NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 26 of Right to Information Act, 2005 Appropriate Government to prepare programmes.—(1) The appropriate Government may, to the extent of availability of financial and other resources,—a) develop and organize educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under this Act;b) encourage public authorities to participate in the development and organization of programmes referred to in clause (a) and to undertake such programmes themselves;c) promote timely and effective dissemination of accurate information by public authorities about their activities; andd) train Central Public Information Officers or State Public Information Officers, as the case may be of public authorities and produce relevant training materials for use by the public authorities themselves.(2) The appropriate Government shall, within eighteen months from the commencement of this Act, compile in its official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right specified in this Act.(3) The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub‑section (2) at regular intervals which shall, in particular and without prejudice to the generality of sub‑section (2), include—a) the objects of this Act;b) the postal and street address, the phone and fax number and, if available, electronic mail address of the Central Public Information Officer or State Public Information Officer, as the case may be of every public authority appointed under sub‑section (1) of section 5;c) the manner and the form in which request for access to an information shall be made to Central Public Information Officer or State Public Information Officer, as the case may be;d) the assistance available from and the duties of the Central Public Information Officer or State Public Information Officer, as the case may be of a public authority under this Act;e) the assistance available from the Central Information Commission or State Information Commission, as the case may be;f) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act including the manner of filing an appeal to the Commission;g) the provisions providing for the voluntary disclosure of categories of records in accordance with section 4;h) the notices regarding fees to be paid in relation to requests for access to an information; andi) any additional regulations or circulars made or issued in relation to obtaining access to an information in accordance with this Act.(4) The appropriate Government must, if necessary, update and publish the guidelines at regular intervals.Meaning/Significance of Article 26 of RTI Act, 2005 The most important aspect of formulation of any Govt. scheme, act, benefit or regulation is the public awareness of the same. The Section 26 of the Right to Information Act, 2005 ensures public awareness. The intent of this section is to maximize awareness among the different classes of the society and create a bridge between the Government and the Public. This section also puts pressure on public authorities to provide information to people and put information in public domain. The objective of this section is to maximize the impact of Right to Information in the society as much as possible by connecting with each and every individual. The people have to be educated by various programmes to be conducted by the Government. It requires publicity among the masses through social media campaigns and other modes of media on constant basis. The benefit of this Act must reach the marginalized and unprivileged. They need to be encouraged to come forward and get their personal problems mitigated through its use. Therefore, the new procedure and proceedings need to be taught to the people as well as the Government officials so that, there is no ignorance regarding the Act and its functioning. The Government officials have to be trained to execute the Act properly for the benefit of people. And the public has to be more open and participative towards the Act, and reap maximum benefit out of it. Explanation of clauses of Section 26 of RTI Act, 2005Section 26(1) and 26(2) talk about initiating new programmes to increase awareness and connecting with the people effectively and efficiently, respectively. Section 26(1) talks about the promotion of the Act and ensuring it reach more and more people in the society. Organizing training programmes for public as well as authorities so that they can get acquainted with the procedure of the Act. Section 26(2) directs the appropriate Government to compile guides within 18 months which should contain useful information for the public as well as officials concerned. Section 26(3) is in furtherance to Section 26(2). Which directs the appropriate Government shall, if necessary, update and publish the guidelines referred to in sub-section (2) at regular intervals. It further includes all the information that requires to be updated and published in the public domain.Section 26(4) basically directs the appropriate Government that it must update and publish the guidelines for the information to the general public includes objective of the Act, name and designation of Public Information Officer (PIO)/Assistant Public Information Officer (APIO), name and designation of First Appellate Authority (FAA), the procedure for getting the information, fee structure, procedure for filing an appeal and assistance available to the public and matters regarding implementation of the Act.Need and Importance of Section 26 RTI Act, 2005The importance of Section 26 of the Right to Information Act, 2005 surrounds awareness and creating a larger impact in the society. It can be summed up in-1- Public Awareness- The objective of this Section is to create Public awareness so that the Act reaches each and every individual of the society. Since, this Act serves a great purpose in a functional constitutional democracy like ours. It is important that ignorance towards such important legislations is minimized. 2- Training of Authorities- It is important that the officials in the Public Authorities are made aware about the functioning of the Act, so that they may serve the public more efficiently. The purpose of the Act fails in practicality if the officials responsible for its implementation are ignorant about the functioning of the Act.3- Training of Public- The people, along with awareness, need to be trained the know-how of the Act and how they may use it for their benefit. Organizing programmes will help people to get acquainted with the Act and the Authorities. And will also minimize abuse of the Act. Section 27 of Right to Information Act, 2005Power to make rules by Appropriate Government.—(1) The Appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—a) the cost of the medium or print cost price of the materials to be disseminated under sub‑section (4) of section 4;b) the fee payable under sub‑section (1) of section 6;c) the fee payable under sub‑sections (1) and (5) of section 7;d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub‑section (6) of section 13 and sub‑section (6) of section 16;e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub‑section (10) of section 19; andf) any other matter which is required to be, or may be, prescribed.2) Meaning/Significance of Section 27 of RTI Act, 2005The Section 27 of the Right to Information Act is relevant because it allows the appropriate government to make provisions for smooth implementation of the Act. This also helps in keeping up the Federal or rather Quasi-Federal nature of the Constitution since; it allows the State Governments to make provisions as per their requirements. Pertaining to the diverse nature of the Indian society, this Section is highly relevant for the execution of this Act. Explanation of clauses of Section 27 of RTI Act, 2005Section 27(1) of the Right to Information Act empowers the appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. The appropriate Government in the case of Union Territory Administration shall be the Central Government. And rest will follow the definition of appropriate Government given in Section 2(a) of the Act. Given the social diversity of India, and the federal nature of the constitution, the State Governments are given liberty to implement the Act in the most suited manner for their territory. And for that purpose they make certain provisions in order to carry out the Act. According to section 27(2) of the Act, in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters mentioned above in the clauses itself. This is in order to ensure smooth functioning within the Authorities so that the Act may be enforced appropriately. Need and Importance of Section 27 RTI Act, 2005The importance of appropriate Government is asserted by the Parliament itself. Powers have been given to the appropriate Government to make rules including procedure to be adopted for deciding request application for seeking information or appeals by First Appellate Authority or by Central/State Information Commission, fee structure for various purposes and any other issue which may be necessary for smooth implementation of the Act. The Section 27 of the Right to Information Act, 2005, is important for the smooth implementation of the Act throughout India. Moreover, it finds importance in maintaining the spirit of the Constitution as well.1- Maintaining Quasi-Federal structure- The power to State Governments to make provisions as per their requirements for better implementation helps in keeping up with the “Federalist” nature of the country.2- Smooth functioning- By the virtue of Section 27, the appropriate government can adjust salaries, fees etc. in order to maintain and better the implementation and impact of the Act in their respective region.3- Avoids conflict of interest- Section 27 ensures there is no conflict of interest between Central Government and State Government in terms of the implementation of the Act. Section 28 in The Right To Information Act, 2005Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (i) the cost of the medium or print cost price of the materials to be disseminated under sub‑section (4) of section 4; (ii) the fee payable under sub‑section (1) of section 6; (iii) the fee payable under sub‑section (1) of section 7; and (iv) any other matter which is required to be, or may be, prescribed.Meaning/ Significance of Article 28 of RTI Act, 2005The Article 28 of the Right to Information Act, 2005, is in furtherance with the Article 27 as it gives recognition to other competent authorities, other than Central/State Government, to make necessary provisions for better and smooth functioning of the Act.Explanation of clauses of Section 28 of RTI Act, 2005Section 28(1) of the RTI Act the competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. This is in respect of other institutions not covered by section 27 of the Act i.e. Central or State Governments. Sub-section (2) of section 28 provides that, in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters mentioned above. It is important to distinguish distribution of Power to implement the Act in the most effective and efficiency moment.Need and Importance of Section 28 RTI Act, 2005It is important to reach to the minutest level of the society in order to reap maximum benefit of the Right to Information Act. For that it is important that competent authorities at every level are given some power for the sake smooth functioning of the Act and to ensure better penetration within the society.1- Benefit to the authorities- By the virtue of Section 28, the competent authorities at smaller level can make rules for their own better functioning. This helps the officials to work for better implementation of the Act throughout the society2- Reaching the minutest layer of the society- India is diverse and it is difficult to reach at every layer of the society, from urban to rural without delegating some power to different authorities. The said authorities may have a better connection with the local population and thus, the benefit of the Act can be maximized.3- Delegation of powers- Section 28 of the Right to Information Act ensures that power is not concentrated or centralized at any level. The more power is given to competent authorities at smaller level, the better connection it will create with the people and will also ensure officials at smaller level are not exploited.
