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FREEDOM OF INFORMATION

PROJECT SUBMITTED TO

IN FULFILLMENT OF THE INTERNAL COMPONENTS

IN ADMINISTRATIVE LAW

BY

SYLVERSTER RAJ S

(ROLL NO: BA0130068)

UNDER THE GUIDANCE AND SUPERVISION OF

Ms. Deepa Manikam

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TABLE OF CONTENTS

INDEX OF AUTHORITIES..3

INTRODUCTION..4

CHAPTER I: THE BACKGROUND OF THE ACT

1. The Law relating to Privileges...7


2. The Atomic Energy Act, 19628

CHAPTER II: THE SOURCE AND CONSTITUTIONAL SUPPORT TO THE RTI ACT

CHAPTER III: AN ANALYSIS OF THE RTI ACT

1. Basic features of the Act 9


2. Powers and Duties of different authorities under the Act .10
3. Information Commissions 10
4. Exemptions from disclosure of Information11

CHAPTER IV: A COMPARITIVE ANALYSIS OF THE RTI ACT, 2005 AND THE
BRITISH FREEDOM OF INFORMATION ACT, 2000.

1. Duties under the Act ..11


2. Exemptions. 12
3. Process of providing information. ....12
4. Appeals. ...13

CONCLUSION & SUGGESTIONS.13

BIBLIOGRAPHY

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INDEX OF AUTHORITIES

TABLE OF CASES

1. Bennet Coleman v. Union of India AIR 1973 SC 106.


2. Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.
3. PUCL v. Union of India decision, (2003) 4 SCC 399.
4. Regina v. Shyler, [2003] 1 AC 247.
5. Reliance Petrochemicals v. Indian Express Newspapers, A.I.R 1989 S.C 190,
6. S.P. Gupta v. Union of India, AIR 1982 SC 149.
7. Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2
SCC 161.
8. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.
9. Union of India v. Assn for Democratic Reforms, (2002) 5 SCC 294.

TABLE OF STATUTES

1. Right to Information Act, 2005.


2. Official Secrets Act, 1923.
3. Atomic Energy Act, 1962.
4. British Freedom of Information Act, 2000.

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INTRODUCTION:

Access to information and openness are of crucial importance in ensuring the accountability of the
government. Although efficiency in the private sector may be judged in solely economic terms, it
cannot be so simply evaluated in the public sphere of Government. The right to information is
necessary to promote a culture of accountability and to expose corruption and malpractice.
Accessibility of information and release of facts pertaining to finance, proceedings and decisions
of all the social actors whose activities have an impact on the public, is the guarantee that such
actors will be accountable and will fulfill their mandates. Accountability targets mismanagement,
abuse of discretion, corruption and other malpractices that administrative law seeks to check as
well.

We have not till recently had any right to information legislation such as exists in many countries.
As far as administrative law is concerned, the most prominent reasons for a right to information
Act are that firstly, and most fundamentally access to information concerning governmental
decision making is central to the idea of a democratic society1. Secondly, individual citizens should
be able to know the information that is held about them to ensure its correctness and the uses to
which it is put. Thirdly, public disclosure of information will improve a public authoritys decision
making because it will be easier to reveal the impact of interest groups on the public authority2.
The effectiveness of such legislation depends on the number of exceptions contained in the Act,
the manner in which it is administered and the use to which it is put.

In India, the movement towards accountability and transparency finally led to the The Right to
Information Act that came into force on 12th Oct 2005. This act was preceded by various state
legislations as enacted in Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000),
Delhi (2001), Maharashtra (2003). In this project the researcher will look at the source and the
constitutional and judicial support right to information has in India. The researcher first aims to
look at the legal background that surrounded the RTI Act and the various pro-secrecy Legislations
that continue to exist India, which made it all the more mandatory for the enactment of such a
legislation. The researcher then will try and analyze the provisions of the Act that are relevant to

1
P.P. Craig, Administrative Law, (5th Edn, London: Sweet and Maxwell, 2003) at 218.
2
Ibid.

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administrative law. The researcher will look at the various authorities that have been created under
the Act and the powers and duties that have been conferred upon them. An analysis of the appellate
authorities that have been set up under the Act will be undertaken. Further, the researcher will look
at the exceptions that have been allowed under the Act in order to examine the effectiveness of the
Act. Finally, the researcher seeks to compare the Indian Right To Information Act with the British
Freedom of Information Act and bring out the differences between the two legislations.

