right to information 2

8/2/2019 Right to Information 2

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NATIONAL LAW UNIVERSITY JODHPUR

Right to Information

A study of RTI and its importance

Submitted by Submitted to

Akash Paul Lakra Dr. V. S. Shastri

Roll 766 BBA hons. LLB hons. Faculty, Legal Methods and Research

Semester 1

9/1/2010


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1 Right to Information

Table of Contents

S.no. Important Headers Page No.

0 Acknowledgement 21 Abstract 3

2 List of abbreviations 4

3 List of Case Citations 5

4 Acts Mentioned 6

5 List of Cases analyzed 7

6 Why Right to information!Question arises is why did the FOI fail?

8

7 The Emergence

8 What is the right to information? (Short summary)

9 Introduction to the Right to Information

10 Significance of Right to Information Act 2005

11 Explanation of the Law

12 Cases Analyses

13 Conclusion


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Acknowledgement

I take this opportunity to first of all thank our Legal Methods and Research teacher, Dr.

V.S.Shasthri who gave me this fascinating Project topic. I would also like to thank him for the

patience he showed with me, the project gave me a chance to strength my researching

skills. He furthermore streamlined my efforts in a particular area and topic which is most

relevant to our study as students of law.

Moreover I would like to thank my seniors who helped me in selecting relevant books in this

area. I would also like to thank my friends who helped me when I was stressed and under

pressure.

- Akash Paul Lakra


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Abstract

Right to Information Act 2005 authorizes or what you would say allow citizens of India

timely response to their requests for government information. This law enacted by the

Parliament of India was "to provide for setting out the practical regime of right to

information for citizens.And hence came into force on 12th

October 2005.

This Project answers the following questions

1. Why Freedom to Information Act of 2002 failed?2. How did Right to Information emerge from Freedom of Information?3. Very Brief Summary of Right to information.4. Introduction to Right to information.5. What is the significance of Right to Information6. A seven page explanation of Right to information

This Project also has six case analyses. All the cases are from the supreme court of India.

Each case has:-

1. Brief Facts2. Judgment3. Ratio4. Test of Confirmation

Conclusion of the research work can be found at the end of the Case analyses


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List of abbreviations

S.no Abbreviation Meanings

1 FOI Freedom of Information Act, 2002

2 RTI Right to Information Act, 2005

3 MP Member of Parliament

4 MLA Member of Legislative Assembly

5 SCC Supreme Court Cases

6 AIR All India Reporter

7 SC Supreme Court

8 SCR Supreme Court Reports

9 NAC National Advisory Council

10 CHRC Canadian Human Rights Commission

11 CMP Common Minimum Program

12 NCPRI National Campaign for Peoples Right to information

13 AIHC All India High Court Cases


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Case Citations

S.no Case Cited on Page

no.

1 Peoples Union for Civil Liberties v. Union of India 11

2 Peoples Union For Civil Liberties v. Union Of India 11,16,19

3 Union of India v Association for Democratic Reforms 11,12,13,19

4 State of Uttar Pradesh v. Raj Narain 11,17

5 Romesh Thappar v. State of Madras 11

6 Peoples Union For Civil Liberties (PUCL) v. Union of India 12

7 Dinesh Trivedi. M. P v. Union of India 12

8 Vishaka v. State of Rajasthan 12

9 Vineet Narain v. Union of India. 13

10 R.P Ltd v. Indian &Indian Express, v. Union of India

15

11 S.P. Anand v. Union of India 15

12 Essar Oil Ltd v. Halar Utkarsh Samithi 15

13 Hanif Naji Gawda v. State of Karnataka 15

14Ozar Hussain v. Union of India

1515 Association for Democratic Reforms v. Union of India 16

16 Secretary, Ministry of Information and Broad Casting v. Cricket Association, Bengal 16

17 Prabha v. State 16

18 Gupta v. President 17,18,19

19 D.V National Society for the Prevention of Cruelty to Children 18

20 Sathyanarayana Brothers (P) Ltd. T.N Water Supply & Drainage Board (2004) 5 SCC314.

18

21 F.A Picture International v. Central Board of Film Certification 21


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Acts Mentioned

S.no Act Page no.

1 A.P Right to information Bill, 2001, Section (i). 10

2 Goa right to Information Act, 1997, Section 2(d). 10

3 Rajasthan Right to information Act, 2000, Section 2(vi) 10


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List of Case Analyzed

S.no Case Citation Pg.no

1 Ravinder Kumar v. State of Haryana and Ors. MANU/SC/0287/2010 22

2 Research Foundation for Science Technology andNatural Resource Policy v. Union of India (UOI)

and Ors.

MANU/SC/7894/2007 26

3 Kunga Nima Lepcha and Ors. V. State of Sikkimand Ors.

MANU/SC/0193/2010 29

4 Rajinder Kishan Gupta and Anr.Vs. Union of India (UOI) and Ors.

MANU/SC/0622/2010 31

5 Dr. M.S. Patil Vs. Gulbarga University and Ors. MANU/SC/0646/2010 34

6 Khanapuram Gandaiah Vs. AdministrativeOfficer and Ors.

MANU/SC/0646/2010 37


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Why Right to information!

Freedom of Information Act 2002 a failed law of the government led to the creation of the

Right to Information Act 2005.

Question arises is why did the FOI fail?

FOI was based upon the Freedom of Information Bill 2000 and was introduced and then

passed in December 2002. It received Presidential asset on 2003, January. Unfortunately, a

date for the Bill coming into force was never notified, such that it never actually came into

operation.

FOI was severely criticised for permitting too many exemptions, not only under the standardgrounds of national security and sovereignty, but also for requests that would involve

"disproportionate diversion of the resources of a public authority". There was no upper limit

on the charges that could be levied. There were no penalties for not complying with a request

for information. The FOI Act, consequently, never came into effective force.

