Right to Information Act and its Exceptions under the Act: Sanjay Rawat
INTRODUCTION
“The real Swaraj will come not by the acquisition of authority by a few, but by the acquisition of capacity by all to resist authority when abused”.[1] When Mahatma Gandhi said this, he may not have imagined that one day India will have to make a law to empower people for something as basic as seeking information about the development of the country.
The concept of legal right has been developed parallel to Natural Law Theory. Modern written Constitution has evolved from the concept of Natural Law as a higher law. Fundamental rights are the modern name for what have been traditionally know as natural rights and it is in fact extension, combination, or permutations of the basic natural rights[2]. The expression “freedom of speech and expression” in Article 19 (1)(a) of the Constitution has been held to include the right to acquire information and disseminate the same and it was finally incorporated in the Right to Information Act, 2005 and given full mechanism for its realization.
The Right to Information Act, 2005 has been probably the most discussed law of the recent times and has given much more power to the people than any other law. Its basic aim is “to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority”.[3] The same has been hailed as the win of democracy over the hurdles created by the archaic system of rules set in place by the erstwhile rulers of India. No paper which goes into any aspect of the Right to Information Act, 2005 would be complete without acknowledging the efforts of the Mazdoor Kisan Shakthi Sanghatana, whose hard work has landed us into the era of free access to important information for Public.
Democratic form of Government necessarily requires accountability which is possible only when there is openness, transparency and knowledge. Greater exposure about functioning of the Government ensures better and more efficient administration, promotes and encourages honesty and discourages corruption, misuse or abuse of powers by an officer or authority. Transparency is a powerful safeguard against political and administrative aberrations and antithesis of inefficiency resulting from a totalitarian government which maintains secrecy and denies information.
RIGHT TO INFORMATION ACT IN A NUTSHELL
The formal recognition of a legal Right to Information in India occurred more than two decades before legislation was finally enacted, when the Supreme Court of India ruled in State of U.P. v Raj Narain[4] that the Right to Information is implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19 of the Indian Constitution. Subsequently, the Court has affirmed this decision in numerous cases and has even linked the Right to Information with the right to life enshrined in Article 21 of the Constitution.
Right to Information (RTI) is defined under Section 2(j)[5]as:
“Right to Information” means the Right to Information accessible under this Act which is held by or under the control of any public authority and includes the right to-
- Inspection of work, documents, records.
- Taking notes, extracts, or certified copies of documents or records
- . Taking certified of materials
- Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.”
Right to Information Act, 2005 (hereinafter referred to as ‘RTI Act’) sets out the practical regime of right to information for citizens to secure access to information from a public authority, which is held by the public authority or which is held under its control, in order to promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.
However, it is equally true that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and therefore, it is necessary to harmonize these conflicting interests while preserving the supremacy of the democratic ideal. This assignment deals with the issue of exemptions from disclosure of information under Right to Information Act, 2005. There are certain limitation on extracting information from public authorities and this has been discussed in the next heading.
Also Read: Difference Between Judicial Custody & Police Custody
EXEMPTIONS UNDER SECTION 8 OF THE RTI ACT- AN OVERVIEW
Exemptions against furnishing information under the RTI Act have been provided under Section 8[6] and Section 9[7] of the Act. Unless the public authority is able to demonstrate that information sought for falls under any of the exempted categories of information, it would be bound to provide the information and that reasons for rejection of requests for information must also be clearly provided. Section 8 (1) of the RTI Act over-rides other provisions of the RTI Act.
Section 8 of the RTI Act Exemption of following information from disclosure by stating that;
“(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identif’ the source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 19 of 1923.
(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under secton 6 shall be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.
- EXEMPTION UNDER SECTION 8(1)
Under Section 8 (1) (a) of the RTI Act, a public authority is not under obligation to furnish the information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.
As defined in Black’s law Dictionary, sovereignty means the supreme, absolute and uncontrollable power by which an independent State is governed. Thus, the concept of sovereignty involves freedom from all foreign control or domination. For the purpose of Clause (a) of Section 8 (1), the term integrity denotes the state of being whole, entire or undiminished. The Public authority is not under obligation to disclose the information that may prejudicially affect sovereignty and integrity of India.
The definition of security is definitely broad and includes political, economic, environmental, social and human among other strands that impact the concept of security. The information which relates to national security of India could genuinely cause harm if it is released to the public. Disclosure of information that generates anxiety or threatens the quality of life may prejudicially affect security of the State and therefore, the same should not be disclosed.