Ramya Thoti
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 23 Bar of Jurisdiction of Courts:[1]No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.The present provision the act bars the jurisdiction of all the courts including High Court to the extent of its original or appellate jurisdiction to entertain the suit. The provision is aims to provide expeditious information to the applicant sans any delayed in the process.Timely and fair/effective information is the sine quo none to the right to information act. Nothing can bar the jurisdiction of the court to decide the matters if it is in gross violation of the principles of natural justice or in contraventionof the prescribed procedure as laid down under the act. Section 24 Act not to apply to certain organizations:[2]The provision protects the information if it relates to the intelligence and security organizations as specified under second schedule of the Act, and it is established by the Central Government or by the state Government. The proviso of the aforesaid section explains that if the allegation is pertains to the corruption and human right violation than the information shall not be excluded. The provision has also specified that if the allegation related to the human right violation then the information shall only be provided after the approval of theCentral Information Commission and such information shall be provided within the 45 days of the said request.The key word reflects in the provision are follows as:1.) Human Right.2.) Corruption.Right to Information is considered to be the basic fundamental right in our democratic society. As under Article 19 (1) (a) of the Constitution the Apex Court has several times expressed that the right to information is the fundamental right. It has subject to the law made by Parliament. To be an informed citizen is one of the highest privilege for any individual. No authority as provided under the second schedule of the act can claim immunity from any information if it proceeded by the act of human right violation. The word human right is not defined in the Constitution nor in the RTI Act, 2005 but definition of Human Right is provided under the NHRC Act, 1993 which comprises of all the rights that mentioned under ICCPR, UDHR and other as well. Under Article 19 of the ICCPR it secures the right to information. The right to information is crucial in order to achieve the end of justice. India is signatories to these convention or treaties and it is bound by the provision mentioned under unless otherwise provided. At this juncture it is pertinent to mentioned that in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express[3],the apex court held that “the ‘right to know’ is an integral part of the ‘right to life’, and unless one has the ‘right to information’, the ‘right to life’ cannot be enjoyed meaningfully”.Also, it is important to note the observation of the Supreme Court in case of S.P Gupta v. Union of India[4], the court held that “an open Government directly emanates from the right to know which is implicit in the right of free speech and expression”. This section is also clarifies that when the corruption is involved in any of the public authorities whether it is exempted or not then it is bound to disclosed the information that has been asked. When the allegation relates to the corruption then there is no need to take approval of the Central Information Commission in reference to the application. This section 24 must be read with section 8 of the RTI Act, 2005. Section 8 of the act provides an exemption from disclosure of information. The provision specifies that in certain situation such as when the information would prejudicially affect the sovereignty and integrity of India, the security, any foreign relation, economic relation and other information as well. Butthe information in relation to the corruption and human right violation then the authorities under section 8 is bound to disclose the information. It is pertinent to note that in the case of VineetNarain v. Union of India[5], the apex held that “The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Increasing corruption has led to investigative journalism which is of value to a free society.”The offence of corruption is erodes the basic values of free and fair procedure. Also, undermine the basic human right of a citizen. It dilutes the concept transparency and expeditious process.The Central Government under sub-section (2) of section 24 may, by notification in the Official Gazetteinclude any other intelligence or security organization as established by the Government or omit any organization already specified in the second schedule of the Act. Every notification issued under sub section 2 must be laid before the each house of the Parliament.Under sub section 4 of section 24 nothing contained under this act shall apply to such intelligence and security organization as established by the State Government as subject to the proviso of the sub section 4. Any changes made by State Government by way of notification in the Official Gazette, it need to be laid before the state legislature.Section 25 of Right to Information Act, 2005 (Same as Bare act)Monitoring and reporting-(1) The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government.(2) Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section.(3) Each report shall state in respect of the year to which the report relates,—a) The number of requests made to each public authority;b) The number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the number of times such provisions were invoked;c) The number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals;d) Particulars of any disciplinary action taken against any officer in respect of the administration of this Act;e) The amount of charges collected by each public authority under this Act;f) Any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act;g) Recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information.(4) The Central Government or the State Government, as the case may be may, as soon as practicable after the end of each year, cause a copy of the report of the Central Information Commission or the State Information Commission, as the case may be, referred to in sub-section (1) to be laid before each House of Parliament or, as the case may be, before each House of the State Legislature, where there are two Houses, and where there, is one House of the State Legislature before that House.(5) If it appears to the Central Information Commission or State Information Commission, as the case may be that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.2) Meaning/ Significance of Article 25 RTI Act, 2005As the title suggests, Monitoring and Reporting system, the Section 25 of Right to Information act 2005, consists of guidelines for functioning of the monitoring and reporting system so that the act can be implemented and enforced in the best possible manner. One of the biggest issues with the Indian socio-political landscape has been the poor implementation of Acts within the society. Therefore, it is necessary to have a monitoring system to ascertain the success and failures with regards to the enforcement of the Act. This is important in order to achieve the aim of the Act itself. Right to Information Act was brought to strengthen the Democratic structure of the country where the real power lies with the people. 3) Explanation of Clauses of Article 25 RTI Act, 2005As per Section 25(1) of the RTI Act, 2005, The Central as well as State Information Commission is required to prepare a report at the end of each year on the implementation of the provisions of this Act during that year and forward a copy thereof to the “appropriate Government” [defined in Section 2(a)].In order to increase accountability, Section 25(2) mandates that each Ministry or Department in relation to the public authorities within their jurisdiction shall collect and provide such information to the Central/State Information Commission which is required to prepare the report under this section and the report shall basically consist of all the information as given in the Section 25(3). Section 25(3) consists of all the information that needs to be included in the report which help in monitoring and betterment of the Act.Section 25(4) of the same Act is in furtherance with the Section 25(3). By laying down the report before the Parliament and State Legislature, the basic purpose is to essentially involve the Legislature. This report is an analysis of the factual statement of all the action taken by the Public Authorities under the Act and its overall assessment of awareness and social impact, which would allow the Legislature to have an overall look at the actual status of the Act and implement it in a possibly better manner after analyzing all the errors effectively.Section 25(5) of the Act is to maintain the spirit of the Act. If any Public Authority does not effectively conform to the provisions of the act, the “appropriate government” could recommend amendments and reforms. Thereby, making Public Authorities keep up with the spirit and aim of the Right to Information Act. This is more of a remedial clause. The Legislature must be made aware about the progress of the Public authority with regards to conformity to the Act. 4) Need and Importance of Section 25 RTI Act, 2005To ensure the Act penetrates every layer of the society in the best possible manner, this section holds immense significance. It is necessary to-1- Increase Accountability: Annual report system makes the authorities more accountable towards public in general. It becomes simpler to judge the performance of the public authorities and their shortcomings2- Rectification of Errors: With the annual reports, it becomes easier for the state/central government to identify the shortcomings of the public authorities and work upon them in the best possible manner so that the public welfare can be maximized.3- Penetration within the society: It is important that the Right to Information Act, impacts each and every layer of the society from rich to poor, urban to rural. This is for the benefit of the Democratic spirit of the country and ensures people are not exploited with the hands of the authorities.CONCLUSION: Right to information is vital to the democratic society. It empowers the citizen to be informed and participatory. The “right to information is a natural right flowing from the concept of democracy”[6], it is inbuilt in the freedom of speech and expression. It is one of the sacred right of the citizen. It has attains the global acknowledgement. Various countries of world regarded it as a fundamental right. In order to strengthen and promote the true objective of the democracy then the right to information must be preserves. [1]The Right to Information Act, 2005 (Act 22 of 2005).[2]The Right to Information Act, 2005 (Act 22 of 2005).[3]AIR 1989 SC 190.[4]AIR 1982 SC 149. [5]AIR 1998 SC 889.[6]UOI vs. ADR, Writ Petition (civil) 294 of 2001.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 2020. (1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under subsection (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.ExplanationSection 20(1) of the right to information act states that while deciding any complaint or appeal, central or state information commission may impose a penalty of rupees 200 for each day till the application received or information is furnished on information officer which shall not exceed 25,000/- Rs. If it was found that central or state public information officer:1) Has, without reasonable reason, refused to receive an application ,or2) Has not furnished information within the specified period of time, or3) Knowingly given incorrect, incomplete or misleading information, or4) Destroyed information which was the subject of the request, or5) Obstructed in any manner in furnishing informationIt was also stated that before imposing the penalty the concerned information officer shall be given a reasonable opportunity of being heard.The burden will lie upon the central public information officer or the state public information officer to prove that he acted reasonable and diligently. Section 20(2) of the said act states that while deciding any complaint or appeal central or state information commission shall recommend for disciplinary action against the central or state officer under the service rules applicable to him. The action shall be taken against the said officer if it was found that the officer, a) Has, without any reasonable reason, failed to receive an application, orb) Has not furnished information within the specified period of time, or c) Has malafidely denied the request for information, ord) Has knowingly given incorrect, incomplete or misleading information, ore) Has destroyed information f) Obstructed in any manner in furnishing information Cases: Mr. Vinod Kumar v. The Executive Engineer (Bldg.) NGZ & APIO, Office of the Dy. Commissioner Municipal Corporation of Delhi[1]The commission found this case fit under section 20(1) of the act and had seen the error for 100 days. The commission has passed an order of penalizing for 25000/- which is maximum under the act.Johnson B Fernandes v. Goa State Information Commission[2], it was held by Bombay High Court that the information was not supplied within 30 days. In such cases imposition of penalty is proper. Section 21 Protection of action taken in good faith-No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.[1]The mail ingredient of the section as follows:1) Action taken in good faith.2) Doctrine of Immunity.3) Any person.This section is clearly mentioned that the protection is granted to the person who has been provided the information to the other in a good faith. The aforesaid provision is emphatically strengthenthe working process of the public authority. It ensures them to provide information freely and sans having any influence. One of the foremost object of the present provision is to provide maximum information and minimum interference.It is pertinent to explain the word “Good Faith” given under the section in relation to the mentioned statute. The term Good Faith has not been defined under the RTI Act, 2005. But the definition of “Good Faith” has been mentioned under section 52 of the IPC, 1860. It follows as: Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.As in the case of State of Orissa vsBhagabanBarik[2], the Hon’ble Apex Court held that “the question of good faith must be considered with the reference to the position of the accused and the circumstances under which he acted. Good faith requires not logical infallibility but due care and attention. The question of good fait is always a question of fact to be determined in accordance with the proved facts and circumstances of each case”. The analogy of the word good faith is that the person is not acting in a good faith if he has not proceeded with due care and attention. It also means that intention of concerned person must not be mala fide, not involved any dishonest intention. The duty of the public officer is to work fearlessly and uphold the objectives enshrined in the statute. The word due care and attention is sine quo non to the principle of good faith which means that the act of concerned person must be based on appropriate logics or due diligence and proceeded by rational/intangible approach. The degree of reasonableness is depends upon the facts and circumstance of each case.It is pertinent to mention that in the case of Re SK Sundaram[3], the apex court held that “a degree of case, precaution or diligence as may fairly and of the subject matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent would exercise under the condition existing at the time he is called upon to act”. Doctrine of Immunity:Under the said provision the immunity is provided to the person in criminal and civil liability. The immunity is not only provided to the public official but applicant as well and before claiming protection under this provision a person need to established its case under the mentioned provision. The burden is upon the person who has claiming the protection. The main purpose of this section is to avoid unnecessary litigation. It has also grant additional responsibility upon the officials to maintain the confidence in the eyes of public and achieve the object enshrined behind the said statute.Recently in 2016 the Kerela High court has granted immunity to the applicant under section 21 of RTI. The court held that the petitioner’s statement did not make any allegation against the respondent. Apart from merely expressing the reason that weighed with the petitioner for seeking documents under the RTI Act, the statement did not refer to any particular officer/officers. The act of the applicant qualified the test of good faith and it should afford the benefit under section 21 of the Act.[4]It can be understood from the above mentioned case is that the freedom of information is considered to be vital part of our democracy. The right to information is considered as basic human right of the citizen. As in the famous case of state of State of Uttar Pradesh vs Raj Narain&ors[5], the Hon’ble apex court propounded that “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 every public act, everything that is done in a public way, by their public functionaries”Section 22 Act to have overriding effect:[6]The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.The main object and purpose of this provision is to put RTI Act on a higher pedestal. The fulcrum objective of the statue is to enlighten the citizen in terms of education, knowledge, to make participatory regime, public authorities must be accountable to the citizen. In our democratic framework“checks and balances is the basic feature of our constitution”[7]. A right to information is directly flow from the concept of freedom of speech and expression as provided under Article 19(1) (a) of the Indian Constitution. This provision enlarges the scope of RTI law in order to bring transparency in various fields. Nothing should be better than to be an informed citizen. The right to information act has transformed the India’s public authorities as well as the other into responsible/accountable/openness and brings confidence in the eyes of general public. The idea behind the statue is to eradicate the corruption into the various fields. “Corruption is an antithesis to our democracy”[8].Section 22 relations with the provision of other statues:[9] It must be stated that when there is conflict between the RTI Act and other Acts, than the formal would be given more weightage. As importantly mentioned in the case of P.C Wadhwavs C.I.C, the court held that the “insertion of non obstante clause in section 22 was a conscious choice of the Parliament to safeguard the citizens fundamental right to information. It is a rule statutory interpretation that a legislature does not introduce unnecessary clauses in legislations. Hence, it is imperative that section is applies and not rendered ineffective.”[10]The intention and purpose behind the present provision is maintain the supremacy, if an application has been filed before the authorities with respect to seeking of any information, than the public officer has a statutory duty to provide particular information but this provision is subject to the provision of section 8 of the act. The fundamental right of information is not an absolute right the authorities may deny if such information is pertains to the non-disclosure matter. It is pertinent to mention that recently Government of India has tried to taken an advantage under the Official Secret Act, 1923 of some documents related to Rafal Aircraft, the Attorney General of India Shri K.K Venugopal has said that the documents are protected under the said act and are not liable to disclosed in the public. Also, said that it is a matter of security of India. But the bench comprises of Hon’ble chief Justice of India RanjanGogoi and Ho’ble Justice K.M Joseph rejected the arguments of the Government of India, and allowed the preliminary objection of the appellant. The court held that as the claim of immunity under section 123 of the Evidence and official Secret act is not tenable. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest. The purpose of the RTI Act is to provide information of non-disclosure matters if there is any allegation of corruption and human right violation are attached to it.[11]The relation of the present provision with the Constitution of India, under article 361, the Governor has the right to claim immunity and is not answerable to the court of law in exercise and performance of duties under the constitution. But it does not take away the power of the court to examine the validity of his action including on the ground ofmala fide or any arbitrarily decision or exercise power beyond the Constitution. In such circumstances “the Governor or the PIO in his office cannot claim immunity from disclosure of any information under the Act.”[12] [1]The Right to Information Act, 2005 (Act 22 of 2005).[2] AIR 1987 SC 1265: AIR 1966 SC 97.[3](2001) I CCR 45 (SC).[4]https://www.thehindu.com/news/national/rti-applicant-gets-protection-against-legal-action/article7619764.ece.[5]AIR 1975 SC 865.[6]The Right to Information Act, 2005 (Act 22 of 2005).[7]AIR 1973 SC 1461.[8](2012) 3 SCC 64.[9]The Right to Information Act, 2005 (Act 22 of 2005).[10]AIR 2011 P&H 137 (138-39).[11]WRIT PETITION (CRIMINAL) NO. 298 OF 2018.[12] P.I.O v ManoharParrikar, AIR 2012 Bom 71.