Hence the government thus there by replaced FOI with another law, and that is the Right to

Information Act 2005.

But the question then arises is why Right to Information?

RTI makes the Government more accountable and responsible to Citizens of India as it

empowers them to seek information from public authority. Thus the RTI enables the

Government and functionaries to be under the surveillance of the citizens of India.

RTI has been a very vital ingredient to usher in transparency and reduce corruption.


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The Emergence

Change of Name

The Freedom in the previous Act became Right in the New Act. Freedom signifies the

citizens will to seek any information and right means the corresponding duty on the state

to disclose whether a person asked the information or not. Though some sections provide for

duty to disclose there is, in effect, no change in the character of right or freedom that offered

by the statute under both the enactments.

In order to ensure greater and more effective access to information, the Government resolved

that the FOI act enacted by the Parliament needs to be made:-

More progressive Participatory Meaningful

The National Advisory Council deliberated on the certain important changes to be

incorporated in the existing Act to ensure smoother and greater access to information. The

Government examined the suggestions made by the National Advisory Council and others

and decided to make a number of changes in the law.

The important changes proposed to be incorporated, inter alia, include:-

Establishment of an appellate machinery with investigating powers to reviewdecisions of Public Information Officers;

Penal provisions for failure to provide information as per law; Provisions to ensure maximum disclosure and minimum exemptions, consistent with

constitutional provisions, and effective mechanism for access to information and

disclosure by the authorities etc.

In view of significant changes proposed in the existing Act, the Government also decided to

real Freedom of Information Act, 2002. The proposed legislation will provide an effective

framework for effectuating right to information recognised under Article 19 of the

Constitution of India.


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What is the right to information? (Short summary)

Right to information means the right to access to information from any public authority by

means of inspection taking of extracts and notes; obtaining certified copies of any records of

such public authority, diskettes, floppies, photocopies or in any other electronic mode or

through print outs where such information is stored in a computer or in any other device.1

Right to information means the right of access to information and includes the inspection of

works, documents, records, or taking notes and extracts and obtaining certified copies of

documents or records or taking samples of material.2

Right to information means the right to access to information relating to the affairs of the

state or public bodies by means of:-

Obtaining Certified Copies of documents or records, or inspection of accessible records and taking notes and extracts or inspection of public works; or Taking of samples of material from public works.3

1

See: A.P Right to information Bill, 2001, Section (i).2See: Goa right to Information Act, 1997, Section 2(d).

3See: Rajasthan Right to information Act, 2000, Section 2(vi)


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Introduction to the Right to Information

The right to information is an aspect of the freedom of speech and expression contained in

Article 19(1) (a). The right of information thus, certainly, is a fundamental right.4

The court

also discussed several earlier cases on the question of privilege although this was wholly

unnecessary for the purpose of the case Section 18 of the Atomic Energy Act, 1962 could

have been upheld on the touch stone of Article 19(2) itself.5

The people of the Country have a

right to know every public act, everything that is done in a public way by the public

functionaries. MPs or MLAs are undoubtedly public functionaries. Public education is

essential for functioning of the process of popular government and to assist the discovery of

truth and strengthening the capacity of an individual in participating in the decision making

process. The decision making process of a voter include his right to know about public

functionaries who are required to be elected by him.6

The right to know, which is derived from the concept of freedom of speech, though is not

absolute, is a factor which should make one wary, when secrecy is claimed for transactions

which can, at any rate, have no repercussions on public security.

In a responsible Government like ours, where all the agents of the public must be responsible

for their conduct, there can be but few secrets.

The people of this country have a right to know every public act, everything that is done in a

public way, by their public functionaries.

The people are eligible to know the basics of every public transaction in all its bearing.7

The

freedom lays in the base of all democratic governments, for without free political discussion,

no public education, so essential for the proper functioning of the processes of popular

government, is possible. A freedom of such amplitude might involve risks of abuse. But it is

better to leave a few of its noxious branches to their thriving growth, than by cropping them

away, to injure the dynamism of those yielding the proper fruits.8

4Peoples Union for Civil Liberties v. Union of India (2004) 2 SCC 426, 494: AIR 2004 SC 1442.

5Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476, 494: AIR 2004 SC 1442.

6Union of India v Association for Democratic Reforms, (2002) 5 SCC 294, 314: AIR 2002 SC 2112.

7

State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428, 453: AIR 1975 SC 865.8Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594, see also the observations of Lord

Simons of Glaisdale in AttorneyGeneral v. Times Newspapers Ltd., (1973) 1 ALL ER 54.


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The Supreme Court struck down Section 33B of the representation of the People Act, 1951.

This section was added to nullify an earlier decision of the Supreme Court9

which directed

that candidates must disclose their criminal track record as well as the list of their assets and

liabilities. The section was held to be unconstitutional. The Court then held that a well

informed voter is the foundation of democratic structure and disclosure of such information

to the voter is a one facet of the fundamental right under Article 19(1) (a). Section 32B could

not be justified or saved under Article 19(2)10

.