Objectives of Study:

In this project the researcher aims to analyze the provisions of the Right to Information Act from
the point of view of Administrative Law. The researcher aims to look at the legal background of
the Act and the source and constitutional support the Act has. The researcher then aims to analyze
the provisions of the Act that are relevant to administrative law. The researcher will look at the
powers and duties of the various authorities that have been created under the Act. Further, the
researcher will look at the exceptions that have been allowed under the Act Finally, the researcher
seeks to compare the Indian Right to Information Act with the British Freedom of Information
Act. The objective behind this paper is to critically analyze the Right to Information Act from the
perspective of Administrative Law.

SCOPE AND LIMITATIONS:

Scope: The scope of this project extends to analyzing the different provisions of the Right To
Information Act from the perspective of Administrative Law. The Scope extends to tracing the
legal background of the Act and also extends to a comparison between the Indian RTI Act and the
British Freedom of Information Act.

Limitations: Since there are no reported cases on the Right to Information Act, the researcher
could not rely upon judicial authorities for the interpretation of the various provisions of the
Act. Due to constraints of space the researcher had to limit his analysis to only the important
provisions.

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MODE OF CITATION:

A uniform mode of citation has been used throughout the project.

SOURCES OF DATA:

The researcher has made use of both primary and secondary sources for the purposes of this project

RESEARCH QUESTIONS:

What is the need for an Act like the Right to Information Act?
What is the legal background of the Act and which pro-secrecy Legislations continue to
exist in India?
What is the constitutional source of the Act and what judicial support has the Act gotten?
Analyze in detail the various provisions of the Act from the perspective of Administrative
Law.
What are the powers and duties of the various authorities set up under the Act and what are
the exceptions enumerated in the Act?
Compare and contrast the Indian Right to Information Act with the British Freedom of
Information Act.

CHAPTERIZATION

Chapter I deals with the legal background of the RTI Act and the various pro-secrecy legislations
that exist in India.

Chapter II deals with constitutional source of the Act and the judicial support that right to
information has.

Chapter III critically examines the various provisions of the Act from the point of view of
Administrative Law.

Chapter IV compares the Indian Right to Information Act with the British Freedom of
Information Act.

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CHAPTER I

THE BACKGROUND OF THE ACT

The Law relating to privileges: Though transparency is one of the objectives of administrative law,
the State is given immunity from this rule on certain occasions in order for it to effectively carry
on its work. The State by virtue of being granted certain privileges has been given certain
exceptions to present all evidence before the Court. In India too statutory safeguards exist for
ensuring government secrecy. For example, Section 123 of the Indian Evidence Act states that no
one shall be permitted to give any evidence derived from unpublished official records derived from
unpublished official records without the permission of the head of the department concerned and
Section 162 states that the validity of any objection to the production of a document shall be
decided by the Court3 .

In India this secrecy privilege given to the government was initially supported by the courts. For
example, in State of Punjab v. Sodhi Sukhdev Singh, The Official Secrets Act, 1923: This colonial
legislation was mainly drafted to stop espionage or any unauthorized disclosure of secret official
information. British government suppressed freedom of information in the garb of this legislation.
Section 5 of the Act is an omnibus provision that virtually prohibits disclosure of any information
which government considers being confidential. An official secret is not defined in the act and
government possesses blanket power to mark a document confidential so as to prevent its
publication4. The Amendment Act of 1967 makes this law more disastrous. We unfortunately still
continue with this legislation5. Misuse of this unwarranted security is evident from this example.
President of India framed Rules of Business in pursuance of his powers under Article 77 of

3
S.P. Sathe, Administrative Law, (7th Edn, New Delhi: Butterworths Publications, 2004) at 641.
4
Section 5, Official Secrets Act, 1923.

5
Reliance Petrochemicals v. Indian Express Newspapers, A.I.R 1989 S.C 190

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Constitution of India6. Access to these rules are necessary for knowing whether right person has
excised the power but, unfortunately, these rules till now are kept confidential.7

The Atomic Energy Act, 1962 under this Act severe restriction on the disclosure of information
have been imposed. This law prohibits disclosure of any information restricted by central
government8. It thus prohibits sharing of information even in matters such as what hazards the
surroundings population of atomic reactor.

