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Published : September 02, 2016 | Author : PRASHANTI UPADHYAY
Category : Right To Information | Total Views : 529 | Unrated

  
PRASHANTI UPADHYAY
Pashanti Upadhyay pursuing LL.M. from Law College Dehradun Uttaranchal University
 

Right to Information as an Exception to Concepts of Locus Standi And Public Interest

Abstract
The Right to Information promotes the regime of transparency and shuns the regime of secrecy. Right to Information Act, 2005 was enacted to uphold the democratic ideals of the country and to promote public interest. Any citizen can file a RTI application regardless of whether the information sought after by such an application is in furtherance of public interest or not. RTI application can be used in a negative way to harass a public official and to demean his position. The concept of locus standi makes the system more workable since it justifies the cause of filing an RTI. In a judicial system, first and foremost the requirement of locus standi is fulfilled and then the parties are heard. In RTI, there is no such requirement. It is not necessary that the RTI application should be filed in public interest. The only criterion which is to be met is that it should not be frivolous. Incorporation of concept of locus standi will reduce the number of RTI applications in the initial stage. Moreover, it will save time of the PIO in replying to the applications and thus it will result in speedy disposal of the rightful applications. One of the ways to ensure that RTI applications are not rejected arbitrarily; can be that the PIO has to give reason for non-admittance and such a letter can be challenged in the same way as in the case of delay by the PIO as laid down in the Act. Introduction of concept of locus standi would promote efficient operations of the government with optimum use of limited fiscal resources and the satisfaction of genuine query of a responsible citizen. Moreover, the remote interpretations to the clauses of Act by the court might result in great difficulty to the Public Department and allowing “distant caused RTIs” will encourage other applications as well which are not covered in RTI Act. Therefore public interest shall be the important criterion for the survival of an RTI application.

Introduction
Mahatma Gandhi had said, “The Real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused.” In a democratic country like ours, every citizen has a right to know what the government and the public authorities are doing. In a democratic country like ours, the government and the public authorities have not been vested with unfettered power. They cannot go beyond the ambit of the Constitution which is the supreme law of the land. No individual can be given absolute power in any respect without providing any limitation. The Right to Information Act, 2005 tries to undo this. Under the RTI Act, any person can ask for any information under the RTI Act without giving any reason nor is he bound to disclose any personal details pertaining to him. Although, there is a need for a paradigm shift from the syndrome of state as an oppressor to the state as protector and facilitator of human happiness it does not mean that there will be no scrutiny of the credential of the person asking for whatsoever information he wants.
In the present era of globalisation, nothing can be more relevant for such an attitudinal change than the Right to Information- a shift from the regime of secrecy to the regime of transparency but there should be a limit to how this change is being brought about. Although the RTI Act excludes the information within the framework of Official Secrets Act etc., still a lot is left to be done to prevent it from being misused.

Advancing Reasons rendering RTI more appalling

The Act arguably is one of the most important pieces of legislation, in the post independence era, to effectuate democracy. It may be likened to a powerful beacon, which illuminates unlit corners of state activity, and those of public authorities which impact citizens' daily lives, to which they previously had no access. It mandates disclosure of all manner of information, and abolishes the concept of locus standi of the information applicant; no justification for applying (for information) is necessary.

According to Sec. 6(2) of the RTI Act, 2005- 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.

The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a). Even, the right guaranteed under Article 19(1)(a) if subject to limitations under Article 19(1)(g), so why not Sec. 6(2) of the RTI Act?

The main principle behind right to information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The burden of proof falls on the body asked for information, not the person asking for it. The person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed a valid reason has to be given. Any citizen can file a RTI application regardless of whether the information sought after by such an application is in furtherance of public interest or not. RTI application can be used in a negative way to harass a public official and to demean his position.