In a Landmark ruling, the Supreme Court observed that even if there were no guidelines laid

down by the Election Commission it would be pertinent for candidates contesting an election

to file information with the Commission of their past antecedents.11

The court observed that if

the right to telecast and right to view sport games and the right to impart such information is

considered to be part and parcel of Article 19(1) (a), a fortiori a citizen/ voterthe little man-

has the fundamental right to know about the antecedents of his candidates. Democracy cannot

survive without free and fair elections, without free and fairly informed voters. Votes cast by

uninformed voters in favour of X or Y candidate would be meaningless. One sided

information, disinformation, misinformation and non information, all equally create an

uninformed citizenry which makes democracy a farce. Therefore informed voters or a voter

having onesided information only is bound to affect the democracy seriously. Freedom ofspeech and expression includes the right to impart and receive information which includes the

freedom to hold opinions. If entertainment is implied in freedom of speech and expression

and there is no reason to hold that freedom of speech and expression would not cover the

right to get material information with regard to a candidate who is contesting an election for a

post which is of utmost importance in a democracy.12

Democracy expects openness and

openness is a concomitant of a free society. Sunlight is the best disinfectant.13

After

extensively commenting on the right of the voters to know of the antecedents of the

contesting candidates, the Supreme Court relying on its earlier practice in Vishakas case14

9Supra Note 6.

10Peoples Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, 434, 438: AIR 2003 SC 2363.

11Supra Note 6.

12

Supra Note 6.13Dinesh Trivedi. M. P v. Union of India, (1997) 4 SCC 306,314: (1997) 4 JT 237.

14Vishaka v. State of Rajasthan, AIR (1997) SC 3011: (1997) 6 SCC 231.


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and in Vineet Narain Case,15

laid down guidelines to be followed till such time as the

Election commission framed the same.16

15Vineet Narain v. Union of India. (1998) 1 SCC 226: AIR 1998 SC 889.

16Supra 6.


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Significance of Right to Information Act 2005

Indias new Right to Information Act has some Radical provisions, based on amendments

proposed by the National Advisory Council (NAC), CHRC and other agencies, to ensure

unprecedented transparency in sections of the government like intelligence and security

agencies.

Under the new provisions of the revamped Act, these agencies (thus far insulated from the

publics right to to know) will have to disclose information related to complaints about

human rights violation or corruption. The law envisaged the independent Information

Commissioner to enforce the Law, and monetary penalties for official who do not comply

while the final bill deleted the provisions to impose up to a fiveyear prison term.

Like the earlier law, while information on 19 intelligence and security organisations(such as

the intelligence Bureau, Research and Analysis wing, Border Security force, Central Reserve

Police force, National Security Guards, Assam Rifle) will not come under the Acts purview,

information of Human rights and allegations of corruption by these organizations will not be

excluded.

The Changes in the new law:

The president of India will appoint a Chief Information officer and Governors ofState the State Implement the Act. They will be autonomous functionaries with five

year terms.

The chief Information Commissioner and State Information Commissioner will haveto publish an annual report on the implementation of the Act. The annual report will

be tabled below the Parliament/ State legislatures.

A new section on penalties for varying penalties or lines of ( up to Rs. 5000) withoutimprisonment( the draft proposed up to five years) as punishment for mala fide,

refusal to give information, destroying information knowingly giving out wrong

information to an RTI applicant.

Government bodies have to publish details of staff payments. While the newly elected United Progressive Alliance Governments Common

Minimum Programme(CMP) had promised a stronger disclosure law, what helped

push the process through was the fact that two members of the NAC are leadcampaigners of the National Campaign for Peoples Right to information(NCPRI)2


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Explanation of the Law

1. The right to know relating to public affairs has been held up as a basic right,17 underthe constitution of India.

2. The right to receive information may be deduced as a counterpart of the right toimpart information, which is an ingredient of the freedom of expression guaranteed by

Art. 19(1) (a).18

IT was held in that case that people at large have a right to know in

order to be able to take part in a participatory development of the industrial life in the

broader horizon of the right to live. In this age, in our land, under Art. 21 of our

Constitution, that right has reacted a new dimension and urgency. That right puts

better responsibility upon those who take upon themselves the responsibility to

inform.

A person campaigning for a public interest drive has to keep in mind always national

security and national interest since it is above the right to information of citizens.19

3. It has been suggested20 that the right to know may also be derived from Art. 21 underwhich the right to live of a citizen in a free country has been placed on a broader

perspective.

Citizens who have been made responsible to protect environment have a right to

know. There is a strong link between Article 21 and the right to know particularly

where secret government decision may affect health, life and livelihood.21

4. The right to know puts greater responsibility to protect environment upon those whotake upon themselves the responsibility to inform.22

5. The concept of open government is the direct emanation from the right to knowimplicit in the right to freedom of speech and expression. Any limitation however

would be justified only where the strictest requirement of public interest requires.23

Right to freedom speech and expression includes freedom of seek receive and impartinformation of ideas. Freedom to hold opinions, ideas etc. is part of freedom of speech

and expression.24

The fundamental right to receive information which springs forth

17R.P Ltd v. Indian Express, AIR 1989 SC 190: (1988) 4 SCC 592 ( Para 35); Indian Express, v. Union of India, AIR

1986 SC 515: (1985) 1 SCC 641 (Para 66)18

Supra 1719

S.P. Anand v. Union of India, AIR 2000 MP 47.20

Supra 1721

Essar Oil Ltd v. Halar Utkarsh Samithi, (2004) 2 SCC 392: AIR 2004 SC 1834.22

Supra 1723Hanif Naji Gawda v. State of Karnataka, 1997 AIHC 78 (Kant).

24Ozar Hussain v. Union of India AIR 2003 Del 103.


