55

CHAPTER - III

DUTIES AND OBLIGATIONS OF PUBLIC AUTHORITIES

In this Chapter the researcher analyses the obligations and duties cast upon the
various authorities and adjudicatory bodies constituted under the Right to Information
Act. The researcher begins this chapter with the intention to provide a conceptual clarity
of certain imperative concepts and analyses each one of it by discussing the various
facets of it provided by the judicial precedents. This chapter further deals with the
structural constitution of the various authorities and adjudicatory bodies under the Right
to Information Act and analyses in detail their powers, function, duties and liabilities.
The researcher further analyses the fact as to what information can be revealed and what
should not be, in a sense to provide a clear cut outline as what is privacy violation and
what is not. The researcher further deals with the various aspects of the abuse of the
right to information and suggests statutory limitations available with the authorities to
prevent such abuse.

DEFINITIONS AND EXPLANATIONS

The scope of the information and its use by the citizens is another aspect of the
matter to be looked into. Once the information was brought under the purview of the
provisions of the Right to Information Act such citizen shall have right to seek for such
information relating to the documents which are all falling under the definition as
contemplated under Section 2(f) of the Act.

The Section 2(f) reads as follows

“‟information‟ means any material in any form, including records, documents,

memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any electronic
 56

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”

In Khanapuram Gandaiah Vs.Administrative Officer1 the RTI applicant filed

application to the Judge who decided the case about the information relating to the
reasons as to how the judge has decided his appeal in a particular manner on the ground
that the RTI Act does not provide for any special protection to the Judges. However the
Hon‟ble Supreme Court has held that A judge speaks through his judgments or orders
passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the
remedy available to such a party is either to challenge the same by way of appeal or by
revision or any other legally permissible mode. No litigant can be allowed to seek
information as to why and for what reasons the judge had come to a particular decision
or conclusion. A judge is not bound to explain later on for what reasons he had come to
such a conclusion.

It was further held that a judge cannot be expected to give reasons other than
those that have been enumerated in the judgment or order. The application filed by the
petitioner before the public authority is per se illegal and unwarranted. A judicial officer
is entitled to get protection and the object of the same is not to protect malicious or
corrupt judges, but to protect the public from the dangers to which the administration of
justice would be exposed if the concerned judicial officers were subject to inquiry as to
malice, or to litigation with those whom their decisions might offend. If anything is
done contrary to this, it would certainly affect the independence of the judiciary. A
judge should be free to make independent decisions. Such interference would shake the
independence of the judiciary.

1
(2010) 2 SCC 1; 2010 2 LW 136
 57

Section 2(g) defines the word “prescribed” as follows ; “Prescribed” means

prescribed by rules made under this Act by the appropriate Government or the
competent authority, as the case may be;

These information include records as defined under Section 2(i) of the Act. The
Section 2(j) defines what is right to information. This inclusive definition in Section 2(j)
of the Right to Information Act reproduced for the purposes of clear understanding.

“‟Right to information‟ means the right to information accessible under this Act
which is held by or under the Control of any public authority and includes the right
to –

(i) Inspection of work, documents, records

(ii) Taking notes, extracts or certified copies of documents or records

(iii) Taking certified samples of material

(iv) Obtaining information in the form of diskettes, floppies, tapes, video

cassettes or in any other electronic mode or through print outs where such
information is stored in a computer or in any other device ”

The Act defines who are all the public authorities under Section 2(h). Section
2(h) reads as follows “„public authority‟ means any authority or body or institution of
self-government established or constituted

(a) By or under the constitution

(b) By any other law made by parliament

(c) By notification issued or order made by the appropriate government and

includes any
 58

(i) Body owned, controlled or substantially financed

(ii) Non-government organization substantially financed, directly or

indirectly by funds provided by the appropriate government ”2

In Tamil Nadu Road Development Company Limited Vs. Tamil Nadu

Information Commission and others3 the Division Bench of the Hon‟ble High Court of
Madras while interpreting the definition clause under Section 2(h) of the Right to
Information Act; held as follows;

“In the preamble to the Act, it is made clear that “democracy requires an
informed citizenry and transparency of information which are vital to its functioning
and also to contain corruption and to hold Governments and their instrumentalities
accountable to the governed”. From the Preamble to the Act it is clear that revelation of
information may cause conflict with the other public interests including efficient
operations of the Governments, but the Act has been enacted to harmonize these
conflicting interests while preserving the paramountcy of the democratic ideal.

The RTI Act has also provided a remedy for facilitating the exercise of the right
to information and the reason for the remedy is also indicated in the Preamble to the
Act. So going by the direction in Heydon's Case, followed by the Supreme Court
in Bengal Immunity (supra) such an Act must receive a purposive interpretation to

2
Ms.Justice PRABHA SRIDEVAN, in her lecture delivered at the law faculty in the University of
Madras on 29.3.2007, highlighted the importance of RTI Act and its necessity to apply in the Non-
Governmental Organisations in the following lines:

“Ideally the new Act, Right to Information Act should apply to all the sections of society and not
actually to the governmental sector. Non- Governmental Organisations Charitable Trusts or Trade
unions should be just as accountable and as transparent as the Government in developing
democracy. There should be proactive distribution of information.” Extracted from the judgment
of M/s.V.V.Mineral Vs The Director of Geology & Mining and ors, 2007 (4) MLJ 394

3
(2008) 6 Mad LJ 737
 59

further the purpose of the Act. So any interpretation which frustrates the purpose of RTI
Act must be eschewed. Following the said well known canon of construction, this Court
interprets the expression “public authority” under Section 2(h)(d)(i) liberally, so that the
authorities like the appellant who are controlled and substantially financed, directly or
indirectly, by the government, come within the purview of the RTI Act. In coming to
the conclusion, this Court reminds itself of the Preamble to the RTI Act which
necessitates a construction which will hopefully cleanse our democratic polity of the
corrosive effect of corruption and infuse transparency in its activities. In this context, a
few lines from Joseph Pulitzer, in a slightly different context, will be very apt and are
reproduced hereunder.

“There is not a crime, there is not a dodge, there is not a trick, there is not a
swindle which does not live by secrecy. Get these things out in the open, describe
them, attack them, ridicule them in the press, and sooner or later public opinion
will sweep them away.”

Section- 2(n): "Third Party" means a person other than the citizen making a
request for information and includes a Public Authority

Section 2(e) “Competent authority” means-

(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 case of a High Court;

(iv) The President or the Governor, as the case may be, in the case of other
authorities established or constituted by or under the Constitution;
 60

(v) The administrator appointed under article 239 of the Constitution;

The Section 3 of the Act confers rights on all citizens that every citizen shall
have right to information of the matters held by the public authorities. It is pertinent to
note here that only citizens have a right to information of the maters held by the public
authorities. In such event associations, societies and some of the organizations claiming
to be Human Rights Organizations in stricto senso not entitled to seek information. It is
also to be noted that as per the Act only name of the person ad correct address is
sufficient to seek information. This wide power leads of misuse of the Act by the
unscrupulous persons by obtaining the information under pseudo name and blackmail
the persons. Therefore this has to be clarified/ modified which would be dealt later at
this thesis. However, there is no provision as to how this information can be put in
service in the Court of law. Section 22 of the Right to Information Act, 20054 will have
the overriding effect over the other Acts, in other words the Right to information Act
will have supremacy over other Acts.

In People's Union of Civil Liberties Vs Union of India & Anr5, the Hon‟ble
Supreme Court while dealing with Right to information in the context of the voter's
right to know the details of contesting candidates and the right of the media and others
to enlighten the voter has held as follows

“Securing information on the basic details concerning the candidates contesting

for elections to the Parliament or State Legislature promotes freedom of
expression and therefore the right to information forms an integral part of Article
19(1)(a). This right to information is, however, qualitatively different from the
4
Section 22. Act to have overriding effect.- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of
1923), and any other law for the time being in force or in any instrument having effect by virtue of
any law other than this Act.
5
(2003) 4SCC 399,
 61

right to get information about public affairs or the right to receive information
through the Press and electronic media, though, to a certain extent, there may be
overlapping”.

In V.Madav Vs. The Tamilnadu Information Commission and others6, the

Madras High Court while dealing with the request under RTI Act for the seeking
information which are given in a sealed cover. It was held that

“Assets details of Government servant in a sealed cover cannot be said to be

information that cannot be accessed by the government. Distinction must be
made between official communication inherent to position and those that are not
which affect only private life. Right to information which is recognized as a
fundamental right cannot be denied on the ground that it is not accessible by the
public authority, particularly when there is no restriction for such accessibility
under any rule”.

LANGUAGE OF THE INFORMATION:-

Section 6(1) of the RTI Act, 2005 states that 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 or in the official language of the area in which the application is
being made. On the other hand Section 4(4)7 of the Right to Information Act, 2005
states that the materials shall be disseminated in local language. The local language
means the official language of the state. The citizens shall have right to obtain

6
2011 (4) CTC 734
7
Section 4(4) of the Right to information Act,2005 : (4) 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
 62

information in the official language of the state. But this option shall not be extended
while an applicant seeking copy of the records. The records shall be furnished as it
exists.

In the case of The Registrar, High Court of Uttarakhand, Vs State Information

Commissioner8, the applicant asked information as well as copy of the records from the
High Court records only in Hindi. The Hon‟ble Uttarakhand High Court held that

“The public information officer of the High Court is hereby directed to supply all
the information sought by respondent no. 3(RTI applicant) in Hindi. It is,
however, made clear that in case respondent no. 3 also seeks any "record" in the
matter they will be supplied only in language they are available or "held" by the
High Court. In other words, if the record itself is in English, the same need not
be translated in Hindi.”

