Recent Cases 2017-18 on RTI Act,2005

-Aakash Raj Chauhan, BA.LLB (HONS.)

RMLNLU, Lucknow,

1. UPSC Marks can’t be Disclosed Mechanically under RTI

Case name: Union Public Service Commission Etc. v. Angesh Kumar & ors.
(Supreme Court, 2018)

In this recent case, the Supreme Court has made following observations in context of
disclosure of civil service examinations marks under the RTI:

 That weighing the need for transparency and accountability on the one hand and
requirement of optimum use of fiscal resources and confidentiality of sensitive
information on the other, information sought with regard to marks in Civil
Services Exam cannot be directed to be furnished mechanically.
 That furnishing raw marks will cause problems which would not be in public
interest. However, if a case is made out where the Court finds that public
interest requires furnishing of information, the Court is certainly entitled to so
require in a given fact situation.
 That if rules or practice so require, certainly such rule or practice can be
enforced.

2. CIC: Pension Payment can’t be Denied for Want of Aadhaar

Card

Case name: N N Dhumane v. PIO, Department of Posts

Date of Judgement: February 27, 2018

The issue of linkage of Aadhaar for basic services and welfare Schemes and subsequent
denial for lack of Aadhaar seems to intensifying with the recent case being withholding of
Pension for want of Aadhaar. The order of CIC in the instant case is a remarkable one as
it condemns the act of Department of Posts in denying payment of pension for want of
Aadhaar Card. Other key observation made by the CIC in the case was that payment of
pension is a matter of life or liberty under the RTI Act and applications relating to
payment of Pension shall be disposed by the Public Information Officers within 48 hours.

Brief Facts of case: In this case, the RTI applicant had filed two applications wherein
she stated that her pension for the month of March, 2017 was withheld for the want of
Aadhaar. In this context, she requested the concerned Department to furnish copy of
order vide which Aadhaar card was being made mandatory for payment of pension.

The CPIO (Central Public Information Officer) in the case however did not render a
satisfactory answer to her application and hence she preferred an appeal wherein she
alleged that the pension of only 55 pensioners were withheld and that there was no order
on the subject to link up Aadhaar card to Pension account. The action of SR Post Master
Ahmednagar to withhold the pension of 55 pensioners contravened the mandatory
constitutional provisions of affecting payment of pension on first of each month.

Central Information Commissioner’s (CIC) Order

The CIC in the case took a strong note of the act of Department of Posts in withholding
the claimant’s pension and opined that the Department had no authority to link up
the Aadhaar Card to her pension account all of sudden without any notice and
stop payment for that reason; she suffered agony, various losses due to delay, could
not lead normal life as pensioner etc.

Pension related information to be rendered within 48 hours- That the case

demonstrated a matter of life and living of 55 pensioners who were totally dependent
upon the paltry amount of pension. Though it is a small amount even a day’s delay in
payment might disturb the routine life of all or some of them. That is why
the information relating to payment pension to retired persons should be
considered and categorized as the information concerning the life and should
have been responded within 48 hours.

Payment of Pension is a question of life or liberty- That the public authority has a
duty under contract as per Contract Act, Consumer Protection Act, Trusts Act and also
under Right to Information Act to pay the pension in time, rectify the problem of delay
promptly or give information immediately to the appellant or pensioners suffering like
her.

The CIC in the case made a scathing attack on concerned CPIO’s act of replying on the
30thday from the date of RTI application and sitting over the file for 29 days doing
nothing, just to make use of the facilitative provision. CIC further stated that the CPIO
did not bother to examine whether this information could fall under category
of “concerning life or liberty”. Here it would be relevant to mention that Section 7 of
the Right to Information Act, 2005 provides that where the information sought for
concerns the life or liberty of a person, the same shall be provided within forty-eight
hours of the receipt of the request.

Linking of Aadhaar with Pension Payment- That the Postal authorities have a
statutory duty to disclose full facts and circumstances along with reasons why they are
linking Aadhaar with pension payment, why should they stop payment of pensions for the
sake of such linking, why did they not provide for sufficient advanced information to the
pensioners, whether such linking order has legal sanctity to be implemented without any
advance notice, etc under Section 4(1)(c) and (d) of the RTI Act.