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from the right to speech and expression in Art 19 (1) (a).25

At the same time no one

can claim the right by using or employing public property. The right can be claimed

only where the statute permits to use public property as airwaves constitute public

property.26

6. The right to acquire information includes the right of access to sources of information.Hence a journalist cannot be denied an opportunity to interview a prisoner provided:

a) The prisoner is willing to be interviewed,b) The regulation contained in the Jail Manual are complied with27

7. But, as in the USA, this right like any other fundamental right is not absolute. Thusreasonable restrictions may be imposed upon the citizens right to compel disclosure

of information if it affects national security, sovereignty or security;28

friendly

relations with foreign state or if its disclosure would constitute incitement to an

offence, defamation or contempt of Court or might interfere with the investigation of

criminal cases so as to affect the maintenance of public order.29

8. Right to information or a right to know is on the face the right to speech andexpression and hence a fundamental right. There exists a relationship between a right

to know and freedom of speech. But the right to speech and publish does not carry

with it an unrestricted right to gather information. A reasonable restriction is always

permissible on the said right in the interest of security of State. Reasonable

restrictions are also permitted in the right in the interest of security of State.

Reasonable restriction is always permissible on the said right in the interest of

security of State. Reasonable restriction are also permissible in the right to

information on following matters:

a) International Relationb) National Security (including defence) and Public safetyc) Investigation detection and prevention of Crime;d) Internal deliberations of the government;e) Information received in confidence from source outside the government;f) Information, which if disclosed would violate the privacy of the individual.

25Association for Democratic Reforms v. Union of India AIR . 2001 Del 126.

26Secretary, Ministry of Information and Broad Casting v. Cricket Association, BengalAIR 1995 SC 1236 (1995)

2 SCC 16127

Prabha v. State, AIR 1982 Raj 2 (Para 2)28Supra 5

29See: Under CL. (2) of 19


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g) Information of economic nature (including rare trade secrets) which if disclosed

would confer an unfair advantage on some person or concern or subject some person

or government to an unfair disadvantage;

h) Information which is subject to a claim of legal professional privilege i.e.:

Communication between legal adviser and the client between physician and the

patient;

i) Information about scientific discoveries. The provision under the Atomic Act 1962

which prohibits for giving information was held to be reasonable restriction

It was held therein that freedom of speech and expression have been advisedly set out

in broad terms leaving scope for their expression and adaptation through

interpretation, to the changing needs and evolving notions of a free society.

At the same time, in balancing the reasonableness of the restrictions so imposed in the

public interest, the court must not forget that it is also in the public interest that in a

democracy, the people must be possessed of information relating to public affairs,

which right is guaranteed by Art. 19(1) (a), of the Indian Court. In other words of

Mathew. J.30

In a government of responsibility like ours, where all the agents of the public must be

responsible for their conduct, there can be but few secrets, the people of this country

have a right to know every public act, everything that is done in a public way, by the

way, by their public functionaries.. The right to know.. Though not absolute, is a

factor which should make one wary when secrecy is claimed for transactions which

can, at any rate have no repercussion on public security.31

It was further observed To cover with veil secrecy, the common routine business is

not in the interest of the public. Such secrecy can seldom be legitimately desired. It is

generally desired for the purpose of parties and politics or personal self-interest or

bureaucratic routine. The responsibility of officials to explain and to justify their acts

is the chief safe guard against oppression and corruption. This was amplified by

Bhagwati, J., in a seven Judge Bench in the Judges case.32

The concept of an open government is the direct emanation from to know which

seems to be implicit in the right of free speech and expression guaranteed under Art

19(1) (a). Therefore, disclosure of information in regard to the functioning of

30

Supra 731Gupta v. President, AIR 1982 SC 149 : 1989 SC 149 : 1981 Supp SCC 87( Para 66, 81) 7 judges

32Supra 31


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government must be the rule and secrecy an exception justified only where the

strictest requirement of public interest so demands. The approach of the Court must

be to attenuate the area of secrecy as much as possible consistently with the

requirement of public interest so demands . 33

Reliance was also placed by the learned Judge on the observation of Lord Simon of

Glaisdale in D.V. National Society for the Prevention of Cruelty to Children,34

The public interest that no innocent man should be convicted of crime is so powerful

that it outweighs the general public interest which might be injured by the disclosure

of the document. Learned Judge held, It would then seem clear that in weighing the

process which the court has to perform in order to decide which of the two aspects of

public interest should be given predominance, the character of the proceeding the

issues arising in it and the likely effect of the document on the determination of the

issues must form vital consideration, for they would affect the relative weight to be

given to each of the respective aspects of public interest which when placed in the

scales.

A note prepared by a Chief Engineer in official discharge of his duties, which

contains relevant facts and circumstances of the case cannot be prevented of being a

document dealing with affairs of State: i.e., On the ground of confidentiality. It was

observed more stress on transparency of dealings.35

9. People of the country have a right to know to have everything that is done in a publicway by the public functionaries. The M.P. and M.L.A. are undoubtedly public

functionaries. Public education is essential for functioning of the process of popular

government and to assist that discovery of truth and strengthening the capacity of an

individual in participating in the decision making process. The decision making

process of a voter would include his right to know about the antecedents of public

functionaries who are required to impart and receive information which includes

freedom to hold opinion. Entertainment is implied in freedom of speech and

expression would not be the right to get material information with regard to a

candidate who is contesting the election for a post which is utmost important with

democracy.

33

Supra 31.34D.V National Society for the Prevention of Cruelty to Children, (1977) 2 WLR 207 : (1977) 1 All ER 589 (HL)

35Sathyanarayana Brothers (P) Ltd. T.N Water Supply & Drainage Board (2004) 5 SCC 314.


