VBULB311: RIGHT TO

INFORMATION

The course comprise of the following:

1. Conceptual Background: Right to know, Open Government
and Transparency in Governance

Right to know: Fundamental liberty and autonomy are also served by

right to know legislation. These make people aware of the dangers that
accompany their choices also, permit them to pick if they want to
confront these dangers. Enactment giving the option to know likewise
advances popularity based dynamic and the authority of common
people. Residents can draw in on a more equivalent premise in
controlled substances grants, land use, and other political decisions if
access to a better version of information is available to them. Both,
residents and the members of the public utilizing the space may apply
pressure on the company to limit their operations that are dangerous or
ask them to do away with the harmful exposures that are needless. Right
to know legislation might also enhance safety as well as health by
easing emergency preparation, preventing accidents, and assisting the
government deciding what areas are required to be better regulated.

They likewise give a solid motivation to firms to take part in self-

guideline and decrease dangerous exercises; for instance, when
organizations should pick between revealing hurtful substances in their
item and reformulating the item to dispose of the destructive substances,
they every now and again decide to dispense with the substances. The
right to data is, unquestionably, a fundamental right. It is a part of the
"opportunity of articulation" ensured by Article 19(1)(a). The option to
know has worked on the effectiveness of dynamic. It has set up

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transparency and responsibility in the activity of government
organizations. The reception of the Right to Information Act, 2005, has
brought about a decrease in debasement in government divisions. Note
here that under a mindful government like our own, residents reserve a
privilege to know that their administration is doing.

They reserve a privilege to think about each open Act, all that is done in
a public way, because of the public authority's public working. It has
been guaranteed that presenting oneself to public analysis and review is
one of the surest approaches to guarantee a perfect and sound
government. The idea of open government is professed to be an
immediate spread of the option to know, which has all the earmarks of
being innate in the opportunity to talk and put oneself out there under
article 19(1)(a). Residents reserve the privilege to choose by whom and
by what rules they will be represented, and they reserve the option to
hold the individuals who oversee for their sake responsible for their
activities, with the goal that a resident who will pay the necessary
charge has the option to demand duplicates of public archives and to
examine such records.

These incorporate the option to approach security under the law and
equity under the watchful eye of the law i.e., Article 14, the right to
opportunity of articulation (Article 19 (1) (a), and the right to life and
individual freedom (Article 19 (1)(b)) (Article 21). Article 32 of the
Constitution ensures the right to protected cures, for example the
capacity to record a grievance with the Supreme Court in case these
rights are abused. The Supreme Court progressively deciphers these
rights, they consistently and may truly be considered to shape the
establishment which can help develop the Rule of Law in India.

In State of U.P. v. Raj Narain It was accepted that under an arrangement

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of obligation like our own, where all open entertainers should be
considered responsible for their activities, there can be not many
mysteries. The residents of this nation reserve an option to think about
each open demonstration, each open demonstration performed by their
local officials. They are completely qualified for now the points of
interest of each open exchange in the entirety of its repercussions.

In Union for Civil Liberties v. Union of India, Justices S.B. Sinha and
B.M. Khare not really settled that the right to data is a part of the ability
to speak freely 'and articulation' ensured by Article 19(1)(a) of the
Indian Constitution. In this manner, the right to data is irrefutably an
essential right.

Govt. of India versus The Cricket Association of Bengal According to

the Supreme Court, the right to speak freely of discourse and
articulation incorporates the right to gather and confer data. It permits
individuals to take part in conversations on friendly and moral issues.

The right to free articulation involves the right to schooling, data, and
amusement, just as the option to be instructed, educated, and engaged.
Accordingly, the option to communicate falls under the domain of
Article 19 (1)(a).

In S.P. Gupta v. Union of India12 It is perceived that to keep up with

individuals' persistent commitment in the vote-based cycle, they should
be kept mindful of basic decisions made by the public authority. Popular
government requests straight forwardness, and receptiveness is a
necessity of a society that is free. Nonetheless, in the past two
examples, the Supreme Court stayed quiet on the subject of the
connection between the limits that ought to be forced on the option to
know and the reasonable limitations that till recently exist on the right
to speak freely of existing discourse and articulate freely under Article

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 19 (1)(a).

In Union of India v. Association for Democratic Reforms The Supreme

Court has remarked that the right of voters have knowledge of the
candidates' histories is based on the broader reading of Article 19(1) (a).
The basis of good democracy is well-informed citizenry. Free and fair
elections are the fundamental structure of the Constitution; for example,
if the candidates are literate, his assets and his responsibilities, if they
are convicted of any criminal crime, this information should be
available to all voters.

In Bennet Coleman and Co. v. Union of India The Supreme Court

examined from a different viewpoint at press freedom within the scope
of Art. 19(1)(a). Constitutional protections for freedom of expression
are not so much in the interest of the press as it is in the public interest.
The opportunity of articulation includes the option to be perused and
educated by all residents. Notwithstanding these significant models, the
option to know and the right to data are regarded in various conditions.
It shows that we as of now reserve the privilege to data as
accommodated in Article 19(l)(a) of the Indian Constitution. Moreover,
the option to know and be known as an extended component of free
discourse and articulation is our central right under Chapter III of the
Constitution. As per the Constitution, if the State abuses key rights, the
individual concerned may continue quickly to the Supreme Court in
accordance with Article 32 or to the High Court as per Article 226.
Open Government and Transparency in Governance: An open government
is guided by the principle of transparency, accountability, participation, and
collaboration. Open government is a topic of growing importance in
administrative law. The modern trend is towards more open
government. Openness in government is bound to act as a powerful check on

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the abuse or misuse of power by the government.
One of the most neglected rights in democracies throughout the world is the
Right to Information, which though, being one of the most cherished
human rights has largely been disregarded by most countries throughout
the world, including India. The Right to Freedom of Information is now
considered to be a customary international law, which is exemplified from the
enshrinement of the right in numerous state constitutions, as well as various
international covenants and treaties most notably the Universal Declaration
of Human Rights [herein after UDHR], the International Covenant on Civil and
Political Rights [hereinafter ICCPR] and the European Commission on Human
Rights [hereinafter ECHR] among others.
The right to information has both intrinsic and instrumental value. Its
intrinsic value comes from the fact that citizens have a right to know. It is a
crucial step towards a deeper, more meaningful democracy. More tangibly, in a
country like India it can promote action for development and therefore
has considerable instrumental value. Information enables people to make
enlightened choices, and keep tabs on elected representatives and officials
who claim to act on their collective behalf. Thus, accountability and
transparency are both enhanced radically.
The legal right to request information (RTI) can lead to more open,
accountable, and participatory government. OGP members are required
to have laws enabling fair access to information. Through OGP, the
effectiveness of these laws can be improved by removing additional barriers to
information and creating platforms to report on fraud or corruption.
OGP members are also expanding the frontiers of RTI by
empowering citizens to use information to participate and shape
policies, services and budgets. This has been particularly effective at the local
level where governments are closest to their citizens.

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There are several aspects of open government:
1. Presentation of documents by the government in the court in the course of
some litigation.
2. Official secrecy.
3. Access to information.
People’s right to know has two aspects:

 How far government should use criminal sanction to deter free flow of
information?

 How far government is under a positive obligation to make available, on

demand, information to the people not in the prohibited category?
Contribution in Open Government:

 Participation- Participation of both men and women is the corner stone

of good governance. Representative democracy does not mean the
rule of chosen few; it must take into interest of all sections
specially the most vulnerable sections in the society. The Right
to information acts gives people a chance to participate not just one in
five years, but every day and question any decisions. The right to
Information act gives an opportunity to the common men to
participate in governance and reduce the imbalance in power
relationship, provides a tool to oppose injustice and allows collective
spirit to make democracy work for everyone. Right to
information act also strengthen grassroots democracy and ensures
peoples participation in local governance and development activities.

 Accessibility- Right to Information makes it possible to easy

access of information from government departments, documents,
records, services, finances and policies to all sectors of community.
The Right to Information act by providing easy access of information

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 reduces the traditional long gape between citizens and administration
and thus helps in nation building process. The right to know and
easy access of government information helps the people to understand
the limitations of government at different levels. The availability
of information also helps to foster in development process and it is a
symptom of true and mature democracy.

 Transparency- Transparency is the milestone of good

governance. Transparency means that decisions taken and their
enforcement are done in a manner that follows rules and regulations. It
also means that information is freely available and directly accessible to
those who will be affected by such decisions and their enforcement.

 Transparency and accountability are possible only when the public have
access to information. The enactment of Right to Information act
2005, people are now able to seek information from any
government department with a definite time frame.
The Right to Information act is intended to promote accountability
and transparency in government by making the process of government
decision making more open. Though some departments of the Union
government are exempted from this act but the information can
be sought if it is concerned with violation of human rights. Even the
information from the private authority can be sought only through
the controlling authority and controlling authority will send the
notice to the institution concerned under section 11 of the act. In addition to
this, the citizens are taxpayers, so they have every right to ask the
government.
We can also say that after the RTI Act came the provisions in it have also
give some rules and regulations that which information should be

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disclose and which should not under Section 8 and 9 and
Section 24 also provide which organizations should be exempted. So,
we can say that RTI is definitely a helping hand of Government and it helps
to make Government more Transparent and Accountable under some rules
and regulations.

TRANSPARENCY: The symbiotic relationship between sin and

secrecy is now universally recognised. It was Max Weber, the theorist of
bureaucracy, who was the first to point out that ‘secrecy’, is an
‘invention’ of the bureaucracy in the interest of ‘power’.

Firstly, there is considerable evidence now to suggest that a

government, which operates in greater secrecy, is more prone to
corruption as compared to a government, which operates in greater
openness. This is why, the right to information is considered as a
significant step in empowering people to combat state corruption.
Secondly, the right to information helps to strengthen the foundations of
democracy. Unlike a totalitarian government, a democratic government
needs to be based on the trust of the governed. It should therefore,
function in public view as much as possible so that the citizens know
about its aims, policies and programmes and help the government to
accomplish them. Maximum secrecy in governmental functioning, on
the contrary, would tend to promote corruption, oppression, nepotism
and misuse or abuse of authority, and thereby, alienate the government
from the governed. To reiterate the words of the Franks Committee of
the United Kingdom (1972), "A government which pursues secret aims,
or which operates in greater secrecy than the effective conduct of its
proper functions require, or which turns information services into
propaganda agencies, will lose the trust of the people. It will be
countered by ill-informed and destructive criticism". Information is vital

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for making the government responsive to public needs. Openness or
transparency in governmental functioning is, therefore, regarded as an
essential ingredient of democracy and the right to information as a
fundamental democratic right.

Thirdly, democracy, to be effective and meaningful, should also have

responsive administration which is a bilateral process. On the one side,
administration is required to be citizen-centric, which implies that it
should be responsive to the citizens' legitimate needs, aspirations and
grievances. The citizens, on the other side, are required to be
cooperative and yet vigilant. For, it is the eternal vigilance of
enlightened citizens, which facilitates accountability and prevents
arbitrariness in public administration, and brings it closer to the citizens.
An eternal and enlightened vigilance is, thus, the best guarantee of
democratic government. There is no denying that the right to know is an
effective means for the citizens' enlightenment. For, it is this right,
which gives them access to government departments and documents
and thereby enables them to acquire knowledge of what is happening in
the government. Fourthly, the right to information tends to remove
unnecessary secrecy surrounding the decision-making process in the
government, and thereby helps to improve the quality of decision
making in public policy and administration. It enables the citizens to
know about the government decisions and the basis on which they are
made so that they can exercise sound judgement on the merits of public
policies and respond appropriately to influence the process of policy
formulation and decision-making in public governance. Last but not the
least, the right to information is an effective means to strengthen grass
roots democracy and ensure people's participation in local governance
and development activities. It would also bring the local governments
under public scrutiny and thereby help them to avoid “costly mistakes”.

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To quote James Madison, one of the founding fathers of the American
Constitution, “a popular government without popular information or
means of acquiring it, is but a prologue to a farce or a tragedy or
perhaps both.”