In a judicial system, first and foremost the requirement of locus standi is fulfilled and then the parties are heard. In RTI, there is no such requirement. It is not necessary that the RTI application should be filed in public interest. The only criterion which is to be met is that it should not be frivolous. In 2008, a lawyer filed an RTI seeking information about meeting of Priyanka Gandhi and Nalini Sridhar, who was involved in her father Rajiv Gandhi’s assassination. The RTI of this sort neither concerns public at large nor the applicant can establish any nexus between him and the information sought to be achieved. The validity of right to information is based on the fact that every citizen of India is a direct shareholder of every public authority organizing the public sector. A powerful tool like RTI cannot be misused to satisfy the curiosity of the applicant. There are number of people in the country and they have potential to bombard the public departments with numerous applications. However, like all other rights, even this right has recognized limitations; it is, by no means absolute.

179th Law Commission Report on Public Interest Disclosure Bill, made it clear that they do not wish to encourage vexatious or irresponsible complaints which undermine public confidence in institutions, without due cause. It believed that the best way to achieve the balance was to develop sound internal procedures backed by an external review. Public interest in at utmost importance but abuse of official position cannot be accepted. RTI Act, 2005 vide proviso of section 7 provides that if application made to PIO concerns life and liberty of the applicant then PIO has to respond within 48 hours. This provision indicates that even in RTI applications some are highly important and some are not. The question which emanates from this provision is who will decide the importance of the matter? Therefore, if reasons are advanced with the application that how it concerns the applicant’s interest, it will not only be helpful to demarcate between the frivolous and important applications but also will reduce the burden from the shoulders of Public Department and officials. Proving locus standi is one of the important ingredients of even Public Interest Litigation though the rule has been diluted to great extent by the Hon’ble Supreme Court. There can be a public interest in an application but how the applicant is related with that is something which is material. This aspect cannot be ignored because RTI has to be saved from being a tool to demean and abuse the position of a public official. There is no observable load of vexatious applications because RTI Act is in its childhood. Only few years have passed since its inception. When people will get fully aware of the RTI mechanism, they are likely to misuse the procedure frustrating the real purpose altogether.

Moreover, there is no criterion laid down by RTI Act which determines the basis of the rejection. The applicant has got right to appeal against rejection since PIO provides grounds for rejection but if the application is found to be meaningless wholly, there are no sanctions in form of fine. It is not disputable that there is a provision of fee with RTI but even that will not ensure that all the applications filed are worth disclosing without seeing their maintainability. The application must show at least some public interest in RTI. Considering public offices working in the interest of public as the relevant cause, will be too vague an idea.

Moreover, the right to know in a democratic system is not a fundamental right nor a common law right. It is pure and simple because it is statutory right and this right originates from the Constitution of India in accordance with the Article 19(1)(a) and it was shaped in a statute i.e. the Right to Information Act,2005. Hence, it is not very accurate to describe it as a statutory right pure and simple. Then information which is best facilitated meaningful cannot be read as an integral part of any Fundamental Right. The enforcement of the right can create confusion and at an initial stage this right cannot be placed in the pedestal of the basic or fundamental right but when a citizen goes to a department or organization then only such a right will take a crisis in many cases for both citizens seeking information and authority supplying it with a rightly sharp and sword over his head at the point of heavy penalty as punishment. Hence, the whole Act can be judged at the point of its implementation and contemporary development wherein each citizen is involved in plethora of information and each organization is preoccupied with abundant work burden.

The RTI Act vide Section 6 provides that the applicant can make request for information in English, Hindi or in the official language of the area in which the applicant has sought the information. Thus, if the applicant wants some information under the RTI Act in Andhra Pradesh, he can ask for the information in English, Hindi or Telugu. Apart from English, the twenty two Official languages of India have been enumerated in Eighth Schedule of the Constitution. As Article 19(1)(d) lays down that it is a citizen’s Fundamental Right to move freely throughout the territory of India and as Article 19(1)(d) guarantees that a citizen has the right to reside and settle in any part of the territory of India then why cannot a person ask for information in any of the twenty languages? The proponents of the RTI Act, would argue that there is a need to draw the line somewhere and it would not be feasible to receive the applications in all the languages. Thus, there is a need to draw the line somewhere and differentiate between genuine applications and false ones at the initial stage itself.