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10.In a democracy the electoral process has a strategic role. Every voter of the countrywould have the basic right to know full particulars of candidates who is to represent

him in Parliament. The right to get information in a democracy is recognized all

throughout and it is a natural right flowing from the concept of democracy.. Voters

right to know the antecedents including criminal past of his candidate contenting

election is much more fundamental and basic for survival of democracy.36

11. When any claim of privilege is made by the State in respect of any document thequestion whether the document belongs to the privileged class has first to be decided

by court. The court cannot hold an enquiry into the possible to public interest which

may result from the disclosure of the document in question (first). The claim of

immunity and privilege has to be based on public interest.37

. While considering the

claim of privilege, the question of national importance vis--vis administration of

justice should be the criteria for determining the claim.38

In The same case, RAJ CJ

observed when public interest outweighs the latter ( i.e national interest) the

evidence cannot be admitted It is in public interest that confidentiality shall be

safe guarded. The reason is that such documents became subject to privilege. It is a

consideration to bear in mind. It is not that the contents contain material which it

should be damaging to the national interest to divulge, but is rather that the

documents would be of a class which demand protection.

12.The Right to Information Act (22 of 2005) 2005 has been passed by Parliament whichcame into effect from 13/10/2005. Section 3 of the Act provides that subject to the

unless the competent authority provision of the Act, all citizens have a right to

information which relates to: (1) Information, disclosure of which would prejudicially

affect 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

(2) Information which has been expressly forbidden to be published by any Court of

Law or tribunal or the disclosure of which would cause of breach of privilege of

Parliament or the State Legislature.(4) Information including commercial confidences,

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.(5) Information

36

Supra 637Supra 5

38Supra 31


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available to a person in his fiduciary relationship unless disclosure of such

information (6) Information received in confidence from foreign government (7)

Information, the disclosures of which would endanger the life or physical safety of

any person or identity the source of information or assistance given in confidence for

the law enforcement or security purpose. (8) Information which would impede the

process of investigation or apprehension or prosecution of offenders. (9) Cabinet

papers including records of deliberation of the Council of Ministers, Secretaries or

other Officers. (Provided that the decision of Council of Ministers, the reasons thereof

the and the material on the basis of which the decision were taken shall be made

public after the decision was taken and the matter is complete or over). Provided

further that those matters which come under the exemption in this section shall be not

be disclosed. (10) 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 privacy of the individuals 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.

13.Provided that the information, which cannot be denied to Parliament or a Statelegislature, shall not be denied to any person.

14.Notwithstanding anything in the Official Secrets Act 1923(19 of 1923) nor any of theexemption 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.

15.Subject to the provision of clauses (a) (c) and (i) of sub-section (1), any informationrelating 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 Section 6

shall be provided to any person making a request under that section.

16.Provided that where any question as to arises as to the date from which the said periodtwenty years has to be computed, the decision of the Central Government shall be

final, subject to the usual appeals provided for in the Act.

17.Section 24 provides that the Act will have no application to the intelligence andsecurity organization specified in the Act (i.e Second Schedule) being organisation to

that Government. Second Schedule to that Act provides 18 organizations to which the


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act has no application. Even in regard to these organizations, in the case of violation

of human rights and corruption, the Act is made applicable.

18.Section 19 provides for an appeal against the decision or non decision by a personaggrieved to the next officer higher in rank to Central Public Information Officer or

State Public Information Officer as the case may be, which may be preferred within

thirty days.

19.The Purpose of the Act is to clean up public life. The act though does not confer anynew right on citizen it only underscores their right to know how the governments,

meant to server them, are functioning. It lays down the process of how and where to

apply for information. The Act provides for penalty on the officer, in willing to

provide information and also for furnishing wrong information.

20.Nothing can be as destructive of the social fabric in a democratic society that theattempt of those who govern to prevent access to information to those whose security

depends upon the preservation of order. An environment in which human rights are

respected is nurtured by vibrant flow information and avenues for critical assessment

of governance.39

39F.A Picture International v. Central Board of Film Certification, AIR 2005 Bo, 145/


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Case Analysis

Case 1

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3127 of 2008

Decided On: 22.04.2010

Appellants: Ravinder Kumar

vs.

Respondent: State of Haryana and Ors.40

Facts

1. This appeal arises out of an order passed by the High Court of Punjab & Haryana,whereby Writ Petition No. 1061 of 2007 filed by the appellant has been dismissed and

the appellant's claim for appointment as a Constable in the Haryana Police Department

turned down.2. The High Court has taken the view that since the marks scored by the appellant were

less than the marks awarded, to the last candidate in the general category, he could

make no grievance against his non-selection in that category.

3. If that were done, the appellant could be appointed against one of the said vacancies.4. A selection process to fill up 100 available posts of Constables in Haryana Police in the

District of Sirsa, State of Haryana was undertaken in which the appellant was also a

candidate for appointment against one of the vacancies in the reserved category of

ESM/BC (B) for ex-servicemen and their dependents. The appellant was put through

physical efficiency and other tests and eventually placed at Sr. No. 3 in the

ESM/BC(B) category. An appointment order was also issued in his favor pursuant

whereto he joined the Police Department on 17th

August 2001 and was allotted

Constabulary No. 2/873 in the 2nd

Battalion of the Haryana Armed Force.

5. One, Naresh Kumar who had also applied for selection in ESM/BC(B) category andwhose name did not figure in the select list filed Civil Writ Petition No. 13130 of 2001

40MANU/SC/0287/2010


24/41


in the High Court of Punjab & Haryana challenging the appointment of the appellant

mainly on the ground that the said petitioner had a preferential right to an appointment

in the ESM/BC (B) category on account of his being an ex-serviceman in comparison

to the appellant who being a dependent of an ex-serviceman would stand a chance only

if no ex-serviceman was available for appointment.

6. The appellant had in the meantime completed the Basic Training Course of ninemonths duration, passed out in May 2002 and started discharging the duties attached to

the post to which he was appointed.

7. The High Court, all the same, allowed the writ petition filed by Naresh Kumar and byits order dated 10

thJuly 2002 quashed the appointment of the appellant with a direction

that the claim of ex-servicemen candidates would have priority over those who are

dependents of such ex-servicemen.

