Justice Ajit Prakash Shah

Former Chief Justice, High Court of Delhi
Former Chairman, Law Commission India

28, July 2025

OPEN LETTER

To,
Shri. R. Venkataramani,
Attorney General for India

Sub: Urgent Need to Roll Back Amendments to the Right to Information Act, 2005

1. I write to you with profound concern over the recent legislative changes to the Right to Information Act, 2005 (‘RTI Act’) through the Digital Personal Data Protection Act, 2023 (‘DPDP Act’). These changes represent a seismic shift in India’s transparency framework for the worse, threatening to dismantle RTI Act’s core purpose of democratic accountability and citizen empowerment. It has come to my attention – through reports in The Economic Timesand other sources – that the Ministry of Electronics and Information Technology (‘MeitY’) has formally sought your legal opinion on whether the DPDP Act undermines the RTI Act. As a concerned citizen, I have applied my mind to this important subject. My endeavour in submitting this opinion is to assist your office and contribute meaningfully to the public discourse on this matter of urgent constitutional importance.
2. India’s RTI Act has been hailed globally as a benchmark “sunshine law” that transformed the relationship between the state and its citizens by promoting transparency and accountability in public administration. It codified the fundamental right to information, derived from Articles 19(1)(a) and 21 of the Constitution. It has empowered citizens to scrutinize government functions, prevent corruption, and ensure good governance. The original RTI Act, particularly Section 8(1)(j), meticulously balanced the public’s right to know with the individual’s right to privacy – a balance consistently affirmed by the Indian judiciary. The recent amendments, however, destroy this delicate equilibrium.
3. The DPDP Act significantly harms the RTI Act, both directly and indirectly, in the following manner:
4. Section 8(1)(j) Amended:Section 44(3) of the DPDP Act replaces the narrowly tailored exemption in Section 8(1)(j) with an overbroad provision for withholding information, and removing the “public interest” override. This enables public authorities to deny information simply by classifying it as “personal,” regardless of its public relevance or importance.
5. Proviso to Section 8(1) Deleted:The removal of the proviso to Section 8(1) of the RTI Act – which mandated that information not deniable to Parliament or a State Legislature shall not be denied to any person – is alarming for democracy. This attempt to legitimate information asymmetry between elected representatives and ordinary citizens undermines the principle of an informed citizenry vital for democratic functioning and public accountability.
6. Impact on Suo Moto Disclosures (Section 4):The expansive definition of ‘personal data’ in the DPDP Act, coupled with the absence of a public interest override, severely curtails proactive disclosures under Section 4 of the RTI Act. Public authorities can now withhold information concerning their functions, decision-making processes, employee details, and budgets if such information can be broadly interpreted as ‘personal information’.
7. As a co-author of the Report of the Group of Experts on Privacy (2012), constituted under the aegis of erstwhile Planning Commission, it was our position that any legislation on privacy should not affect or dilute the RTI Act. Our report recommended that “Privacy Act should not circumscribe the Right to Information Act.” It also unequivocally stated that “Any information that is available or accessible in public domain or furnished under the Right to Information Act, 2005 will not be regarded as sensitive personal data.”  This foundational principle, articulated in greater detail in our report, demonstrates the complementary nature of privacy and transparency – which the DPDP Act gravely disrupts.
8. These amendments are manifestly ill-thought-out, raising critical legal issues that are ripe for constitutional challenge.
9. Does the amendment to Section 8(1)(j) of the RTI Act via Section 44(3) of the DPDP Act constitute an unreasonable restriction on the fundamental right to information under Articles 19(1)(a) and 21 of the Constitution?
10. Does the removal of the “larger public interest” override from Section 8(1)(j) of the RTI Act, contradict the principles established in Justice K.S. Puttaswamy (Retd.) v. Union of India(2017), which emphasized that privacy, while a fundamental right, is not absolute and can be subject to reasonable restrictions in the public interest?
11. Does the broad and undefined scope of “personal information” in the amended Section 8(1)(j), when read in conjunction with the DPDP Act’s definition of “personal data,” lead to an arbitrary and excessive denial of information that is intrinsically linked to public activity and accountability, thereby undermining the public’s right to know?
12. Does the deletion of the proviso to Section 8(1) of the RTI Act, which ensures information accessible to the legislature is open to the public, violate the principles of democratic accountability and an informed citizenry?
13. Does the DPDP Act, through its broad definitions and lack of public interest override, undermine the spirit and effectiveness of suo moto disclosures under Section 4 of the RTI Act?

The Original Framework of Section 8(1)(j): A Balanced Approach

6. The RTI Act was designed with a clear intent to enable ‘maximum disclosure with minimum exemptions’ in order to promote transparency and accountability in public authorities. Within this framework, Section 8(1)(j) served as a crucial provision for balancing the right to information with the right to privacy.