Hence the high court recognized the right of the citizen to obtain the information
in the state‟s official language. Only then a person who obtains the information shall be
able to understand what does exist in the information. Otherwise, the main purpose of
furnishing information under the Right to Information Act, 2005 would be rendered
futile.

It was also made clear that the person can also request the Public information
officer to give information in English. Hence it is amply clear that the option to choose
the language rests with the applicant and the PIO is required to furnish the information
in language as requested by the applicant, except when the information sought for by
the applicant is records in such cases the copies of the same shall be furnished as it is.
The PIO is not duty bound under the RTI Act to furnish the same by translating into
other languages.

8
http://indiankanoon.org/doc/1718096/ last visited on 10.05.2013
 63

APPOINTMENT OF INFORMATION COMMISSIONERS:-

The Right to Information Act, 2005 establishes two institutions viz. one for the
Central Information Commission for the Information relating to the Central
Government offices and State Information Commission for the Information relating to
the Central Government offices. The Chief Information Commissioner and Information
Commissioners shall be appointed by the President on the recommendation of a
committee consisting of-

(i) the 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 Minister9.

The State Information Commissioner and Information Commissioners shall be

appointed by the Governor on the recommendation of a committee consisting of-

(i) the Chief Minister of the state, who shall be the Chairperson of the committee;

(ii) the Leader of Opposition in the state assembly and

(iii) a Cabinet Minister to be nominated by the Chief Minister10.

On September 13, 2012 the Hon‟ble Apex Court had passed an order which held
as follows “The chief Information commission at the centre or the state level shall only
be a person who is or has been a chief justice of the high court or a judge of the supreme
court of India”. However after this judgment the Central Government has filed review

9
Section 12(3) of the Right to Information Act, 2005
10
Ibid Section 15(3)
 64

petition and on 16.04.2013 the Hon‟ble Supreme court has passed an order of stay of its
own order11.

In Virendra Singh Choudhary vs Union Of India (Uoi) And Ors.12 the petitioner
challenged the constitutionality of the Sections 12(5), 12(6), 15(5) and 15(6) of the
Right to Information Act, 2005 on the ground that they „Sub-section (6) of Section 12 is
inconsistent with the objects of the Act inasmuch as Sub-section (5) of Section 12
provides that the Chief Information Commissioners shall be the 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 but
Sub-section (6) of the said provision prohibits that the said persons shall not be the
members of Parliament or State Legislature or Union Territory, as the case may be, or
hold any office of profit or connected with a political party or carrying on a business or
pursuing any profession. Be it noted, similar is the language that has been employed
under Sub-section (6) of Section‟.

11
The Times of India, Chennai Edition, dated 17.04.2013
12
The judgement was given by the High Court of Madhya Pradesh on 30.06.2006 , taken from
http://indiankanoon.org/doc/768968/ . page last visited on 10.05.2013. in this case it was further
held that It is well settled in law that a person who assails a provision to be ultra vires must plead
the same in proper perspective. In the absence of pleadings in that regard the same is not to be
entertained. A person may be a person of eminence of public life with wide knowledge and
experience satisfy the requirement of Clause (5) but if he falls in the categories that find mention
in Sub-section (6) he or she cannot be appointed. The court referred to its earlier decision in
State of Bihar v. Bihar Distillery Ltd and extracted the dictum as under “The approach of the
Court, while examining the challenge to the constitutionality of an enactment is to start with the
presumption of constitutionality. The Court should try to sustain its validity to the extent
possible. It should strike down the enactment only when it is not possible to sustain it. The Court
should not approach the enactment with a view to pick holes or to search for defects of drafting,
much less inexactitude of language employed. Indeed, any such defects of drafting should be
Ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After
all, an Act made by the legislature represents the will of the people and that cannot be lightly
Interfered with. The unconstitutionality must be plainly and clearly established before an
enactment Is declared as void. The same approach holds good while ascertaining the intent and
purpose of an enactment or its scope and application.”
 65

The Hon‟ble Madhya Pradesh High Court dismissed the writ petition and held
that

“the purpose of the Act13 is to harmonise the conflicting interests while

preserving the paramountcy of the democratic ideals and to provide for
furnishing certain information to citizens who desire to have it, if the purpose of
the Act is read with the dictionary clause conjointly it would be clear as day that
the post of Chief Information Commissioner and Information Commissioners are
in a different realm altogether. No one can claim as a matter of right that he
should be appointed or considered for the same. It is not a post in the ordinary
sense of the term. Exclusion of certain categories has reasonability keeping in
view the role to be played by the authority concerned.

It is worth noting that the information that has to be given can be sensitive.
Certain categories have been excluded under Sub-section (6) of Section 12 and
Sub-section (6) of Section 15 as the legislature in its wisdom has felt it
13
The Hon‟ble Court has taken into consideration of the Objects of the RTI Act which are as
follows : Objects of the Act , “An Act to provide for settling out the practical regime of right to
information for citizens to secure access to information under the control of public authorities, in
order to promote transparency and accountability in the working of every public authority, the
constitution of a Central Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.

Whereas the Constitution of India has established democratic Republic;

And whereas democracy requires an informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to be governed;

And whereas revelation of information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use of limited fiscal resources
and the preservation of confidentiality of sensitive information;

And whereas it is necessary, to harmonize these conflicting interests while preserving the
paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to
have it.”
 66

appropriate to exclude the same and such exclusion is neither arbitrary nor
unreasonable, if the entire scheme of the Act is taken into consideration. To give
an example Sub-section (6) excludes any person holding any other office of
profit not to be a Chief Information Commissioner or Information
Commissioner. In this context it is worth noting, Article 102 of the Constitution
of India provides that a person shall be disqualified for being chosen and for
being, a member in either of the House of Parliament if he holds any office of
profit under Government of India or State Governments”14

Hence the qualifications and the restrictions imposed in Sections 12(5), 12(6),
15(5) and 15(6) of the Right to Information Act, 2005 were upheld.

In the matters of appointment of state information commissioners highlighting

the need for the transparency in appointment and to avoid the political interference it
was held that “It is, therefore, clear that unless it is found that the act done by the
Government earlier in power is either contrary to the constitutional provisions or
unreasonable or against public interest, the State should not change its stand merely
because another political party has come into power. Political agenda of an individual or
a political party should not be subversive of the rule of law15”.

POWERS OF THE INFORMATION COMMISSIONERS:-

While conducting the inquiry under the Act the Information Commissioner shall
have power to do the following in accordance with the RTI Act;

14
It was further held that “We perceive that the provisions do subserve the purpose, meet the needs
of the time, satisfy the necessities of the day and are in consonance with the philosophy of the
Constitution and there Is no manifest anomaly inter se in the statute.”
15
V.Madav Vs. The Tamilnadu Information Commission and others 2011 (4) CTC 734
 67

The CIC or SIC is authorized to examine any record to which this Act applies
which is under the control of public authority during the enquiry of any
complaint. The public authority cannot with hold any record on any grounds
from disclosure to CIC/ SIC.

The second Appeal preferred may be admitted by the PIO even after the expiry
of specified period for sufficient cause for not preparing appeal within specified
period16

When the information preferred by the RTI Applicant relates to third party a
reasonable opportunity of being heard should be given to third party.

The onus to prove the Justification for denial lies upon the PIO who denied such
request17.

The appeal preferred under S.19(1)(2) has to be disposed of by the Appellate

authority constituted for the purpose within 30 days of the receipt of appeal or
within extended period not exceeding 45 days.18

The public information officer‟s decision shall be binding on all parties

concerned.19

They shall also have the following powers under to secure compliance

Providing access to information in a particular form by all concerned

16
Proviso to S.19(3)
17
S. 19(5)
18
S.19(6)
19
S.19 (7)
 68

Directing the public authority to appoint a PIO/APIO where none exists in a

department;

Publishing information or categories of information as they deem fit:

Making necessary changes in the practices relating to management maintenance

and destruction of records in a government office ;

Enhancing training provision for officials on RTI to make them cope with the
changes;

Seeking an annual report from the public authority on compliance with the
provisions of the Act ;

Require it to compensate for any loss or other detriment suffered by the RTI
applicants

Impose penalties under this law wherever the information was denied or
provisions are violated.

Reject the application when the RTI Application is to be refused under the
provisions of the Act.

RIGHTS OF CITIZENS AND OBLIGATIONS OF PIO:-

Right to Information Act, 2005 aptly named the second chapter containing
sections 3 to 11 as „Right to information and obligations of public authorities‟. The
framers of the Act on the one hand intended to give rights to citizens in unequivocal
terms, on the other hand imposed as many obligations on the public information officers
as possible and thereby the legislature has intended to make this Act as revolutionary in
the hands of the citizens.
 69

Section 3 in categorical terms states that all citizens shall have right to
information. Though a rider clause was attached to the rights that „subject to provisions
of this Act.‟ a plain reading of the Act shows that the provisions of the Act nonetheless
did not curtail or restrict the rights of the citizens except under section 8 and 24 where
the Act provided for exemptions. It is also worth to note that even section 8 and 24
which contains exemptions also contain exceptions to exemptions and hence the rider
„subject to provisions of this Act‟ is all the more relating to the procedure to get
information by citizens and not as restrictions on the citizens.

