab and Haryana High Court held that definition of public
authority includes cooperative sugar mill managed by a managing

111
Section 2(g) of the Right to Information Act, 2005.
112
V. Guruviah Naidu v. State of Madras, AIR 1958 Mad 249.
113
Section 2(h) of the Right to Information Act, 2005.
114
AIR 2011 Mad 13.
115
AIR 2011(NOC) 181(P&H).

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director who is a state civil service officer. In the case of Shiksham
Prasarak Mandal v. State Information Commissioner116, The Bombay
High Court held that schools, colleges receiving grants in and from
state government to be treated as public authority. Similarly the
Bombay High Court in Public Information Officer v. Manohar
Parrikar,117 held that the President of India and Governor of State are
public authorities under section 2(h) of the Act.
Deviating from the trend, the Bombay High Court in
Bhaskarrao Shankarrao Kulkarni v. State Information Commissioner,
Nagpur,118 has held that the public trust is not covered under the
Act as to include in the definition of public authority.
x) Right to Information
The term 'right to information' has been defined, under the
Act,119 to mean the right to information accessible under this Act
which is held by or under the control of any public authority i.e. any
authority or body or institution of self-government established or
constituted120 - (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 order made by the appropriate
Government, and includes any - (i) body owned, controlled or
substantially financed;121 and (ii) Non Government Organisation
substantially financed, directly or indirectly by funds provided by the
appropriate Government 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;

116
AIR 2011 (NOC) 137(Bom).
117
AIR 2012 Bom 71.
118
AIR 2009 Bom 163.
119
Section-2(j) of Right to Information Act, 2005.
120
Nayak, Venkatesh and Charmine Rodrigues, An Analysis of the Amendments to the Right to
Information Bill, 2004 Passed in the Lok Sabha on May 11, 2005, Commonwealth Human Rights
Initiative, New Delhi, 2005.
121
Netha, B. Venkatesh, Right to Information- Its Legal Foundation, Andhra Weekly Reporter, Vol.
1, Part 6, March 2009, p. 31.

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(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.122
The Supreme Court in Central Information Commission v. State
of Manipur,123 held that the right to information is intrinsic part of
fundamental right to free speech and expression guaranteed under
Article 19(1)(a) of Constitution of India. But such right is subject to
reasonable restrictions under article 19(2)124
The Karnataka High Court in the case of H.E. Rajashekarappa v.
State Public Information Officer,125 has held that the personal
information of officials working for public authorities is not within the
ambit of section 2(f). Following the trend, the Madras High Court in V.
Madhav v.Tamil Nadu Information Commission,126 held that the
personal information sought cannot be denied if authorities concerned
are satisfied that the larger public interest justifies disclosure of such
information.
In the case of Sh. Priyavadan H Nanavati v. Institute of
Chartered Accounts of India127 the applicant had requested for a copy
of the complaint file against him before ICAI. Before this complaint
could be registered the ICAI had returned the complaint to the
complainant to rectify defects etc. preparatory to its registration for
the enquiry to commence. Therefore the point to be established was
whether the information which respondent have returned to the
person who filed it can be said to be 'held' or be 'under the control of'

122
Nayak, Venkatesh and Reshmi Mitra, RTI, the Most Precious Right, The Tribune, 30 September
2007 p.13.
123
AIR 2012 SC 864.
124
Clause (2) of Article 19 specifies the limits up to which the freedom of speech and expression
(inter-alia Right to Information) may be restricted. It enables the legislature to impose reasonable
restrictions on the right to free speech such as: Security of the State, Friendly relations with foreign
States, Public Order, Decency or morality, Contempt of Court, Defamation, Incitement to an
offence, Sovereignty and integrity of India. Reasonable restrictions under these heads can be
imposed only by a duly enacted law and not by executive action.
125
(2009) 73 AIC 453 (Karn).
126
AIR 2012 Mad 5.
127
CIC/AT/A/2007/00327.

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the respondent in terms of section 2(j) of the RTI Act. The expression
'held' or 'under the control of' used in the subsection 2(j) of the Act are
significant. These expressions mean that information can be said to be
under the control of a public authority only when such public
authority holds that information authoritatively and legitimately.
Information which a public authority might receive casually or, which
it had returned to its point of origin for supplying omissions, will not
qualify to be 'held' or 'under the control of' the public authority. The
present information solicited by the appellant falls in this category.
Having been returned by the public authority the respondents herein,
to its originator, the information cannot be said to be under the
control of the respondents.128
xi) State Information Commission
The State Information Commission is a statutory body
constituted under section 15(1) of the Act. The constitution and
powers of State Information Commission can be summarized
under129:-
a) That the State Information Commission shall be constituted by
the State Government through the gazette notification.
b) That the State Information Commission shall consists of the
Chief Information Commissioner (CIC) and such number of
State Information Commissioners (CI) not exceeding ten, as may
be deemed necessary, who shall be appointed by the Governor
of State.130
xii) The State Chief information Commissioner and State
Information Commissioner
The State Chief Information Commissioner and the State
Information Commissioner have been defined under the Right to
Information Act131 to mean the 'State Chief Information Commissioner'

128
Nigam, Shalu, About Your Right to Information: Along with Latest Decisions by the Central
Information Commission, Second Edition, We the People Trust, New Delhi, 2008.
129
Ibid.
130
Noorani, A.G., Law on Right to Information, Economic and Political Weekly, Vol. 33, No. 45,
November 1998, pp. 2826-2832.
131
Section 2(1) of the Right to Information Act, 2005.

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and 'State Information Commissioner' appointed under sub-section (3)
of section 15 of the Act. The State Chief Information Commissioner
and State Information Commissioners shall be appointed by the
Governor on the recommendation of a committee.132
xiii) State Public Information Officer
According to the Right to Information Act133 "State 'Public

Information Officer" means the State Public Information Officer


designated under section 5(1) and includes a State Assistant Public

Information Officer designated as such under section 5(2) of the Act.

The State Public Information Officer and the State Assistant Public
Information Officer are those officers, who are designated as such by

the public authorities and the competent authorities in their


respective administrative offices/units with the object to provide

information to the citizens making request for the same under the Act.
The public authorities are duty bound to designate an officer,134 at

each Sub Divisional level as the State Assistant Public Information


Officer. This means that the public authorities should have

designated, Public Information Officer and Assistant Public

Information Officer on or before 23rd day of September 2005. The


Public Information Officer is the nodal officer in the Public Authority

responsible for implementation of the Act. Further State Public


Information Officer and the State Assistant Public Information officer

may seek the assistance of any other officer as he or she considers


necessary for proper discharge of his/her duties and any such officer

shall be treated as Public Information officer for the purposes of any


contravention of the provisions of this Act.135

132
Consisting of (1) the Chief Minister, who shall be the Chairperson of the Committee;(ii)the Leader
of Opposition in the Legislative Assembly; and (iii)a Cabinet Minister to be nominated by the
Chief Minister.
133
Section 2(m) of the Right to Information Act, 2005.
134
Within one hundred days of the enactment of the Right to Information Act, 2005.
135
P.K. Dass, Commentary on the Right to Information Act, 2005.

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In the case of Shri Hemant Goswami v. Administrator, U.T.,
Chandigarh,136the applicant had applied for info under RTI but he
received reply as Administrator UT Chandigarh is not a Public
Authority and accordingly no PIO has been appointed. It was held that
Administrator Chandigarh is a Public Authority and it shall appoint
PIOS and APIOS to provide information.
5.10 RIGHT TO INFORMATION AND OBLIGATION OF PUBLIC
AUTHORITIES
Under the Act, all citizens have right to information which is a
fundamental right and access to information is the rule137. India is a
democratic country and it is blessed with the article 19(1)(a) of the
Constitution which provides for the freedom of speech and expression.
And this provision hides the provision of right to information.138 The
Supreme Court in Indian Express Newspapers (Bombay) Private Ltd. v.
Union of India,139 held that several unenumerated rights falls within
the ambit of article 21 since personal liberty is of widest amplitude
and from article 19 can derive many states of rights.140
Every public authority shall maintain all its records duly
catalogued and indexed in a manner and the form which facilities
the right to information under this Act and ensure that all records
that are appropriate to be computerised are, within a reasonable
time and subject to availability of resources, computerised and
connected through a network all over the country on different
systems so that access to such records is facilitated; 141 and to
publish within one hundred and twenty days from the enactment of
this Act,
I. the particulars of its organisation, functions and duties;142

136
CIC/WB/C/2008/00020 dated 25.1.2008.
137
Bhagat Singh Vs. Chief Information Commissioner, (2008) 64 AIC 284.
138
Palekar, S. A., Right to Information: An Analysis, The Indian Journal of Public Administration,
Vol. 55, No. 3, July-September 2009, pp. 644-648.
139
AIR 1986 SC 515.
140
Ibid.
141
Section- 4 of the Right to Information Act, 2005.
142
Section- 4(1)(b)(i) of the Right to Information Act, 2005.

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II. the powers and duties of its officers and employees;143
III. the procedure followed in the decision making process,
including channels of supervision and accountability;144
IV. the norms set by it for the discharge of its functions;145
V. the rules, regulations, instructions, manuals and records,
held by it or under its control or used by its employees for
discharging its functions;146
VI. a statement of the categories of documents that are held by it
or under its control;147
VII. The particulars of any arrangement that exists for
consultation with, or representation by, the members of the
public in relation to the formulation of its policy or
implementation thereof;148
VIII. A statement of the boards, councils, committees and other
bodies consisting of two or more persons constituted as its
part or for the purpose of its advice, and as to whether
meetings of those boards, councils, committees and other
bodies are open to the public, or the minutes of such
meetings are accessible for public;149
IX. a directory of its officers and employees;150
X. the monthly remuneration received by each of its officers and
employees, including the system of compensation as provided
in its regulations;151
XI. the budget allocated to each of its agency, indicating the
particulars of all plans, proposed expenditures and reports

143
Section- 4(1)(b)(ii) of the Right to Information Act, 2005.
144
Section- 4(1)(b)(iii) of the Right to Information Act, 2005.
145
Section- 4(1)(b)(iv) of the Right to Information Act, 2005.
146
Section- 4(1)(b)(v) of the Right to Information Act, 2005.
147
Section- 4(1)(b)(vi) of the Right to Information Act, 2005.
148
Section- 4(1)(b)(vii) of the Right to Information Act, 2005.
149
Section- 4(1)(b)(viii) of the Right to Information Act, 2005.
150
Section- 4(1)(b)(ix) of the Right to Information Act, 2005.
151
Section- 4(1)(b)(x) of the Right to Information Act, 2005.

. 279
on disbursements made;152
XII. the manner of execution of subsidy programmes, including
the amounts allocated and the details of beneficiaries of such
programmes;153
XIII. particulars of recipients of concessions, permits or
authorisations granted by it;154
XIV. details in respect of the information, available to or held by it,
reduced in an electronic form;155
XV. the particulars of facilities available to citizens for obtaining
information, including the working hours of a library or
reading room, if maintained for public use;156
XVI. the names, designations and other particulars of the Public
Information Officers;157
XVII. such other information as may be prescribed, and thereafter
update these publications every year;158
For making access to record it is pertinent to publish all
relevant facts while formulating important policies or announcing
the decisions which affect public;159 and provide reasons for its
administrative or quasi judicial decisions to affected persons.160 It
shall be a constant endeavor of every public authority to take steps
in accordance with the requirements of clause (b) of sub-section (1)
to provide as much information suo motu to the public at regular
intervals through various means of communications, including
internet, so that the public have minimum resort to the use of this
Act to obtain information.161For the purpose of sub-section (1),

152
Section- 4(1)(b)(xi) of the Right to Information Act, 2005.
153
Section- 4(1)(b)(xii) of the Right to Information Act, 2005.
154
Section- 4(1)(b)(xiii) of the Right to Information Act, 2005.
155
Section- 4(1)(b)(xiv) of the Right to Information Act, 2005.
156
Section- 4(1)(b)(xv) of the Right to Information Act, 2005.
157
Section- 4(1)(b)(xvi) of the Right to Information Act, 2005.
158
Section- 4(1)(xvii) of the Right to Information Act, 2005.
159
Section- 4(1)(c) of the Right to Information Act, 2005.
160
Section- 4(1)(d) of the Right to Information Act, 2005.
161
Section- 4(2) of the Right to Information Act, 2005.

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every information shall be disseminated widely and in such form
and manner which is easily accessible to the public.162 All materials
shall be disseminated taking into consideration the cost
effectiveness, local language and the most effective method of
communication in that local area and the information should be
easily accessible, to the extent possible in electronic
format with the Central Public Information Officer or State Public
Information Officer, as the case may be, available free or at such
cost of the medium or the print cost price as may be prescribed.163
India being a welfare state, it is the duty of the Government
to protect and enhance the welfare of the people. 164 It is obvious
from the Constitution of India that we have adopted a democratic
from of Government.165 Where a society has chosen to accept
democracy as its credal faith, it is elementary that the citizens
ought to know what their government is doing. 166 The citizens have
a right to decide by whom and by what rules they shall be governed
and they are entitled to call on those who can survive without
accountability and the basic postulate of accountability is that the
people should have information about the functioning of
government.167 It is only if people know how government is
functioning that they can fulfil the role which democracy assigns to
them and make democracy a really effective participatory
democracy.168 "Knowledge", will forever govern ignorance and a
people who meant to be their own governors must arm themselves
with the power knowledge gives. A popular government without
popular information or the means for obtaining it, is but a prologue
162
Section- 4(3) of the Right to Information Act, 2005.
163
Section- 4(4) of the Right to Information Act, 2005.
164
Dadwal, Lalit, Right to Information, M.D.U. Law Journal, Vol. 10, No. 1, 2005, pp. 255-268
165
PC Majmudar, Right to Information,133(2005).
166
Dalal, Praveen and Shruti Gupta, New Horizons of Right to Information, Apex Court
Expressions, Vol. 1, 2004, J-1-9.
167
Chawla, Monica, Right to Information Act, 2005 A Critical Analysis, Information Decisions,
Vol. 1, 2010, pp. 17-27.
168
Naresh Kumar, Right to Information,153(2005).

. 281
to farce or tragedy or perhaps both.169 The Supreme Court in S.P.
Gupta v. Union of India,170 held that the citizens right to know the
facts the true facts about the administration of the country is thus
one of the pillars of a democratic State. And that is why the
demand for openness in the government is increasingly growing in
different parts of the world.171 Under section 4 of the Act,
obligations have been cast upon every public authority to maintain
all its records duly catalogued and indexed in a manner and the
form which facilitates the right to information under this Act and
publish particulars of its organization etc. on or before 12th day of
October 2005 and then at regular intervals.172
The Supreme Court in Central Board of Secondary Education
v. Aditya Bandopadhyay,173held that the provisions of Right to
Information Act, 2005 should be enforced strictly. Indiscriminate and
impractical demands or direction would be counter productive. The
Act of 2005 should not be allowed to be misused or abused.
The Right to Information Act, 2005 is undoubtedly a progressive
step towards the just and equitable environment. But it has been
marred by some shortcomings which has impeded successful
implementation of the Act and resulted in its underperformance.174
The mere information cannot get transformed into wisdom unless
certain intermediate processes have been gone through.175 Despite
lots of publicity through various modes, the public awareness about
significance of this Act, the modus operandi of getting the information,
and the knowledge of names of PIOs/APIOs etc. is quite low. The
efforts made by the public authorities and governments have not been
169
James Madison, An American, political theorist and 4th President of the United States.
170
AIR 1982 SC 149.
171
Ibid.
172
Nand, Daya, Right to Information: A Conjoint Consideration of Prabha Dutta, Sheela Barse and
M. Hasan Case, M.D.U. Law Journal, Vol.4, 1998, pp. 126-134.
173
AIR 2011 SCW 4888.
174
Muralidharan, R. History of Right to Information Act, 2005, Information Decisions, Vol. 2,
2009, pp. 1-11.
175
Mukhopadhyay, Asok Kumar, The RTI ACT: A Critical Assessment, The Indian Journal of
Public Administration, Vol. 55, No. 3, July-September 2009, pp. 434-454.

. 282
adequate in generating mass awareness of the RTI Act. Educating the
masses is absolutely essential in this regard.176 Even after more than
nine years, awareness levels are as low as twenty six percent in men
and twelve percent in women. Obligations of public authorities as
conceived by the Act in form of proactive disclosure of the information
have not been carried out satisfactorily.177 Various NGOs and public
spirited citizens have raised easy disclosure of relevant information by
the public authorities themselves, so that common people are saved
from resorting to the statutory way for seeking the same.178
5.11 DESIGNATION OF PUBLIC INFORMATION OFFICERS
The Right to Information Act, 2005 casts an obligation on every
public authority to designate179 as many officers as Central Public
Information Officers or State Public Information Officers, in all
administrative units or offices under it as may be necessary to provide
information to persons, requesting for the information under the Act.
Every public authority shall designate an officer180 at each sub-
divisional level or other sub-district level as a Central Assistant Public
Information Officer or a State Assistant Public Information Officer, to
receive the applications for information or appeals under the Act and
to forward the same to the Central Public Information Officer or the
State Public Information Officer or senior officer or the Central
Information Commission or the State Information Commission181.
Whenever, an application for information or appeal is given to a
Central Assistant Public Information Officer or a State Assistant
Public Information Officer, then a period of five days shall be added in
computing the period for response182 as specified under the Act. Every

176
Mullick, Souvanik, Right to Information and the Role of Media, Supreme Court Journal, Vol. 6,
No. 36, September 2007, pp. J-41-44.
177
Narain, Yogendra, The Right to Information Act: A Concept Paper, Journal of Indian Law
Institute, Vol. 40, No. 3-4, July-December 2006, pp. 262- 272
178
Narayan, Vikrant, Right to Information: A Paradigm Shift from Representative to Participatory
Democracy, All India Reporter, Vol.96, August 2009, pp. 113-119.
179
Within one hundred days of the enactment of the Right to Information Act, 2005.
180
Infra.
181
Section 19 of the Right to Information Act, 2005.
182
Section 7(1) of the Right to Information Act, 2005.

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Central Public Information Officer or State Public Information Officer,
as the case may be, shall deal with requests from persons seeking
information and render reasonable assistance to the persons seeking
such information. The Central Public Information Officer or State
Public Information Officer, may seek the assistance of any other officer
as he or she considers it necessary for the proper discharge of his or
her duties. The officer, whose assistance has been sought183 shall
render all assistance to the Central Public Information Officer or State
Public Information Office, as the case may be, seeking his or her
assistance and for the purposes of any contravention of the provisions
of this Act,184 such other officer shall be treated as a Central Public
Information Officer or State Public Information Officer, as the case
may be.
In the case of Shri Bimal Kumar Khemani and Shri M.L. Sharma
v. Northern Railway & North Eastern Railway,185 Appellant seeking
information relating to the appointment of PIOs and APIOs at
important Railway Junctions. The Commission still felt that
arrangements could be made at Railway Junctions to declare a senior
official like the Station Master or his immediate subordinate to act as
an APIO to receive RTI-applications together with the fee and provide a
receipt to the Applicant, and forward them to the concerned PIOs as
suggested by the Applicants.
Similarly in the case of Kanhyia Lal v. Mrs. Indira Rani Singh,
Public Information Officer/DDE(W-B), Directorate of Education, G
Block,Vikaspuri, Delhi,186 The applicant filed a RTI application dated
19.12.2008 to the PIO seeking specific information for release of list of
admission in all streams in Govt. Co-Ed School, B-4, Paschim Vihar,
New Delhi for the year 2008-2009. However, no reply was given by the
PIO to the Appellant. The issue involved is the responsibility of officers
whose assistance has been sought for responding to RTI request. The
183
Section 7(4) of the Right to Information Act, 2005.
184
Ibid.
185
CIC/OK/A/2008/00226.
186
CIC /SG /A /2009 /000713 /3494.