In case a person wants third party information i.e. information which relates to or has been supplied by a third party, there is no provision under the RTI Act which makes it obligatory upon the person requesting for the information to disclose reasons for doing so. As per Sec. 11 of the RTI Act, the Central Public Information Officer or State Public Information Officer shall, within five days from the receipt of the request, give a written notice to the third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information. According to Sec. 11(4), the third party is entitled to prefer an appeal under Section 19 of the RTI Act if his interest is prejudiced. The complexity could very well be avoided if the applicant at the stage of requesting for information which relates to a third party or has to be supplied by a third party is made to enumerate reasons for doing so. Under the Australian Freedom of Information Act, a person seeking third party information has to provide evidence of his authority in ask for information and if he is unable to provide authority then he must provide for a reason as to why the information should be released to him. This has been done to protect the interests of the third parties.

The Preamble of the RTI Act, 2005 enumerates one of the objects behind the enactment of the RTI Act as being optimum use of limited fiscal resources besides creating a regime of transparency and accountability. State Public Information Officers and Central Public Information Officers have been appointed for providing information under this Act. There are concerns about frivolous and vexatious use of the Act in demanding information disclosure of which cannot possibly serve any public purpose. Singh said such queries besides serving little productive purpose are also a drain on the resources of public authorities, diverting precious man-hours that could be put to better use. "Sometimes information covering a long time-span or a large number of cases is sought in an omnibus manner with the objective of discovering an inconsistency or mistake which can be criticized," he said. Singh, on several occasions, has raised the issue of vexatious applications.

As a result of implementation of the Right to Information Act, a number of applications for information and appeals are being received by public authorities. It has increased the work of the officers who have been designated as Public Information Officer, Appellate Authority and Other officers whose help is sought by the Public Information Officer in dealing with the RTI applications and appeals. ‘The Right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability.....Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties.’ With the increase in the number of applications, more officers will have to be appointed for quick disposal of the applications. With gradual increase in awareness about the RTI Act, 2005 the number of applications for information is bound to increase, therefore it is necessary that the applications should be screened at the initial stage only. This will help in optimum use of resources- human resource as well as natural resource like paper.

The Preamble of the RTI Act, 2005 lays down that it is necessary to harmonise conflicting interests while preserving the paramount nature of the democratic ideal. The public official also forms part of the democratic set-up in no less way than the citizens. There should be a balance between the interests of the citizens and the public officials. The citizens cannot be allowed to ask or given license to ask any kind of question even if that would mean demeaning any public official. A balance has to be maintained between the right to information and the integrity of an individual, which stems out from the right to life and personal liberty. A provision for providing reason by the person seeking information should be incorporated in the Act as disclosure of information in various cases leads to demeaning of the position of public authority.

Section 24 of RTI Act provides that security and intelligence departments are excluded from the purview of the Act. They can only be asked to inform only if there are allegations of corruption and violation of human rights. It is well understood that these departments need to maintain their privacy. This provision is more logical because it asks for a cause of filing the RTI. If the application alleges corruption and violation of human rights then the information can be given. Same level of gravitas can be assigned to other departments as well though it is not necessary that inquiry remains to above given two fields only. A public servant does not cease to enjoy fundamental rights, upon assuming office. That the public servant has to make disclosures is a part of the system's endeavor to appraise itself of potential asset acquisitions, which may have to be explained properly. However, such acquisitions can be made legitimately. Indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information, unrelated to transparency and accountability would be counterproductive and the RTI Act should not be allowed to be misused and abused.