The CIC also made reference to Supreme Court’s judgment in the case of Justice K S
Puttaswamy (Retd) and another v Union of India (right to privacy case), the
Court held that citizens cannot be forced to produce his Aadhaar to avail themselves of
government welfare schemes and benefits.

The CIC in the with reference to a media report enumerating six categories of schemes
mentioned in previous orders i.e. public distribution scheme (PDS), LPG distribution
scheme, the Mahatma Gandhi National Rural Employment Guarantee Scheme
(MGNREGS), National Social Assistance Programme (Old age pensions, widow pensions,
disability pensions), the Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’
Provident Fund Organisation (EPFO).

The CIC held that because of the above orders of the Supreme Court against linking the
aadhaar with more than six categories mentioned, the Postal authorities in the instant
case were expected to explain under what legal authority they have directed the
post offices to link their employer’s pension payments with the aadhaar?

In view of the aforesaid circumstances of the case and observations, the Commission
directed the CPIO to show-cause why maximum penalty should not be imposed
upon him for above reasons. The public authority shall explain why it should not be
ordered to pay compensation to the appellant for causing delay, loss and harassment her
without giving information sought.

The Commission also directed the respondent authority to provide certified copies of
circulars by which pension of 55 employees was delayed referring to Aadhaar before
23.03.2018.

3. CIC: RTI Information cannot be Denied for Lack of Aadhaar

Card

Case name: Vishwas Bhamburkar v. PIO, Housing & Urban Development

Corporation Ltd. (CIC, 2018)

In this recent case VishwasBhamburkar v. PIO, Housing & Urban Development

Corporation Ltd. taken up by the Chief Information Commission, Munirka, New Delhi
(CIC), the CIC was confronted with two centric issues under the Right to Information Act,
2005. One pertaining to word limit in RTI application and the other relating to denial
of information on lack of producing identity proof by the Applicant.

Brief Facts: In the case, the Applicant apprehended embezzlement of funds of HUDCO
and therefore filed RTI application seeking information about the amounts spent from the
coffers of HUDCO on gifts for years 2013 to 2016, renovation of official residence of its
Chairman and Managing Director, electricity bills of official residence. The CPIO (Central
Public Information Officer) in the case stated that information could not be furnished by
them as the Applicant failed to provide proof of identity and proof of address by
producing Aadhar Card, Voter’s ID Card or Passport as proof of citizenship.

CIC’s observations and Decision

The CIC in the case condemned the CPIO’s act in not furnishing information to the
Applicant and made the following observations in the case:

Denial of Information due to Lack of Identity Proof/Aadhar card

  That the impugned application was not hit by any exception under the Right to Information
Act. That the CPIO in the case raised suspicion about the citizenship of the applicant without
explaining why he was suspecting. There was nothing to justify his suspicion. That the CPIO
failed to justify the denial of information, as he could not site any clause of exception
under Section 8 (exemption from disclosure of information) or Section 9 (grounds for
rejection to access in certain cases).
 That taking action against a complaint without bearing an identifiable name is different from
objecting to the RTI application, which has been properly filed with name, address and
identity.
 The CIC in the aforesaid context also made reference to Section 6(2) of RTI Act which
says 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. With reference to the facts of the present case the CIC observed that the
Applicant gave address to which information could have been dispatched. As per law he
need not provide any confirmation for his address, name or citizenship.
 That in the instant case not only within the mandatory period of 30 days, but even after that
information was not given until the CIC ordered. Thus, deemed refusal of RTI application
was proved in this case which would attract the penal proceedings.
 That the CPIO can deny information only under Section 8 and Section 9 of RTI Act. He
cannot invent new grounds for denial like lack of Aadhar Card, Voter Id Card, and Passport
etc.
 That the onus to prove denial of request was on the CPIO as per Section 19(5) of RTI Act. In
the instant case, the CPIO failed to prove that the Applicant was not a citizen as ground for
denial.
 That the Right to Information Act, nowhere prohibited ‘person’ from securing the information,
or authorized the PIO to demand the proof of citizenship. The RTI Act, 2005 uses expression
of Citizen in Section 3, but under Section 6 ((Request for obtaining information) the
expression ‘person’ is used. A ‘person’ cannot be denied information on the pretext that
he did not produce proof of citizenship.