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Commission was of the opinion that all authorities and officers who
hold information are duty bound to provide the information when a
PIO seeks assistance under Section 5(4). Any public servant no matter
how high, will have to provide the assistance so that the PIO can
discharge his duty under the RTI act. Respondent was found guilty of
not providing the requisite information to the Appellant within 30
days. The Commission thereby directed the deemed PIO Mrs. Sunita
Kaushik RD (North) to provide the complete information to the
Appellant.187
5.11.1 Duty and Powers of Central Public Information Officer and
State Public Information Officer
The powers and duties of the Central/State Public Information
Officer and the Central/State Assistant Public Information Officer can
be detailed as under:-
(a) The Public Information Officer shall deal with the requests for
obtaining information received from persons in writing.188
(b) Where the person making the request is unable to make request in
writing, Public Information Officer shall render reasonable assistance
to the person to reduce the request in writing.189
(c) In case the application made for an information relates to the
subject matter, which is closely connected with the functions of any
other public authority or which is held by another public authority,
the Public Information Officer shall transfer the application or such
part of the request to that public authority not later than five days
from the receipt of the application and inform the applicant
immediately about such transfer.190
(d) The Public Information Officer may seek the assistance of any

187
Ibid.
188
Prasad, R.R., "Participation and Empowerment: Rhetorics and Realities",Kurukshetra, Vol. 50,
No. 7, May 2002.
189
Priya, Deepti, Peoples Knowledge, Peoples Power: Campaign for Citizens Right to
Information, Economic and Political Weekly, Vol.31, 1996, pp. 83-85.
190
Supra.

. 285
other officer for the proper discharge of his/her duties.191
(e) The Public Information Officer, on receipt of the request shall
either provide the information on payment of such fee, as may be
prescribed or reject the request for any of the reasons specified in the
Act192 as expeditiously as possible, but in any case within 30 days of
the receipt of the request: provided that where the information sought
for concern the life or liberty of a person, the same shall be provided
within 48 hours of the receipt of the request. When application is
given to State Assistant Public Information Officer a period of five days
shall be added to the statutory period of 30 days.193 In case the Public
Information Officer fails to supply the information or communicate
refusal of the request within the specified period of 30 days/48 hours,
as the case may be, he shall be deemed to have refused the request.194
(g) In case the request for obtaining information is rejected, the
Public Information Officer shall communicate to the person making
the request.195
(h) An information shall ordinarily be provided in the form in which
it is sought unless it would disproportionately divert the resources of
the public authority or would be detrimental to the safety or
preservation of the record in question.196
(i) Where the decision is taken to provide the information on
payment of any further fee, representing the cost of providing the
information, the Central Public Information Officer or State Public
Information Officer, as the case may be, shall send an intimation to
the person making the request, giving.197 __
1) the details of further fees representing the cost of providing the

191
Ukey, Dilip, Right to Information As a Fundamental Human Right: Legislative and Judicial
Perspectives, Journal of Constitutional and Parliamentary Studies, Vol. 41, Nos. 3&4, July-
December 2007, pp. 211-229.
192
Section 8 or section 9 Right to Information Act, 2005.
193
Section-5(2) of Right to Information Act, 2005.
194
Ramabrahmam, I., Implementation Process of Right to Information: Issues and Trends, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 504-510.
195
The reasons for such rejection; the period within which an appeal against such rejection may be
preferred; and the particulars of the appellate authority.
196
Ibid.
197
Ramesh, Right to Information/Open Government: Boon or Bane, Indian Law Reports, Vol. 48,
Part 4, December 1998, p. 65-67.

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information as determined by him, together with the
calculations made to arrive at the amount in accordance with
fee prescribed, requesting him to deposit that fees, and the
period intervening the despatch of the said intimation and
payment of fees shall be excluded for the purpose of calculating
the statutory period of thirty days;198
2) information concerning his or her right with respect to review
the decision as to the amount of fees charged or the form of
access provided; and
3) the particulars of the appellate authority, time limit, process
and any other forms.199
(j) Where access is granted to a part of the record, the Central
Public Information Officer or State Public Information Officer, as the
case may be, shall give a notice to the applicant, informing,200-
1) that only part of the record requested, after severance of the
record containing information which is exempt from disclosure,
is being provided;
2) the reasons for the decision, including any findings on any
material question of fact, referring to the material on which
those findings were based;201
3) the name and designation of the person giving the decision;
4) the details of the fees calculated by him or her and the amount
of fee which the applicant is required to deposit; and
5) his or her rights with respect to review of the decision regarding
non disclosure of part of the information, the amount of fee
charged or the form of access provided.202
(k) Where access to information sought is regarding information

198
Rajvir S. Dhaka, Empowering Citizens: How Best to Make RTI a Success, The Tribune, 29 Nov.
2009, p. 13
199
Naresh Kumar, Understanding the Key Issues and Constraints in implementing the RTI Act
44(2009).
200
Abhishek Jain, Right to information, 351(2005).
201
Ramesh, Right to Information/Open Government: Boon or Bane, Indian Law Reports, Vol. 48,
Part 4, December 1998, p. 65-67.
202
Justice Y.K. Sabharwal, Right to information and Good Governance Nayadeep 2006 Oct.7(4)
pp. 17-30 at 26.

. 287
supplied by a third party and has been treated as confidential by that
third party, the Public Information Officer shall give written notice to
the third party regarding disclosure of said information or record,
within five days of the receipt of the request, and invite the third party
to make submissions in writing or orally whether the information
should be disclosed and such submission of third party shall be kept
in view while taking a decision about the disclosure of the information
and in such a case the third party is at liberty to make the
representation within ten days from the receipt of such notice.203 This
period of ten days shall be added to statutory period of thirty days for
supply of information and in such a case the information can be
supplied within 40 days.204 To conclude it can be said that the request
for obtaining information shall be made by the person in writing or
through electronic means in English or Hindi in the official language
of the area with the prescribed fee to the Public Information Officer of
the concerned public authority on which the decision has to be taken
of the Public Information Officer within the period of 30 days or 48
hours, as the case may be.205 However where the application for
information is given to a Central Assistant Public Information or a
State Assistant Public Information Officer, a period of five days shall
be added to the statutory period of 30 days.206
The Act provides for appointment of Public Information

Officers207 in each of the public authority institutions at different


levels, for free flow of information. But there was delay in such

appointments unfortunately even after the lapse of the time limit


mandated by the Act. Moreover, sometimes there is not specific

203
Ibid.
204
Rao, R., RTI- Issues Concerning Rights of Citizens to Secure Access to Information Under the
Control of PA under the RTI Act, 2005, Excise Law Times, Vol. 202, October 2006, pp. JA- 45-
54.
205
Section-7 of the Right to Information, Act, 2005.
206
Section-5(2) of the Right to Information, Act, 2005.
207
Section- 5 of RTI Act, 2005.

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mention of the Public Information Officers and Assistant Public

Information Officers by the departments thereby confusing the people


about whom to address and serve request seeking the information.208

5.12 REQUEST FOR OBTAINING INFORMATION


The first step for obtaining information under the Right to
Information Act is to make a request for information to the Public
Information Officer of the concerned public authority.209 Under the
Right to information Act, a person, who desires to obtain any
information under this Act, shall make a request in writing or through
electronic means in English or Hindi in the official language of the
area in which the application is being made, specifying the particulars
of the information sought by him or her, alongwith such fee, as may
be prescribed in the rules, to:
(a) The Central Public Information Officer or State Public
Information Officer, as the case may be, of the concerned public
authority; or
(b) The Central Assistant Public Information Officer or State
Assistant Public Information Officer, as the case may be.
The right to impart and receive information is a species of the
right of freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution.210 A citizen has a fundamental right to
use the best means of imparting and receiving information. In modern
constitutional democracy, it is axiomatic that citizens have a right to
know about the affairs of the Government which, having been elected
by them, seeks to formulate sound policies of governance aimed at
their welfare.211 However, like all other rights, even this right has
recognized limitations; it is, by no means, absolute.212 The concept of
an open Government is the direct emanation from the right to know

208
Narayana, P.S., Right to Information - Socio, Political Implications, Andhra Law Times, Vol. 1,
Part 1, January 2006, pp. J-03-06.
209
Section-6 of the Right to Information, Act, 2005.
210
Nabhis, Right to Information Act, 2005.
211
J.N.Panday, The Constitutional Law of India, 145(2003).
212
Roy, Jaytilak Guha, The Right to Information: Some Emerging Issues of Public Concern, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 406-412.

. 289
which seems to be implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of information
in regard to the functioning of the Government must be the rule and
secrecy an exception.213 The procedure for making request for
information is given under the Right to Information Act 2005214, which
can be summarized as under:
(a) Request for obtaining information shall be made in writing or
through electronic media in English or Hindi in the official language of
the area to the Central Public Information Officer or the State Public
Information Officer or to the Assistant Public Information Officer.215
(b) The request must specify the particulars of the information
sought.
(c) Where such a request cannot be made in writing, the Public
Information Officer shall render all reasonable assistance to the
person making the request orally to reduce the same in writing. The
prescribed fee as per the Rules framed under the Act has to be paid
alongwith the request to obtain information.
(d) The applicant making the request shall not be required to give
any reason for requesting the information. This means that any citizen
can get information without mentioning the reason for which the
information is required.
(e) Where the application relates to the information, which is held
by another public authority or the subject matter of which is more
closely connected with the functions of another public authority, it
shall be the duty of the public authority to which such application is
made to transfer the application or part of it to that public authority
as soon as practicable but in no case later than five days from the
date of receipt of application under intimation to the applicant about
such transfer.216

213
Asok Kumar Mukhopadhyay, The RTI ACT: A Critical Assessment, The Indian Journal of
Public Administration, Vol. 55, No. 3, July-September 2009, pp. 434-454, at p. 441.
214
Section 6 of the Right to Information Act 2005.
215
Ryder, Rodney D., Right to Information- Law, Policy and Practice, Wadhwa and Company,
Nagpur, 2006.
216
Section 6(3) of the Right to Information Act 2005.

. 290
The Supreme Court in Chief Information Commissioner v. State
of Manipur217 held that section-3 of the RTI Act recognises right to
receive information and section-6 either hand gives such right to any
person. Hence section-6 is wider than section-3.
Following the trend, the Calcutta High Court in Mrityunjay
Ganguly v. State of West Bengal,218 has held that whether decisions
given by concerned authority on an application filed under section 6 of
the Right to Information Act, 2005 is actually a decision or not is to be
examined by appellate authority under appeal. Such decisions as was
held could not be held interfered with exercise of power under article
226 of the Constitution of India.
In the similar fashion, in Yogendra Chandrekar v. State
Information Commission,219 it was held that request for obtaining
information by stranger cannot be turned down for want of reasons or
there is no quarrel that any person may make request in writing or
through electronic means in English or hindi to obtain information
and information request cannot be turned down on the ground that he
was stranger to the documents or he has not disclosed the reasons for
the said information under the provisions of section 6 of Right to
Information Act.
Following the trend, the Orrisa High Court in Public Service
Commission Orrisa v. Information Commissioner,220 held that an
examinee is eligible to get the photocopies of answer sheets except
name of chief examiner his initials and code number.
In the similar fashion in Avishek Goenka v. Union of India,221
the petitioner is claiming to be an activist in the field of RTI has
approached the Calcutta High Court by filing the writ petition with the
prayer, that the authorities under the Act should not insist upon the
detailed address of the applicant as and when any application is made

217
AIR 2012 SC 864.
218
AIR 2011(NOC)71(Cal).
219
AIR 2011(NOC)94(Chh).
220
(2012) 1 OLR 429.
221
W.P. 33290 (W) of 2013.

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under the Act. As by such Act there is threat to the life of activist and
there had been past incidence of unnatural deaths of RTI activist. This
mandate is provided u/s 6 (2) of RTI Act 2005 and it clearly provides
that an applicant making request for information shall not be required
to give any reason for requesting such information or any other
personal details except those that may be necessary for contacting
him. It was held by the Court that the authority should not insist
upon detailed whereabouts particularly when post box number is
provided for that purpose and that would established contact with
him and the authority. The Calcutta High Court dispose of this writ
petition by making observation that the Secretary Ministry of
Personnel should circulate the copy of this order to all concerned so
that the authority can take appropriate measures to hide information
with regard to personal details of the activist to avoid any harassment
by the person having vested interest.222
In S.C. Aggarwal v. Coal Ministry,223 Applicant seeking
information about system of allocating coal blocks for the past
10 years. Role of Union Coal Minister in allocating coal blocks,
file notings, correspondence, documents etc. in coal block
allocation and other information relating to it.
The Right to Information Act, 2005 cast an obligation on
Information Officers to render all reasonable assistance to the person
making the request for information. But there are several problems
which come in the way of filing applications and inspection of records.
As per the mandate of the Act, the Appropriate Governments have not
taken adequate steps to make the RTI process citizen-friendly.224 Most
of the times the Citizens are not aware of the place where the
application has to be filed or the authority (Appellate Authority or
Information Commission) to whom they can approach in case their
222
Niranjan, Oulac, Right to Information and the Road to Heaven,Economic and Political Weekly,
Vol. 40, No. 47, 19 November 2005, pp. 4870-4872.
223
CIC/SS/C/2013/000289.
224
Palanithurai, G., Problems and Scope in Handling RTI from Grassroots Perspective, The Indian
Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 422-433.

. 292
application is not entertained, rejected or inadequately replied.225 The
applicants are also not aware of the clause of inspection of records
which can benefit them immensely and can also be cost effective and
more meaningful.226 There have been grievances of the applicants that
information is not provided to them in their regional language. This is
against the statutory spirit contained in s.6 (1) of the Act which makes
it clear that information is to be provided in Hindi or English or in the
official language of the area in which the application is being made. It
might be feasible, but the provision of taking fees for disclosing the
information seems to be against the spirit of the right and the Act too.
It is quite paradoxical that a person has to pay for availing
information which is a fundamental human right, which has been
consecrated even by the Constitution.227 Being a legislation which is
socially oriented, it strikes wrong chord at this place, by creating a
hiatus between people on the economic basis. Information can be
easily accessed by the affluent classes whereas same is not so
comfortable for the students and lower strata of middle class.228
5.12.1 Disposal of Request
When the request has been made for supply of information to
Central Public Information Officer or a State Public Information Officer
(which term will include Assistant Public Information Officer also), it is
the duty of the Public Information Officer to supply the information or
give access to the record or part thereof and' for this purpose the
Public Information Officer may seek assistance of any other officer for
discharge of his/her duties.229 The Public Information Officer on
receipt of the request shall either provide the information on payment

225
Palekar, S. A., Right to Information: An Analysis, The Indian Journal of Public Administration,
Vol. 55, No. 3, July-September 2009, pp. 644-648.
226
Ambrish Saxena, RTI & FOP 7 (2004).
227
PM Calls for Review of RTI Act, The Economic Times, 15 October 2011, p.01.
228
Raj, Triranjan and Sanjeev Kumar Sharma, Right to Information Act, 2005: A Critique with
Governance and Administrative Reforms Perspective, The Indian Journal of Public
Administration, Vol. 55, No. 3, July-September 2009, pp. 481-503.
229
Ibid.

. 293
of such fee as may be prescribed, or reject the request for any of the
reasons specified in the Act.230 This information has to be provided
ordinarily in the form in which it is sought unless it would
disproportionately divert the resources of the public authority or
would be detrimental to the safety or preservation of the record in
question.231 However where a decision is taken to provide the
information on payment of any further fee representing the cost of
providing the information, the Central Public Information Officer or
State Public Information Officer, as the case may be, shall send an
intimation to the person making the request, giving,-
(a) the details of further fees representing the cost of providing the
information as determined by him, together with the calculations
made to arrive at the amount in accordance with fee prescribed
requesting him to deposit that fees, and the period intervening
between the despatch of the said intimation and payment of fees shall
be excluded for the purpose of calculating the limitation period of
thirty days;232 and
(b) information concerning his or her right with respect to review the
decision as to the amount of fees charged or the form of access
provided, including the particulars of the appellate authority, time
limit, process and any other forms.233
Where access to the record or a part thereof is required to be
provided under this Act and the person to whom access is to be
provided is sensorily disabled, the Central Public Information Officer
or State Public Information Officer, as the case may be, shall provide
assistance to enable access to the information, including providing
such assistance as may be appropriate for the inspection.234 Where
access to information is to be provided in the printed or in any

230
Section 8 and Section 9 of the Right to Information Act 2005.
231
Saikia, A.H., Right to Information Act, 2005: An Instrument to Strengthen Democracy, Gauhati
Law Times, February 2006, Vol. 1, No. 2, pp. 25-32.
232
Sahay, Ashok Kumar and Kshirod Chandra Patra, Survival of Democracy Needs RTI Act,
Mainstream, Vol. 44, No. 41, 30 September 2006, p.30.
233
Ibid.
234
Narayan, P.S.J. and Reddy, G.B., Freedom of Information and Law 19 (2005).

. 294
electronic format, the applicant shall, pay such fee as may be
prescribed: provided that the fee prescribed shall be reasonable and
no such fee shall be charged from the persons who are below poverty
line as may be determined by the appropriate Government.235
Moreover, the person making request for the Information shall be
provided the information free of charge where a public authority fails
to comply with the statutory time limits for supply of information.236
The Punjab and Haryana High Court in Sarpanch, Gram
Panchayat, Silikalan Radaur (Yamunanagar) v. State Information
Commission Haryana,237 has ruled out that if there is failure to supply
information whether time limit fixed by State Information
Commission, then State Information Commission has jurisdiction to
direct state public information officer to supply information free of
charge under section-7 of Right to Information Act, 2005. Similarly
the Jharkhand High Court in Rajendra Prasad v. State of
Jharkhand,238 also rules out that where Information Officer
deliberately delays information, he can be penalized day wise.
5.12.2 Time Limit for Disposal of Request
The procedure for disposal of the request for supply of
information has been given in the Act239, according to which the
Central Public Information Officer or the State Public Information, as
the case may be, shall provide the information on payment of such fee
as may be prescribed or reject the request for any of the reasons
specified in the Act240 within the following time limit:
(i) Within 30 days from the date of application in ordinary cases;
(ii) Within 48 hours where the information sought for concerns the
life or liberty of a person;
(iii) if the notice is required to be given to the third party regarding

235
Sathe, S.P., The Right to Know 32(2005).
236
J.N. Barowalia Right to Information Law and Practice 26 (2005).
237
2012 (NOC)18(P&H).
238
(2010) 86 AIC 952 (Jhar).
239
Section 7 of the Right to Information Act 2005.
240
Sections 8 and 9 of the Right to Information Act 2005.