NOTES ON RIGHT TO INFORMATION ACT ,2005
Section 17:The state government through official gazette shall constitute State information commission which shall consist Chief information commissioner and other information commissioners as it deemed necessary and shall be appointed by the governor of the state. This is a statutory body which is constituted under section 15 of the Right to information act, 2005. The procedure for suspension and removal of State chief information commissioner or a state information commissioner is being inserted under section under 17 of the said act.Section 17 of Right To Information Act, 2005. 17. (1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report ofthe Supreme Court on such reference.(3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,—(a) is adjudged an insolvent; or(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or(c) engages during his term of office in any paid employment outside the duties of his office; or(d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.Explanation:Section 17 grands power to the governor of the state to suspend or remove State chief information commissioner or state information commissioner.The governor of the state shall make a reference to the supreme court after due inquiry over commissioner. There are 5 grounds mentioned under section 17(3) of this act on which a chief information commissioner or state information commissioner shall be removed or suspended. 1. If the person becomes insolvent, or 2. If the person has been convicted of an offence which involves moral turpitude according to the opinion of governor, or3. If the person, during the term of the office gets engaged in any paid employment outside the duties of his office, or4. According to the opinion of the governor, the person is not fit to continue the office because of infirmity of mind or body, or5. If it was found that the person has acquitted some financial or other interest which will affect his functions. Section 17(1) states that subject to the above mentioned grounds, a person shall be removed from the office if misbehaviour or incapacity is proved on the order of governor of state after the report of the supreme court. The governor shall refer the matter to the supreme court. Section 17(2) talks about the suspension of chief information commissioner or state information commissioner will be made by governor of state and if it deem necessary, governor can also prohibits commissioner from attending his officer at the time of Inquiry. Governor shall refer this it supreme court and on the receipt of report of supreme court the order of suspension shall be passed by governor of state. Section 17(4) states what amounts to misbehaviour?If the person is concerned or is interested in any type of contracts or agreements made by the government of state or on his behalf or if he has participated in any type of profits or any kind of emoluments or benefits are arising out of such participation. This amounts the person guilty of misbehaviour under section 17(1). Cases:Virender Singh Choudhary v. Union of India & Others[1]In this particular case the question was arose in front of the Madhya Pradesh High Court that appointment of chief information commissioner or information commissioner is in violation of Article 14 of the Constitution of India. It was held that exclusion of certain categories are not unreasonable. Therefore, it was held that provisions for appointment for commissioner are not hit by Article 14 of the constitution of India. Section 18The chief information commissions have been allotted some powers and function which is being inserted under section 18 of the Right To Information Act, 2005. 18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,—a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in subsection (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;b) who has been refused access to any information requested under this Act;c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;d) who has been required to pay an amount of fee which he or she considers unreasonable;e) who believes that he or she has been given incomplete, misleading or false information under this Act; andf) in respect of any other matter relating to requesting or obtaining access to records under this Act.(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:—a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;b) requiring the discovery and inspection of documents;c) receiving evidence on affidavit;d) requisitioning any public record or copies thereof from any court or office;e) issuing summons for examination of witnesses or documents; andf) any other matter which may be prescribed.(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds. Explanation:section 18(1) says that it will be the duty of the commissions to receive and inquire into a complaint from any person. If the commissioner is satisfied that grounds on which the complaint is filed is reasonable, may initiate an inquiry. Further reasons were specified on which complaint can be filed by any person under this sub-sectiona) if no such officer has been appointed or because his application has not been accepted for information or appeal under this act.b) if any person who has been refused access to any information which was requested under this act. c) If any person who has not received any response for his information within the specified time limit under this act. d) If a person has been required to pay certain amount which is according to him is considered unreasonable, e) If a person believes or has reason to believe that he has been provided incomplete, misleading and false information.f) Any matter which is related for requesting or obtaining access to records. The Madras High in V.V. Mineral Tisaiyanvilai District v. Director of Geology and Mining, Chennai[2], Under this case it was held that commission is a wider body with all powers of civil court.The Supreme Court in Chief Commissioner v. State of Manipur[3], in this case it was held that the information request which is refused cannot be directed to be given by commission. Public Information Officer v. Manohar Parrikar[4], apex court held that if the State Information Commission is not a multimember body. It cannot exercise its power under section 18 of the ActSection 18(2) states that if the central information commission or state information commission is satisfied that reasons on which the complaint has been filed are reasonable, it may initiate an inquiry in that matter. Section 18 sub-section 3, states that central information commission or state information commission shall be having same powers as vested in a civil court. Code of civil procedure, 1908 will be applicable in the matters listed below. a) When the person has been summoned and enforced the attendance and for giving oral or written evidence on oath and to produce the documents or things.b) Then person was required to discover and inspect documents.c) When the evidence on affidavit was receivedd) Requisition of any public record or copies form any court or officee) When the summons were issued for examination of witness or documents and f) Any other prescribed manner.Section 18(4) of the said act states that in spite of anything inconsistent contained in any other acts, the commission may inquire any record, · To which the appeal lies · Record which is under the control of any public authority· The records will not be withheld from it on any grounds Cases:In the case of Shri Manjay Kumar Singh, v. The First Appellate Authority (RTI), Roorkee Uttrakhand[5], it was complained by an Applicant to the Central Information Commission that he did not receive any reply from the Central Public Information Officer on his RTI-Application. It is noted that the Complainant did not have an opportunity to go to the Appellate Authority and has directly approached the Commission with his complaint. In exercise of powers vested under Section 18(2), it was directed to the Appellate Authority to enquire into the allegations made by the Complainant and to pass an order after giving him an opportunity of being heard.Section 1919. (1) Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to—a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including— i. by providing access to information, if so requested, in a particular form; ii. by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; iii. by publishing certain information or categories of information; iv. by making necessary changes to its practices in relation to the maintenance, management and destruction of records; v. by enhancing the provision of training on the right to information for its officials; vi. by providing it with an annual report in compliance with clause (b) of subsection (1) of section 4;b) (b) require the public authority to compensate the complainant for any loss or other detriment suffered;c) (c) impose any of the penalties provided under this Act;d) (d) reject the application.(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.Explanation:In sub-section 1 of section 19 of this act, it was stated that a person can appeal to the officer who is senior in rank to the central public information officer of state public information officer if he did not receive decision within specified in sub-section 1 or clause (a) of sub-section 3 of section 7, or if a person is aggrieved by the decision of information officer. The appeal can be filed within 30 days from the expiry of such period or from receipt of such decision. Appeal can also be accepted after the expiry of such period if the said officer is satisfied that appellant was prevented by sufficient reasons from filing the appeal on time. In sub-section 2 of section 19, it is stated that appeal should be made within a period of 30 days from the date of order by concerned third party if the appeal is made against the order by central information officer or state information officer in respect of order under section 11 to disclose third party information. In sub-section 3 of section 19, it is stated that appeal should against the order under sub-section 1 of section 19 should be made within 90 days from the decision from the decision should have been made or was actually received. The appeal may be accepted after 90 days period if it was found that the appellant has sufficient reason for the delay. In sub-section 4 of section 19, it is stated that if the decision of the appeal is related to information of a third party, then third party should be given reasonable opportunity of being heard.In sub-section 5 of section 19, it is stated that in any appeal proceeding the onus to prove that the denial was justified will be upon the central or state commission information officer who denied the request. In sub-section 6 of section 19, it is stated that the appeal under sub-section 1 or 2 shall be disposed with 30 days from the receipt or period not extending 45 days from the filing with recording the reasons for the same in writing. In sub-section 7 of section 19, it is said that the decision of the central and state information commission shall be binding in nature.In sub-section 8 of section 19 grants some powers to central or state information commission in its decision.a) To require to take steps to secure compliance with the provision of this act, including I. Providing access to information II. Appointing a central or state information officer III. Publication of certain documents or categories of information IV. Making necessary changes in relation to maintenance, management and destruction of records, V. Provision of training on the right to information for its officials, VI. Providing annual repotb) To require the authority for compensation of any loss or other detriment sufferedc) To impose penalties provided under this act, d) To reject the applicationIn sub-section 9 of section 19, it is stated that notice for decision, including any right of appeal should be given by the central or state information commission to the complainant and the public authority.In sub-section 10 of section 19, it is stated that the appeal shall be decided in accordance with the procedure prescribed in the act. Cases:Mumbai v. Rui Ferriera[6], Bombay High Court in this case held that remedy available to person aggrieved is to file appeal in accordance with section 19 of the Act. Sh. Uday Nath v. CPIO, Department of Post[7], in this case department of posts declined to furnish the information and also advised the applicant to the applicant to prefer an appeal directly to the commission on the ground that the decision has been taken at the highest level in the department. It was made clear by the commission that irrespective of at what level a decision is taken the procedure prescribed by the statute cannot be given a go by. [1] AIR 2007 MP 26. [2](2007)4 MLJ 394.[3]AIR 2010 SC 864.[4]AIR 2006 SCW 494.[5] CIC/LS/C/2013/000083/RM. [6]AIR 2012 Bom 1.[7]ICPB/A-6/CIC/2006.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 14 in The Right To Information Act, 2005.14. Removal of Chief Information Commissioner or Information Commissioner.—(1) Subject to the provisions of sub‑section (3), the Chief Information Commissioner or any Information Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Chief Information Commissioner or any Information Commissioner, as the case may be, ought on such ground be removed.(2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Chief Information Commissioner or Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub‑section(1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.(3) Notwithstanding anything contained in sub‑section (1), the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be,—(a) is adjudged an insolvent; or(b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude; or(c) engages during his term of office in any paid employment outside the duties of his office; or(d) is, in the opinion of the President, unfit to continue in office by reasonof infirmity of mind or body; or(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or a Information Commissioner.(4) If the Chief Information Commissioner or an Information Commissioner is, in any way, concerned or interested in any contract agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub‑section (1), be deemed to be guilty of misbehaviour.MEANING: - · SECTION 14 OF THE RTI ACT, 2005 TALKS ABOUT THE REMOVAL OF INFORMATION COMMISSIONER OR DEPUTY INFORMATION COMMISSIONER.· THE CHIEF INFORMATION COMMISSIONER OR THE INFORMATION COMMISIONER CAN BE REMOVED BY THE ORDER OF THE PRESIDENT IF ANY KIND OF MISBEHAVIOUR OR INCAPACITY IS FOUND ON THE PART OF THE CHIEF INFORMATION COMMISSIONER OR THE INFORMATION COMMISSIONER.· THE PRESIDENT HA ALSO THE POWER TO SUSPEND THEM FROM THE OFFICE AND IF DEEM NECESSARY CAN ALSO PROHIBIT THEM FROM ATTENDING THE OFFICE DURING THE ENQUIRY PROCESS.