Section 4 of the Act is the backbone of the rights of the citizens. The Section 4
mandates that every public authority shall be bound to maintain its records and the same
shall be indexed in a manner and form which could be easily accessible when an
information is ought under the Act. Hence the public authorities are bound to ensure
that the documents and records are maintained properly and the wherever it is possible
the same shall have to be computerized and the network shall disseminate the
information throughout the country. Section 4(1)(a) clearly states that such maintenance
and posting of such information to the public shall be made in order to facilitate that the
information is accessible from any part of the country.

Section 4(1)(b)20 gave 120 days to enable the public authorities to publish certain
information prescribed under the sub section. This sub section was enacted to enable the
20
The following information have to be published by every public authority:

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision
and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or
used by its employees for discharging its functions;
 70

citizens to get to know the information about as many information as possible in the
websites of the public authorities and thereby one may not undergo the process of
application to PIO etc to get information. He can simply go the public authorities
websites and access the information.

But in reality many public authorities have not published as mandated under the
sub section. In fact many high profile public offices did not even publish the details of
the PIOs in their offices. One such institution is Anna University, Chennai. The website
of Anna university http://www.annauniv.edu/21 does not contain any link or information

(vi) a statement of the categories of documents that are held by it or under its control;

(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;

(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;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the
system of compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed
expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including the amounts allocated and the
details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) details in respect of the information, available to or held by it, reduced in an electronic
form;

(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;

(xvi) the names, designations and other particulars of the Public Information Officers;

(xvii) such other information as may be prescribed; and thereafter update these publications
every year;
21
Till 10.05.2013 the Anna University website does not contain any information regarding the Right
to information Act or whatsoever mandated under Section 4(1)(b).
 71

relating to the RTI Act or any details as mandated under the sub section. It more fully
looks like the Anna University is completely and absolutely exempted under the Act
even with regard to publishing of information under the Act. But no such exemption or
whatsoever was granted to the Anna University. Thus even the educational institutions
in the country are not following the duties under the Act.

Every public authority except that those are exempted under section 24 of the
RTI Act have to publish the information. A bare perusal of those information required
under the Act would show that the legislature intended transparency in every public
department and the public ought to know the decision making process of the
government department. This sub section also states that the amount of expenditure met
by the public authority including the remuneration of the employees of the department
have to be published.

Section 4(1)(b) based on the principle of universal disclosure of information

which is a onetime burden for the public authorities but would eventually save the time
of public information in future. Instead of furnishing information to every single
applicant this wide disclosure would enable citizens to know the information and the
decision making process of the government department by simply going through the
website of the public authority and thereby the time and cost for both the public
authority as well as individual citizen also would be saved.

The sub section makes obligatory on the part of the public authority to disclose
information relating to the details of facilities provided under the Act to the citizens,
names and designation of the public information officers in the department. All these
details have to be periodically updated as and when the changes are being made in the
structure or the decisions of the government.
 72

POLICIES AND ANNOUNCEMENTS:-

Section 4(1)(c) imposes statutory obligation on the public authorities to disclose

the policies of the government and all the relevant facts leading to the formulation of the
policies along with the announcements of the decisions which affect the public. The
term affecting public has to be construed wide meaning and any decision affecting the
citizens of the country are to be taken within the meaning of affecting the public. The
term need not be given negative meaning and cannot said that only those deicions of the
government which adversaly affect the public ought to be published. But term shall
have to be read in ejusdem generis and while reading the entire legislation the terms
tend to mean that all decisions whether adversely or favorably affect the public are to be
published by the government.

Section 4(1)(d) of the RTI Act states that the public authorities while taking
decisions which are in the nature of administrative decision or quasi judicial decisions
to give reasons to the aggrieved persons. It means to provide that the orders and
decisions passed by the public authorities shall have to contain reasons and not to pass
orders mechanically and not to pass cryptographic orders.

The legislature‟s intention of making so much of information by voluntary

means by the public authorities are explicit in section 4(2)22. It says that the public
authorities have to provide suo motu information so that the public have minimum
resort to the use of the Act to get the information. The Act imposes further obligation
on PIOs to furnish information considering the easy mode and the way in which less
cost would be incurred.

22
Section 4(2): It shall be a constant endeavour 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.
 73

The act though not as a strict obligation but prescribes that the information as far
as practicable shall be in electronic format with the central or state information
commission. the explanation to section 4 indeed a necessary one in order to clarify the
position about the meaning of the word „disseminated‟23. Thus the publishing not only
restricted to their own website of the public authority but also to the news papers, public
announcements , media broadcast and any other means which are easily accessible to
public.

DESIGNATION OF PUBLIC INFORMATION OFFICERS:

Every public authority shall designate as many officers as the Central Public
Information Officers or State Public Information Officers, as the case may be, in all
administrative units or offices under it as may be necessary to provide information.
[Section 5(1)]. The state and central government is under statutory obligation under this
section to designate a officer a public information officer and publish his name and
designation.

Further in all sub-divisional level or other sub-district level as a Central

Assistant Public Information Officer or a State Assistant Public Information Officer
shall be appointed by the respective governments to receive applications and to forward
the same to PIOs.24 The section further adds that whenever a person applies for
23
Explanation to section 4: For the purposes of sub-sections (3) and (4), “disseminated” means
making known or communicated the information to the public through notice boards,
newspapers, public announcements, media broadcasts, the internet or any other means, including
inspection of offices of any public authority
24
Section 5(2): Without prejudice to the provisions of sub-section (1), every public authority shall
designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional
level or other sub-district level as a Central Assistant Public Information Officer or a State
Assistant Public Information Officer, as the case may be, to receive the applications for
information or appeals under this Act for forwarding the same forthwith to the Central Public
Information Officer or the State Public Information Officer or senior officer specified under sub-
section (1) of section 19 or the Central Information Commission or the State Information
Commission, as the case may be: Provided that where an application for information or appeal is
given to a Central Assistant Public Information Officer or a State Assistant Public Information
 74

information or files an appeal under the Act to the Assistant PIOs the time limit
prescribed under the Act shall have to be extended for 5 more days.

The legislature also taken cognizance of the large level illiteracy and
unawareness about the RTI Act and in section 5(3) imposes a duty, more in nature of
humane consideration, to help the persons while they seek information from the public
authorities. This duty has to be discharged by the officers of the state and central
government in letter and spirit in order to achieve the objects of the Act in attaining the
complete transparency in the governmental activities.

Section 5(4)25 and Section 5(5) 26 gives right to the PIOs to seek assistance from
other officers in such cases as they deem fit to seek assistance. It thus enables the PIOs
to get to know of any clarifications or doubts from the senior officers. Section 5(5) also
imposes duty on such other officers from whom the PIO has sought for assistance, to
render all possible assistance to the PIO in furnishing the information and for all
purposes such officers also deemed to be PIOs under the Act.

Officer, as the case may be, a period of five days shall be added in computing the period for
response specified under sub-section (1) of section 7.
25
Section 5(4): The Central Public Information Officer or State Public Information Officer, as the
case may be, may seek the assistance of any other officer as he or she considers it necessary for
the proper discharge of his or her duties.
26
Section 5(5): Any officer, whose assistance has been sought under sub-section (4), shall render all
assistance to the Central Public Information Officer or State Public Information Officer, as the
case may be, seeking his or her assistance and for the purposes of any contravention of the
provisions of this Act, such other officer shall be treated as a Central Public Information Officer or
State Public Information Officer, as the case may be.
 75

CENTRAL INFORMATION COMMISSION

(Constituted by the Central Government under Section 12 (1) of Right to

Information Act 2005)

(Consists of) Section 12(2)

The Chief Information Commissioner and

Information Commissioner not exceeding ten

The Chief Information Commissioner and Information Commissioner shall be

appointed by President on the recommendation of a committee

Section 12(3) of the RTI Act 2005

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
 76

STATE INFORMATION COMMISSION

(Constituted by Every State Government under Section 15 (1) of Right to Information

Act 2005)

(Consists of) Section 15(2)

State Chief Information Commissioner and

State Information Commissioner not exceeding ten

The State Chief Information Commissioner and State Information Commissioner are
appointed by Governor on the recommendation of a committee consisting of

Section 15(3) of the RTI Act 2005

Chief Minister, who shall be the chairperson of the committee;

The leader of Opposition in the Legislative Assembly and

a Cabinet Minister to be nominated by the Chief Minister

 77

AUTHORITIES UNDER THE ACT

CENTRAL ASSISTANT PUBLIC INFORMATION OFFICER AND CENTRAL

PUBLIC INFORMATION OFFICER

(Receive the application seeking for information under section 6(1) of the RTI Act
2005)

Under section 7(1) with in thirty days from the receipt of the application furnish the
information subject to the proviso to sub section 2 of section 5 are proviso to sub
section 3 of section 6 of the RTI Act 2005 (Section 7(1)

Information relates to life or liberty of a person the same shall be provided within 48
hours

As against any order decision of the CENTRAL ASSISTANT PUBLIC

INFORMATION OFFICER AND CENTRAL PUBLIC INFORMATION OFFICER
under section 19(1) of the RTI Act prefer an appeal within 30 days from the date of the
receipt of the decision or order to the Appellate Authority

The appeal shall be disposed of within 30 days of the receipt of the appeal or within
such extended period not exceeding a total of 45 days from the date of receipt of the
appeal
 78

Under section 20 of the RTI Act the Central Information Commission may decide the
appeal on merit on also recommend for disciplinary action against the Central Public
Information Officer under the service Rules

Section 23 of the Act Bars of entertaining any suits, application or other proceedings in
respect of any order made under this Act

As the constitution of India only Judicial Review is the remedy which can be exercised
only by invoking Article 226 of the Constitution of India on the following grounds:

 Without jurisdiction
 Error on the face of record
 Against the basic principles of natural justice
 Findings against the constitution or statute
 Finding without any material
 Excess of Jurisdiction
 79

APPLICATION BY CITIZENS FOR INFORMATION

Section 6 details the procedure for the citizen to obtain the information and
section 7 details the procedure for the PIOs to dispose the requests made by the citizens
under Section 6. The applicant has to make out an application to the concerned PIO
either in writing or in electronic format. In Tamilnadu the fees fixed is ten rupees
judicial stamp for the application. If the information sought by the applicant is related to
the copies of records the PIO would fix the fees considering the number of pages of
copies sought for by the applicant and after the applicant pays such amount as fixed by
the PIO the information shall be given to the applicant.

