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Dr V S Prasanna Rajan

Apex court clarification on Section 18 & Section 19 of the RTI Act.

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karira

This is a very strange interpretation of the Honble Apex Court.

 

The whole purpose of the RTI Act is to "disseminate" information. What is the big point in filing a Complaint under Sec 18 of the RTI Act if the Commission cannot order disclosure of information ?

 

So what happens if the appellant files a "Complaint against Non Compliance of CIC/SIC order" ?

Is it that the SIC/CIC cannot order disclosure of information ?

 

I am very confused.

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dr.s.malhotra

this judgment has put to rest many controversies . The salient features as I understand are the following :

 

Citizen versus Person . S.6 has a scope wider than s.3 [ very important]. that means even non-citizen can use RTI Act . In general usage, a human being; by statute, however, the term can include firms, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in Bankruptcy, or receivers. para 25 [vide infra]

It is quite interesting to note that even though under Section 3 of the Act right of all citizens, to receive information, is statutorily recognised but Section 6 gives the said right to any person. Therefore, Section 6, in a sense, is wider in its

ambit than Section 3.

No information u/s 18 . Only s.20 can be applied on complaints and that too if the conduct of the PIO was not bona fide . para 30 [ vide infra]

 

The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of

the Information Officer was not bona fide.

Para 35 of the Judgment [ vide infra] implies that drafting of s.18 qua s.19 is not correct , but that does not mean the wrong should be followed .

 

It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory

provision.

Same is conveyed in para 38 .
It may be that sometime in statute words are used by way of abundant caution. The same is not the position here.
s.19(8) can not be used in Complaint u/s 18 [ vide infra ] . See para 38 :

 

If the interpretation advanced by the learned counsel for the respondent is accepted in that case Section 19 will become unworkable and especially

Section 19(8) will be rendered a surplusage. Such an interpretation is totally opposed to the fundamental canons of construction.

Procedure u/s 19 is time bound whereas it is not so in s. 18 [ vide infra] para 42 :

 

Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18.
Procedure u/s 19 is time bound whereas it is not so under s.18 , para 42 [ Does it mean 30 - 45 days limit applies to Second Appeal ? Yes it implies the same . The time frame as prescribed u/s 19(6) has to be applicable to second appeals too ] vide infra :
procedure under Section 19 is a time bound one but no limit is prescribed under Section 18.
Section 24 of the Act does not have any retrospective operation. para 45 [ vide infra ]

 

Section 24 of the Act does not have any retrospective operation.

Therefore, no notification issued in exercise of the power under Section 24 can be given retrospective effect and

So finally the controversies are put to rest . It is the law of the land now .

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dr.s.malhotra

It brings to my mind the Order of Hon'ble PSIC in CC 461/2010 in matter of Kehar Singh VS High Court . I can appreciate that is in line with this Judgment of Hon'ble SC .

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taurus

This judgment puts the curtain down on the confusion regarding the scope and effect of Sec.18 and Sec.19 of the Act. There was genuine confusion. Different High Courts had different views. Our forum also discussed this on several occasions. Two such links are as follows:

http://www.rtiindia.org/forum/7344-allahabad-high-court-order-clarifying-sec-18-a.html

http://www.rtiindia.org/forum/73843-rti-help-clarification-section-18-1-section-19-1-rti-act.html.

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nk agarwal

Now I have two queries,

(1)what happens to a complaint filed by an Appellant on non-compliance of a Hon'ble CIC decision ?

(2) What options are availble to an Appellant on non-compliance by the CPIO of Hon'ble CIC decision ?

thnks.

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parsar

(1). S. 18 and 19 are distinct and have a separate duty of obligation on SIC/CIC.

 

(2). The CIC/SIC acting in accordance with S. 18 would create awareness and sense of duty on all PIO's under the act . Thus the information would be provided by them within time.

 

(3). The applicant can follow now to file appeal in time u/s 19 and thereafter a complaint u/s 18 (1) be filed fori imposition of penalties as there is no time limit u/s 18(1).

 

 

(4). The s. 18 and 19 was discussion on this forum . The hon'ble supreme court has laid the law and the matter has become very clear now.

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karira

All of ypu are missing the main point - that the SIC/CIC cannot direct disclosure of information while hearing a Complaint under Sec 18. It can only decide on Penalty under Sec 20.

 

As nk agarwal has asked, what does a appellant do if the PA does not comply with a CIC/SIC order after second appeal ?

What does a citizen do if the PA does not make any suo-motu disclosure under Sec 4(1)(b) ?