Narrow Scope of “Personal Information”

7. The original Section 8(1)(j) of the RTI Act was carefully worded to exempt “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.” This restrictive phrasing ensured that the exemption was not a blanket one but applied only to specific categories of personal data. It primarily concerned information that genuinely lacked public relevance or constituted an “unwarranted invasion” of privacy. This approach ensured that the provision was not intended to be a broad shield against disclosure.

The Indispensable Public Interest Balancing Test

8. A critical component of the original Section 8(1)(j) is that it allows disclosure “unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.” This “public interest override” is the cornerstone of the RTI Act’s balance. It permits Public Information Officers (PIOs) to weigh the public’s right to know against individual privacy concerns on a case-by-case basis.

Judicial Affirmation of the RTI Act’s Balance

9. The judiciary consistently affirmed the delicate balance struck by the original Section 8(1)(j). The nine-judge bench decision in Justice K.S. Puttaswamy (Retd.) v. Union of India(2017)unequivocally declared the right to privacy as a fundamental right under Articles 14, 19, and 21 of the Constitution. However, the Supreme Court held that the right to privacy, like other fundamental rights, is not absolute and can be limited. Any invasion of privacy must meet a three-pronged proportionality test:

(i) legality (existence of a law),
(ii) legitimate state aim, and
(iii) proportionality stricto sensu.

10. The original Section 8(1)(j) with its public interest override is inherently aligned with the principles of proportionality. It ensures a calibrated approach to privacy invasion when a legitimate state aim, such as public interest in transparency, justifies disclosure. This position has been reinforced by the five-judge Constitution Bench in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal(2019). The Court reiterated that decisions on public disclosure must be made on a “case-by-case basis” by weighing competing public interest claims. In particular, the Court upheld the disclosure of judges’ assets by affirming the public interest override in Section 8(1)(j).
11. Courts and Information Commissions consistently accepted the existing Section 8(1)(j) as a fair and workable balance between the right to information and the right to privacy. The framework allowed for nuanced decision-making, ensuring that personal information was protected from unwarranted invasion while permitting disclosure where public accountability was paramount.

The Digital Personal Data Protection Act, 2023 and the Dilution of Section 8(1)(j)

12. The DPDP Act’s Section 44(3) drastically amends Section 8(1)(j) of the RTI Act to simply read: “(j) information which relates to personal information.” This seemingly minor textual change fundamentally alters its original character and purpose.

The Undefined and Overbroad Scope of “Personal Information”

13. It removes the crucial qualifying phrases: “the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.”
14. While the RTI Act itself does not define “personal information,” the DPDP Act defines “personal data” broadly as “any data about an individual who is identifiable by or in relation to such data.”This broad and vague definition, when implicitly applied to RTI, enables public authorities to classify virtually any data related to an individual as “personal information,” thereby exempting it from disclosure. This could include public officials’ salaries, educational qualifications, disciplinary actions, and property records, which were previously accessible.
15. The vagueness of ‘personal information’, coupled with the removal of qualifiers in the original 8(1)(j), is a significant legal loophole. It shifts the burden of proof on the public authority to justify non-disclosure based on specific criteria, to the RTI applicant, who now has to prove the information is not ‘personal’. Thus, it fundamentally alters the RTI Act’s openness principle and creates a ripe environment for PIOs to shield information.

Exclusion of the Public Interest Test

16. The most significant change is the complete removal of the public interest override from Section 8(1)(j). This means that even if the disclosure of certain personal information is overwhelmingly in the public interest – for example, exposing corruption or ensuring the accountability of public officials – it can now be denied outright simply because it relates to ‘personal information’. This blanket ban on the disclosure of personal information, regardless of its public relevance, eliminates the nuanced balancing act that is central to the original RTI framework. The removal of this crucial safeguard transforms an exception into a broad rule, severely curtailing the public’s right to access information.
17. The following tables illustrate the stark differences between the original and amended Section 8(1) (j):

Grave Knock-on Effects on Democratic Governance

18. The amendments to Section 8(1) (j) of the RTI Act carry profound and detrimental consequences for the functioning of India’s democratic governance.

Chilling Impact on journalists and free speech

19. The amendments, coupled with the broad definitions in the DPDP Act, pose a severe threat to independent journalism and the freedom of the press. Journalists fear that the Act will criminalise routine reporting and require consent for news coverage, which is impractical for investigative journalism, especially in situations like riots, custodial deaths, or corruption scandals. The DPDP Act’s definitions of “Data Principal” (a person mentioned in a news article) and “Data Fiduciary” (the journalist handling that information) mean that even quoting a name or taking a photo could be considered processing personal data, potentially leading to heavy penalties up to ₹250 crore or ₹500 crore.

