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Overreaching Act

Megha Jani
31 Jan 2021 3:48 AM GMT
Overreaching Act
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In 2005, we got an Act that promised to promote transparency and accountability in the working of every public authority, that was made to give effect to right of information recognized under Article 19 of the Constitution of India and that aimed at ensuring maximum disclosure and minimum exemptions - the Right to Information Act, 2005. The impact of the Act lay in it being brief and...

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In 2005, we got an Act that promised to promote transparency and accountability in the working of every public authority, that was made to give effect to right of information recognized under Article 19 of the Constitution of India and that aimed at ensuring maximum disclosure and minimum exemptions - the Right to Information Act, 2005. The impact of the Act lay in it being brief and crisp. Every citizen was empowered to get Information. All that one needed to do was make a request in writing, pay minimal fees and specify the particulars of the information sought. Sub-Section (2) of Section 6 specifically says that an Applicant, making request for information, is not required to give any reason for requesting the information or any other personal detail, except those that may be necessary for contacting him. The Act helped bring in public domain many documents and details that would have otherwise remained bundled in files, structured and strengthened many a litigations, gave birth to RTI activists, took life of a few of them. In 15 years of its implementation, reels of pages have been photocopied and have reached the citizens through the tool of RTI.

On 16.01.2021, Times of India, Ahmedabad edition, carried a headline "In perhaps a first, family banned from filing RTI pleas". The news item mentions that Dilhari Makwana, a Class-III employee of Bhavnagar District Health Department, her husband and mother-in-law, had shot off more than 1000 emails and 21 RTIs to various offices to protect them from eviction from their allotted quarter. The State Chief Information Commissioner passed an order banning the three Applicants from filing any RTI Application before any designated Public Information Officer for five years. The State Information Commission is a creature of statute and its powers are limited to what is described under Section 19(8) of the RTI Act. While it has power to reject an application, require public authority to take various steps as mentioned in the sub-Section and also impose penalties provided under the Act, it does not have power to put a general ban on an applicant.

On the next day, on 17.01.2021, the Times of India reported a decision of Delhi High Court in the case of Har Kishan vs. President Secretariat dated 12.01.2021 in WP (C) No. 7976 of 2020. The Petitioner, before the Delhi High Court, had sought information in respect of certain appointments made for multitasking staff at the Presidential Estate, Rashtrapati Bhavan. On a query from the Petitioner, it was revealed that the Petitioner's daughter had also applied for an appointment as Multitasking Staff in the Presidential Estate, Rashtrapati Bhavan and this fact was not mentioned in the petition. The writ petition showed that the Petitioner himself was earlier working in the Presidential Estate on an ad-hoc basis from 2012 to 2017.

The decision is in a writ petition where bonafides of a writ Petitioner and disclosure of all material particulars would be a relevant consideration and lack of either can result in dismissal of the petition on that ground alone. The Court concluded that the information which was sought, was clearly protected under Section 8(1)(j) of the RTI Act, which provides that any such information shall not be provided which constitutes personal information and is invasive of privacy of an individual. On reading the order, one gets an impression that whether an Applicant is required to give reasons to seek information and establish bonafides while seeking such information was not an issue before the Court. The Court however went into merits of the application itself and held in para 12 and 13 as under :

"12. 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, whose information is sought. The present writ petition is cleverly quiet about the fact that the Petitioner's daughter had applied for being considered for appointment for the post of Multi-Tasking Staff at the Rashtrapati Bhawan. The seeking of the above information, especially after the Petitioner's daughter did not obtain employment, clearly points to some ulterior motives.

13. Even otherwise, on merits, the information sought in respect of the names of the fathers and residential addresses of the candidates is completely invasive, and would be a roving and fishing enquiry. The said information which is sought is clearly protected under Section 8(1)(j) of the RTI Act which provides that any such information shall not be provided which constitutes personal information and is invasive of the privacy of individuals."

Relying on the Judgement, many a public authorities may reject an application, on the ground that –

  • the Applicant seeking information did not disclose applicant's interest in the information sought, which was necessary to establish bonafides of the Applicant;
  • that seeking of any information pointed to an ulterior motive;
  • that seeking the information in question was evasive and would be a roving and fishing inquiry.

None of the abovementioned factors is relevant under RTI Act. Section 6, on the contrary, categorically states that all that a person needs to give, in terms of personal information, is as much as is necessary to contact her.

One may recall a similar order passed by Madras High Court in the case of the Registrar (Administration), High Court, Madras vs. CIC and Mr. B. Bharathi in Writ Petition No.26781 of 2013 and M.P. No.1 of 2013 where the court held that a person, who seeks information under the RTI Act must show that the information sought for is either for his personal interest or for a public interest, should disclose bare minimum details as to what is the personal interest or the public interest for which the information is sought and that if such details are either absent or not disclosed, such query cannot be construed as the one satisfying the requirement of the RTI Act. Within days, the Bench, suo moto, took up the matter and passed orders reviewing its earlier order.

Like any other legislation, RTI Act also is not free from criticism of misuse. However, against a few instances of misuse of RTI Act and wastage of time of officials in answering RTI queries in such cases, there would be hundreds of instances where information is withheld by public authorities without any justifiable reason.

One hopes that the orders that overreach the Act would not stand for long.

Views are personal.

(Author is a practicing Lawyer at the Gujarat High Court)


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