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karira

As reported by Rakesh Bhatnagar in dnaindia.com on 14 Dec 2011:

Confidentiality can’t hide RTI information: Supreme Court - India - DNA

 

Confidentiality can’t hide RTI information: Supreme Court

 

Strengthening the arms of the Right to Information Act in a manner that thwarts the government’s procedural antics to stall information regarding corruption and human rights violations by investigation agencies under the garb of confidentiality, the Supreme Court has ruled that a notification issued by a state for that purpose in mind can’t be made effective from retrospective date.

 

In a significant judgment on Monday, the apex court held that the notifications under the RTI Act cannot apply retrospectively. It means, information in response to an RTI query can’t be denied merely because a notification has been issued after the date of application.

 

The right of an aggrieved applicant must be decided on the basis of the law as it stood on the date when the request is made. “Such a right cannot be defeated on the basis of a notification if issued subsequently to time when the controversy about the RTI is pending before the court,” a bench of justices Asok Kumar Ganguly and Gyan Sudha Misra ruled while disposing of an appeal filed by a resident of Manipur, Wahangbam Joykumar, who had moved the state in February, 2007 under RTI seeking information regarding the magisterial enquiries initiated by the state from 1980 to 2006.

 

The government denied this information on the basis of a notification issued in 2007.

 

Allowing Joykumar’s appeal, the bench asked him to seek the requisite information now as it directed the state to provide him the information.

 

Stressing the importance of the RTI Act, the apex court said its preamble would show that it “is based on the concept of an open society”.

 

Way back in 1975, the apex court had underscored the need of an “open government” and observed that “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”.

 

It had also said that people are entitled to know the particulars of every public transaction in all its bearing. The right to know is “derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security”.

 

It also warned saying that “to cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired”.

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jps50

It is advisable now to file second appeal-cum-complaint or both simultaneously. It will increase workload of SIC/CIC, but appellant will get information and penalty for PIO.

 

As for non-compliance of IC orders obtained by filing second appeal, naturally now complaint should be preferred. In this complaint, complainant is not asking for information which has already been ordered by IC, but is complaining non-compliance of IC orders. Here IC has to order penalty and also compliance of its orders.

 

As for section 4.1.b, complaint should be filed u/s 18, since there is non-compliance of provisions of RTI ACT 2005.

 

To my mind, for all problems other than supply of proper information, complaint should be filed u/s 18 requesting for enquiry and penalty etc.

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dr.s.malhotra
All of ypu are missing the main point - that the SIC/CIC cannot direct disclosure of information while hearing a Complaint under Sec 18. It can only decide on Penalty under Sec 20.

 

As nk agarwal has asked, what does a appellant do if the PA does not comply with a CIC/SIC order after second appeal ?

What does a citizen do if the PA does not make any suo-motu disclosure under Sec 4(1)(b) ?

I did not miss the point . I have specifically mentioned the point that NO INFORMATION u/s 18 .

Perhaps comments were expected on this . But I intentionally left that part wide open for the members to elaborate on my interpretation and add more to it .

While we analyze this Judgment , members should realize that this is from Hon'ble Supreme Court and has become law of the land in the matter unless a Judgment in a curative petition over-rules the present judgment . Till then all fora are duty bound to comply with it . But we can , with all humility and respect to the Hon'ble Apex Court , analyze the judgment and speak out here what this judgment does not cover or has left unanswered or the fall-outs , which the legislature never intended .

 

To my mind , the judgment leaves certain anomalies behind .

 

I have some situations :

This ruling means that RTI Applicant can approach Information Commission ONLY AFTER EXHAUSTING First Appeal u/s 19(1) of RTI Act before Appellate Authority in the relevant Public Authority itself .

 

Now examine :

 

  1. If PIO does not supply information within 30 days , the only remedy available to RTI user is to go for first Appeal
  2. If PIO provides false Information , the only remedy available to RTI user is to go for first Appeal
  3. If PIO does not respond to RTI request , the only remedy available to RTI user is to go for first Appeal

Now examine above 3 points in light of powers available to FAA . FAA can order only Information . No s.20 , no section 19(8) whether the actions of PIO were bona fide or not . If the FAA takes the prescribed time of 30-45 days to pass an Order on first appeal and gives time of 15 days to PIO to supply complete and correct Information and the PIO complies with it , it would mean :

 

A. Information supplied after 80-100 days of lodging RTI Application without any penal action or compensation . Applicant is on clear disadvantage .

 

B. Once Information has been supplied , Second Appeal u/s 19(3) becomes unavailable / meaningless

 

C. or the Applicant has to first get Information either in FA or SA , and then go for an additional petition of Complaint for getting s.19(8) and s.20 invoked . This is multiplicity of litigation , clearly frowned upon by the judiciary and does not make sense either .