Undermining Public Accountability and Anti-Corruption efforts

20. The removal of the public interest override and the vague definition of “personal information” under the DPDP Act will significantly hamper efforts to ensure public accountability and combat corruption. Information about public servants’ qualifications, disciplinary actions, property records, and even minutes of public meetings could now be withheld under the guise of privacy. Even a document that would otherwise be disclosed may be withheld simply because a small part of it pertains to “personal information” of an individual. The RTI Act’s original intent was to prevent corruption and ensure accountability. This was achieved by allowing access to information about public officials’ conduct and assets. If this information is subject to blanket exemption, then the mechanism for accountability is broken, leading to increased opacity and potential for corruption.
21. The RTI Act was a potent weapon against corruption, making government officials wary of misconduct. This amendment weakens that deterrent effect. The amendment creates an information asymmetry that favours public authorities and potentially corrupt officials. By restricting access to personal information that is intrinsically linked to public activity, it shifts the balance of power away from citizens and oversight bodies, making it harder to hold the government accountable. This directly undermines the foundational purpose of the RTI Act.

Crippling social audits

22. Social audits, a crucial mechanism for ensuring transparency and accountability in the implementation of public welfare schemes, rely heavily on the ability to access information about beneficiaries, expenditures, and service delivery. Social audits require detailed information about individuals, such as beneficiaries and officials, to verify scheme implementation. If this “personal information” is now exempt, then the very data needed for audits is inaccessible, making them impossible or ineffective.
23. By creating a blanket ban on disclosure of personal information, the amendments will cripple social audits and the verification of public service delivery. Examples include exposing ration distribution fraud or identifying “ghost beneficiaries” in public distribution systems, which were previously achieved through RTI requests. These vital oversight mechanisms will become impossible if access to relevant personal data of beneficiaries or officials involved is denied. The impact on social audits highlights how the amendment’s broad sweep affects grassroots accountability.

Susceptibility to legal challenge: Violation of constitutional principles

24. The amendments introduced by the DPDP Act to Section 8(1)(j) of the RTI Act are not merely problematic from a policy perspective; they are susceptible to legal challenge on fundamental constitutional grounds.

Failure to Satisfy the Proportionality Test

25. As established in Puttaswamy, any invasion of privacy, or restriction on fundamental rights, must satisfy the three-pronged proportionality test: legality, legitimate state aim, and proportionality. While the DPDP Act provides legality, the blanket ban on personal information disclosure, without a public interest override, fails the proportionality limb.

(a) Rational Nexus: A blanket exemption from disclosure for all “personal information” is not rationally connected to the legitimate state aim of merely protecting an individual from unwarranted infringement of privacy. As explained earlier, the original Section 8(1)(j) was meticulously crafted to exempt only such personal information that had “no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy.” This inherent qualifier ensured that the scope of privacy protection was tailored to the actual harm. The current broad exemption encompasses vast swathes of information that are intrinsically linked to public functions and accountability, where the privacy interest is negligible or outweighed by public interest.

(b) Least Restrictive Means (Necessity Test): The Puttaswamy judgment mandates that any restriction on a fundamental right must employ the least intrusive means possible to achieve its legitimate aim. The original Section 8(1)(j), with its in-built public interest override and the requirement to demonstrate “unwarranted invasion,” served as a less restrictive, yet effective, mechanism for privacy protection. It allowed for a nuanced, case-by-case balancing that prevented arbitrary denials. The amendment, by removing this balance and creating a blanket ban, adopts the most restrictive means possible. It presupposes that all “personal information,” irrespective of context or public relevance, carries an equal and overriding privacy sensitivity, which is clearly fallacious in a transparent governance framework.

(c) Proportionality Stricto Senso (Balancing Test): This final component requires a balancing of the adverse impact on the affected rights against the benefit derived from the restriction. The benefit of a blanket privacy protection, achieved at the cost of a complete erosion of the public’s right to information on matters of public concern, is disproportionate. The adverse impact on public accountability, anti-corruption efforts, social audits, and journalistic freedom (as detailed previously) far outweighs the marginal, if any, additional privacy protection gained beyond what the original Section 8(1)(j) already afforded. It undermines the very essence of public oversight and creates an information asymmetry that tilts heavily in favour of public authorities.

26. This failure to satisfy the stringent proportionality test, particularly on the aspects of rational connection, necessity, and balancing, renders the amendment to Section 8(1)(j) constitutionally vulnerable and susceptible to legal challenge.

Deprivation of Fundamental Rights

27. The amendment deprives citizens of their fundamental right to information, which is an intrinsic part of the right to freedom of speech and expression [Article 19(1)(a)] and the right to life and personal liberty (Article 21). By creating a broad exemption for “personal information” without a public interest override, it unduly restricts the flow of information necessary for informed public discourse and democratic participation. The right to information is a fundamental right, and any restriction on it must be reasonable. A blanket ban on “personal information” regardless of public interest is an unreasonable restriction, directly depriving citizens of their fundamental right. This suggests that the amendment is not merely a policy choice but a constitutional infringement.
28. Furthermore, while purporting to protect privacy, the amendment paradoxically undermines the broader constitutional scheme where transparency and accountability are complementary to, not in contradiction with, privacy. The amendment creates a false dichotomy between privacy and transparency, implying they are inherently conflicting, whereas judicial pronouncements have emphasized their complementary nature in a democratic society.

