Courts Should Be Cautious: Ex-Information Commissioner On Delhi HC Order Mandating People To Cite Reasons For Filing RTI
The Delhi High Court on January 12, 2021, passed an order that "whenever information is sought under the RTI Act, disclosure of an interest in the information sought would be necessary to establish the bonafides of the applicant".
The Delhi High Court on January 12, 2021, delivered a serious blow to the Right To Information Act by stating that disclosure of interest in the information sought is necessary.
In WP( C) 7976 of 2020 It states: "This Court is of the opinion that whenever information is sought under the RTI Act, disclosure of an interest in the information sought would be necessary to establish the bonafides of the applicant. Non-disclosure of the same could result in injustice to several other affected persons."
This is like an illegal amendment to the RTI Act and will be taken as a precedent gleefully by government officials across the country. RTI is a fundamental right of citizens under Section 19(1)(a) which includes right to free speech, publication and information. Hence the law stipulates that denial of information to citizens can only be permitted if it falls in the exemptions listed in Section 8 (1). To ensure that this fundamental right of the rulers of democracy is respected, it has specifically stated in Section 6 (2), "An applicant making a 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." Despite this clear stipulation, the judge has passed the order, which will have the effect of weakening the citizen's right. It appears that the court had not referred to the RTI Act nor appreciated the fact that this is a fundamental right guaranteed under Article 19 of the Constitution!
This is the second time such an order has been given violating Section 6 (2). In September 2014 the bench of Justice N. Paul Vasanthakumar and K. Ravichandrabaabu in Madras High Court stated that: "If information is to be furnished to a person, who does not have any reason or object behind seeking such information, in our considered view, the intention of the Legislature is not to the effect that such information is to be given like pamphlets to any person unmindful of the object behind seeking such information," the bench said.
It used verbal sophistry and stated: The word "right" is not defined under the RTI Act. In the absence of any definition of "right", it has to be understood to mean that such "right" must have a legal basis. Therefore, the "right" must be coupled with an object or purpose to be achieved. Such object and purpose must, undoubtedly, have a legal basis or be legally sustainable and enforceable. It cannot be construed that a request or query made 'simpliciter', will fall under the definition of "right to information". The "right" must emanate from the legally sustainable claim.
There is a difference between the "right to information" and the "right to seek information". It is like the "right to property" and the "right to claim property". In the former, such right is already accrued and vested with the seeker, whereas, in the latter, it is yet to accrue or get vested. Likewise, a person who seeks information under the RTI Act must show that the information sought for is either for his personal interest or for the public interest. Under both circumstances, the information seeker must disclose at least with bare minimum details as to what is the personal interest or the public interest, for which such information is sought for. If such details are either absent or not disclosed, such query cannot be construed as the one satisfying the requirement of the RTI Act. The restrictions imposed under the RTI Act, though are in respect of providing certain information, certainly, there are certain inbuilt restrictions imposed on the applicant as well.
In the next week, it realised its error. The bench said its general observations were made without noticing section 6 (2) of the RTI Act, which reads, "An applicant making a 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."
"Therefore, it is evident that a person seeking information was not required to give any reason for doing so. Hence, the general observations made in the order was an error, apparent on the face of the record, and contrary to the statutory provision. The error had been noticed by it after pronouncing the order, and in order to rectify it, the bench had Monday directed the registry to post this matter Tuesday under the caption 'Suo Moto Review', the bench added. The bench said, "We are of the view that those two paragraphs of the said order have to be deleted. Accordingly, paragraph 20 and 21 are deleted in the order. The suo motu review application is disposed of."
However, a large number of officials even now quote the Madras High Court order. The new Delhi High Court order again reiterates the same mistake without even realising that a similar order given earlier had to be withdrawn! I am sure in a review petition this order will also have to be withdrawn. In the meantime, for years officials will quote the earlier order and mischievously misuse it. When deciding matters relating to fundamental rights, courts must be cautious and decide matters based on the law and the constitution.
Citizens must protest such a casual approach to Right to Information. Free Speech, Right to publishing and Right to Information flow from Article 19 (1)(a) of our constitution. There is generally a very tepid response to curtailment of Right to Information. If we are asked to give reasons for seeking information, we will then be asked for reasons to speak and to publish. Most citizens must realise this is a dangerous path for our democracy.
Shailesh Gandhi is a former Central Information Commissioner.