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disclosure of information under the Act241, the period of ten
days shall be added to the period within which the information
is to be supplied, which period shall be given to the third party
to make representation i.e. the time limit in such a case would
be forty days;
(iv) where the application is given to the Central or the State
Assistant Public Information Officer, a period of five days shall
be added to the statutory period of 30 days in view of proviso to
sub-section (2) of section 5 of the Act.
Moreover, Right to Information Act242provides that the Central
Information Commission or the State Information Commission, as the
case may be, at the time of deciding any complaint or appeal shall
impose a penalty of two hundred and fifty rupees each day till
application is received or information is furnished, but the total
amount of such penalty shall not exceed twenty five thousand rupees;
if it is of the opinion that-
(i) 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
(ii) Has not furnished information within the time specified under
the Act;243
(iii) Malafidely denied the request for information; or
(iv) Knowingly given incorrect, incomplete or misleading
information; or
(v) Has destroyed information which was the subject of the request;
or
(vi) Has obstructed in any manner in furnishing the information.
In the case of Ms. Neerja v. Delhi Development Authority (DDA)244
The appellant applied for the second appeal in connection with 07

241
Section 11 of the Right to Information Act 2005.
242
Section 20 of the Right to Information Act 2005.
243
Section-7(1) of the Right to Information Act 2005.
244
CIC/WB/A/2007/00666.

. 296
days delay in providing information. The PIO, is however cautioned to
adhere more closely to time limits in addressing RTI applications .
However, in light of PIO, statement before us that he as PIO is
satisfied that Director, SFS has acted reasonably and diligently to
supply the information in time, which is the requirement of Proviso II
to sec 20(1), and because he was given less than the mandatory 30
days for obtaining the information sought, we take the delay of 7 days
to have been with reasonable cause.245
5.12.3 Communication of Reasons for Rejection of Request
The grounds for rejection of the request for information may be
(1) if the information is exempted from disclosure under the Act246; or
(ii) if it infringes the copyright of any person other than the State
under the Act247; or (iii) if it is third party information covered by the
Act248; or (iv) if the information relates to the intelligence and security
organizations specified in the second schedule or intelligence and
security organizations established by the state government by
notification in the official gazette under section 24 of the Right to
Information Act. Where a request has been rejected, the Central Public
Information Officer or State Public Information Officer, as the case
may be, shall communicate to the person making the request,
(i) the reasons for such rejection,
(ii) the period within which an appeal against such rejection may be
preferred; and (iii) the particulars of the appellate authority.
The Right to Information Act, 2005 cast an obligation on
Information Officers to render reasonable assistance to applicants.249
These Information officers are also required to provide assistance to
the sensorily disabled to enable them to access information,
including by inspection.250 No reasons are required to be given for a
request and an innovative supporting rule provides that no personal
245
Ibid.
246
Section-8 of the Right to Information Act 2005.
247
Section-9 of the Right to Information Act 2005.
248
Section-11 of the Right to Information Act 2005.
249
Section 5(3) of the Right to Information, Act, 2005.
250
Section 7(4)-(6) of the Right to Information, Act, 2005

. 297
details may be demanded other than those required for purposes of
contacting the applicant. But in reality the information seekers often
complain of the unfriendly and hostile attitude of the Officers. A
number of applicants feel humiliated at the hands of the Officers.
They say that one has to be quite stubborn and indifferent to this
condescending attitude of the Officers to get information out of them.
It is felt that such a behavior dissuades the Citizens from approaching
the authorities. There have been several reports that most PIOs,
especially at the District level are not co-operative and they sometimes
force the applicants to withdraw their applications.251 PIOs also tend
to give inadequate information and hide crucial facts at the instance of
their superiors. They use ambiguous and ambivalent language in their
responses. Consequently, in most cases, they follow the letter of the
Act but violate its spirit in a brazen manner.252
In spite of all these provisions the quality of information
provided to the applicants is very poor. It is either incomplete or
inaccurate. More than 75 per cent of the citizens are dissatisfied with
the quality of information being provided. Over 90 percent people in
the States of Andhra Pradesh and Uttar Pradesh said that incomplete
information was provided to them.253 It is also a common criticism
that to meet the thirty day deadline, sometimes incomplete
information is handed down to the applicant.
5.13 EXEMPTION FROM DISCLOSURE OF INFORMATION
In the Right to Information Act, 2005, the exceptions to the
disclosure of information can be grouped in two broad categories:
1. Absolute exemptions: The absolute exemptions are those
exemptions from disclosure of information which are not subject to
public interest override test/harm test as prescribed in Section 8(2) of
the Act. The exemption and exclusion of information mentioned in
251
Rajvir S. Dhaka, Empowering Citizens: How Best to Make RTI a Success, The Tribune, 29 Nov.
2009, p. 13.
252
Ranbir Singh, RTI Ineffective in Haryana, The Tribune, Chandigarh, 01 July 2009, p.09.
253
Final Report, Understanding the Key Issues and Constraints in implementing the RTI Act 61
(2009).

. 298
Section 9 and Section 24 can be covered in this category. For the sake
of brevity these can be further bifurcated in two categories:
a) Mandatory exemptions: These are exemptions which are
mandated by the Act and public information officers are obligated to
reject a request for information. When information requested under
the Act falls within a mandatory exemption, public authorities must
refuse to disclose the record and this is not subject to public interest
override.254 Section 9 of the Right to Information Act, 2005 falls in this
category, which provides as under:
"Section-9-Grounds for rejection to access in certain cases - 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."
b) Compulsory exemption:
Certain organisations are kept out of the purview of this Act due
to the nature of the work performed by them and this is the
compulsory exemption granted to excluded security and intelligence
organisations except the information pertaining to the corruption and
violation of human rights. Not only intelligence and security
organizations have been kept out of the purview of the Act but also
any information furnished by such organisations to the
government.255
As provided in Section 24, the provision of Right to Information
Act is not applicable to certain organisations. Nothing contained in
this Act shall apply to the: intelligence and security organizations of
the central government specified in the Second Schedule or any
information furnished by such organizations to that government
except that the information pertaining to the allegations of corruption

254
Sivakumar, Sowmya and Eric Kerbart, Changing Discourse, Seminar, Vol. 551, July 2005, pp.
50-54.
255
Siwach, Raj Kumar, Implementing Right to Information Act, 2005: An Experience of Haryana,
The Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 702-710.

. 299
and human rights violations shall not be excluded.256 Similarly,
nothing contained in this Act shall apply to notified intelligence and
security organizations, established by the state government except
that the information pertaining to the allegations of corruption and
human rights violations shall not be excluded.
2. Qualified/ discretionary exemptions:
The qualified exemptions are those exemptions from disclosure
of information which are subject to public interest override test/harm
test as prescribed in Section 8(2) of the Act. The exemptions
mentioned in Section 8(1) are covered in this category as all these
exemptions are subject to public interest override test/harm test as
prescribed in Section 8(2) of the Act. Qualified or discretionary
exemptions provide public authority with an option to disclose the
information where it is felt that no injury will result from the
disclosure or where it is of the opinion that the public interest in
disclosing the information outweighs any injury which could result
from disclosure. The majority of exemption provisions are
discretionary subject to public interest override.257
These exemptions can further be divided into two categories:
a) Prejudice based exemptions -
Disclosure of the information must reasonably be expected to
prove harmful or damaging to the specific public or private interest
covered by the exemption in order to access of information to be
refused.258 These can further be sub divided in to two categories:
Unconditional prejudice based exemptions and Conditional prejudice
based exemptions The distinction between conditional and
unconditional exemptions lies in the Tact whether the exemption is
subject to the larger public interest test or not. The exemptions which
256
Joseph, Vinod, Right to Information on a Broad Canvas., The Indian Journal of Public
Administration, Vol. 47, No. 2, April-June 2001, pp. 267-275.
257
Jain, Abhishek and Aarushi Jain, Optimising the Utility of Right to Information Through E-
Governance., Management in Government, Department of Administrative Reforms and Public
Grievances, Government of India, New Delhi, Vol. 40, No. 4, January- March 2009, pp. 49-68.
258
Relyea, Horold, C., Access to Government Information in the Information Age, Public
Administration Review, Vol. 46, No. 6, November-December 1986, pp. 635-639.

. 300
are not subject to larger public interest test can unconditional
exemptions and the exemptions which are subject to the larger public
interest can be treated as conditional exemptions.259 It should be
noted that both conditional and unconditional exemptions provided in
Section 8(1) are subject to public interest override test/ harm test as
provided in Section 8(2)
i) Unconditional prejudice based exemptions - Not subject to
larger pubic interest test The exemptions provided in Section 8(1) (a)
& 8(1) (h) are coveted in this category.
"8(1) (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;
"8(1) (h) information which would impede the process of
investigation or apprehension or prosecution of offenders;"
ii) Conditional prejudice based exemptions - Subject to larger
pubic interest test - The exemptions provided in Section 8(1) (d) & 8(1)
(j) are covered in this category.
"8(1) (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;"
"8(1) (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:"

259
Right to Information, The Tribune, 30 November 2009, p. 08.

. 301
b) Class based exemptions
Objectively describes the categories or class of information or
documents to which an exemption can be applied. While injury
underlies class based exemptions as well, these exemptions describe
classes of information which, in the wisdom of Parliament, are
sufficiently sensitive that disclosure of any information in the class
could have a detrimental effect.260 Thus, under the class based
exemptions, where a public authority is satisfied that information falls
within the class specified, this is a sufficient basis for it to refuse
access to the information. There is no requirement that an injury be
proved.261
i) Conditional class based exemptions-
Subject to larger pubic interest test - The exemptions provided
in Section 8(1) (a) & 8(1) (h) are covered in this category. "8(1) (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;"
ii) Unconditional class based exemptions
Not Subject to larger pubic interest test - The exemptions
provided in Section 8(1) (b) & 8(1) (c), 8(1) (f), 8(1) (g), 8(1) (i) are
covered in this category.
8(1) (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;"
"8(1) (c) information the disclosure of which would cause a
breach of privilege of parliament or the State Legislature;"
"8(1) (f) information received in confidence from foreign
government;"

260
Right to Information in South Asia, A Conference Report, 1999, Commonwealth Human Rights
Initiative, New Delhi.
261
Rao, R., RTI- Issues Concerning Rights of Citizens to Secure Access to Information Under the
Control of PA under the RTI Act, 2005, Excise Law Times, Vol. 202, October 2006, pp. JA- 45-
54.

. 302
"8(1) (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;"
"8(1) (i) cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers:"
There are three different kinds of larger public interest tests
provided in the Act: larger public interest warranting discloser of
specific information as in Section 8 (1) (b) and 8 (1) (e); larger public
interest justifying the disclosure of information such as Section 8 (1)
disclosure may be allowed if the public interest in the disclosure
outweighs in importance any possible harm or injury to the interest of
third parties (proviso to section 11(1)) Legislature has used different
languages in these larger public interest requirements for disclosing
information.262
It may be seen from the provisions of Section 8 and 9 of the
RTI Act 2005, almost all reasonable restrictions and exclusions which
are under Universal Declaration of Human Rights,263 International
Covenant on Civil and Political Rights264 and Article 19(2) of the
Constitution of India265 have been imported as exemptions in the Act
with additions of few more grounds.

262
Rao, P. Mohan and C.G.K. Murthy, A Cleansing Effect Through the Right to Information, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 722-733.
263
Article 12 of Universal Declaration of Human Rights imposes reasonable restrictions stipulating
that:No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
264
Article 14 of International Covenant on Civil and Political Rights also permits restrictions:The
press and the public may be excluded from all or part of a trial for reasons of morals, public order
or national security or when the interest of the private lives of the parties so requires or to the
extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile persons otherwise requires or the
proceedings concerns matrimonial disputes or the guardianship of children.
265
Clause (2) of Article 19 specifies the limits up to which the freedom of speech and expression
(inter-alia Right to Information) may be restricted. It enables the legislature to impose reasonable
restrictions on the right to free speech such as: Security of the State, Friendly relations with foreign
States, Public Order, Decency or morality,Contempt of Court, Defamation, Incitement to an
offence, and Sovereignty and integrity of India. Reasonable restrictions under these heads can be
imposed only by a duly enacted law and not by executive action.

. 303
As may be seen from the provisions of Section 8 and 9 of the RTI
Act 2005, that there shall be no obligation on the part of public
authorities to give any information to citizens266 which is exempted
from disclosure under the Act. Such as 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;267
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;268 information, the disclosure of which would cause
a breach of privilege of Parliament or the State Legislature;269
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
information270; 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;271
information received in confidence from foreign government;272
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;273 information which would impede the process of
investigation or apprehension or prosecution of offenders;274 cabinet
papers including records of deliberations of the Council of Ministers,
Secretaries and other office.

266
Section-8 of the Right to Information Act 2005.
267
Section-8(1) (a) of the Right to Information Act 2005.
268
Section-8 (1)(b) of the Right to Information Act 2005.
269
Section-8(1)(c) of the Right to Information Act 2005.
270
Section-8 (1)(d)of the Right to Information Act 2005.
271
Section-8(1)(e) of the Right to Information Act 2005.
272
Section-8(1)(f) of the Right to Information Act 2005.
273
Section-8(1)(g) of the Right to Information Act 2005.
274
Section-8 (1)(h) of the Right to Information Act 2005.

. 304
But 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;275information which relates to personal information the
disclosure of which has not 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.276 The public authority may allow access to
information, if public interest in disclosure outweighs the harm to the
protected interests.277 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 shall be provided
to any person making a request, but 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.278
Article 19(1)(a) declares that all citizens shall have the right of
freedom of speech And expression, including right to receive
information. Clause of Article 19, at the same time, provides that
nothing m sub-clause (a) of clause (1) shall affect the operation of any
existing law or prevent the State from making any law, insofar as such
law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with

275
Section-8 (1)(i) of the Right to Information Act 2005.
276
Section-8(1)(j) of the Right to Information Act 2005.
277
Section-8(2) of the Right to Information Act 2005.
278
Section-8(3) of the Right to Information Act 2005.

. 305
the foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement of an offence.279 The
grounds upon which reasonable restrictions can be placed on the
fundamental right of freedom of speech and expression are designed
firstly to ensure that the said right is not exercised in such manner as
to threaten the sovereignty and integrity of India, security of the State
etc.280
Similarly, the said right cannot be so exercised as to amount to
contempt of Court, defamation or incitement of an offence. Existing
laws providing such restrictions are saved and the State is free to
make laws in future imposing such restrictions.281 The grounds
aforesaid are conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully and peacefully be
exercised by the citizens of this country.282 The right to information
guaranteed to the citizens of India under section 3 of the Right to
Information Act is subject to the provisions of this Act. Section 8 of
the Right to Information Act set out clearly the information which is
exempted from disclosure under the Act.
The Punjab and Haryana High Court in Haryana Public Service
Commission v. State Information Commission,283 held that the
application for seeking the criteria adopted by Public Service
Commission is liable to furnished and is not prohibited either under
section 8 or section 11 of the Act.
Deviating from the above mentioned case the Jharkhand High
Court in Jharkhand Public Service Commission v. State of
Jharkhand,284 held that the information sought for regarding names of
maunders of interview board for appointment cannot be furnished as

279
Sathe, S.P., Right to Information - For An Accountable and Participatory Governance, Journal
of National Human Rights Commission, Volume 3, 2004, pp. 57-69.
280
Sastry, T.S.N., Right to Information as a Human Right, The Indian Journal of Public
Administration, Vol. 55, No. 3, July-September 2009, pp.609-618.
281
Doshi, Manita, Judiciary on Right to Information Under Art. 19 (1)(a),Gujarat Law Reporter,
Vol. 1, Issue 4, April 2008, p. 17-24.
282
Dhavan, Rajeev, Information and Democracy in India, Journal of the Indian Law Institute, Vol.
47, No. 3, July-September 2005, pp. 295-325.
283
AIR 2009 P&H 14.
284
AIR 2011 Jhar 7.

. 306
it will violate confidentiality.
In the similar fashion the Delhi High Court in Jamia Millia
Islamia v. Sh. Ikramudin,285 held that the information which was
sought in this case was about an agreement entered by the University.
But the expression personal information used in section 8(1) of the
Act does not relate to the information pertaining to the public
authority to whom query for disclosure of information is directed. The
University is a statutory body and public authority. The act of entering
into agreement with any other person/entity by public authority
would be public activity. Hence it was directed to provide information.
In Vikram Simon v. State Information Commission, Lucknow,286
The Allahabad High Court has held that a person seeking information
about his prosecution and arrest has no right to information and such
exemption is covered under section 8 of the Act.
Moreover, exemption clause contained in s. 8 of the Act is being
misused to veil the misdeeds in the name of secrecy essential for
national security, integrity etc.287 Although the inclusion of a public
interest override is a huge step forward, the fact that the exemptions
only contain a low level harm test requiring that relevant interests are
only harmed or prejudicially affected could be used to block a lot of
applications at the initial stages.288
5.13.1 Grounds for Rejection to Access in Certain Cases.
The Central Public Information Officer or 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.
In modern constitutional democracies, it is axiomatic that
citizens have a right to know about the affairs of the Government

285
AIR 2012 Del 39.
286
AIR 2009 All 81.
287
Raj, Triranjan and Sanjeev Kumar Sharma, Right to Information Act, 2005: A Critique with
Governance and Administrative Reforms Perspective, The Indian Journal of Public
Administration, Vol. 55, No. 3, July-September 2009, pp. 481-503.
288
Slough, P and Rodrigues, C (2005) Indias Right To Information Movement.

. 307
which, having elected by them, seeks to formulate sound policies of
governance aimed at their welfare.289 However, like all other rights,
even this right has recognized limitations it is, by no means, absolute.
In transactions which have serious repercussions on public security,
secrecy can legitimately be claimed because it would then be in the
public interest that such matters are not publicly disclosed or
disseminated.290 The Supreme Court of India has held in a number of
cases that the freedom of speech and expression guaranteed by Article
19(1) of the Constitution of India includes right to information.291
However, this right of freedom of speech and expression, including
right to information, guaranteed under Article 19(1) of the
Constitution is subject to the reasonable restrictions and the
exemptions/ exceptions in which the government can withhold the
information from the public.292 Unlike Constitutions of some other
developed countries, no fundamental right in India is absolute in
nature. Under section 9 of the Act, Central Public Information Officer
or the State Public Information Officer, as the case may be, may reject
a request for information if the same involves an infringement of a
copyright subsisting in a person other than the state. The Punjab and
Haryana High Court in Bhupinder Singh Jassal v. State Information
Commissioner, Punjab,293 held that information as to who were
owners/partners of a particular company. The information was factual
in nature and cannot be treated as relating to trade secret or
commercial confidence nor it was related to public interest or
infringement of any copyright. Such information does not come under
the purview of section 8 (1)(d) and not exempted.
5.14 SEVERABILITY
Where a request for access to information is rejected on the
ground that it is in relation to information which is exempt from

289
Ahmad, Badar, New Horizons of the Right to Information and the Supreme Court, Aligarh Law
Journal, Vol. 12, 1997, pp. 261-266.
290
Dinesh Trivedi, M.P. v. Union of India, (1997) 4 SCC 306.
291
Ibid.
292
Abhishek Jain, Right to information 351(2005).
293
AIR 2012 (NOC) 149(P&H).

