Sanket Jha and Anchit Jain
To handle COVID-19 infection, the Central government has imposed the lockdown under which, people are bound to restrict their movement. This has made the Right to Information (Hereinafter referred to as ‘RTI’) application filing system inconvenient. As per Section 6(1) of the Right to Information Act, 2005 (Hereinafter referred to as ‘Act’) applicants can file an RTI application either in writing or through electronic (Hereinafter denoted by ‘e’) means. Currently, out of the total 37 states and Union Territories, only the Union of India (hereinafter referred to as ‘Union’), state of Maharashtra and Union Territory of Delhi have the arrangements for e-filing of RTI applications. Considering this inadequate infrastructure for e-filing, a person has to visit the government office for filing an application.
Right to Information
The Supreme Court in the case of People’s Union for Civil Liberties & Anr v. Union of India declared RTI as a fundamental right under Article (Hereinafter referred to as ‘u/a’) 19 of the Constitution. The Act’s preamble and the Court’s reiteration in the case of Central Board of Secondary Education & Anr v. Aditya Banopadhyay & Ors insisted RTI as a formidable tool which can ensure an informed citizenry who can keep a check on corruption and making the authorities accountable.
Moreover, Information is a pervasive right u/a 19 of The Universal Declaration of Human Rights and 19(2) of the International Covenant on Civil and Political Rights. India is a signatory to both of these international documents.
RTI plays a vital role in a citizen’s life. Central Information Commission (Hereinafter referred to as ‘CIC’) has compiled such successful cases and presented such instances on its website.
Providing an e-filing portal is a statutory duty. Section 6(1) reads that ‘electronic means’ can be used to apply for information. Lawmakers behind this provision intended to provide an e-filing arrangement too. Providing an e-filing portal will be a long term setup for upholding the information rights with pervasive mobility to the citizens.
The current e-filing portals have limited jurisdiction and do not cover all the Indian states and union territories. The Union’s, Maharashtra’s & Delhi’s portal comprises of all their administered institutions, departments and ministries. This excludes a heavy population of the citizens from the provision of an e-filing arrangement.
Moreover, the Supreme Court in the case of Pravasi Legal Cell v Union of India (Hereinafter referred to as ‘Pravasi’) decided the question of establishing the RTI portals for covering all the states. Notably, the issue was decided with respect to the rights of ‘economically weaker Indian expatriates including migrants laborers stranded in the Gulf countries’. The Court held that the issue is a ‘policy’ matter and only the government can decide on policy matters. Thus, a representation should be made before the Union government for the consideration of the same.
On the subject of Court’s distance from the policy matters, it was held in the case of Col. A.S. Sangwan v. Union of India that the judiciary cannot intervene on the subject matter of policy framing. The government has exclusive rights for the framing of public policies. At the very best, the judiciary can only administer the framing of such policies.
Supreme Court’s order in the Pravasi’s case was only in respect to the rights of expatriates and not the whole of Indian citizenry. As per the Act, the arrangement of e-filing is for all Indian citizens. RTI plays a significant role in the lives of Indian citizens, especially those who reside within the territory of India & utilize RTI in their daily lives. Thus, it cannot be concluded that what adjudication would have been made by the Court on the issue of deciding the need for RTI’s e-filing application for Indian citizens, residing in India, as the same has not been discussed in the Pravasi’s case.
Life and Liberty Matters
The current e-filing portals are not eligible to bifurcate between the life & liberty matters applications and the other regular applications. This causes delay on the applications which pertains to life & liberty matters.
Under Section 6(1) of the Act, applications on these matters have to be addressed within the 48 hours of the filing. Any failure in the compliance causes the violation of the Act, moreover, impacts the life & liberty of any person who is dependent on the information.