Deletion of the Proviso to Section 8(1) of the RTI Act: Erosion of Democratic Oversight

29. The original proviso to Section 8(1) of the RTI Act stated: “Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”This proviso embodies the principle that what is accessible to the legislature, representing the people, must also be accessible to the people directly. The deletion of this proviso is not merely a procedural change but a symbolic and substantive attack on the principle of popular sovereignty. It suggests that the government’s primary accountability is to the legislature, rather than directly to the citizenry, creating a hierarchical information flow that is antithetical to a vibrant participatory democracy.

The mandate of suo moto disclosures under Section 4 of the RTI Act

30. The RTI Act not only mandates disclosure upon request but also imposes a duty on public authorities to actively disclose, disseminate, and publish information of general public interest suo moto. Section 4(1)(b) of the RTI Act sets out 17 categories of information that public authorities must proactively disclose, including details about their functions, decision-making norms, documents held, employee contacts, and budgets. The positive effects of proactive disclosure include minimizing time, money, and effort for the public to access routine information, helping citizens understand what information is available, and reducing the administrative burden of individual RTI requests.
31. The DPDP Act defines “personal data” broadly as “any data about an individual who is identifiable by or in relation to such data.” It mandates that personal data processing generally requires “free, specific, informed, unconditional, and unambiguous” consent, obtained through “clear affirmative action.” While the DPDP Act is ostensibly focused on protection of digital personal data, it has lost sight of the profound and unintended consequence of dismantling proactive transparency mechanisms that have been built over years under the RTI Act. The stringent consent requirements for processing “personal data” create a fundamental conflict with the suo motodisclosure mandate of Section 4 of the RTI Act. Many categories of information proactively disclosed under Section 4, such as beneficiary lists for welfare schemes, employee details, or property records, inherently contain “personal data”.

Conclusion

32. In light of the profound implications for democratic governance and fundamental rights, the following recommendations for legislative action are respectfully submitted:
33. Section 44(3) of the DPDP Act, which amends Section 8(1)(j) of the RTI Act, should be immediately repealed.
34. It must be explicitly clarified within the DPDP Act that the RTI Act applies with full force. This clarity is essential to prevent any future misinterpretation that might undermine the RTI Act’s effectiveness.

I urge your good offices to give this matter their urgent attention and initiate steps to rectify this critical legislative flaw, thereby upholding the constitutional values of transparency, accountability, and the fundamental rights of every citizen.

Best regards,
Ajit Prakash Shah

Copy to:
1. Minister for Law & Justice
2. Minister for Electronics & Information Technology

Related:

Vacancies, Backlogs, and increased governmental involvement: How the RTI Act has lost its glory!

India’s RTI Act struggles to survive as backlog, lack of staff persists

Digital Personal Data Protection Bill seeks to amend RTI Act to bar disclosure of personal information

Public authority must give cogent reason to withhold information under RTI Act: Delhi HC

The post Repeal recent amendments to the RTI act, 2005: Justice A.P Shah in an Open Letter appeared first on SabrangIndia.

From its inception in 2005, the RTI Act essentially allows Indian citizens to initiate a proceeding to request information from the government regarding its functioning. It has helped citizens avail information and statistics from the government that are not available for public access which has been pivotal in helping citizens and citizen groups keep a closer check on government projects, public work departments, and any weakening or reduction in expenditure.

However, a year before nearing the RTI Act’s anniversary in October 2022, the son of an activist lost his life. It happened when a man who had been accused of being a part of illegal sand mining by the activist reportedly collided his four-wheeler with their scooter in Gujarat, according to a report by Scroll.in. However, these kinds of attacks are the norm and have been rising over the years.

Thus, as India once again celebrates the anniversary of the Right to Information Act on October 12, the findings of a report “Report Card on the Performance of Information Commissions in India, 2022-23” by Satark Nagarik Sangathan have revealed that there are about 3.21 lakh appeals pending with its information commissions. The RTI Act has been pivotal with regards to granting access to free and fair information and has been prized to be a radical democratic tool for citizens to hold governments accountable.

However, the SNS report has found instances that seem to say that RTI Act is not functioning as it should. For instance, an astounding number of four information commissions namely, Jharkhand, Telangana, Mizoram, and Tripura – are completely non-functional due to the absence of newly appointed commissioners after the previous ones had left their positions. The information commissions are essentially the appellate authority that is involved in responding to RTI inquiries. Secondly, six commissions, including the Central Information Commission and SICs in Manipur, Chhattisgarh, Maharashtra, Bihar, and Punjab, are currently operating without a head.

