Delay in Disposal of Second Appeals under the Right to Information Act, 2005; Eroding the Spirit of a Beneficial Legislation

Background

The right to free speech and expression has always been regarded as a basic human right emanating from personal liberty and a necessary corollary to this right is the “right to know”. In a democratic setup like ours, this right assumes an even greater significance as “knowledge will forever govern the ignorance and people who mean to be their own Governors must arm themselves with the power which knowledge gives”.[1] The fundamental rights in the Indian Constitution[2] are largely reflections of the human rights recognised in the Universal Declaration of Human Rights, 1948, Article 19[3] of which reads as under:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

On the international front, the International Covenant on Civil and Political Rights, 1966 recognised the right to information in Article 19, the relevant portion of which is reproduced below:

Everyone shall have the right to hold opinions without interference.
Everyone shall have a right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice….

Similarly, The Commonwealth Expert Group Meeting on “Right to Know and the Promotion of Democracy and Development”, Marlborough House, London dated 1-3-1999 submitted the following principles and guidelines to the Commonwealth Heads of Government at their summit in South Africa held from 12-11-1999 to 15-11-1999 for their consideration and adoption:

The principles suggested that:

Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the State, as well as any Government-owned corporation and any other body carrying out public functions.
The legislation should contain a presumption in favour of maximum disclosure.
The right of access may be subject to only such exemptions, which are narrowly drawn, permitting Government to withhold information only when disclosure would harm essential interests such as national defence and security, law enforcement, individual privacy or commercial confidentiality: provided that withholding the information is not against public interest.
Decisions under the legislation should be subject to independent review capable of ensuring compliance.

The guidelines suggested that:

Governments should enact freedom of information legislation containing appropriate administrative measures for its implementation.
Governments should permit any individual to obtain information promptly and at low or no cost.
Legislation should provide for an independent review of decisions capable of providing an effective remedy in any case of delay or denial.
Governments should maintain and preserve records.
Governments should promote a culture of openness, publicly disseminating information relating to the exercise of their functions and the information held by them.

Whereas, in India, the Report of National Commission to Review the Working of the Constitution (NCRWC) under the Chairmanship of Justice M.N. Venkatachaliah, dated 31-3-2002[4] in Para 6.10.1 stated that major assumption behind new style of governance is the citizen’s access to information. Much of the common man’s distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes…. Right to information should be guaranteed and needs to be given real substance. It went on to suggest that Article 19(1)(a) of the Constitution of India may be amended as:

All citizens shall have the right—

(a) to freedom of speech and expression which shall include the freedom of press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas.[5]

On the judicial front the Supreme Court of India in State of U.P. v. Raj Narain[6], held as under:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know very public act, everything that is done in a public way, by their functionaries. They are entitled to know the particulars of every public transaction and all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security….

In S.P. Gupta v. Union of India[7], it was held that the citizens’ right to know the facts, the true facts, about the administration of the country, is, thus, one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world.

Also, in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal[8], the Supreme Court held as under:

… True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchy organisations….

Therefore, it is safe to say that the early foundations of the right to information act were laid down by the above judicial pronouncements in line with the international conventions. Even though States such as Rajasthan, Tamil Nadu, Goa, Karnataka, Assam and Delhi had enacted legislations furthering the objects of right to information, it was not before the long battles fought by citizen groups lead by the Mazdoor Kisan Shakti Sangathan that a nationwide demand for a law guaranteeing right to information was agitated. The movement catered huge support from social activists, professionals and persons in autocracy, politics and media who were committed to the aim of a transparent and accountable governance.

Finally, in 2002, the Government of India enacted the Freedom of Information Act, 2002[9]. However, with the passage of time, it was found that the said legislation could not serve the requirements of the nation and in order to ensure greater efficiency and more effective access to information, it was thought that the said Act must be made progressive and realistic. The Central Government constituted the National Advisory Committee and on the recommendations of the Committee, it was decided that a new legislation shall be enacted incorporating the recommendations and the existing one be repealed. Thus, the Right to Information Act, 2005[10] came to be enacted on 12-10-2005.

