Restricting Right To Information Only To Citizens Contrary To Constitution, RTI Act; No Absolute Bar On Disclosure To Foreigners: Delhi High Court

Observing that restricting the right to information only to citizens would be contrary to the Constitution of India and Right to Information Act, the Delhi High Court has ruled that Section 3 of the RTI Act would have to be read as a "positive recognition of the right in favor of citizens but not as a prohibition against non-citizens."

Under Section 3 of the RTI Act, "all citizens" have the right to information.

“Considering that the RTI Act also accords information relating to life or liberty an important and distinct position, it would be inherently contradictory to hold that only citizens are entitled to the Right to Information. Life or liberty could also relate to non-citizens including foreigners, NRI’s, OCI card holders and such other persons,” Justice Prathiba M Singh ruled.

The court also observed that the right to Information ought to be available to citizens and non-citizens depending upon the kind of information which is sought and the recognition of rights guaranteed to such class of persons under the Constitution of India.

“Restricting the Right to Information to only citizens in the light of both terms i.e., citizens and persons being used in the RTI Act without any discernible distinction would be contrary to sprit of the Constitution as well as to the RTI Act,” it said.

The court observed that whenever any information is sought by non-citizens, it would be the discretion of the authorities to disclose such information or not, considering that the rights under Section 3 are positively upon citizens.

“Right to Information ought to be available to citizens and non-citizens depending upon the kind of information which is sought and the recognition of the rights guaranteed to such class of persons under the Constitution of India,” Justice Singh said.

The court was hearing a plea moved by Public Information Officer (PIO) of Central Tibetan Schools Administration which had denied information as sought by a Postgraduate Teacher (Tibetan) posted at the Central School for Tibetans in Darjeeling.

The teacher had filed an RTI application in July 2014 seeking information relating to his confirmation letter of employment, Children Education Allowance, All India LTC benefit etc. The petitioner took the stand that since the teacher was a Tibetan national, he would not be entitled to invoke the provisions of the Right to Information Act.

The appeal against the PIO’s order was rejected by the Appellate Authority. In the second appeal, the CIC directed the authority to provide the information to the teacher.

The CIC later concluded that the petitioner’s conduct was mala fide and malicious and that it was founded on baseless suspicions about the citizenship of the teacher. Accordingly, the commission imposed a penalty of Rs. 25,000 on the petitioner, which was under challenge.

Going through the legislative history of the RTI along with its provisions, Justice Singh observed that there has “clearly been a struggle” as to whether the right to information ought to be conferred only upon citizens or on non-citizens as well.

“An analysis of the provisions of the Act does show that in certain provisions, the word “citizen” is used and in a majority of provisions, the word “person” is used. Clearly in the legislative history of the Right to Information Bill leading to the RTI Act, there was a debate as to whether the word citizen should be substituted with person or not. In respect of Clause 3, the conferment of the Right to Information was retained without change i.e. the word “citizen” was retained,” it said.

Observing that the purpose of the RTI Act is to promote transparency and accountability in the working of public authorities, the court said that the statement of objects and reasons of the statute makes it clear that it was enacted with an intention to ensure smoother and greater access to information.

“The Constitution of India confers a large gamut of rights upon Indian citizens, but there also exist a smaller bouquet of rights which are also conferred and recognized in respect of non-citizens. Illustrative examples would include travel related permissions, OCI card, Visas, Refugees, Asylum seekers, property related issues concerning persons of Indian origin who may not be citizens, extradition related information, etc. In all these situations, non-citizens would have an interface with public authorities and to put an absolute bar, would be contrary to the principles enshrined in the Constitution of India which recognizes some rights of even non-citizens,” it said.

The court said that the RTI Act places enormous emphasis on access to information and such information could also relate to the life or liberty of a person.

“There are several areas where even non-citizens such as Tibetans in the present case, who was serving a teacher in India in a Tibetan School, seek information. It cannot be held that there is a bar on such persons to such information. Thus, the CIC was right in holding that there is no absolute prohibition if the authority deems it fit to disclose the information,” it said.

Furthermore, Justice Singh observed that while as a general proposition, it would be correct to hold that the right to information is conferred upon all citizens, it cannot however be held that there is an absolute prohibition on disclosure of information to non-citizens.

“In the case of such public authorities dealing with issues concerning non-citizens, if there is an inaction or lack of transparency in their dealings, it cannot be held that such a non-citizen would be disabled from seeking the said information under the RTI Act,” the court said.

On the facts of the case, the court observed that the petitioner’s approach of assuming that a non-citizen would not be entitled to information under the RTI Act cannot be held to be malicious and could be considered, at best, as a “circumspect approach”, especially in view of the wordings used in section 3.

However, it ruled that the petitioner did not consider the applicability of section 3(1)(a) of the Citizenship Act, 1955 whereby the teacher was entitled to citizenship by birth.

“In the present case, the finding of the CIC that the PIO’s conduct is mala fide and the imposition of penalty in these facts is not sustainable. Accordingly, the imposition of penalty is set aside,” the court said.

The court also said that the order of the CIC directing the petitioner to give the point-wise reply to the teacher would be liable to be complied with, if not already done so.

“The said order dated 5th October 2016 is not the subject matter of the present writ petition. If the same has attained finality, the Petitioner is bound to comply with the same and furnish the information to the RTI applicant, if not already given. The petition is, accordingly, allowed in the above terms,” it said.

Title: A S RAWAT v. DAWA TASHI

Citation: 2023 LiveLaw (Del) 230

Click Here To Read Order