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Jurisdiction of CIC/SIC in applying Section 8(1)(d/e) & 8(2)


rameshverma

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The general idea centres around the proposition that it is the responsibility of PIO to get the opinion of Competent Authority/Public Authority so as to satisfy the requirement of disclosure of information in larger public interest or if the disclosure outweighs harm to the protected information. If the issue is so simple, then it is plain that a PIO on his own volition has to make out a case for disclosure on behalf of the applicant and the applicant is relieved of his duty to plead his case without disclosing any material particulars which may compel the Competent Authority or Public Authority to decide in his favor. This approach also seems to be in conformity with Section 6(2) as well which does not require the applicant to intimate any other details except those which are required for contacting him. As a necessary corollary to this, it mandates the PIO to dawn the mantle and take cudgels on behalf of the applicant as proxy in order to save himself from inviting the wrath of Section 7(1)/19(5)/20. It also suggest that PIO can have the superior influence over Competent Authority or Public Authority so as to compel them to decide the issue in a time bound manner.

 

Is it not contrary to substantive provision (S. 3) which confers the right to information on all citizens with the restricted caveat- ‘subject to provisions of the Act’? Does the opening phraseology of Section 8 (1) not confer supremacy to the statutory exemptions enumerated therein which must operate as a rule as the Act does not contemplate that the authority should, without application of mind or without taking into account the justification for and purpose of the request etc. act mechanically and allow the request? Are the authorities under the Act supposed to act like a vending machine?

 

It can safely be inferred that querist has to discharge the burden of wriggling out of clutches of statutory exemption and not the PIO on following grounds:-

 

-Role of PIO ends after determining whether S.8 (1)(d/e) or S. 8 applies.

 

-PIO is not mandated to justify the disclosure on the anvil of larger public interest on part of a querist.

 

-PIO does not enjoy superiority in hierarchy over Competent Authority/Public Authority so as to compel them to decide the issue in a fixed time.

 

-Considering position of PIO in hierarchy of the Act, he has no wherewithal to issue any directions on his part to Competent Authority/Public Authority. If intention of the Act is so, it will lead to chaos where PIOs will start demanding accountability from the authorities to whom he is subservient administratively and under the Act as well.

 

-As a necessary corollary to above point, fulfilment of mandate of S. 7(1) is beyond control and authority of PIO.

 

-Since exemptions apply, benefit of other provisions are not available to a querist.

 

The information under Section 8(1)(d/e) in most cases pertains to third parties who have the right to oppose (not suggesting veto power) disclosure of information as is evident from Section 7(7)/11/19(2 & 4) r.w.s. 2(n). Under Section 8(1)(d/e) of the RTI Act, the Competent Authority is entitled to examine the question whether in view of the larger public interest information protected under the Sub-clause should be disclosed. The jurisdiction of PIO is restricted and confined to deciding the question whether information was made available to the Public Authority in fiduciary relationship or pertains to the kind as enumerated in Section 8(1)(d). The Competent Authority can direct disclosure of information, if it comes to the conclusion that larger public interest warrants disclosure. The querist is required to justify the disclosure of such information on the anvil of public interest which is not to be routinely used as a garb by busy bodies to pry on the personal affairs of individual private citizens/entities, as it would be against public interest (and not in public interest) to permit such information of third parties to fall into the hands of anybody or everybody. whenever the querist applicant wishes to seek information, the disclosure of which can be made only upon existence of certain special circumstances, for example- the existence of public interest, the querist should in the application (moved under Section 6 of the Act) disclose/ plead the special circumstance, so that the PIO concerned can apply his mind to it, and, in case he decides to issue notice to the concerned third party under Section 11 of the Act, the third party is able to effectively deal with the same. Only then the functionaries under the Act would be able to come to an informed decision whether, or not, the special circumstances exist in a given case. Section 8 of the Act also clarifies that according to the scheme of the Act sub-section (2) of Section 6 does not operate in isolation and is required to be read and construed in light of Section 8 and Section 11 of the Act. Hence onus of showing that disclosure should be made, is upon the individual asserting it. He cannot merely say that disclosure should be ordered as the information relates to larger public interest hence there is a public interest element. Allowing such interpretation will nullify the object of Section 8(1) which is explicit through the non-obstante clause in case of exemptions and which embodies the legislative intention in carving out an exception from the normal rule requiring no “locus” by virtue of Section 6. When the provision under Section 8 of the Act and sub-section (2) of Section 6 are read conjointly then it brings out the situation that though the applicant is, ordinarily, not supposed to, mention or explain or disclose reason for demanding any information, however, if such information is third party information and if it falls within the purview of sub-section (1) of section 8 then in that event before parting with the information, the information officer and competent authority can ask, and he would be justified in asking, the petitioner to establish public interest as the reason or ground for demanding such information and to satisfy him that the said information is demanded in public interest. When Section 8(1)(d) (e) and (j) and Section 11 of the Act are read conjointly, then it emerges that in the cases which fall within purview of Section 8 of the act, the authority would be justified if he asks explanation from the applicant and asks the applicant to make out a case that the information is demanded for public interest– and the purpose for which the information is demanded (i.e. public interest) is such which outweighs the objections or protected interest of third party.

 

Though Section 22 of the Act overrides other laws, the opening non-obstante clause in Section 8 confers primacy to the exemptions enacted under Section 8(1). Thus, once the information is found to be exempt under Section 8(1), reliance on Section 22 is misconceived as S. 8(1) is saved by S.22 itself by virtue of --- having effect by virtue of any law other than this Act. Thus S.22 can’t override other provisions of the RTI Act.

 

A decision of the PIO on the question whether information was furnished/available to a Public Authority in fiduciary relationship or not, can be made subject matter of appeal before the Appellate Authorities. However appeal before the FAA cannot be filed against an order or a decision of the Competent Authority or the Public Authority. Second appeal before the Commission is maintainable against the decision of the FAA. The scope of appeal before the Commission is restricted to subject matters that are appealable before the FAA. Thus the Commission cannot go into the questions which cannot be raised and made subject of appeal before the FAA. Resultantly the Commission is not entitled to test the efficacy or otherwise of the decisions/directions of the Public Authority or the Competent Authority unless it is entitled to examine the same Section 18. The querist can invoke writ jurisdiction of jurisdictional HC, if aggrieved by decision of Competent Authority/Public Authority. At the most the Commission can recommend to the competent authority/Public Authority to exercise their powers but the decision of the Competent Authority/Public Authority is not amenable to appeal unless the right has been conferred under Section 18 or 19.

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