· THE PRESIDENT CAN REMOVE THE CHIEF INFPORMATION COMMISSIONER OR THE INFORMATION COMMISSIONER ON THE FOLLOWING GROUNDS: -(1) IS ADJUDGED AN INSOLVENT;(2) HAS BEEN CONVICTED OF AN OFFENCE;(3) ENAGES DURING HIS TERM OF OFFICE IN ANY PAID EMPLOYMENT OUTSIDE THE DUTIES OF HIS OFFICE;Section 15 in The Right To Information Act, 200515. Constitution of State Information Commission.—(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the____________.(name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.(2) The State Information Commission shall consist of—(a) the State Chief Information Commissioner; and(b) such number of State Information Commissioners, not exceeding ten, as may be deemed necessary.(3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of—(i) the Chief Minister, who shall be the Chairperson of the committee;(ii) the Leader of Opposition in the Legislative Assembly; and(iii) a Cabinet Ministrer to be nominated by the Chief Minister. Explanation.—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of the Opposition.(4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act.(5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.(7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish Offices at other places in the State.MEANING: - · SECTION 15 OF THE RIGHT TO INFORMATION ACT TALKS ABOUT THE CONSTITUTION OF STATE INFORMATION COMMISSION· ALSO, IT IS MENTIONED UNDER THE CHAPTER IV OF THE RIGHT TO INFORMATION ACT, 2005.· THE STATE INFORMATION COMMISSION SHALL CONSIST OF THE STATE CHIEF INFORMATION COMMISIONER AND SUCH NUMBERS OF STATE INFORMATION COMMISSIONERS MUST NOT EXCEED BY 10.· THE STATE CHIEF INFORMATION COMMISIONER AND THE STATE INFORMATION COMMISIONERS SHALL BE APPPOINTED BY THE GOVERNOR ON THE RECOMMENDATION OF A COMMITTEE CONSISTING OF-----(1) THE CHIEF MINISTER WHO WILL BE CONSIDERED AS THE LEADER OF THE OPPOSITION IN THE LEGISLATIVE ASSEMBLY;(2) A CABINET MINISTER TO BE NOMINATED AS THE CHIEF MINISTER.· ALL THE DIRECTION , MANAGEMENT, GENERAL SUPERINTENDANCE OF THE AFFAIRS OF THE STATE INFORMATION COMMISSION SHALL VEST IN THE STATE CHIEF INFORMATION COMMISSIONER.· THE STATE CHIEF INFORMATION COMMISIONER OR A STATE INFORMATION COMMISIONER MUST NOT BE A MEMBER OF PARLIAMENT OR MEMBER OF THE LEGISLATURE OF ANY STATE OR UNION TERRITORY Section 16 in The Right To Information Act, 200516. Term of office and conditions of service.—(1) The State Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty‑five years.(2) Every State Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty‑five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner: Provided that every State Information Commissioner shall, on vacating his office under this sub‑section, be eligible for appointment as the State Chief Information Commissioner in the manner specified in sub‑section (3) of section 15: Provided further that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner.(3) The State Chief Information Commissioner or a State Information Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.(4) The State Chief Information Commissioner or a State Information Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office: Provided that the State Chief Information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17.(5) The salaries and allowances payable to and other terms and conditions of service of—(a) the State Chief Information Commissioner shall be the same as that of an Election Commissioner;(b) the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government: Provided that if the State Chief Information Commissioner or a State Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Information Commissioner or a State Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that where the State Chief Information Commissioner or a State Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State Chief Information Commissioner or the State Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment.(6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.MEANING: -· The state Chief Information Commissioner and the state Information Commissioner can hold the office for a time period of 5 years and after that they will have to vacate the office. Also, the maximum age for above mentioned position is up to 65 years of age. The state Chief Information Commissioner or a state Information Commissioner may at any time, by writing under his hand addressed to the Governor, resign the office. The state Chief Information Commissioner is same as an Election Commissioner, The state Information Commissioner is same as that of the Chief secretary to the State Government. It is the duty of the State Government to provide the State Chief Information Commissioner and the State Information Commissioner with such officers and employees as may be necessary for the efficient performance of their function under this act, and the salaries and the allowances payable to and the terms and conditions of the service of the officers and the other employees appointed for the purpose of this act shall be such as may be prescribed. · .·
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section11. Third party information-1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of such information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. This section in whole protects the rights of any third party in relation to whom any information is requested to be disclosed and the same information has been treated as confidential by the third party. No one has right to disclose any information which is confidential to any person without his or her permission or without providing an opportunity to represent his views upon non-disclosure of the information. This section more or less is an implementation of the right to privacy conferred on all the citizens of India. The section avoids the misuse of the right to information in order to bother someone with unnecessary disclosure of the information which is more private and personal to a person. The section should always be read with the section 8(1) (j) which will add more meaning to the section and clarify the intent of legislature behind this section.The sub-section (1) of the section states that the CPIO or SPIO upon receiving an application for the information which is related to or supplied by any third party and that information is regarded as confidential by the party. The CPIO or SPIO intends to disclose such information upon the application in respect of any information or record or any part thereof so received, within five days from the date of the receipt of the application serve a written notice upon the third party stating the request and that the CPIO or SPIO intends to disclose the information and invite the third party to make its submission whether the information should be disclosed in writing or orally. The submission by the third party upon the service of such notice should be kept in view while deciding upon the disclosure or non-disclosure of the information. The proviso to sub-section (1) states that except in the cases which is related to trade and commercial secretes which are protected under the law for the time being in force in India can be disclosed if the disclosure of the information outweighs the public interest at large in comparison to the harm or injury to interests of the third party involved. The sub-section (2) of the section states that the third party upon receiving a notice under sub-section (1) by the CPIO or SPIO in respect of any information or record or part thereof the third party shall be given an opportunity to represent against the proposed disclosure within ten days from the date of the receipt of the notice by the third party.The sub-section (3) states that the in spite of the time limits provided under section 7 of the Act, the CPIO or SPIO shall make an decision upon disclosure or non-disclosure of the information within forty days from the date of the receipt of the application under section 6 of the Act if the third party has been given an opportunity of representation under sub-section (2) and shall in writing serve the notice upon the third party of the decision. The sub-section (4) states that the notice served upon the third party under sub-section (3) include a statement that the third party has right to appeal against the decision of the disclosure in accordance with the provisions under section 19 of the Act.This section of the Act holds an importance in safeguarding the right of privacy of any person. In this particular section, the information requested is related to a third party which had kept the information as a confidential information, disclosure of such information cannot be disclosed without providing an opportunity to the third party to make an submission against the disclosure of the information, disclosure of which might invade the privacy of the third party. The section does not give any veto power to the third party in relation to non-disclosure of the information lest it provides only an opportunity to present its objections against the disclosure of the information.In the case of Arvind Kejriwal v. Central Public Information Commission, the appellant has primarily questioned and challenged the interpretation of the Section 11 of the Right to Information Act, 2005 in the impugned decision. The question, therefore, arises as to what is the intent of the legislative intent behind section 11. The intent of the legislature is clear and reflected in the proviso which spells out the parameters when third party information can be furnished or denied to the information seeker. The said proviso has to be read with along with the exemptions which is provided under section 8 specially section 8(1)(j) which permits denial/disclosure of personal information which has no relationship with a any public activity or interest; or which cause unwarranted invasion of the privacy of an individual unless larger public interest justifies disclosure of such information. The court further observed that Section 11(1),(2),(3) and (4) are the procedural provisions which have to be complied with by the PIO/Appellant authority; when they are required to apply the said test and give a finding whether information should be disclosed pr not disclosed. If the said aspect is kept in mind, there would be no difficulty in interpreting section 11(1).In the case of Mr. Anand D Kharade v. Ministry of Communication and Information Technology, the applicant in the instant case has requested to disclose the number of charge sheet had been issued in their tenure against Shri. N.B. Kepkar and Shri. S.G. Mallapur. The CPIO in reply stated that two charge sheet were issued against the first person and the second person has requested not to disclose personal information under section 11 of the RTI Act, 2005. The applicant has appealed against the information as he was unsatisfied with the information provided. The Commission was of the view that section 11 of the RTI Act prescribes a procedure to be followed in case of the third party information and cannot be used as an exemption for non-disclosure. The commission observed that the information sought by the appellant is not covered by any exemption stipulated in section 8 of the RTI Act. In the case of J.B. Kohli v. New Delhi Municipal Council (NMDC), the Central Information Commission clarified following two issues on the information provided by the third party- i. Every document provided by the third party is not governed by the provision of section 11(1) of the Act. It is only those documents which are personal or private in nature attract the provisions of section 11(1). Thus, section 11 (1) of the RTI Act is applicable to only that information which has been given in good faith or in confidence by the third party. ii. The second issue clarified was that the third party which was involved at the lower level, has to be heard by the Commission at appeal level also. If it is not allowed it would be against the principles of natural justice and fair play, such third party has right t protect his interest at every level, once he is involved in the proceedings.Section 12 Constitution of Central Information Commission –1) The Central Government shall, by notification in the Official Gazette, constitute a body to be known as Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.2) The Central Information Commission shall consist of-a) the Chief Information Commissioner, andb) such number of Central Information Commissioners not exceeding ten as may be deemed necessary.3) The Chief Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of- i. the Prime Minister, who shall be the Chairperson of the committee; ii. the Leader of Opposition in the Lok Sabha; and iii. a Union Cabinet Minister to be nominated by the Prime Minister.4) The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioners who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.5) The Chief Information Commissioner and Information Commissioners shall be person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.6) The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any office of profit or connected with any political party or carrying on any business or pursuing any profession.7) The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with previous approval of the Central Government, establish offices at other places in India. The section 12 of the Act states the provisions related to the establishment and composition of the Central Information Commission. The commission is appointed by the Central Government. The section further deals with the appointment and tenure of the Chief Information Commissioner and Information Commissioners. The section also deals with the qualifications and disqualification of the members of the commissions as well as the provisions related to their salary and allowances. The duties and powers of the commission as prescribed in the other provisions of the Act. The sub-section (1) of section 12 states that by notification in the Official Gazette the Central Government shall constitute a body to be known as Central Information Commission. The body so constituted shall exercise all the duties and perform all the functions conferred upon it under this Act. The sub-section (2) states the composition of the Central Information Commission which shall consist of the Chief Information Commissioner and Information Commissioners as may be deemed necessary but not exceeding ten in number. The sub-section (3) states that the Chief Information Commissioner shall be appointed by the President upon recommendation of the committee consisting of Prime Minister, Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The Prime Minister shall be the chairperson of the committee.The sub-section (4) states that the Chief Information Commission shall be the governing authority of the Commission and all