Can Information be denied if RTI Application is beyond 500 words- Rule 3 of Right
to Information Rules, 2012 stated that an RTI application under Section 6 shall be
accompanied by a fee of rupees ten and shall ordinarily not contain more than five
hundred words…Provided that no application shall be rejected only on the ground that it
contains more than five hundred words.

That an RTI application cannot be rejected on this ground (of words limit) alone.
What should PIO do when a lengthy RTI application with more than 500 words?

The CIC stated that in such cases following are the alternatives:

1. Examine 500 words to find what applicant substantially wants.

2. Provide reasonable assistance to applicant to focus on a particular aspect as per his
requirement, reminding him of 500 words limit.

 Give part information and ask him to point out what else he needs reminding him of 500
words limit.

In view of the aforesaid facts and circumstances and denial of request to provide
information without any justifiable reason, the CIC imposed a penalty of Rs. 25,000/- on
the concerned CPIO.

One of the intrinsic observations made by the CIC in the case was that Denial of
information for lack of Aadhaar card will be a serious breach of right, which was
guaranteed by the RTI Act and also amounts to harassment of the applicant.

4. Delhi HC Rejects CIC Order Holding Ministers Public

Authorities under RTI Act

Case name: Union of India and Anr. v. Central Information Commission and Anr.
(CIC, 2017)

The Petitioner in the case challenged CIC’s (Central Information Commission) order,
whereby the CIC had declared “the Ministers in the Union Government and all State
Governments as ‘public authorities’ under Section 2(h) of Right to Information Act,
2005.

Delhi High Court’s order and observation– The Delhi High Court set aside CIC’s order in
the case and opined that the directions issued by the CIC in the case was beyond the
scope of CIC and in the facts and circumstances of the case, there was no occasion for
the CIC to enter upon the question as to whether a Minister is a “public authority” under
Section 2(h) of the Ac

5. No RTI Query Can Lie With Regard to Judicial Decisions

The Registrar, Supreme Court of India v. R S Misra

Date of Judgment: November 21, 2017

In the instant case, the Delhi High Court has rendered an in-depth analysis of RTI
applications against any decision passed by the Supreme Court. The Court has also ruled
that RTI Act does not prevail over the Supreme Court Rules (SCR).

Facts– In this case, the Respondent was holding the post of Postgraduate Teacher and
his services were terminated on allegations of sexual harassment against him. The
Respondent challenged his termination before the Central Administrative Tribunal
thereafter before the High Court and Supreme Court. However, the Respondent’s
challenge was dismissed by all the Forums. Thereafter, the Respondent in 2010 sought
information by way of an RTI (Right to Information) application as to why his petition
before the Supreme Court was dismissed and in the application, the Respondent stated
that the said SLP (Special Leave Petition) had been decided against the principles of
natural justice.

The instant writ petition has been preferred by the Registrar of Supreme Court against
the decision of the Central Information Commission (CIC), wherein the Commission CPIO
(Central Public Information Officer) to provide information

Petitioner’s submission– That access to documents filed on the judicial side can only
be obtained through the mechanism of Supreme Court Rules (for short “SCR”) and that
the provisions of the RTI Act cannot override the SCR.

Respondent’s reply– That as the SCR and the Right to Information Act, 2005 co-exist,
it is the citizens’ prerogative to choose under which mechanism he would like to obtain
information. She clarified that as both the laws, i.e. the RTI Act and SCR were consistent,
the applicant had the prerogative of choosing the law under which he wanted to obtain
information.

