Citizen has RTI on a par with Legislator

The Right to Information (RTI) Act has made every citizen almost equivalent to an elected public representative as far as seeking information is concerned. If an RTI applicant asks to know about the information which the PIO claims to affect the security considerations of the nation invoking Section 8(1)(a), it has to be examined what will be the position when a legislator asks for the same information.

Section 8(2) manifests the objective of law-makers to give the RTI Act an overriding effect compared to the Official Secrets Act or any other law or any other exemption, subject to public interest. Each law that provided exceptions including Section 8(1) of RTI Act, and Official Secrets Act, 1923, need to be examined by the public authority comparing public interest vis-a-vis protected interests before deciding about sharing

The information empowers. The Right to Information (RTI) Act has made every citizen almost equivalent to an elected public representative as far as seeking information is concerned. One of the key provisions of the RTI Act, 2005, is in Section 8(1): ‘which cannot be denied to the Parliament or a State legislature, shall not be denied to any person.” This is a general exemption to exceptions listed in Section 8(1).

The Bombay High Court in Surup Singh Naik case considered the question whether the proviso after Section 8(1)(j) applies in its entirety to Section 8(1)(a) to 8(1) or only to Section 8(1)(j). In Panaji Municipal Council v. Devidas J S Kakodkar and Anr. 2001 (Supp.2) Bom. C.R.544, the Single Judge restricted a similar proviso in Goa Right to Information Act, 1997, which was only to Sub-Section 5(e) and not to Section 5(a), (b), (c) and (d) or otherwise, according to the learned Judge the Section was liable to be struck down as being violative of the Article 21 of the Constitution of India.

In Surup Singh Naik case, the High Court held: “Suffice it to say that in the Central Act, the proviso has been placed after Section 8(1)(j) and in that context it would have to be so interpreted. So reading the proviso applies only to Section 8(1)(j) and not to the other sub-sections of that Section.” (Surup Singh Hrya Naik vs State Of Maharashtra, AIR 2007 Bom 121). It appears that this paragraphing and discussion over this proviso before Parliamentary Standing Committee was not brought before the Bombay High Court in this case.

Thus the text and its placement with, paragraphing, indents and punctuation is very important for understanding and interpreting the real intent of the law makers. For instance, the proviso at the end of Section 8(1) which was typed in bold above: “This important Proviso was interpreted to be the proviso of only 8(1)(j) because it was appended in some print editions below that sub-clause. In fact, originally it was placed at the end of entire sub-section which means any information that is exempted can still be given provided if that could be given to a legislator. All that legislature can be accessed to, can be given to each person” is a general proviso and cannot be read as proviso to ‘privacy’ protection [in (j)] alone. Thus each and every exception is subject to this proviso, not just one under section 8(1)(j) regarding privacy.

In the Right to Information Bill, 2004, approved by the Parliamentary Standing Committee headed by Nachiappan, this provision appeared as separate subsection 8(2)(on Page 39) which applies to all subsections in 8(1), and later it was inserted as a general proviso to Section 8(1). Thus this is the true intention of legislature.

If an RTI applicant asks to know about the information which the PIO claims to affect the security considerations of the nation invoking Section 8(1)(a), it has to be examined what will be the position when a legislator asks for the same information.

Here is an instance: An applicant wanted to know whether the order of National Green Tribunal to the Ministry of Environment and Karnataka Government to protect the rights of that locality to way, water and worship in Amrita Mahal Kavals grassland in Karnataka was implemented.

The Ministry of Environment claimed that ISRO and BARC were working in that field and hence information could not be given. If this information is asked by a legislator of Karnataka, can the government deny it on the floor of Assembly? Or if asked by an MP, can the Government of India deny the information in Parliament? They cannot.

Because the legislator is entitled to know whether his voters’ rights are being protected. Thus, the proviso at the end of entire subsection works as a general exemption to all exceptions. Hence a citizen is also entitled to know that information.

Section 8(2) manifests the objective of law-makers to give the RTI Act an overriding effect compared to the Official Secrets Act or any other law or any other exemption, subject to public interest. Each law that provided exceptions including Section 8(1) of RTI Act, and Official Secrets Act, 1923, need to be examined by the public authority comparing public interest vis-a-vis protected interests before deciding about sharing.