The applicant may either send the application to the Public information officer or
to the Assistant Public information officer. The assistant public information officer
appointed under the Act would have to forward to the concerned Public information
officer of the request for information submitted by the citizens under the Act.
 80

FLOW CHART TO EXPLAIN THE PROCESS OF RTI APPLICATION AT

VARIOUS STAGES

Application U/s.6 to PIO

(Information to be provided within 30 days U/s.7(1))

First appeal U/s.19(1)- Appellate authority (Senior officer to PIO)

Appeal to be filed within 30 days from refusal by PIO

Appeal to be disposed of within 30 days but not exceeding 45 days

Second Appeal u/s.19(3) Information Commission

Within 9o days from date of decision of order of appellate authority

U/s.19(9) the decision of information commotion will specify regarding the availability
of any right of appeal against its decision

Aggrieved person can file writ petition U/Art.226 of constitution of India

 81

The grey area which has to be looked into is Sub Section 2 of Section 627. The
Sub section says that it is not necessary for the applicant to furnish any details except
that those are necessary to contact him in order to furnish the information. It literally
mean that the legislature did not intend to make the aspect of bonafide among the RTI
Applicants. The sub section says that no personal information is necessarily be given
by the applicant.

Since no other details were mandated by the Act the RTI Applicant need not
states the reason for which he is seeking information. Prima facie the provision seems
to do good to the applicants however in the larger interest while considering the misuse
of the provisions of the Act the Act lacks here and did not contain even a single
provision to prevent or even to contain the misuse of the provisions.

When the PIO thought fit that the information requested by the RTI Applicant
are held by another public authority or the matter is more closely connected with the
another pubic authority then in such cases the PIO has to within five days from the date
of the receipt of the application for information has to transfer such application to such
another public authority and the same shall be intimated to the RTI Applicant
forthwith28.

Section 7 of the Act says that the PIO shall have to furnish the information to the
applicant within the time period of 30 days from the date of the receipt of the notice. He
can also reject the application for the information as stating the reasons given under
Section 8 of the Act.

27
Section 6(2): An applicant making request for information shall not be required to give any
reason for requesting the information or any other personal details except those that may be
necessary for contacting him.
28
Proviso to section 6(3) : Provided that the transfer of an application pursuant to this sub-section
shall be made as soon as practicable but in no case later than five days from the date of receipt of
the application.
 82

Wherever the information sought for by the applicant is relating to the life and
liberty of a person the same shall have to be furnished within a period of 48 hours from
the receipt of the application. The PIO has discretion to decide whether the
information sought by the applicant is relating to the life and liberty of an individual or
not. However if the person who applied for the information relating to the life and
liberty of an individual has not received any information within 48 hours, he can very
well file appeal before the appellate authority under the Act stating that the information
sought by him was relating to the life and liberty of a person and as such the
information ought to have been furnished to applicant within 48 hours but the same was
not furnished in 48 hours. In such cases the applicant has to prove to the appellate
authority that the matter sought for was relating to the life and liberty of a individuals.

DEEMED REFUSAL: Section 7(2)

The sub section 2 of section 7 states that if the applicant has not received any
information within the time period of 30 days from the receipt of his application by the
PIO, it is to be deemed that the application was rejected by the PIO concerned and the
only remedy available to the applicant is to file appeal before the appellate authority.
When the thirty days time period expires and the PIO has not furnished any information
to the applicant, in such cases the applicant has got right to file appeal to the appellate
authority.

When the person who is seeking information is sensorily disabled the PIO shall
make arrangements while furnishing the information as far as practicable and furnish
the information in such a way that the applicant is able to access the information29. The

29
Section 7(4) : 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
 83

persons who are declared to be below the poverty line are exempted from paying any
fees under this Act. Further, whenever the PIO has failed to furnish the information
within the time limit in such cases also no fee shall be collected from the Applicants30.

THIRD PARTY INFORMATION:

Where the application has been made for information relating to the third party
which is held by the public authorities in such cases the PIO has to send a written
communication to such third party clearly what information is ought by the applicant
and the intention of the PIO in furnishing the information and ask the third party to
submit his views/ submissions whether the information should be disclosed or whether
he wanted to make any submissions on the issue. This provision was made in order to
give an opportunity of hearing to such third party whose information was sought by the
applicants under the RTI Act. Such third party shall have to send his views or objections
within ten days from the date of the receipt of the notice sent by the PIOs calling for his
submissions to arrive at a conclusion.

While giving information under the Act the PIOs shall have to pass orders
keeping in mind about the objections/views submitted by such third parties. The proviso
to Sub Section 1 of Section 1131 curves out an exemption which says that except in the
cases of trade or commercial secrets protected by law, such information may be
disclosed if the public interest in disclosure outweighs the importance and avoid any
possible harm or injury to the interests of such third party. Here the PIOs are given wide
power to supersede the objections of the third party. However the exception too has

30
Section 7(6): Notwithstanding anything contained in sub-section (5), the person making request
for the information shall be provided the information free of charge where a public authority fails
to comply with the time limits specified in sub-section (1)
31
The proviso to Sub Section 1 of Section 11 : Provided that except in the case of trade or
commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure
outweighs in importance any possible harm or injury to the interests of such third party.
 84

exceptions. Even if the public importance outweighs the matters relating to the trade
and commercial secrets such information shall not be disclosed.

When the PIO has decided to pass orders to furnish the information to the
applicant by overruling the objections made by the third party, in such cases the PIO has
to pass orders in this regard and communicate the same to the third party and the
communication shall have to inform the third party that he is entitled to appeal under
Section 19 of the Act. The normal time limit under the section 7 has been increased
under this section to 40 days in cases of third party objecting to the furnishing of
information.

APPEAL (SEC.19)

An applicant may within thirty 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 State Public Information Officer as the case may
be. In cases where the third party information has been sought and the public
information officer has passed orders, the time limit to file appeal will be 40 days. The
limitation for the period can be condoned by the appellate authority if the authority
satisfied that the applicant has reasons for the same. When the appeal was sought for
with relation to third parties, the appeal shall be preferred within thirty days from the
date of the order.32 The appellate authority has to decide the case on merits and pass
orders on the appeal within 30 days from the date of filing the appeal but the time limit
can be extended to further 15 days totally 45 days but the reasons shall be recorded for
the extension of the period for the disposal of appeal.

32
Section 19(2): Where an appeal is preferred against an order made by a Central Public
Information Officer or a State Public Information Officer, as the case may be, 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.
 85

SECOND APPEAL:

An aggrieved person from the order of the appellate authority under Sub Section
(1) of section 19 may prefer an appeal to the Information Commission state or central as
the case may be. The appeal shall be preferred within 30 days from the date of the order
of the appellate authority. However the information commission has powers to condone
the delay in filing the appeal after the period of 30 days.

Any person aggrieved by the order of the information commission shall have
remedy under Article 226 of the constitution of India by way of filing a writ petition in
the concerned High Court in the state. In appeal proceedings the burden to prove that
the denial was made in accordance with law lies on the PIO.

EXCEPTIONS AND EXEMPTIONS UNDER THE RTI ACT

The scheme of the Information Act no doubt is premised on disclosure being the
norm, and refusal an exception. That sections 3 and 4 seeks to achieve the first objective
of the Act i.e. to bring about transparency and accountability and sections 8, 9, 10 and
11 to achieve the second objective of the RTI Act, 2005, viz. to ensure that revelation of
information does not conflict with other public interest which include preservation of
confidentiality of sensitive information. Therefore it was held that section 8 should not
be considered to be fetter on the right to information, but as an equally important
provision protecting other public interest essential for the fulfillment and preservation of
democratic ideals33.

33
CBSE Vs. Aditya Bandopadhyaya, 2011 (8) SCALE 645
 86

EXEMPTION – ABSOLUTE OR CONDITIONAL?

Among the ten categories of information which are exempted from disclosure
under section 8 of RTI Act, six categories which are described in clauses (a), (b), (c),
(f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and
(j) on the other hand get only conditional exemption, that is the exemption is subject to
the overriding power of the competent authority under the RTI Act in larger public
interest, to direct disclosure of such information.

The information referred to in clause (i) relates to an exemption for a specific

period, with an obligation to make the said information public after such period. The
information relating to intellectual property and the information available to persons in
their fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not enjoy
absolute exemption.

Though exempted, if the competent under the Act is satisfied that larger public
interest warrants disclosure of such information, they will have to be disclosed under
the Act. It is needless to say that the competent authority will have to record reasons for
holding that an exempted information should be disclosed in larger public interest by
the PIOs after considering the case on merits.