According to Aruna Roy, ‘the right to information touches all levels of

governance. If even one per cent of the country uses it, it can shape
democracy in the country. Central debates like corruption in public
office, corruption in public office, corruption in political parties and the
corrupt deals of national governments will all be set against the context
of facts” (Lakshman, 2005).

Without information, people cannot adequately exercise their rights and

responsibilities of citizens or make informed choices. Government
information is a national resource. Neither the particular government of
the day nor public officials create information for their own benefit.
This information is generated for purposes related to the legitimate
discharge of their duties and for the service of the public for whose
benefit the institutions of government exist and who ultimately (through
one kind of import or another) fund the institutions of government and
the salaries of officials. It follows therefore that the government and its
officials are merely ‘trustees’ of this information for the people
(Mander, 2003).
2. Privilege to withhold disclosure of Documents/Informations:
Comparative analysis of Laws in other Common Law –
countries with special reference to (a) England (b) U.S.A.
ANSWER: The constitution of India seeks to establish a Democratic
Rebuile where under the equality clauses there is no question of
privileged position or immunity in favour of the state. However,
government vis-à-vis the individual is always a government. There are

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numerous privileges and immunities which are legally recognized and
enforced in favour of the government. Government Privilege to
Withhold Documents
(a) Position in England
In England, the crown enjoys special privilege of with hold disclosure
of documents, referred to as the rule of “crown privilege”. It can refuse
to disclose any evidence or to answer any question if in its opinion such
disclosure or answer would be injurious to the public interest. The rule
is based on the postulate that public welfare is the highest law. the
public interest requires that justice should be done but it may also
require that the necessary evidence should be suppressed. This right can
be exercise by the crown even in those proceedings in which it is not a
party.
The leading case on “crown privilege” is Duncan v Carmel Laird and
Co. Ltd. Which arose at the time of second world war when the
submarine Thetis sank during her trials. Numerous actions were brought
against respondents by the representatives of the deceased, claiming
damages for negligence. The widow of one of the dead persons sought
discovery of documents in order to establish liability against the
government contractors. The admiralty claimed crown privilege which
was upheld by the house of lords. It was ruled that the affidavit filed by
the minister that the disclosure will be against the public interest could
not be called into question. Lord Simon said : “ The principle to be
applied in every case is that Documents otherwise relevant and liable to
production must not be produced in the public interest required that they
should be withheld .“ In Ellis v Home Office, a prisoner assaulted Ellis
who was an under-trial prisoner. The prisoner who assaulted was under
observation as a suspected mentally defective. Ellis alleged negligence
on the part of Prison Authorities but he lost his action as the crown
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claim privilege in respect of the medical reports. It is submitted that the
evidence could have been disclosed without any injury to public
interest. However, Conway v Remmer,1968, the document was ordered
to be produced as the disclosure was not injurious to the public interest.
By this decision, the House of Lords have brought back into legal
custody a dangerous executive power. The privilege is now described
the ‘public interest’ privilege instead of a Crown Privilege.
(b) Position in India
(1) Predominance of public interest: In India, the government privilege
to withhold documents from the courts is claimed on basis of section123
of the Indian Evidence Act, 1872 which reads as under :
“ No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of state, except with
the permission of the officer at the head of the department concerned,
who shall give or withhold such permission as he thinks fit.
As a general rule, the requirement is that both the parties to the dispute
must produce all the relevant and material evidence in their possession.
If any party fails to produce such evidence, an adverse inference can be
drawn under section 114 of the Evidence Act. Section 123 gives a great
advantage to the Government in as much as in spite of non-production
of relevant evidence before the court, no adverse inference can be
drawn against it if the claim of privilege is upheld by the court. This
thing undoubtedly constitutes a very serious departure, from the
ordinary rules of evidence. The basis on which this departure can be
justified is the principle of the “overriding and paramount character of
public interest” i.e. when the public interest served by disclosure is
outweighed by the public interest served by non-disclosure of
documents. The leading case on the subject is, State of Punjab v Sodhi
Sukhdev Singh, decide by the supreme court. In this case, the
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respondent who was a District & Session Judge was removed from
service by the President of India. He made a representation against the
removal. In pursuance of the representation, the council of ministers
secured the advice of the public service commission and therefore
decided to re-employ him. He then filed a suit for declaration that his
removal was illegal and void. He wanted production of certain
documents. The state claimed privilege in respect of them. The supreme
court by majority held that the documents in question were protected
undersection 123 of Evidence Act and could be withheld from
production on the ground of public interest.
(2) Balancing of Public Interest: In State of U.P. v Raj Narayan, Raj
Narayan had filed an election petition against the then prime minister
Smt. Indira Nehru Gandhi. During the trial, he made an application for
production of certain documents. The U.P. Government claimed
privilege in respect of those documents. The Allahabad High Court
rejected the claim for privilege. On appeal, the supreme court set aside
the Allahabad judgement.
(3) Ideal of Open Government as alternate measure: The final decision
in regard to the validity of an objection against disclosure raised
undersection 123 would always be with the court by reason of
section102. The court is not bound by the assertions made by the
government in support of plea against non-disclosure. The court has the
power to balance the injury to the state or the public service against the
risk of injustice, before reaching the decision. Example for this is the
case,
Reliance petrochemicals Ltd. V Indian Express Newspapers
(4) Class Privilege: In State Of Bihar v Kripalu Shankar , the supreme
court held that government files are privileged documents and no
contempt proceedings, civil or criminal can be initiated on the basis of
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noting on the files as the privilege is necessary in order to maintain the
independent functioning of civil services and fearless expression of
views. Similarly the court in Doy Pack Systems Pvt. Ltd. V Union of
India, laid down that it is the duty of the court to prevent disclosure of
documents where article 74(2) of the constitution is applicable.

(C) Position in USA

Executive privilege is the power of the President and other officials in
the executive branch to withhold certain forms of confidential
communication from the courts and the legislative branch. When
executive privilege is invoked in litigation, the court should weigh its
applicability by balancing competing interests. The Constitution is
silent on the executive power to withhold information from the courts or
Congress; the privilege is rooted in the separation of powers doctrine
that divides the power of the United States government into legislative,
executive and judicial branches.

United States v. Nixon, also known as the Watergate Scandal, has

established that even a President has a legal duty to provide evidence of
one’s communications with his aides when the information is relevant
to a criminal case. By requiring the President to turn over recordings of
private conversations that he had with his aides, the Court’s decision
has helped frame how to define executive privilege in judicial setting.
Even before the Nixon decision, however, some courts have required
the executive branch to provide governmental records and documents
prepared for the President.

In civil actions, federal decisions have recognized the executive

privilege over the officials’ internal communications and advice based
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 on the law of evidence. However, the courts have held that the
applicability of the privilege should be decided on a case by case basis
by weighing the need for the administration of justice against the need
to protect confidentiality. Courts have generally held that statements of
facts are exempt from the privilege while subjective opinions,
recommendations and advice are protected.

3. Privilege to withhold documents and the law in India – with

special reference to:

(a) Indian Evidence Act, 1872

(b) Indian Telegraph Act, 1885
(c) The Official Secret Act, 1923
(d) The Atomic Energy Act, 1962
4. Right to Information and Legislative Measures in India
 Efforts/attempts made to legislate right to Information
 Right to Information Act, 2005
5. Right to Information and Judiciary
 Electoral reforms,

Transparency in governance:

Transparency

The term ‘transparency’ refers to the ‘increased flow of timely and reliable
information, which is accessible to all the relevant stakeholders’. In other
words, transparency is the dissemination of regular and accurate
information. It is about making decisions and actions visible and about
sharing and disclosing the necessary information to the stakeholders
involved.

Transparency in Governance

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Transparency in governance is the idea that the people have a right to know,
what their government is doing, and the government has an obligation to
provide that information. It means that the criteria, process and systems of
decision-making are openly known to all in a public manner. For example,
the selection of beneficiaries for any government scheme such as ‘Skill
India Mission’ would be based on explicitly known and publicly
communicated criteria; it will also be known as to who will apply these
criteria, when and how? And, what benefits would accrue to those families
and individuals who fit these criteria? When will these benefits accrue, at
what costs or mutual obligations? Thus, transparency is about shedding light
on rules, plans, processes and actions. It is about knowing why, how, what,
and how much. It ensures that public officials, civil servants, managers,
board members and businessmen act visibly and understandably, and report
on their activities and it means that the general public can hold them to
account. A transparent government is one that provides accurate information
about itself, its operations, and the country as a whole, or permits that
information to be collected and made available. It upholds the idea of non-
secrecy and openness of information in administration.

Concept and Fundamentals of Transparency

Transparency is sometimes more narrowly defined as ‘the release of

information which is relevant for evaluating institutions’, however,
transparency includes not only making information available and accessible
to stakeholders, but also that laws and regulations are administered and
implemented in an impartial and predictable manner. Transparency implies
a proactive effort to make information accessible to citizens. It is about
publishing information and inviting people in, to use the information in
creative ways. An organization’s transparency can be measured by the
‘depth of access it allows’, the depth of knowledge about processes it is

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willing to reveal, and the attention to citizen response it provides.
Transparency is one indicator of a government that is citizen-focused and
service-oriented. The more transparent an organization is, the more it is
willing to allow citizens to monitor its performance and to participate in its
policy processes, the more is the transparency in governance.

Types/Forms of Transparency

There are two forms of transparency, i.e., agent controlled and non-agent
controlled transparency. The release of government information by
governments can be seen as a typical instance of an agent controlled
transparency, while the use of that information by external factors, such as
media, NGOs or citizens is non-agent controlled. The objective of
governance shall be the emphasis not only on the provision of information,
but also the ability of external actors to demand and gain access to the,
information not provided routinely by political and administrative
institutions, i.e. both agent-controlled and non-agent controlled
transparency, but importantly, non-agent controlled transparency.

Dimensions of Transparency

„ Government Openness/Access to Information: Government openness

is defined as the quantum of information that the government releases, i.e.,
the extent to which governments publish information electronically or
makes it available otherwise, as well as the extent to which the citizens can
demand and receive information not published proactively.

„ Publicity of Information: There are principally two different types of

information displays- Clear and Opaque. While, ‘opaque’ refers to the type
of information which does not reveal how institutions actually behave in
practice, in terms of how they make their decisions or the results of their
actions, clear displays on the other hand refer to the access information on

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institutional performance, official responsibilities and flow of public
money. Clear transparency, thereby sheds light on institutional behaviour,
which permits individuals to exercise greater control over the delivery of
services; they need to be explicit in terms of ‘who does what and who gets
what’.

„ Protection to Whistle-blowers: Whistle-blowing is one of the

fundamental conditions upon which disclosure of abuses of power rests. It
is often defined as ‘the disclosure by organization members (former or
current) of illegal, immoral or illegitimate practices under the control of
their employers, to persons or organizations that may be able to effect
action’. Whistle-blower protection allows individuals to disclose
information despite their individual connection to, and vulnerability to
retaliation from those in power. It is the government measures aimed at
protecting whistleblowers from sanctions, incentives for people to do so
and more proactive laws aimed at changing organizational culture, as well
as providing a conducive environment for competition and press freedom
that determines the nature and scope of transparency in a country.

Significance/Importance of Transparency

„ Transparency as a Tool of Good Governance: Transparency is

necessary to guarantee good governance. Information is valuable to the
electorate for democratic processes to function successfully. Citizens have
an interest in knowing about government actions and processes, allocation
and redistribution decisions, market barriers and restrictions, tax and
subsidy incidences and so on.

„ Check Against Mismanagement and Corruption: Greater transparency

may bring about lower rates of political corruption because it can facilitate
legal, administrative or electoral mechanisms of punishment. Formal and
informal mechanisms of transparency and accountability encourage

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government officials to act in the public interest. Without public access to
records of governance and other information, public resources may be
squandered and mismanaged.

