21

The Administrator
Vol. L, June 2007, pp. 21-38

The Flip Side of the RTI Act

-Prabodh Sexena*

Abstract

The show piece legislation of India namely the right to Information

Act 2005 is in its 3rd year of operation and has received a fair share
of book age and brickbats. This article is examines the emerging
trends of usage of the law and finds the results to be not very
encouraging. He finds that the public interest which the Act intends
to secure is missing in a good number of applications. The application
seek policy related information in very few numbers of cases .

The showpiece legislation of India, namely, the Right to Information Act, 2005
(for Short, the RTI Act) is in its third year amid success stories, enthusiasm, hope
and, on the other extreme, protest and ridicule. Activists are demanding blood
because they think that, the Chief Information Commission (hereinafter, the
Commission) lacks the necessary ‘killer instinct’ of ruthless compliance. The
practitioners, however, are overwhelmed with the reach of the law and its loose
recourse in purely personal issues.

Readers may recall that in pursuance of international trend and domestic

demand, the Government of India had enacted the RTI Act which came into force
on 12 October 2005. The RTI Act prescribes mandatory disclosure of certain
information to citizens within specified period and creates a legal-institutional
framework for setting out the practical regime of right to information for every
citizen to secure access to information under the control of Public Authority. It also

* The author is an IAS officer presently working as Director in the Department of Economic Affairs,
Govt. of India.
22 THE ADMINISTRATOR, VOL. L, JUNE 2007

lays down specific obligations on the appropriate governments, competent

authorities and public authorities, as defined therein. It sets up an information delivery
mechanism through appointment of information providers in the public authorities
and mandates the appointments of Information Commissioners to inquire into
complaints, hear second appeals, and guide implementation of the RTI Act.

The RTI Act says that the information can be obtained from Public Authority,
which is defined under Section 2 (h) of the RTI Act.

Under the RTI Act all constitutional, statutory bodies, bodies created by
government notifications and local self-government bodies are public authorities.
In addition, bodies owned, controlled or substantially financed directly or indirectly
by government are public authorities.

Finally non-Government organisations substantially financed by government are

also within the definition of public authorities.

Section 22 of the RTI Act mandates that the provisions of the RTI Act , in
case of conflict, overrides the Official Secrets Act, 1923, and any legal instrument.
By inclusion of the word ‘instrument’, there is an obligation to bring all the rules,
guidelines, manuals etc in conformity with the RTI Act.

Access legislations, all over the world, have brought discomfiture to the
powers that be. The RTI Act has empowered the weak and the vulnerable. The
RTI Act has been an important tool in opening doors and discovering information
that otherwise would have remained outside the public domain. It has helped to
uphold the spirit of openness, transparency and accountability in public life.

Success stories are far too many. It was found out that Tony Blair, the then
Prime Minister of UK, had series of breakfast meetings with a Party donor before
a vaccine contract was awarded without bidding. US was compelled to disclose
that 558 men from 41 countries are in detention at Guantanamo Bay.

The Indian experience is no different. It has given a billion people the right
enjoyed so far by few thousand legislators. The scandals of misuse of PDS ration
have corrected the systems in the exposed places. Ordinary citizens have been
 THE FLIP SIDE OF THE RTI ACT 23

able to secure long delayed pensions, house allotment letters and passports. It has
to be appreciated that the RTI Act is not a redress law but information culled out
has tremendous correcting influence.

While threats of terrorism, real and perceived, have robbed the essential
strength of access legislations in the western world, the problem in India is different.
Though too early to say, yet the emerging trend of usage of the law is not exactly
very happy. The public interest, which the RTI Act, intended to secure, is missing
in good number of applications. It is in very few instances where requestors seek
policy related information.