The availability of an e-filing RTI portal can help in the immediate filing of these applications. As provided in the Act, if e-filing arrangements would have been made amongst every state then the impact of COVID-19 on the RTI would also have been avoided. It is not possible to determine how many applicants would have suffered from the lack of this service, but non-compliance has been largely felt during the pandemic. Extendedly, mere availability is not the solution as the same has been provided by the abovementioned three governments. The systematic arrangement and statutory compliance are also needed to encompass the same i.e. the ability of the portal to put the life & liberty matter on the preference.
In the view of the statutory failure and portal’s inability, the Central Information Commission ( Hereinafter referred to as ‘CIC’) in its decision number CIC/DOP&T/C/2018/628739/MOHRD/03274 held that amid the lockdown Public Information Officers (PIOs) should make a separate email address for the life and liberty matters.
The drawback of this order is that it pertains to arranging only life & liberty matters. It does not talk about the regular RTI applications. Whereas RTI is a fundamental right and u/s 6(1) of the Act, the service of e-filing has been provided to all the citizens.
Thus, a complete perspective, which comprises of the regular applications as well, is missing and has to be considered.
The provisions Under Section 6(3) of the Act
Section 8 of the Act lists the exceptions from disclosing information. The provision does not mention jurisdiction as a ground. Limiting (see point 2 on the link) the portals to the particular jurisdictions lets PIOs to not consider an application on the grounds of jurisdiction. On the contrary, Section 6(3) states that an application in an unrelated department should be immediately transferred to the closely related department. The Delhi High Court in the case of Ministry of Railway through Secretary & Anr v. Girish Mittal upheld the CIC’s order in the light of Section 6(3) that, a PIO must transfer an application to its ‘closely connected department’. The provision strengthens the applicants to file their applications under the confidence that if their application will not pertain to the addressed department then the same will be transferred to the concerned department. The provision extends the jurisdiction of the departments so the utmost service can be availed by the applicant. The Act does not prohibit any such interstate or union-state transfer, whereas, in a practical world, applications have been consistently been disposed on the ground of jurisdiction. However, the question occurs that can an e-filing be done before the online available department and expected by the PIO to transfer it to the appropriate department?
The CIC, in the Case number CIC/SA/A/2016/001483, discussed the misuse of Section 6(3) of the Act. The provision states that an applicant should be addressed to the appropriate department. The application can be transferred only to the ‘closely connected departments’. Lacking literacy or opportunity can be a reasonable excuse but expecting a PIO to post every application will overburden the duties. It was observed that infrastructure like emails and other means would be convenient for rightly placing the applications.
The scope of Section 6(3) is an important debate from the perspective of the e-filing system. If the non-statutory exemption of jurisdiction can be eliminated then the process of e-filing may be practiced through the currently available portals. The state governments report to the central government thus, an application aimed to be submitted before the state government office can be filed before the concerned central government’s office, and then the same can be transferred. Although, as noticed by the CIC, the misuse of RTI has already limited this provision of the Act and the CIC has exempted the offices of President, Prime Minister, Governors, Chief Ministers, and Lieutenant Governors from a legal obligation to entertain the unrelated and uncontrolled RTI applications.
Amid the lockdown, e-filing will be convenient for RTI application. RTI is a central legislation and it is applicable over all the states. Adding remaining States & Union Territories and tagging life & liberty matters appropriately on the current portal can be a quick and one-stop solution. This will solve the concerns of migrants and urgent matters too.
As stated by Paul Smith “To breach a duty that corresponds to a right is not merely to breach one’s own duty, it is to infringe or violate another person’s right.” Applying the philosophy in the present case, a breach of the statutory duty by not providing a portal is also a breach of a fundamental right.
The Indian judicial system is adopting the E-filing system for the Courts. Justice Chandrachud spoke during one such webinar that “the footprints of pandemic will redefine how we function tomorrow.” The importance of e-fling has been noticed. The repercussions of its absence are being faced. The laws, precedents, and the philosophes advocate for the E-filing system. Considering the pandemic, it is important to complement the present RTI filing system with the electronic infrastructure so that the right to information can stay in motion.
Categories: Law and Technology, Legislation and Government Policy