„ Citizen Empowerment: Access to information is critical for enabling

citizens to exercise their voice, to effectively monitor and hold government
to account, and to enter into informed dialogue about decisions which
affect their lives. It is seen as vital for empowering all citizens, including
vulnerable and excluded people, to claim their broader rights and
entitlements.

Privilege and immunities of journalist involved in legal reporting:

According to Sec. 5 of the Contempt of Courts Act, 1971 a person shall not
be guilty of contempt of court for publishing any “fair comment” on the
merits of any case which has been “heard and finally decided”.

Now two questions arise. What is “fair comment” and what is meant by
“heard and finally decided?”

Fair Comments

There is no single formula to decide the fairness of a comment. The matter

depends on the facts and circumstances of each case. To comment on the
correctness of a judicial decision, whether on law or facts, is not contempt.
Similarly, to point out inequality of sentences in two different cases of the
same nature, is also not contempt. However, while commenting on the
merits of a case if improper motives are imputed to the judge, then the
comment ceases to be fair.

Similarly, to express that the judgement was arbitrary or the judge was
incompetent is also contempt.

Heard and Finally Decided

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A fair comment on the merits of a case can be made when it is heard and
finally decided. A case cannot be said to have been finally decided until the
period of limitation for filing appeal has expired. Where an appeal or
revision has been filed, the comments on the merits of the case should not
be published until the appeal is finally decided. P.M. Bakshi states in his
book Press Law that in practice no one waits for the expiry of the limitation
period.

Ignorance of Pendency

If a court story interferes with the course of justice, but its reporter had no
reasonable ground to assume that the proceedings were pending, then one
will not be guilty of contempt of court. Prior to the enactment of Contempt
of Court Act, 1971, ignorance of pendency was not a defence or excuse.

Fair and Accurate Report

According to Section 4 of the Contempt of Court Act, 1971, fair and

accurate report of the court proceedings is lawful. However, a report will be
contemptuous if it has been prohibited by the court or is forbidden by any
law.

Amendment of 2006 to Contempt of Courts Act, 1971

The 2006 amendment to the Act provides for truth as a valid defence in
contempt proceedings.

In an article ‘Tensions between Natural Allies’ by V. Venkatesan, published

in The Hindu, New Delhi of 26 June 2013, the writer’s observation is that
the 2006 amendment has not really lead to any appreciable increase in
reports critical of the judiciary. The reason perhaps is that this defence is
available to the alleged contemner only at the sentencing stage, and the
courts are free to find one guilty, irrespective of the amendment.

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Venkatesan further states that Section 13 (b) of the Act – inserted by the
amendment – gives wide discretion to the courts to admit truth as a defence
to contempt proceedings if such a defence is in “public interest”, and the
request for invoking the defence is “bona fide”.

Academic Writing

Academic writing or a report written academically on a point of law is not a

contempt of court, just on the ground that the law discussed is at issue in a
court.
 Extent of liability for Contempt of Court
Contempt of court are classified under three broad categories, according to
Lord Hardwick:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

However, in India, contempt is classified under two major categories:

1. Civil contempt
2. Criminal contempt
Civil Contempt
According to section 2(b) of the Contempt of Courts Act, 1971 civil
contempt means willful disobedience to any judgement, decree, direction,
order, writ or other process of a court or willful breach of an undertaking
given to a court.
Thus from the abovementioned definition it can be ascertained that there are
two important essentials to constitute civil contempt:
1. Disobedience of any judgement, decree, direction, order, writ or
other process of a court or an undertaking given to the court.
There should be disobedience of a valid order to constitute contempt of

21
court. An order includes all kinds of judgements, orders-final, preliminary,
ex-parte, contempt order. Disobedience of a decree, direction, writ or other
process of a court, or an undertaking given to the court, will also amount to
contempt of court. It was held by the Supreme Court, in the case of
H.Puninder v. K. K. Sethi,[2] that in absence of the stay order in appeal or
revision of higher court, the order appealed against should be complied with,
subject to any order passed at later stage, otherwise it is open for the
contempt court to proceed further on merit of the contempt case.
A different view was upheld by the Supreme Court in case of interim
relief/stay order. The Supreme Court, in the case of State of Jammu and
Kashmir v. Mohammad Yakub Khan,[3] held that where stay vacation
application has been promptly filed by the respondent against whom the stay
order has been passed and the same is pending for disposal the court
shouldn't proceed in the contempt case unless and until the stay vacation
application has been decided.
So far as the breach of undertaking as contempt of court is concerned, the
basis behind this is that the contempter obtains a beneficial order for himself
from the court, by giving an undertaking and if he fails to honor the
undertaking at a later stage, he plays a serious fraud on the court and thereby
interferes with the administration of justice by bringing the court into
disrespect.
An undertaking can be given to the court in two ways:
· By moving an application or filing an affidavit before the court clearly
stating the terms of the undertaking.
· By giving s clear and express oral undertaking which is incorporated by
the court in the order.
A willful breach of an undertaking, given according to the abovementioned
ways, would amount to contempt of court.
2. The Disobedience or breach must be willful, deliberate and
22
intentional.
Mere disobedience or breach of the court’s order by the person is not
sufficient to constitute civil contempt. Such a disobedience or breach must
be willful, deliberate and intentional. In order to exercise its power to punish
the contemnor the court has to be satisfied beyond reasonable doubt that the
contemnor has willfully, deliberately and intentionally violated the court’s
order.
No court including contempt court is entitled to take trivialities and
technicalities into account while finding fault with the conduct of the person
against whom contempt proceeding is taken.
Where the order has been substantially complied with and a reasonable
explanation has been provided for the delay in compliance with the order,
the contempt will not lie as the violation is not willful and deliberate.
Criminal Contempt
According to section 2(c) of The Contempt of Courts Act, 1971, criminal
contempt means the publication (whether by word, 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) ii) Prejudices or interferes or tends to interfere with the due course
of any judicial proceeding, or
iii) iii) Interferes or tends to interfere with, or obstruct or tends to
obstruct, the administration of justice in any other manner.
Thus from the abovementioned definition it can be ascertained that there
are four important essentials to constitute criminal contempt:

1. Publication of any matter.

23
The word publication has been given a very wide meaning so far as
contempt of court is concerned. It includes words (spoken/written), signs
and visible representation. It also includes the publication of any material in
the newspaper and magazines, the broadcasting of any material on the
radio and exhibition of anything in cinemas, theatres and television.

If these materials contain anything which scandalizes or lowers or tends to

scandalize or lower the authority of any court, prejudices or interferes with
the due course of any judicial proceeding or interferes or tends to interfere
with administration of justice, it will amount to criminal contempt of the
court.

2. Scandalizing or lowering the authority of the court.

Scandalizing might manifest itself in various ways but in substance, it is an

attack on individual judges in particular or the court as a whole, with or
without reference to a particular case, by casting unwarranted and
defamatory aspersions upon the character or the ability of the judges. Such
conduct is punished as criminal contempt for the reason that it tends to
create distrust in the minds of common people and thereby shatters
confidence of the people in the judiciary.

The Supreme Court made it clear, in the case of Arundhati Roy, that
criticism which undermines the dignity of the court can't be said to be fair
criticism and does not fall under the ambit of freedom of speech and
expression as is guaranteed by Article 19 (1)(a) of Constitution of India.
Thus prosecution of persons for scandalizing the court is not prohibited by
constitutional right of freedom of speech and expression under Article 19
(1)(a).

24
Writing/drafting in pleading or petition by which defamatory allegations
have been levelled against a judge in particular or court as a whole, would
amount to criminal contempt, held the Supreme Court.[4]

In case of U.P Residential Employee Cooperative Society v. New Okhla

Industrial Development Authority[5], the Supreme Court held that filing a
false affidavit in the court with a view to mislead the court will amount to
criminal contempt.

3. Prejudice or interference with the due course of any judicial

proceeding.

Any publication which prejudices or interferes with the due course of any
judicial proceeding would amount to criminal contempt of court. Media
trial or trial by newspaper is not considered proper because it effects the
fairness of trial and is likely to cause interference with the administration of
justice.

The knowledge of pendency of the case and reasonable grounds to believe

that the case in pending is sufficient to make out criminal contempt and the
intention and motive of the publisher behind the content of publication is
not relevant for the purpose of criminal contempt. If it lowers the authority
of the court and causes interference with the due course of judicial In civil
cases, the pendency starts with the filing of the plaint and in criminal cases,
with the filing of a charge sheet or the issuance of summons or warrants.
The pendency continues till the case is decided. In case an appeal/revision
is filed, pendency continues till the appeal or revision is decided. If
appeal/revision is not filed, pendency continues till the period of limitation
for filing the same has not expired. Once it expires, pendency is over.

25
4. Interference/Obstruction with the administration of justice in any other
manner.

The publication or doing of any act which interferes or obstructs or tend to

interfere and obstruct in the administration of justice in any other manner,
would amount to criminal contempt of court. This clause is a residuary
clause, covering those cases of criminal contempt which are not expressly
covered by section 2(c) of the Contempt of Court Act.

The term 'administration of justice' is much wider than the term 'course of
judicial proceedings'. Every person in India is entitled to approach the court
in order to secure justice and for the redressal of his grievances and the
court has to decide dispute between the parties as per law and equity.

Any conduct which tends to prevent or actually prevents a party to

approach the court, amounts to criminal contempt of court, for eg. writing
a threatening letter to litigating party or his counsel preventing him from
attending the court, writing a letter to the judge or approaching him in
order to influence his judicial conscience or approaching a counsel for
undue favor are all examples of interference with administration of justice
and are contempt of court. proceeding it would amount to criminal An
advocate is an officer of the court and undue interference with the
advocate in the discharge of his professional functions amounts to
contempt of court. Casting aspersions on counsel or approaching him for
not defending a particular person amounts to criminal contempt of court.

It was held by the Supreme Court in case of J. R Parashar v. Prashant

Bhushan[6], that holding a dharma or resorting to strike by itself may not
amount to contempt of court but if in doing so the presiding officer of the
court, its staff, the police personnel and the litigating parties are prevented

26
from approaching the court, it will amount to interference in the
administration of justice and will be criminal contempt of the court.
contempt.

Scope of defences under the Contempt of Court Act, 1971

Defences In Civil Contempt
A person charged with civil contempt of court can take the following
defences-
· No knowledge of order
The general principle is that a person cannot be held guilty of contempt in
respect of an order of which he claims to be unaware. Law casts a duty upon
a successful party to serve the certified copy of the order on the other side
either personally or by registered speed post. Notwithstanding the fact that
the order has been passed in presence of both the parties or their counsels.
So, it can be successfully pleaded in defense that the certified copy of the
order was not formally served on the alleged contemnor.
· Disobedience or breach was not willful
It can be pleaded that although disobedience or breach of the order has taken
place but it was due to accidental, administrative or other reasons beyond
the control of the party concerned. This plea can be successful only when
the order has been complied with and a reasonable explanation has been
given for non- compliance thereof.
The Court may assess the intention of the party from the act done in the
same way asa reasonable prudent man would assess in the given
circumstances.
· Order disobeyed is vague or ambiguous
If the order passed by court is vague or ambiguous or its not specific or
complete, it would be a defense in the contempt or alleged contemnor can
raise a plea in defense that the order whose contempt is alleged cannot be