1. Emerging Areas of Concern

The Commission is at pains, in decision after decision, to explain that the RTI Act
is not a mechanism to redress grievances. While sifting through the decisions given
by the Commission, it is impossible not to note that how vigorously the RTI Act
has become a tool in the hands of employees— mostly disgruntled, under
disciplinary proceedings and even dismissed. A disproportionately large number
of the appeals may be about or over fifty percent are from the employees, including
from IAS and other high-ranking officers.

Undoubtedly the Indian law is the most ‘ambitious’ (some may prefer to
call it progressive or advanced) among the access legislations of the world, the
closest being the South African information law. The RTI Act prescribes no
qualifications and reasons for asking information. In series of decisions, the
Commission has ruled, and rightly so, that public .authorities cannot devise forms
restricting the right to seek information. In Bishwajit Mohanty v Ministry Of
Environment & Forest, it struck down the format that restricted information in a
request to a specific period.

Such a broad window is not available even in the developed countries,

operating such laws for decades. Contrast this to US where the Government in
1996 , owing to limited resources (emphasis mine), recognizing that as requests
are very broad and complex, established procedure for the department to discuss
with requesters ways of tailoring large requests and made corresponding amendment
24 THE ADMINISTRATOR, VOL. L, JUNE 2007

in their requests. In India, citizen can ask for any and every information subject
to the limitation prescribed by the RTI Act. It is a no holds barred right. Requester
can ask as much as they can imagine and there is no stopping from their imagination
running wild.

a) On a fishing expedition

I understand that the Commission must have been at its wits’ end when the
appellant Faqir Chand suggested that, as he was harassed while in service,
now it is his turn to harass the department by asking extensive information.
(Faqir Chand v Railways) What an innovative device to settle scores at the
cost of public time and government exchequer. In a similar case, an employee
filed 33 applications on the same day, that too, on diverse matters, in some
cases seeking information from 1997 onwards. An exasperated Commission
asked the public authority to give 15 days leave, if due, to the employee to
inspect the piles of file and directed the public authority to depute a responsible
officer to facilitate the inspection by the appellant ( Dr Koustubha Upadhyaya
v Ministry of Health and Family Welfare). In another case, Manohar Singh
v NTPC, the employee has filed as many as 74 or even more, applications for
seeking information under the RTI Act. Of these, applications pertain to pay
fixation (19), non-promotion (6), inspection of records (10) and miscellaneous
(39). In all, he filed 62 appeals to first appellate authority of NTPC and 30
appeals to the second appellate authority i.e. the Commission. The requests,
at times, are not simply to satisfy one’s doubt about service matters but, as
tauntingly noted by the Commission, to derive vicarious pleasures by causing
annoyance, mostly to superior officers. (Ashish Kumar Khare v Fisheries
Survey of India)

Yet in another case, one Mr. S.K. Lal asked just about everything pertaining
to the Indian Railways from records related to the regulation of its employees
to the names, telephones numbers, both of Railways as well as of other service
providers, and of all railway hospitals and health centers in UP, including personal
details of all the doctors working in the Indian Railway hospitals. The
 THE FLIP SIDE OF THE RTI ACT 25

Commission deprecatingly found that the details sought makes a mockery of

the RTI Act and puts unwanted pressure on public authority, dismissing it as
frivolous and inconsequential.( S.K.Lal v Railways ) . But as the situation is,
the Public Information Officer (PIO) or even the Appellate Authority could
not have come to such a conclusion, lest the PIO attracts penalty. The matter
has to reach the Commission to be dismissed as being frivolous as there is
nothing in the Act to dissuade requestors from raising vexatious and unlimited
requests. On the contrary, the RTI Act is prone to misuse by busybodies.

These instances are by no means unusual and things of the past. The Tribune
reported on 25 March 2008 that in a single application regarding status of
Muslims in India, the requestor has asked 101 questions concerning 23
ministries/departments and also all states and union territories across the
country. The information, if provided, could run into few thousand pages. His
questions include number of hospitals in 90 “minority concentration” districts?
, number of Muslim women employed in hospitals across the country ?, their
designation and how many were hired after 2001?, number of banks having
special cells for regulation of credit for minorities?, number of the total
employees in all registered banks and number of Muslim employees?”.