the powers related to management, superintendence and direction shall vest in the Chief Information Commissioner. The Chief of the Commission shall be assisted by the other Information Commissioners. The Information Commissioners may exercise all the powers and things to do any act which is to be performed autonomously by the Chief Information Commission without any prior consent of any other authority as per the provisions of this Act.The sub-section (5) states that the Chief Information Commissioner and Information Commissioners shall be an eminent person in public life and hold wide knowledge and experience in the fields of law, science and technology , social service, management, journalism, mass media or administration and governance. The sub-section (6) states that the Chief Information Commissioner or the Information Commissioner shall not be member of any legislative body at the Central or in any States or in the Union Territory. They should not hold any other office of profit under any political party or carry on any business or any other profession. The sub-section (7) states that the headquarters of the Central Information Commission shall be at Delhi and at other places in India with previous approval of the Central Government. The section holds its importance in its clarity which precisely shows the manner of the appointment, the composition, the qualifications and disqualifications, the parameters of salary and allowances. This unambiguous provisions shows that the legislature intended to have a procedure without any vagueness which might have delayed the appointment of the commissioners which might have further delayed the other main objectives inserted in the provisions of the Act which were to be performed under the supervision and guidance of the Central Information Commission. The section 12 of the Act is out and out a complete provision in itself the only problem is in the composition of the committee for the recommendation of the Chief Information Commissioner to the President. The composition has an imbalance and the majority is always in the favor of the Prime Minister because the third member is nominated by the Prime Minister who might always favor the decision of the Prime Minister because of which the opinion of the Leader of the Opposition would have no value in the final decision of the committee.The Honorable High Court has observed in Delhi Development Authority v. Central Information Commission that:“Thus the flow of information is not to be an unregulated flood. It needs to be controlled just as the flow of water is controlled by a tap. Those empowered to handle this tap of information are imbued with great power. Under this Act, this power is to be exercised by the Information Commission (State or Central). But, the power is clearly not plenary, unrestricted, limitless or unguided. The Information Commissions are set up under the said Act and they have to perform their functions and duties within the precincts marked out by the legislature.” Namit Sharma v. Union of India, the petitioner alleged that the eligibility criteria under Section 12(5) and 12(6) are vague and ultra vires the Constitution. The court did not agree that Section 12(5) of the Act offended the doctrine of equality as they did not discriminate against any person in the matter of appointment. Nor did Section 12(6) offend the doctrine of equality, as it should be interpreted to mean that an individual, once appointed as a Chief Information Commissioner or Information Commissioner, “cannot continue to be a Member of Parliament or Member of the State Legislature or Union Territory,” so as to avoid any potential conflict of interest. Although the Court acknowledged that there may have been valid concerns about individuals appointed to the Information Commissions not having “the required mind to balance the interests indicated in the Act,” it concluded that it was ultimately “for the Parliament to consider” whether appointment required judicial experience.Section 13 in The Right To Information Act, 200513. Term of office and conditions of service.—(1) The Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty‑five years.(2) Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty‑five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner: Provided that every Information Commissioner shall, on vacating his office under this sub‑section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub‑section (3) of section 12: Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.(3) The Chief Information Commissioner or an Information Commissioner shall, before he enters upon his office make and subscribe before the President or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.(4) The Chief Information Commissioner or an Information Commissioner may, at any time, by writing under his hand addressed to the President, resign from his office: Provided that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under section 14.(5) The salaries and allowances payable to and other terms and conditions of service of—(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;(b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.(6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to, and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.Meaning:SECTION13(1): -MAXIMUM TIME PERIOD AND AGE FOR THE CHIEF INFORNMATION COMMISSIONER ISTime period: - 5 years.Age: - 65 years.Also, the chief information commissioner shall not be eligible for reappointment.Section 13(2): -MAXIMUM TIME PERIODAND AGE FOR THE INFORMATION COMMISSIONER ISTime period: - 5 years.Age: - 65 years.Also, the Information commissioner shall not be eligible for reappointment. But, on vacating his office can be eligible for the appointment as a chief information commissioner and his term of office shall not be more than aggregate as the information commissioner and the chief information commissionerACCORDING TO SECTION13(3),SECTION13(4),SECTION13(5),· THE CHIEF INFORMATION COMMISSIONER OR AN INFORMATION COMMISSIONER MAY, AT ANY TIME RESIGN BY WRITING HIS HAND ADDRESSED TO THE PRESIDENT, RESIGN FROM THE OFFICE.· THE CHIEF INFORMATION COMMISSIONER SHALL BE THE SAME AS THE CHIEF ELECTION COMMISSIONER;· AN INFORMATION COMMISSIONER SHALL BE SAME AS THAT OF AN ELECTION COMMISSIONER.
NOTES ON RIGHT TO INFORMATION ACT, 2005
Section 8 (Exemptions under RTI Act 2005)Section 8(1): Notwithstanding anything contained in this act, there shall be no obligation to give citizen-A) Information if discloses would prejudicially affect the sovereignty & Integrity of the state, relation to foreign state or lead to incitement of an offenceB) Information which has been expressly forbidden by court of law or tribunal or disclosure would lead to Contempt of CourtC) Disclosure of Information would cause breach of privilege of Parliament or State LegislatureD) Information including Commercial Confidence, Trade Secrets or IPR, the disclosure would harm the competitive position of third party unless the competent authority is satisfied that larger public interest is involvedE) Information available to a person in fiduciary relationship unless the competent authority is satisfied that larger public interest is involved F) Information received in confidence from Foreign GovernmentG) Information whose disclosure would endanger the life or physical safety of any personH) Information which would impede the process of investigation or apprehension of offendersI) Cabinet papers include deliberation of Council of Ministers, Secretariat & other officersJ) Information which relates to personal information and has no relation to public activity and whose disclosure would lead to invasion of privacy unless CPIO or SPIO or AA satisfied that larger public interest is involvedSection 8(2): Notwithstanding anything contained in the official secrets act or exemptions provided under subsection (1) unless the case may be provided access if Public Authority is satisfied that public interest would outweighs the harm to the protected interestSection 8(3): Subject to clause (a) & (c) of subsection (1) information related to occurrence or matter which has taken place before twenty years before the date on which such request has been made under Section 6. The decision of Central government shall be final while computing twenty years.Landmark JudgmentsGuideline Relating to Section 8(1) of the RTI Act 2005 IN THE Central Information CommissionNew DelhiDecided On 07 .07.2006Decision No. CIC/OK/A/00163Appellants: Dhananjay TripathiVs.Respondent: Banaras Hindu UniversityBrief Facts:The appellant had applied for seeking information in relation to the death of the student of the university due to the negligence by the university doctor. The PIO denied to provide information to the appellant under section 8(1)(g) without providing any further reason why such information could not be given to the appellant.Judgment:The commission held that under Section 8(1), the authority has to provide proper reason while denying or refusing to give the information and if proper reason is not provided by the concerned authority it would lead to mala fide denial of legitimate information. Not Providing the reason for how the application was rejected would attract the penalties under Section 20(1) of the act.Guideline Relating to Section 8(1)(e) of the RTI Act 2005 IN THE Central Information CommissionNew DelhiDecided On 19.08.2009Case No. CIC/AD/A/2009/000857Appellants: Ms. TarunaPahujaVs.Respondent: A.I.I.M.SBrief Facts:The Appellant has filed the RTI Application seeking her information while she was under psychiatric treatment in AIIMS. She has divorced her husband and all the documents is with him and he has not providing to produce before court of law. the PIO has said that communication has already been provided. Not satisfied with the order she has filed appeal and it was dismissed that patient information should be disclosed to himself/herself or court of law. It was ordered that appellant has to prove his identity as Mrs.TarunaPahujabefore CPIO. not satisfied with the order she has filed second appeal before appellate authority. Judgment:The commission has upheld the order of the appellate authority that such information is in fiduciary relationship and falls under Section 8(1)(e) of the act and would only be disclosed to the patient himself/herself or to court of law. As the appellant has to prove its identity to the CPIO by providing any document which provide veracity of its identity. Unless the identity is not established, no information should be provided to the appellant and Appellate Authority is justified in its action of denying of access to such information.Guideline Relating to Section 8(1)(j) of the RTI Act 2005 In The Hon’ble High Court of New DelhiDecided On 24.01.2017WP (C) No. 624/2107Appellants: B.B. DashVs.Respondent: Central Information Commission &Anr.Brief Facts:The petitioner impugned the order dated 22.11.2016, the CIC has held the CPIO liable for not providing information to the concerned party without any cogent reasons and has imposed a liability of maximum amount of Rs 25,000 on the petitioner.Judgment:The High Court of Delhi in its order held that the Central Information Commission has not erred in imposing liability on the CPIO because the information has not been provided to the concerned party without giving cogent explanation. Thus, order of the Central Information Commission is within the framework of the law. Section 9.Grounds for rejection to access in certain cases.- Without prejudice to the provisions of section 8, a Central Public Officer or State Public Information Public Officer, as the case may be reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.The section basically states that without abridging the exemptions under section 8 of the Act, the authorities, as appointed under the provisions of the Act, receiving an application requesting an information disclosure of which might be infringe the copyright subsisting in a person, the concerned authorities under the said section may reject such application. The exemption under the section is not applicable upon any work of the State though the work is covered under the Copyright Act, 1957.The exemption provided under the section does not add any qualification to the exemption rather it is an absolute exemption. It is a step in order to avoid any misuse of the RTI Act by the Government Agencies, especially in regard to the matter related with infringement of copyright. The other importance of the section is to safeguard the copyright of any person.The legislature should amend the provisions clarifying the works which might be covered under the section to avoid any unnecessary initiation of proceedings before the exemption as the section which explicitly defines the ambit covered under the exemptions.Mr. Kuldeep Singh Tomer v. Mcd, Gnct Delhi, in the instant case the third party relied upon the definition of the ‘artistic work’ under Section 2(c) of the Copyright Act and other relevant authorities to argue that the disclosure of the building sanction plan(s) would be an violation of the intellectual property rights of the architect. The Commission accepted the contention of the third party and stated that disclosure of the building sanction plan may be an infringement of the intellectual property right and may be exempted from disclosure under Section 9 of the RTI Act. The closing lines of the section clearly states that the information with held under the authorities which are state as defined under Article 12 of the Constitution whether covered under the provisions of the Copyright Act, 1957 or not cannot be exempted from disclosure of such information underlining the exemption provided under section 9 of the Act which are exempted only in the case of copyright vested in any other person. In Sudhir Vohra v. Delhi Metro Rail Corporation, the Central Information Commission held that the Delhi Metro Rail Corporation, being ‘state’ under Article 12 of the Constitution of India, could not claim exemption on the ground that the engineering and structural design was its intellectual property and was covered under the Copyright Act, 1957.In the case of Pramod Sarin v. University, the Commission held that the copies of test booklets, solutions etc. cannot be denied on the grounds that it would harm the competitive position of other candidates and solutions are the intellectual property of the University. The Commission also held that by no stretch of imagination can mere solutions of questions be treated as a matter of either copyright or intellectual property and there is no element of creativity involved in setting an objective type question paper for any examination. Section10 Severability-1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the information which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part