. 308
disclosure, then, access may be provided to that part of the record
which does not contain any information which is exempt from
disclosure under this Act294 and which can reasonably be severed
from any part that contains exempt information. Where access is
granted to a part of the record the Central Public Information
Officer or State Public Information Officer, shall give a notice to the
applicant, informing, him/her - (a) that only part of the record
requested, after severance of the record containing information
which is exempt from disclosure, is being provided;295
(b) the reasons for the decision, including any findings on any
material question of fact, referring to the material on which those
findings were based;
(c) the name and designation of the person giving the decision;
(d) the details of the fees calculated by him or her and the amount
of fee which the applicant is required to deposit; and
(e) His or her rights with respect to review of the 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, time limit, process and any other form of access. Rule of law is
the soul of every civilized society.296 Law is a command or an order
and can be better described as the language of the State.297 Law has
the same relationship to the State as the language has to the society.
Rule of law is the common way of life in a civilized society.298 However,
with the passage of time rule of law is being used not only to maintain
order and to protect individual interests but is also used to protect the
interests of the society and the public at large to fulfil the ideals of the

294
Section 10 of the Right to Information Act, 2005.
295
Ibid.
296
Agarwal, U.C., The Official Secret Act to the Right to Information Act Dawn of Glasnost, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 336-345.
297
Chawla, Monica, Right to Information Act, 2005 A Critical Analysis Information Decisions,
Vol. 1, 2010, pp. 17-27.
298
Ibid.

. 309
modern welfare state299. Law is the emperor of emperors and mightier
than the sword, and with its help even the poor hawker may win over
the king or the state.300 The preamble to the Constitution of India has
incorporated that"We, the People of India, having solemnly resolved
to constitute India into a Sovereign Socialist Secular Democratic
Republic and to secure to all its citizens: Justice- social economic and
political..." Access to justice is recognized as one of the most
important basic human rights today and it is very difficult if not
impossible, to realise most of the human rights without access to
justice.301 However, it must be remembered that unless the general
public gets information on request from the public authorities, it
cannot build up the case to have access to justice.302 It is a common
knowledge that even for getting a copy of record-of-rights like
Jamabandi a person has to wait for days together. There are instances
of cases being filed in courts for the purpose of getting copies of public
documents. Section 10 of the Act provides that where a part of
information is exempted from disclosure, access to information may
be provided to that part of record which does not contain any
information exempted from disclosure under the Act.303
In the case of D.P. Maheshwari v. CBI304 the appellant sought
the copy of the SP, CBI's report. In response to the application, SP,
CBI responded that SP's report is an confidential document and hence
exempted under 8(1)(h) of the RTI Act. The plea of exemption under
Section 8(1)(j) cannot be applied as the
Appellant is asking for information about his own case. Even if
the report contains personal information about others, the principle of
severability under Section 10(1) can be applied. The Commission

299
Tripathi, Jurisprudence 23(2001).
300
Ibid.
301
P.C.Majmudar, Right to Information 29 (2005).
302
Sita Bhatia, Right to Information 289 (2005).
303
Sharma, Deepak, Right to Information: A Structural- Functional Analysis, The Indian Journal of
Public Administration, Vol. LV, No. 3, July- September 2009, pp. 578-593.
304
Appeal No. CIC / WB / A /2008 /0269.

. 310
agreed that disclosure of complete report may impede the process of
investigation and amount to invasion of privacy of the persons
mentioned in the report. However, since the appellant is not the
accused the information regarding him cannot be held to be such as
to impede the process of investigation or prosecution.
Accordingly part of information exonerating the appellant may
be provided as per Sub Section 1 of Section 10 of the RTI Act.
Similarly in M.d. Farook v. Ministry of Home Affairs,305 the
appellant filed application seeking information from Muslim
Educational Society,Roorkee (U.P). The appellant contended copy
of all documents in relation to registration and file notings which
was bluntly refused by Central Public Information Officer(CPIO).
Then the appellant filed first appeal in which all the documents
wanted by him was provided except file notings. The Central
Information Commission(CIC) held that only file notings relating
to concerned documents has been removed under section 10 of
Right to Information Act. It was held that all information except
file notings of exempt organization has been provided.
5.15 THIRD PARTY INFORMATION
The term third party as defined under the Right to Information
Act306, 2005 means a person other than the citizen making a request
for information and includes a public authority. 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, which relates or has been supplied by a third party and has
been treated as confidential by that party, the concerned Public
Information Officer is bound to give written notice to such third party
within five days from the receipt of the request intimating that he
intends to disclose the information or record or part thereof and invite

305
CIC/SS/A/2013/001599.
306
Section-2(n) of the Right to Information Act, 2005.

. 311
the third party to make submissions in writing or orally whether such
information should be disclosed or not and the third party is required
to make representation against the proposed disclosure within ten
days from the receipt of such notice and thereafter the Public
Information Officer shall decide the point about disclosure of
information keeping in view the representation of the third party.307 In
case the decision is against the submissions of the third party, the
third party is entitled to prefer an appeal under the Act308 to the
higher officer and then second appeal shall lie to the Central
Information Commission or the State Information Commission, as the
case may be. The Delhi High Court in Arvind Kejriwal v. Central Public
Information Officer,309 held that where an information seeker files an
application which relates to or has been supplied by third party, the
public information officer has to examine whether the said information
is treated as confidential or can be treated as confidential by third
party.
Right of information is a facet of the freedom of "speech and
expression" as contained in Article 19(l)(a) of the Constitution of India.
Right of information thus, indisputably is a fundamental right. The
right to impart and receive information is a species of the right of
freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution A citizen has a fundamental right to use the best means
of imparting and receiving information and as such to have an access
to telecasting for the purpose.310 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.311 The people of this country

307
Joshi, Hemant, Right to Information in India: Towards Transparent Governance and Empowered
Citizenry, Madhya Pradesh Journal of Social Sciences, Vol. 12, No. 2, July-December 2007, pp.
97-111.
308
Section-19 of the Right to Information Act 2005.
309
AIR 2012 Del 29.
310
Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association
of Bengal, AIR 1995 SC 1236.
311
Joga Rao, S.V., Law Relating to Right to Information- A Comprehensive and Insightful
Commentary with Comparative Perspectives, New Delhi, 2007.

. 312
have a right to know every public act everything that is done in a
public way, by their public functionaries. They are entitled to know
the particulars of every public transaction in all its bearing.312 The
right to know, which is derived from the concept of freedom of speech
though not absolute, is a factor which should make one wary, when
secrecy is claimed for transactions which can, at any rate, have no
repercussion on public security.313 The right to information
guaranteed under the Right to Information Act is not absolute but is
subject to restrictions imposed under the Act and one of such
restrictions concerns the right of privacy which can be claimed by a
third party under section 11 of the Act. In High Court of Gujarat v.
State Chief Information Commissioner,314 The High Court held that the
third party information cannot be supplied without giving an
opportunity to the third party concerned.
Following the trend in Jyoti Sehrawat v. Home General
Deptt,315 It was held that information about the salary of an
employee of a public authority is not third party information
when such information is asked by the wife of the employee.
Such information has to be voluntarily disclosed and every wife
or spouse has a right to information about the particulars of
salary of other spouse especially for the purpose of maintenance.
Moreover wife has a right to know the salary particulars of the
husband who is an employee of public authority.
5.16 CONSTITUTION OF CENTRAL INFORMATION COMMISSION
Democracy requires an informed citizenry and transparency of
information is vital for its functions and also to contain corruption
and to hold governments and their instrumentalities accountable to
the governed.316 The records are maintained and the information

312
Joseph, Sarah, Democratic Good Governance: New Agenda for Change, Economic and Political
Weekly, 24 March 2001, pp. 12-16.
313
State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 .
314
(2008) 69 AIC 597(Guj).
315
CIC/AD/A/2012.
316
Ambrish Saxena, RTI & FOP 7 (2004).

. 313
collected by the government not only for its use but also for the benefit
of its citizens. The citizens of a democratic country have basic human
right to get information held by the public authorities on request.317
The government is, thus, the trustee of the information for the people.
The right to information will make citizens aware what the government
is doing in their name.318 'Right to information' is a part of
fundamental right of 'freedom of speech and expression' enshrined in
Article 19 of Constitution of India.319 The 'right to information vis--vis
criminalisation of politics' has been highlighted in the speech of the
then Prime Minister of India, referred to in B.R. Kapoor's case cited in
People's Union for Civil Liberties (PUCL) v. Union of India,320 as under:
".Mr. Diwan in course of his arguments, had raised some
submissions on the subject - "Criminalisation of Politics: and
participation of criminals in the electoral process as candidates and in
that connection, he had brought to our notice the order of the Election
Commission of India dated 28-8-1993.
The Central Information Commission is a statutory body
constituted under the Right to Information Act321, wherein it is
provided as under:
(a) That the Central Information Commission shall be constituted
by the Central Government through the gazette notification.322
(b) That the Central Information Commission shall consists of one
Chief Information Commissioner (CIC) and not more than ten
Information Commissioners (CI), who shall be appointed by the
President of India.323
(c) That the appointment of the Chief Information Commissioner

317
Shankar, K.G., Right to Information Act, 2005 Vis--vis Official Secrets Act, 1923: Is it
necessary to repeal Official Secrets Act?, Supreme Court Journal, Vol. 8, Part 51-52, December
2005, pp. J-61-68.
318
Sharma, Avinash, Right to Information: A Constitutional Perspective, Civil and Military Law
Journal, Vol. 43, Nos. 3 & 4, pp. 76-84.
319
Justice A.H. Saikia, The Right to Information Act, 2005- An Instrument to Strengthen
Democracy AIR 2007 (Journal) p. 119.
320
AIR 2003 SC 2363.
321
Section-12 of the Right to Information Act, 2005.
322
Section-12(1) of the Right to Information Act, 2005.
323
Section-12 (2) (a) and Section-12(2)(b)of the Right to Information Act, 2005.

. 314
and the Information Commissioner shall be made by the President of
India on the recommendation of a committee consisting of; (i) then
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.324
(d) That the oath of the office to the Chief Information
Commissioner and the Information Commissioner shall be
administered by the President of India according to the form set out in
the First Schedule to the Act.325
(e) That the Headquarter of the Central Information Commission
shall be at Delhi and the Commission may, with the previous approval
of the Central Government, establish offices at other places.326
(f) That the Central Information Commission shall exercise all such
powers and do all such acts and things as provided under the Act327
without being subjected to directions by any other authority. This
provision has made the office of the Central Information Commission
independent and impartial.
The general superintendence, direction and management of the affairs
of the Central Information Commission shall vest in the Chief
Information Commissioner who shall be assisted by the Information
Commissioners.328 The Chief Information Commissioner and
Information Commissioners shall be chosen from 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.329 The RTI Act further states that 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 other
office of profit or connected with any political party or carrying on any

324
Section-12(3)(i),(ii)&(iii) of the Right to Information Act, 2005.
325
Section-13(3) of the Right to Information Act, 2005.
326
Section-12(7) of the Right to Information Act, 2005.
327
Section-18 to 20 of the Right to Information Act, 2005.
328
Section 12(4)of the Right to Information Act, 2005.
329
Section 12(5)of the Right to Information Act, 2005.

. 315
business or pursuing any profession. This measure again ensures
impartiality in the functioning of the Central Information
Commission.330
Recently, on 17th November 2011, the Punjab and Haryana
High Court has restrained the states of Punjab and Haryana from
appointing any person as State Information Commissioner without
following the procedure in consonance with the guidelines issued by
the high court for appointment of chairman and members of the State
Public Service Commissions.331 A full bench of the Punjab and
Haryana High Court in the case of Salil Sabhlok v. Union of India and
Others,332 had issued the directions for the appointment of the
chairman and the members of the State Public Service Commissions
on a petition filed for the dismissal of the chairman of the Punjab
Public Service Commission.333 The High Court had held that both the
States shall follow the following procedure as part of the decision
making process for appointments as Members and Chairman of the
Public Service Commission:
1. There shall be a Search Committee constituted under the
Chairmanship of the Chief Secretary of the respective State
Governments.
2. The Search Committee shall consist of at least three members. One
of the members shall be serving Principal Secretary that is, not below
the rank of Financial Commissioner and the third member can be
serving or retired Bureaucrat not below the rank of Financial
Commissioner, or member of the Armed forces not below the rank of
Brigadier or of an equivalent rank.334
3. The Search Committee shall consider all the names which came to
its notice or are forwarded by any person or by any aspirant. The

330
Sharma, Deepak, Right to Information: A Structural- Functional Analysis, The Indian Journal of
Public Administration, Vol. LV, No. 3, July-September 2009, pp. 578-593.
331
HC Reminds Govts of Info Panel Norms, The Hindustan Times, 18 November 2011, p 01.
332
MANU / PH / 2214 / 2011.
333
Sharma, Herbans Lal, Historical Perspective and Genesis of RTI Act, 2005", Information
Decisions, Vol. 1, 2008, pp. 6-13.
334
Roy, Jaytilak Guha, The Right to Information: Some Emerging Issues of Public Concern, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 406-412.

. 316
Search Committee shall prepare panel of suitable candidates equal to
the three times the number of vacancies.
4. While preparation of the panel, it shall be specifically elicited about
the pendency of any court litigation, civil or criminal, conviction or
otherwise in a criminal court or civil court decree or any other
proceedings that may have a bearing on the integrity and character of
the candidates.335
5. Such panel prepared by the Search Committee shall be considered
by a High Powered Committee consisting of Hon'ble Chief Minister,
Speaker of Assembly and Leader of Opposition.
6. It is, thereafter, the recommendation shall be placed with all
relevant materials with relative merits of the candidates for the
approval of the Hon'ble Governor after completing the procedure
before such approval.336
7. The proceedings of the Search Committees shall be conducted
keeping in view the principles laid down in Centre for PIL's case.
In the Centre for PIL and Another v. Union of India and Another, 337

case, the Honble Supreme Court of India has held that while making
the recommendation for appointment of the Central Vigilance
Commissioner (CVC), the HPC (High Powered Committee or the
Selection Committee) performs a statutory duty and the word
`recommendation' stands for an informed decision to be taken by the
HPC on the basis of a consideration of relevant material keeping in
mind the purpose, object and policy of the Central Vigilance
Commission Act, 2003.338 As stated, the object and purpose of the
2003 Act is to have an integrity Institution like CVC which is in charge
of vigilance administration and which constitutes an anticorruption
mechanism.339 In its functions, the CVC is similar to Election
Commission, Comptroller and Auditor General, Parliamentary

335
Roy, Bunker, The Politics of Waste and Corruption and the Fight for Right to Information and
Transparency, Kurukshetra, Vol. 45, No. 11, August 1997, pp. 38-42.
336
Ibid.
337
(2011) 4 SCC 1.
338
Rattan, Jyoti, Genesis of Right to Information under International and National Laws with Special
Reference to India: A Critical Analysis, The Indian Journal of Public Administration, Vol. 55,
No. 3, July-September 2009, pp. 672-688.
339
Paul, Samuel, Right to Information on Candidates: How Will the Voters Know?, Economic and
Political Weekly, Vol. 38, No. 15, 12 April 2003, pp. 1447-1449.

. 317
Committees etc.340 Thus, while making the recommendations, the
service conditions of the candidate being a public servant or civil
servant in the past is not the sole criteria. The HPC must also take
into consideration the question of institutional competency into
account. If the selection adversely affects institutional competency
and functioning then it shall be the duty of the HPC not to
recommend such a candidate.341 Thus, the institutional integrity is
the primary consideration which the HPC is required to consider while
making recommendation under Section 4 for appointment of Central
Vigilance Commissioner. In this connection the HPC has also to keep
in mind the object and the policy behind enactment of the 2003
Act.342 The Court also held that the CVC is an integrity institution and
hence the HPC has, there to take into consideration the values
independence and impartiality of the Institution. The said Committee
has to consider the institutional competence. It has to take an
informed decision keeping in mind the abovementioned vital aspects.
Thus, whenever, appointments to the information commissions
(central or state) are made the above mentioned guidelines must
strictly be adhered to.343
5.16.1Qualifications, term of office and conditions of service of
Chief Information Commissioner and Central Information
Commissioners
The qualifications term of office and conditions of service of the
Chief Information Commissioner and the Central Information
Commissioner shall be as under-
(a) The Chief Information Commissioner and Information
Commissioner 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

340
PMs Remark Will Demoralize People on RTI Use, The Times of India, 15 October 2011, p. 19.
341
Raj, Triranjan and Sanjeev Kumar Sharma, Right to Information Act, 2005: A Critique with
Governance and Administrative Reforms Perspective, The Indian Journal of Public
Administration, Vol. 55, No. 3, July-September 2009, pp. 481-503.
342
Parikh, Sanjay, Should CBI & CVC Be Kept Out of Right to Information Act?, The Times of
India, 17 July 2005, p. 12.
343
PM Calls for Review of RTI Act, The Economic Times, 15 October 2011, p.01.

. 318
governance.344
(b) The Chief 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 65 years or whichever is earlier.345
(c) 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 other office of profit or connected with any political party or
carrying on any business or pursuing any profession. Chief
Information Commissioner is not eligible for reappointment.346
(d) Salary and allowances payable to and other terms and
conditions of service of the Chief Information Commissioner shall be
the same as Chief Election Commissioner and an Information
Commissioner shall be same as that of the Election Commissioner.347
(e) The salary and allowances and other conditions of Service of the
Chief Information Commissioner and Information Commissioner shall
not be varied to his disadvantage after his appointment.
(f) The 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 65 years whichever is earlier and shall not be
eligible for reappointment as Information Commissioner.348
(g) The Information Commissioner shall be eligible for appointment
as Chief Information Commissioner but total period as Information
Commissioner and Chief Information Commissioner shall not exceed
five years.
(h) The Chief Information Commissioner or Information
Commissioner may, at any time by writing in his hand addressed to
the President, resign from his office.

344
Section-12 (5) of the Right to Information Act, 2005.
345
Section-13(1)&(2) of the Right to Information Act, 2005.
346
Section-12(6) of the Right to Information Act, 2005.
347
Section-13(5) of the Right to Information Act, 2005.
348
Ibid.