27
complied with as the same is impossible. In case of R.N.Ramaul vs. State of
Himanchal Pradesh[7] the Supreme Court directed the respondent
corporation to restore the promotion of the petitioner in service from a
particular date.
This direction was complied with by the respondent corporation by treating
him as promoted from that particular date which was given in the order. But,
the monetary benefits for that period were not paid by the respondent
corporation and as such the contempt petition was filed. Respondent
Corporation took a defense that monetary benefits were not paid to the
petitioner because there was no direction in the order for payment of
monetary benefit and they cannot be held liable for contempt.
In case of Bharat Coking Coal Ltd. vs. State of Bihar[8], the Supreme Court
clarified the legal position by holding that where the order is incomplete and
ambiguous, the parties should approach the original court and get the order
clarified by getting the ambiguity removed.
· Order involves more than on reasonable interpretation.
If the order whose contempt is alleged involves more than one reasonable
and rational interpretation and the respondent adopts one of them and acts in
accordance with one such interpretation, he cannot be held liable for
contempt of court. However, this defense is available only when a bonafide
question of interpretation arises. The intention of bonafide interpretation can
be gathered from the fact that the order has been complied with by adopting
one such interpretation. In case of T.M.A. Pai Foundation vs. State of
Karnataka[9] it was held that this defense won’t be allowed if a doubt about
the order has been deliberately created when actually there is no doubt at all.
· Compliance of the order is impossible.
In proceedings for civil contempt, it would be a valid defense that the
compliance of the order is impossible. However, the cases of impossibility
must be distinguished from the cases of mere difficulty. In case of Amar
28
Singh v. K.P.Geetakrishnan, the court granted certain pensioner benefits to a
large number of retired employees with effect from a particular back date.
The plea of impossibility was taken on the ground that the implementation
of the order would result in heavy financial burden on the exchequer.
However, the plea of impossibility was rejected by the court with the
observation that although it’s difficult to comply with the order but it’s not
impossible to comply and therefore, it should be complied with.
· The order has been passed without jurisdiction.
If the order whose contempt is alleged, has been passed by a court which
had no jurisdiction to pass it, the disobedience or violation would not
amount to contempt of court for the reason that the order passed without
jurisdiction is a void order and binds nobody. In case of Krishna Devi
Malchand V. Bombay Environmental Action Group[10], the Supreme Court
clarified the legal position and held that if the order is void, it cannot be
ignored by the party aggrieved by it. The litigating party cannot assume the
role of Appellate or Provisional authority in order to say that the order is not
binding upon them. Consequently, if any party feels that the order has been
passed by a court which had no jurisdiction to pass it, he should approach
the same court for seeking such declaration by moving an application for
recall of the order. If the application is rejected, the Appellate Court can be
approached for such declaration. In case of State of Jammu and Kashmir vs.
Mohd. Yaqub Khan[11], the Supreme Court has held that where stay
petition application is pending, the Contempt Court should not proceed with
the contempt case till the stay vacation application is decided. So, in case of
interim order having been passed by a court which has no jurisdiction, a stay
vacation application can be promptly file, raising the plea of lack of
jurisdiction.
In Dr. H. Puninder Singh vs. K.K. Sethi[12], the Supreme Court has held
that if there is any stay order passed by the Appellate Court, the contempt
29
court cannot proceed. However, if no interim order application is passed by
the Appellate Court, the court can proceed and the order of the original court
should be complied with subject to any order passed by the Appellate Court
at the final stage.
Defences Against Criminal Contempt
· Innocent publication and distribution of matter.
S.3 deals with this defense. If a criminal contempt is initiated against a
person on the ground that he is responsible for publication or for distribution
of publication which prejudices or interferes with the pending proceedings,
the contemptner may take the following steps:
(a) he may plead under S. 3(1) that at the time of publication, he had no
reasonable ground for believing that the proceeding was pending.
(b) he may plead under S.3(2) that at the time of publication, no such
proceeding was pending.
(c) he may plead under S.3(3) that at the time of distribution of publication,
he had no reasonable ground for believing that the matter (published or
distributed by him) contained or was likely to contain any material which
interfered or obstructed the pending proceeding or administration of justice.
· Fair and accurate report of judicial proceedings
S.4 of the Act provides that a person should not be held guilty of Contempt
of Court for publishing a fair and accurate report of any judicial proceedings
or any stage thereof. S. 7 of the Act provides Exception to the general
principle that justice should be administered in public. Sub sections (1) and
(2) of S.7 provide that a person shall not be guilty of Contempt of Court for
publishing the text or for publishing fair and accurate summary of the whole
or any part of the order made by the court in camera (in Chamber) unless the
court has expressly prohibited the publication of the proceedings on the
grounds of:
a) Public Policy
30
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in
exercise of the power vested in it.
· Fair criticism of judicial act
S.5 provides that a person shall not be guilty of criminal contempt for
publishing any fair comment on the merits of any case which has been
finally decided. A defense can be taken that the statement complained of (in
respect of publication of which criminal contempt has been initiated) must
be in respect of a case which has been finally decided and not in respect of
pending proceedings. Moreover, the statement should come from the mouth
of a knowledgeable person in the field of law and not from a litigating party
which has lost the case. In short, fair criticism means that criticism which
while criticizing the act of a Judge does not impute any ulterior motive to
him. In case of Arundhati Roy, the Supreme Court has held that judicial
criticism cannot be invoked under the garb of Freedom of Speech and
Expression under Article 19(1)(a) of the Constitution of India.
The Supreme Court further clarified that fair criticism of the judiciary as a
whole or the conduct of a Judge in particular may not amount to contempt if
it is made in good faith and in public interest. To ascertain the 'good faith'
and 'public interest' the Courts have to take into consideration all the
surrounding circumstances including the person's knowledge in the field of
law, the intention behind the comment and the purpose sought to be
achieved. A common citizen cannot be permitted to comment upon the
Courts in the name of criticism by seeking the help of Freedom of speech
and expression for the reason that if it is not checked, it would destroy the
judicial institution itself.
In the present case, Arundhati Roy was not found to have knowledge or
study regarding the working of the Supreme Court or judiciary of the
31
country and so the defense of fair comment in good faith and public interest
taken by her was rejected and she was punished for criminal contempt.
· Bonafide complain against the presiding officer of a subordinate court.
S.6 provides that a person shall not be guilty of contempt of court in respect
of any statement made by him by way of complaint in good faith concerning
the presiding officer of any sub-ordinate court to the High Court or to the
Court to which he is sub-ordinate. The protection of this section will be
available only when it is proved that the complaint was made in good faith.
In ascertaining the 'good faith' the intention and the purpose sought to be
achieved by complaint will be taken into consideration and it would be
ensured that the same was not made with ulterior motive.
· No substantial interference with due course of justice.
By the Contempt of Courts (Amendment) Act, 2006, a new Section 13 has
been substituted in place of existing S.13. This new S. 13 provides that
“notwithstanding anything contained in any law for the time being in force,
no Court should impose a sentence for Contempt of Court unless it is
satisfied that the Contempt is of such a nature that it substantially interferes
or tends to interfere with the due course of justice.”
· Justification by truth.
The amended S.13(2) provides that the Court may permit justification by
truth as a valid defense in any proceeding for criminal contempt if it is
satisfied that it is in public interest. Thus, truth is now a defense if it is in the
public interest and bonafide.
· The statement complained of is open to different interpretations.
If the words complained of are open to two different interpretations and one
of them indicates contempt while the other does not, the contemptner cannot
be punished for non-compliance of one interpretation. But, in order to
succeed in this defense, it is necessary to prove that the order was complied
with in respect of one interpretation. If the order is not complied with at all,
32
it cannot be proved that there was a reasonable doubt as to the interpretation
of the order. On the other hand, it will be presumed that a doubt is
deliberately sought to be created so as to avoid the compliance of the order.
· Defamation of the judge personally.
If the publication or other act is merely a defamatory attack on the judge and
is not intended to interfere with the administration of justice, it will not be
taken as contempt of court.
The publication or other Act amounts to Contempt of Court only when it has
nexus with the functioning of a judge. The statement complained of may
amount to Contempt of Court only when it is made against a judge in his
judicial capacity in the exercise of his judicial functions. However, in such a
situation a judge is not remediless and he has the same remedies available
which are available to a common man. A defamatory attack on a judge may
be Libel or Slander and he has a discretion to proceed for Defamation in
civil, criminal or simultaneous proceedings against the person concerned but
he cannot be punished summarily under criminal contempt of court. The
object of Contempt law is to protect the confidence of the people in the
administration of justice and its object is not to prevent attacks upon the
personal reputation of any individual judge. So, any personal attack upon the
judge unconnected with the office he holds, is dealt with under the ordinary
rules of Libel and Slander.
Defences Under the Right to Information Act, 2005:
Section 8(1) (b) of The Right to Information Act, 2005 says,
“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;”
To interpret the section lets first break it into smaller parts. So we can say,
Section 8 (1) (b) exempts disclosure of information: - (i) which has been
expressly forbidden by any court of law or tribunal; or (ii) the disclosure of
33
which may constitute contempt of court.
It’s easy to follow from the section that only that information which has
been expressly forbidden by any court of law is exempted and mere
pendency of information, of some related case, before a court does not
signifies its exemption. So, one of the prerequisite for application of Section
8 (1) (b) is an expressed order from any court of law or tribunal exempting
publication of the information asked for.
“What may constitute ‘contempt of court’ is not per-se defined in The RTI
Act 2005. So to know what constitutes contempt of court we should look at
the definition given in Section 2 (a) (b) and (c) of the Contempt of Court Act
1971:
2. Definitions: In this Act, unless the context otherwise requires:
(a) 'Contempt of court' means civil contempt or criminal contempt.
(b) '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.
(c) '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) Scandalises or tends to scandalise, or lowers or tends to lower the
authority of, any court, or
(ii) Prejudices, 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.
From the above we can conceive that for a civil contempt there should be
either willful disobedience of any judgment, decree or order; or other
process of the court or willful breach of an undertaking given to a court;
while for a criminal contempt there has to be publication of any matter or
34
doing of any act which may either scandalize or lower the authority of any
court, or interfere with the due course of any judicial proceedings or
otherwise obstruct the administration of justice in any manner.
So, from the statute itself, backed up by the decision given by bench of CIC, we
can interpret Section 8, of The Right to Information Act, that only those matters
can be exempted from publications, which may cause contempt of court or
which are expressly exempted by any court of law or tribunal.
Sub-judice matters
Sub-judice matters are those matters which are currently under trial or are being
considered by a judge or court. In another words we can say that, a matter
which is still under consideration by a court i.e. still a subject of active litigation
is sub-judice matter.
In the case of Mr. P. K. Puri v Ministry of Labour, Mumbai the bench said that:
“…..each court has its own rules regarding furnishing of copies of documents
connected with a case pending before it, to third parties. If the rules of the
Tribunal permit furnishing copies of the affidavits or other documents
connected with this pending case, or if the rules are silent on this aspect, the
documents sought for be furnished to the appellant within 15 days, free of cost.
However, if furnishing of the same is not permitted, the same may be
communicated to the appellant quoting the relevant rules.”
In another famous case the bench propounded that:
“……there has been a serious error by the respondents in assuming that
information in respect of sub-judice matters need not be disclosed. The RTI Act
provides no exemption from disclosure requirement for sub-judice matters. The
only exemption in sub-judice matter is regarding what has been expressly
forbidden from disclosure by a Court or a Tribunal and what may constitute
contempt of Court: Section 8(1) (b). The matter in the present appeal does not
attract this exemption. Presence of a different provision in the Cantonment Act

35
about supply of documents in sub-judice matters to a requester has had no
bearing on the disclosure requirement under the RTI Act. Seen purely from the
stand-point of the RTI Act, the right of the appellant to access the information
requested by him is unimpeachable.”
Later, we find that in the case of P.D.Bansal v Food Corporation of India when
the respondents denied giving the information to the appellant on the basis that
the matter is sub-judice and thus its publication is exempted. On this argument
the bench said, making the legal stand of sub-judice matter clear, that matter
being sub-judice is not a ground to withhold the requisite information under the
RTI Act, unless the desired information has been expressly forbidden to be
published by any court of Law or Tribunal or the disclosure of which may
constitute contempt of court, in terms of the Section 8(1) (b) of the RTI Act.
And as in the case the respondents failed to produce any such order from any
court or tribunal so the bench decided that appellant should be provided with the
information.
From these decisions it’s clear that sub-judice matters, on their own, don’t have
any stand but information related to any case, which is sub-judice i.e. which is
still in trial, which has been expressly forbidden for publication or whose
publication might cause contempt of court are exempted to be provided if asked
under The Right to Information Act, 2005 under Section 8 (1) (b).