of that contains exempt information.2) Where access is granted to part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be shall give a notice to the applicant, informing-a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;b) the reasons for the decision, including any findings on any material questions of fact, referring to the material on which those findings were based;c) the name and designation of the person giving decision;d) the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; ande) his or her rights with respect to review of decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access. The section is based upon the principles imbibed under the Doctrine of Severability. The doctrine states that if any part does not fall within the words of law in spite of discarding it in whole any part of the main article is valid and in accordance with the law which can be severed from the main article and can stand alone such part should be severed. Under the Act the principle is included in the context of the information which is not exempted from disclosure. The doctrine provides for an opportunity to the part of the information which can be disclosed and it does not fall within any exemption which might have been rejected due to the information requested containing few part to be exempted from disclosure and if such part can be easily severed from the information which cannot be disclosed such information can be disclosed with the help of this section by the authorities having power to make such decision.This section of the Act states that if the information requested falls under any exemption provided within the Act and such application is rejected upon the same grounds, in spite of anything containing in the Act, those part of the information may disclosed which does not fall within the exemption provided under the Act and such part can be reasonably be dissociated from that part of the information which is exempted from disclosure [sub-section 1]. The sub-section (2) of the section states that if such information is disclosed within the sub-section (1) the authorities allowing disclosure of such information shall provide the applicant with following particulars through a notice- I. that only part of the information requested is provided after severing that part of the information which is exempted from disclosure; II. the reasoning behind the decision so taken and other finding upon the material question of fact and on which the decision is based; III. the name and designation of the person finalizing the decision; IV. the details of the fees calculated by the officer and the amount payable by the applicant which is to be deposited; and V. the rights of the applicant in relation to review the decision of non-disclosure of the part of the information, the fees charged or the form of access provided, time limit, process to be followed and any other form of access including the particulars of the senior officer as provided under section 19(1) or the Central Information Commission or State Information Commission. This section is important to safeguard the right of the applicant whose application can be out rightly rejected upon the grounds of non-disclosure without scrutinizing all the portions of the application and severing those parts which can be disclosed and are not exempted under any part of the Act.
NOTES ON PREVENTION OF CORRUPTION ACT, 1988 PART
Section 30 – Prevention of Corruption Act, 1988: Repeal and saving.—(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.Meaning and literal explanation: · Section 30(1) states that the Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) have been thusannulled.· Section 30(2) of the act states that there shall be no prejudice towards the application of section 6 of the General Clauses Act, 1897[1] which states the effect of repeal of any act or any statute, and thus any action being taken or anything done in the pursuance of the acts repealed by the section 30(1) of the said Act, shall stand saved in pursuance of the corresponding provision of this act as long as it does not stand in derogation with any of the provisions of this Act. Need and Importance of section 30 of the Prevention of Corruption Act, 1988 :The sole reason of the enactment of the Prevention of corruption Act, 1947 was to prevent the rampant and serious increase in the corruptive practices that came to a rise at the time of independence of our nation. This act was enacted by the parliament because of the extensive bribery and corruption amongst the public servants which had increased enormously on account of the second world war conditions where the disbursement of the public money in large quantities was involved and the provisions of the Indian Penal Code, 1860 stood somewhat inadequate in order to stand as a basis for the actions being taken against these corrupt public servants. However this act being a social piece of protection against corruption which was guaranteed by the Constitution of India, was repealed under section 30 (1) of the Prevention of Corruption Act, 1988. This section also repealed the Criminal Law Amendment Act 1952. However it was stated under section 30(2) of the Prevention of Corruption Act, 1988 that any of the prosecutions in any case law being done by the Indian Judicature shall stand as affirmed even if they were done according the acts which were repealed in the section 30(1) of the said Act as long as these prosecutions did not stand in derogation with the provisions of the Prevention of Corruption Act, 1988. Practical Application along with Landmark Judgements: Our nation, after its independence became a sovereign power and a democratic republic. However, the post second world war conditions did not improve and the widespread corruptive practices continued. The Government of our country had the responsibility to improve the living conditions and standard of the Indian citizens in every walk of their lives. Therefore, extensive projects had been undertaken by the Central Government as well as the State Government under the Five Year Plans, involving the fair and ample distribution of the public money in the sum of crores when there was a rising temptation of greed for a better fortune and thus this gave a wide scope for the employment of corrupt practices which thereby blocked progress in the nation. This made the Government of our nation realise that there were many loopholes in the Prevention of Corruption Act, 1947 which stood as hurdles in the rapid progress of our nation and therefore this act was repealed under section 30(1) of the new act formulated with the same name in the year 1988. This act was enacted thus for a more effective prevention of corruption and curbing of the cases of bribery in our country. Now, any individual whether related to any public entity or being a private individual, if found trying to grab certain funds belonging to the public and planning certain conspiracies with corrupt beings thereby standing liable for these corroding practices will not be able to escape liability and shall be charged under the provisions of the Prevention of Corruption Act, 1988. The Apex court of the nation in the case, ‘State of West Bengal v. Manmal[2]’ had precisely dealt with this issue wherein it held that even private individuals who are or were involved in the corruptive practices along with the public servants were liable to be tried under the Prevention of Corruption Act, 1988. The court in the case, ‘Ramesh Chand Jain v. State of Madhya Pradesh[3]’ said that if any case of corruption prior to the enactment of the POC Act in 1988 was dealt with under the Prevention of Corruption Act, 1947, it will stand to be considered as completely legal and valid as long as it did not violate any of the provisions of the act enacted with the same name in 1988. This concept was explained even better by the High Court of New Delhi in the case, Virendra Singh v. Central Bureau of Investigation[4]. To make the operations of the anti- corruptive laws even more effective in our nation, the Prevention of Corruption Act, 1988 was legislated and had the object of dealing with the circumstances, contingencies and shortcomings which were observed whilst the act of 1947 was enacted and was under operation in India. These steps also led to the repeal of the Criminal Laws amendment Act of 1952 as per section 30 of the Prevention of Corruption Act of 1988. In the case ‘C.B.I. v. ‘Subodh K. Dutta’[5], the cognizance of the offence taken by the Special Court under the 1947 act stood saved as per the Section 30 (2) of the Prevention of Corruption Act, 1988.Thus explained the Section 30 of the act enacted in 1988 saves the essence of the act of 1947 as well as the Criminal Law Amendment Act of 1952. This repeal did not curb the active procedures of stopping the corruptive practices in India but also maintained the supremacy of the Law over the land. [1]https://indiankanoon.org/doc/1030013/[2]1977 Cr. L.J. 1164 (S.C.): A.I.R. 1977 S.C. 1772.[3] 1991 Cr. L.J. 2957 at 2959 (M.P.)[4]W.P (CRIMINAL) NOS. 765/2010 & 871/2010 [5] 199Cr. L.J. 1173 ; A.I.R. 1997 S.C. 869.
NOTES ON PREVENTION OF CORRUPTION ACT, 1988 PART 9
Section 23This section simply defines the particular in charge in relation to an offence committed under section 13(1) (a) of the Act.23. Particulars in a charge in relation to an offence under Section 13(1)(A).—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), when an accused is charged with an offence under clause (a) of sub-section (1) of Section 13, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 of the said Code:Provided that the time included between the first and last of such dates shall not exceed one year.The above underlined part of the provision is the substitution introduced after the amendment of the provision in the year 2018-The change introduced in the above provision after the amendment of Prevention of Corruption Act is that earlier this provision used to define particulars in a charge in relation to an offence under section 13(1) (c). After the amendment, there are two changes introduced in the said provision.In section 23 of the principal Act,—(a) in the marginal heading, for the word, figures, brackets and letter “section 13 (1) (c)”, the word, figures, brackets and letter “section 13 (1) (A)” shall be substituted;(b) for the word, brackets and letter “clause (c)”, the word, brackets and letter“clause (a)” shall be substituted.Purpose of the AmendmentEarlier the act used to define particulars in a charge in relation to an offence committed under Section 13(1)(c), the amendment is done in order to widen the scope of the said provision and now it defines the particulars in a charge in relation to an offence committed under Section 13(1)(a).The provision contained under Section 13(1)(c) is now omitted which used to define the act of a public servant in case of his dishonest misappropriation of property entrusted to him under his control as such public servant.But now it defines the act of a public servant where he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7.Section 2424. Statement by bribe giver not to subject him to prosecution Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12.Purpose of the above provision-The purpose of the above provision is to lift the veil of the corrupt officers and public servants who are indulged in such corrupt practices. It helps the one who are victim of such corrupt practices and who provided some monetary or non-monetary benefit to such public officers.If a person who had offered some gratification to any public officer would not be exempted under this provision then it would be very difficult to bring these matters in light and no one would be able to bring suit against such corrupt officers.The provision is not attracted to non-public servants-In the case of State of M.P. Vs. M.V.Narasimhan, it was held that, since the word 'person' is not defined in PC Act, applying Section 11 IPC, it is understood that 'public servant', bribe giver, cannot be understood as 'person' in terms of Sections 8 and 24 of PC Act. Therefore, the provision of PC Act is not attracted against the non-public servant.In the case of State of M.P. Vs. Ram Singh, it was held that, the law relating to prevention of corruption was essentially made to deal with the public servants.Position after the introduction of Prevention of Corruption (Amendment) Act, 2018After the amendment of the prevention of corruption act in the year 2018 which came into effect on 26th July, 2018, there are many changes introduced in the said act in order to fulfill the changing needs and to strengthen the law relating to corruption matters.Through this amendment, the above provision contained in section 24 of the prevention of Corruption Act is omitted. The main purpose of omitting the said provision which exempted the person who offers some gratification to a public officer from prosecution is to deter them so that they would think twice before offering bribe or gratitude to such public servant.Earlier it was very easy on part of a person to offer bribe or gratitude to public servant because in such cases only the public officer is prosecuted and there was no prosecution of the person who offers the same. But this new provision is introduced in order to have control over the acts where a person offers bribe. There was need of punishing the person involved in the activities of offering gratitude to public officers have advantage over others. The person offering bribe is also equally guilty as the one taking it.Amendment in other provision of the act as a consequenceIntroduction of Section 7-AThis provision defines punishment for the person who take undue advantage by unfair means from a public servant by corrupt or illegal means or by exercise of personal influence.The new Section 7-A could be read as under7-A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.—Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage of a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.Amendment in section 8 & 9 of the ActAmendments are also introduced in Section 8 & 9 of the act which now defines liability and punishment for the person and organization involved in the activities of offering bribe to a public servants.Section 8 defines the punishment for a person who induce a public servant to perform his public duty improperly. Punishment for the same is imprisonment up to 7 years or fine or both. However, there are certain exceptions to the same which exempts a person where he offers the same under compulsion.Section 9 defines liability of a commercial organization involved in the act of bribing a public servant to obtain or retain business for such commercial organization or to obtain or retain an advantage in the conduct of business for such commercial organization.