 

D. whether s. 7(1)....Information in 30 days ...continues to carry any meaning at all in this scenario ? What happens to the spirit of the Act .... easy information , timely information , cheap information ? Does it not discourage Information seekers ?

 

E. PIO gets aware that in 90% of cases , the Applicant can not reach Information Commission as Information would be provided after delaying it by 50-70 days , in a legitimate way , without fear of penal action .........does it not leave the citizen open to exploitation and harassment by PIO-FAA nexus ?

 

 

F. Hon'ble SC holds that PIO to be punished if only his intentions were not bona fide ..... when PIO has a legitimate cover of another 50-70 days u/s 19(1) , where is the question of mala fide ? That means s.20 becomes almost redundant .

 

Now see another situation , almost every application is witness to it :

The first Appellate Authority keeps the first Appeal pending without passing any order even 45 days [ the maximum permitted period u/s 19(6) of RTI Act ] , and in the end the RTI User approaches the Information Commission with second appeal u/s 19(3) of RTI Act . This will add another 4 - 24 months or even more [ IAS / HCS asset cases before HSIC] for getting the information . The PIO hides behind FAA and FAA can not be penalized . So net result is Information after 7-24 months or more after filing RTI Appl ...all legitimate ........Where it leaves the Information seeker ?

 

So this judgment , to my little mind , leaves the RTI Information seeker shelter-less and unprotected from the vagaries of the same system again , he is back to pre-RTI Act days ....open to exploitation. Judgment leaves behind many anomalies and needs a Curative Judgment from a larger bench of Hon'ble Supreme Court .

 

I hope and pray that their lordships at Supreme Court read this .

 

Coming to queries by Sh. NK:

1. what happens to a complaint filed by an Appellant on non-compliance of a Hon'ble CIC decision ?... I think Complaint filed by an Appellant to get the Order of IC for Information implemented is in fact extension of the Second Appeal itself , just the continuity of SA itself . You should not compare this kind of Complaint with a complaint filed u/s 18 DIRECTLY without invoking s.19(1) .

 

2. What options are availble to an Appellant on non-compliance by the CPIO of Hon'ble CIC decision ?....I believe answer to above query answers this too . The answer is a complaint or a simple Miscellaneous Application in the case of non-compliance .

 

Another query :

What does a citizen do if the PA does not make any suo-motu disclosure under Sec 4(1)(b) ?

I believe the IC can entertain such complaint and Order PA to declare such information on their website . I have a mixed picture in my mind on this . Sh. Karira has a huge number of such successful complaints under his hood , I have failed to make the PSIC take notice on my Complaints in this regard and I was told to come thru an RTI Application route .

 

I think the Judgment is much more than a mere s.18 vs 19 controversy and learned members should elaborate on other points too like citizen versus person , time-bound FA and SA etc. plus many more implications that may come out of this Judgment .

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skmishra1970

Hon'ble Supreme Court of India is on the way on which the Power and Value and the Purpose of RTI Act will be defeated. It is clear that u/s 18 no meaning of enquiry if guilty officer can not ask to disclose information and No penalty on them for harming provision of RTI Act.

 

Similerly the word provided in Section 20 (See below), is become meaningless by the judgement of SC.

 

Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal................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:

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jetley

Procedure u/s 19 is time bound whereas it is not so under s.18 , para 42 [ Does it mean 30 - 45 days limit applies to Second Appeal ? Yes it implies the same . The time frame as prescribed u/s 19(6) has to be applicable to second appeals too ] vide infra .

 

How can this ruling be used to compel CIC/SIC's to decide 2nd appeals earlier?

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karira

There are only two ways to approach a CIC/SIC:

 

- By way of second appeal under Sec 19(3)

- By way of a complaint under Sec 18

 

There is no such thing as a "continuation" of second appeal or "miscellaneous" application. Please give the reference of the section under which such approaches to the Commission are possible ?

 

This judgment is bad in law and virtually sounds the death of Sec 18. Who will Complain to the SIC/CIC just to impose penalty - and not to get information ? The whole purpose of the RTI process is to get information. As it is we all know what is the reluctance of SIC/CIC in imposing penalties. The Justices have gone too legalistic in their interpretation of the statutes and have killed parts of the Act without without even a second thought.

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parsar

A. Information supplied after 80-100 days of lodging RTI Application without any penal action or compensation . Applicant is on clear disadvantage .

 

B. Once Information has been supplied , Second Appeal u/s 19(3) becomes unavailable / meaningless

 

C. or the Applicant has to first get Information either in FA or SA , and then go for an additional petition of Complaint for getting s.19(8) and s.20 invoked . This is multiplicity of litigation , clearly frowned upon by the judiciary and does not make sense either .