The list goes on and on covering every possible gambit of Muslim population
of the country. The media thinks that it is a great use of the RTI Act.
Unfortunately because of lack of understanding of the provisions and the
perceived threat of penalty to be paid from one’s own pocket, no chances are
taken. In this case also the PIO of the Ministry of Home Affairs has transferred
the application to countless public authorities who in turn will make endless
correspondence with their unlimited subordinate offices. A virtual game of
football will start as each one will transfer the application to the other and
some overzealous PIOs will get into “generation” of information. Nobody will
care to see whether the request qualifies the definition of ‘information’, will
supply of such information not disproportionately divert the resources of the
public authorities and should not further fee be demanded? Anyway, there is
no way time limit can be adhered and there is a likelihood that the requestor
26 THE ADMINISTRATOR, VOL. L, JUNE 2007

may not turn up to pay the fees once the information is ready and amount of
photocopying is calculated. Even if some information reaches the requestor it
may be incoherent and incomplete. The requestor who triggers off such an
exercise by a simple application accompanied by a fee of Rs 10 may also set
the appellate and the compliant jurisdiction into motion. Such mindless
processing is not only prohibitively expensive in terms of money and manpower,
but is also unproductive use of taxpayer’s money.

b) Employees on RTI spree

A good number of information seekers are infact the one who are supposed to
be information provider. In an interesting case of Subhash Chandra v
Commissioner of Income Tax where a predecessor asked his successor
regarding action on the charge handing over note , the Information Commissioner
has this to say, “ I must confess that such usage of the RTI Act by an requestor,
was not fully anticipated when the Act was enacted. I am not quite sure if the
legislature had anticipated that an officer, who hands over charge to his
successor, would use the RTI Act to demand information, as well as explanation,
about actions taken by the successor in respect of certain assesses”

Worse, as the Commission observed in Ved Prakash Arya v KVIC

that Government employees facing enquiries and investigations have attempted
to use the RTI Act, to impede or to impair the progress of investigation, by
demanding premature disclosure of the contents of an investigation. It is
definitely a situation where delivery of an information contradict the other
objective of the RTI Act, namely to introduce the elements of transparency
and accountability in the functioning of the public authorities and to contain
corruption.

In a case where the delinquent employee raised questions like TA/DA

availed by the Enquiry Officer and the correct spelling of his name , the
Commission noted that “ wherever a public authority attempts to discipline
an employee, such employee promptly files multiple RTI applications aimed at
extracting personal information of those charged with taking decisions in such
 THE FLIP SIDE OF THE RTI ACT 27

disciplinary matters. Since the replies under the RTI Act are to be made in a
time-bound manner, quite frequently such enquiries create wholly unnecessary
and avoidable pressure on officers of public authority. There should be nothing
surprising if such actions distract that authority from its ordained functions.
The Commission will take strict note of the proclivities of employees of public
authorities who attempt to use RTI Act to settle personal scores. “

c) Impolite language

It is also unfortunate that the language being used by requestors is at times,

intemperate and impolite, to say the least. The Commission has advised the
employee requestors to be mindful of their language, as after all, the PIO is
their colleague, who is doing an extra job without additional remuneration. It
has even warned that use of intemperate language can validly invite disciplinary
proceedings. The case of former senior civil servant using such a language,
pained the Commission so much to observe , “Use of an RTI appeal to
abuse, and discredit others especially those who themselves would never use
such profanities, bound as they are to official and social decorum; shall never
be allowed.”

d) Others are equally to blame

This is not to suggest that it is government employees alone who are abusing
the process. As per the media reports, Information Commissioners admit that
the limited resources of the Commission are being devoted to attending to
frivolous applications, which constitute more than 50 per cent of the workload
and that a large number of people are simply misusing the RTI Act. The RTI
Act is being used by business competitors of public authorities, themselves
being out of its purview, by people interested in gathering evidence in their
litigation cases or to ascertain whether the property they intend to purchase
is free from encumbrances or not.