RIGHT TO INFORMATION
Every citizen of India has a right to free speech and expression under Article
19(1) (a) of the Constitution of India. This right does not only cover the
communication of information but also the receipt of information since without
adequate information, a person cannot form an informed opinion. Thus, the
right to know and seek information is an integral part of the
fundamental right enshrined under Article 19(1) (a). The Hon’ble

36
Supreme Court has also held that the right of the citizens to know,
and to receive information regarding matters of public concern is a fundamental
right flowing from Article19(1) (a). The right of a citizen to question the
government on its various policies and measures forms the very essence of a
democracy. In order to exercise this right and to hold the
government accountable for its actions, the people must have access to the
information regarding the affairs of the government. This is what RTI does. It
informs the citizen regarding the affairs of the government and thereby ensures
the active participation of a citizen in the working of the democracy at all times
and not just once during voting. RTI is an index to measure the growth and
development of a country.
Right to Information Act, 2005: Brief Background
The first central legislation dealing with the right to information in India,
namely, the Freedom of Information Act, 2002 was passed on December 4,
2002, but was not notified. In 2004, the UPA (United Progressive Alliance)
government appointed a National Advisory Council (NAC) which had
recommended some changes in the Freedom of Information Act, 2002.
The amended act known as “The Right to Information Act,2005” was
passed on 11th May 2005 and 12th May 2005 by the Lok Sabha and Rajya
Sabha respectively. The President of India gave his assent to the Act on 15th
June 2005 and it came into force on 12th October 2005.
Evolution of Right to Information in India:
In Rajasthan the Right to Information movement was initiated by Aruna Roy in
the early 1990’s. The Mazdoor Kisan Shakthi Sangathan (MKSS) succeeded
Through Struggle and agitation, in accessing and using information to
put an end to local corruption and exploitation. In 2005 the parliament
enacted a new legislation – Right to Information Act 2005. This new Act
replaces the old Freedom of Information act, 2002, which was unnotified

37
and hence, not operational. It aims at promoting Transparency and
accountability in the working of every public authority. It has the widest
possible reach covering central government, state government’s Panchayat
Raj Institution, Local Bodies and recipients of government grants. Right to
Information Act 2005 mandates timely response to citizen requests for
government information.
Objectives of the Right to Information Act, 2005
The objectives of the RTI Act, 2005 are as follows:
1. To provide for a practical framework that allows the citizens to access
the information under the control of public authorities.
2. To promote transparency and accountability in the working of
governments and their instrumentalities.
3. To provide for the constitution of Information Commissions at state and
national level for discharging the functions and exercising the powers under the
Act.
4. To develop an informed citizenry.
5. To contain corruption.
6. To lay down the exemptions to disclosure of information when such
disclosure is likely to conflict with other public interests and to harmonize
these conflicting interests while preserving the paramount of the democratic
ideal.
What is the scope of RTI act?
The Act covers all the constitutional authorities, including Executive,
Legislature and Judiciary; any institution or body established or
constituted by an act of Parliament or a state legislature. Citizen can inspect
any government documents, inspect any government works etc.
Features of Right to Information Act, 2005

 Public authorities have a duty to provide any information which is

38
 claimed by a citizen.

 Public authorities are under the obligation that they need to circulate the
information to the person who demands the information. However,
this Act comes with certain obligations relating to the security of the
nation, personal information & other person’s information.

 There is a time limit on the authority to give information within 30 days.

 If the authority denies providing any kind of information then the person
has the power to go to the appellate authority. Later they can also
go for the second appeal which falls under the “central information
commission/state information commission”.

 Local court command cannot be entertained in these scenarios.

Open Government & Transparency in Governance :

2. Privilege to withhold disclosure of Documents/Informations:

Comparative analysis of Laws in other Common Law – countries with
special reference to (a) England (b) U.S.A.

Question: Privilege to withhold documents and the law in India –

with special reference to:
(a) Indian Evidence Act, 1872
(b) Indian Telegraph Act, 1885
(c) The Official Secret Act, 1923
(d) The Atomic Energy Act, 1962

Answer: Privilege to Withhold Disclosure of Documents

39
/Information

1. Under Evidence Act, 1872

The increasing uncertainty of a democratic state enhances the

government's confidentiality. This adds to administrative violations.
Democratic administration needs a fine balancing between the
expectations of confidentiality in the public interest and the
demands of disclosure and public responsibility. Therefore,
certain provisions are made in order to ensure that the secrecy of
governmental functions are maintained wherever deemed necessary, in
order to best secure public interest in the most balanced manner.

Relevant Statutory Provisions

In India, the privilege of the government to withhold documents from

production in the courts is claimed on the basis of Sections
123 and 124 of the Indian Evidence Act, 1872. Section 123 reads as:

No one shall be permitted to give any evidence derived from unpublished

official records relating to any affairs of State, except with the
permission of the officer at the head of the department concerned, who
shall give or withhold such permission as he thinks fit.

Section 124 of the IEA subsequently provides that:

Official communications:

No public officer shall be compelled to disclose communications made to

him in official confidence, when he considers that the public interests
would suffer by the disclosure. The two clauses above offer the
government an upper hand and a great deal of privilege in
lawsuits of some kind, an advantage against private citizens. This
obviously jeopardizes the core principles of administrative law that

40
ensure equity in the administration of justice, as well as that of
the IEA. However, if the right is asserted, the privilege is not conclusive
in essence, in the sense that it is not possible for the courts to consider the
records for which the privilege is claimed in such cases.

This plan is based on the legislative mandate contained in

S.162 from the IEA, which specifies that:

Production of documents:

A witness summoned to produce a document shall, if it is in his

possession or power, bring it to Court, notwithstanding any
objection which there may be to its production or to its
admissibility. The validity of any such objection shall be
decided on by the Court.

The administration has come to possess strong powers to

intervene with the person and property of the citizen in the new age of the
welfare state. It is certain that administrative capacity will have to expand
faster in the future. Thus, with the rise in government operations,
most tasks that have been carried out by individuals so far have been
carried out by the administration.

Thus, individual encounters with the government are growing, often

leading individuals to get aggrieved by government intervention
and turn to the courts to satisfy their grievances. In litigation, the courts
follow multiple processes in which the government is one of the plaintiffs
against the common man relative to the suits between common people.
Whenever the case appears before the courts in India, on the grounds of
three different questions, it rules on the claim of right to withhold the
records.

41
 One is the ‘public interest' and the other, as part of Article19(1)(a) of
the Constitution of India (freedom of speech and expression), is 'open
government' and the third, as interpreted by the Supreme Court, is beyond
the framework of Article 21(Protection of life and personal liberty).

In the case of State of Bihar v. Kastur bhai Lalbhai the court while
elaborating on the expression affairs of the State said that it refers to
matters that are of:

Public nature, with which the State is concerned, or the

disclosure of which will be prejudicial to the public service.
When the State is a party to the litigation and documents relate to
commercial or contractual activities of the state:

Privilege can be asserted in those cases with respect to such records.

Through doing so, the court suggested that if the degree to which
public interest is catered to is greater than when revealed by withholding
those records, then this right of non-disclosure may be asserted.

2. Under Official Secret Act, 1923 :

The Official Secrets Act,1923 was established during colonial rule. The
OSA was first notified in 1904 during the time of Lord Curzon. The past
provisions of the Act were the more stringent version of the present
provisions and used by the British government to restrict freedom
of speech and expression of journalists. In 1923, the Official Secret Act
was repealed and replaced with the new Official Secrets Act. The new
Act was notified and extended to the provisions of secrecy and
confidentiality in working of the government. According to this
Act, aiding and helping any enemy nation where communication of

42
the information can be in the form of sketch, model, plan, passwords or
an official code. This Act has been furthered by Civil Service Conduct
Rules, 1964, which put a sanction on the sharing of official information
or documents in the public domain without authorization.

The Official Secrets Act, 1923 was formulated for the purpose to
maintain secrecy and confidentiality in the administration of the
government especially in the matters of national security and espionage
issues. It is generally used by the government and authorities for
refusing to share vital and secret information which comes under
the Right to Information Act,2005. The Government of India
often faces criticism form is using it in the name of keeping secret and
vital information to the public. The Act enshrined certain provisions for
dealing with sedition, espionage information and a threat to the
sovereignty and integrity of the country. This Act contains a provision in
which if a person is guilty, he may be imprisoned up to 14 years, a fine or
both.

Right to Information Act vs Legislations for Non-Disclosure of

Information Some provisions of the Indian Evidence Act (Sections 123,
124, and162) provide to hold the disclosure of documents. Under these
provisions, head of department may refuse to provide information on
affairs of state and only swearing that it is a state secret will entitle not to
disclose the information. In a similar manner no public officer shall be
compelled to disclose communications made to him in official
confidence.

Exemption from disclosure of information: Section 8

43
Section 8(1) lists the categories/types of information which is exempted
from disclosure under the RTI Act. There is no obligation to
disclose such information to any citizen. The categories of
information so exempted include:

National Security or Sovereignty: As explained above, there is

some information, which relates to India's national security, which
could genuinely cause harm if it was released to the public. For
example, information published during a conflict, detailing the
number of soldiers defending a boundary,where they were positioned or
the irstrategic plans. However, it would not be appropriate to use this
exemption simply to keepa contract for the purchase of an air force
fighter jet secret.This is common commercial information which should
be made public to reduce the likelihood of corruption tainting
the procurement process, and should not be withheld simply
because it relates to defence.

National Economic Interests: Disclosure of information about

currency or exchange rates, interest rates, taxes, the regulation or
supervision of banking, insurance and other financial institutions,
proposals for expenditure or borrowing and foreign investment could
in some cases harm the national economy, particularly if released
prematurely. However, lower level economic and financial
information, like contracts and departmental budgets should not
be withheld under this exemption.

Relations with Foreign States: The relationship between

countries can often be sensitive, such that candid assessment sand
analysis of other countries' behavior and policies could easily

44
offend and in so doing, damage India's own international interests.
However, this exemption should not be used simply to hide political deals
between players, which are not in the public interest and can never
justify nondisclosure of information which discloses a breach of
national law.

Law Enforcement and the Judicial Process: While an

investigation is underway, there may be information which needs
to be protected, for example, witnesses identities or the case being put
together against a suspect. If released, the case could be jeopardized.
Likewise, while a case is underway, information may need to
be kept secret. Notably, the discussions between a lawyer and
their client will almost always be kept secret, even if the
lawyer is the Attorney-General and the client is the Government.
These exemptions should not be used though, to protect police
and judicial officers from having their own conduct scrutinized,
particularly if a victim is seeking information about whether their case is
being/has been properly handled.

Cabinet and Other Decision-Making Documents: Cabinet papers,

including records of deliberations of the Council of Ministers,
Secretaries and other offices, are excluded, but once a decision is
made, the reasons for the decisions and the documents which
were used to make the decision should then be disclosed to the public.
This is important because it means that during the decision-making
process there is a level of confidentiality, but once a decision is
made the public has aright to access relevant information so that they
can better understand the policy-making process.

45
Trade Secrets and Commercial Confidentiality: Some
information held by many private companies should be open to the
public, for example, where that information relates to the provision of a
public service or is necessary for the exercise or protection of a right.
However, it is already recognized in law that companies should be able to
protect their trade secrets. Care should also be taken to minimize the
harm caused to a company's competitive commercial interests when
disclosing information, for example, by not publishing tender
submissions during a tender process. However, this exemption should not
be used to block the release of contracts with private bodies who are
providing public services.

Individual Safety: Obviously, information should not bed is

closure where publication would be likely to put an individual's
safety or liberty at risk. For example, the identity of people who "blow
the whistle" on corruption inside their organization should be
protected, because otherwise they maybe targeted for discrimination or
even violence.