Thus, a look at the legal position in India shows that till recently, as far as government was
concerned, giving of information was an exception, and secrecy was the rule. It had become
imperative to come out with a law that gave the right to information to every citizen. Various
peoples movements had over the years gathered a lot of momentum for the enactment of such a
legislation9. Finally the Right to Information Act was enacted by the government in 2005, coming
in place (and thereby repealing) of the previously enacted Freedom of Information Act, 2002.
Before the researcher looks at this Act in detail from the point of view of Administrative Law, it
is important to find out the source of such a legislation and the constitutional and judicial support
that it has gotten, which the researcher has looked at in the next chapter.

CHAPTER II

THE SOURCE AND CONSTITUTIONAL SUPPORT TO THE RTI ACT

Democracy becomes meaningful only when people have a sense of participation in the governance.
Transparent governance not only increases public participation but also lends greater legitimacy
to the State. Although the administrative principles of natural justice and judicial review of
administrative discretion call for greater transparency, the State still had the power to retain various

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Transaction of Business Rules and Government of India (Allocation of Business) Rules, 1961.

7
Anand Shankar Jha Right to Information: Evolution, Perspectives and Challanges

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Section 18, Atomic Energy Act, 1962.

9
One such institution is Mazdoor Kisan Shakti Sangathan (MKSS) in Rajasthan.

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privileges, which are by their nature, contrary to transparency. It was in this context that the right
to information gained even more importance, and it is important to look at the constitutional source
of this right.

Though the Indian Constitution has no express provision guaranteeing the right to information, it
has been recognized by the Courts in a plethora of cases as implicit in Article 19(1)(a), which
guarantees to all citizens the right to free speech and expression, and Article 21 of the Constitution
which guarantees the right to life in accordance with due process to all citizens. The right to
information has been recognized by the Supreme Court in its decisions since 1973. it was first
recognized in Bennet Coleman v. Union of India10, famously known as the newsprint case, where
for the first time the Supreme Court said that readers had the right to read newspapers and this
emanated from their right to know which was a part of freedom of speech and expression.

CHAPTER III

AN ANALYSIS OF THE RTI ACT

The Goals of the Right to Information Act: One of the principle aims of administrative law is to
ensure the effective functioning of the government and the state in an accountable and transparent
manner. Administrative law strives to ensure that the government is responsible and answerable
to the people. Democracy is built upon the fundamentals of an informed citizenry and transparence
in information which are vital to its functioning and also to contain corruption and to hold
governments and their instrumentalities accountable to the governed11. This belief forms the
bedrock of the Right to Information Act. The preamble to the Right to Information Act(hereinafter
referred to as the Act) specifies that the Act has been enacted for establishing the practical regime
of right to information for citizens in order to secure access to information under the control of
public authorities, and to promote transparency and accountability in the working of every public
authority. The preamble, however, also refers to the exemptions and says that, in some cases,

10
AIR 1973 SC 107

Y.K. Sabharwal, Right to Information, Issues of Administrative Efficiency, Public Accountability and
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Constitutional Governance, <supremecourtofindia.nic.in/new_links/rti.doc>.

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revelation of information in actual practice is likely to conflict with other public interests including
efficient operations of the Governments, optimum use of limited physical resources and the
preservation of confidentiality of sensitive information12. The researcher feels that the Act
proposes to harmonize these conflicting interests while preserving the paramountcy of the
democratic idea.

Basic features of the Act: The Act applies both to Central and State Governments and all public
authorities. The word information is defined in the Act under Section 2(f) to mean any material
in any form, including the records, documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, log books, contracts, reports, papers, samples, models, data material hold in any
electronic form and information relating to any private body which can be accessed by a public
authority under any law for the time being in force. However, the researcher feels that this list
should be merely indicative and not exhaustive as there may be various other forms in which
information may be stored or provided13. The Act itself defines what right to information means.

Powers and Duties of different authorities under the Act: From the perspective of Administrative
Law, it is important to look at the different authorities created under the RTI Act, and the powers
and obligations conferred upon the authorities. it is important to look at whether these powers are
enough for the proper administration of the Act or whether there has been excessive delegation or
discretion conferred upon the authorities created under this Act.

Information Commissions: Section 12 of the Act empowers the Central Government to constitute
by notification in the Official Gazette, a body to be known as the Central Information
Commission(CIC) to exercise the powers conferred on and to perform the functions assigned to it
under the Act. Similar power is given to the State Governments under Section 15 of the Act to
constitute such Commission at the State level (State Information Commissions). The Central or
State Information commissioners are different from the Public Information Officers as they are

12
Id.

13
Section 2(f), The Right to Information Act, 2005.

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required to deal with the matters of receiving and inquiring into the complaints from any person
who has been refused access to any information under the Act, or who has not been given a
response, or has been given incomplete and misleading information14 and has a grievance which
he wants addressed.