. 319
(i) The President may suspend from office during enquiry, the
Central Information Commissioner or an Information Commissioner in
respect of whom reference has been made to the Supreme Court
(regarding misbehaviour or incapacity) until the President passed
orders on receipt of the report of the Supreme Court on such
reference.349
The salary of the Central Information Commissioner shall be
equal to the salary of the Chief Election Commissioner and the salary
of the Information Commissioner shall be equal to the salary of the
Election Commissioner. The Central Information Commissioner /
Information Commissioner shall draw a pay of Rs. 30,000/- per
month (fixed). They are entitled to a monthly sumptuary allowance of
Rupees Seven Thousand Five Hundred Only per month.350 The Chief
Information Commissioner and the Information Commissioner shall
be entitled,without payment of rent, to the use of an official residence
in accordance with the rules prescribed for the Chief Election
Commissioner / Election Commissioner351 and be also entitled to
medical and conveyance facilities.
5.16.2 Removal of Chief Information Commissioner and
Information Commissioner
The Chief Information Commissioner or Information
Commissioner can be removed by the President of India on the ground
of proved misbehaviour or incapacity after the Supreme Court, on a
reference made to it by the President, has, on enquiry, reported that
the Chief Information Commissioner or an Information Commissioner,
as the case may be, ought on such ground be removed; or in case he

349
Section-14(2)of the Right to Information Act, 2005.
350
As per section 8 of the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Act, 1991 and section 23B of the Supreme Court Judges (Salaries and
Conditions of Service) Act, 1958, also allowed provident fund as per Section 7 of the Chief
Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991, leave
provisions also available as per Section 5 of the Chief Election Commissioner and other Election
Commissioners (Conditions of Service) Act, 1991 and Section 4A of the Supreme Court Judges
(Salaries and Conditions of Service) Act, 1958.
351
As per Section 8 of the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Act, 1991 and Rule 4 of the Supreme Court Judges Rules, 1959.

. 320
or she-
(i) is adjudged an insolvent; 352or

(ii) has been convicted of an offence which, in the opinion of the


President, involves moral turpitude; 353or

(iii) engages during his term of office in any paid employment


outside the duties of his office;354 or
(iv) is, in the opinion of the President, unfit to continue in office by
reason of infirmity of mind or body;355 or
(v) has acquired such financial or other interest as is likely to affect
prejudicially his functions as the Chief Information Commissioner or a
Information Commissioner.356
Regarding appointment of the Chief Information Commissioner
and the Information Commissioner there is no provision as to how
many of them shall be with knowledge of law and experience in
judicial side because the Central information Commission is to
exercise quasi-judicial function subject to review by the High Court
under Article 226 of the Constitution of India or by the Supreme Court
of India.357 It is also not clear whether all of them can be former
bureaucrats. However there may be doubts whether the Chief
Information Commissioner or the Information Commissioner, who was
Secretary or Head of Department, immediately before his /her
appointment as such commissioner can hear appeals pertaining to
refusal to supply information in respect of the ministries/departments
for the period he or she was heading the same, because such
information may be regarding order passed by him/her.358 These are
grey areas where the court may have to interpret the provision in right
prospective or in the alternative the Parliament may carry out
necessary amendment for proper and effective implementation of the

352
Section-14(3)(a) of the Right to Information Act, 2005.
353
Section-14(3)(b) of the Right to Information Act, 2005
354
Section-14(3)(c) of the Right to Information Act, 2005.
355
Section-14(3)(d) of the Right to Information Act, 2005.
356
Section-14(3)(e) of the Right to Information Act, 2005.
357
Kumar, Niraj, RTI Act, 2005: A Sunshine Act", Information Decisions, Vol. 2, 2008, pp. 75-78.
358
Kejriwal, O.P, Right to Information Act: Loopholes and Road Ahead, Economic and Political
Weekly, Vol. 41, No. 11, 18 March 2005, pp. 940-942.

. 321
Act, which the Parliament, in its wisdom, has passed to afford right to
information to each and every citizen of this country.359 A lot of
litigation is bound to come up with the information of the Act.
However, it must be ensured that the Right to Information Act, is
implemented in such a way that ideal stage is reached where 'a citizen
ask for any information and he receives the information
immediately.360
5.17 CONSTITUTION OF STATE INFORMATION COMMISSION
The State Information Commission is a statutory body
constituted under section 15 of the Right to Information Act, 2005,
wherein it is provided as under.
(a) That the State Information Commission shall be constituted by
the State Government through the gazette notification.361
(b) That the State Information Commission shall consists of Chief
Information Commissioner and such number of the State Information
Commissioners not exceeding ten, as may be deemed necessary, who
shall be appointed by the Governor of State.362
(c) That the appointment of the State Chief Information
Commissioner and the Information State Commissioner shall be made
by the Governor of State 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 Legislation; and (iii)
a Cabinet Minister to be nominated by the Chief Minister.363
(d) That the oath of the office to the Chief Information
Commissioner and the Information Commissioner shall be
administered by the Governor of State according to the form set out in
the First Schedule to the Act.364
(e) That the Headquarter of the State Information Commission shall

359
Ranbir Singh, RTI Ineffective in Haryana, The Tribune, Chandigarh, 01 July 2009, p.09.
360
Justice Y.K. Sabharwal, Right to information and Good Governance Nayadeep 2006 Oct.7(4)
pp. 17-30 at 26.
361
Section-15 of the Right to Information Act, 2005.
362
Section-15(2) of the Right to Information Act, 2005.
363
Section-15(3) of the Right to Information Act, 2005.
364
Section-16(3) of the Right to Information Act, 2005.

. 322
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.365
(f) That the State Information Commission shall exercise all such
powers and do all such acts and things as provided under sections 18
to 20 the Act without being subjected to directions by any other
authority.
5.17.1 Procedure for appointment of State Chief Information
Commissioner and State Information Commissioner
The State Chief Information Commissioner and the State
Information Commissioner have been defined in section 2(1) of the
Right to Information Act to mean the 'State Chief Information
Commissioner' and 'State Information Commissioner' appointed under
sub-section (3) of section 15 of the Act. The State Chief Information
Commissioner and State Information Commissioners shall be
appointed by the Governor on the recommendation of a committee.366
The High Court of Tamil Nadu in Vijaylakshmi Vs. State of Tamil
Nadu,367 held that lack of transparency in appointment process for
appointment of State Information Commissioners would amount
invalidity in such appointment.
5.17.2 Qualifications, term of office and conditions of service of
State Chief Information Commissioner and State
Information Commissioner
The qualifications, term of office and conditions of service of
State Chief Information Commissioner and State Information
Commissioner shall be as under:
(a) The State Chief Information Commissioner and the State
Information Commissioner shall be persons of eminence in public life
with wide knowledge and experience in law, science and technology,

365
Section-15(7) of the Right to Information Act, 2005.
366
Joseph, Sarah, Democratic Good Governance: New Agenda for Change, Economic and Political
Weekly, 24 March 2001, pp. 12-16.
367
AIR 2012 Mad 90.

. 323
social service, management, journalism, mass media or
administration and governance.368
(b) The State Chief 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 65 years whichever is earlier.369
(c) The State 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 other office of profit or connected with any political party or
carrying on any business or pursuing any profession.370
(d) Salary and allowances payable to and other terms and
conditions of service of the State Chief Information Commissioner
shall be the same as Election Commissioner and the State Information
Commissioner shall be same as that of the Chief Secretary to the State
Government.371
(e) The salary and allowances and other conditions of the State
Chief Information Commissioner and the State Information
Commissioner shall not be varied to his disadvantage after his
appointment.372
(f) The 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 65 years whichever is earlier and shall not be
eligible for reappointment as Information Commissioner.373
(g) The State Information Commissioner shall be eligible for
appointment as the State Chief Information Commissioner but total
period as State Information Commissioner and the State Chief
Information Commissioner shall not exceed five years.374
The State Chief Information Commissioner and the State

368
Section-15(5) of the Right to Information Act, 2005.
369
Section-16(1)&(2) of the Right to Information Act, 2005.
370
Section-15(6) of the Right to Information Act, 2005.
371
Section-16(5) of the Right to Information Act, 2005.
372
Ibid.
373
Section-16(2) of the Right to Information Act, 2005.
374
Ibid.

. 324
Information Commissioners are the backbone of the Right to
Information Act and, therefore, they are required to be persons of
honesty and integrity. The State Chief Information Commissioner and
the State Information Commissioners have wide powers in the area of
right to information under the Right to Information Act and the person
to be appointed to these posts must be a person of eminence in
various fields as provided in section 15 of the Act.375 No doubt 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, but it is required that if such a person after
appointment as the State Chief Information Commissioner or a State
Information Commissioner indulge in misbehaviour or suffers from
incapacity there should be provision for removal of such person and
this provision has been made under the Act,376 which lays down the
procedure for removal of the State Chief Information Commissioner or
State Information Commissioner by order of the Governor on the
ground of proved misbehaviour or incapacity.
5.17.3 Suspension of the State Chief Information Commissioner
or a State Information Commissioner
The power has been conferred upon the Governor under the
Right to Information Act377 to suspend from office and if deemed
necessary also to prohibit from attending the office during the
enquiry, the State Chief Information Commissioner or a State
Information Commissioner, in respect of whom a reference has been
made to the Supreme Court, until the Governor has passed order on
receipt of report of the Supreme Court of India on such reference.
However during suspension of such Commissioner he shall be entitled
to the pay and allowances the subsistence allowance as allowed to a
government servant during the period of suspension subject to final
order to be passed after the enquiry.378

375
Kumar, Niraj, RTI Act, 2005: A Sunshine Act", Information Decisions, Vol. 2, 2008, pp. 75-78.
376
Section 17 of the Right to Information Act, 2005.
377
Section 17(2) of the Right to Information Act, 2005.
378
Ibid.

. 325
5.17.4 Removal of the State Chief Information Commissioner or a
State 'Information Commissioner
The State Chief Information Commissioner or State Information
Commissioner can be removed by the President of India on the ground
of proved misbehaviour or incapacity after the Supreme Court, on a
reference made to it by the Governor, has on enquiry reported that the
State Chief Information Commissioner or a State Information
Commissioner, as the case may be, ought on such ground be removed
or in case he or she
(i) is adjudged an insolvent;379 or
(ii) has been convicted of an offence which, in the opinion of the
Governor, involves moral turpitude;380 or
(iii) engages during his term of office in any paid employment
outside the duties of his office; or
(iv) is, in the opinion of the Governor, unfit to continue in office by
reason of infirmity of mind or body; or
(v) has acquired such financial or other interest as is likely to affect
prejudicially his functions as the State Chief Information
Commissioner or the State Information Commissioner.381
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.382 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 who may exercise all such powers and do

379
Section-17 (3)(a) of the Right to Information Act, 2005
380
Section-17 (3)(b) of the Right to Information Act, 2005.
381
Mishra, Sweta, Right to Information and Decentralised Governance, The Indian Journal of
Public Administration, Vol. 55, No. 3, July- September 2009, pp. 689-701.
382
Misra, Suresh, Public Accountability and Administrative Efficiency through Right to
Information: Opportunities and Challenges., The Indian Journal of Public Administration, Vol.
55, No. 3, July-September 2009, pp. 523-533.

. 326
all such acts and things which may be exercised or done by the State
Information Commission autonomously as provided under sections 18
to 20 of the Act.383
However, 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 for of retirement benefits excluding pension
equivalent of retirement gratuity.384
Whenever the appointment of information commissioners are
going to made, there is an excessive reliance on pliant bureaucrats
and there is virtually no representation of persons with non-civil
service background.385 The Second Administrative Reforms
Commission has complained against the domination of the IAS lobby
in information Management. The appointment of former bureaucrats
as Chief Information Commissioners has raised fears that the RTI
regime may become just another means for the bureaucracy to tighten
its reigns over government information.386 As a matter of fact, the
Second Administrative Reforms Commission has recommended that
the government should ensure that half the number of Information
Commissioners should be drawn from non-civil service backgrounds.
Since the inception of the Act a lot of criticism has been received
regarding the appointment of retired bureaucrats as Information
Commissioners. It is quite surprising that the responsibility of this Act

383
Section-18 to 20 of the Right to Information Act, 2005.
384
Ibid.
385
Rajagopal, Krishnadas, RTI Symbol That Accountability is Key to Democracy, The Indian
Express, 12 October 2009, p. 02.
386
Ramabrahmam, I., Implementation Process of Right to Information: Issues and Trends, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 504-510.

. 327
has placed upon those who have lived in a culture of secrecy
themselves. This creates doubts on the success of the Act itself.387
5.18 POWERS AND FUNCTIONS OF INFORMATION COMMISSION
The Central Information Commission or the State Information
Commission, as the case may be, has the power to receive and inquire
into a complaint from any person.388
(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 of the Act 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;389
(c) who has not been given a response to a request for information
or access to information within the time limits 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; and
(f) in respect of any other matter relating to requesting or obtaining
access to records under this Act.390
Moreover where the Central Information Commission or the
State Information Commission, as the case may be, is satisfied that

387
J.N. Barowalia, Right to information laws in India, 234(2005).
388
Section-18 of the Right to Information Act, 2005.
389
Section-18 (1)(b) of the Right to Information Act, 2005.
390
Section-18 (1)(e) of the Right to Information Act, 2005.

. 328
there are reasonable grounds to inquire into the matter, it may initiate
an inquiry in respect thereof.391 Thus, the Act gives powers to the
Central Information Commission or the State Information Commission
suo motu to initiate inquiry in respect of a matter if there is reasonable
grounds to inquire into the matter to the satisfaction of the
Commission.392
The Madras High in V.V. Mineral Tisaiyanvilai District v. Director
of Geology and Mining, Chennai,393 held that the commission is a
wider body and clothed with all powers of civil court. This is in
consonance with the latest trend of public interest litigation in which
the court or the quasi-judicial authority can take suo motu notice of
the matters of public importance falling within their jurisdiction.
The Supreme Court in Chief Commissioner v. State of
Manipur,394 held that the information request which is refused cannot
be directed to be given by commission.
Similarly, the Apex Court in Public Information Officer v.
Manohar Parrikar,395 held if the State Information Commission is not a
multimember body. It cannot exercise its power under section 18 of
the Act.
5.18.1 Power of summoning witnesses and discovery and
inspection of documents including any public record.
The Central Information Commission and the State Information
Commission have been empowered to entertain, hear and decide
second appeal against the decision of the first appeal. The Right to
Information Act, 2005 lays down that the Central Information
Commission or the 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

391
Misra, Suresh, Public Accountability and Administrative Efficiency through Right to
Information: Opportunities and Challenges., The Indian Journal of Public Administration, Vol.
55, No. 3, July-September 2009, pp. 523-533.
392
Section-18 (2) of the Right to Information Act, 2005.
393
(2007)4 MLJ 394.
394
AIR 2010 SC 864.
395
AIR 2006 SCW 494.

. 329
Code of Civil Procedure, 1908,396 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;397
(b) requiring the discovery and inspection of documents;398
(c) receiving evidence on affidavit;399
(d) requisitioning any public record or copies thereof from any court
or office;400
(e) issuing summons for examination of witnesses or documents;401
and
(f) any other matter which may be prescribed402.
Order V of the Code of Civil Procedure lays down the procedure
of the service of the party (which is equally applicable in the
proceedings before the Central Information Commission as well as the
State Information Commission for the service of the party.
In the case of Shri Manjay Kumar Singh, v. The First Appellate
Authority (RTI), Roorkee Uttrakhand,403 Applicant has complained to
the Central Information Commission that he received no 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) of the
Right to Information (RTI) Act, the Appellate Authority was directed to
enquire into the allegations made by the Complainant and after giving
him an opportunity of hearing, to pass an appropriate order.
5.19 APPEAL
The Right to Information Act, 2005 provides for an independent

396
Section-18 (3) of the Right to Information Act, 2005.
397
Section-18 (3)(a) of the Right to Information Act, 2005.
398
Section-18 (3)(b) of the Right to Information Act, 2005.
399
Section-18 (3)(c) of the Right to Information Act, 2005.
400
Section-18 (3)(d) of the Right to Information Act, 2005.
401
Section-18 (3)(e) of the Right to Information Act, 2005.
402
Section-18 (3)(f) of the Right to Information Act, 2005.
403
CIC/LS/C/2013/000083/RM.

. 330
review of the decisions taken by Central Information Officers or the
State Information Officers, as the case may be, and the Central
Information Commission and the State Information Commissions are
capable of providing effective remedy in case of delay or denial.404 The
Act provides for right of appeal. The right to appeal is a pure creature
of the statute. There is no inherent or natural right to an appeal. If,
however, the Parliament in its wisdom does provide for an appeal, the
right to appeal must be given due consideration because the best
Judge for the provisions of substantive right of appeal is a legislature
and not the courts on any ground of compassionate or sentiments.
The Act provides for first appeal to the senior officer in the public
authority and then second appeal to the Central Information
Commission or the State Information Commission, as the case may
be.405
5.19.1 Person competent to prefer first appeal and period of
limitation thereof
Any person, who is aggrieved of a decision of the Central Public
Information Officer or the State Public Information officer, as the case
may be, may within 30 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 the State
Public Information Officer, as the case may be, in each public
authority406. Moreover, where an appeal is preferred against an order
made by a Central Public Information Officer or a State Public
Information Officer, 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.407
The Bombay High Court in Reserve Bank of India, Mumbai v. Rui
Ferriera,408 held that remedy available to person aggrieved is to file

404
Section-19 of the Right to Information Act, 2005.
405
Section-19 (3) of the Right to Information Act, 2005.
406
Section-19 (1) of the Right to Information Act, 2005.
407
Section-19 (2) of the Right to Information Act, 2005.
408
AIR 2012 Bom 1.

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appeal in accordance with section 19 of the Act. Instead of filing
appeal he sought some information from State Information
Commission. It was ruled that it was not permissible for State
Information Commission to entertain complaint regarding very same
information.
5.19.2 Second appeal to the Central Information Commission or
the State Information Commission and period of
limitation thereof
A second appeal against the decision of the first appeal shall lie
within ninety days from the date on which the decision should have
been made or was actually received by the aggrieved person, to the
Central Information Commission or the State Information
Commission. However 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.409 No particular format has been prescribed for the
complaints and appeals under the Right to Information Act, 2005.
However, certain provisions have been created in the Central
Information Commission (Management) Regulations, 2007 in relation to
the appeals and complaints. They are discussed below:
(1) Appeal or complaint etc. to be in writing: Every appeal,
complaint, application, statement, rejoinder, reply or any other
document filed before the Commission shall be typed, printed or
written neatly and legibly and in double line spacing and the language
used therein shall be formal and civilized and should not be in any
way indecent or abusive.410 The appeal, complaint or an application
shall be presented in at least two sets in a paper-book form.411

409
Section-19(3) of the Right to Information Act, 2005.
410
Section 7 of The Central Information Commission (Management) Regulations, 2007 and given
under Section 3 of the Central Information Commission (Appeals Procedures), 2005.
411
Section 8 of the Central Information Commission (Management) Regulations, 2007.