Personal Privacy: There is considerable information about

individuals which is held by the government. The right to
privacy requires that the government should try to protect this
information from public disclosure, unless there is some over
riding need for it to be disclosed. For example, my next door neighbor
should not be able to access my medical records just because they are
held by a government hospital. Notably though, public officials
should not be able to use this exemption to protect their own
conduct in their official capacity from scrutiny. Thus, information about

46
 public service transfers and appointments can be disclosed.

3. The Atomic Energy Act, 1962

This Act has also some provisions, which put restrictions on disclosure
of information as found from the study of the same. Section 18(1) puts
restrictions on disclosure of certain information. The study of this section
states that the central government may by order restrict the disclosure of
the information relating to document, drawing photograph, plan, model of
an existing or proposed plant used for the purpose of producing,
developing or using atomic energy or method of operation of any such
plant. The section further states that this information cannot be disclosed
by any person without taking authority from the central government for
the same. Thus, it is crystal clear that some information’s under this Act
are of strategic nature and are restricted to be disclosed but there is no
restriction on other information available under Section 18(3) of this Act.

4. The Telegraph Act, 1985

Section 4 of the Act deals with exclusive privilege of the government to
establish, maintain and use telegraphs. It also provides for the
government to grant licence to establish, maintain or work a telegraph.
The government may grant such licence on certain conditions and for a
licence fee.
Section 5 of the Telegraph Act is commonly known as the wire-tapping clause.
It gives power to the government to take possession of any licensed telegraphs
in case of a public emergency or in the interest of public safety. It can also order
interception of communication in the interests of the sovereignty and integrity
of India, the security of the state, friendly relation with foreign states or public
order or for preventing incitement to the commission of an offence. However,
the government has to follow the procedure established by law for issuing such
order.
The procedures and guidelines for lawful interception was laid down in the case
of People’s Union for Civil Liberties v. Union of India.[1] In this case the
Supreme Court of India ruled that telephone tapping is a serious invasion upon
an individual’s privacy. However, lawful interception can be carried out under
certain circumstances mentioned in the wiretapping provision.[2] This kind of
47
law interception has to be carried in conformity with certain guidelines which
will act as a check on indiscriminate wire-tapping by the law enforcement
agencies. It also directed the government to make rules and procedures for
carrying out lawful interception of communication. In addition to that it also
laid down the basic guidelines for such interception. The main guidelines are:

1. An order for law interception can only be made by the Home

Secretary to the Government of India and home secretaries of state
governments. In urgent situations the power may be delegated to an
officer of the Home Department of Government of India and state
governments and such officer should not be below the rank of joint
secretary.
2. A copy of the order has to be sent to the review committee within one
week of issuance of such order.
3. The authority which issues the order should also record the following
information:
o the intercepted communications;
o the extent to which the material is disclosed;
o the number of persons and their identity to whom any of the
material is disclosed;
o the extent to which the material is copied; and
o the number of copies made of any of the materials.
4. The intercepted material can be used only for purposes mentioned
under the wire-tapping clause.
5. The interception will be valid for two month unless it is renewed.
However, the total period of interception should not exceed six
months.

The government also has the power to notify rates for transmission of messages
to countries outside India. While notifying such rates the government must take
into consideration: (i) the rates which are applicable at the time; (ii) foreign
exchange rates at the time; (iii) rates applicable for transmission of message
with India, at the time and (iv) such other circumstance that the Central
Government may think fit to be considered.
Section 7 of the Telegraph Act vests with the government the power to make
rules for the conduct of telegraphs.
The government has the power to make rule with regard to following issues:

 Rates and other conditions and restrictions subject to which messages

will be transmitted within India.

48
  Precautions to be taken to prevent improper interception or disclosure
of message

 Conduct regarding telegram

 Conduct and charges regarding use of telegraph lines[3]

Central Government may impose fine if there is any breach of rules made by it
under the Telegraph Act. It may also impose fine upon licensees’ if they are
found to be in violation of the rules laid down by the Central Government under
the Telegraph Act. The Central Government may also revoke any licence
granted under the Telegraph Act, in case of breach of any condition or default
of payment with respect to the licence.
Section 9 deals with government liability with respect to loss or damage. The
government does not take any responsibility for any loss or damage caused by
telegraph officer fails in performing his duties. However, such telegraph officer
can be held liable if acts negligently, maliciously or fraudulently.

Attempts / Efforts to legislate RTI Act, 2005 in India

On 23rd December 2004, UPA Government presents the RTI bill 2004,
which was applicable only to the Union Government. But the bill didn’t
help the common people as it was applicable only to the Union
Government, but after the protest by the NCPRI and other organizations
the Right to Information Act, 2005 was passed with 150 amendments. So
finally in 2005, the RTI Bill was passed in Lok Sabha on 11th May 2005
and in Rajya Sabha on 12th May 2005. The President gives his assent on
15th June2005 which was published in the Gazette of India on 21st
June2005. Finally RTI Act, 2005 came in force from 12th October2005,
which is known as Right to Information Act, 2005 (Act No.22 of 2005).

The Act covers the whole of India except Jammu and Kashmir. It covers
all the Constitutional authorities, including executive, legislature and

49
 judiciary; any institution or body established or constituted by an act of
Parliament or a state legislature. It is also defined in the Act that bodies or
authorities established or constituted by order or notification of
appropriate government including bodies "owned, controlled or
substantially financed by government, or non-Government
organizations substantially financed, directly or indirectly by funds. Now
coming to the history: - The first RTI application was filed at a police
station in Pune by Shahid Raza Burney. The first RTI application in Delhi
was filed to the office of President about article 370 in Jammu &
Kashmir. Through this research paper the author is trying to analyze
section 2(f) of the RTI act, 2005. Right to Information and Obligations of
Public Authorities Section 3 of the Act provides for the right of the
citizens to obtain information subject to the provisions of the Act.

Obligations of public authorities: Section 4

Section 4(1) lists the following obligations of public authorities:

a) Maintenance of records: Every public authority is required to maintain all

its records duly catalogued and indexed. In order to facilitate access
to its records, the public authority shall ensure that all the
records that are appropriate for computerization are computerized
and connected through a network across the country on various
systems within a reasonable time frame and according to resource
availability.

b) Publication of certain matters: Every public authority is required to

publish certain particulars within 120 days of the enactment of the Act,
some of which are enumerated below:

c) the particulars of its organization, functions, and duties;

50
d) the powers and duties of its officers and employees;

e) the procedure followed in the decision-making process, including

channels of supervision and accountability;

f) where any arrangement exists for public representation or public

consultation in matter of policy formulation or implementation
of policy of public authority, the particulars of such arrangement;

g) Employee directory of such public authority.

h) Monthly salary given to employees and officers.

i) Details of budget allocated to its agencies.

j) Details regarding manner of execution of subsidy programs.

k) Details regarding information held in electronic form.

l) Particulars of facilities available to citizens for obtaining information.

m) Names and designations of the Public Information Officers etc.

n) While formulating key policies or decisions that affect the public, a

public authority must publish all the relevant facts regarding the
same.

o) Every public authority shall provide reasons for its judicial or

administrative decisions to those affected by it.
Suo-moto furnishing of information: Section 4(2)
Section 4(2) provides for the obligation of the public authority to make
efforts for providing information Suo-moto to the public at regular
intervals using various modes of communication.
Dissemination of information: Section 4(3) and 4(4)
Section 4(3) provides for wide dissemination of information in a manner
that is easily accessible to the public.

51
Section 4(4) provides that the dissemination of information has to be
done after considering the following factors:

 Cost-effectiveness,

 Local language of an area, and

 The most effective method of communication in a

particular local area.
Public Information Officer (PIO)
Central Public Information Officer or State Public Information Officer
designated under the Act:
• shall receive requests from persons seeking information and dispose
such requests, either providing the information requested on
payment of prescribed fee or rejecting the request for reasons
to be specified within the time period stipulated under the Act
[Section 5 (3), 5(4) & 7(1)]

Designation of Public Information Officer

Section 5(1) of the Central Act requires the appointment of as many
Public Information Officers (PIOs) in "all administrative units and
offices" of the public authority as are necessary to provide the public with
access to information. In practice, this means that virtually every
government office should have someone in them who is designated
as the PIO who will be responsible for receiving and processing
applications.
Ideally, the PIO should be a senior person in the office so that they have
the authority to make decisions on whether to release
documents. Otherwise, if too junior a person is nominated they
may be more reluctant to release information for fear of making a mistake

52
and getting into trouble. This may make them err on the side of caution -
as a result of which they may undermine the spirit of open government
that the Central Act seeks to entrench.
It is important that all officers within each public authority
understand the role of the PIO as they will be the "face of RTI" as far as
other officials - as well as the public - are concerned. Sections 5(4) and
(5) make it clear that all officers - no matter their seniority - have a duty
to support the work of the PIO and to assist them to process applications,
when requested.
PIOs generally have two key responsibilities:
1. Receiving/facilitating requests: Requests are either sent directly
to the PIO (or under the Central Act they can also be given to an
Assistant PIO (APIO) who forwards it to the PIO). They can be given by
hand, mailed by post or even emailed. The Central Act and most
State Acts place a responsibility on the PIO to assist applicants to
frame their request if they have difficulty writing up the request
appropriately or if they are illiterate. The PIO (and APIO) is also
responsible for issuing a receipt for the application.
2. Responding to requests: The PIO is responsible for
processing the request. Generally, this means that they will first need to
find all the information requested. This may require them to ask
other officers within the organization to help to find information.
They might even need to ask other departments to assist. The PIO will
then need to look at the information collected and decide,
taking into account the exemptions in the law, whether any or all of the
information needs to be withheld from release. The PIO will then
notify the applicant of their decision, within set time limits.
It is essential that the PIO understands the operation of the RTI law in

53
detail. Although all members of the organization should be given
training on the relevant RTI law so that they understand their
obligations and those of the organization more generally, it is
absolutely essential that the PIO is trained on the law as a matter of
priority. They will be the first person responsible for applying the
Act to applications, so it is important that they are confident in
interpreting and applying the various provisions of the law.
Duties of a PIO: Sections 7 & 11
1) PIO should render assistance to those who cannot write an application.
2) Must inform the applicant of the appellate authority who should be
approached for review of the decision taken on the fees for supply of
information and also the time limit.
3) Give information in the form in which it is originally sought subject to
resource constraints and preservation of the record in question.
4) Give written reasons for rejection of information request, details
of the time limit for appeals and the appropriate Appellate
Authority.
5) If allowing partial access he shall give notice to the applicant stating

a) Which part will be provided after severing the exempt

portions?

b) Reasons for arriving at this decision including findings on any

factual matter relating to the materials on which the
findings are based.

c) Name and designation of the person who gave this decision

d) Details of fees to be deposited

e) applicant’s rights to seek review of the decision on fee

charged or the decision taken including details of the Appellate
54
 Authority and the time limit for filing the review/appeal.
6) If information sought has been supplied by third party or is treated as
confidential by the third party PIO must give written notice to the latter
within 5 days of receiving the information request and take its
representation into consideration.
7) Third party must be given a chance to make are
presentation (oral or written) before the PIO within 10 days of receiving
the notice.
Process to access information under RTI
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, accompanying such fee as maybe prescribed, to—
1. The Central Public Information Officer or State Public
Information Officer, as the case may be, of the concerned public
authority;
2. The Central Assistant Public Information Officer or State Assistant
Public Information Officer, as the case may be, specifying the particulars
of the information sought by him or her:
Provided that where such request cannot be made in writing, the Central
Public Information Officer or State Public Information Officer,
as the case may be, shall render all reasonable assistance to the
person making the request orally to reduce the same in writing.
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.
Where an application is made to a public authority requesting for an
information,—

55
1. Which is held by another public authority; or
2. The subject matter of which is more closely connected with the
functions of another public authority, the public authority, to which such
application is made, shall transfer the application or such part of it as may
be appropriate to that other public authority and inform the
applicant immediately about such transfer: 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.
Procedure for Requesting Information under RTI Act, 2005:
The Right to Information can be claimed through two means, first
through in writing mode or through electronic mode. There is no
prescribed format of application for seeking information. The application
can be made on plain paper. The applications, however, have the name
and complete postal address of the applicant.
How to Request Information?
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 application is being made;
accompanying such fee as may be prescribed, to the public authority by
providing contact details. Reasons for seeking information are not
required to be given;

1. Pay fees as may be prescribed.

2. Application fee is Rs. 10.

3. If information is required in electronic media floppy or in CD etc.

additional charge will be applicable.