Information of messages intercepted in the interests of the sovereignty and integrity of India, may be exempted from disclosure under Section 8(1) (a) of the RTI Act. Information envisaged under Section 8 (1) (a) of the RTI Act also includes information relating to military movements and operations, information relating to ammunition issued to police officers during a specific time period, strategic defence secrets plans, information published during a conflict, etc. However, it would not be proper to use this exemption to keep common commercial information secret, simply because it relates to defence. The relationship between countries can often be sensitive, such that candid assessments and analysis of behaviour of other countries and policies could easily offend and in so doing, damage own international interests of India.
Therefore, information which could be interpreted as offensive to friendly relations with foreign States is exempted from disclosure. Information related to nonperforming assets of banks annual net investments made by each foreign institutional investor in India may be exempted under economic interests of the State, if public interest in disclosure of such information outweighs the harm to the protected interests. Any information disclosure of which is capable of exciting even a modest person to commit an offence may be exempted. Therefore, information of messages intercepted for preventing incitement to the commission of an offence, may be exempted from disclosure under Section 8(1) (a) of the RTI Act.
Information that has been expressly forbidden to be published by any Court of Law or Tribunal and the information, disclosure of which may constitute contempt of Court, are exempted from disclosure under Section 8(1)(b) of the RTI Act.
Contempt of court is dealt with under the Contempt of Courts Act, 1971. Contempt of court includes civil contempt and criminal contempt. Civil contempt means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. 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 any act, whatsoever, which scandalizes or lowers or the authority of any court, or prejudices or interferes with the due course of any judicial proceeding or interferes with or obstructs the administration of justice in any other manner.
The public authority is required to decide which information would cause contempt of court before applying this provision of the RTI Act. However, disclosing information on matters which are sub judice does not constitute contempt of Court, unless there is a specific order forbidding its disclosure.
Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, is exempted from disclosure under Section 8(1)(d) of RTI Act, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. In order to test the applicability of Section 8(1)(d) of the RTI Act, first and foremost, it is necessary to determine the nature of information and if the nature of information is confidential relating to the affairs of a private entity that is not obliged to be placed in public domain, it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.
CASE LAWS ON SECTION 8(1) OF RTI ACT
In Sajjan Singh vs. State Public Information Officer and Ors[8] the High Court of Rajasthan (Jaipur Bench) has held that action of denying copies of certain pages contained in the Yatinder Singh Removal of Pay Anomaly Committee Report is justified under Section 8 (1)(c) of the RTI Act on the ground it being under consideration of the Cabinet.
In the Institute of Chartered Accountants of India v. Shaunak H. Satya and Ors[9], the Supreme Court of India has held that Section 8(1) (d) of RTI Act did not bar or prohibit disclosure of question papers model answers solutions to questions and instructions, if any, given to examiners and moderators after examination and after evaluation of answer scripts was completed as at that stage they would not harm competitive position of any third party.
In UPSC v. R.K. Jain[10] the High Court of Delhi has held that opinions/advices tendered/given by public officials could be sought for under the RTI Act, provided same had not been tendered in confidence/secrecy and in trust to authority concerned, i.e. to say in fiduciary relationship.
In Delhi Metro Rail Corporation Ltd. v. Sudhir Vohra[11] the High Court of Delhi has held that since the information on all structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations and soil tests pertaining to the cantilevered bracket of Metro Pillar No. 67, was given to engineers, contractors, sub-contractors and other people working in field, there had been disclosure of such information earlier and therefore, Section 8(1)(a) of Act was not attracted as disclosure and furnishing of information could not prejudicially affect scientific and economic interests of State.
- PUBLIC INTEREST VERSUS PROTECTED INTEREST
Section 8(2) of RTI Act provides that information exempted under subsection (1) or exempted under the Official Secrets Act, 1923 can be disclosed if public interest in disclosure overweighs the harm to the protected interest. As per Black’s Law Dictionary (8th Edn.) ‘public interest’ means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake.
The expression ‘public interest’ has to be understood in its true connotation so as to give complete meaning to Section 8 (1) of the RTI Act. The expression ‘public interest’ must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the RTI Act.
The Supreme Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi[12] has held that the statutory exemption provided under Section 8 of the RTI Act is the rule and only in exceptional circumstances of larger public interest, the information would be disclosed. It has also been held that ‘public purpose’ needs to be interpreted in the strict sense and public interest has to be construed keeping in mind the balance between right to privacy and right to information.
- DISCLOSURE OF INFORMATION AFTER LAPSE OF TWENTY YEARS
Under Section 8(3) of the RTI Act, subject to the provisions of clauses (a), (c) and (i) of Section 8 (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made, shall be provided. Decision of the Central Government shall be final on the question as to the date from which the said period of twenty years has to be computed, subject to the usual appeals provided for in RTI Act.