The Commission in T. Sethuraman, v ,Commissioner of Income Tax

found it dismaying that parties involved in private litigation wantonly use the
provisions of the RTI Act to open confidential information of one another in
28 THE ADMINISTRATOR, VOL. L, JUNE 2007

order to gain an edge in litigation and noted with concern that ,”this is anything
but a healthy trend. RTI Act is meant to serve much superior and larger purposes
than to become hand-maiden of private litigants”.

e) Request to requestors

What can the Commission do? Given the provisions of the RTI Act, the
Commission while dealing with such type of appeals has no option but to
‘appeal’ to such “requestors to desist from using the RTI Act in a manner that
would amount to mere harassment of public authorities without fulfilling the
basic objective of the Act” ( K. Gopinath v A.I.C.T.E, U.G.C. & J.N.T.U ).
Sad at the use of the RTI Act by scientists on research works of other scientists,
the Commission in Mukul Yadav v CDRI observed that the scientists are
there to serve a much higher purpose than using up their valuable time in
personal disputes and settling scores and hoped that its observations will be
taken due note of by all those who use the sanctum of the RTI Act to serve
personal ends.

Finding no support from the main provisions, the Commission wants the
requestors to remember the objectives of RTI Act, outlined in the Preamble,
while making a request. In S.K.Lal’s case, a helpless Commission wished that
the civil society will exercise pressure to see that the RTI Act is not taken for
a ride for such submittals will impede the implementation of the RTI Act.
Subsequently, in few cases the Commission exhorted the legislature to take
steps to insulate the RTI Act from being misused.

The Judiciary has also felt the heat of the RTI Act. The Supreme Court
has suggested amendments to the RTI Act. The Ex CJI Justice Sabharwal is
reported to have remarked that the person seeking information under the RTI
Act has to be a bonfide person; otherwise, the very laudable object with
which the RTI Act has been introduced will be lost.

2. Common experience of Thailand and the United Kingdom

Infact, what is happening is not really very unusual. The initial experience in Thailand
 THE FLIP SIDE OF THE RTI ACT 29

with its access law was similar to some extent. It was invoked mainly by
educated persons and employees, however, such blatant abandoning of public
cause , as seen in India, was not noticeable. In the United Kingdom, Government
believes that small percentage of irresponsible requesters is placing a
disproportionately large burden on public authority resources, particularly in health,
education and police. At times the journalists are straining the public resources to
pen lead stories. The government contemplated substantial increase in fees through
Freedom of Information and Data Protection (Appropriate Limit and Fees)
Regulations 2007 to do, what it calls, the right balance between access to information
for all and the delivery of other public services. The draft regulations allowed
public authorities the right to take into account the time spent in deciding whether
a request should be granted, as well as the option to refuse multiple requests from
the same requestor if they could collectively cost more than £600 to research.
They also allowed the authorities to include reading time, consideration time and
consultation time in the calculation of the appropriate limit, thereby permitting public
authorities to refuse to answer complex questions and multiple requests. The draft
regulations failed in the consultation process due to resistance from civil liberties
group and journalists but, nonetheless, succeeded in highlighting the practical
problems of access legislations.