Introduction

The Right to Information Act, 2005 is segregated into six chapters and two Schedules. Chapter I lays down the short title, extent, commencement, and definition clauses, Chapter II deals with the right to information framework, Chapters III and IV lay down the mechanics of the Information Commissions, Chapter V deals with the powers and functions of the Information Commissions and provides provisions for appeals, and penalties, Chapter VI incorporates miscellaneous provisions. The First Schedule prescribes the form of oath or affirmation to be made by Chief Information Commissioner (CIC), State Information Commissioner (SIC), and other Information Commissioners (ICs). The Second Schedule contains the Intelligence and Security Organisations established by the Central Government which are beyond the jurisdiction of the Act.

The Preamble to the Act lays down its object. It aims at setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commission and for the matters connected therewith or incidental thereto.

In ICAI v. Shaunak H. Satya[11], it was held as under:

… object of the RTI Act is to harmonise the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand….

Section 2(h) of the Act[12] lays down the definition of “public authorities” under the Act. In Thalappalam Service Coop. Bank Ltd. v. State of Kerala[13], the Supreme Court held as under:

The legislature, in its wisdom, while defining the expression “public authority” under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions “means” and “includes”. When a word is defined to “mean” something, the definition is prima facie restrictive and where the word is defined to “include” some other thing, the definition is prima facie extensive. But when both the expressions “means” and “includes” are used, the categories mentioned there would exhaust themselves. The meanings of the expressions “means” and “includes” have been explained by this Court in DDA v. Bhola Nath Sharma[14]. When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

Right to information, subject to the other provisions of the Act has been recognised as a statutory right under Section 3[15], and to achieve this object, the Act lays a complete code under Sections 4[16], 5[17], 6[18], and 7[19]. On the other hand, in order to strike a balance between public interest and other individual or State interests, the Act prescribes certain categories of exemptions under Sections 8[20], 9[21], 10[22], and 11[23].

In order to seek effective enforcement of the right to information and to provide redressal machinery, the Act, under Sections 12[24] and 15[25] establishes the Central Information Commission and the State Information Commissions. These Information Commissions are quasi-judicial bodies having the trappings of courts and derive their authority from Sections 18[26], 19[27], and 20[28] of the Act. Under Section 18, the Information Commissions are duty-bound to receive and inquire into complaints made on any of the grounds stated in clauses (a) to (f) of sub-section (1) of Section 18.

The appellate mechanism

Section 19(1) of the Act, provides a right of appeal to an officer senior in rank to the Public Information Officer (PIO) against whose decision or inaction the appeal is being preferred. The said appeal may be preferred within thirty days of receipt of the decision of the Central Public Information Officer (CPIO) or on account of non-receipt of decision from the CPIO within the period prescribed under sub-section (1) or clause (a) of sub-section (3) of Section 7. In cases where the appellant is prevented from making an appeal due to sufficient cause, the first appellate authority concerned may condone the delay upon satisfaction in exercise of powers under the proviso to Section 19(1).

Sub-section (3) of Section 19, entails a right of second appeal to the Information Commissions against the decision of the first appellate authority. The said appeal is said to lie within ninety days from the date on which the decision was received or ought to have been made, however, on sufficient cause being shown towards the satisfaction of the Information Commission concerned, the Information Commission in exercise of power under the proviso of Section 19(3) of the Act may condone the delay and admit the appeal even after expiry of the said statutory period.

The Act, in order to achieve the objects of transparency and equity, creates a reverse burden of proof on the PIO. According to Section 19(5), the burden of proving that denial of a request was justified shall be on the PIO concerned.

In order to provide an effective and expeditious remedy and encourage access to information and free flow of the same, the Act under Section 19(6) mandates that appeal preferred under sub-section (1) or sub-section (2) of Section 19 shall be disposed of within thirty days of the receipt of the appeal or for reasons to be recorded in writing within an extended period not exceeding 45 days from the date of filing of the appeal.

The drawbacks

Even though the Act, attempts to act as a complete code not only to recognise right to information as a statutory right but also to ensure its effective realisation by establishing a redressal system, we see that the absence of an outer time-limit for the disposal of complaints under Section 18 and second appeals under Section 19 have reduced the efficacy of the said mechanism.

The Central Information Commission in reply dated 17-9-2021 in RTI No. CICOM/R/E/21/00794, has stated that as of date, cases registered in May 2019 (some left out cases)/January-February 2020 were being listed for hearing.

The RTI Act was enacted to ensure free availability and easy access to information with a speedy redressal to the general public. However, it is evident from the above RTI reply that, like any other, judicial institution or quasi-judicial body, pendency has started to mount on the Central Information Commission. This very fact, goes to the extent of hitting at the root of the aim and object of enacting such legislation in the first place.