Exemptions from disclosure of information: As per Craig one of the most important factors on
which the effectiveness of a legislation like the RTI Act depends on is the range of exceptions
contained in the legislation. All statutes upon freedom of information contain exceptions, but the
number and variety thereof considerably, and the effectiveness of the act depends on the number
of exceptions. There can be various categories of valid exceptions for not providing information,
like information that is top secret, disclosure of which can effect the sovereignty and integrity of
the State; confidential information that may effect the security of the State; and personal
information that is not for publication, disclosure of which would effect public order and safety.

CHAPTER IV

A COMPARITIVE ANALYSIS OF THE RTI ACT, 2005 AND THE BRITISH FREEDOM
OF INFORMATION ACT, 2000.

The British Freedom of Information Act, 2000 was promulgated to provide for the disclosure of
information held by public authorities or by persons providing services for them. The basis of the
freedom of information in England, as recognized by the Court of Appeal in Regina v. Shyler. The
Indian Right to Information Act is very similar to the British Freedom of Information Act.
Therefore the researcher will briefly look at the British Act and try to draw out the major
similarities and differences.

Duties under the Act: There are two principal duties of the authorities under the Act. They are:
(1.) Information to be given in writing whether the public authority holds such information or not;
and (2.) Communication of the information. All other function of the public authority given under
the Act are largely in furtherance of these two principal functions. Chapter 1 of the Act, deals with
the right to information and under this chapter a person making request for information is to be

14
There are various grounds laid down in Section 18(5)

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informed by that authority whether it holds information or not, and if it does, to have that
information communicated to him.

Exemptions: Exemptions are provided for under Part II of the Act. The Act envisages two bases
given under section 2 of the Act for the determination of exempted information15. They are as
follows: (1) Express exemption granted by any provision in Part II of the Act; and (2) Public
Interest factors in non-disclosure outweighing the interest in disclosure of the information. The
specific exceptions laid down in Part II which are different from our exceptions are as follows:

(1)Information that may be accessible to the applicant by other means;

(2)Information that is withheld with the intention of publication at a future date, or at the time
when the request for information was made or when it is found reasonable to withhold such
information until the date of future date of publication.

(3) Information relating to audit of the accounts of other public authorities as well as documents
relating to efficiency, economy and effectiveness of use of funds of other public authorities;

(4) Information relating to the formulation of government policy;

(5) Information related to the environment which can be made available only after compliance
with Regulations made for this specific purpose under section 74of the Act;

(6) Information, the disclosure of which is prohibited under an enactment, incompatible with
community obligation and liable to constitute contempt of court.

Thus to the researcher it seems that the range of exceptions provided under the British Freedom of
Information Act 2000 is wider than the range provided under the Indian RTI Act. As mentioned
before in this paper, the effectiveness of an Act like RTI act for the purposes of administrative law

15
Supra note 29.

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at least, is inversely proportional to the number of exceptions that are present in it. Therefore, from
this viewpoint the Indian RTI Act, 2005 is better and more effective than its British counterpart.

Process of providing information: The process of providing information is more or less similar
in both the Acts, except that the British Act is quicker in dispensing information because the time
limit under the British Act is 20 days16. The public authority is not obliged to comply with the
request if it is vexatious or repeated.

Appeals: The main difference between the two Acts, as far as appeals are concerned is that under
the British Act there is a provision of appeal from the decision of the Tribunal to the appropriate
Court in section 59. There lies no such appeal under the Indian Act. Whether this can be considered
to be a shortfall in the Indian Act will be found out only after some time has passed to evaluate the
performance and effectiveness of the Central Information Commission and the State Information
Commissions as adjudicatory bodies.

CONCLUSION & SUGGESTIONS

Administrative efficiency comprises of conducting the administration without unnecessary delays


or ulterior or corrupt motives and giving reasons while passing various orders. The movement
towards transparency in the affairs of the state has been a slow one, and the transition from secrecy
in the States affairs to transparency and accountability in the way our State is run, has now
culminated in the form of the Right To Information Act. At the end of this paper it can be seen
that provisions of the Act are intended to balance the rights of liberty as against the duty to protect
the security of State, public order, decency or morality or incitement to an offence which are
protected under Art. 19(2).From the perspective of Administrative Law, it can be seen that the Act
has created various bodies like the Central Information Commission and the State Information
Commissions, vesting in them adjudicatory powers of deciding appeals under the Act. Further, the
rule making power under the Act has been conferred mainly upon the Central Government and the

16
Section 10, British Freedom of Information Act, 2000.

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State Governments. The actual job of disseminating information has been delegated to various
Public Information Officers that each public department must designate.

