https://www.livelaw.in/high-court/punjab-and-haryana-high-court/punjab-haryana-high-court-right-to-information-act-cryptic-orders-directions-236017
Recently, in Vala Jodhubhai Golanbhai v. RTI Officer,[1] the Gujarat High Court (“GHC”) has held that it is impermissible for an information seeker under the Right to Information Act, 2005 (“Act”) to be accompanied by third parties during the inspection of documents accessed through the Act.
In the case, the nature of the application filed under the Act necessitated the applicant's inspection of bulky records to cull out the information they desired. Since the applicant was not conversant with the language of the documents containing such records, they sought assistance from third parties to translate them. The Public Authority, however, refused access on the ground that the applicant was not empowered to be attended by third parties during the inspection. The GHC upheld the decision on appeal, and found that the applicant was prohibited from involving a third party in the process.
As to where this prohibition arises, the GHC did not say much. The GHC merely stated that permitting another person to accompany the applicant during inspection of records would be tantamount to providing information to a third party. It further found that third parties' involvement suggests that “the petitioner is merely acting as a pawn for such third party, which is not the object or purpose of the Right to Information Act.”
The premise of the proposition is unconvincing. Whether a person acts independently or as a pawn of any third party, they are statutorily entitled to access information if it is not restricted under the Act. Moreover, the third party, if they are an Indian citizen, are also empowered to receive information under the Act.
More importantly, such a restriction is absent from the Act's framework. Therefore, the restriction is at odds with the principle that limitations of the fundamental right under Article 19(1)(a) of the Constitution (which include the right to information) must be rooted in a legislative Act and not stem from executive discretion.
This piece argues that the GHC verdict, being unsupported by the Act, violates the right to information in both text and spirit. Moreover, it attempts to offer a better paradigm for handling cases akin to the one before the GHC.
Framework of the Act
The Act enables citizens of India to access information, including records, documents, and reports, possessed by public authorities. Significantly, Section 2(j) of the Act defines the right to information as including the right to inspect work, documents, and records overseen by the concerned public authority. Any citizen seeking such information may apply to the said public authority, which shall be bound to furnish the requested information, unless it is exempted under the Act itself.
Restriction Out of Thin Air
These exemptions are narrow and provided under Sections 8, 9, 11, and 24 of the Act. Under Section 8, Public Authorities are exempted from furnishing information on certain subjects, such as information related to national security, detrimental to international relations, involving personal information of third parties, and so on. Section 9 exempts information that would result in copyright infringement of persons other than the state. Section 11 stipulates that if the information sought by any person relates to a third party or has been supplied by a third party to the public authority, the third party must be allowed to make a representation regarding the disclosure of that information. Section 24 empowers the Central Government to exclude certain public authorities from the purview of the Act. Along with these, the Delhi High Court in Shishir Chand v. The Central Information Commission[2] and the Central Information Commission in Mr Ramesh Chand Jain v. Government of NCT of Delhi[3] have added an extra-statutory ground of previous disclosure of information for refusing to furnish information, which has since become a recognised exception.
None of these envisages that the right to inspect public documents may be refused because the applicant had involved a third party, as has been held by the GHC.
In fact, the Act only mentions third parties in a very specific context. Third parties are defined as legal persons other than the citizen requesting information (and, logically, the public authority from which the information is sought, although not explicitly stated in the Act). However, the Act refers to third parties only for creating additional fortification against providing information that concerns them, such as those made under Sections 8 and 11. Other than that, no further restrictions have been incorporated in the Act to prevent third-party access to the information. The invented restriction is thus nowhere to be found in the Act.
Right to Information, Intelligent Decisions
At this point, it is critical to note that the GHC, technically, did not foreclose all avenues for the applicant. It allowed them to inspect the documents provided no third-party escorts them. However, the GHC completely overlooked that such an inspection would be well-nigh meaningless, as the applicant would not understand the documents themselves. While this does not formally restrict the applicant's right to information, in substance, it rendered it nugatory.
