Thursday, September 29, 2022

‘Assistance’ does not mean ‘Permission’- HC

  • TS CS Circular Stayed
  • CJ points out the word ‘permission’ is not there in the Act
  • AG contends that it was meant to strengthen access to information

The Right to Information Act provided for PIOs to take assistance from any other officer in giving information to public under Section 5(4).  Since the PIO is not expected to have control of all the records. he has to consult the others who had the files and take a copy of it if asked by the applicant. That assistance is from other officers also is mandatory. If any officer does not assist, that officer would be liable as deemed PIO, as per law. When law is so clear in that aspect, ‘assistance’ provision cannot be converted into condition of the ‘permission’ of the superior, prescribing that without this permission, the PIO cannot respond to applicants. This is a very clear rule written in plain English in RTI Act, which the Telangana High Court had to explain to Telangana Chief Secretary.

Thanks to Ganji Srinivas, Dhruti

Thanks to Ganji Srinivas and student Dhruti for their socially active initiative to save RTI from bureaucratic attack. The Division Bench of High Court of Telangana led by Chief Justice Satish Chandra Sharma and Justice A. Rajashekar Reddy on 1st November has rightly stayed the Circular dated 13th October 2021 giving certain instructions not to disclose the information under RTI unless permitted by higher officers was granted. This was issued by the Telangana Chief Secretary, wherein the Principal Secretaries and Special Chief Secretaries of all departments were given a direction to instruct their respective Public Information Officers (PIOs) to furnish the information sought from them by the applicants under the RTI Act, only after obtaining consent from the concerned Special Chief Secretaries and Principal Secretaries.

Ganji Srinivas, an RTI activist, and Druthi Chitrapu, a student, filed two separate Public Interest Litigations seeking suspension of the CS circular. Along with Ganji Srinivasa Rao, Rapolu Bhaskar- joined in contending that the action of the Chief Secretary in issuing the circular was nothing but overriding the provisions of the RTI Act which was enacted by Parliament and which every public authority was bound to follow. The provisions of Sec. 6 (1) of RTI Act, clearly mandates the PIOs that they have to issue the information to the applicants within a period of 30 days, the petitioners said there was no need to take permissions from heads of the concerned departments.

Meant for transparency in administration

The RTI Act had been enacted to bring transparency in administration, to inform the people about decision making and expenditure of public money. The decision of CS in directing the public information officers (PIOs) to get approval of heads of departments or secretaries before providing information sought by applicants, will cause unnecessary hindrances in providing information.

The circular appears to be an attempt to stop the PIOs from sharing information and the Chief Secretary, without any authority, had issued this circular. It (the circular) illegally breaches RTI Act, arbitrary as it imposes a directive against law and unconstitutional because it violated Article 19 which guaranteed right to freedom of speech and expression, breaches Article 14 that ensures equality.

CS Circular is silent on timeframe

The Chief Secretary had no power to create a new non-statutory authority/procedure other than mandatory procedure entrusted on the state PIOs, appellate authority and state information commissioner under RTI, they said and added that the action of the Chief Secretary would lead to delay in furnishing information. “It is like giving arbitrary powers to the state PIOs to delay information sought. Moreover, the said circular has no time period for getting clearance from head of the departments which is arbitrary in nature and contradictory to the mandatory time frame and procedure to furnish information to the applicant under the RTI,” the petitioners stated.

Defending the circular of the Chief Secretary, Advocate General Banda Shivananda Prasad contended that the CJ bench that RTI Act, 2005, authorized that the Public Information Officers have to take the assistance of the concerned officers before the information was furnished to the applicant under the RTI Act. The PIOs have the power under the Act to take the assistance of the concerned officers of the department before the information sought under RTI Act is divulged.

HC refuses to intervene in the way AG wanted

It is really satisfactory to read in media that AG has explained that Government was trying to strengthen access to information mechanism and the circular was aimed at that only. Reportedly the AG has explained that some PIOs gave incomplete information sometimes, which could be avoided if the higher officers oversee the response. Most of the times the applicants approached courts because of incomplete furnishing of information, the AG argued.  The AG sought that the court may issue necessary directions to PIOs take assistance of the superiors. But the High Court refused to intervene in such way and posted for the counters to be filed by the Government.

It is not known whether the Chief Secretary consulted any legal team, the Secretary of Law Department, Advocate General of the State or any other experts before issuing such circular which on the face of it rewrites the process of giving information the way different from what is prescribed by the Parliament through Right to Information Act.

The Chief Justice Satish Chandra Sharma simply pointed out to the AG: “You have converted Assistance into Permission and the word ‘permission’ is not there in the Act.” After clarifying this, the Chief Justice bench stayed that circular.  One has to see what the Government writes in counter affidavits.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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