8. Consequent upon the said direction, the services of the appellant were terminated interms of an order dated 31

stDecember 2002, the correctness whereof was questioned

by the appellant in CWP No. 16287 of 2003. The said petition was eventually

dismissed as withdrawn with liberty to the appellant to file a review petition against the

order of the High Court in CWP No. 13130 of 2001.

9. A review petition was accordingly filed by the appellant which was disposed of by theHigh Court by an order dated 10th March 2006 directing the respondents to reconsider

the case of the appellant in the general category. Order dated 10th

July 2002 passed by

the High Court in CWP No. 13130 of 2001 was to that extent modified.

10.It was in compliance with the above direction that the Superintendent of Police, Sirsapassed an order on 26

thMay 2006 declining an appointment to the appellant as a

Constable. The order stated that out of eight candidates in BC (B) category the last

candidate selected for appointment had scored 27 marks as against 26 marks awarded

to the appellant. The order further stated that out of 45 candidates selected in the

General category the last candidate selected for appointment had scored 27 marks.

11.The appellant's case is that the order passed by the Superintendent of Police did notdisclose the marks obtained by BC(B) category candidates selected against the eight

posts reserved in that category. An application seeking the requisite information and

copies of the select list was accordingly filed under the Right to Information Act, but

was declined by the State Information Commission on the ground that the Haryana

Armed Police was exempt from the purview of the RTI Act.


25/41


12.When this appeal came up before this Court, Mr. Patwalia made a statement oninstructions that if the appellant was offered employment as a Constable in the Haryana

Police, District Sirsa even at this stage he will not claim back wages or seniority on the

basis of his selection and appointment.

Issues

1. Whether the denial of appointment to the appellant is discriminatory, whollyunjustified and arbitrary.

2. Whether the appointment of the appellant could be justified only if the appellantfigured higher in the merit list than the last candidate in the General category.

Judgment

1. In the result, the Court allowed this appeal but only in part and to the extent that theappellant shall be appointed as a Constable in the Haryana Armed Police, Sirsa District

against any vacancy in the Ex-Servicemen (General Category) or ESM/BC (B)

category. If no vacancy in the said two categories is available the appellant shall be

appointed against any vacancy in the General category. The appointment shall for all

intents and purpose be a fresh appointment which would not entitle the appellant to any

back wages, seniority or any other benefit based on his earlier appointment. The order

passed by the High Court shall to the above extent, stand modified. No costs.

Raito Decidenti:

The appointment shall for all purposes be treated as a first appointment subject to the

condition that the competent authority shall be free to direct that the appellant shall undergothe training afresh or take a refresher course of such training if deemed fit

TEST OF CONFIRMATION:

The test of confirmation being applied in the present case is Wambaughs test of inversion.

The proposition isThe appointment shall for all purposes be treated as a first appointment

subject to the condition that the competent authority shall be free to direct that the appellantshall undergo the training afresh or take a refresher course of such training if deemed fit.


26/41


Inserting the word no or not to change the meaning, we get-

The appointment shall for all purposes not be treated as a first appointment subject to the

condition that the competent authority shall be free to direct that the appellant shall undergo

the training afresh or take a refresher course of such training if deemed fit.

This new proposition completely changes the decision of the court because the major reason

of the judgement was that appointment shall for all intents and purpose be a fresh

appointment which would not entitle the appellant to any back wages, seniority or any other

benefit based on his earlier appointment So we come to the conclusion that the original

proposition is a valid precedent.


27/41


CASE 2



Appellants: Research Foundation for Science Technology and Natural Resource Policy

Vs.

Respondent: Union of India (UOI) and Ors.41

Facts

1. The "Blue Lady" ex SS Norway was a passenger liner built at Chantier De Atlantic, St.Nazaire, France in 1961.

2. It was a steam turbine driven vessel with a power and rating of 30,000 KW and 40,760HP respectively. Now the vessel is registered as a Barge under the flag of Bahamas

vide official number 710763.

3. The said ship was beached on 15/16.8.2006 off the Alang coast.4. The said ship was the passenger ship. It was constructed in 1952. It originated from

France. Its last origin was from Norway.

5. Alang is located on the west coast of Gujarat.6. It is the largest ship recycling yard in the world. It is one of the choicest ship-scrapping

destination for the ship owners around the world. There are 183 plots in all to carry out

the ship recycling activities.

7. Till today Alang has provided approximately 23 million tonnes of steel in the last 10years.

8. On 17.2.2006 when the above writ petition came up for hearing before this Court, wefound the controversy concerning ship-breaking a recurring controversy.

41MANU/SC/7894/2007


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Issues

1. Whether permission should be granted for dismantling of X ship?2. Whether the contaminants ACM and PCB were non-qualified?

Judgement

1. This Court decided to lay down norms concerning infrastructure, capacity of Alang tohandle large volume of ship-breaking activity, safeguards to be provided to the

workers who were likely to face health- hazard on account of the incidence of ship-

breaking activity, the environmental impact assessment, regulation of the said activity

and strict regulation of the said activity.2. The Court accordingly grant permission to the said recycler to dismantle the said ship

"Blue Lady" as recommended by TEC.42

Ratio Decidenti

Dismantling of shipDismantling of ship can be allowed if it conforms to the standards

prescribed.



The proposition isDismantling of shipDismantling of ship can be allowed if it conforms

to the standards prescribed


Dismantling of shipDismantling of ship cannotbe allowed if it conforms to the standards

prescribed.

1. 42(See: Para 12 of the TEC report dated 10.5.2007).


29/41



of the judgement was that the ship could be dismantled and if the not is added then

dismantling of the ship wouldnt be allowed so.


30/41


Case 3



Appellants: Kunga Nima Lepcha and Ors.