The decision, while made under the rubric of protecting the Act's object, undermines the very concept of the right to information. The right to information, although effectuated through the Act, is rooted in Article 19(1)(a). It is considered critical for the health of a democracy, as it enables citizens to access and utilise information to form informed opinions and take intelligent decisions. In Union of India v. Association for Democratic Reform, one of the foremost cases concerning the right to information in India, the SC had noted that “the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect them. . .”[4] If the information provided to individuals cannot be understood, assessed, and used to form opinions and make informed decisions, then dissemination of the information is merely a procedural formality and not an effective exercise of the right. The GHC has shown plumb disregard for these crucial elements.
Rights cannot be restricted through backdoor intrusion by the Executive/Court.
Consequently, the GHC's invented restriction effectively curtails the applicant's right to information, in a manner not prescribed by the Act. Certainly, reasonable restrictions on the right to information, enshrined in Article 19(1)(a), by virtue of Article 19(2), are permissible and no right can be considered absolute.
However, the SC has held that imposing limitations on the said rights is primarily the legislature's domain. In Shreya Singhal v. Union of India, it clarified that “[t]he reasonable restrictions [on fundamental rights] sought to be imposed must be through “a law” having statutory force and not a mere Executive or Departmental instruction. The restraint upon the Executive not to have a backdoor intrusion applies equally to Courts.”[5] As a result, the restriction imposed by an executive and judicial imagination is unconstitutional for violating Article 19(1)(a) of the Constitution. The GHC, unfortunately, does not analyse this facet in its judgment.
What might be done?
Admittedly, unbridled license to involve as many people as the applicant wishes in the inspection of documents under the Act is unfeasible. However, this could have been handled better than by the GHC.
Frankly, there is no clear provision that addresses the odd circumstances of the case. The Act does consider the country's linguistic diversity in allowing applications to be made and answered in English, Hindi, or in the area's official language where the public authority is situated. However, it does not envision a situation in which existing documents in a particular language are examined by someone who is not well-versed in the same. There can be two potential solutions for this peculiarity.
The first would be an affidavit attached to the application attesting that the applicant is not conversant with the language of the documents they require to inspect, and therefore, needs the support of a third party. To align this with the provisions of the Act, it may be mandated that in such cases, the third party accompanying the applicant must also be a citizen of India, and thus, entitled to the same right as the applicant to scrutinise the public documents under the Act. Interestingly, in the present case, the applicant had adopted this mechanism to resolve their quandary. Unfortunately, the GHC rode roughshod over the applicant's proposed method without giving it any consideration.
Second, the burden of effectively communicating the information to the applicant may be shifted onto the public authorities themselves. The Act itself stipulates special accommodations for certain classes of individuals. For instance. Section 7(4) of the Act requires that arrangements be made for sensorily disabled applicants. A similar remedy may be incorporated for those who require aid in accessing information due to linguistic obstacles. This may involve translating the records into either English or the language requested by the applicant, or providing a translator on the applicant's request to accompany them during the inspection.
Out of the two, the former is empirically and economically effective. In the latter case, if the applicant has any grievance with the translator or translations at the behest of the public authority, it may open a new source of litigation on an already overburdened judicial system. On the other hand, it would ensure that everyone, including those who may not be able to employ or convince third parties to assist them, will have equitable access to documents and records. Perhaps a conjoined framework, with the affidavit route as the default and authority-provided translation as a fallback for applicants who can't arrange their own help, is plausible. These suggestions, of course, are not iron-clad and will require fine-tuning before implementation. Nevertheless, they attempt to go beyond the unthought-out restriction that the GHC upheld, and reconcile administrative feasibility with fruitful exercise of the right to information.
The case before the GHC presented it with the opportunity to pioneer an interpretation over a question that had, till now, remained untraversed. Surely, there was no straightforward path for the Court; however, it could still have ventured to chart out a clearer path for such situations. The slapdash and inert manner in which it responded to it is disappointing to say the least. One can only hope that this judgment will provoke a more detailed and, with luck, better solution to the issue.