The right of expeditious disposal of first appeal under the Act clearly shows the intent of the legislature to establish an effective and time-bound remedy and not leave the RTI applicants in long battles of litigation. This touch of speedy redressal is lost during second appeals and complaints under the Act. Another displeasing side of this is that the Information Commissions after scrutiny admit the complaint or second appeals but the files are not given any listing dates for long.

The High Courts have stepped up to the occasion and have given their interpretations for expeditious disposals of second appeals and remedy the difficulty faced by the appellants. The High Court of Calcutta in Akhil Kumar Roy v. W.B. Information Commission[29] has held as under:

A second appeal arises from a decision in a first appeal under Section 19(1), and a first appeal arises from a decision or a failure to give a decision under Section 7. The sparkle of a strong strand of speed woven though the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open-ended second appeal scheme is bound to make the Section 6 request go totally adrift generating a multitier avoidable and unwarranted offshoot court proceedings as this case.

In my opinion, keeping in mind the respective maximum periods fixed for deciding a first appeal under Section 19(1) and disposal of a request for obtaining information under Section 7, the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof. In view of the scheme of the statute, I think this period should be considered the reasonable period for deciding a second appeal.

The High Court of Karnataka in Jayaprakash Reddy v. Central Information Commission[30] has held as under:

It is indeed to be noticed that no time-limit is prescribed to decide a second appeal. Therefore, it would have to be interpreted that when no time is prescribed, it would follow that it ought to be decided within a reasonable time. Since there is a time-limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal.
Consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing.

The High Court of Judicature at Allahabad in Mukul Agrawal v. State of U.P.[31], held as under:

Under the statute, appellate authorities are supposed to decide the matter expeditiously, but it appears that authorities themselves are fixing dates of several months which is not the intention of legislature since the statute has been framed for public welfare and encouraging transparency. Therefore, authorities under Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”) must decide the matters expeditiously.

Similarly, the High Court in Skand Bajpai v. Central Information Commission[32] directed the Commission to decide the second appeal of the petitioner within ninety days of producing a copy of the said order since the appeal was pending for a year.

Though, the interference by the High Courts as mentioned above was much warranted, the same could not become a regular practice, for it shall be extremely detrimental to the RTI applicants for being engaging in multiple legal pursuits and this shall also increase the burden on the already burdened Indian judiciary. This practice shall also defeat Parliament’s intent behind creating the RTI Act in the first place.

Failure to provide a decision within the statutory period by the PIO or the first appellate authority is itself a ground to pursue an appeal, as such it is evident that the legislature intended swift remedy. Thus, failure to dispose of second appeals and complaints within a reasonable time by the Information Commissions and mounting of huge backlogs is clearly against the purpose for creating these Commissions. This runs contrary to the recommendations of the National Advisory Council, based on which the 2002 Act was repealed and 2005 Act was enacted.

The Supreme Court of India in Kusum Ingots & Alloys Ltd. v. Union of India[33] held as under:

…an order, whether interim or final, passed on a writ petition, keeping in view Art. 226(2)[34], will have effect throughout the territory of India, subject of course to applicability of the Act.

Since the RTI Act is applicable to the whole of India, the judgments rendered by the High Courts as stated above must apply nationwide, and hence, the second appellate authorities must dispose of the appeals within a reasonable time in line with the letter and spirit of the Act, failing which there may occur a situation whereby the time a second appeal reached its conclusion, the information may no longer be required. This if adopted as a defence mechanism, though unethical, shall render the Act a mere paper legislation.

*Final year student, BA LLB, New Law College, Bharati Vidyapeeth Deemed to be University, Pune. Author can be reached at bajpaiskand@gmail.com.

[1]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[2]Constitution of India.

[3]Universal Declaration of Human Rights, 1948, Art. 19.

[4]Report of the National Commission to Review the Working of the Constitution.

[5]Report of the National Commission to Review the Working of the Constitution, Para 3.8.1.

[6](1975) 4 SCC 428, 453.

[7]1981 Supp SCC 87.

[8](1995) 2 SCC 161, 229.

[9]Freedom of Information Act, 2002.

[10]Right to Information Act, 2005.

[11](2011) 8 SCC781, 797.