NOTES ON THE FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 2
ARTICLE 15Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to· (a) access to shops, public restaurants, hotels and palaces of public entertainment; or· (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public(3) Nothing in this article shall prevent the State from making any special provision for women and children(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.MEANINGArticle 15 of the constitution states that discrimination should not be done on the basis religion, race, caste, sex or the place of birth which means that there should be no restriction for accessing anything which is opened or made for public use. Everyone is allowed to access any shop, hotel, hospital cinema hall or any other place which is for the public use .article also says if any individual is restricted from using the public facility which is available for general public . It will lead to the violation of his right. Whereas clause (3) & (4) of the article is referred to as the exception of article 15. As it says that the state can make special provision for women and children or for the advancement of any socially and educationally backward classes of citizens or for the scheduled caste and tribes. EXPLANATIONArticle 15 is one of the fundamental right given to the citizens of India which states that no discrimination should be done with any citizen of India on the basis of religion, race, caste, sex or the place of birth (re,ra,ca,s,p)Article 15(1) states that no state is allowed to discriminate among people on the basis of re, ra, ca, s, p .if any state do so it will be void and will lead to violation of fundamental right of the citizen.Article 15(2) states that if any citizen is being discrimination on all or any one of the ground or is being restricted from using anything which is made by the government for the general public use such as accessing to shops, hospitals, cinema halls or use of tanks, roads, water tanks or anything which is made for the use of society.If any citizen is restricts from using it or available facility of the same, it will lead to the violation of the fundamental right of the citizen.However, clause(3 )and (4) are referred to as the exception of the article 15. As clause (3) says that state can make special provision which are made in favour of women and children and such provisions will not lead to be the ground of discrimination.Clause(4) of the article 15 says that state can make special provisions if they are for the advancement or for the benefit of the Socially and educationally backward classes of citizens means the weaker section who are backward in terms of social class and educational class.Scheduled caste means those who are considered as untouchable in earlier times.Scheduled tribes means those people who traditionally lives in forest. They are also called the tribe people.Clause(4) gives special privilege to state for making special provisions as it will help these backward class of people to come in the mainstream of the society. As earlier they were treated to be marginalized and were not in the mainstream, so in order to improve these weaker class of people government had taken initiative by providing them reservation in the field of job, education which will help them to improve and match the mainstream of the society.Clause (5) has been inserted by constitution(ninety-third Amendment) Act, 2005 which provides that nothing in article 15b or article 19(1)(g) prevent the state in making any special provision by law for the advancement of socially and educationally backward classes of citizen or for SC/ST in so far such special provision related to admission to educational institutions include private ones whether aided or unaided by state other than minority institution.NEED AND IMPORTANCE Need for article 15 arises in order to protect the discrimination which was in practice in various states, places, areas. As people were getting discriminating on the grounds of sex, caste, race, religion and place of birth which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the weaker section and other section of the society.ARTICLE 16 Equality of opportunity in matters of public employment· (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State· (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State· (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment· (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State· (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denominationMEANINGArticle 16 provides equality of opportunity in matters of public employment. It states that all citizens must get equal opportunity and must not be discriminate on the basis of religion, race, caste, sex, descent, place of birth or residence. But this article too has exceptions which are stated in clause(3)(4)(5) as it says that a law can be made for the weaker section of the society in order promote them and bring them to the mainstream of the society.EXPLANATIONArticle 16 of the constitution deals with equality of opportunity in public employment.Article 16(1) guarantee that there shall be equal opportunity for all citizens in the matter relating to employment or appointment to any office under the state. It means that every person will get equal opportunity to be eligible for a particular employment or job.Article 16(2) states that no citizen shall be discriminate on the ground of race, religion, caste, sex, descent, place of birth or residence which means that every citizen must get equal opportunity in public employment or appointment of jobs.If any person is being discriminate on the ground of clause (1) and (2) it will lead to the violation of the fundamental right of that person and a citizen can go in the court of law.Whereas clause(3)(4)(5) of the article 16 is referred to as the exceptions of the article 16 of the constitutionArticle 16(3) of the constitution states that parliament can make special laws for reservation in particular state . such reservation will not lead to the violation of clause(1)&(2)In case of M R Balaji vs. Mysore court put 50% reservation in almost all states except Tamil Nadu (69% under 9th schedule) and Rajasthan ( 68% quota including 14% for forward castes, post gujjar violence 2008) has not exceeded 50% limit. Tamilnadu exceeded limit in 1980 Andhra Pradesh tried to exceed limit in 2005 which was again stalled by high court.Article16(4) states that a provision can be made for the reservation of any backward class of citizen which state thinks are not adequately being represented in the services in the state. It says that the class of condition is backward socially and educationally. The said class is not adequately represent in the state. The second condition should be interpret in the light of article 335. The claim of SC/ST shall be taken into consideration with the maintenance of efficiency of administration.Article 16(5) states that nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.In UOI v/s S.Kalugasalamoorthy held that when person is selected on basis of his seniority, the scope of considering him against reserved quota does not raise.NEED AND IMPORTANCE Need for article 16 arises in order to protect the discrimination which was in practice in various states , places, areas. As people were getting discriminating on the grounds of sex, caste, race, religion and place of birth which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the weaker section and other section of the society.ARTICLE 17ABOLITION OF UNTOUCHABILITY“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.MEANINGArticle 17 of the constitution abolish untouchability and forbide untouchability neither defines in constitution or in any article. It refers to social practice which looks down upon certain depressed classes solemnly on account of birth and needs any discrimination against them on this ground.EXPLAINATIONUntouchability is referred to as the social practice which look down upon certain depressed classes which are being discriminated from the mainstream of the society.General statute related to untouchability· The protection of civil rights actsCivil rights mean any rights acquiring to the person by reason of abolition by untouchability under article 17.Punishment: min 1 year and max 2years imprisonment· Preventing any person from entering any place or public workshop denying any person from entering any public restaurant and places.· Insulting a member of depress class on the ground of untouchability. It is a crime.NEED AND IMPORTANCE Need for article 17 arises in order to protect the discrimination which was in practice in various states, places, areas. As people were getting discriminating on the grounds of being untouchable which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the depressed section and other section of the society.