It is nevertheless true that the PIOs have been given wide power under the above
section while deciding whether the larger public interest warrants disclosure of such
information. In such case the plain reading of the section indicates that the PIOs are
given unguided arbitrary power which would eventually affects the right of third parties
and private individuals.

The PIOs are herein given to decide whether the request for information would
fall under the exemptions and if so if they fall under exemptions whether it can be
furnished to the applicants on the ground of large public interest. A normal government
 87

servant who knew about only his officials duties in that department may not and some
times cannot differentiate between the public interest and the private interest, if he does
not have any legal background. Only a person having legal knowledge can be able to
analyse and ascertain the exemptions with regard to the particular information sought
for by the applicant. Even though section 5(3) and 5(4) of the Act gives right to the
PIOs seek assistance of such other officers as they deem necessary it only further
creates burden on the officers of the state.

However it is needless to say that the PIOs are in large not having any legal
knowledge or back ground. In such cases the PIOs have no other way except to furnish
the information out of fear of heavy penal provision given under the Act. Whereas if the
PIOs had legal knowledge they would not blindly decide the applications and they
would be the perfect persons to carry put the functions assigned to the PIOs under the
Act. This aspect of the legal knowledge of the PIOs has not been taken into
consideration by the legislature in proper perspective. The exemptions are discussed
hereunder for the better understanding of the nuances of the Act.

Section 8(1)(a) of the Act exempts the disclosure of information relating to the
records which if disclosed would prejudicially affect the sovereignty and integrity of
India or the security, strategy, scientific or economic interest of the state with relation to
a foreign state or lead to incitement of offences.

The term „Sovereignty‟ has been defined by the Black‟s law dictionary as the
Right to information Act, 2005 has curved out its boundaries and does not authorize or
recognize a citizen‟s rights to access the records of the state that materially relates to
security of the state. The preamble of the Indian Constitution34 states that India is
34
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;

 88

sovereign country and such sovereignty cannot be at risk by its own citizens under the
guise of transparency in governmental activities.

Article 19(2)35 says that the reasonable restrictions can be imposed by the
parliament on the right to freedom of speech and expression. One of such restrictions is
sovereignty and integrity of the state which has to be protected by the government
irrespective of the rights of the individual. Because the interest of the state is above the
individual interest and the rule of law prevails and the interest of the nation has to be
protected and preserved for the greater good even when it might takes away the freedom
of right to speech of an individual.

The information which are kept by the state as a matter of confidence which
could be threatening the integrity and sovereignty of the state if leaked to public, then
such information cannot be made public even under the Act. The Act has taken into
cognizance of the seriousness of the information relating to the sovereignty36.

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
35
Article 19(2) : Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4[the
sovereignty and integrity of India,] the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence.
36
The term sovereignty has been defined by legaldictionary.com as “Sovereignty is the power of a
state to do everything necessary to govern itself, such as making, executing, and applying laws;
imposing and collecting taxes; making war and peace; and forming treaties or engaging in
commerce with foreign nations.” In http://legal-
 89

Section 8(1)(b) of the Act exempts the disclosure of 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.

This exception was based on the principle of maintaining the freedom of the
Court, dignity and integrity of the judiciary. The courts in India have generally prohibits
the name of the Victim of rape shall not be published. In such cases the publication of
such prohibited name would attract penal liability under contempt of courts. Further,
courts in India make the reports of the mediation and conciliation authored by the courts
as confidential. In such cases also the same shall have to be maintained in confidential
and the secrecy shall not be disclosed.

The contempt of court would arise when the PIO has furnished some information
the publication of which is prohibited by a court of law in India. The Act does not make
out any difference between the courts and in fact the Act included the tribunal within
the ambit of the Act. Hence any tribunal constituted under the „The administrative
tribunals Act,1985‟ and all other tribunals established under their respective laws of
establishment are covered by the exception. Hence tribunals like Intellectual property
Appellate Board, Income Tax Appellate tribunal, Sales tax Appellate tribunal etc are
coming within the purview of the Act.

The Act does not define the word „contempt of court‟ and also did not confine
to contempt neither with civil nor criminal. In such a scenario the same shall have to

dictionary.thefreedictionary.com/State+sovereignty last visited on 10.05.2013. The Encyclopedia

of the American Constitution defines "sovereignty" as follows sovereignty. : "Within the
American regime the ultimate power and authority to alter or a abolish the constitutions of
government of state and Union resides only and inalienably with the people. If it be necessary or
useful to use the term "sovereignty" in the sense of ultimate political power, then there is no
sovereign in America but the people
 90

give wider interpretation in order to include both the „civil contempt37‟ and „criminal
contempt38‟. Therefore any act which would amount to contempt of court as defined
under the Act are coming within the exception of the RTI Act and such information
shall not be furnished to the RTI Applicants. The PIOs are herein have to exercise great
caution and care while deciding what amounts to contempt of court and what not.
Otherwise they will have to face the wrath of the Courts for violating the orders of the
court or for comitting an act of contempt of court under the Contempt of Courts Act,
1971.

The above exception under the RTI Act only facilitates the already established
rule of law that the judicial orders shall not be violated by any person. Even though
records of the courts are deemed to be public records for most purposes, whenever the
court deems fit that the information/records in the court to be kept confidential the same
ought to be kept confidential and they are not coming within the purview of the RTI
Act.

Privileges of Legislatures : Section 8(1)(c) of the Act exempts the disclosure of

information, the disclosure of which would cause a breach of privilege of Parliament or
the State Legislature.

37
Section 2(b) of The Contempt of Courts Act, 1971: “civil contempt” means willful disobedience
to any judgment, decree, direction, order, writ or other process of a court or willful breach of an
undertaking given to a court;
38
Section 2(c) of The Contempt of Courts Act, 1971 : “criminal contempt” means the publication
(whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of
any matter or the doing of any other act whatsoever which—

(i)scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any
court; or

(ii)pejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or

(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration

of justice in any other manner;
 91

This exception is based on the constitutional privileges given to the Parliament39

and state legislatures40. According to Erskine May, "Parliamentary privilege is the sum
of the peculiar rights enjoyed by each House collectively... and by members of each

39
Article 105. Powers, privileges, etc., of the Houses of Parliament and of the members and
committees thereof.

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything
said or any vote given by him in Parliament or any committee thereof, and no person shall be
so liable in respect of the publication by or under the authority of either House of Parliament
of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of
the members and the committees of each House, shall be such as may from time to time be
defined by Parliament by law, and, until so defined, 1[shall be those of that House and of its
members and committees immediately before the coming into force of section 15 of the
Constitution (Forty-fourth Amendment) Act, 1978].

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of Parliament or any committee thereof as they apply in relation to members of
Parliament.
40
Article 194. Powers, privileges, etc., of the Houses of Legislatures and of the members and
committees thereof.

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect
of anything said or any vote given by him in the Legislature or any committee thereof, and no
person shall be so liable in respect of the publication by or under the authority of a House of such
a Legislature of any report, paper, votes or proceedings.

3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State,
and of the members and the committees of a House of such Legislature, shall be such as may
from time to time be defined by the Legislature by law, and, until so defined, shall be those of
that House and of its members and committees immediately before the coming into force of
section 26 of the Constitution (Forty-fourth Amendment) Act, 1978.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House
of the Legislature of a State or any committee thereof as they apply in relation to members of
that Legislature.
 92

House individually, without which they could not discharge their functions, and which
exceed those possessed by other bodies or individuals.”41

The privilege though was originating from the English law, since the same have
been given the constitutional status, they are held to be outside the purview of the Act.
It is widely seen that the speaker of the house expunges statements or records from the
Parliament„s records and it is his prerogative power to do so and as such no court shall
have any power to inquire into the acts of the Speaker. In consonance with the
parliamentary privileges the above exception was made in the Act.

In P.V.Narsimha Rao v. State42 it has been has held that the privilege of
immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the
Members of Parliament for the purpose of voting in a particular manner in Parliament.
The majority of 3 judges of the Supreme Court did not agree with the minority of judges
2 judges that the words in respect of in Article 105 (2) mean, arising out of and
therefore would not cover conduct antecedent to speech or voting in Parliament. The
Hon‟ble supreme court was however unanimous that the members of Parliament who
gave bribes, or who took bribes but did not participate in the voting could not claim
immunity from court proceeding's under Article 105 (2)43.