What is alarming is that there is a huge backlog of pending appeals and complaints and as of June 30, 2023, there were 321,537 pending cases in the 27 information commissions for which data was available, and in fact this backlog has been steadily increasing over time, growing from about 218,347 in 2019 to over 3 lakh in 2022, according to the SNS report.

In an attempt to illustrate the gravity of these numbers, the report calculated the time it would take to solve and dispose of one appeal according to the average monthly disposal rate, and found that, for instance, the West Bengal State Information Commission would need approximately 24 years and 1 month to address a matter filed on July 1, 2023. It would be around 4 years for Chhattisgarh and Maharashtra SICs, and in Odisha and Arunachal Pradesh more than 2 years. Furthermore, the report details that in cases where a penalty was levied, 91% of the cases the penalty was not imposed.

Lastly the RTI Act also mandates each commission to prepare an annual report on the implementation of the Act, which is to be presented before Parliament or the state legislature. However, the report has discovered that of about 19 out of 29 information commissions, 66 % of the total, have not published their annual reports for 2021-22.

In the age of information, government support is vital for citizens to have access to free and fair information which is free of propaganda. The weakening and debilitating condition of the RTI Act cannot bode well for Indian citizens, especially when these democratic hurdles are being confronted by new laws that are touted to threaten the democratic ecosystem further. The approval by the union government of the Digital Personal Data Protection Bill during the monsoon session of Parliament has brought forth several concerns for proponents of democratic values and digital rights and, according to activists, a blow to the RTI act.

The National Campaign for People’s Right to Information has been raising alarms over the bill and its implications for data protection and transparency. In their statement issued in December 2022, the NCPRI had asserted that the bill only affects data protection and also weakens the RTI Act, “The proposed Digital Personal Data Protection Bill not only impacts data protection but also weakens critical provisions of the Right to Information Act, which millions of citizens rely on for transparency and accountability.” The NCPRI has also called to attention that the Bill provides “discretionary powers to the executive” and it can keep any government or private sector party immune from the provision of the bill by issuing a notification.

These legislative provisions along with the deep crisis affecting the RTI institutions have made a significant dent into the survival of democratic institutions in the country. As elections mount over the country in 2024, the functioning of the RTI remains pivotal to grant transparency and accountability for an informed citizenry.

Related:

Apply, apply, no reply? RTI faces quiet death as CIC is all set to go into ‘lockdown mode’

Uttar Pradesh: Retd IPS Officer S.R. Darapuri Among 6 Held for Protest

Indian minorities must be protected, GOI needs to take steps: IAMC report

Whenever there is a strong executive, there has been a visibly weak judiciary: Justice Dr. S Muralidhar

The post India’s RTI Act struggles to survive as backlog, lack of staff persists appeared first on SabrangIndia.

 
In landmark judgment, Reserve Bank of India v. Jayantilal N. Mistry, AIR 2016 SC 1= (2016) 3 SCC 525, the main issue for consideration before the Supreme Court was whether all the information sought for under the Right to Information Act, 2005 can be denied by the RBI and “other Banks” to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship (of RBI with other Banks), on the one hand, and the public interest, on the other. Rejecting all the three arguments, the Apex Court held that the RBI & other banks, as public authorities under the Act, were bound to disclose the information related to inspection reports and other documents to the applicants. 
 
The argument that disclosure would hurt the economic interests of the country is “baseless, unsubstantiated & totally misconceived”, the Court responded at para 61 of the judgment. There was no commercial confidence & fiduciary relation between RBI & other banks and that the relationship was purely statutory in nature, the Court said at paras 58-60, 62. The Apex Court discussed at length the legislative history of the RTI Act, 2005, its preamble, objectives & briefly it mentioned of structure of its provisions. It quoted the then PM of India’s speech in Parliament on the Act.
 
The RBI & other banks were, thus, directed to disclose the information to the respondents/citizens in the interests of the general public. It appears from latest developments that the RBI did not disclose the required information of annual inspection reports of banks, along with the list of willful defaulters, which was sought by the applicants under the RTI Act. Non-disclosure from RBI came under its “Disclosure Policy” 30.11.2016 that made certain information exempt from disclosure under the Act. The Apex Court vide its latest order 26-04-2019 took RBI’s non-compliance with its order dated 16-12-2015 passed in Jayantilal N. Mistry ante very seriously. So, the Court directed the RBI to withdraw its “Disclosure Policy” dated 30.11.2016 & divulge the information otherwise face the contempt proceedings.
 
The Court vide its order dated 26-04-2019 passed in Girish Mittal v. Parvati V. Sundaram , (2019) Supreme (SC) 498 reiterated its earlier opinion that while information under section 8(1) of the Act can be denied to the public to guard national security, sovereignty, national economic interest and relations with foreign States etc, the lower-level economic and financial information like contracts and departmental budgets should not be withheld under this exemption.

