Locus And RTI: To Be, Or Not To Be?

Mehal Jain

3 Jan 2020 4:32 PM GMT

  • Locus And RTI: To Be, Or Not To Be?

    Recently Chief Justice S. A. Bobde had criticised how the concept of locus standi being conspicuous only by its absence in the RTI law and how the Act had come to be a tool for "blackmail and extortion", with "all sorts of people filing all kinds of applications". He said that the law which was intended to enable only affected individuals to draw out relevant information has now given rise to...

    Recently Chief Justice S. A. Bobde had criticised how the concept of locus standi being conspicuous only by its absence in the RTI law and how the Act had come to be a tool for "blackmail and extortion", with "all sorts of people filing all kinds of applications".

    He said that the law which was intended to enable only affected individuals to draw out relevant information has now given rise to a full-time profession whereby parading as "RTI Activists", even persons unconnected with a subject are filing applications to seek information on the matter.

    The bench, also comprising of Justices B. R. Gavai and Surya Kant, lamented that the transparency law is now being frequently invoked to promote specific, malafide interests, almost bringing administration to a standstill as officials are fearful of taking any substantive decisions and observed, "Nobody wishes to write something or take some stand because of this!"

    The CJ said, "In Mumbai, I was told that the Ministry's functioning is practically paralysed for the fear of this law!".

    "Can it continue like this? As an unrestricted right, with anyone asking anything from anyone? Applicants are being erected against each other by rivals! An axe to grind behind RTI applications... It is basically section 506, IPC...criminal intimidation! Which is just a better term for blackmail...There have to be some guidelines, some filter which can be rightfully employed...Locus is not anything unheard of! We have guidelines for PILs also. So why not for RTI?", the bench expressed.

    In 2018, the Supreme Court has expressed the view that "The purport of the said Act is apparent from Section 6 of the said Act, which provides for the manner of making a request for obtaining information. In terms of Sub-section (2) of Section 6 of the said Act, there is no mandate on an applicant to give any reason for requesting the information, i.e., anybody should be able to obtain the information as long as it is part of the public record of a public authority", going to the extent of stating that "even private documents submitted to public authorities may, under certain situations, form part of public record."

    Section 6(2) of the Act provides that an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

    Where it was contended that the information-seeker was merely a "busybody", "needlessly meddling with the affairs" of the authority, the Patna High Court in 2011 declared this claim to have "imperialistic over-tones", which "cannot be upheld in our democratic set-up governed by the rule of laws". On a perusal of Section 6 of the Act, the court saw "no trace of the principle of Locus Standi for any person seeking information under the Act". Reading it with Section 3 of the Act which is headed "Right to Information" and provides that subject to the provisions of this Act, all citizens shall have the right to information, and section 8, which stipulates the "Exemption from disclosure of information", the High Court decided that "It is evident on a perusal of the aims and objects of the Act and the preamble that the Act seeks to promote transparency of functioning in the public domain, and all information have got to be supplied with alacrity and without demur, except those which are clearly prohibited by the express terms of the Statute... the concerned authority is bound in law to provide all information sought for by any information-seeker without the necessity of satisfying the principle of Locus Standi, except the items clearly prohibited by different clauses of Section 8 of the Act."

    In 2008, the Allahabad High Court specifically dealt with the contention "that care has to be taken that the information is not asked for by the persons who seek the information with an intention to blackmail the person against whom the information is asked for and that the nature of the information asked for and the person who asked for information are the relevant considerations". Distinguishing between the right to seek information and filing a writ petition in the nature of PIL, the court held that "In a public interest litigation, care has to be taken that it is not a petition for settling the personal score or satisfying the personal vendetta or is not a publicity interest litigation or pecuniary interest litigation. The essence of the grievance raised and the bona fide of the person in bringing the issue to the Court, are such key factors, which play an important role in the public interest litigation", while "Under the Right to Information Act, the locus standi of the person is of no avail. Any citizen can ask for any information, which is not protected under the relevant clauses of exemption". Adverting to the scheme of the Act of 2005 and the provisions of Section 2(j) (the 'right to information' means the right to the information accessible under this Act, which is held by or under the control of any public authority) and Section 3 of the Act, the court proclaimed that "the Public Information Officer is under the legal duty to supply the information so asked for". "(Section 6(2)) leaves no room of doubt that the information cannot be refused on the ground that the person asking for information is not a bona fide person and it cannot also be enquired from him as to why he is seeking the information", the court opined. That the requester cannot be required to show any "nexus" with the information sought and that "the locus standi or the intention of the applicant cannot be questioned" and the information is required to be furnished except what has been exempted under Section 8, was confirmed by the Bombay High Court in 2010 and again in 2012.

    In 2017, the Punjab & Haryana High Court also expressed the view that purpose for seeking the information "becomes relevant in order to determine the facts whether the information sought for pertains to public purpose or falls under the exception under Section 8 of the Act", and the claim for the information may be denied only if "the information sought for has got no relationship to any public activity or interest and the disclosure of the same cause unwarranted invasion of privacy of third party."

