The RTI Act 2005: Object, Application, Definitions and Salient Features

The definitions that decide cases

Four in section 2, and they are examined more often than anything else in the Act.

"Information", section 2(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.

Three consequences, and they are what make the Act powerful.

1. "Opinions" and "advices" are expressly included, which means the notings on a file are information. That is why a citizen can see not only the decision but the internal advice that led to it, which is the point made in [Accountability and Responsiveness: Problems and Perspectives] about the end of official anonymity.
2. "Samples" and "models" are included, so information is not confined to paper.
3. Information about a private body is included where a public authority can access it under another law.

What the definition does not include is an answer to a question. The Act gives access to material that exists; it does not require an authority to create information, to give an opinion, or to answer a query about why something was done, except so far as the reasons are on the record. This is the commonest practical misunderstanding.

"Right to information", section 2(j)

The right to information accessible under the Act which is held by or under the control of any public authority, and includes the right to inspect work, documents and records; to take notes, extracts or certified copies of documents or records; to take certified samples of material; and to obtain information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where the information is stored in a computer or other device.

Note the right of inspection. A citizen may inspect the record itself, which is often more useful than asking for a document whose existence he cannot know of.

"Public authority", section 2(h)

Any authority or body or institution of self government established or constituted:

• by or under the Constitution;
• by any other law made by Parliament;
• by any other law made by a State Legislature;
• by notification issued or order made by the appropriate Government,

and includes any body owned, controlled or substantially financed, and any non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

The last limb is the important one, because it brings in bodies that are not created by the State at all. The test of substantial financing runs parallel to the instrumentality test under Article 12 in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, though the two are not identical: Article 12 asks whether the body is an instrumentality of the State for the purposes of the fundamental rights, while section 2(h) asks whether it is owned, controlled or substantially financed by government funds.

Facts. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, concerned admissions to a Regional Engineering College run by a society registered under a Societies Registration Act, and the preliminary question whether the society was a State within Article 12.

Held. The college was a State within Article 12. Its composition was dominated by representatives appointed by the Central Government and by four State Governments with the approval of the Central Government; the money to run it was provided entirely by the Central Government and the Government of Jammu and Kashmir, and other money could be received only with their approval; its rules required prior government approval; its accounts had to be submitted to both Governments for scrutiny; and it had to comply with directions issued by the State Government with Central Government approval.

Why it matters here. The same facts, government domination of composition, funding, rule making and accounts, are what make a body a public authority under section 2(h), so the reasoning transfers directly.

"Appropriate Government" and "competent authority", sections 2(a) and 2(e)

The appropriate Government is the Central Government for a public authority established by or under the Constitution or by a law of Parliament, or owned, controlled or substantially financed by it, and the State Government in the corresponding State cases. The competent authority is the Speaker for the House of the People and a State Legislative Assembly, the Chairman for the Council of States and a Legislative Council, the Chief Justice of India for the Supreme Court, the Chief Justice of a High Court for that Court, the President or Governor for bodies established by them, and the administrator for a Union territory. Those authorities make the rules for their own institutions under section 28.

The salient features

Ten, and this list answers the syllabus head directly.

1. A right for citizens, declared by section 3, subject to the Act.
2. No reasons need be given for a request, by section 6(2), and no locus standi is required.
3. A designated officer in every public authority: Central and State Public Information Officers, and Assistant Public Information Officers at the sub-district level, under section 5.
4. A simple procedure: a written request, or one by electronic means, with a prescribed fee, under section 6, and an obligation on the officer to render reasonable assistance to a person who cannot write.
5. A strict time limit: thirty days ordinarily, and forty-eight hours where the information concerns the life or liberty of a person, under section 7, with deemed refusal if the officer does not decide.
6. Defined exemptions, in sections 8, 9 and 24, with a public interest override in section 8(2) and severability in section 10.
7. Proactive publication by every public authority under section 4, so that much information need not be asked for.
8. Independent Information Commissions, central and State, under sections 12 and 15, with powers of a civil court under section 18.
9. A two tier appeal under section 19, first within the authority and then to the Commission, with the burden of proving that a refusal was justified on the officer.
10. A personal penalty on the officer under section 20, of two hundred and fifty rupees a day up to twenty-five thousand rupees.

To which should be added section 22, giving the Act overriding effect notwithstanding anything inconsistent in the Official Secrets Act 1923 or any other law, and section 23, barring the jurisdiction of courts in respect of orders made under the Act.

A worked example: is it a public authority?

Decide each.

1. A municipal corporation. Yes: a body of self government established by a law of a State legislature.
2. The Supreme Court. Yes: established by the Constitution. Its competent authority for rule making is the Chief Justice of India.
3. A nationalised bank. Yes: established by a law of Parliament.
4. A cooperative society receiving no government funds. Not by itself. It is not established by or under the Constitution or by a law, and it is not owned, controlled or substantially financed by government. But its returns filed with the Registrar of Cooperative Societies are information accessible by that public authority, and so are obtainable from the Registrar.
5. A private school on government land, receiving a grant covering most of its salary bill. Substantially financed, and therefore probably a public authority. The question is one of degree, and the reasoning in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, on domination of funding and control is the guide.
6. An intelligence organisation listed in the Second Schedule. A public authority, but excluded by section 24, except in relation to information about allegations of corruption and human rights violations.