The Court observed that RBI had vide its Disclosure Policy dated 30.11.2016 directed various departments not to disclose information that was directed to be given by Jayantilal N. Mistry ante & that “though we could have taken a serious view of the Respondents [RBI & other banks] continuing to violate the directions issued by this Court, we give them a last opportunity to withdraw the disclosure policy… Any further violation shall be viewed seriously by this Court”. (paras 8-10, emphasis added). It is ultimatum given to the RBI by the Apex Court for non-compliance with its order in Jayantilal N. Mistry ante.  RBI has said it will disclose the information pursuant to the top court’s hammer, as reported by dailyhunt on 27-04-2019.

Above is the law as on date regarding banking industry in the country. Let us throw some polemic light on the issue of what constitutes a “public authority” under the Act that is duty bound to disclose information to the citizens, in the light of judicial dicta. To start with, right to information emanates from the fundamental right guaranteed to citizens under Article 19(1)(a) of the Constitution of India which does not, however, explicitly grant this right inasmuch as right of privy is also not expressly mentioned in Article 21. Justice K S Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1= 2017 0 Supreme (SC) 772 (Constitutional Bench of 9 Judges).

The theory of ‘implied bar’ does not apply to RTI law which has been enacted to give full scope to this fundamental right. Even the right to privacy fades out in front of this right in larger public interest. The “public authorities” under the Act cannot claim any immunity for disclosure of a so-called third party document/information as larger public interest outweighs private commercial interest under this law. So, RBI was bound to disclose the information about third party information that was deposited with it under the BR Act by the third party (Goa Co-Operative Bank). (Reserve Bank of India v. Shri Rui Ferreira, AIR 2012 Bom 1)  

The ultimate object of the RTI law, as gleaned from its preamble & different provisions, is to achieve transparency and accountability with regard to affairs of a “public authority”, the definition of which being inclusive must be given liberal construction in order to advance objective of the Act. A body, institution or an organization, which is not a State within the meaning of Article 12 of the Constitution may still answer the definition of public authority under section 2(h) if the government holds ultimate control over its affairs & finances. (Agriculture Produces Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983); Sanjeev Kumar v. State of Himachal Pradesh, (2014) Supreme (HP) 954). The doctrine of deep and pervasive control based on the decisions rendered by the courts under Article 12 is not relevant for answering the question whether a body is a public authority for the purposes of the RTI Act. It is enough if it is shown that the authority is controlled by the government. (Indian Railway Welfare Organisation v. D M Gautamm, 2010 Supreme (Del) 395)

The “private bodies” directly or indirectly controlled by the government are covered under the Act. (Mulloor Rural Co-Operative Society Ltd v. State Of Kerala, (2012) Supreme (Ker) 311). The word “controlled” used in section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (Thalappalam Ser. Coop. Bank Ltd v. State of Kerala, (2013) Supreme (SC) 943).

The word ‘substantial’, not defined in the Act, is not synonymous with ‘dominant’ or ‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable value.’ ‘Substantially’ is closer to ‘essentially’, ‘just enough to avoid the de minimis principle’. (Ibid) Even non-government organisation that is substantially, directly or indirectly, financed by the funds of the government will fall within the definition of “public authority”.  (Principal, M. D. Sanatan Dharam Girls College, Ambala City v. State Information Commissioner, AIR 2008 P & H 101); CSEPDI v. Tamil Nadu Generation & Distribution Corporation Limited, (2015) Supreme(Mad) 1521)

Even a private college that receives financial grant from the government is covered by the definition of “public authority”. (Committee of Management, Shanti Niketan inter college v. State of UP, (2008) Supreme All 999). Funds and finances come in multiple shapes to the public authorities from the government like equity, grants and concessions. For example, a bailout package of Rs 5,000 crore by the Central Government to the IFCI is substantial financing which answers the description of a public authority under the Act.  (IFCI Ltd v. Ravinder Balwani, (2010) Supreme (Del) 570).

Where a company has been created under the rules framed by the State government which holds 49% stake in it, the government has substantial control on it and the company is “public Authority”. (Western Electricity Supply Company of Orissa Ltd v. State of Orissa, (2009) Supreme (Ori) 403). The criterion for determination of meaning of words ‘substantially financed’ is not less than 50% holding, though the company law gives significant rights even to those who own 26% of the shares in a company. (Bangalore International Airport Limited v. Karnataka Information Commission, (2010) Supreme Kar 149).

But where the majority of shares is not held by the government but by private persons and the government has power to ‘nominate’ just one director on the board of the body, it cannot be said that the government exercises any functional control over its affairs. (Agriculture Produce Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983 (a huge catena of case laws has been cited and discussed in this case).