    Similarly, in 2016, the Himachal Pradesh High Court reiterated that "that the credentials of the applicant are of no relevance and are not at all to be taken into account while giving the information", articulating that "the Truth remains the truth and it is not important who access it".

    The Meghalaya High Court made clear in 2015 that, "As per Section 6(2) of the RTI Act, 2005 the locus standi of an applicant cannot be a question for determination of right to seek information...The refusal on the part of the authorities below to furnish the necessary information, as such, is not tenable in law and liable to be interfered with."

    The Jharkhand High Court in 2007 also agreed that "Section 6 confers right to information to any person for the obvious reason that right to information flows from the right to expression" and it is not necessary that the person have "a direct interest in the matter".

    Even the Central Information Commission, in 2011, has been of the stand that "the noise of motivation behind seeking the information falls upon deaf ears as far as the Act is concerned", that "the Act does not aim to judge the motivation or the reason behind seeking certain information, as each applicant may have a different line of reasoning, each one being equally passionate and emotionally driven" and that "what, in fact, matters is whether certain information which has been sought can actually be furnished under the Act".

    So till now the judicial position has been that the RTI permits any citizen to seek any information. Limiting the access of information under the Act to only those who have a direct interest in it would bar other users of the law, such as journalists, environmentalists, anti-corruption organisations.

    Envisaging the tremendous work pressure that would arise with thousands of persons requesting information, the 2005 Act makes it mandatory for the public authorities under section 4(2) to provide as much information as possible suo motu to the public at regular intervals so that the public has minimum resort to the use of this Act to obtain information. Yet the Act does not in any way undermine the citizen's right to information.

    Curtailing the expanse of the law on the basis of locus would be no less than stalling the flow of information, harmless information, ordinary data, that, as the Madras High Court said in 2008, every tax-paying citizen of the country has a right to know.

    The US Freedom of Information statute expressly provide for requests for information to be entertained even when the information is sought for commercial use, albeit at a higher charge, besides requests by educational and scientific institutions, whose purpose is scholarly or scientific research, as well as the news media.

    It is internationally agreed that the best practice in RTI law is to consider not who the requester is but whether the information requested should be in public domain and that the applicant not be asked to tender justification for his request.

    Even in the UK, where the Freedom of Information Act empowers public authorities to not respond to "vexatious requests", their Court of Appeal has in 2015 (Add case title and citation) held that since the Parliament has employed a "strong word", the "hurdle of satisfying it is a high one" and one that is "consistent with the constitutional nature of the right". The judge said that the starting point in determining whether a request is vexatious would be to think if there is a reasonable foundation for believing that the information would be of value to the public or any section of the public. Even where a requester is pursuing his rights against an authority out of vengeance for its some other decision/action, though he may be said to be improperly motivated, but regardless of however vengeful the requester is, the claim for information cannot be said to be one without any reasonable foundation if it is aimed at disclosure of important information which should be made publicly available. Relegating as irrelevant the motive behind an application for information, the court iterated that while the reason for doing something may be bad, the thing itself may be good, and that the law is not bothered about moral judgments but only with the question of entitlement to exercise a right which is not invalidated by a bad motive. The judge proceeded to state that the Parliament, in permitting authorities to junk vexatious requests, has departed from the fundamental proposition of English law that if the act is lawful, no matter how ill the motive, one has the right to do it.

    Continuing down this lane, even as the South African Promotion of Access to Information Act lays down that a public body may refuse a request for access to its record if the request is manifestly frivolous or vexatious, nevertheless it also mandates the disclosure of the record, irrespective of it being vexatious or the frivolous, if it would reveal evidence of a substantial contravention of, or failure to comply with the law (say, in a case of corruption), or an imminent and serious public safety or environmental risk, and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

    In fact, the Information and Privacy Commissioner of the Canadian province of Ontario has even ruled that where a requester intended to use a record for a purpose such as to dispute a number of the institution's land transactions, it did not mean that the request was frivolous or vexatious- that to find that a request is frivolous or vexatious on the basis that a requester may use the information to oppose actions taken by an institution would be "contrary to the spirit of the RTI Acts, which exist in part as an accountability mechanism for government organizations".

    When the world at large is looking up at the sanctity of right to information in a democracy, and delimiting limitations on the right, the observations made by the Supreme court of India need to be assessed in the light of the letter and spirit of the Right to Information Act read with the constitutional mandate of right to know. Practical difficulties cannot be a ground to jeopardize the fundamental rights guaranteed under the Constitution and restricting the scope of the enabling legislations. At best the restrictions are to be left to be drawn by the legislators and not by the Court whose constitutional task is to protect the rights of individuals against government excesses. It is to be remembered that the legislative restrictions are at-least capable of judicial scrutiny and judiciary should not venture into policy making which cannot further be reviewed by any other body. 

    Mehal Jain is an associate editor at LiveLaw.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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