India: Study Sees Regressive Court Interpretations of the RTI Act

28 June 2017

This summary is from a 321-page study of the orders pertaining to the Right to Information Act issued by the Supreme Court of India, various high courts and information commissions. Now published as a book, “Tilting the Balance of Power Adjudicating the RTI Act for the Oppressed and the Marginalised,” was coordinated by Amrita Johri, Anjali Bhardwaj, and Shekhar Singh. This segment is a substantial portion of the preamble to their work and is reprinted with permission. Download electronic version from Order book via Amazon. For book shops, libraries or universities, the report can be ordered from Rajpal & Sons, 1590, Madarsa Road, Kashmere Gate, Delhi 110 006,, Tel: +91 (11) 2386 9812 / 2386 5483, Fax: +91 (11) 23867791

As we started forming an understanding of the body of judicial and commission orders, we found evidence in support of some common apprehensions about the RTI adjudicatory process. For example, across the board we found a hesitation in imposing legally mandatory penalties for clear and established violations of the RTI Act. This was rampant among the information commissioners, but not totally absent among the higher judiciary. We also found huge delays among information commissions, often without good reasons.

Proactive disclosure, we found, continued to be a weak area and the commissions continued to look the other way. Equally disturbing was the focus on proactive disclosure purely through the web, even when nearly three fourths of the Indian population, the one that most desperately needs access to information, has no internet connection. Of significance was our realisation that despite the RTI Act mandating that public authorities must proactively publish all relevant facts while formulating important policies or announcing the decisions which affect public, and proactively provide reasons for all administrative or quasijudicial decisions, public authorities were not following this dictum. In fact, even when specifically asked for, information regarding why certain decisions were taken was hard to come by, made worse by an incomprehensible tendency, among many PIOs and information commissioners, to maintain that under the RTI Act you cannot ask for reasons or for an answer to the question “why?”

We also confirmed that there was a fast-growing tendency among PIOs to illegally “transfer” RTI applications to other PIOs in the same public authority, thereby not only converting a single application into a dozen or more, but also starting an endless run-around. Though there are progressive judicial orders holding such a practice to be illegal, most information commissions do not seem to have taken note of this. Similarly, we discovered an increasing tendency among commissions, especially the Central Information Commission, to revert complaints and appeals to first appellate authorities and even to PIOs, totally in disregard to the letter and spirit of the RTI Act.

Ignoring Public-Interest Override Power

Perhaps the most disturbing of the various regressive tendencies observed among the adjudicators was the propensity to ignore legally mandated, and universally applicable, public-interest overrides on exemptions to the disclosure of information. Most orders (commissions and the judiciary) did not even mention this, leave alone apply it and, in some cases, it appeared as if the adjudicators were unaware of the relevant provisions of the law.

Similarly, the legally mandated and universally applicable provision that information that cannot be denied to Parliament or to a legislative assembly, cannot be denied to an RTI applicant was mostly ignored and rarely mentioned.

The data gathered for this study confirmed that adjudicators were by and large not insisting on the legally mandated provision of redacting exempt information from documents and records, and disclosing the remaining bits. In fact, is some orders, the presence of exempt information in a portion of the record was explicitly cited as the basis for withholding the disclosure of the entire record.

There was also evidence that most adjudicators were ignoring the legal requirement for PAs to provide information free of charge, where a delay had occurred. Others were prescribing arbitrary limits to the number of pages that need be given free, in direct violation of the law.

Balance of Proof Misplaced

A widely prevalent lapse was the unwillingness to put, as required by law, the onus of proof and justification on the PIO, both in appeals and in complaints. This often led to adjudicatory proceedings and hearings relating to the RTI Act following the traditional path of the applicant being called upon to prove that the information being asked for was not exempt from disclosure, or that the RTI Act was violated, and without any acceptable grounds, by the PIO.

While analysing the data, and writing the report, we also came across a large number of critical issues and debates that need an urgent and definitive resolution. These include the definition of “substantially iii financed” and of “fiduciary”, the first not yet definitively defined, and the second having multiple and often mutually contradictory definitions in even Supreme Court orders. There is also a need to define “confidential” in the context of the RTI Act, considering that the RTI Act mandates its own sets of “exclusions” to the disclosure of information, and overrides all other laws and instruments.

Another concept needing an urgent definition is “disproportionate diversion of resources”. This has become an easy-to-invoke and a rarely-questioned exemption to deny information, even though such a denial is not envisioned under the law. Perhaps it’s time that a norm was developed to determine what was a disproportionate diversion.

There were certain stands taken by the adjudicators which, though in consonance with their powers as adjudicators and as interpreters of the law, need a wider public debate. These include the interpretation of privacy (and fiduciary) to exempt most or all information about people’s assets (public servants and others) and about the evaluation of professional performance of public servants. A similar debate needs to be initiated about the exemption emanating out of a risk to life and physical well-being, where “life” has been defined in a very wide sense to cover even reputation, and the identity of critical functionaries is sought to be forever withheld from the public, as it might threaten their well-being and sully their reputation.

Positive Discoveries

In looking at the judgements and analysing them for this report, we also made some exciting discoveries.

Perhaps the most significant was that the Supreme Court has definitively and repeatedly held that it is well settled that once a statute gives a power to an authority to do something, then it includes the implied power to use all reasonable means to achieve that objective. This implies that the sense of powerlessness that the information commissioners often feel is misconceived. Given the fact that the RTI Act mandates them to require public authorities to take any steps that may be necessary to secure compliance with the provisions of the Act, the various Supreme Court orders assure them of the “implied power” to reasonably make all this happen.

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