It is not necessary that a public authority should have been created under a statute. It can be creation of Notification of the government. (Sri Kannikaparameshwari Co-operative Bank Ltd v. State of Karnataka, 2008 0 Supreme (Kar) 381). A bank not established under Notification of the State government with not a single director appointed by the government and all directors elected by the private share holders of the bank and the government having no substantial equity in it, cannot be a Public Authority within the meaning of the Act. (Panjabrao Deshmukh Urban Co-operative Bank Ltd v. State Information Commissioner, AIR 2009 Bom 75).

End word:

In view of the J&K Chief Information Commissioner’s order dated 24-04-2012, J&K Bank is a “public authority” within the meaning of section 2(f) of J&K RTI Act, 2009 for the following two main reasons: One, JK Bank was created pursuant to the late Maharaja’s Memorandum of 1939, Maharaja in whom all powers of legislative, executive and judicial nature were vested, ordering for the creation the JK Bank and as that Memorandum/Notification is protected under section 155 of the JK Constitution, it was creation of law. Two, three permanent directors including one as chairman-cum- CEO under the Memorandum of the Bank are directly appointed by the State Government.  

The State does not enjoy similar power with other private sector banks. It may not be out of place to mention here that. Justice Y B Nargotra dissenting with majority opinion of two other judges in Firdous Ahmad Tanki v. J&K Bank Ltd, (2006) 2 JKJ 146= (2010) 7 JKJ 488= 2006 0 Sri LJ 1 has observed that as the majority of the share holding in JK Bank is held by the State Government, [presently it is 59% plus; read GK dated 12-01-2017 (Government of J&K today announced an amount of Rs. 532 crore as additional capital infusion in two tranches during next financial year to retain its strategic equity share of 53)] it is “fully competent and powerful enough to elect all the directors” because the minority share holders group is “in no position to influence the election of directors”. Non-government directors are elected by majority vote at the time of AGM if the vacancy has arisen.

However, the operation of that order has been stayed in a writ appeal filed by the JK Bank against it before the Hon’ble High Court of JK in 2012. 

The writer is author of Inside the Vault (fiction) and six other books on law, including the two volume book on Law of Contract (Thomson Reuters Publication, 2016). He is an academician, story teller and freelance-columnist. He has contributed hundreds of narratives to multiple media channels.

The post RTI Act: Public Authorities and Banks appeared first on SabrangIndia.

(Madabhushi, former Central Information Commissioner, wrote a series of articles on attempts by governments, at the Centre and in States, to subvert RTI. This is one of them, the latest.)

The Union government proposed setting up of two committees – one to receive and decided on complaints against the Chief Information Commissioner (CIC) and the second one for complaints against the Information Commissioners. The committee to receive complaints against the Chief Information Commissioner is proposed to be consisting of Cabinet Secretary, Secretary DoPT and the former CIC, and the committee to act on complaints against Information Commissioners will be consisting of Secretary (Coordination) in the Cabinet secretariat, Secretary DoPT and a retired IC. Also Read – New ‘biosignature’ to track remains of ancient life on Earth Advertise With Us It is ridiculous to make such ‘officers’ who are supposed to obey the directions of ICs and CIC, to inquire into the complaints against CICs.

The statutory status of Central Information Commissioners and Chief is much above the level of Cabinet Secretary etc. The RTI Act gave CIC the power to direct and impose penalties on these officers if they don’t give information. The ICs are on par with Election Commissioners, who in turn function at the level of Supreme Court judges. Also Read – Several economic promises of BJP too tall: Experts Advertise With Us The CICs are appointed by the President on recommendation of the high-power committee led by the Prime Minister, a Cabinet Minister and the Leader of the Opposition. The Central Information Commission must function autonomously without being subjected to directions by any other authority under this Act (Section 12(4) or RTI Act).

The committees proposed are not authorities under this Act. The government cannot create any such authority in the absence of any enabling provision in the Act. Advertise With Us By filling the commission with the officers, who served them with utmost loyalty, the independence of CIC is killed at the origin, i.e., appointment stage and now these panels will instil fear among the appointed commissioners not to give any adverse orders. The CIC recently asked the government offices to disclose the corruption and other cases against its officers. President is the authority Section 14 (1) of the RTI Act insulates the commissioners from any authorities other than President. It states that power of removing the commissioners is vested only in the President, that too, on the ground of proved misbehaviour or incapacity after the Supreme Court. The President must make a reference to the Supreme Court, which must conduct inquiry. Section 14 (3) explains some more reasons.

President may remove a commissioner if he/she is adjudged an insolvent, has been convicted of an offence which involves moral turpitude, engages during his/her term of office in any paid employment outside, unfit to continue in office by reason of infirmity of mind or body; or has acquired such financial or other interest as is likely to affect prejudicially his functions as the CIC or an IC. This high- level procedure is prescribed to insulate the office of CICs from frequent interference from the political executive. As the President is appointing authority it is appropriate for the President only to remove or initiate the process of removal of the commissioner. If anybody has proof or strong allegation of misconduct, he can make complaint to the President. Many complaints are generally posted to the Chief Information Commissioner also. The President’s office most of the times forwards the complaints to the commission. Recently the CIC has introduced a practice of pointing out the complaints in the commission’s meeting or/and forward complaint to the concerned commission for information. Under the Act, the chief has no authority to receive or act on any complaint. The disgruntled elements file complaints against the commissioners.