Public Interest: A basis of locus standi

The RTI Act totally does not promote public interest. This can very well be seen from the fact that the Act does not apply to public-private-partnership (PPP) projects. As per section 2(h) of the RTI Act, in case of non-governmental organisations, only those that are “financed, directly or indirectly, by funds provided by the government” fall under the purview of the RTI Act. The Central Information Commission has made repeated pleas to the government to include PPP projects under the purview of RTI Act as public money and interest are involved in such projects. However, Prime Minister Manmohan Singh, at the annual convention of information commissioners, said that a blanket extension of the RTI Act to such PPP projects may discourage private enterprises to enter into partnerships with the public sector. On the other hand, a blanket exclusion may harm the cause of accountability of public officials, thus not taking a clear stand on the same. Public interest is at stake in infrastructure projects, these projects should be under the purview of the RTI Act. In case of Sh. A.P. Tripathi Vs IIT Delhi , the applicant had applied for long list of varied information pertaining to GATE and JEE for the last 20 years. It was held by the commission that this amounted to a making a mockery of the Act. It must be remembered that though the Respondents are duty bound to supply information asked for by the Appellants, the Appellants are also required to keep in mind the objectives of the RTI Act as outlined in the Preamble to the Act: and that is, to introduce the elements of transparency and accountability in the functioning of the public authorities and to contain corruption. The Commission failed to appreciate how these objectives would be met with if the Appellant asked for such diverse and lengthy information which seemed to be designed only to put the public authorities under undue and uncalled for pressure. In this particular case, the Commission, in fact, appreciated the effort of the public authority to collect and provide as much information to the Applicant as possible and dismissed the case as frivolous and inconsequential. Such an application could not have possibly served any public interest. If applications of this sort are entertained then half of the governmental department will be engaged in collecting data only that too for no cause. Therefore either personal interest that is locus standi or larger public interest must find some mention in the Act. On the other hand, if the applicant can provide reasons as to why this information is being sought or there are connections of the department with some sort of continuous irregularity which can be assertively proved by the data, the application will automatically assume the character of public interest and for such a cause, even if the department has to make extra efforts, it will be justified.

Far-fetched interpretation is noxious to the spirit of the Act

"Mindless atmosphere of negativity" has given rise to frivolous applications seeking information under the Act. Public Officials hold most dignified posts and perform hon’ble duties. RTI Act asks every government official to update the database so that information can be achieved. If this database is provided online by every department that there is no need to file separate applications without any rhyme and reasons.

This is clear from a combined reading of section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (d) and (i) of section 2 of the Act. If a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions of section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to connect or collate such non available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2 (d) of the Act, only refers to such material available in the records of the public authority.

Many public authorities have, as a public relation exercise, provided advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act”. But at times it has been seen that Courts have interpreted the RTI Act beyond its limits leaving the subjected public body with no helping hands. In the CBSE Case, there were bye laws, guidelines and standard practices along with section 8 of RTI Act which were clearly coming to the aid of CBSE but those were side-lined by the Hon’ble Court. If such an interpretation is given to the RTI Act then it will give rise to state of chaos in public offices as PIO will never know which one is legitimate and which one is frivolous application. A student not being satisfied with marks secured in Board Examination for sure cannot take advantage of RTI because there is only a standard procedure for re- evaluation and if that is not complied then only RTI shall stand valid. But if a student demands to see the answer sheet, that shall not be permitted.

Public Interest Litigation and Right to Information

Public Interest Litigation is said to possess the potential of providing such access in the milieu of a new ethos, in which participating sectors in the administration of justice co- operate in the creation of a system which promises legal relief without cumbersome formality and heavy expenditure. It was considered a boon for the ordinary citizen of the country as it helped him get justice in a wide range of matters. PILs helped the judiciary to expand it jurisdiction at the cost of the executive. They became the last resort for the disadvantaged people done with the futile battle with the bureaucracy and governments. But soon PILs were being used for frivolous or malicious reasons. Vested interests would use these to harass business rivals or scuttle any activity not favourable to them. Bureaucrats were put in the dock for decisions not to the liking of the vested interests. It became a tool for extortion and blackmail in the hands of mischievous people.

It took time for courts to see through all this. Soon, judges were imposing hefty penalties on non-serious complainants and threatening them with more serious punishment. They were unhappy that the PILs of frivolous nature were taking up a lot of the court’s time. Now people are more careful about filing PILs.

Similarly, the courts should handle frivolous RTI applications the same way and impose hefty fines. For example according to a news report, Chief Justice of India (CJI) SH Kapadia was asked these questions by way of RTI recently:
Why did you attend Nani Palkhivala Lecture?’
‘What time did you leave?’ ‘Did you eat lunch or had tea?’