Vs.

Respondent: State of Sikkim and Ors.43

Facts

1. The petitioners have levelled some allegations against the incumbent Chief Ministerof the State of Sikkim who was impleaded as Respondent No. 2 herein.

2. The crux of these allegations is that he has misused his public office to amass assetsdisproportionate to his known sources of income.

3. The petitioners have also alleged that he has misappropriated a large volume of publicmoney at the cost of the Government of India and the Government of Sikkim. The

relief sought by the petitioners is the issuance of a writ of mandamus directing the

Central Bureau of Investigation (CBI) to investigate the allegations that have been

levelled against him.

Issues

1. Whether this Court could give directions for initiating an investigation under its writjurisdiction.

Judgement

The writ petition is dismissed, however with no order as to costs.

43MANU/SC/0193/2010


31/41


Ratio Decidenti

That function clearly lies in the domain of the executive and it is up to the investigating

agencies themselves to decide whether the material produced before them provide a sufficient

basis to launch an investigation.



The proposition isThat function clearly lies in the domain of the executive and it is up to

the investigating agencies themselves to decide whether the material produced before them

provide a sufficient basis to launch an investigation.


That function clearly lies in the domain of the executive and it is not up to the investigating

agencies themselves to decide whether the material produced before them provide a sufficient

basis to launch an investigation.


of the judgement was that the writ petition is dismissed, however with no order as to costs as

it is always open to the petitioners to approach the investigative agencies directly with the

incriminating materials and it is for the investigative agencies to decide on the further course

of action.


32/41


CASE 4



Appellants: Rajinder Kishan Gupta and Anr.

Vs.

Respondent: Union of India (UOI) and Ors.44

Facts

1. A notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafterreferred to as "the Act") was issued on 24.10.1961 to acquire vast chunk of

agricultural land for the planned development of Delhi including the lands of the

appellants herein situated in Village Mehrauli.

2. Notices were issued by the Collector under Section9of the Act on 26.04.1983, after alapse of almost 22 years from the date of Notification published under Section4(1)of

the Act.

3. Thereafter, objections and claims were filed by the appellants on 23.05.1983.Challenging the validity of the acquisition proceedings, the appellants filed W.P. (C)

No. 1129 of 1983 and other members of the family also filed W.P. (C) No. 1131 of

1983 before the High Court.

4. The High Court, vide its order dated 25.05.1983, issued notice and directed tomaintain status quo as on that date.

5. However on 15.04.2004, the High Court dismissed the writ petitions. Against thedismissal of the writ petition, the appellants filed Review Petition No. 253 of 2004which was also dismissed by the High Court.

6. Aggrieved by the said order, on 19.11.2004, the appellants filed S.L.P. before thisCourt. On 24.01.2005, this Court, while issuing notice, granted status quo in respect

of possession of the land in question.

7. Thereafter, the above said S.L.P. was numbered as Civil Appeal Nos. 2418-2419 of2008. On 07.10.2008, Delhi Metro Rail Corporation Limited (hereinafter referred to

as "DMRC") filed applications in C.A. Nos. 2418-2419 of 2008 for impleadment and

44MANU/SC/0622/2010
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33/41


vacation/modification of order of status quo on the ground that land admeasuring

26,187 sq. mtr. Was required urgently for the construction of Chattarpur Metro

Station on Qutub Minar-Gurgaon Corridor of Delhi MRTS.

Issues

1. When the acquisition of the land is for DMRC and when there is a specific Act,namely, the Metro Railways (Construction of Works) Act, 1978 whether the

authorities are justified in invoking the urgency provision in the Land Acquisition

Act by dispensing enquiry under Section5Aof the said Act?

2. When Government land adjoining to the land in question is available, whetheracquisition of a private land belonging to the appellants is justifiable?

Judgement

1. First Contention is rejected2. The Court was satisfied that the existence of public purpose and urgency in executing

the project before the Common Wealth Games, the adjoining land belonging to DDA

being forest land as per the notification and also of the fact that the respondents have

fully complied with the mandatory requirements including deposit of 80 per cent of

the compensation amount, The court with the stand taken by the respondents as well

as the conclusion of the High Court.

Ratio Decidenti

Land acquisition proceedings can be challenged only by the "person-interested" and none

else.



The proposition is Land acquisition proceedings can be challenged only by the "person-

interested" and none else.

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34/41


Land acquisition proceedings cannot be challenged only by the "person-interested" and

none else.


of the judgement was that ,that the existence of public purpose and urgency in executing the

project before the Common Wealth Games, the adjoining land belonging to DDA being forest

land as per the notification and also of the fact that the respondents have fully complied with

the mandatory requirements including deposit of 80 per cent of the compensation amount,

The court with the stand taken by the respondents as well as the conclusion of the High Court

and if not is added his would all the proceedings to be challenged.


35/41


CASE 5



Appellants: Dr. M.S. Patil

Vs.

Respondent: Gulbarga University and Ors.45

Facts

1. The appellant in this case was wrongly appointed to the post of Reader in theDepartment of Kannada in Gulbarga University.

2. On the basis of the interim orders passed by the Court and evidently helped by theconcerned authorities in the University he has been able to hold on to the post now for

over seventeen and a half years.

3. On March 30, 1992 the Gulbarga University, Gulbarga invited applications forappointment to different posts. One of the advertised posts was of Reader in Kannada.

4. In the remarks column of the notification, it was clearly shown as reserved for 'GroupB' category.

5. It needs to be stated here that a plain copy of the notification is enclosed with thepaper book as part of Annexure PI.

6. In the remarks column of the enclosed copy, the letters "GM" are shown against thepost in ques In order to show that it was incorrect Mr. L.R. Singh, counsel for

respondent No. 2 produced before us a Xerox copy of the notification from which it

clearly appears that the post was reserved for a candidate of 'Group B' category.n,

indicating that it was open to the general merit category.