What it does NOT mean

It does not mean the Act creates information. It gives access to material that exists; it does not require an authority to answer a question or form an opinion.

It does not mean private bodies are covered. They are covered only where owned, controlled or substantially financed by government, or where a public authority can access their information under another law.

It does not mean the Act applies to everything a public authority holds. Sections 8, 9 and 24 exempt.

It does not mean the citizen must justify the request. Section 6(2) forbids requiring a reason.

Quick revision

1. Act 22 of 2005. Long title: to set out the practical regime of the right to information for citizens, to promote transparency and accountability, and to constitute the Information Commissions. Extends to the whole of India.
2. Section 2(f), information: any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data in electronic form, and information about a private body accessible by a public authority under another law. File notings are therefore information.
3. Section 2(j), right to information: information held by or under the control of a public authority, including the right to inspect work, documents and records, to take notes, extracts and certified copies, to take certified samples, and to obtain electronic records or printouts.
4. Section 2(h), public authority: established or constituted by or under the Constitution, by a law of Parliament or of a State legislature, or by notification or order of the appropriate Government; and includes bodies owned, controlled or substantially financed, and non-governmental organisations substantially financed, by government funds.
5. Section 2(a) appropriate Government; section 2(e) competent authority, being the Speaker, the Chairman, the Chief Justice of India, the Chief Justice of a High Court, the President, the Governor or the administrator.
6. Ten salient features: a citizen's right; no reasons required; designated officers; a simple procedure; strict time limits; defined exemptions with an override; proactive publication; independent Commissions; a two tier appeal with the burden on the officer; and a personal penalty. Plus section 22, overriding effect, and section 23, bar of jurisdiction.
7. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, on government domination of composition, funding, rules and accounts, is the guide to substantial financing and control.

Test yourself

1. What is the object of the Right to Information Act 2005? Its long title states that it is an Act to provide for setting out the practical regime of the 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, and to constitute a Central Information Commission and State Information Commissions. The words "practical regime" carry the object: the right itself already existed as a facet of the freedom of speech under Article 19(1)(a), and what the Act provides is the machinery through which it can actually be exercised. The preamble adds that transparency is vital to democracy and to containing corruption, that disclosure conflicts with other public interests including the efficient operation of governments and the confidentiality of sensitive information, and that these are to be harmonised while preserving the paramountcy of the democratic ideal.

2. Define "information" and "public authority" under the Act. Section 2(f) defines information as any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models and data material held in any electronic form, together with information relating to any private body which can be accessed by a public authority under any other law in force. Because opinions and advices are included, the notings on a file are information. Section 2(h) defines a public authority as any authority, body or institution of self government established or constituted by or under the Constitution, by any other law made by Parliament, by any other law made by a State legislature, or by notification issued or order made by the appropriate Government, and includes any body owned, controlled or substantially financed, and any non-governmental organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

3. What does the right to information include under section 2(j)? It is the right to information accessible under the Act which is held by or under the control of any public authority, and it includes the right to inspect work, documents and records; to take notes, extracts or certified copies of documents or records; to take certified samples of material; and to obtain information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where the information is stored in a computer or any other device. The right of inspection is practically important, since a citizen who does not know what documents exist can inspect the record rather than having to name a document in advance.

4. State the salient features of the Act. A right conferred on citizens by section 3; no requirement to give reasons for a request or to show locus standi, by section 6(2); the designation of Public Information Officers and Assistant Public Information Officers in every public authority under section 5; a simple written or electronic request with a prescribed fee under section 6, with assistance to a person who cannot write; a time limit of thirty days, and forty-eight hours where life or liberty is concerned, under section 7, with deemed refusal on failure to decide; defined exemptions in sections 8, 9 and 24, with a public interest override in section 8(2) and severability under section 10; proactive publication by every public authority under section 4; independent Central and State Information Commissions under sections 12 and 15, with civil court powers under section 18; a two tier appeal under section 19 with the burden of justifying a refusal on the officer; and a personal penalty on the defaulting officer under section 20. Section 22 gives the Act overriding effect notwithstanding the Official Secrets Act 1923 and any other inconsistent law, and section 23 bars the jurisdiction of courts over orders made under the Act.

5. Is a body which is not created by the State ever a public authority? Yes. The last limb of section 2(h) includes any body owned, controlled or substantially financed, and any non-governmental organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. So a society or trust which the State did not create may nevertheless be a public authority if government funding or control is substantial, and the question is one of degree. The reasoning in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, is the guide, since the facts there, that government nominees dominated the composition, that the funds came entirely from government and other receipts required its approval, that the rules required prior government approval and the accounts were submitted to government, and that government directions bound the body, are the same indicators of control and financing. Even where a body is not a public authority, information relating to it which a public authority can access under another law falls within the definition of information in section 2(f), and can be obtained from that authority.