While the office of the Chief Justice of India is now a public authority under the Right to Information (RTI) Act, thanks to a historic Supreme Court (SC) order last week, the 108-page judgement also throws up some interesting analysis of this law, particularly by way of clearing up any misconception or interpretation that private organisations selectively come under RTI.
In no uncertain term, the five-member constitution bench of the SC clarified that `information’ not presently available or held by the public authority but which can be accessed by the public authority from a private body under any other law for the time being in force’ is also public information. Thus, all private Organisations come within the ambit of the RTI Act. This is indeed great news for citizens whose RTI requisition to private organisations is often stonewalled by public information officers (PIOs) and appellate authority (AA) under the pretext that they are not `substantially funded.’ Even information commissioners sometimes favour the private organisations.
The judges also referred to Section 2 (j) which states: (j)“right to information” means the right to information accessible under this Act, which is held by or under the control of any public authority, stressing on the word `control.’
The order scripts thus:
“…the words ‘under the control of any public authority’ as per their natural meaning would mean the right and power of the public authority to get access to the information. It refers to dominion over the information or the right to any material, document etc. The words ‘under the control of any public authority’ would include within their ambit and authority’ information relating to a private body which can be accessed by a public authority under any other law for the time being in force, subject to the pre-imposed conditions and restrictions as applicable to access the information.’’
“Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private organisations. Rather, clause (f) to Section 2 upholds and accepts the said position when it uses the expression – 'which can be accessed,' that is the public authority should be in a position and be entitled to ask for the said information.’’
“In Khanapuram Gandaiah vs Administrative Officer and Others 14, this Court on examining the definition in clause 2(f) of the RTI Act had held as under:.. “that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. ...’’
Venkatesh Nayak, who has penned his analysis of this SC order says, “the Constitution Bench’s conjunctive interpretation of the term ‘information’ and ‘right to information’ which is ‘under the control’ of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority. It should also furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.’’
“The Department of Personnel and Training (DoPT), which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, first appellate authorities and Information Commissions. This will go a long way in shedding old practices of denying access to information on such frivolous grounds,’’ Mr Nayak adds.
Portions of Section 2 referred to by the Constitution Bench:
16. The terms ‘information’, ‘record’ and ‘right to information’ have been defined under clauses (f), (i) and (j) to Section 2 of the RTI Act, which are reproduced below:
“(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
(i) "record" includes—
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device;
(j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”