Sharing the government concern about the usage of the access law but not
the ways in which it wishes to correct it, the Information Commissioner Office of
the UK is advising through a “responsible requesters’ charter”, albeit without any
legal force , urging people to avoid making unreasonable requests, cautioning
some people and organizations that they “may abuse these rights, whether they
mean or not”, encouraging people to adhere to the spirit of the access law and be
reasonable when making request and requesting requesters to consider whether
their demands have a “serious purpose”, impose a “significant burden in terms of
expense of distraction”, or “are written in a harassing tone”. The charter aims at
weaning the people away from making demands that could be “regarded as part
of a campaign to disrupt the work of the public authority”.
30 THE ADMINISTRATOR, VOL. L, JUNE 2007

3. Correcting the misuse-the Commission responds

Mindful of the less than desirable usage of the RTI Act, I have seen that the
Commission, of late, is introducing certain checks through the backdoor. This is a
development noticed in 2007 decisions. The Commission is aware that in India an
appeal or a request may not yield the desired response. There will be no prizes for
guessing the efficacy of a charter like the one by United Kingdom Information
Commissioner in India. The Commission has, therefore, started traveling beyond
the literal meaning of the provisions of the RTI Act.

a) Limited disclosures in service matters

Now in case after case, the Commission is taking a view that employees
should not have access to file notings dealing with their disciplinary cases as
the employees already have a set of safeguards and rights available to them
under the Disciplinary Rules. The Commission in many cases has ruled that
any disclosure of a range of information through the RTI Act to delinquent
public servants would impact the disciplinary proceedings, promote personal
interest as opposed to public interest. and lead to unforeseen consequences
and actions , may be even vendetta and physical harm. The Commission sees
disclosures on such matters as a challenge to governance as they will impair
free and frank opinion of public servants. In January 2008, in the case of S
S Tomar v ICAR Commission expressed the concern that such misuse has
the “ potentiality to affect the morale of an organization and especially of its
employees who take upon discharging unpopular responsibilities.”

The Commission , however, is alive to a situation where disciplinary

proceedings against a public servant is being unduly prolonged, and the
information is essential to build the public servant’s defence and has allowed
the disclosure of the same invoking the larger public interest clause under
Section 8(2) of the RTI Act.

The Commission is also discouraging transfer related information to the

affected employees. Therefore, when the wife of an employee asked for copies
of the note sheets containing remarks/orders of the competent authority on the
 THE FLIP SIDE OF THE RTI ACT 31

basis of which transfer/ posting of her husband was affected, the Commission
while upholding the denial maintained that every public authority has a right
and is free to take appropriate decision about the deployment of staff at
appropriate locations in order to discharge its mandatory functions. (Smt. G.
Subbulakshmi v Department of Posts).

Thus the Commission has taken a view that matters connected with
disciplinary actions, vigilance enquiries , investigations , transfers , ACRs etc
must be construed to be personal information as mentioned in Section8(1)(j)
of the RTI Act, both for being exclusive to the person—in this case the
employee, and for having no public purpose or relationships to a public activity
and should be denied as there is no reason why time and energy of a public
authority be expended to supply information to one of its own employees,
when that information is purely personal to that employee. The Commission ,
however, does relax its position on such matters and allow disclosure if it is
convinced about victimization , malafide, bias or unfair treatment implying
presence of public interest in the request.

The Commission is also discouraging employees from questioning the

decisions of the superior officers in the grab of seeking information as it realized
that such self-serving applications are putting enormous pressure on the
resources of the public authorities , diluting the RTI Act in so far as empowerment
of the common man is concerned. The provisions of RTI Act, in the opinion of
the Commission, could not be used by sections of people in order to bring
pressure on and thereby influence the actions and the decisions of a public
authority.

b) Availability of alternative remedies

In addition, the Commission has also started looking at the alternative remedies
available to the employees while dealing with their information request. It now
insists that if a normal internal procedure and mechanism for accessing
information is good enough, recourse to RTI Act may not be permissible. The
Commission explained that civil servants should not be estopped from bringing
32 THE ADMINISTRATOR, VOL. L, JUNE 2007

out into the open, acts of favoritism, nepotism, corruption, etc. within an
organization but the purpose can be well served if they take recourse to the
institution of Vigilance Commission or the Whistle Blowers’ Resolution.

c) Does overriding clause over rides everying else?