Which lawyer invited you for the function?’
Section 4 (2) of the Act makes it abundantly unequivocal when it says that “it shall be a constant endeavour of every public authority to take steps to provide as much information suo motu to the public at regular intervals so that the public have minimum resort to the use of this Act to obtain information”. This does not mean that a public official is supposed to disclose what he/she had for lunch, what time he slept and irrelevant questions of these sorts. The RTI is for promoting public interest.

What sort of public interest is being promoted by these questions?
Moreover, for a PIL to be entertained, the person has to first establish locus standi and show that he is approaching the Court in public interest, he is not a meddlesome interloper and he has sufficient interest in the matter for approaching the Court. The concept of PIL came up to dilute the concept of locus standi and to empower the people to approach the Court. This was a step taken in furtherance of public interest. Same applies to RTI. RTI concept was evolved so that the people can question the public authorities regarding their acts and omissions. The concept of locus standi was abolished and there is no system in RTI by which fine can be levied on the person seeking frivolous information. This should be done away with.

Laying down criteria
The idea of RTI is a very noble one. It is the need of the present hour when there are scams happening everywhere. RTI gains importance more so because India is the largest democracy in the World. With a few alterations in the Act, it will be more foolproof and more so in public interest. As already suggested the concept of locus standi should be brought in for the reasons discussed. The locus standi need not be proved like it is done in the case of a Public Interest Litigation before a Court of law. The applicant has to simply write reason in say limited number of words as to why he is asking for the information. This should not be looked into as barring him of his right to ask questions. This is merely telling him to follow a process for enhancing the efficiency of the whole RTI process starting from asking for information to the public official providing the information.
Next step is to create a criterion for judging whether the applications are in public interest or not. As in the case of a PIL petition there are certain criteria, the same thing can be done in the case of RTI too.

Next question arises as to who would decide as to whether the reasons are just or frivolous. As the criteria are laid down in the act, the same PIO can judge the application and can admit it or deny it. If the applicant feels that the application has been dismissed without any just cause, he can seek appropriate remedy in the same way when the application is not processed on time.

No fine should be levied on the person seeking information even if his query turns out to be frivolous. The denial of such a request is enough. The aim is not to punish anybody for asking questions but it is simply to make the whole process efficient, to reduce the work load of the PIOs and to do away with frivolous applications. These three goals are achieved if the process suggested in the preceding paragraphs are followed.

Conclusion
RTI Act in toto is definitely a tremendous step in a democratic set up like India to promote transparency and accountability but it can work out at its best with some substantial changes. One of the ways can be that the PIO has to give reason for non-admittance and such a letter can be challenged in the same way as in the case of delay by the PIO as laid down in the Act. Introduction of concept of locus standi would promote efficient operations of the government with optimum use of limited fiscal resources and the satisfaction of genuine query of a responsible citizen. If an individual can show the cause which relates him and the public office, the entire structure would be more solemn and instead of making a mockery of the system, it will rather work to make it more limpid and efficacious.

End-note
1. The Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal and Anr 2010 (1) KarLJ 383

2. http://www.ico.gov.uk/for_organisations/freedom_of_information/guide/act.aspx accessed on January 28, 2013

3. P.K.Das, The Right to Information Act (2nd Edn., Universal Law Publishing Co., 2008)

4. PM’s address in the seventh Convention of Central Information Commissioners
Ministry of Personnel, Public Grievances & Pensions, 25th august 2010 Press release, accessed on July 21, 2016
CBSE v Aditya Bandhopadhyay and Ors. (2011) 8 SCC 497

5. The Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal and Anr 2010 (1) KarLJ 383

6. All India Institute of Medical Sciences v Vikrant Bhuria LPA No.487 of 2011, decided on May 28, 2012
No. CIC /OK /A/2006 /00655 dated 28 March 2007

7. http://www.rtigateway.org.in/Documents/CaseLaw/CIC-RTI.pdf accessed on July 15, 2016.

8. Central Board of Secondary Education & Anr. v Ajitya Bandopadhyay & Ors. Civil Appeal No.6454 of 2011, arising out of SLP[C] No.7526/2009
Bandhua Mukti Morcha v Union of India AIR 1984 SC 802

9. S.P. Gupta v Union of India AIR 1982 SC 149

 




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