NOTES ON THE FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 1
ARTICLE 12As per Article 12 of the Indian Constitution ‘the State includes Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the Control of the Government of India’.Meaning of Article 12Article 12 of the Indian Constitution gives us an overview as to what elements of our democracy can come under the terminology of the ‘State’, which has been used in various Articles under Part III of the Indian constitution, which comprises of our fundamental rights. So, as per Article 12, State comprises of:1) The Government at the centre and the Parliament of India2) The Governments in State level and the respective State Legislatures. 3) All local or other authorities which are present in the territorial boundaries of India.4) All local or other authorities which are controlled by the Central Government.Explanation of Article 12When one analyses the broad categories one finds under the purview of Article 12 as State, the first two categories include the organs of Executive and Legislative of the Central and the States.The terminology ‘Government’ which has been used in the first two categories also includes the various departments under the Control of the Government like the Income-Tax Department[1], Forest Research Institute[2] etc. The difficulty arises with the third category as there is no inference in the Article as to what ‘local authorities’ are. Section 3(31) of the General Clauses Act, 1897 states that authorities refers to Municipalities, Panchayats, Improvement Trust, District Boards and Mining Settlement Boards. The characteristics required by be a local authority has been explained in the case Union of India v. R.C. Jain[3], as:1) There should be separate legal existence as a corporate bodyfor the authority.2) It must perform the functions which are entrusted to it in a specific area, where the people who have elected and composed such bodies reside.3) The authority must enjoy autonomy either absolute or to a limited extent with respect to its functioning, administration and the policies to be adopted by it.4) Functions entrusted by it through a Statute must be in the category of functions which are entrusted to municipal bodies.5) The authority must also have power to raise funds for performing activities and projects either by levy of taxes, charges or any kind of fees. This levy must be in addition to amount given by the concerned State Governments, and the authority must have control and management over the fund raised by it.By applying the above principles, in P.Srinivastava v. Union of India[4], the Court held that Ramgarh Cantonment Board, created by the Cantonments Act is a local authority and is therefore included in the term ‘State’.The term ‘Other authorities’, mentioned in the fourth category has not been defined in any Statute or Constitution. The Courts have interpreted this term in many precedents. In University of Madras v. Shantha Bai[5], for the first time ‘other authorities’ were interpreted by the Court. By applying the principle of esjudem generis the Court held that the Madras University was not funded by the State and did not come under the purview of Article 12.But this restricted interpretation of ‘other authorities’ was over ruled in the case of Ujjambai v. State of U.P[6], where Sales Tax officer was held to be ‘State’as the authority exercised functions vested to it by the Government and was one of the instruments working under the Government. In Rajasthan State Electricity Board v. Mohan Lal[7], the court had arrived at a conclusion that the term ‘other authorities’ was large enough to encompass all authorities created by Actsand working in India, or under the power of Government of India.By applying this principle, in many cases different authorities like Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation[8], International Airport Authority[9], Regional Engineering College[10], Food Corporation[11], Mysore State Road Transport Corporation[12], National Agricultural Co-operative Federation of India[13]etc, have been interpreted to be within the purview of State under Article 12.Need and Importance of Article12When one analysis our fundamental rights in, we can find that the term ‘State’ has been used repeatedly. In order to avoid confusion as to what constitutes ‘State’ or not, our constitution framers have incorporated this provision. There may be various incidents where citizens have approached the Court alleging the violation of their fundamental rights by different authorities, and in order for the court to arrive at a justful decision as to whether the liability is vested upon the Government or not, it is important to first analyze whether the said authority is within the purview of Article 12.ARTICLE 13Article 13(1) of the Indian Constitution declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the Constitution. Clause (2) of this Article enshrines that the State shall not make any law which takes away or abridges the fundamental rights conferred by part III of the Constitution and any law made in contravention of fundamental rights shall, to the extent of contravention, be void.Meaning of Article 13As per clause (1), all pre-constitutional laws which are inconsistent with the fundamental rights shall be null and void once the constitution of our country commences. While clause (2) deals with the post-constitutional laws, whereby this Article mandates that the legislature shall not make any laws which is in violation to the fundamental rights.Explanation of Article 13Article 13 makes the fundamental rights enforceable through the court of law. This provision secures the Supremacy of the Constitution especially with respect to fundamental rights. This Article provides the power of Judicial review upon the Courts whereby by virtue of Article 32 and Article 226, the Supreme Court and the High Court can declare any law void and unlawful if such law infringes the fundamental rights in our Constitution.Article 13 is observed by the Courts as charter for judicial review[14]. This feature of judicial review is one of the basic and integral structures of our Constitution[15].When cases come before the Courts where the provisions of a particular act which is inconsistent with the provisions of constitution are separable from the valid portions, the Courts applies the Doctrine of Severability to repeal away the inconsistent portions and to retain the valid portions. In R.M.D.C v. Union of India[16], the constitutionality of the Prize Competitions Act, 1955 was challenged as being violative of Article 19(1) (g). The court applied the Doctrine of Severability and repealed away the competitions which were of gambling nature and retained the competitions where skill was involved. While in the case of A.K. Gopalan v.State of Madras[17], when the Court repealed away the Section 14 of Preventive Detention Act, 1950, the Court observed that the rest of the Statute would remain constitutional.But when cases come where the parts of Statute are inconsistent with the fundamental rights, the doctrine of Eclipse will be applied by the Courts. As explained by the Court in Bhikanji Narayan v. State of Madya Pradesh[18],when the provisions of a Statute is inconsistent with the fundamental rights , those provisions are considered to be overshadowed by the fundamental rights and remains dormant, but are not dead. Through an amendment the inconsistency of the provisions as to the fundamental rights can be changed and it would revive itself to be a valid law. This doctrine is only applicable to those statutes which were formulated and were in existence before the commencement of the Constitution[19]. In Keshava Madhava Menonv. State of Bombay[20],Court observed that a law in force before the commencement of constitution does not become null and void if it found to be inconsistent with the fundamental rights. Such laws would only be void up to which it is invalid to the fundamental rights, and such inconsistency can be rectified through amendments while applying the Doctrine of Eclipse.Another Doctrine which is discussed with respect to Article 13 is the Doctrine of Waiver. According to this doctrine, any person who is entitled to any kind of right can relinquish his/her right voluntarily. Once he/she waives the individual right, they would not be able to claim it afterwards. In Suraj Mall Mehto v. A.V. VisvanathSastri[21] and Muthiah v. Commissioner of Income-Tax[22], the court held that doctrine of waiver is not applicable to fundamental rights. No person can waive any of his rights enshrined under Part III of the constitution.Need and importance of Article 13The importance of Article 13 lies in the fact that in a democracy set-up like ours, where every five years a different political party would form the Government and be part of our law making and executing process, it is essential to have a mechanism which would not allow them to enact laws to suit their ideologies and be inconsistent with our constitution. Article 13 ensures the supremacy of the Constitution and alsotakes care of the fact that the people of this country would not be deprived of their fundamental rights through any legislation. ARTICLE 14Article 14 provides that ‘the State shall not deny to any person equality before law or equal protection of law within the territory of India’.Meaning of Article 14This Article of our Constitution establishes the concept of ‘Rule of Law’ and ‘equal protection of laws’. It means that no human being should be placed above law and that every person irrespective of gender, rank or position should be subjected to the law of the land. No discrimination shall be between persons when they come before a court of law, based on any criteria.Explanation of Article 14The phrase ‘equality before law’ somewhat has a negative concept as it implies absence of any kind of special privileges in favour of any class of individuals, while the expression ‘equal protection of laws’ is positive in nature and ensures that each individual shall be treated equally in all circumstances. In Srinivasa Theatre v. Government of Tamil Nadu[23], the Court observed that the expressions ‘equality before law’ and ‘equal protection of law’ did not mean same thing. The term ‘law’ in the former expression was used in a philosophical sense, while in the latter expression ‘law’ denotes specific laws which are in force.Article 14 permits reasonable classification but prohibits class legislation- Though the Article states that same laws should be applied to every persons, it allows classification. The said classification must not be arbitrary, artificial or evasive; it should be reasonable classification[24].In Charanjit Lal Chowdhury v. Union of India[25], the court while upholding the constitutionality of Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance, 1950, observed that law should be constitutional, even if it is applicable to one person or class of persons. Class legislation is prohibited by Article 14. Class legislation is when a particular Statute differentiates between people belonging to same class unequally. In D.S. Nakara v. Union of India[26], the Supreme Court struck down a Pension rule which classified government pensioners retiring before March 31, 1979 and those retiring on or after that date, as violative of Article 14, since they belonged to the same class with respect to computation of pension.To verify whether legislationis reasonable or not, the Courts have evolved the test of reasonable classification in R.K.Dalmia v. Justice Tendolkar[27]:1) The classification must be founded on an Intelligible Differentia, which distinguishes persons or things which are grouped together from others left out from the group.2) The differentia must have a rational relation or nexus tothe object sought to be achieved by the Statute.Instances of Classification1. In Ajay Hasia v. Khalid Mujib[28],when for the oral interview a high percentage of the total markswere allotted for the admission to the Engineering College, the Court said that awarding more than 15 percentage of the total marks for oral interview is an arbitrary action which violates Article 14.2. In Mithu v. State of Punjab[29], Supreme Court struck down Section 303 of Indian Penal code as violative of Article 14 as there was no rationale in differentiating between persons who commit murder while serving life imprisonment and persons who commit murder when not serving life imprisonment for the purpose of awarding death penalty.3. In Air India v. NargeshMeerza[30],Air India and Indian Airlines Regulations which provided for the air hostess to retire upon the attainment of the age of 35 or on marriage or pregnancy, if it took place on the first four years of marriage was struck down as it is violative Article 14.4. In P. Rajendra v. State of Madras[31], the provision for allotment of seats in medical colleges in the State amongst the various districts in the State in the ratio of the population of each district to the total population of the State was struck down as unconstitutional. Need and importance of Article 14 Article 14 is one of the fundamental rights provided in our Constitution. This Article is important as if there was no such provision available in our Constitution it would have led to many arbitrary classifications persisting in our country. Whenever legislation or a provision is challenges before the Court, the prime aspect the judiciary looks into is whether the said Statute or its provision has any arbitrary classification in it. If there is any arbitrary provision, then that provision or Act would be struck down as unconstitutional. [1] Bidi Supply Co. v. Union of India, AIR 1956 SC 479[2]Purushottam Lal v. Union of India, AIR 1973 SC 1088[3] AIR 1981 SC 951[4] AIR 1981 Patna 212[5] AIR 1954 Mad. 67[6] AIR 1962 SC 1621[7] AIR 1967 SC 1857[8] Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331[9]R.D.Shetty v. International Airport Authority, AIR 1979 SC 1628[10] Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487[11] State of Punjab v. Raja Ram, AIR 1981 SC 1694[12] Mysore S.R.T.C v. Devraj Urs, AIR 1976 SC 1027[13]A.M.Ahamed and co v. Union of India, AIR 1982 Madras 247[14]S.S Bola v. B.D.Sardana, AIR 1997 SC 3127[15]Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461[16] AIR 1957 SC 628[17] AIR 1950 SC 27[18] AIR 1955 SC 781[19] Deep Chand v. State of U.P, AIR 1959 SC 648[20] AIR 1951 SC 128[21] AIR 1954 SC 545[22] AIR 1956 SC 269[23] AIR 1992 SC 999[24] State of West Bengal v. Anwar Ali, AIR 1952 SC 75[25] AIR 1951 SC 41[26] AIR 1983 SC 130[27] AIR 1958 SC 538[28] AIR 1981 SC 487[29] AIR 1983 SC 473[30] AIR 1981 SC 1829[31]AIR 1968 SC 1012[32]Writ Petition (Criminal.)No.194 of 2017
NOTES ON FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 5
Article 24No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Meaning Article 24 prohibits child labour. It prohibits child labour in factories mine, any other hazardous employment. here child is the one who is below the age of 14 years. Explanation Article 24 prohibits child labor. The child here is the one who is below 14 years of age. The article prevent below 14 years of age child in a factory/mines/hazardous employment. Article 24 strengthens the article 39(f) (directive principles of state policy) the article 39 (f) secures that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The employment of child act, 1938 is the first act to prevent child labor. ‘Construction work and projects were held equal to hazardous occupation’ by supreme court of India In people’s union for democratic rights v union of india (1982). In M.C Mehta v state of Tamil Nadu(1999). Supreme court directed that child should not be a employee in hazardous works, factories, and fire works. Need and importanceIndia is a signatory to the convention on child labour. Problem of child labour is a critical human and economic problem. Though and desirable one account of socio-economic compulsions. On account of poverty many parents send their children to work in order to supplement their income. There is a obvious special distinction between child labour and exploitation of child labour. According to the 43rd round of National Sample Survey(1987), the number of working children was estimated to be 17 million. The present figure is estimated to be around 20 million.It must be realised that a total ban on child labour may not be socially feasible in the socio-economic environment of the country. It is for this purpose that Article 24 puts only a partial ban on employment of child labour.24. Prohibition of employment of children in factories, etc No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ); or such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause ( 7 )Article 25 25. Freedom of conscience and free profession, practice and propagation of religion(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.Meaning Explanation This article upholds the spirit of secularism. The Article 25 states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and propagate religion” of one’s choice. According to Article 25, the gates of Hindu religious institutions should be opened to every section of Hindus. Here the term ‘Hindus’ also includes individuals who profess Sikh, Jain or Buddhist religion. The same holds true for the term ‘Hindu religious institutions. Article 25 is not absolute. The human activists and constitutional experts opinion that the article 25 diluting the imporatance of secularism that most Indians swear by. Their criticism is that Sikhs and jains and budhists were considered only as a sections of Hindu and not as an independent. Need and importanceIt is the most misinterpreted article of Indian constitution. Even though it guarantees the freedom to follow and to propagate it yet this freedom comes with a responsibility to ensure that the public order, morality and health are not compromised in the process. The human activists and constitutional experts opinion that the article 25 diluting the imporatance of secularism that most Indians swear by. Their criticism is that Sikhs and jains and budhists were considered only as a sections of Hindu and not as an independent. India being a secular country doesn’t have any state religion. Even though in india there is hindu majority the constitution of india guarantees freedom to propagate and practice religion.