More of such complaints are frivolous on the face of it. Naming the commissioner and the number of complaints with brief content of allegation is felt not proper. Then in an informal meeting the complaints were briefed without taking the names. The President’s office is the only appropriate forum for filing complaints with proof. The government’s duty to implement RTI The government of the day is a major player in implementing the RTI Act, the key part of it being the constitution of CIC. By delaying or not filling the vacancies and by selecting 99 pc former bureaucrats, on the merit of ‘loyalty’ only the government is continuously wielding complete control over body and the mind of the CICs. Yet, the top bureaucrats in the government are not happy. They tried to dilute this institution by framing rules, developing a draft amendment and now to create the panels. Faced with resistance from the commissioners, they dropped rules and postponed the amendment proposal. Then officers came up with this method of controlling. The CIC deserves appreciation for unitedly opposing these panels. Till today the PMO personnel were interfering with the functioning of the CIC, and if this proposal is through, every department will supervise the adjudication of second appeals and demand the ‘judgments’ of their choice with the threat of inquiry. Atrocious proposal It’s totally against the RTI Act, and violative of letter and spirit of our democratic constitution which gave independence to information tribunal.

It is bureaucracy’s desperate attempt to annex the transparency panel under their hierarchy. This proposal will reduce the CIC to the level of a glorified clerk without glory. Its atrocious for the government of India to come up with this kind of proposal when the nation is going to polls, a referendum on the present governance. It will convert independent institutions into dependent branches. They will also be using the CIC, like other independent enforcement organisations, to threaten the people, who oppose the ruling party or ruling thought. If they appoint independent persons from different walks of life with cherished past of being transparent, there will be no complaints against CICs and no such committee will be necessitated. The nation must understand the so-called commitment of this government towards transparency and RTI and decide their choice in this election.

The honourable President of India should come to the rescue of RTI by insulating CIC from these kinds of onslaughts from the government as their subordinate officers are trying to prevent people from asking for embarrassing disclosures using RTI. This attempt is highly undemocratic, unconstitutional and smacks of high-level dictatorship and authoritarianism. This must be totally opposed. The President should consider advising his government not to do this. The people must oppose this proposal and save their dear right to information.

(The writer is former Central Information Commissioner and Professor, Bennett University. He can be contacted at madabhushi.sridhar@gmail.com)

Courtesy: Counter Current

The post Attempt to Annex Information Commission appeared first on SabrangIndia.

RTI Commissioner Shridhar Acharyulu (Ravindra Joshi/HT PHOTO)
 

The post Amendments to RTI Act will spell doom for good governance: RTI Commissioner appeared first on SabrangIndia.

Image credit: Rarereports.com

The Central Information Commission on Thursday directed that the statement of Nathuram Godse, along with other relevant records related to the assassination of Mahatma Gandhi, be “proactively disclosed” on the website of the National Archives.

“The Right to Information is intrinsic in this fundamental right to freedom of speech and expression as held by Supreme Court in several judgments, and thus the reasonable restrictions under Article 19(2) do apply to the right to information also. The restrictions under Section 8 of RTI Act, are more or less coached in the same theme and language of Article 19(2). Thus the Bombay High Court cleared the disclosure/circulation after considering several grounds of restrictions, which are akin to Section 8(1) (a). Moreover, the appellant is seeking only the statement of Nathuram Godse as given to the trial court in Mahatma Gandhi Assassination case, which cannot be denied.  One may disagree with Nathuram Godse and his co-accused, but we cannot refuse disclosure or circulation of his opinion,” Prof. M. Sridhar Acharyulu observed.

The Commission was hearing an appeal filed by Mr. Ashutosh Bansal, who had sought a copy of the chargesheet issued against Nathuram Godse, his statement before the Court, and the details of the persons and the organisation responsible for Gandhi’s assassination. The question now posed before the CIC was whether disclosure of Godse’s statement be denied, on the ground that it could cause Hindu-Muslim enmity.

The Commission however ruled that Section 8(1) (a) did not apply to the case at hand, and observed, “The Commission also directs the NAI to place the index of records available now with them about assassination of Mahatma Gandhi on their official website along with the procedure to gain access, and recommends development of an archive to include present digitized records and collect as many as possible from various sources to be part of their disclosures under Section 4(1) (b). This will effectively reduce the number of the RTI applications on Gandhi assassination related issues.”

Read the order here.

Courtesy: LiveLaw.
 

The post Post all details of Gandhi’s assassination on wesbite of National Archives: CIC order appeared first on SabrangIndia.