4. Processing expenses incurred by the Public Information

56
 Officer (PIO) to be intimated in writing.

5. Applicant can seek review of the decision on fees charged by the

Public Information Officer (PIO) by applying to the
appropriate Appellant Authority.

6. No fees from people living below the poverty line.

7. Free of cost if the Public Information Officer (PIO) fails to comply

within the time limit as prescribed under the RTI Act. Normally the
duration is of 30 days from the date of application to receive the
information. But if the matter is related to Life and Liberty, the time
limit for the Public Information Officer to provide information is 48
hours.
Disposal of request:
Subject to the proviso to sub-section (2) of section 5 or the proviso to
sub-section (3) of section 6, the Central Public Information
Officer or State Public Information Officer, as the case may be, on receipt
of a request undersection 6 shall, as expeditiously as possible, and in any
case within thirty days of the receipt of the request, either provide the
information on payment of such fee as may be prescribed or reject the
request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the life or liberty
of a person, the same shall be provided within forty-eight hours of the
receipt of the request.
If the Central Public Information Officer or State Public
Information Officer, as the case may be, fails to give decision on the
request for information within the period specified under sub-section (1),
the Central Public Information Officer or State Public Information
Officer, as the case may be, shall be deemed to have refused the request.

57
Where a decision is taken to provide the information on
payment of any further fee representing the cost of providing the
information, the Central Public Information Officer or State Public
Information Officer, as the case may be, shall send an intimation to the
person making the request, giving—
the details of further fees representing the cost of providing the
information as determined by him, together with the calculations
made to arrive at the amount in accordance with fee prescribed under sub-
section (1), requesting him to deposit that fees, and the period intervening
between the dispatch of the said intimation and payment of fees shall be
excluded for the purpose of calculating the period of thirty days referred
to in that sub-section;
information concerning his or her right with respect to review the
decision as to the amount of fees charged or the form of access
provided, including the particulars of the appellate authority, time
limit, process and any other forms.
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.
Where access to information is to be provided in the printed or in any
electronic format, the applicant shall, subject to the provisions
of sub-section (6), pay such fee as may be prescribed:
Provided that the fee prescribed under sub-section (1) of section
6 and sub-sections (1) and (5) of section 7 shall be reasonable and no
such fee shall be charged from the persons who are of below poverty line

58
as may be determined by the appropriate Government.
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).Before taking any decision under sub-section
(1), the Central Public Information Officer or State Public Information
Officer, as the case may be, shall take into consideration the
representation made by a third party under section 11.
Where a request has been rejected under sub-section (1), the Central
Public Information Officer or State Public Information Officer, as the
case may be, shall communicate to the person making the request,—

 The reasons for such rejection;

 The period within which an appeal against such rejection may be

preferred; and

 The particulars of the appellate authority.

An information shall ordinarily be provided in the form in which it is
sought unless it would disproportionately divert the resources of
the public authority or would be detrimental to the safety or preservation
of the record in question.
Why is third party information not allowed?
Section 11 of the Act provides the procedure of disclosure of‘ third party’
information. According to it, if a Public Information Officer (PIO)
intends to disclose information or record relates toa third party and has
been treated as confidential by that third party, the PIO within 5 days
from the receipt of the request, the PIO before taking a decision to
disclose the information shall give written notice to such third party of
request, shall invite the third party to make a submission in

59
writing or orally, regarding whether the information should be
disclosed. Such submission of the third party shall be kept in view while
taking a decision about the disclosure of information.
The third party within 10 days from the date of receipt of such notice, be
given the opportunity to make representation against the proposed
disclosure. The PIO within 40 days after receipt of the request, make a
decision as to whether or not to disclose the information or record or part
thereof related to the third party and give in writing the notice of his
decision to the third party. The PIO cannot disclose such information
unless the procedure prescribed in Section 11 is completed.
Explain Third Party information under RTI Act.
Can we get third party information? What are the grounds?
"Third party" means a person other than the citizen making arequest for
information and includes a public authority.
Procedure of disclosing third party information:
Section 11(1) of the RTI Act is triggered once the PIO intends to disclose
to an applicant any information which relates to or has been supplied
by a third party and has been treated as confidential by that
third party. Once Section 11(1) of the RTI Act is applicable, the PIO shall
follow the procedure of serving a notice to the third party for seeking
objections whether such information shall be disclosed or not.
On receipt of the submissions of the third party, the PIO shall keep the
submissions in view and then decide whether the information
sought shall be disclosed or not. If the PIO does not find any merit in the
submissions of the third party, he shall disclose the information sought to
the applicant. On the other hand, where the PIO decides that the
information sought shall not be disclosed then the basis for denial of
information must be in accordance with Sections 8 and 9 of the RTI Act

60
only. However (except in the case of trade or commercial secrets
protected by law) even where the PIO is of the view that there is possible
harm or injury to the interests of the third party, but public interest in
disclosure outweighs in importance any such harm or injury, he may
disclose the information. Section 11does not give the third party
a right of veto in giving information.
The Public Information Officer will have to consider the
following:
1. The objections raised by the third party by claiming
confidentiality in respect of the information sought for.
2. Whether the information is being sought by the applicant in larger
public interest or to wreak vendetta against the third party. In deciding
that the profile of person seeking information and his credentials will
have to be looked into. If the profile of the person seeking information, in
light of other attending circumstances, leads to the construction that
under the pretext of serving public interest, such person is
aiming to settle personal score against the third party, it cannot be
said that public interest warrants disclosure of the information
solicited.
3. The Public Information Officer, while dealing with the
information relating to or supplied by the third party, has to constantly
bear in mind that the Act does not become a tool in hands of a busy body
to settle a personal score.”
State Information Commission
State Information Commission (India) is an autonomous and
statutory bodies to be constituted as per The Right to
Information Act, 2005 by the State Governments in India
through a notification in official Gazette. The commission will have one

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State Chief Information Commissioner (CIC) and not more than 10
State Information Commissioners (IC) to be appointed by the
Governor on the recommendation of the committee consisting of
the Chief Minister as Chairperson, the Leader of the Opposition in
the Legislative Assembly and a state Cabinet Minister nominated by
the Chief Minister.
State Information Commission – Members, Appointment
1. The Right to Information Act of 2005 provides for the
creation of not only the Central Information Commission but also a
State Information Commission at the state level.
2. Accordingly, all the states have constituted the State
Information Commissions through Official Gazette Notifications.
3. The State Information Commission is a high-powered
independent body that inter-alia looks into the complaints made to it and
decides the appeals.
4. It entertains complaints and appeals pertaining to offices, financial
institutions, public sector undertakings, etc., under the concerned
state government.
5. The Commission consists of a State Chief Information
Commissioner and not more than ten State Information Commissioners.
6. They are appointed by the Governor on the recommendation
of a committee consisting of the Chief Minister as Chairperson, the
Leader of Opposition in the Legislative Assembly and a State
Cabinet Minister nominated by the Chief Minister.
7. They should be persons of eminence in public life with wide
knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance. They should not be a Member of Parliament or Member of

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the Legislature of any State or Union Territory. They should not hold any
other office of profit or connected with any political party or carrying on
any business.
Term of Office of SIC
They hold office till the age of 65 or 5 years. The information
commissioner is eligible for the post of state chief information
commissioner but can be in office for a maximum of 5 years including his
tenure of information commissioner.
State Information Commission – Quasi-Judicial Powers and
Functions
The quasi-judicial powers and functions of the State Information
Commission are:
a) The Commission must receive and inquire into a complaint from any
person
b) The Commission can order an inquiry into any matter if there are
reasonable grounds (Suo-moto power).
c) While inquiring, the Commission has the powers of a civil court in
respect of civil matters
d) During the inquiry of a complaint, the Commission may examine any
record which is under the control of the public authority and no
such record may be withheld from it on any grounds. In other words, all
public records must be given to the Commission during inquiry
for examination.
e) The Commission has the power to secure compliance with its decisions
from the public authority.
f) The Commission submits an annual report to the State Government on
the implementation of the provisions of this Act. The State Government
places this report before the State Legislature.

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Other functions & Powers
The commission submits and annual report to the state government on the
implementation of the provisions of this act. The state government places
this report before the state legislature.

 The commission can order inquiry into any matter if there are
reasonable grounds.

 The commission has the power to secure compliance of its

decisions from the public authority.

 It is the duty of the commission to receive and inquire into a

complaint from any person

 During the inquiry of a complaint, the commission may examine

any record which is under the control of the public
authority and no such record may be withheld from it on any
grounds.

 While inquiring, the commission has the power of the civil court in
respect of the following matters:

 Requiring the discovery and inspection of documents.

 Issuing summons for examination of witnesses or

documents and any other matter which may be prescribed

 Summoning and enforcing attendance of persons and

compelling them to give oral or written evidence on oath and to
produce documents or things.

 Receiving evidence on affidavit.

 Requisitioning any public record from any court or office.

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  When a public authority does not conform to the
provisions of this act, the commission may recommend steps
which ought to be taken for promoting such conformity.
Central Information Commission
Section 12 of the Right to Information Act, 2005 deals with the
constitution of a statutory body known as the Central
Information Commission. According to this provision, the central
government shall constitute a body called the Central Information
Commission bypassing a notification in the Official Gazette. The
Central Information Commission is entitled to exercise the powers
conferred to it and perform its duties and functions as per this
legislation. The Government of India through the Parliament of
India amended the Right to Information Act in July 2019 and
introduced some changes in RTI Rules related to salaries, allowances, and
tenures of the Information Commissioner(s). The members of
opposition parties started protesting and challenging these
proposed amendments on the ground that these changes are arbitrary in
nature and the Government of India wants to degrade the
effectiveness of the Information Commission.
Salient features of Section 12 of the RTI Act
Section 12 of the Right to Information Act, 2005 is termed as the
constitution of the Central Information Commission. Furthermore,
the salient features of this section are as follows:

 Section 12(1): This subsection empowers the central

government to constitute a body known as the Central
Information Commission.

 Section 12(2): As per sub-clause (2) of Section 12, the Central

Information Commission should consist of the Chief
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 Information Commissioner and such other Chief Information
Commissioners not more than 10 as may be deemed necessary.

 Section 12(3): As per sub-clause (3) of Section 12, the Chief

Information Commissioner and other Information
Commissioners shall be appointed by the President of
Republic of India on the recommendation of a committee
consisting of; the Prime Minister of India, as the
Chairperson of the committee; the leader of the single
largest group in opposition of the Government of India in Lok
Sabha; the Union Cabinet member shall be nominated by the Prime
Minister of India.

 Section 12(5): As per sub-clause (5) of Section 12, the Chief

Information Commissioner and other Information
Commissioners should be the person of acknowledge
superiority in public life and possess wide knowledge and
experience in the field of law, technology, social science,
management, science, mass media, journalism, governance,
and administration.