 

 

1. Compensation can be awarded only in appeal u/ s. 19(8)(b) if appeal filed u/s 19(3).

 

2. A complaint u/s 18(1) attracts penalties as per s. 20(1) and 20(2). There is no provision for compensation as per S> 19(8)(b) on the SC decision. in my opinion

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Dr V S Prasanna Rajan

@ karira

The procedure under Section 19, involves both penalty as well as the direction by the information commission to provide the information. Hence, the supreme court has interpreted that section 19 is more beneficial than section 18. Hence an appellant under section 19 has the option for both emphasizing for imposition of penalty as well as the direction for providing the information by the commission.

vsprajan

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Dr V S Prasanna Rajan

The apex court at para 46.has held that- " The appeals which the respondents have been given liberty to file, if filed within the time specified, will be decided in accordance with Section 19 of the Act and as early as possible, preferably within three months of their filing.". This is probably the limit set by the apex court for disposing of the second appeals by the commission.

vsprajan.

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karira
The apex court at para 46.has held that- " The appeals which the respondents have been given liberty to file, if filed within the time specified, will be decided in accordance with Section 19 of the Act and as early as possible, preferably within three months of their filing.". This is probably the limit set by the apex court for disposing of the second appeals by the commission.

vsprajan.

 

That is only for this specific case....remember the case was pending since 2007.

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karira
@ karira

The procedure under Section 19, involves both penalty as well as the direction by the information commission to provide the information. Hence, the supreme court has interpreted that section 19 is more beneficial than section 18. Hence an appellant under section 19 has the option for both emphasizing for imposition of penalty as well as the direction for providing the information by the commission.

vsprajan

 

Thta is what I am saying ..... this is death of sec 18.

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Dr V S Prasanna Rajan

@karira

Taking the view of the apex court that any section in any statute serves specific purposes, and section 18 though cannot be used for ordering the disclosure of information, it still serves certain purposes:

 

1. IF THE APPLICANT GETS THE INFORMATION REQUESTED RTI APPLICATION BY ANY OTHER VALID PROCEDURE OTHER THAN THE RTI ACT,THEN, IN ORDER TO HOLD THE PUBLIC AUTHORITY / PIO ACCOUNTABLE FOR THE UNWARRANTED INFRACTION OF THE RIGHT GUARANTEED UNDER ARTICLE 19(1) A, AND IF THE COMPLAINT IS LODGED FOR THE SAME, AND IF THE COMMISSION HAS FOUND REASONABLE FACTS ON RECORD THAT THE PIO HAS NOT SUPPLIED THE INFORMATION,WHICH SHOULD HAVE BEEN SUPPLIED UNDER THE RTI ACT, THEN THE PIO IS PENALIZED UNDER THE SECTION 18 BY THE COMMISSION.

 

2. The penalty and / or enquiry by the commission based on the complaint lodged on factors which also squarely comes under the purview of Section 18(1)(f) of the RTI Act, 2005.

 

vsprajan.

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karira

Complaint can ONLY be lodged if any of the conditions under Sec 18(1)(a) to (f) are satisfied.

 

What do you want when you file a RTI application ?

Do you want "information" or do you want to get the PIO penalised ?

Make up your mind.

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dr.s.malhotra
Thta is what I am saying ..... this is death of sec 18.

 

You may include s.7(1) , s.19(8) too .... Act is now in reverse gear .

 

On Miscellaneous Appl and Continuity of s.19(3)

I would add that an Application is the right of the party in any matter , even during every judicial and quasi-judicial proceedings . Give it any name Miscell or Criminal Miscell or Civil Miscell depending upon circumstances . An addendum too is an Application , A request for condonation of delay too is an Application . I have been doing it regularly in my Appeals and complaints . Application is to bring to notice of the IC something . There is no need for specific express provision for it under RTI Act .

 

Regarding other point : A complaint arising out of SA is certainly a continuation of SA . It merely stresses to implement what was stated in SA . This Complaint is simply an application for getting the Order of IC executed . It is not to be confused with Direct Complaint u/s 18 .

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skmishra1970

Kindly refer full bench judgement of Punjab State Commission dated 9-8-2011 in CC No. 461 of 2010.

"if the grievance still persists, he would be free to approach the Commission either by way of Complaint under Section 18 or by way of Second Appeal under Section 19 (3)".

It means even after getting information at first appeal, we may approach Commission by way of complaint u/s 18 for delayed information from PIO and aurge for penalty u/s 20 ?

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