Adjudicators of the RTI Act:
Supreme Court, High Courts &
Information Commissions
Key Findings of the Report
Anjali Bhardwaj
[email protected]
Sample
• 30 SC orders
• 300 HC orders
• 2000 orders of Information Commissions
• Central Information Commission
• State Information Commission of Assam
• State Information Commission of Bihar
• State Information Commission of Rajasthan
Key issues…
• Deficiencies in orders of information commissions
• Orders of information commissions going beyond the law
• Ignoring mandatory exceptions to the exemptions in the RTI Act
• Lack of penalty imposition by information commissions
• Non-compliance with IC orders
Deficient orders
• More than 60% orders contained deficiencies in terms
not recording critical facts like- dates, information
sought, decision of PIO/ FAA and the grounds for their
decision etc.
• Consequently:
• Often appellants/respondents unaware of the basis/rationale of the
order.
• High Courts/Supreme Court unaware of the ICs reasoning while
deciding appeals, especially as ICs not party to cases.
• Lack of public accountability as legitimacy of orders can not be judged
by the public if full facts of the case and the reasons and grounds for
the decision are not recorded.
Orders not describing information sought
80%
74%
73%
Bihar
Rajasthan
63%
60%
35%
40%
20%
0%
CIC
Assam
Orders going beyond the law
• Denying information by citing Section 7(9) of the RTI Act.
• Denying information citing that it relates to third party or because
third party has “vetoed” disclosure.
• Refusing to provide reasons for decision or the basis of decisions
and policies.
• Holding loss/misplacement of file record as an adequate ground for
denial of information.
• Denying information because sub-judice.
Exceptions to the exemptions
• The Parliamentary access exception (proviso to 8(1)):
“Provided that the information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.”
• Mandatory public interest override 8(2)
“8(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the
exemptions permissible in accordance with sub-section (1), a public authority may
allow access to information, if public interest in disclosure outweighs the harm to the
protected interests.”
• Minimising exemptions after twenty years 8(3):
“8(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any
information relating to any occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on which any request is made
under section 6 shall be provided to any person making a request under that section:”
Non-imposition of penalties
• 59% orders recorded one or more violations listed in Section
20 of the RTI Act, based on which the IC should have
triggered the process of penalty imposition.
• Show cause issued in only 24% orders
• Finally penalty imposed in only 1.3% of the cases in which
it was imposable.
• An estimated loss of Rs. 285 crores is being caused
annually by ICs not imposing penalties.
Penalty imposition: Doctrine of implied powers
“18. It is well-settled that when a power is given to an authority to do
something it includes such incidental or implied powers which would ensure the
proper doing of that thing. In other words, when any power is expressly
granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would
render the grant itself ineffective. Thus where an Act confers jurisdiction it
impliedly also grants the power of doing all such acts or employ such means as
are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many
matters of minor details are omitted from legislation… ”
Sakiri Vasu v State of Uttar Pradesh and Ors. AIR 2008 SC 907 : 2008 AIR
Addressing non-compliance with IC orders
• Commissions must fix a time limit within which their orders have to be
complied with and compliance reported filed.
• 2 weeks after expiry of time-frame for compliance, fix a hearing for
compliance
• Hearing to take place only if appellant/complainant communicates in writing
that the orders of the commission have not been complied with or where
compliance report is not submitted.
• Where no such complaint is received and where a compliance report has
been filed, no hearing would be held and the orders assumed to have been
complied with.