 Section 12(6): As per sub-clause (6) of Section 12, the Chief

Information Commissioner and other Information
Commissioners shall not hold any office of profit or should not be
the Member of Parliament or shall not be the Member of
any State/Union Territory Legislative Assembly, or shall not be
pursuing any profession or carrying any business or shall not be
connected with any political party.
Central Information Commission Composition
a) Members in CIC – The CIC is headed by the Chief

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Information Commissioner and not more than 10 Information
Commissioners are there for the assistance of CIC. The Chief Information
Commissioner holds office for five years. At present (2019), the
Commission has six Information Commissioners apart from the Chief
Information Commissioner.
b) Appointment of the commissioner in CIC – The
commissioners are appointed by the President on the
recommendation of a committee consisting of the Prime Minister as
Chairperson, the Leader of Opposition in the Lok Sabha, and a Union
Cabinet Minister nominated by the Prime Minister.
c) Tenure of Office: The Chief Information Commissioner and an
Information Commissioner shall hold office for such term as
prescribed by the Central Government or until they attain the age of
65 years, whichever is earlier. They are not eligible for reappointment.
Role of the Central Information Commission

i. Order enquiry into any matter on reasonable grounds only (Suo-

moto power).

ii. Secure compliance of its decisions from any public

authority.

iii. Receive and inquire into a complaint from any person:

iv. Who has not received any response to his request for
information within a specified time.

v. Who deems the information given to him/her incomplete, false or

misleading, and any other matter related to securing the
information

vi. Who has been unable to submit a request for information due to the

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 non-appointment of an officer

vii. Who considers the fees so charged unreasonable

viii. Who was refused the information requested

ix. The commission has the power to examine any record

under the control of the public authority. All such record shave to
be given to the Commission during the examination and
nothing shall be withheld.

x. During inquiries, the CIC has the powers of a civil court, such as
the powers to:

xi. Summon and enforce the attendance of persons, and

compel them to give oral or written evidence on oath and produce
documents or things

xii. Require the discovery and inspection of documents

xiii. Receive evidence on affidavit

xiv. Requisition public records or copies from any office or

court

xv. Issue summons for the examination of documents or

witnesses

xvi. Any other matter that may be prescribed

xvii. The CIC also submits an annual report to the GOI on the
implementation of the provisions of the Act. This report is then
placed before both the Houses of Parliament.
Following are the powers and functions of the Central
Information Commission
:a. The commission can order inquiry into any matter if there

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are reasonable grounds.
b. The commission has the power to secure compliance of its decisions
from the public authority.
c. The commission may recommend steps which ought to be taken for
promoting such conformity, if public authority does not conform to the
provisions of this act.
d. It is the duty of the commission to receive and inquire into a complaint
from any person:
i. Who has not received response to his information request within the
specified time limits?
ii. Who thinks information given is incomplete, misleading or false and
any other matter relating to obtaining information.
iii. Who has not been able to submit an information request because of
non-appointment of a Public Information Officer?
v. Who thinks the fees charged are unreasonable;

Appeals
The appeals process under the RTI Act is aimed at redressing any
grievance suffered by the Applicants in a quicker and cheaper
way rather than going to the courts. Section 19 of the Right to
Information Act lays down two stages of appeal, the First Appeal is to be
made to the appellate authority and the Second Appeal lies with the
Central Information Commission or the State Information Commission,
as the case may be. You can file an appeal under the Right to Information
Act whenever the PIO fails to respond to your application or
when you are aggrieved by the response of the PIO. What this means is
that whenever the PIO fails to give you a reply or charges

69
unreasonable fees for giving copies of documents or fails to give a
satisfactory reply or does not give a reply within the stipulated time frame
etc., you have the power to file an appeal with the appropriate authority.
1. First Appeal : The first appeal can be made to the
Appellate Authority if:
a) You are aggrieved by the decision made;
b) If no decision was made within the proper time limits;
c) You are a third party consulted during the application process,
and you are unhappy with the decision made by the PIO.
What is the time frame for making the First Appeal?
The Applicants who are aggrieved by a decision of a PIO can make an
appeal to a departmental Appellate Authority within 30 days of receiving
the reply from the PIO or at the expiry of the time period within which
the information should have been provided by the PIO. However, if you
miss that deadline and the Appellate Authority is convinced that you had
justifiable cause for missing the deadline, he/she may allow you to submit
an appeal even after the 30 days have expired.
Who should the First Appeal be made to?
In every public authority, an officer who is senior in rank to the PIO has
been designated to hear appeals and is referred to as the First Appellate
Authority (FAA). Every first appeal shall be referred to the FAA of the
same public authority within which the RTI application was made. The
original decision or rejection notice you receive from the PIO should
include contact details for the relevant Appellate Authority so that you
know who you can go to get the decision reviewed. If the notice is
deficient, you may want to check the website of the public authority or
contact the PIO directly and ask for the Appellate Authority’s details.
Disposal of the First Appeal

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The RTI Act does not provide for any procedure to be followed for
deciding appeals. However, the Appellate Authority must offer you an
opportunity to be heard before a decision on your appeal is reached. In
any appeal, it is the PIO who needs to prove to the Appellate
Authority that they made the right decision. Only if they make a
defensible case, should you be asked to explain why you think they are
wrong? The Central Act requires that the internal Appellate Authority
(FAA) dispose off your appeal within 30 days or 45 days if an extension
is necessary.
2. Second Appeal: The Right to Information Act lays down provision for
the second appeal in cases when you are unhappy and dissatisfied with
the decision given by the First Appellate Authority. Information
Commissions have been set up at the Centre and states for hearing
such appeals.
What is the time frame for making Second Appeal?
A second appeal against a decision of an Appellate Authority to the
Information Commission must be made within 90 days from the date on
which the decision should have been made or from the date a decision
was actually received. However, the Information Commission has
the discretion to allow appeals after this period has expired if there is
sufficient cause for such delay.
Disposal of the Second Appeal
The RTI Act does not provide for any procedure to be followed for
deciding appeals. However, the Information Commissions must offer
you an opportunity to be heard before a decision on your appeal is
reached. In any appeal, it is the PIO who needs to prove to the Appellate
Authority that they made the right decision. Only if they make a
defensible case, should you be asked to explain why you think they are

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wrong. The Central Act does not prescribe a time limit for
the Information Commission to decide on an appeal and no time limit has
yet been included in any of the Appeal Rules which have been prescribed.
Penalties
The Commission has powers to impose penalty and recommend
disciplinary action against Central Public Information Officer
(CPIO) under section 20. The section 20 is given below:
Section 20 (1) Where the Central Information Commission or the State
Information Commission, as the case may be, at the time of deciding any
complaint or appeal is of the opinion that the Central Public
Information Officer or the State Public Information Officer, as
the case may be, has, without any reasonable cause, refused to
receive an application for information or has not furnished
information within the time specified under sub-section (1) of
section 7 or malafidely denied the request for information or
knowingly given incorrect, incomplete or misleading information or
destroyed information which was the subject of the request or obstructed
in any manner in furnishing the information, it shall impose a penalty of
two hundred and fifty rupees each day till application is received
or information is furnished, so however, the total amount of such penalty
shall not exceed twenty-five thousand rupees:
Provided that the Central Public Information Officer or the State Public
Information Officer, as the case may be, shall be given a reasonable
opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted
reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer, as the case
may be.

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(2) Where the Central Information Commission or the State
Information Commission, as the case may be, at the time of deciding any
complaint or appeal is of the opinion that the Central Public
Information Officer or the State Public Information Officer, as
the case may be, has, without any reasonable cause and
persistently, failed to receive an application for information or
has not furnished information within the time specified under sub-
section (1) of section 7 or malafidely denied the request for
information or knowingly given incorrect, incomplete or
misleading information or destroyed information which was the subject
of the request or obstructed in any manner in furnishing the information,
it shall recommend for disciplinary action against the Central Public
Information Officer or the State Public Information Officer, as the case
may be, under the service rules applicable to him.
Supreme Court & Right to Information
The right to information is a fundamental right under Article 19(1) of the
Indian Constitution. In 1976, in the Raj Narain vs. the State of Uttar
Pradesh case, the Supreme Court ruled that Right to information will be
treated as a fundamental right under article 19. The Supreme Court
held that in Indian democracy, people are the masters and they have
the right to know about the working of the government. Thus the
government enacted the Right to Information act in2005 which provides
machinery for exercising this fundamental right.
CBSE v. Aditya Bandopadhyay & Ors. (2011)
Issue
In CBSE v. Aditya Bandopadhyay & Ors. (2011), the main issue before
the Supreme Court was whether or not an examinee’s right to
information under the RTI Act 2005includes the right of for the

73
student to view and inspect his/her evaluated answer books in a
public examination, and also whether or not the examinee has the
right to take certified copies of the same. The examining body, which
was CBSE, had claimed that it held the information without giving it out
to the student in a relationship of trust (fiduciary relationship). CBSE
claimed that this was exempted under Section 8(1) (e) of the RTI Act.
Observation of Court (Judgement)
Para 18 of the Judgement reads as follows – “Section 22 of RTI Act
provides that the all provisions of the RTI Act will have an effect,
notwithstanding anything that is not consistent or else contained in any
other law for the time in force. Therefore the provisions of the RTI
Act will continue to prevail over the provisions of the bye-
laws/rules of the examining bodies in regard to all exams. As a
result, unless and until the examining body is able to demonstrate that
the answer-books fall under the exempted category of information
described in clause (e) of section 8(1)of RTI Act, the examining body
will be bound to provide access to an examinee to inspect and take
copies of his evaluated answer-books, even if such inspection or taking
copies is barred under the rules/bye-laws of the examining body
governing the examinations.”
Analysis of the Judgement
a) It was held by the Court in the final verdict that as the examining body
(CBSE) did not hold any type of fiduciary relationship with the
examinees or examiners, it will not be exempted.
b) The Supreme Court ordered CBSE for the information to be provided.
c) The Court held that the corrected answer sheets were
information to be provided to students who seek them under the RTI
Act.

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d) The observations that were made by the Court, stated in Para 37 above,
were completely uncalled for, and there does not seem to be any
cause or reason for those observations.
e) Under Para 37, labelling citizens as oppressors and
intimidators is highly unacceptable.
f) The remarks that were made in Para 37 of the judgement are
unexplainable by any facts and they certainly run parallel to all
the earlier decisions on the RTI Act.
g) Unfortunately, the Supreme Court could make such remarks,
as mentioned in Para 37 of the Judgement ,especially concerning
a fundamental right of citizens.
Karnataka Information Commissioner v. PIO
Issue and observations of the Court
Under the case of Karnataka Information Commissioner v. PIO, certified
copies of some information and guidelines along with rules in respect to
scrutiny and classification of writ petitions were requested by an RTI
applicant, along with procedures followed by the Karnataka High Court
in respect of Writ Petition Nos. 26657 of 2004 and 17935 of2006.

 The information was refused upon by the PIO on the

grounds that the RTI applicant must seek the information under the
rules of the Karnataka High Court only.

 This matter later went to the State Information

Commission.

 The State Information Commission disagreed with the PIO.It

ordered for information to be provided to the applicant under the
RTI Act.

 PIO later challenged the Commission’s order in the High Court,

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 which names the applicant as the respondent in this case.

 The commission’s order was set aside by the Karnataka High

Court.

 A Petition was filed by an Information Commissioner and the

Commission challenged this order before the Supreme Court.

 The Supreme Court later considered the petition, being filed by an

Information Commissioner to be offensive. It said that the
commissioner, as well as the commission, had no ‘locus standi’.

 It was later held by the Court that both, the commissioner and
commission, were wasting public money by challenging the
High Court Order.

 A cost of ₹10,000 was imposed as a fine on the

commission, as a harsh snub.
Analysis of the Judgement
Here, it is worth mentioning that the Supreme Court itself had once
earlier accepted the Chief Information Commissioner (Manipur)
in one judgement as to the Petitioner of the case.

 Many High Courts have also previously named the

Commission as the party in many petitions that were filed earlier,
challenging the decision of the Information Commission.

 Hence, it does not appear to be correct for the Supreme Court to

take umbrage in this case at the commission for approaching it as a
petitioner.

 More importantly, the overriding effect of the RTI given in Section

22 of the RTI Act was not addressed at all by the Supreme Court.

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 This Section’s provisions were brushed away completely.

 This judgement has had a huge impact on the Information

Commissions.

 Post this verdict, the Commissions have become more

subservient to the Courts.

 The harsh snub judgement has completely silenced the

Commission from questioning the Courts.

 If the apex courts snub the authorities in such matters, it damages

the rule of law as well.

 Authorities require some extent of respect in order to

enforce the laws, which the authorities undoubtedly lose with these
negative judgements.

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