41
http://rajyasabha.nic.in/rsnew/rsat_work/chapter-8.pdf lat visited on 10.05.2013
42
1998 SC 2120
43
Having secured the freedom of speech in Parliament to the members under clause (a) and (2), the
Constitution, in clause (3) of Article 105, deals with powers, privileges and impunities of the
House of Parliament and of the members and the committees thereof in other respects. The said
clause is in two parts. The first part empowers Parliament to define, by law, the powers,
privileges and immunities of each House of Parliament and of the members and the committees
of each House. In thesecond part, which was intended to be transitional in nature, it was
provided that until they are so defined by law the said powers, privileges and immunities shall be
those of the House of Commons in the United Kingdom and of its members and committees at
the commencement of the Constitution. This part of the provision was on the same lines as the
provisions contained in Section 49 of the Australian Constitution and Section 18 of the Canadian
Constitution. Clause (3), as substituted by the Forty-fourth Amendment of the Constitution, does
not make any change in the content and it only seeks to omit future reference to the house of
 93

Pandit M.S.M Sharma v. Shri Sri Krishna Sinha & Ors.44, it was held by the
supreme court that “The freedom of speech that is available to Members of Parliament
under Article 105(1) is wider in amplitude than the right to freedom of speech and
expression guaranteed under Article 19(1)(a) since the freedom of speech under Article
105(1) is not subject to the limitations contained in Article 19(2). Clause (2) confers
immunity in relation to proceedings in courts. It can be divided into two parts. In the
first part immunity from liability under any proceedings in any court is conferred on a
Member of Parliament in respect of anything said or any vote given by him in
Parliament or any committee thereof. In the second part such immunity is conferred on
a person in respect of publication by or under the authority or either House of
Parliament of any report, paper, votes or proceedings. This immunity that has been
conferred under Clause (2) in respect of anything said or any vote given by a Member in
Parliament or any committee thereof and in respect of publication by or under the
authority of either House of Parliament of any report, paper, votes or proceedings,
ensures that the freedom of speech that is granted under clause (1) of Article 105 is
totally absolute and unfettered”.45

Intellectual properties: Section 8(1) (d) of the Act exempts the disclosure of
information including commercial confidence, trade secrets or intellectual property, the

Commons of Parliament in the United Kingdom while preserving the position as it stood on the
date of coming into force of the said amendment. Clause (4) of Article 105 makes the privileges
and immunities secured under Clauses (1) and (3) applicable to persons who by virtue of the
Constitution have the right to speak otherwise to take part in the proceedings of a House of
Parliament or any committee thereof as they apply in relation to Members of Parliament.
44
1959 Supp. (1) SCR 806
45
The petitioner in the case, the Editor of the English daily newspaper Searchlight of Patna, was
called upon by the Secretary of the Patna Legislative Assembly to show cause before the
Committee of Privileges of the Assembly why appropriate action should not be taken against
him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a
speech delivered in the Assembly by a member thereof, portions of which were directed to be
expunged by the Speaker.
 94

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.

This exception was incorporated in the Act in order to protect the intellectual
properties of an individual or association. The North American Free Trade Agreement
(NAFTA) defines the term „trade secret‟ as “information having commercial value,
which is not in the public domain, and for which reasonable steps have been taken to
maintain its secrecy.” The intellectual properties recognized in India are

Patents46

Trademarks47

Copyright48

Geographical indication49

Industrial designs50

Trade Secrets51

Integrated Circuits Layout Design under Semiconductor Integrated Circuits

Layout-Design52

46
Governed by The Patents Act,1970
47
Governed by The Trade Marks Act, 1999
48
Governed by The Copyright Act, 1957
49
Governed by The Geographical Indications of Goods (Registration and Protection) Act, 1999
50
Governed by The Designs Act, 2000
51
Though there is no Act at present governing the Trade Secret , nonetheless they are protected by
the common law with regard to International conventions
 95

These intellectual properties53 are foremost important for the development of the
industries, art and fair competition etc. These laws are protected from the RTI Act by
the above exception. But for the above exception all these protective laws would lost its
meaning by the overriding effect of the section 22 of the RTI Act. Hence the Parliament
has consciously included the above exception to safeguard the intellectual properties.

In The institute of Chartered Accountants of India(ICAI) Vs Shaunak H.Satya

and ors54 the RTI applicant who appeared in the exam conducted by the ICAI had
sought for instructions and solutions given to the questions to the ICAI examiners and
moderators. The ICAI claimed that the instructions and solutions key answers are
forming part of the key answers and they are protected under Section 8(1)(d). The
supreme court held that ICAI being a statutory body created by the Chartered
Accountants Act, 1948 is `State'. The term `intellectual property' refers to a category of
intangible rights protecting commercially valuable products of human intellect

52
Governed by Integrated Circuits Layout Design under Semiconductor Integrated Circuits
Layout-Design Act (SICLDA) 2000
53
Intellectual Property and Intangible Assets continue to drive the world business and their
importance is going to exponentially grow in time to come. Intellectual Property is an integral
part of the business concept and is best understood and utilized with in that context. Intellectual
Property Rights (IPR) define variety of legal rights in protecting products of intellectual efforts
of creativity in the fields of applied art, knowledge and fine arts. Intellectual Property Rights
mainly comprise trademarks, patents, copyrights, service marks, designs and confidential
information (trade secrets), know-how etc. and the right to protection from passing off.

Intellectual Property Rights are of great importance for modern industry and commerce and, in
many cases, they have a very important effect on the economy and on the very existence of a
business entity. These comprise the right to control the use of technology and creative material,
including rights in artistic, musical and literary work, and the right to prevent others from
misusing certain marks, symbols and drawings and in distinguishing one from the other.

Intellectual Property Rights provide means by which an owner or an innovator can protect his
innovation etc. from being imitated and safeguard the fruits of his valuable labour and
investment. Basically, an Intellectual Property Right gives a remedy to its owner against those
persons who want to reap the fruits of his ideas or work. The value of Intellectual Property
cannot be defined in monetary terms; it is an intangible asset of any corporate entity.
54
2011 (5) CTC 780
 96

comprising primarily trade mark, copyright and patent right, as also trade secret rights,
publicity rights, moral rights and rights against unfair competition (vide). Question
papers, instructions regarding evaluation and solutions to questions (or model answers)
which are furnished to examiners and moderators in connection with evaluation of
answer scripts, are literary works which are products of human intellect and therefore
subject to a copyright. The paper setters and authors thereof (other than employees of
ICAI), who are the first owners thereof are required to assign their copyright in regard
to the question papers/solutions in favour of ICAI. Consequently, the question papers,
solutions to questions and instructions are the intellectual properties of ICAI.
Information can be sought under the RTI Act at different stages or different points of
time. What is exempted from disclosure at one point of time may cease to be exempted
at a later point of time, depending upon the nature of exemption. Information relating to
the intellectual property, that is, the questions papers, solutions/model answers and
instructions, in regard to any particular examination conducted by the appellante cannot
be disclosed before the examination is held, as it would harm the competitive position
of innumerable third parties who are taking the said examination. Therefore it is
obvious that the appellant examining body is not liable to give to any citizen any
information relating to question papers, solutions/model answers and instructions
relating to a particular examination before the date of such examination. But the
position will be different once the examination is held. Disclosure of the questions
papers, model answers and instructions in regard to any particular examination, would
not harm the competitive position of any third party once the examination is held In fact
the question papers are disclosed to everyone at the time of examination.

It further held by the Apex court that Examining bodies like ICAI should change
their old mindsets and tune them to the new regime of disclosure of maximum
information. Public authorities like ICAI and others should realize that in an era of
transparency, the previous practices of unwarranted secrecy have no longer a place. The
 97

Accountability and prevention of corruption is possible only through transparency of

these institutions. Attaining transparency no doubt would involve additional work with
reference to maintaining records and furnishing information. Parliament has enacted the
RTI Act providing access to information, after great debate and deliberations by the
Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt
only certain categories of information from disclosure and certain organizations from
the applicability of the Act. As the examining bodies have not been exempted, and as
the examination processes of examining bodies have not been exempted, the examining
bodies will have to gear themselves to comply with the provisions of the RTI Act.
Additional workload is not a defence. If there are practical insurmountable difficulties,
it is open to the examining bodies to bring them to the notice of the government for
consideration so that any changes to the Act can be deliberated upon.

The court conclusively held that even though the Copyright Act,1957 the
question papers and solutions are given copyright, in the larger interest the same shall
have to be furnished to the RTI Applicant. However the Court made it clear that the
same shall not entitle any student to get the questions before the exams.

Maharashtra Hybrid Seeds Co. Ltd Vs. Union of India and ors55 in this case the
Delhi High court held that Reliance placed on Section 8(1)(d) of the RTI Act is also
misplaced for the couple of reasons. Firstly the court held that the Protection of Plant
Varieties and Farmers Rights Act and the Rules framed thereunder are a complete code
in themselves and reference to the provisions of the RTI Act to determine what
information can be disclosed with regard to an application for registration of a plant
variety is misplaced. Even under Section 8(1)(d) of the RTI Act the competent authority
is obliged to disclose information which is of commercial confidence or a trade secret or
intellectual property, if the competent authority is satisfied that larger public interest
55
http://www.indiankanoon.org/doc/176163010/ last visited on 10.05.2013
 98

warrants the disclosure of such information. The entire scheme of the Protection of
Plant Varieties and Farmers' Rights Act, 2001 and Section 8456 of the Plant Varieties
and Farmers Rights Act clearly shows that public interest lies in disclosure of the
applications and all information contained therewith and the proceedings undertaken
under the aforesaid Act.57

Fiduciary relationship: Section 8(1) (e) of the Act exempts the disclosure of
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.

Waker defines it: “A 'fiduciary' is a person in a position of trust, or occupying a

position of power and confidence with respect to another such that he is obliged by
various rules of law to act solely in the interest of the other, whose rights he has to
protect. He may not make any profit or advantage from the relationship without full
disclosure. The category includes trustees, Company promoters and directors,
guardians, solicitors and clients and other similarly placed”58

Anantnarayanan, J observed that “A fiduciary relationship may arise in the

context of a Jural relationship. Where confidence is reposed by one in another and that
leads to a transaction in which there is a conflict of interest and duty in the person in

56
Section 84. Document open to public inspection, „Any person may, on an application to the
Authority or the Registrar, as the case may be, and on payment of such fees as maybe prescribed,
obtain a certified copy of any entry in the Register or any other document in any proceedings
under this Act pending before such Authority or Registrar or may inspect such entry or document
57
In the above case an objector for the registration of Plant Varity registration applied for certified
copies of all details of the application filed by the Applicant for registration. The High Court held
that the same shall have to be given to the objector.
58
Oxford : Companion to Law, 1980 p.469
 99

whom such confidence is reposed, fiduciary relationship immediately springs into

existence”59

In Lyell v. Kennedy60 it was held that whenever two persons stand in such a
situation that confidence is necessarily reposed by one in the other, there arises a
presumption as to fiduciary relationship which grows naturally out of that confidence.
Such a confidential situation may arise from a contract or by some gratuitous
undertaking, or it may be upon previous request or undertaken without any authority.

