Right to Information (RTI) Act, 2005 has been in the news for the last few days, especially for its dilution at the hands of the Digital Personal Data Protection Act, 2023 which takes away the public interest test while exempting personal information from the RTI Act. (See here and here for more on this). While this move has the potential to severely impact the efficacy of the RTI Act, I recently came across two other cases that can strengthen the RTI framework. First, Rajwinder Singh vs. State of Punjab and others from the Punjab and Haryana High Court which enlists five crucial elements that every RTI order should have. Second, Kishan Chand Jain vs. Union Of India & Ors. from the Supreme Court bolstering the keeping of public records and proactively disclosing them under Section 4 of the RTI Act. The present post discusses these two cases and underscores their relevance for the Indian IP landscape.
One, the Rajwinder case involves a Civil Writ Petition filed under Article 226, to set aside the order passed by the State Information Commission (SIC), Punjab. The impugned RTI responses not only lacked the necessary detail regarding the requested information but also failed to indicate which aspects of the requested information were furnished and which were withheld. Furthermore, it did not provide the rationale for withholding the requested information.
Holding the order passed by the SIC as cryptic and non-speaking, and noting the regularity of passing such orders, the Punjab and Haryana High Court directed the first Appellate Authority and second Appellate Authority to specify the following while adjudicating an appeal under the RTI Act:
“i) The points on which the information is sought by the applicant as per his/her application filed under the Act of 2005.
ii) The point-wise reply with respect to the information sought.
iii) A categorical finding as to whether the information on any of the points has been supplied or not and if supplied, the date on which it has been supplied.
iv) In case, it is the stand of the authorities from whom the information is sought that the information sought under a particular point is not to be supplied on account of any bar contained in any provisions of the Act of 2005 or for any other reason, then, after recording the said stand and after considering the submissions made by both the parties with respect to said point/issue, return a finding with respect to the said issue/point.
v) Any other observation which the authority deems fit in the facts and circumstances of the case to be recorded.”
The Court also directed the Chief Secretary to the States of Punjab & Haryana and the Advisor to the Administrator, Chandigarh to disseminate the present judgment along with other judgments, namely Gagnish Singh Khurana vs. State of Punjab and others and Gopal Krishan Gupta vs. Central Information Commission and others to all the authorities constituted under the Act for complying with the same.
Second, the Kishan Chand case involves a Writ Petition under Article 32 seeking direction to implement the mandate of Section 4 of the RTI Act regarding the “Obligations of Public Authorities.” The relief was especially sought regarding the suo motu or proactive disclosures of information by public authorities as prescribed under Section 4(2) and setting up a mechanism for compliance and monitoring of the said disclosures.
For the necessary context, Section 4 has two relevant parts. One, it obligates public authorities to ensure the proper maintenance of all public records, including cataloging and indexing to facilitate easy access. Second, obligating public authorities to suo moto publish particular details regarding the organizational structure, functions, and responsibilities of officers, etc.
The provision has further been substantiated by different Official Memorandums (O.M.) notably O.M. dated 15.04.2013, O.M. dated 07.11.2019, and O.M. dated 20.09.2022. These O.M.s lay down additional guidelines regarding the said suo motu disclosure. Among other things, these memorandums mandate additional compliance regarding the proactive disclosures package every year through a transparency audit. However, as the case details suggest the same was not properly complied with by the public authorities.
After hearing both parties, the Court found that “the system needs the concerned authority’s complete attention, followed by strict and continuous monitoring.” Thus, it directed that the Central and State Information Commissions shall continuously monitor the implementation of the mandate of Section 4 and the directions under Guidelines and Memorandums by the public authorities.
Those familiar with India’s RTI mechanism would know the dodgy replies for information requests by the Public Authorities under the Act (e.g., see here, here, and here). Similarly, we have seen the tardy record-keeping practices at the IPO including instances such as the trademarks registry losing over 8000 files, the Copyright Office losing an important file, and the patent office losing files concerning pre-grant oppositions (see also here). The above-discussed cases can potentially cure the current RTI course. If taken seriously and put into practice, they have the potential to not only ensure a large amount of information is proactively disclosed to the public, thereby enhancing the transparency of Public Authorities, but also to reduce the necessity for filing individual RTI applications.
Thanks, Praharsh Gour for his input on the post.Please click here to view the post on SpicyIP and leave a comment.