However, despite the strong theoretical and objective base of the Act, there are certain loopholes
and grey areas which have come to notice in the short operation of the Act. Firstly, the official
mindset does not seem in favour of sharing any information. As per S.P. Sathe, the main obstacle
is the attitude of the bureaucracy which is accustomed to working in closed corridors17. While
most public departments may not say no directly to any information sought, but there are enough
grounds in the Act on the basis of which information wont be given or would be
delayed, viz pretext of lack of manpower to compile the data or finalize the accounts, or safety of
the document, etc. The researcher feels that this discretion that has been conferred upon PIOs may
be used against the purposes of the Act, unless efforts are made to make the official mindset
conducive to sharing information.

Secondly, The Act stipulates a penalty in case of information is denied without adequate reasons,
but it is not harsh enough. There may be cases where administrative accountability can be
dispensed by deliberate act of government in lieu of paying this meager amount18. Rather denial
to provide information should be made a much more serious offence with a heavier penalty, and if
the denial is malafide then it should be made a ground for dismissal as well.

Thirdly, express bar on Jurisdiction of court gives a freehand to all administrative decisions under
the Act. Although an appeal may lie to the Courts for violation of fundamental rights, there must
be a provision for appealing to the court, in line with a similar provision that exists in the British
Freedom of Information Act.

Fourthly, the Act does not help people other than citizens. At least NRIs and concerned foreigners
should be allowed to access to documents required so as to set a good international trend.19
Moreover, courts have interpreted right to information in preview of Article 21 of the Constitution
which is guaranteed to each and every person irrespective of citizenship19.

17
Interview with Late Dr S.P. Sathe, <www.virtualpune.com >
18
Anand Shankar Jha, Right to information: Evolution, Perspectives and Challanges, <www.indlaw.com>
19
Supra note 36.

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Fifthly, Under Section 7(9) information may be declined if it disproportionately diverts the
resources of the public authority. This provision gives a lot of discretion to the public authorities
and safeguards must be provided to ensure that it is not misused. There also should be a provision
to identify genuine requests so that the public authorities are not burdened unnecessarily.

It cannot be doubted that information to citizens about administrative action is undoubtedly a vital
component of Administrative Law, and indeed democracy itself. Freedom of information is a
fundamental right of our citizens and the Right To Information Act is indeed a commendable step
to ensure an open democracy. If the loopholes that the researcher has pointed out are overcome
through public education and judicial activism, this Act will go a long way in achieving
transparency and accountability in the country.

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BIBLIOGRAPHY

Articles Referred:

1. Anabil Bhattacharya, The Right To Information Act, 2005- new responsibilities of every
public authority, (2006) 26, Insurance Times 41.
2. Anand Shankar Jha, Right to information: Evolution, Perspectives and Challanges,
<www.indlaw.com>
3. Joseph Pookkatt and Saurabh Sinha, Comparative Analysis between the Freedom of
Information Act, 2000 and the Right To Information Act, 2005 <www.indlaw.com>
4. Madhav Godbole, Unending struggle of Right to Information, (2000) 35 (33), Economic
and Political Weekly 2899.
5. N. Maheshwara Swamy, Nature and Nomenclature of Information under the Right To
Information Act, 2005- A critical Analysis, (2006) 65, Sebi and Corp Law 326.
6. O.P. Kajriwal, Right To Information: Loopholes and the road ahead, (2006), 41 (11),
Economic and Political Weekly 940.
7. Ouloi Narayan, Right To Information and the road to heaven, (2005) 40 (47), Economic
and Political Weekly, 4870.
8. Praveen Dalal, The new horizons of Right To Information, (2004) 1 Apex
Court Expression 1.
9. Rachitta Priyanka, Right To Information, (2006) 2 CLC 77.

Books Referred:

1. D.D. Basu, Administrative Law, (6th Edn, Calcutta: Kamal Law House, 2004).
2. J.J. Uppadhaya, Administrative Law, (Allahabad; Central Law Agency, 1999).
3. M.C. Jain, Indian Administrative Law, (Delhi: Universal Law Publications, 2002).
4. S.P. Sathe, Administrative Law, (7th Edn, New Delhi: Butterworths Publications, 2004).

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