Thus, the information which, in normal course, is exempted from disclosure under provisions of Clauses (b), (d), (e), (f), (g), (h) and (j) of Section 8 (1) of the RTI Act, would cease to be exempted after lapse of twenty years from the date of occurrence of the incident to which the information relates. However, the following information would continue to be exempted and there would be no obligation, even after lapse of twenty years, to furnish the same to any citizen under RTI Act[13]
: i) Information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, relation with foreign state or lead to incitement of an offence;
ii) Information the disclosure of which would cause a breach of privilege of Parliament or State Legislature; and
iii) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers, subject to the conditions that the decision has been taken, and the matter is complete, or over.
It is noteworthy to mention that the said Sub-section does not contemplate preservation of record or information for a period of twenty years. Record or information should be preserved according to the relevant rules or regulations of the public authority relating to the preservation of record. Where any record or information is required to be destroyed under the rules or regulations of a public authority prior to twenty years, Section 8(3) of RTI Act will not prevent destruction of the same in accordance with the relevant rules or regulations. Section 8(3) of RTI Act does not override any rules or regulations of the public authority prescribing the period for preservation of record, document or information.
JUDICIAL VIEW ON EXEMPTIONS FROM DISCLOSURE OF INFORMATION UNDER RTI ACT
The preamble of the RTI Act specifically states that the object of the Act is to harmonize two conflicting interests, one is to bring about transparency and accountability by providing access to information under the control of public authorities and the other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests, which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. While Sections 3 and 4 of the Act seek to achieve the first objective, Sections 8, 9, 10 and 11 the Act seek to achieve the second objective. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.
The Supreme Court in Central Board of Secondary Education and Anr. vs. Aditya Bandopadhyay and Ors[14]has disagreed with the said approach. The Supreme Court has held that the RTI Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy and therefore, the Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonizes the two objects of the Act, while interpreting Section 8 and the other provisions of the Act.
The Supreme Court has further held that indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption, would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.
The Supreme Court in Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors[15] has observed that it is necessary to make distinction in regard to information intended to bring transparency to improve accountability and to reduce corruption and other information which could not have bearing on accountability or reducing corruption. Further, the competent authorities under RTI Act would have to maintain proper balance so that while achieving transparency, demand for information does not reach unmanageable proportions affecting other public interests which include efficient operation of public authorities and government preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.
CONCLUSION: Right to Information Act and its Exceptions under the Act
Mandate of the RTI Act is to disseminate information held by public authorities except that, which is exempted under any of the provisions of the Act or any other special law. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information, which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. However, the right to information is not absolute.
Section 8and 9 of the Act lay down certain exceptions, under which a public authority has a right to reject a request for information, notwithstanding anything contained in the Act. Endeavour of the RTI Act is to harmonize conflicting public and private interests.
RTI Act should not be used as an instrument to harass honest public officials or to obstruct the functioning of a public authority. Therefore, the right of the citizens to access any information held by any public authority, should be read in harmony with the exclusions/exemptions enumerated in the RTI Act.
BIBLIOGRAPHY
https://indiankanoon.org/doc/758550/
http://docs.manupatra.in/newsline/articles/Upload/F8FF5487-7DF0-4F0F-9A11-74F3C2585AC9.pdf
https://www.jusdicere.in/central-board-of-secondary-education-anr-v-aditya-bandopadhyay-ors/
https://rti.gov.in/rti-act.pdf
Right to Information Act and its Exceptions under the Act research Paper
[1] Editorial, “ Right to Information Act and its Exceptions : A tool for Good Governance” The Tribune, Oct 4, 2020.
[2] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[3] Right to Information, 2005 (Act 22 of 2005).
[4] AIR 1975 SCR (3) 333. Right to Information Act and its Exceptions
[5] Right to Information Act, 2005 (Act 22 of 2005).
[6] Right to Information, 2005 (Act 22 of 2005).
[7] Ibid: Right to Information Act and its exceptions
[8] RLW 2009 (3) Raj 2660: Right to Information Act and its Exceptions
[9] AIR (2011) 8 SCC 781
[10] 2012(282)ELT 161(Del.)
[11] AIR 2011 Delhi 167.
[12] (2012) 13 SCC 61
[13]Exemptions from disclosure of information under Right to Information Act, 2005: a methodical review available at:http://docs.manupatra.in/newsline/articles/Upload/F8FF5487-7DF0-4F0F-9A11-74F3C2585AC9.pdf (Visited on September 20, 2021). Right to Information Act and its Exceptions
[14] (2011) 8 SCC 497
[15] (2011) 8 SCC 781
Right to Information Act and its Exceptions
Right to Information Act and its Exceptions under the Act
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