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(2) Documents to accompany appeal or complaint:412Every appeal
or complaint made to the Commission shall be accompanied by self-
attested copies/photo copies of the following documents, namely:-
(a) The Right to Information application submitted before the Central
Public Information Officer along with documentary proof as regards
payment of fee under the Right to Information Act;
(b) The order, or decision or response, if any, from the Central Public
Information Officer to whom the application under the Right to
Information Act was submitted.
(c) The First appeal submitted before the First Appellate Authority
with documentary proof of filing the First Appeal.
(d) The orders or decision or response, if any, from the First Appellate
Authority against which the appeal or complaint is being preferred;
(e) The documents relied upon and referred to in the appeal or
complaint;
(f) A certificate stating that the matters under appeal or complaint
have not been previously filed, or are pending, with any court or
tribunal or with any other authority;
(g) An index of the documents referred to in the appeal or complaint;
and
(h) A list of dates briefly indicating in chronological order the progress
of the matter up to the date of filing the appeal or complaint to be
placed at the top of all the documents filed.
The above said are the documentary requirements. Along with
this, a complainant is also required to submit a documentary proof
that he has submitted a copy of the appeal or complaint, as the case
may be, to be served on the Central Public Information Officer / Public
Information Officer and the Appellate Authorities.413 If the
complainant does not know the name, address and other particulars
of the Central Public Information Officer or the First Appellate

412
Section 9 of the Central Information Commission (Management) Regulations, 2007.
413
Section 10 of the Central Information Commission (Management) Regulations, 2007.

. 333
Authority and if he approaches the Commission under Section 18 of
the Act, he shall cause a copy of his complaint petition to be served on
the concerned Public Authority or the Head of the Office and Proof of
such service shall be annexed along with the complaint petition.414
Similar provision has also been made in Section 4, of the Central
Information Commission (Appeal procedure) Rules, 2005 which lays
down the list of the documents, required to be attached, along with
the appeal application. The documents are self attested copies of the
orders or documents against which the appeal is to be preferred;
Copies of the documents relied upon by the appellant and referred to
in the appeal; and an index of the documents referred to in the appeal.
Once the petition is complete in all respects, then it is submitted with
the central registry branch of Central Information Commission either
by hand or by post. It should be addressed to the Commission. This
petition is scrutinized by the registrar.415 If the petition does not meet
the requirement or conform to the standard as set out above then it
can be rejected by the registrar and he can permit its resubmission in
proper form.416 The Registrar may reject any such appeal or complaint
petition.417
(i) if it is time-barred; or
(ii) if it is otherwise inadmissible; or
(iii) if it is not in accordance with these Regulations.
Provided that, no such appeal or complaint shall be rejected, by
the registry, unless the concerned appellant or the complainant has
been given an opportunity of being heard. The decision of the
Registrar concerning the issue of maintainability of an appeal or a
complaint shall be final. If there is any defect in the petition, then
applicant is asked to rectify it. If petition is defective and received by

414
Ibid.
415
Section 11 (iii) of the Central Information Commission (Management) Regulations 2007.
416
Section 11(iv) of the Central Information Commission (Management)Regulations, 2007.
417
Ibid.

. 334
post then it issent back to applicant to rectify it within a period of two
weeks from the time of communication of such defect. If defect is not
rectified within the prescribed time, then it is deemed as withdrawn.
However, the registrar may allow the applicant to file a fresh
petition.418 When all the above said formalities are completed then the
petition shall be registered and allocated a specific number, in order to
identify it easily. The designated officer of the concerned department
reads the file and after deciding that the case is to be heard and no
other remedy is available, places the case before the Principal Private
Secretary, for deciding the date of hearing. Then the notice of hearing
is sent to the concerned parties. The appellant or the complainant, as
the case may be, shall be informed about the date of hearing at least
seven days beforehand.419 Notice of hearing can be served in any of
the following ways:420
(i) Served by the party itself or
(ii) By hand delivery (dasti) through process server; or
(iii) By registered post with acknowledgment due; or
(iv) Through head of office or department.
On the prescribed date of hearing, both the parties present
themselves before the concerned Information Commissioner and argue
their case. In case the parties are residing at faraway places then they
are not required to present themselves physically before the
Information Commissioner. For such situation, the Commission has
adopted a very innovative and justice friendly system that is, video
conferencing or teleconferencing. Under this system, the Commission
would register the nearest NIC studio for the appellant or the
respondent for hearing. On the day of hearing, the Commissioner is
present at the headquarters, parties are present at the decided NIC

418
id. Section 11(ix)-(xi).
419
Section 15(i) of the Central Information Commission (Management) Regulations, 2007 and
Section 7(1) of the Central Information Commission (Appeal&Procedure) Rules, 2005.
420
Section 6 of the Central Information Commission (Appeal Procedure) Rules, 2005.

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centre, and proceedings are conducted through teleconferencing.
Under this system, if a party is residing at a far off place and he is
unable to avail the service of video conferencing, then he can present
his case through telephone. The appellant or the complainant, as the
case may be, may at his discretion at the time of hearing of the appeal
or complaint by the Commission be present in person or his duly
authorized representative may be present or may opt not to be present
at all.421 Parties can argue their case either themselves or through
their duly authorized representative.422 On every hearing, the parties
are required to sign upon an attendance sheet in order to ensure their
presence. Where the Commission is satisfied that circumstances exist
due to which the appellant or the complainant is being prevented from
attending the hearing of the Commission, the Commission may afford
the appellant or the complainant, as the case may be, another
opportunity of being heard before a final decision is taken or take any
other appropriate action as it may deem fit.423 The appellant or the
complainant, as the case may be, may seek the assistance of any
person while presenting his case before the Commission and the
person representing him may not be a legal practitioner.424 An appeal
or a complaint can be heard either by a Single Information
Commissioner or a Division Bench of two Information Commissioners,
or a Full Bench of three or more Information Commissioners, as
decided by the Chief Information Commissioner by a special or general
order issued for this purpose from time to time.425 A situation may
arise during the hearing that Commissioner may consider that matter
should be dealt with by a division or full bench, then in such a case
such a matter is referred to the Chief Information Commissioner, who

421
Section 7(2) of the Central Information Commission (Appeal Procedure) Rules, 2005.
422
Section 15(ii) of the Central Information Commission (Management) Regulations, 2007.
423
Section 15(iii) of the Central Information Commission (Management) Regulations,2007 and
Section 7(3) of the Central Information Commission (Appeal & Procedure) Rules, 2005.
424
Section 15(iv) of the Central Information Commission (Management) Regulations,2007 and
Section 7(4) of the Central Information Commission (Appeal & Procedure) Rules, 2005.
425
Section 13 of Central Information Commission (Management) Regulations, 2007.

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may thereupon constitute such a Bench for the hearing and disposal
of the matter.426 Similarly, where during the course of the hearing of a
matter before a Division Bench, the Bench Considers that the matter
should be dealt with by a Full Bench, or where Full Bench considers
that a matter should be dealt with a Larger Bench, it shall refer the
matter to the Chief Information Commissioner who may thereupon
Constitute such a Bench for the hearing and disposal of the matter.427
If an appellant or the complainant at his discretion decides not to be
present personally or through his duly authorized representative
during the hearing of an appeal or complaint before the Commission,
the Commission may pronounce its decision or order in the matter ex
parte.428After listening to both the parties, the final orders are passed
keeping in mind the merits of the case. Such orders of the
Commission shall be pronounced in open proceedings and be in
writing duly authenticated by the Registrar or any officer authorized
by the Commission for this purpose.429 Commission can also impose
penalty on the delinquent officer while pronouncing the order. In case
any party is not satisfied with the order of the Commission, then it
can file review petition with the Commission. If the Commission is of
the view that such order needs rethinking then it can allow such
review petition. However, the Central Information Commission
generally reviews its decisions only if there is a technical error in the
decision or if there was an omission to consider certain material facts
relevant for the decision or if appellant was not given opportunity of
being heard or if the Public Information Officer has not enclosed
relevant supporting documents in his comments furnished to Central
Information Commission.

426
Ibid.
427
Subrahmanyam, A. and M. Sarojanamma, Right to Information: A Right Step for a Good
Governance, Andhra Weekly Reporter, Vol. 3, Part 14, 1999, pp. 30-34.
428
Section 15(v) of the Central Information Commission (Management) Regulations, 2007.
429
Section 8 of the Central Information Commission (Appeal Procedure) Rules, 2005.

. 337
5.19.3 Extension of period of limitation for sufficient cause
In view of the proviso to sub-sections (1) and (3) of section 19 of
the Right to Information Act, the first appellate authority and the
second appellate authority i.e. Central Information Commission or the
State Information Commission, may admit the appeal after expiry of
period of 30 days or 90 days, as the case may be, if it is satisfied that
the appellant was prevented by sufficient cause from filing the appeal
in time.430 The words 'sufficient cause' should receive a liberal
construction so as to advance substantial justice when no negligence
or inaction or want of bona fide is imputable to a party.431 It is
undoubtedly true that in dealing with the question of condoning the
delay, the party seeking relief has to satisfy the court he had sufficient
cause for not preferring the appeal or making the application within
the prescribed time and this has always been understood to mean
that the explanation has to cover the whole period of delay.432
5.19.4 Procedure for hearing appeal and period within which
appeal to be disposed of
When the first appeal is preferred against the decision of the
Central Public Information Officer or the State Public Information
Officer or the second appeal is preferred against the decision by
Officer, who is senior in rank to the Central Public Information Officer
or the State Public Information Officer, as the case may be, the appeal
shall be decided in accordance with such procedure as may be
prescribed.433 Such procedure shall be prescribed by delegated
legislation by the Central or the State Governments under section 27
of the Act. However, the following points shall be kept in view while
deciding the appeal:
(a) The notice shall be given to the concerned public authority
because subsection (5) of section 5 of the Act provides that in appeal
proceedings, the onus to prove that a denial of a request was justified

430
Noorani, A.G., The Press Councils Bill on Right to Information, Economic and Political
Weekly, Vol. 31, No. 51, 1996, pp. 3283.
431
State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 (755).
432
Ibid.
433
Niranjan, Oulac, Right to Information and the Road to Heaven, Economic and Political Weekly,
Vol. 40, No. 47, 19 November 2005, pp. 4870-4872.

. 338
shall be on the Central Public Information Officer or State Public
Information Officer who denied the request;
(b) 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 third party information, the Central
Information Commission or State Information Commission, shall give
a reasonable opportunity of being heard to that third party;
(c) The first or the second appeal 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, for
reasons to be recorded in writing;434
(d) The decision of the Central Information Commission or State
Information Commission, as the case may be, shall be binding;435
(e) The Central Information Commission or State Information
Commission, shall give notice of its decision, including any right of
appeal, to the complainant and the public authority;436
(f) 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 by the
appropriate Government i.e. the Central or State Government in rules
framed under section 27 of the Act.
In the case of Sh. Uday Nath v. CPIO, Department of Post437 In
this case an important issue was decided by the Commission. The
Deptt. of Posts not only declined to furnish the information but also
advised 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. The Commission however, made it clear that
irrespective of at what level a decision is taken the procedure
prescribed by the statue cannot be given a go by.

434
Section-19(6) of the Right to Information Act, 2005.
435
Section-19 (7) of the Right to Information Act, 2005.
436
Section-19 (9) of the Right to Information Act, 2005.
437
ICPB/A-6/CIC/2006.

. 339
5.19.5 Reliefs which Central Information Commission or the State
formation Commission can grant.
The Central Information Commission or the State Information
Commission, while deciding the appeal under section 19 of the Right
to Information Act has the power to grant the following reliefs:
(a) require the public authority to take any such steps as may be
necessary
to secure compliance with the provisions of this Act, including438,-
(i) by providing access to information, if so requested, in a

particular form;439
(ii) by appointing a Central Public Information Officer or State

Public Information Officer, as the case may be;440


(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;

(v) by providing it with an annual report in compliance with clause


(b) of sub-section (1) of section 4 of the Act;
(b) require the public authority to compensate the complainant for
any loss or other detriment suffered;441
(c) impose any of the penalties provided under section 20 of the
Act;442
(d) reject the application;
In the case of Smt. Dasharsathi v. Food & Civil Supplies Deptt443
In this case the damages were awarded to the complainant as the
public authority had refused to accept the application from her. It

438
Section-19(8)(a) of the Right to Information Act, 2005.
439
Section-19 (8)(a) (i) of the Right to Information Act, 2005.
440
Section-19 (8)(a)(ii) of the Right to Information Act, 2005.
441
Section-19 (8)(b) of the Right to Information Act, 2005.
442
Section-19 (8)(c) of the Right to Information Act, 2005.
443
CIC/WB/C/2006/00145.

. 340
was held that misbehaviour with applicants approaching public
authorities under the R.T.I. is not acceptable and in direct violation of
Sec 5 (3) of the Act. In this case the PIO who refused to provide the
information will pay damages to the applicant.
In India, poor people find Appeal process under RTI an
expensive mechanism. The RTI Law, prescribes that anyone including
a third party, who either does not receive a decision within the
specified time frame or who is aggrieved by a decision under the Law
may, within 30 days, lodge an internal appeal with an officer who is
senior in rank to the responsible information officer.444
A second appeal may be made within 90 days, or such further period
as may be deemed appropriate, to the relevant Information
Commission. The first appeal must be decided within 30 days, or an
extended period of up to 45 days, with reasons for any extension to be
given in writing. The onus of justifying any refusal to provide
information shall be on the information officer who denied the
request.445
But still people in rural areas find the appeal process expensive

as many a times there is just one First Appellate Authority for the
whole department and that too is located at the capital cities. As a

result they find going to these places difficult as it involves

expenditure both on terms of resources and time.446


5.20 PENALTIES
The Central Information Commission 'or the State Information

Commission has the power to impose penalties under the Right to


Information Act, 2005 . It is provided that the Central Information

Commission or the State Information Commission, as the ease may


be, at the time of deciding any complaint or appeal shall impose a

444
Section 18 of the Right to Information, Act, 2005.
445
Section 19 of the Right to Information, Act, 2005.
446
Ramabrahmam, I., Implementation Process of Right to Information: Issues and Trends, The
Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp. 504-510.

. 341
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, in case

the Commission is of the opinion that the Central Public Information


Officer or the State Public Information Officer, as the case may be447:

(a) has without any reasonable cause, refused to receive an


application for information; or
(b) has not furnished information within the time specified.448
(c) has malafidely denied the request for information; or
(d) has knowingly given incorrect, incomplete or misleading
information; or
(e) has destroyed information which was the subject of the request;
or
(f) has obstructed in any manner in furnishing the information.
In the case of Mr. Vinod Kumar v. The Executive Engineer (Bldg.)
NGZ & APIO, Office of the Dy. Commissioner Municipal Corporation of
Delhi449, The Central Information Commission held that as per the
provisions of Section 20 (1), of the Act, the Commission finds this a fit
case for levying penalty on deemed erring PIO where the delay in
providing the correct information was over 100 days, the Commission
has passed an order of penalizing deemed PIO for Rs. 25000/ which
is the maximum penalty under the Act. This amount is directed to
recover from the salary of deemed PIO.
5.20.1 Power of the Central Information Commission or the State
Information Commission to recommend disciplinary action
against Public Information Officer in certain cases
The Central Information Commission or the State Information
Commission, at the time of deciding any complaint or appeal shall
recommend for disciplinary action against the Central Public

447
Section-20 of the Right to Information Act, 2005.
448
Seaction- 7(i) of the Right to Information Act, 2005
449
CIC/SG /A /2008 /00097 /1876.

. 342
Information Officer or the State Public Information Officer450, as the
case may be, under the service rules applicable to him in case the
Commission is of the opinion that the Central Public Information
Officer or the State Public Information Officer,
(a) has, without any reasonable cause and persistently, failed to
receive an application for information; or
(b) has not furnished information within the time specified under
subsection (1) of section 7; or
(c) has malafidely denied the request for information; or
(d) has knowingly given incorrect, incomplete or misleading
information; or
(e) has destroyed information which was the subject of the request;
or
(f) has obstructed in any manner in furnishing the information.
The Bombay High Court in Johnson B Fernandes v. Goa State
Information Commission,451 held that the information sought was not
supplied within 30 days. It was supplied in reply to appeal when the
matter was taken up by party into a appeal. In such cases imposition
of penality is proper.
Although the Act bestows power upon the CIC and SIC to

impose penalties452 of Rs. 250 up to Rs. 25000 on erring officials


indulging in unreasonable non disclosure of information. But it does

not have such a deterrent effect on the power wielding officials.


However, recommendation for disciplinary action is seemingly effective

but even it is not sufficient for the strict implementations of the RTI
Act, 2005. Lack of such teeth which may bite the officials through the

rigours of law and enable the establishment of an accountable and


transparent regime.453

450
Section-20(2) of the Right to Information Act, 2005.
451
AIR 2012 Bom 56.
452
Section.-20 of RTI Act, 2005.
453
V.R., Krishna Iyer, Freedom of Information 816(1990).

. 343
5.20.2 Procedure to be adopted before imposition of penalty
The proviso to sub-section (1) of section 20 of the Act lays down
that before imposing penalty on the Central Information Officer or the
State Information Officer, the following procedure shall be observed by
the Central Information Commission or the State Information
Commission:-
(i) 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;
(ii) the burden of proving that he acted reasonably and diligently
shall be on the Central Public Information Officer or the State Public
Information Officer.
The above procedure has been given under the Act.454 The purpose of
proviso is that when a proviso is added to a section in an enactment,
it qualifies or creates an exception to the general rule laid down in the
section. Generally a proviso is not interpreted as stating a general
rule. The main function of a proviso is that it qualifies the general rule
of the main enactment by providing an exception.455
5.20.3 Whether order passed imposing penalty is appealable
Under the Right to Information Act there is no appeal against
the order of Central Information Commission or the State Information
Commission imposing penalty on the Central Information Officer or
the State Information Officer. However, the most important aspect of
the penalty clause is that it shall be incumbent upon the Central
Information Commission or the State Information Commission, as the
case may be, to give a reasonable opportunity to the Central Public
Information Officer or the State Public Information Officer, of being
heard before any penalty is imposed upon him456 under the Act. Thus,
if the penalty is imposed without giving an opportunity of being heard,
the order imposing the penalty shall be liable to be set aside because
the Central Public Information Officer or the State Public Information
Officer, can prove that he acted reasonably and diligently in passing

454
Section-20 of the Right to Information Act, 2005.
455
Ibid.
456
Section-20(1) of the Right to Information Act, 2005.

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the order. However, once the penalty has been imposed, there is no
provision providing for an appeal, revision or review and thus only a
writ petition under Article 226 of the Constitution of India would be
maintainable to quash the order of imposing the penalty in view of the
fact that no further appeal against penalty imposed is provided under
the Act.
The law has been finally settled by the Supreme Court of India
in L. Chandra Kumar's case457 that all decisions of Tribunals, whether
created pursuant to Article 323A or 323B of the Constitution, will be
subject to the High Court's writ jurisdiction under Article 226 or 227
before a Division Bench of the High Court within whose territorial
jurisdiction the particular Tribunal falls.
5.21 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.458
5.22 ACT TO HAVE OVERRIDING EFFECT
The provisions of the Right to Information Act shall have
overriding effect459 notwithstanding anything inconsistent therewith
contained in;
(a) the Official Secrets Act, 1923 (19 of 193);
(b) any other law for the time being in force; or
(c) in any instrument having effect by virtue of any law other than this
Act.
5.23 BAR OF JURISDICTION OF COURTS
No court shall entertain any suit, pp1ication 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.460

457
L.Chandra Kumar v. Union of India, AIR 1997 SC 1125.
458
Section-21 of the Right to Information Act, 2005.
459
Section-22 of the Right to Information Act, 2005.
460
Section-24 of the Right to Information Act, 2005.