The reach of non-obstante clause of Section 22 was considered by many as

a licence to demolish access standards and fee structure under other laws. It
was the discretion of the Commission to outline this wide ranging proviso in
any manner, pending a judicial pronouncement. The temptation to make all
other provisions in different laws subservient to the RTI Act must have been
great It is indeed creditable that at a time when judicial and quasi-judicial
bodies are accused of enhancing their jurisdiction, the Commission has taken
a very well considered and just interpretation of the non-obstante clause 22
even when it could have simply remained silent on it or could have waited for
adjudication by the courts.

The Full Bench in September 2007 R K Gupta v ITAT clarified that

when a specific law lays down the scope and the range of information to be
disclosed to a person facing specified action , it will be a sure interference if
access to a larger range of information is allowed under the RTI Act. While
holding that the non-obstante clause in Section 22 of the Right to Information
Act does not repeal or substitute any pre-existing law including the provisions
of the Income Tax Act concerning dissemination of information, it subscribed
to the doctrine that where subject-matter being the same, a specific law
overrides the general law. Hence the Commission has ruled that judicial
proceedings of all courts and tribunals are beyond the purview of the RTI Act
and judicial record has to be accessed only in terms of rules framed by judicial
bodies for procedure of application, maintainability of request and scale of
fees. In September 2007 itself in another case (Manish Kumar Khanna v
Supreme Court of India) the Commission acknowledged differences between
RTI Act and Order XII of the Supreme Court Rules but said there is no
“inherent inconsistency” between the two.
 THE FLIP SIDE OF THE RTI ACT 33

Under the RTI Act the fact that the information sought is subject matter of
litigation or is connected with a court case is not a reason to withhold information.
However, of late, the Commission , while maintaining that information cannot
be denied on the ground that the matter is sub judice , is , nonetheless ,
allowing the PIOs to deny the information if the same can be obtained by the
seeker during the proceedings before a quasi-judicial body. (R.K.Jain v SBI.).

Recently in March 2008, in the case of Sonal Amit Shah v Registrar of

Companies, the Commission held that where the public authority has a system
to grant access to documents, fee and cost rules of the public authority are to
be respected. The requestor was accordingly asked to deposit fee as per
Section 610 of the Companies Act, even if the same was higher than the fee
under the RTI Rules.

d) Tackling the all pervasive requests

To check continuous resort to asking same subject again and again in the hope
of receiving something suitable, the Commission has dismissed few such
applications as being frivolous. Similarly the Commission is making it clear
that a requestor can not prefix the request for information with seamless words
such as “all”, “every”, “etc”, and then, after supply of the information, complain
that not every thing had been provided. In one such case, where the requestor
demanded a certificate from the PIO that complete information has been given,
the Commission reminded him that the PIO is required under the provisions of
the RTI Act to provide the “information” and not “certificate” about the
completeness of that information.

Commission has also advised PIOs not to go overboard in case where

there is an apparent and blatant attempt to take the RTI Act for a ride. In S.P.
Goyal v, Director of Income Tax (Inv), the requestor whose premises was
raided wanted to know expenses incurred on raiding him. The PIO provided
him with a lot of information after painstaking efforts but still the requestor was
not satisfied. In an appeal by him, a sarcastic Commission commented, “When
scores of petitions, containing large numbers of queries , a majority of which
34 THE ADMINISTRATOR, VOL. L, JUNE 2007

repetitive are filed time and again by a petitioner, minor errors of response are
understandable and deserve to be ignored. The PIO must have realized by
now that it doesn’t always pay to be a good Samaritan especially in dealing
with petitioners with agendas.”