This exception safeguards any information given by persons who did it son on
the ground that the information would be safeguarded by the person to whom the person
shared a fiduciary relationship61. Black‟s law Dictionary defines the word “Fiduciary
relationships” as

59
Mrs.NeHie Wapshare Vs. Pierce Lasha & Co. Ltd., AIR 1960 Mad 410
60
1889 (14) AC 437
61
In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the California Court of
Appeals defined fiduciary relationship as under : “any relationship existing between the parties to
the transaction where one of the parties is duty bound to act with utmost good faith for the benefit
of the other party. Such a relationship ordinarily arises where confidence is reposed by one person
in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he
voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts
relating to the interests of the other party without the latter's knowledge and consent.”

In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term fiduciary was defined thus
:

“A fiduciary is someone who has undertaken to act for and on behalf of another in a
particular matter in circumstances which give rise to a relationship of trust and confidence. The
distinguishing obligation of a fiduciary is the obligation of loyalty..... A fiduciary must act in good
faith; he must not make a profit out of his trust; he must not place himself in a position where his
duty and his interest may conflict; he may not act for his own benefit or the benefit of a third
person without the informed consent of his principal”

Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines `fiducial relation' thus :

“There is a technical distinction between a `fiducial relation' which is more correctly applicable to
legal relationships between parties, such as guardian and ward, administrator and heirs, and other
 100

“A relationship in which one person is under a duty to act for the benefit of the
other on matters within the scope of the relationship. Fiduciary relationships - such as
trustee-beneficiary, guardian-ward, agent-principal, and attorney-client - require the
highest duty of care. Fiduciary relationships usually arise in one of four situations : (1)
when one person places trust in the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one person assumes control and
responsibility over another, (3) when one person has a duty to act for or give advice to
another on matters falling within the scope of the relationship, or (4) when there is a
specific relationship that has traditionally been recognized as involving fiduciary duties,
as with a lawyer and a client or a stockbroker and a customer”

In Central Board of Secondary Education Vs Aditya Bandopadhyay62, the

supreme court observed that “The word `fiduciary,' as a noun, means one who holds a
thing in trust for another, a trustee, a person holding the character of a trustee, or a
character analogous to that of a trustee, with respect to the trust and confidence involved
in it and the scrupulous good faith and candor which it requires; a person having the
duty, created by his undertaking, to act primarily for another's benefit in matters
connected with such undertaking. Also more specifically, in a statute, a guardian,

similar relationships, and `confidential relation' which includes the legal relationships, and also
every other relationship wherein confidence is rightly reposed and is exercised.”

The American Restatements (Trusts and Agency) define `fiduciary' as one whose intention is to
act for the benefit of another as to matters relevant to the relation between them. The Corpus Juris
Secundum (Vol. 36A page 381) attempts to define fiduciary thus :

“A general definition of the word which is sufficiently comprehensive to embrace all cases
cannot well be given. The term is derived from the civil, or Roman, law. It connotes the idea of
trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the
transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability,
and has been held to apply to all persons who occupy a position of peculiar confidence toward
others, and to include those informal relations which exist whenever one party trusts and relies on
another, as well as technical fiduciary relations.”
62
(2011) 8 SCC 499
 101

trustee, executor, administrator, receiver, conservator, or any person acting in any

fiduciary capacity for any person, trust, or estate.”

In the case of The Tamil Nadu Public Service Commission (TNPSC) Vs. The
Tamil Nadu Information Commission63 the RTI Applicant has sought for the details
relating to recruitment of assistant engineers in a particular year and the details of the
selected candidates along with the names, marks and communal status. The TNPSC
denied the information on the ground that exemption is provided under Section 8(1)(e)
as the TNPSC is having fiduciary relationship with the candidates. The First bench of
the Madras High Court has rejected the contention of the TNPSC and held that it cannot
be stated that the information available with the Commission is held in fiduciary
relationship as the Commission is the recruiting body.

Confidential information from foreign government: Section 8(1) (f) of the Act
exempts the disclosure of information received in confidence from foreign Government.

Physical Safety of individual : Section 8(1)(g) exempt the disclosure of the

information 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. It is not concerned about the sources of information. Under the
Protection of Human Rights Act,1993 the term „Human Right‟ is defined as

“Human rights” means the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the constitution of embodied in the international covenants
and enforce able by courts in India”64

63
2010 (2) CWC 385
64
Section 2(d) of The Protection of Human Rights Act
 102

Section 8(1) (h) exempts the disclosure of information which would impede the
process of investigation of apprehension or prosecution of offenders. This is only an
exemption clause and such information is not disclosed because of the life and liberty of
the person who gave the information to the public authorities is involved. As said earlier
the source of information and the information are different aspects of the matter, and the
Act is concerned with only information as defined in Section 2(f) of the RTI Act and
Section 2(d) of the Human Rights Act, 1993.

In Central Board of Secondary Education Vs Aditya Bandopadhyay65 the

Hon‟ble Apex Court had categorized the information into three and they are explained
as follows

”The effect of the provisions and scheme of the RTI Act is to divide information
into three categories. They are:

i. Information which promotes transparency and accountability in the working of

every public authority, disclosure of which may also help in containing or discouraging
corruption (enumerated in clauses (b)and (c) of Section 4(1) of RTI Act.)

ii. Other information held by public authority (that is all information other than
those falling under clauses (b) and (c) of Section 4(1) of RTI Act.)

iii. Information which is not held by or under the control of any public authority
and which cannot be accessed by a public authority under any law for the time being in
force.

In this case the RTI applicant filed application for inspection and re-evaluation
of his answer-books. The CBSE rejected the application on the ground that the answer
books are held by it under fiduciary capacity and there is no provision under the CBSE

65
(2011) 8 SCC 499
 103

regulations. The right to access information does not extend beyond the period during
which the examining body is expected to retain the answer-books. In the case of CBSE,
the answer-books are required to be maintained for a period of three months and
thereafter they are liable to be disposed of/destroyed. Some other examining bodies are
required to keep the answer- books for a period of six months. The fact that right to
information is available in regard to answer-books does not mean that answer-books
will have to be maintained for any longer period than required under the rules and
regulations of the public authority. The obligation under the RTI Act is to make
available or give access to existing information or information which is expected to be
preserved or maintained. If the rules and regulations governing the functioning of the
respective public authority require preservation of the information for only a limited
period, the applicant for information will be entitled to such information only if he seeks
the information when it is available with the public authority. For example, with
reference to answer-books, if an examinee makes an application to CBSE for inspection
or grant of certified copies beyond three months (or six months or such other period
prescribed for preservation of the records in regard to other examining bodies) from the
date of declaration of results, the application could be rejected on the ground that such
information is not available. The power of the Information Commission under section
19(8) of the RTI Act to require a public authority to take any such steps as may be
necessary to secure compliance with the provision of the Act, does not include a power
to direct the public authority to preserve the information, for any period larger than what
is provided under the rules and regulations of the public authority.

Information under the third category does not fall within the scope of RTI Act.
Section 3 of RTI Act gives every citizen, the right to information held by or under the
control of a public authority, which falls either under the first or second category. In
regard to information falling under the first category, there is also a special
responsibility upon public authorities to suo moto publish and disseminate such
 104

information so that they will be easily and readily accessible to the public without any
need to access them by having recourse to Section 6 of RTI Act. There is no such
obligation to publish and disseminate the other information which falls under the second
category”

In Bihar Public Service Commn. vs Saiyed Hussain Abbas Rizwi & Anr 66, where
the applicant has sought for information providing the names, designation and addresses
of the subject experts present in the Interview Board, names and addresses of the
candidates who appeared, the interview statement with certified photocopies of the
marks of all the candidates, criteria for selection of the candidates, tabulated statement
containing average marks allotted to the candidates from matriculation to M.Sc. during
the selection process with the signatures of the members/officers and certified copy of
the merit list, the Hon‟ble Apex Court while denying the information has held that

“The disclosure of names and addresses of the members of the Interview Board
would ex facie endanger their lives or physical safety. The possibility of a failed
candidate attempting to take revenge from such persons cannot be ruled out. On
the one hand, it is likely to expose the members of the Interview Board to harm
and, on the other, such disclosure would serve no fruitful much less any public
purpose.”

Further it was held that

“Transparency in such cases is relatable to the process where selection is based

on collective wisdom and collective marking. Marks are required to be disclosed
but disclosure of individual names would hardly hold relevancy either to the
concept of transparency or for proper exercise of the right to information within
the limitation of the Act. The possibility of a failed candidate attempting to take

66
2013 2 LW 293
 105

revenge from such persons cannot be ruled out. On the one hand, it is likely to
expose the members of the Interview Board to harm and, on the other; such
disclosure would serve no fruitful much less any public purpose.”

Thus it was clear that the persons who are seeking information with malafide
motive have no right to seek information under the Act and the authorities under the Act
are bound to see the motive of the applicants under the Act from the nature of the
questions asked for and they shall also consider the nature of information sought for
which would be in the nature of endangering the lives and liberty of individuals.