. 345
The Kerala High Court in Eldhose v. Yacob,461 held that the
proceedings under the Right to Information Act, 2005 cannot be
subject matter of scrutiny before civil court. The Legislature intends
that disputes under the Act, should not be tried by ordinary civil
courts.462
5.24 ACT NOT TO APPLY TO CERTAIN ORGANIZATIONS
Under section 24 of the Act it is provided that nothing contained
in this Act shall apply to the intelligence and security organizations
specified in the Second Schedule to the Act, being organisations
established by the Central Government or my information furnished
by such organizations to that Government subject to the condition
that the information pertaining to the allegations of corruption and
human rights violations shall not be excluded under this sub-section.
Similar provision has been made in sub-section (4) of section 24 of the
Act in respect of such intelligence and security organization, being
organizations established by the State Government, as that
Government may, horn time to time, by notification in the Official
Gazette, specify. However it must be remembered that in case the
information sought for is in respect of Allegations of violation of
human rights463, the information shall only be provided after the
approval of the Central Information Commission, and notwithstanding
anything contained in section 7 of the Act, such information shall be
provided within forty-five days from the date of the receipt of request.
In P.M. Singh Deo v. CPIO, Central Bureau of Investigation,464 In
this case the appellant is claiming that the information regarding the
disposal of his representation has a human right angle atleast human
right of his wife, the CBI contends initiation of criminal proceedings
does not amount to violation of human rights and the requested
document is exempted under the Act.
In the Second Schedule to the Act, the following intelligence and

461
AIR 2009 Ker 104.
462
Magiti Sasamal Vs. Pandab Bissoi, AIR 1962 SC 547.
463
Section-24(4) of the Right to Information Act, 2005.
464
CIC/SM/A/2013/000220.

. 346
security organizations established by the Central Government are
exempted from the operation of the Act:
(1) Intelligence Bureau.
(2) Research and Analysis Wing of the Cabinet Secretariat.
(3) Directorate of Revenue Intelligence.
(4) Central Economic Intelligence Bureau.
(5) Directorate of Enforcement.
(6) Narcotics Control Bureau.
(7) Aviation Research Centre.
(8) Special Frontier Force.
(9) Border Security Force.
(10) Central Reserve Police Force.
(11) Indo-Tibetan Border Police.
(12) Central Industrial Security Force.
(13) National Security Guards.
(14) Assam Rifles.
(15) Sashtra Seema Bal.465
(16) Special Branch (CID), Andaman and Nicobar.
(17) The Crime Branch-CID - CB, Dadra and Nagar Haveli.
(18) Special Branch, Lakshadweep Police.
(19) Special Protection Group.466
(20) Defence Research and Development Organisation.
(21) Border Road Development Board.
(22) Financial Intelligence Unit, India.
However power has been conferred upon the Central
Government to amend Second Schedule to include or omit any
intelligence or security organization which can be done by notification
in the Official Gazette.
The Delhi High Court in Brig (Retd) Ujjal Dasgupta v. Cabinet
465
Subs. by Ministry of Personnel, Publi Grievances and Pensions Notification No.F.
No.34012(s)/2005-Estt. (B), dated 28th September, 2005.
466
Ins. by Ministry of Personnel, Public Grievances and Pensions Notification
No.F.No.34012(s)/2005-Estt. (B), dated 28th September, 2005.

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Secretariat,467 held that tenability of allegations pertaining to human
right violations cannot be considered in situations where criminal trial
against petitioner is pending at stage of framing of charges. So the
proviso to section section 24(1) of Right to Information Act, 2005 did
not attracted.
The Madras High Court in S. Vijayalakshmi v. Union of India,468
held that information pertaining to allegation of corruption and
human right violation are not excluded under subsection(1) of section
24. Therefore the exemption by virtue of inclusion of CBI in second
schedule to the Act is not wholesale or blanket exemption.
In the similar fashion in Chennai v. R. Karthikeyan,469 the
Madras High Court held that the State Government can notify
exempting intelligence and security organisations, but it cannot notify
information pertaining to allegation of corruption and human rights
violation even in case of intelligence and security organisations. The
exemption depends on nature of information required.
Lawyers Collective, a non government organization that seeks to
foster legal reforms in areas of womens rights, protection of civil
liberties, equality and non-discrimination, access to medicines, health
and drug policy through legal, research and advocacy interventions.470
The Organisation made certain submissions which are based on the
experience of using the Right to Information Act, 2005 to seek
information related to Indias policy on illicit drugs, the extent and
pattern of crimes involving narcotic drugs and psychotropic
substances as well as the enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985.471 Information inquests to the
Narcotics Control Bureau (NCB), the agency responsible for co-

467
AIR 2011(NOC) 50 (Del).
468
AIR 2011 Mad 275.
469
AIR 2012 Mad 84.
470
Sivakumar, Sowmya and Eric Kerbart, Changing Discourse, Seminar, Vol. 551, July 2005, pp.
50-54.
471
Sinha, Ashish, Govt. to Carry out Evaluation of RTI Act, The Times of India, 27 October 2007,
p. 08.

. 348
ordination of anti-narcotics measures were declined, as the NCB is
exempt from the purview of RTI Act under the Second Schedule to
Section 24(1) of the said Act.
The Lawyers Collective recommends the removal of the NCB
from the list of organizations exempt from the RTI Act for the following
reasons:
1. Role and function of the NCB is not limited to intelligence and
security.
2. Citizens have a right to information on narcotics policy and crime.
3. Data related to narcotic drugs and psychotropic substances is
shared with international agencies,472 but denied to Indian citizens, If
information related to narcotic drugs and psychotropic substances is
made available to international organizations, it cannot be termed
sensitive or a matter of national security. It is odd that the NCB
provides information to agencies outside the country but withholds it
from Indian citizens.
4. Other agencies473 dealing with narcotic drugs and psychotropic
substances are amenable to RTI, why not NCB.
5. NCB may take recourse to the exemption clause under Section 8 in
case of sensitive information.
There is no justification to have a blanket exemption for the NCB
under the second schedule to Section 24 RTI Act, which as noted

472
Article 18 of the 1961 Single Convention on Narcotics requires that information in the form of an
annual report is to be furnished by parties to the Secretary-General. Countries are also required to
submit such particulars as the Commission shall determine concerning cases of illicit traffic,
including particulars of each case of illicit traffic discovered which may be of importance. Article
16 of the Convention on Psychotropic Substances, 1971 stipulates that an annual report regarding
the working of the Convention in their territories be submitted, including information on important
changes, significant developments in the abuse of and the illicit traffic in psychotropic substances.
A report is also furnished to the Secretary General in respect of any case of illicit traffic in
psychotropic substances or seizure from such illicit traffic. Article 20 of the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 requires
the Parties to furnish through the Secretary-General, information to the Commission on the
working of this Convention.
473
Such as many other departments of the Central government such as the Central Bureau of
Narcotics, Excise, Customs, and Office of the Drug Controller General, Central Drugs Standard
Control Organization are responsible for enforcing the NDPS Act. Similarly, at the State level, the
State Police, State Excise and State Drugs Control Department are entrusted with anti-narcotics
operations. All these agencies are amenable to the RTI Act, notwithstanding the similarity in some
of the functions that they perform with those of the NCB. Excluding the NCB from the RTI Act
appears irrational and arbitrary.

. 349
above, performs tasks that are beyond the pale of intelligence and
security.474
In Peoples Union for Civil Liberties v. Union of India,475 the
Supreme Court observed that the right of information is a
fundamental right as enshrined in Article 19(1) (a) of the Constitution
of India. By enacting the RTI Act, Parliament intended to promote a
progressive, participatory and meaningful democracy with an
informed and empowered citizenry. Exemption of the NCB from the
purview of the RTI Act violates constitutional and legislative principles
underpinning the right to information. Besides, it is irrational and
arbitrary, as noted above. We urge the Department of Personnel and
Training to remove the NCB from the second schedule to Section 24,
RTI Act and promote openness and transparency in the countrys
nodal anti-narcotics agency.476
The major difficulty which is required to be solved at earliest is
that the rule making power is conferred on the Central Government
and State Government simultaneously and independently. The RTI Act
is a central legislation and it has to be enforced uniformly throughout
India. When such is the case, the rule making authority granted to the
State Governments should have been made subject to the rules which
may be made by the Centre and any rule when made by the State if it
conflicts with the Central rule shall have a prior approval of the
Central government.477 The dichotomy created in the field of rule
making power shall be removed by making the power of the State
Government to make rules subject to Central approval either prior to
making the rule or thereafter seeking ratification. Glaring example of
the same possibility has been the recent order of the Uttar Pradesh
Government including some important public authorities in the

474
Singh, Shekhar, Administrative Reforms Commission, and Right to Information, Economic and
Political Weekly, Vol. 41 No. 39,September 2006, pp.110-113.
475
(2004) 2 SCC 476.
476
Sudhakar, P.J., Right to Information: Constitutional Perspectives and Judicial Response, Andhra
Law Times, Vol. 2, Part 7, April 2008, pp.21-30.
477
Kaleemullah, Mohammad, Right to Information Act, 2005 - Objectives, Landmarks and
Emerging Dimensions, Civil and Military Law Journal, Vol. 45, No. 3, July-September 2009, pp.
131-135.

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Second Schedule by using the power granted under s. 24 (2) of the
Act.478
5.25 MONITORING AND REPORTING
The Right to Information Act has provided right to information
to its citizen but this right is meaningless unless there is monitoring
and reporting regarding the implementation of this provision of law
and thus the Act provides for monitoring and reporting479 regarding
implementation of the provisions of this Act. The monitoring and
reporting regarding implementation of the Act is equally important
because this Act can be an important tool to check any colourable
exercise of discretion by public functions in the areas of recruitment,
tenders, procurement, grant of licences etc It is expected that the use
of this Act by the media and whistleblowers may expose any
colourable exercise of such executive discretion But for this purpose
mass awareness programmes particularly by involving local youth
should be undertaken by social organisation NGOs explaining
potential of this Act.480
In Subash Chander Aggarwal v. Ministry of Home Affairs,481 the
Central Information Commission u/s 25(5) of RTI Act held that all
public authorities shall direct their officers to accept demand drafts or
banker cheques or IPO's payable to their account officers of the public
authority. All public authorities are required to direct their officers to
accept IPO's of the denomination of higher values. Department of
Posts has issued a detailed circular for stream lining the procedure of
handling applications. The display of sign board that is RTI
applications are accepted here should be made on the notice board at
the prominent place in the post office and best solution for fee related
problems to be issue RTI stamps of denomination of Rs.10/- by the
department of post.482

478
Jain L. C. (ed.), Decentralisation and Local Governance, Orient Longman, New Delhi, 2005.
479
Section-25 of the Right to Information Act, 2005.
480
Subrahmanyam, A. and M. Sarojanamma, Right to Information: A Right Step for a Good
Governance, Andhra Weekly Reporter, Vol. 3, Part 14, 1999, pp. 30-34.
481
CIC/BS/C/2013/000149/LS.
482
Ibid.

. 351
5.26 APPROPRIATE GOVERNMENT TO PREPARE, DEVELOP AND
ORGANIZE 'PROGRAMMES SUBJECT TO AVAILABILITY OF
FINANCIAL AND OTHER RESOURCES
The Right to Information Act 2005, lays down that the
appropriate Government i.e. Central or the State Government may, to
the extent of availability of financial and other resources483:
(a) develop and organise 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;484
(b) encourage public authorities to participate in the development and
organisation of programmes referred to in (a) above and to undertake
such programmes themselves;485
(c) promote timely and effective dissemination of accurate information
by public authorities about their activities; and
(d) the 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.
The Appropriate Government and Competent Authority may
make rules486 to carry out the provisions of the Act. Such rules may
provide for the cost of medium or print cost of the materials to be
disseminated under sub section(4) of section 4 or the fee payable
under sub section (1) of section 6 and 7.
The High Court in Amar Chand Bawaria v. Union of India,487 has
held that the resolution passed by cantonment board prescribing fee
and cost at a higher side in contravention of Right to Information (fees
and cost) rules is illegal within the meaning of section 27 and section
28 of the Right to Information Act read with section 2(c).

483
Section -26 of the Right to Information Act, 2005.
484
Section -26 (1)(a) of the Right to Information Act, 2005.
485
Section -26 (1)(b) of the Right to Information Act, 2005.
486
Section 27 and 28 of the Right to Information Act, 2005.
487
(2009) 73 AIC 409 (MP).

. 352
The rules made by Central Government and state government
shall be laid before parliament and state legislature as soon as
possible. According to this section every rule made by central
government under this Act was laid before both houses of parliament
for total period of 30 days which comprised in one session or two or
more successive sessions.488
Under the Act, the Central Government is empowered to make
the provisions as necessary for removal of the difficulty in relation to
giving effect to the provisions of the Act.489 But such order must be
published in the official gazette. Every order made under this section
shall be laid before parliament as soon as possible.
The RTI Act, 2005 basically has two parts- (a) substantive law,
and (b) procedural law. Section 3 coupled with some other provisions
like ss. 8, 9, 18, 19 and 20 of the Act deal with substantive law while
s.6 along with some other provisions like s.7 of the Act deal with
procedural law. Thus the Act is a code in itself.490 These are some of
the main features which make this legislation a positive step towards
the realization of tenets that have been conceived by the founding
fathers of the Constitution.
The Right to Information Act, 2005 was enacted by the
Government for setting out a framework for effectuating the right to
information for citizens and 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 Central
Information Commission in one of its decision Subhash Chander
Aggarwal & Anil Bairwal v. National Political Parties of India,491 dated
03.06.2013492 has held that the political parties namely AICC/INC,
BJP, CPI (M), CPI, NCP and BSP are public authorities under section
2(h) of the said Act. The Government considers that the CIC has made

488
Section 29 of the Right to Information Act, 2005.
489
Section 30 of the Right to Information Act, 2005.
490
Dr. Niraj Kumar, Treatise on Right to Information Act, 2005, 530 (First edition, 2007).
491
CIC/SM/C/2011/001386.
492
Ibid.

. 353
a liberal interpretation of section 2(h) of the said Act in its decision.
The political parties are neither established nor constituted by or
under the Constitution or by any other law made by Parliament.
Rather, they are registered or recognised under the Representation of
the People Act, 1951 and the rules/orders made or issued
thereunder. It has also been observed that there are already
provisions in the Representation of the People Act, 1951493 as well as
in the Income-tax Act, 1961 which deals with the transparency in the
financial aspects of political parties and their candidates. Declaring a
political party as public authority under the RTI Act would hamper its
smooth internal working, which is not the objective of the said Act and
was not envisaged by Parliament under the RTI Act. Further, the
political rivals may misuse the provisions of RTI Act, thereby adversely
affecting the functioning of the political parties. In view of the above
mentioned factors, the Government has proposed to amend the RTI
Act to keep the political parties out of the purview of the RTI Act, with
a view to remove the adverse effects of the said decision of the CIC. It
is also necessary to give retrospective effect to the amendment with
effect from the date of the said decision of CIC. The Amending Act494
may be called the Right to Information (Amendment) Act, 2013. It
shall be deemed to have come into force on the 3rd day of June, 2013.
The amendment to the section 2 of the Act (i.e definition of public
authority) clarifies the expression authority or body or institution of
self government established or constituted by any law made by
parliament shall not include any association or body of individuals
registered or recognized as political party under the Representation of
People Act, 1951. The Bill also purport to insert a new section 31 in
the RTI Act, 2005 which says that the amendment shall apply
notwithstanding anything contained in any judgment, decree or order
of any court or commission,, and will prevail over any other law
for the time being in force.

493
Section 33A, 33B&38 of Representation of the People Act, 1951.
494
Bill No.12 of 2013.

. 354
Defending the proposed amendments in the Act the law minister

argued that no political party could function if the CIC order was
implemented. He said that the CIC order will strike at the root of the

political system as the citizens will seek all soughts of detail from
political parties including their process of consultation and decision

making.495 He added that nowhere in the world such a system has


been in place .496 He said the political parties are unanimous

against the CIC order. Parties will not be able to function if this is
allowed.497

Noted activist Aruna Roy498 and various RTI activists has

condemned the introduction of the RTI amendment bill in the


parliament.499

5.27 HURDLES IN THE EFFECTIVE IMPLEMENTATION OF THE


ACT

The laudatory achievements of the RTI Act, however, is only one


side of the coin and the critics of this Act even say that the Act is

somewhat ill- framed and also over-exhaustive in some sense. They


also go on to say that it is over-ambitious and the practical difficulties

in the implementation of various clauses have not been considered.500


There seems to be a great negative bias against the government

functionaries and public authorities in the formulation of the Act,

generating a feeling that they are the real culprits in the scheme of
democratic governance. The Act may, at the maximum, serve the

needs of the elite section and that too in a limited way because of lack

495
Verma, Sanjeev, RTI Info Shows Ministers Whims and Fancies, The Hindustan Times, 21
November 2011, p.06.
496
Vahini, Versha, Right to Information Act: A Critical Overview, M.D.U. Law Journal, Vol. 11,
No. 1, 2006, pp. 181-190.
497
Times of India, August 10.,2013
498
Noted social activist who founded and heads mazdoor kisan shakti sangathan. She is best known as
prominent leader of right to information movement.
499
Hindustan Times, August 12.,2013.
500
Executive Summary, Understanding the Key Issues and Constraints in Implementing the RTI Act,
04(2009).