Stressing the need for penal provisions, the Commission recently directed
the PIO to ignore RTI pleas of school teacher and his wife after the couple
sought over 20-year-old records concerning thousands of employees of the
school. It has in some cases, on the facts of the case, ruled that there is no
reason to collect old and vintage information and historical records when it
can be accessed under other laws.

e) Balancing Parliamentary Systems and the access standards

Recently the Commission ruled that the RTI Act has not been enacted to
satisfy an individual’s curiosity about who did what in a given decision making
process. The request of Mr. V Raj to know the names and designations of
officers involved in the process of drafting and preparation of the Right to
Information Bill, provoked the Information Commissioner A. N. Tewari to
remark that ‘’Can this Act be treated as a sledge-hammer to destroy every
established norm of public administration? If allowed, this could become an
invitation to systematic chaos’’. The statement may look very strong but as I
see it, it is reflective of both the helplessness and irritation of a Commission
tasked with implementation of loosely drafted access legislation.

Restricting the ambit, the Commission again made it clear , taking support
from the parliamentary system of governance in the country, in Gurbax
Singh v Chief Commissioner of Income Tax that , “The names of the
individual officers involved in a decision-making process, no matter how derelict
they may be in discharge of their duties, must not be brought out in the open if
the system of parliamentary democracy and ministerial responsibility to the
Legislature are to remain unaffected. Answerability for a public authority’s
actions rests with either the Minister or the authority competent to take decisions.
Whose advice the Minister or the competent authority acts on which, in given
 THE FLIP SIDE OF THE RTI ACT 35

cases, can be a matter of investigation / enquiry internal or otherwise, is not

something to be shared with the rest of the world. It is this, what makes civil-
servant-anonymity such a core component of parliamentary democratic
governance.” In fact the Commission is very keen that though right to
information must be promoted by all means, yet at the same time it must be
balanced with the imperatives of good governance. It has emphasized that
balance needs to be established between the imperatives of disclosure of a
given set of or a type of information and the impact of such disclosure on the
essential functioning of a public authority and organization’s requirement of
confidentiality.

f) Offensive requests liable to be rejected

Coming tough on the tendency to use offensive language, Regulation 7 of the

Commission (Management) Regulations, 2007 provides that no appeal/petition
containing offensive language, invectives, unsubstantiated charges, etc. shall
be admitted by the Commission and these should be returned by the Registry
at the admission stage itself and should be admitted only after modifications
are carried out. The Commission is firm that requestor cannot be allowed to
freely pass motivated judgments about the character, conduct and the
functioning of other officers in the guise of seeking information. It has ruled
that the PIO and the First Appellate Authority shall be absolutely at liberty to
return applications which contain inappropriate language, invectives, abuses
and expressions causing offence to other persons, third-parties and officers
serving in public authorities.

g) Charge for the additional effort

The Commission has also allowed public authorities to levy further fee where
voluminous information is to be collected and compiled. In the case of
M.P.Radhakrishnan v Southern Railways ,Palghat , the requestor wanted
‘ complete list of station masters in roll of each grade as of 10.12.95 including
their name, community(SC/ST/UR), staff members, date of birth, date of
appointment, date of promotion to each grade from the date of appointment
36 THE ADMINISTRATOR, VOL. L, JUNE 2007

and upto 10.12.95.’ Many of the employees about whom information was
sought had retired. The Commission agreed that a further fee of Rs. 27,240
appears reasonable as Railways will at least take 2 months in culling out the
information. It, however, offered the requestors to pool their resources, and
collect the information on their own by methods of inspection.

4. Can there be a substitute to legislative amendment?

What the Commission is doing may well attract further litigation in the High Courts
and Supreme Court. The activists will raise the momentum and chorus of their
disapprovals, criticism and protests. Further given the fact that State Information
Commissioners are independent in their spheres and there is likely to be different
approaches to the interpretation of the intent of the Act, the only option is to clarify
the matters legislatively by way of suitable amendments.

I understand that two years is a sufficient period to introspect. After all the
Indian Constitution which was so ably debated by the finest talent in the country
for such a long time in a body especially constituted and convened for the purpose
received its first amendment in just about eighteen months. Any legislation has to
be dynamic, flexible, organic and responsive. RTI Act should not be an exception
and must not be denied enrichment and improvement through experience sharing.