Bench’s Verdict

The Delhi High Court in the case took a strong note of the Respondent’s RTI application
seeking information relating to Supreme Court’s decision in the case. The Court in this
context made the following observations:
 1. That where there is no information to be given or applicant is seeking non-existent
information or where the query is inherently absurd or bordering on contempt, the CIC
should not have directed the petitioner to supply information.
2. That a Judge speaks through his judgments or orders passed by him. A Judge cannot be
expected to give reasons other than those that have been enumerated in the judgment or
order. If any party feels aggrieved by the order/judgment passed by a Judge, the remedy
available to such a party is to challenge the same by a legally permissible mode.
3. That no litigant can be allowed to seek information through an RTI application or a letter on
the administrative side as to why and for what reasons the Judge had come to a particular
decision or conclusion.
4. That there is no inherent inconsistency between SCR and RTI Act as both enable the third
party to obtain the information on showing a reasonable cause for the same. Since both RTI
Act and the SCR aim at dissemination of information, the RTI Act does not prevail over the
SCR.
5. That if any information can be accessed through the mechanism provided under another
statute, then the provisions of the RTI Act cannot be resorted to. Neither the Preamble of the
RTI Act nor does any other provision of the Act disclose the purport of the RTI Act to provide
additional mode for accessing information with the public authorities which has already
formulated rules and schemes for making the said information available.
6. That in the present case, maintaining two parallel machinery: one under SCR and the other
under the RTI Act, would clearly lead to duplication of work and unnecessary expenditure, in
turn leading to clear wastage of human resources as well as public funds.
7. That dissemination of information under the SCR is a part of judicial function, exercise of
which cannot be taken away by any statute. Further the SCR would be applicable with
regard to the judicial functioning of the Supreme Court whereas for the administrative
functioning of the Supreme Court, the RTI Act would be applicable.
8. That the legislature is not competent to take away the judicial powers of the Court by
statutory prohibition. The legislature cannot make law to deprive the courts of their legitimate
judicial functions conferred under the procedure established.
9. That the RTI Act does not provide for an appeal against a Supreme Court judgment/order
that has attained finality. That queries under the RTI Act would be maintainable to elicit
information like how many leaves a Hon’ble Judge takes or with regard to administrative
decision a Judge takes. But no query can shall lie with regard to a judicial decision/function.

6. Two Years Wait for RTI Response is Flagrant Violation of RTI

Act (CIC, 2017)
In this case of October 2017, the CIC took a strong note of delay in RTI response by the
concerned Department. The CIC remarked as under:

Commission takes grave exception to the flagrant violation of the RTI Act by the CPIOs of
Cantonment Board, Jabalpur and the ignorance of the present CPIO about the pending
RTI Applications from the tenure of her predecessor. It is incumbent upon the present
CPIO to deal with all such pending RTI Applications and not wait for the Commission to
issue notice of hearing to provide reply to RTI Applicants.

7. Information can’t be denied on the Ground that File is missing

Case name: Shahzad Singh v. Department of Posts (CIC, 2018)

In the case, the CIC noted that the Respondent Department’s claim that concerned files
were are not traceable proves the fact they had it in their possession, which binds them
to provide the information by searching the same. The Commission also observed that
frequent reference to ‘missing files’ as an excuse to deny the information is a major
threat to transparency, accountability and also major reason for violation of Right to
Information Act, 2005. Millions of RTI applications might have been rejected by PIOs on
this ground during the last 11 years of RTI regime.

With “missing files excuse” being around, it will be futile to talk about implementation
of Right to Information Act, 2005. The claim of ‘missing files’ indicates possibility of
deliberate destruction of records to hide the corruption, fraud or immoral practices of
public servants, which is a crime under Indian Penal Code.

Other cases on the issue:

Om Prakash v. GNCTD– In the case, CIC noted that prima facie, public authority cannot
deny the right of the appellant to get an alternative plot, by putting forward an excuse of
missing the file. The defense of missing file cannot be accepted even under the Right to
Information Act, 2005. The CIC also noted that if the file is really not traceable, it reflects
the inefficient and pathetic management of files by the Public Authority. If the file could
not be traced in spite of best efforts, it is the duty of the respondent authority to
reconstruct the file or develop a mechanism to address the issue raised by the appellant.
Union of India vs. Vishwas Bhamburkar – In this case, the Delhi High Court regarding the
plea of the Respondent authority of record being not traceable, has observed that Right
to Information Act, 2005 is a progressive legislation aimed at providing the citizens
access to the information which before the said Act came into force could not be claimed
as a matter of right.

It was also opined that even in the case where it was found that the desired information
though available in the record of the government at some point of time, could not be
traced despite best efforts made in this regard, the department concerned must
necessarily fix the responsibility for the loss of the record and take appropriate
departmental action against the officers/officials responsible for loss of the record.

Unless such a course of action is adopted, it would be possible for any department/office,
to deny the information which otherwise is not exempted from disclosure, wherever said
department/office finds it inconvenient to bring such information into public domain, and
that in turn, would necessarily defeat the very objective behind enactment of the Right to
Information Act, 2005.