Though section 8(1)(g) of the Right to information Act refers to would endanger
the life or physical safety of any person, other human rights defined under the Human
rights Act such as liberty equality and the dignity of the individual guaranteed under the
Constitution of India embodied in the international covenants and enforceable in courts
in India, it is necessary to incorporate the Human Rights into the exemption under
Section 8(1)(g) of the Act. Non inclusion of the dignity of the individual in section
8(1)(g) would violate the Chapter III of the Constitution of India which confers the
fundamental rights to citizens. The Hon‟ble Supreme Court of India67 while dealing
with the judgement passed by the Division bench of the Himachal Pradesh High Court
relating to the ragging of students in medical college extracted the following finding of
the division bench of the Hon‟ble High Court.

“The Division Bench of the High Court presided over by the Chief Justice
treated these two letters as constituting the Memo of Writ Petition,but directed that
these two letters should not be placed on the record of the proceeding in view of the
request made by the guardian that the identity of the writer should not be disclosed in
the proceedings.”
67
State of Himachal Pradesh v. A parent of a student of medical college, Simla and ors., [1985] 3
SCC 169
 106

The very object of the direction that the letters written by the guardian of the
student should not be placed on record is to protect the informer from any attack by the
affected students against whom action was initiated by the college. It is a common
knowledge that when the information about the commission of an offence is reported to
police authorities or any authorities the informant must be protected. Otherwise the life
and liberty of the informant will be at stake. Keeping the above principle in mind
Section 8(1) (g) was made to protect the life and liberty of a person. As per provision to
Section 7(1) the seriousness of the information about the life and liberty of the citizen is
well considered and time limit is fixed for taking action.

Section 8(1)(i) exempt the disclosure of information relating to cabinet papers

including records of deliberations of the Council of Ministers, Secretaries and other
officers. However the sub section contains a proviso that reads as follows

“that the decisions of Council of Ministers, the reasons thereof, and the material
on the basis of which the decisions were taken shall be made public after the decision
has been taken, and the matter is complete or over”.

Furthermore the sub section contains a exception to proviso that reads as follows
“Provided further that those matters which come under the exemptions specified
in this section shall not be disclosed”

Section 8(1)(j) exempt the disclosure of the 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. The sub section contains an exception that
 107

reads as follows “Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person”.

This exemption was in consonance with the Article 12 of the Universal

Declaration of Human Rights which provides 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"

In Central Public Information Officer, Supreme Court of India Vs. Subash

Chandra Agarwal68, where the applicant has sought for the information sought for
relating to appointment of judges and the correspondence and notings of prime
minister‟s office in relation to the appointment of judges, the Hon‟ble Delhi High Court
has allowed the writ petition and the Supreme Court while referring the matter to larger
bench has held that

“the right to information Act merely recognizes the constitutional right of a

citizens freedom of speech and expression. Independence of judiciary forms part
of basic structure of the constitution of India. The independence of judiciary and
the fundamental right to free speech and expression are of a great value and both
of them are required to be balanced”

Even though section 22 has overriding effect over all other laws for the time being in
force it does not cover the exemptions given under the Section 8 of the Act. The Delhi
High court has occasioned to clarify the issue in the case of Vijay Prakash Vs Union of
India69

68
(2011) 1 SCC 496
69
http://indiankanoon.org/doc/1483548/ last visited on 10.05.2013.
 108

“Though by Section 22, the Act overrides other laws, the opening non-obstante
clause in Section 8 ("notwithstanding anything contained in this Act") confers primacy
to the exemptions, enacted under Section 8(1). Clause (j) embodies the exception of
information in the possession of the public authority which relates to a third party.
Simply put, this exception is that if the information concerns a third party (i.e. a party
other than the information seeker and the information provider), unless a public interest
in disclosure is shown, information would not be given; information may also be
refused on the ground that disclosure may result in unwarranted intrusion of privacy of
the individual. Significantly, the enactment makes no distinction between a private
individual third party and a public servant or public official third party. 70” In this case it
was held that It is interesting to note that paradoxically, the right to privacy, recognized
as a fundamental right by our Supreme Court, has found articulation - by way of a
safeguard, though limited, against information disclosure, under the Information Act. In
India, there is no law relating to data protection, or privacy; privacy rights have evolved
through the interpretive process. It was held in this case that the "public interest"
argument of the Petitioner is premised on the plea that his wife is a public servant; he is
in litigation with her, and requires information, - in the course of a private dispute - to
establish the truth of his allegations.

In Girish Ramchandra Deshpande v. Central Information Commissioner and

others71 wherein an application for information was filed for seeking copies of all
memos issued to the third respondent, show-cause notices and orders of
censure/punishment, etc, the Supreme court of India held that the information

70
In this case the RTI Applicant sought for details requesting for information in respect of his wife's
service records pertaining to all leave application forms submitted by her; attested copies of
nomination of DSOP and other official documents with financial implications, and the changes
made to them; record of investments made and reflected in the service documents of his wife,
along with nominations thereof.
71
(2013) 1 SCC 212
 109

pertaining to the service career of the third party to the said case and also denied the
details relating to assets, liabilities, moveable and immovable properties of the third
party on the ground that the information sought for was qualified to be personal
information as defined in clause (j) of Section 8(1) of the RTI Act.

THE PUBLIC SERVANT TOO HAS RIGHT TO PRIVACY

A person's right to privacy guaranteed under Article 21 of the Constitution of

India is undoubtedly of the same order as that of a public servant. The fundamental right
to privacy of a person does not change its nature the moment the person joins the public
office. There may arise three situations. The public servants may not want the whole
world to know why his or her promotion was denied or overlooked etc. The defence of
privacy in such a case cannot be lightly brushed aside saying that since the officer is a
public servant he or she cannot possibly fight shy of such disclosure. There may be yet
another situation where the officer may have no qualms about such disclosure. And
there may be a third category where the credentials of the officer appointed may be
thought of as being in public interest to be disclosed.

In R.K.Jain Vs Union of India72 the RTI Applicant sought for details of the
copies of all note sheets and correspondence pages of file relating to one Ms. Jyoti
Balasundram, Member/CESTAT. It also includes the Annual Confidential report of that
officer. The Hon‟ble Supreme Court of India denying the request of the applicant on the
ground that “details called for by the petitioner i.e. copies of all memos issued to the
third respondent, show-cause notices and orders of censure/punishment, etc. are
qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI
Act. The performance of an employee/officer in an organisation is primarily a matter
between the employee and the employer and normally those aspects are governed by the
72
http://indiankanoon.org/doc/70139862/ in SLP(C)No.22609 of 2012 dated 16.04.2013 last visited
on 10.05.2013
 110

service rules which fall under the expression “personal information”, the disclosure of
which has no relationship to any public activity or public interest. On the other hand, the
disclosure of which would cause unwarranted invasion of privacy of that individual. Of
course, in a given case, if the Central Public Information Officer or the State Public
Information Officer or the appellate authority is satisfied that the larger public interest
justifies the disclosure of such information, appropriate orders could be passed but the
petitioner cannot claim those details as a matter of right.”

Union public Service Commission Vs R.K.Jain73 the Hon‟ble Delhi High Court
provide inspection of all records, documents, note sheets, manuscripts, records,reports,
office memorandum, part files and files relating to the proposed disciplinary action
and/or imposition of penalty against Shri G.S. Narang, IRS, Central Excise and
Customs Service Officer of 1974 Batch and also inspection of the records, files, etc.,
relating to the decision of the UPSC thereof Shri G.S. Narang is presently posted as
Director General of Inspection Customs and Central Excise and to provide copies of all
the note sheets and the final decision taken regarding imposition of penalty/disciplinary
action and decision of UPSC thereof.

The division bench of the Delhi High Court held that the the disciplinary orders
and the documents in the course of disciplinary proceedings are personal information
within the meaning of Section 8(1)(j) and the disclosure of which normally has no
relationship to any public activities or public interest and disclosure of which would
cause unwarranted invasion of the privacy of an individual. Though the appellant UPSC
is not the employer of Shri G.S. Narang, information pertaining to whom is sought by
the respondent, but his employer had sought the advice/opinion/recommendation of the
appellant UPSC in the matter of disciplinary proceedings against the said Shri G.S.

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Narang and we fail to see as to how it makes a difference whether the information
relating to disciplinary proceedings is sought from the employer or from the consultant
of the employer. What is exempt in the hands of the employer would certainly be
exempt in the hands of consultant of the employer also. The advice given by the
appellant UPSC would necessarily pertain to the disciplinary action against Shri G.S.
Narang. Section 8(1)(j) exempts from disclosure personal information, irrespective of
with whom it is possessed and from whom disclosure thereof is sought. Further the
Hon‟ble Delhi Court has held that the Petitioner in the instant case has not made a bona
fide public interest in seeking information, the disclosure of such information would
cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI
Act.

The Section 22 will come into operation only when there are inconsistency
between the provisions of the RTI Act and provisions contained in any other law of the
time being in force. Hence any provision in any Act or regulation which is in
consonance with the exemptions and exceptions contained in Section 8 of the RTI Act ,
in such cases the denial of information under such Acts are not illegal and in such cases
the section 22 does not come into operation at all.

Therefore the Section 8 acts as an exception to Section 22 itself and as such the
provisions in any law for the time being force which prohibits the disclosure of the
information and which also comes within any of the exceptions under the Section 8 of
the Act are valid in the eyes of law and they are not affected by the overriding provision
contained in the section 22 of the RTI Act,2005.