5. Suggesting least difficult amendments

However, given the hype, media attention and personalities involved, the possibility
of objective assessment of the RTI Act appears remote. The RTI Act is an emotional
issue, almost a Holy cow. But we need to ask ourselves that should we allow such
a marvelous legislative feat to be hijacked by those who definitely do not have the
first claim on it? Should it not restrict such requests that are purely personal and
for which other Acts, rules and existing system already provide for.? Is not a
government servant afforded reasonable opportunity in disciplinary proceedings
and can he not access record of his desire, through courts, if he is engaged in
litigation with the employer?
 THE FLIP SIDE OF THE RTI ACT 37

Nevertheless, tilt such time that people are prepared to look at the situation
in the right perspective, a beginning can be made with respect to deliverable
requests concerning specified matters of a government servant by adding to
exceptions in Section 8 of RTI Act. This is achievable for three reasons. Firstly,
Government servants have similar rights recognized in plethora of statues and
office procedures (rather many say that government employees are over protected).
Secondly, restricting them may even earn approval from a good section of people
passionately associated with not just the law, but also the movement. Thirdly, it
will release the public authority and the Commission from avoidable burden and
they would be much better equipped to serve those for whom the RTI Act was
enacted in the first place.

If favourable environment is available, than an attempt may also be made

to exclude such documents from the purview of the RTI Act which are obtainable
in judicial proceeding or which may be required for litigation as RTI Act should not
disturb the level playing field between the litigants, particularly when only one of
the party i.e. the public authority is subject to the regime of the RTI Act while the
other is outside its purview or where one of the party in a court case wants to
score an edge against opponent by invoking resources of a public authority under
the RTI Act.

The decisions of the Commission have sufficiently highlighted that there is

a strong need to specify in the RTI Act itself the rates for supplying information in
cases where special rules already are framed for the same but the requester
prefers to apply under the RTI Act. The Access to Information Act 2002 of Jamaica
provides that where an official document is open to access by the public pursuant
to any other enactment or available for purchase by the public in accordance with
administrative procedures established for that purpose, access to that document
shall be obtained in accordance with the provisions of that enactment or those
procedures, as the case may be. We need to have a similar provision. Clarity in
this area will help the requestor as well as the public authority and will cut avoidable
appeals.
38 THE ADMINISTRATOR, VOL. L, JUNE 2007

6. We have to take the Call

CIC decisions have already shown the way for much of the amendments suggested
above. However, as mentioned above all this is open to judicial scrutiny and in any
case State Information Commissions are their own masters. It is beyond doubt
that there cannot be a substitute to legislative intervention to make the RTI Act
more purposeful.

The RTI Act marks a high water mark in our progress towards a more
open, transparent and responsive governance system. It gives a new meaning to
the old adage that knowledge is power. To improve governance, citizens can use
the power of ballot only once every five year, but they can use the power of
information through the RTI Act on a daily basis. It is the key to unlock the mystery
of the Indian governance system and to throw light in its darkest recesses.

There can be no second opinion that government servants need to be trained

and sensitized regarding their duties towards the citizens under the RTI Act. At the
same time, it is in the best interest for the health of the RTI Act that the citizens
learn to respect the sentiments behind the right and appreciate that while the
reach of this Act is vast, the resources available with the government to meet its
demands are limited. It is therefore important to ensure that this powerful piece of
legislation is used for the purposes for which it is designed and should not become
a hand-maiden to those pursuing partisan, , selfish frivolous and vengeful ends.
Otherwise, it runs the risk of imploding under its own weight of overuse and misuse.
The time is ripe to take a critical look at the Act in order to protect its vitality and
relevance. Call to examine the RTI Act in light of experience and practices of
almost two years can only be ignored at the cost of a proper evolution of the right
Are we ready to catch the bull by the horns?