7. Thus, confronted the lame plea on behalf of the appellant was that the mistake in thecopy (Annexure P1) was due to a typing error. We do not wish to proceed any further

in the matter except to say that a typing error materially affecting the facts of the case

to the benefit of the party committing the mistake has to be viewed with a good deal

of suspicion.

45MANU/SC/0646/2010


36/41


8. In response to the notification, 11 applications were made for the post in question.Only 3 applicants were from 'Group B' category and the rest were from different other

categories; the appellant is from the general merit category.

9. According to the appellant, the Board of Appointment did not find any of the 'GroupB' candidates eligible or suitable and on the basis of the interview held on June 5,

1992 he was selected for appointment.

10.His selection was approved by the Syndicate on February 1, 1993 and a notificationfor his appointment was issued on February 4, 1993 in pursuance of which he joined

the post.

Issues

1. Whether the appellant's appointment could be challenged?Judgment

1. Since the matter has become very old, it would not be reasonable for the University tofill up the post on the basis of the notification issued in the year 1993. The University

may, therefore, issue a fresh notification to fill up the post. The process of selection and

appointment on the basis of the fresh notification should be completed within six

months from today.

2. In the result, the appeal is dismissed with costs, quantified at Rs. 50.000.00 (rupeesfifty thousand only).

Ratio Decidenti

In service law there is no place for the concepts of adverse possession or holding over ,

and since the matter has become very old, it would not be reasonable.



The proposition isIn service law there is no place for the concepts of adverse possession

or holding over , and since the matter has become very old, it would not be reasonable.


37/41


Removing the word no or not to change the meaning, we get -

In service law there is place for the concepts of adverse possession or holding over , and

since the matter has become very old, it would be reasonable..


of the judgement was that that it would not be reasonable for the University to fill up the post

on the basis of the notification issued in the year 1993. The University may, therefore, issue a

fresh notification to fill up the post. The process of selection and appointment on the basis of

the fresh notification should be completed within six months from today.


38/41


CASE 6



Appellants: Khanapuram Gandaiah

Vs.

Respondent: Administrative Officer and Ors.46

Facts

1. Petitioner filed an application dated 15.11.2006 under Section6of the RTI Act beforethe Administrative Officer-cum-Assistant State Public Information Officer (respondent

No. 1) seeking information to the queries mentioned therein.

2. The said application was rejected vide order dated 23.11.2006 and an appeal againstthe said order was also dismissed vide order dated 20.1.2007.

3. Second Appeal against the said order was also dismissed by the Andhra Pradesh StateInformation Commission vide order dated 20.11.2007.

4. The petitioner challenged the said order before the High Court, seeking a direction tothe Respondent No. 1 to furnish the information as under what circumstances the

Respondent No. 4 had passed the Judicial Order dismissing the appeal against the

interim relief granted by the Trial Court.

5. The Respondent No. 4 had been impleaded as respondent by name.6. The Writ Petition had been dismissed by the High Court on the grounds that the

information sought by the petitioner cannot be asked for under the RTI Act.

Issues

1. Petition: to know the reasons as to how the Respondent No. 4 has decided his appealin a particular manner.

2. Why Respondent No. 4 had ignored certain documents and why he had not taken noteof certain arguments advanced by the petitioner's counsel.

46MANU/SC/0646/2010
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39/41


Judgment

1. The application filed by the petitioner before the public authority is per se illegal andunwarranted. A judicial officer is entitled to get protection and the object of the same is

not to protect malicious or corrupt judges, but to protect the public from the dangers to

which the administration of justice would be exposed if the concerned judicial officers

were subject to inquiry as to malice, or to litigation with those whom their decisions

might offend. If anything is done contrary to this, it would certainly affect the

independence of the judiciary. A judge should be free to make independent decisions.

2. As the petitioner has misused the provisions of the RTI Act, the High Court had rightlydismissed the writ petition.

3. In view of the above, the Special Leave Petition is dismissed accordingly.Ratio Decidenti

A judge is not bound to explain later on for what reasons he had come to such a

conclusion



The proposition is A judge is not bound to explain later on for what reasons he had come to

such a conclusion

Removing the word no or not to change the meaning, we get-

A judge is bound to explain later on for what reasons he had come to such a conclusion.


of the judgment was that a judge should be free to make independent decisions, and it the not

is removed it would completely change the decision of the court.


40/41


Conclusion and Suggestion

Right to information has rightly replaced the freedom of information, The FOI Act,2002 had

many exemptions whereas the new RTI Act,2005 has changes which makes all public bodies,

authorities and functionaries accountable for their behavior with public dealings.

RTI makes the Government more accountable and responsible to Citizens of India as it

empowers them to seek information from public authority. Thus the RTI enables the

Government and functionaries to be under the surveillance of the citizens of India.RTI has

been a very vital ingredient to usher in transparency and reduce corruption.

Also from the case analysis done

It is concluded as:


41/41


Bibliography

Books Referred

1. Dr. Durga Das Basu, Shorter Constitution of India(Lexis Nexis ButterworthsWadhwa Nagpur, New Delhi, Fourteenth Edition Reprint 2009).

2. Dr. S. K. Awasthi, The Right to Information Act,2005(Dwivedi Law Agency,Allahabad, 2008)

3. Dr. Durga Das Basu. Commentary on the constitution of India Volume 2(Wadhwaand Company, Delhi, Eight Edition 2007)

4. Dr. Madabhushi Sridhar, Right to Information, law and practice (Wadhwa andcompany Nagpur, New Delhi, First edition Reprint 2007).

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