. 355
of infrastructure, indifference of the power-holders and absence of

transparency in administration.501
These issues and some other challenges for the effective

implementation of the Right to Information Act, 2005 can be divided


in two broad parts:

1) Obstacles in Seeking Information


The Right to information is definitely a very powerful tool for
exercising the fundamental right to freedom of speech and expression
but mere conferment of the right is not sufficient; there is a need to do
away with the various impediments that come up in the way of
accessing information.502 Many information seekers are either ill-
informed of their rights or are often disheartened due to the callous,
unfriendly and often condescending attitude of the public authorities
concerned. Poor quality of information and lack of a uniform official
structure across departments in different States adds to the woes of
the applicants for information.503
(a) Low Public Awareness
The mere information cannot get transformed into wisdom
unless certain intermediate processes have been gone through.
Despite lots of publicity through various modes, the public awareness
about significance of this Act, the modus operandi of getting the
information, and the knowledge of names of PIOs/APIOs etc. is quite
low. The efforts made by the public authorities and governments have
not been adequate in generating mass awareness of the RTI Act.504
Educating the masses is absolutely essential in this regard. Even after
more than eight years, awareness levels are as low as twenty six

501
Asok Kumar Mukhopadhyay, The RTI ACT: A Critical Assessment, The Indian Journal of
Public Administration, Vol. 55, No. 3, July-September 2009, pp. 434-454, at p. 441.
502
Vikrant Narayan Vasudeva, Right to Information: Paradigm Shift from Representative to
Participatory Government AIR 2009 (Journal) pp. 113-119 at 117
503
Aravind Menon, Successful Right to Information-Essential Conditions 2007 (4) KLT (Journal)
at 6
504
Gandham, Suresh Kumar, The Right to Information in India-A study Supreme Court Journal
2009, p. 25.

. 356
percent in men and twelve percent in women.505 Majority of the
applicants who seek information lack awareness of the provisions of
the RTI Act. For instance, many applicants approach the Information
Commission directly for the seeking information without making any
reference to the concerned PIO. In cases of refusal by the concerned
PIO, the applicants approach the Information Commission without
first exhausting the Appeal before the First Appellate Authority in the
department or public authority concerned. Similarly, a number of
applicants are not aware of the proper procedure for obtaining
information under the Act.506
(b) Constraints Faced in Filing Applications and Inspection of
Records
Several problems/hurdles also come in the way of filing
applications and inspection of records. The Appropriate Governments
have not taken adequate steps to make the RTI process citizen-
friendly. Most of the times the Citizens are not aware of the place
where the application has to be filed or the authority (Appellate
Authority or Information Commission) to whom they can approach in
case their application is not entertained, rejected or inadequately
replied. The applicants are also not aware of the clause of inspection
of records which can benefit them immensely and can also be cost
effective and more meaningful.507
(c) Lack of Uniformity in Various Public Information Officer of
Similar Departments in Different States
It has been generally seen that there is no uniformity in the
designation of various PIO/APIOs of similar departments in different
states. The PIO/APIOs are left to be designated by the various public
authorities on their own in different states, leaving confusion among
the applicants needing information from various states. For instance,
the PIO/APIO of Panchayati Raj Institutions might be different in

505
Executive Summary, Understanding the Key Issues and Constraints in Implementing the RTI Act,
PricewaterhouseCoopers, June 2009, p. 04.
506
The Times of India, August 20, 2006 & the Hindustan Times, July 21, 2006
507
Ambrish Saxena, RTI & FOP 7 (2004).

. 357
different states. Uniformity in designation of officers is essential to
remove unnecessary confusion.
(d) Poor Quality of Information Provided
The Right to Information Act, 2005 provides for a rudimentary
rule on record management, it provides that all public bodies must
maintain their records duly catalogued and indexed in a manner and
the form which facilitates the right to information.508 In addition to
this the RTI law includes a developed regime of sanctions, on erring
officers who without reasonable cause, refused to accept a request,
failed to provide information within the specified timelines, denied a
request in bad faith, knowingly given incorrect, incomplete or
misleading information, knowingly destroyed information which was
the subject of a request, or obstructed in any manner access to
information, it shall impose a penalty of Rs 250/day until the
information has been provided, up to a maximum of Rs. 25,000 and
for persistent offenders, the Commission shall recommend disciplinary
action.509
In spite of all these provisions the quality of information
provided to the applicants is very poor. It is either incomplete or
inaccurate. More than 75 per cent of the citizens are dissatisfied with
the quality of information being provided. Over 90 percent people in
the States of Andhra Pradesh and Uttar Pradesh said that incomplete
information was provided to them.510 It is also a common criticism
that to meet the thirty day deadline, sometimes incomplete
information is handed down to the applicant.
(e) Attitude of Public Information Officers
The Right to Information Act, 2005 cast an obligation on
Information Officers to render reasonable assistance to applicants.511
These Information officers are also required to provide assistance to

508
Section 4(1)(a) of the Right to Information, Act, 2005.
509
Section 20 of the Right to Information, Act, 2005.
510
Final Report, Understanding the Key Issues and Constraints in implementing the RTI Act
44(2009).
511
Section 5(3) of the Right to Information, Act, 2005.

. 358
the sensorily disabled to enable them to access information,
including by inspection.512 No reasons are required to be given for a
request and an innovative supporting rule provides that no personal
details may be demanded other than those required for purposes of
contacting the applicant. But in reality the information seekers often
complain of the unfriendly and hostile attitude of the Officers. A
number of applicants feel humiliated at the hands of the Officers.
They say that one has to be quite stubborn and indifferent to this
condescending attitude of the Officers to get information out of them.
It is felt that such a behavior dissuades the Citizens from approaching
the authorities. There have been several reports that most PIOs,
especially at the District level are not co-operative and they sometimes
force the applicants to withdraw their applications.513 PIOs also tend
to give inadequate information and hide crucial facts at the instance of
their superiors. They use ambiguous and ambivalent language in their
responses. Consequently, in most cases, they follow the letter of the
Act but violate its spirit in a brazen manner.514
(f) Difficulty in Locating Officers
The RTI Act places an obligation on the different levels of
government to produce and update as necessary an accessible guide
among other things, the objects of the Law, the contact details of every
information officer and a description of the manner and form in which
a request may be made, the assistance available from information
officers.515 Inspite of all these efforts Applicants at times, have
difficulty in locating Officers because many public authorities,
particularly at the District and Block level, do not display names and
details of PIOs on their notice boards. Also the policy of frequent
transfer of Officers makes it difficult for the applicants to locate the
newly designated Officer each time they visit the authority concerned.

512
Section 7(4)-(6) of the Right to Information, Act, 2005
513
Rajvir S. Dhaka, Empowering Citizens: How Best to Make RTI a Success, The Tribune, 29 Nov.
2009, p. 13.
514
Ranbir Singh, RTI Ineffective in Haryana, The Tribune, Chandigarh, 01 July 2009, p.09.
515
Section 25 of the Right to Information, Act, 2005.

. 359
(g) Fee Payment
Access may be made conditional upon the payment of a fee,
including for information provided in electronic format, provided that
the fee shall be reasonable. No fee may be levied on those below the
poverty line. A progressive rule which should help to ensure timely
provision of information is that no fee may be charged where a public
body fails to respect the established timelines. The Government may
make regulations concerning the fee to be charged.516 Such
regulations have been made at the Central and all State levels, as well
as by some Courts. The Central rules provide for an application fee for
requests Rs. 10 and Rs. 2 for each page of A4 or letter size
photocopying and Rs. 50 for a diskette. The first hour of inspection
shall be free and a fee of Rs. 5 shall be charged for each subsequent
hour.
Even after such rules the fee charged for furnishing information
and the manner of payment is not uniform, There is also confusion
about the head of accounts to which the application and other fees are
to be credited.
(h) Expensive Appeal Process
The RTI Law, prescribes that anyone including a third party,
who either does not receive a decision within the specified time frame
or who is aggrieved by a decision under the Law may, within 30 days,
lodge an internal appeal with an officer who is senior in rank to the
responsible information officer.517
A second appeal may be made within 90 days, or such further
period as may be deemed appropriate, to the relevant Information
Commission. The first appeal must be decided within 30 days, or an
extended period of up to 45 days, with reasons for any extension to be
given in writing. The onus of justifying any refusal to provide

516
Section 27(2)(b) of the Right to Information, Act, 2005.
517
Section 18 of the Right to Information, Act, 2005.

. 360
information shall be on the information officer who denied the
request.518
But still people in rural areas find the appeal process expensive
as many a times there is just one First Appellate Authority for the
whole department and that too is located at the capital cities. As a
result they find going to these places difficult as it involves
expenditure both on terms of resources and time.
(i) No Protection to Whistleblower
The RTI Act, 2005 does not provide any protection to Whistle-
Blowers. In this context, the law Commission has given a Report on
the whistle-blowers519 which has not been translated into law by
Parliament. A very serious problem is that there is no protection
available for those trying to counter corruption by taking on
influential officials and politicians. The murder of Gujarats RTI
activist, Amit Jethwa, clearly shows that seeking information against
the corrupt can also at times, cost one his life. Jethwa had filed
several RTI cases against the illegal mining lobby in the Gir lion
sanctuary.520
The proper thing for any good government will be to enact the
Whistle- blower Law on the basis of the draft Bill provided by the law
commission521 or should amend the RTI Act, 2005 providing
protection to whistle-blower.
2). Problems In Providing Information
There are number of hurdles encountered in furnishing
information just as the information seekers have to put up with
problems in accessing infSormation. There have been various
apprehensions like the misuse of the Act, blackmailing of officers and
burden on the government exchequer. The RTI Act prescribes no
qualifications and reasons for asking information. Such a broad

518
Section 19 of the Right to Information, Act, 2005.
519
Report No. 179 of 2001 called Public Interest Disclosure (Protection) Act.
520
Shreyas Navare, Whistling in the Dark, The Hindustan Times, July 24 2010, p. 10.
521
Justice Y.K. Sabharwal, Right to information and Good Governance Nayadeep 2006 Oct.7(4)
pp. 17-30 at 26.

. 361
window is not available even in the developed countries, operating
such laws for decades.522 There is excessive government expenditure
on the disposal of RTI applications. According to one estimate, the
government spends about Rs. 10,000 in the disposal of one case. The
person seeking information should have some 'standing' or 'locus' to
seek information.523 Similarly, the clause of 'free information' to below
poverty line (BPL) category applicants is being misused because a
non-BPL person may route his application in the name of a BPL
person and obtain such information free of cost which may cost
hundreds of rupees to the PIO.524 This trend is witnessed in various
states. As a matter of fact, very recently, there was a report in the
newspaper525 that one Ramesh Kumar Yadav has sought records of
public distribution at ration shops of four Districts of the State of
Haryana for the last five years. However, the Food and Supplies
Department informed him that it would be difficult to furnish such
voluminous information as it would require photocopying nearly 3.5
lakh documents containing the details. The information seeker was
asked to visit the office and inspect the records but he insisted that
information cannot be denied to him just because it requires massive
photocopying. The RTI Act only confers rights but does not prescribe
any duties. Certain duties and responsibilities should also be
incorporated in the Act, as in Article 19(3) of the International
Covenant on Civil and Political Rights.
(a) Thirty Day Deadline
The effective implementation of the RTI Act 2005, ensures that
the information has to be provided within the time limit of 30 days.526
The Indian law is probably, the only disclosure law in the world which

522
Abhishek Jain, Right to information 351(2005).
523
Shailesh Gandhi, Current Assessment of RTI, Report on and Recommendations of the Third
Annual Convention, Central Information Commission, New Delhi, 3-4 November 2008, p. 08
524
Fali Nariman, RTI and Protection of Individual Privacy., Report on and Recommendations of the
Third Annual Convention, Central InformationCommission, New Delhi, 3-4 November
2008,p.45..
525
Deepender Deswal, Food and Supplies Department in a Bind, Says Difficult to Send Applicant
Photocopies of 3.5L Documents, The Times Of India, 21 September 2011, p. 03.
526
Section 7 of the Right to Information, Act, 2005.

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has a penalty provision on defaulting Public Information Officers.527 At
times, the PIOs are challenged to provide the information within the
stipulated time due to various reasons. The time limit of 30 days to
furnish information is sometimes impractical because of certain
genuine administrative reasons like the PIO or the dealing staff being
on leave, public holidays, emergent administrative assignments like
elections or disaster management, etc. The condition of 30 days
becomes all the more difficult when record as old as 20 years or so, as
allowed under the Act, is required to be given to the applicant and also
where the information required pertains to multiple branches, heads
or years.528
(b) Lack of Infrastructure
The implementation of RTI requires the PIOs to provide
photocopies, soft copies etc. to the applicants. While these facilities
may be available at the District level, they may not be there at
Panchayat or Village level especially the Schools/other Offices in
remote or hilly areas. The PIOs maintain that the lack of
infrastructure hampers the RTI implementation at the public
authority level.529 Although the PIOs can be penalized under the Act,
yet many of them are not provided the adequate infrastructure such
as a separate telephone, photocopier, fax etc. etc.
(c) Misuse of Right to Information
The RTI requests, at times, are not simply to satisfy one's doubt
but also to derive vicarious pleasures. Public interest which the Act
intends to secure, is missing in many RTI applications. There have
been instances where applicants seek policy related information and
many a times the applicants have vested interests. At times the Act is
used by people to harass their colleagues or blackmail the authorities.
Moreover, there are numerous instances of applicants demanding

527
Section 20 of the Right to Information, Act, 2005
528
PC Majmudar, Right to Information Laws and Practice 234 (2005).
529
PM Bakshi, A Handbook on Right to Information Law 123 (2005).

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irrelevant or frivolous information. Such a selfish and unintelligent
use of the Act will defeat the high objectives of the Act. It has also
been observed that the Act is frequently being used by government
servants, mostly disgruntled, under disciplinary proceedings to settle
their service matters. It is also being misused by people interested in
gathering evidence in their litigation cases.530 There is a likelihood
that the requester may not turn up to pay the additional fees once the
information is ready. It is also unfortunate that the language being
used by requestors is at times, intemperate and impolite, to say the
least.531

(d) Primitive Record Management


The good record management ensures a smooth and prompt
flow of information. What is lacking in our system is the scientific
management of records. Apart from some sporadic initiatives, the
maintenance and retrieval systems for official records are primitive in
our country. In some offices indexing of records is conspicuous by its
absence. Annual statements and records are not maintained. Online
maintenance of records and its updating is an exception rather than
the rule. As a matter of fact, in thirty eight percent cases, the major
reason for delay in processing RTI applications is due to ineffective
record management.532 As a consequence, whenever any demand for
information is received, the offices concerned expend their energies in
freshly locating and retrieving record for every individual request. The
current record management guidelines at Centre and in most States
are not geared to meet the requirements specified under the RTI
Act.533 For improving this scenario, we need nothing less than total

530
Abhishek Jain and Aarushi Jain, Promoting Right to Information Through EGovernance- A Case
of E-Soochna and other Initiatives in H. P., The Indian Journal of Public Administration, Vol. 55,
No. 1, January- March 2009, pp. 36- 51, at p. 38.
531
Saxena, Prabodh, The Flip Side of RTI Act, The Administrator, Lal Bahadur Shastri National
Academy of Administration, June 2007, Vol. 50, No. 1, pp. 23-25, at p. 23.
532
Final Report, Pricewaterhouse Coopers, 2009.
533
Implementation of Right to Information Act, 2005, Report of the National Sub-Committee of
Central Information Commission, New Delhi, July 2008, p. 18.

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administrative reform, especially the utilisation of information
technology.
(e) Inadequate Training of Officers
An in-depth understanding of the RTI Act is a basic
requirement for discharging duties effectively. Lack of refresher
training and low level of awareness is prevalent among the PIOs as
well as the Appellate Authorities. As a matter of fact, everybody in
State Government Offices including the clerical staff needs to be
oriented and trained about RTI because there is a need to develop a
culture throughout Government that is oriented towards transparency
in governance and the proper implementation of the RTI Act. Also the
system of transfers in Government departments means that persons
who are not PIOs or APIOs at a particular point of time may find
themselves subsequently having to perform duties of PIO or APIO
under the RTI Act upon undergoing a transfer, or even otherwise, as
the public authorities may find if expedient to increase the number of
designated PIOs or APIOs.534
(f) Lack of Motivation
The Act provides for imposing penalties on PIOs for failure to
deliver information in time. But there is no incentive for good
performance. Many times, the 'coloured' and one-sided media coverage
to various RTI cases de-motivates the PIOs further. It is thus,
desirable that the PIO be provided an extra incentive commensurate
with the penalty.535
(g) Appointment of Information Commissioners
Whenever the appointment of information commissioners are
going to made, there is an excessive reliance on pliant bureaucrats
and there is virtually no representation of persons with non-civil
service background. The Second Administrative Reforms Commission
has complained against the domination of the IAS lobby in

534
Rakesh Hooja, The RTI Act and Training- Brief Comments on Capacity Building at the State
Level, The Indian Journal of Public Administration, Vol. 55, No. 3, July-September 2009, pp.
413-421, at p. 414.
535
Abhishek Jain, Right to Information 356 (2005).

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information Management. The appointment of former bureaucrats as
Chief Information Commissioners has raised fears that the RTI regime
may become just another means for the bureaucracy to tighten its
reigns over government information. As a matter of fact, the Second
Administrative Reforms Commission has recommended that the
government should ensure that half the number of Information
Commissioners should be drawn from non-civil service backgrounds.
Since the inception of the Act a lot of criticism has been received
regarding the appointment of retired bureaucrats as Information
Commissioners. It is quite surprising that the responsibility of this Act
has placed upon those who have lived in a culture of secrecy
themselves. This creates doubts on the success of the Act itself.536
(h) No Penalties upon Appellate Authorities
While the Information Officer is subject to the disciplinary
jurisdiction of the Commission537, and to penalties for failure to
furnish information within the time limit, no such penalties are
provided for with regard to the Appellate Authorities who are thus,
often quite content to let the first Appeal go by default,
notwithstanding the time limits laid down. Consequently, applicants
can file a second Appeal to the Commission after the expiry of the time
limit laid down for the decision in first Appeal, even if there is no
decision.538
(i) Absence of Contempt Provisions
The Act states that the decision of the Information Commission
shall be binding.539 But this provision is not supported by a Contempt
of Court provision to enforce compliance of its decision by the public
authority. Due to the absence of such a provision there have been
instances of non-compliance of orders passed by the Information
Commission. Power of contempt should be given to the Information

536
J.N. Barowalia, Right to information laws in India, 234(2005).
537
Section 20 of the Right to Information Act, 2005.
538
Section-12(3) of the Right to Information Act, 2005.
539
Section-19(7) of the Right to Information Act, 2005.

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Commissions so as to implement their orders. Specific provisions in
this regard should be present within the Act itself.
5.28 CONCLUSION
The enactment of the RTI Act is indeed a step in the right
direction and shall go a long way in ensuring transparency and
accountability in administration. The need of the hour is to ensure
proper implementation of the Act by eliminating the above mentioned
bottlenecks and stumbling blocks. Right to Information possesses a
great potential of unleashing clean and transparent governance, which
shall ensure social, political as well as economic equity. Effective
operationalisation of the RTI Act requires effective capacity building
both of the information providers as well as of the information
seekers. Above all, the Act can be made effective only through the
active involvement of the citizens. Hence, it is imperative at this
juncture that all efforts be concentrated on the removal of the
obstacles which come in the path of the effective implementation of
this beneficial legislation - a legislation which lays the foundation
upon which the edifice of good governance may be built and
strengthened.

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