Wednesday, October 27, 2021

Oxygen RTI is not about life or liberty- says CIC

Part II

An important area where the RTI is not being properly implemented is the clause of ‘life and liberty’ in case of which the information should be given within 48 hours. In oxygen RTI case of Saurav Das v DPIIT, the CIC decided recently, this clause suffered a severe blow.

Proviso of Section 7(1) of RTI Act states that where the information sought concerns the life or liberty of a person, the same shall be provided within forty- eight hours of the receipt of the request. In some orders the CIC felt that it is exceptional and hence given in exceptional circumstances only. It is not correct. It is part of the main rules which appear in the form of proviso to 30-day rule. It laid down a rule that life and liberty related information should be given in 2 days, without waiting for 30 days. But unfortunately, the Commissions discouraged implementation of this rule by imposing several restrictions over it.

Danger to life has to be proven

In Pratap Kumar Jena vs PIO, Central Institute of Psychiatry Ranchi, the CIC (Decision No. CIC/SG/A/2012/000814/18825) in 2012 held “the life or liberty provision can be applied only in cases where there is an imminent danger to the life or liberty of a person and the non-supply of the information may either lead to death or grievous injury to the concerned person. Liberty of a person is threatened if she or he is going to be incarcerated or has already been incarcerated and the disclosure of the information may change that situation. If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven. The Commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life or liberty can be proven.” It was further explained: The Commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life or liberty can be proven.”

Additional criterion

This order imposes additional criterion on disclosure which was not supposed or imposed by the Act. It is not called for. If the intention of the Parliament or law makers was to invoke life and liberty clause only in situation of ‘imminent threat or danger to life’ they would have mentioned it. Suppose somebody is asking for information about delay in oxygen supply to a hospital, it deals with life issue but may indicate imminent threat to life, then why should it be denied under this clause and be delayed by one month? The Commission in Pratap Kumar Jena case has directed the information to be disclosed, but laid down the test of imminent danger as essential component, which is not provided by enactment.

This is further stretched: – “If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven.” To be demonstrably proven is almost impossible, but that is prescribed by the Commission over and above the Act.  The possibility of getting information of life and liberty within two days is further reduced by a different decision of Commission in Sehar Singh and Ors vs PMO, where in the Commission said: “-The RTI application (should) be accompanied with substantive evidence that a threat to life exists (eg. Medical report). If the claim of concern for life and liberty is not accepted in a particular case by the public authority, the reasons for not doing so must be given in writing while disposing of the application”. It is almost laying down a hard and fast rule not to give such information. It is fortunate that CIC decisions are not precedents, though some are used so to deny information unfortunately. If the second appeal is against PMO, very rarely CIC will direct disclosure.

Fortifying the argument based on these anti-RTI Act orders, the Commission in Saurav Das case rejected that the request does not fall under category of life and liberty, but was generous enough say: “For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake. The Commission could not find any relation nor as a matter of fact, any justification of concerns of life and liberty of any person and therefore, there is no question of applicability of the proviso of Sec 7(1). However, as the second appeal was already filed and a hearing was granted, the bench within its discretion is not inclined to dismiss this appeal…and rather decided to take up the case on its merits and in larger public interest”.

Another point is the locus standi. The Act does not say whether the information sought should concern the life or liberty of applicant. The scheme of RTI Act also very clear not to limit the request relating to applicant or victim’s or aggrieved person. Anybody can ask information for any body and about anybody, subject of course to exceptions.

But some Commissioners rejected the RTI requests based on locus standi, which was not provided for in the Act. It is unfortunate. There are thousands of such rejections, which could be revealed if someone studies the orders of the Commissions which went straight away against the Act and remained as valid because poor applicants could not afford to challenge them before the High Courts.

CICs should be humane,  think of the people

Jammu and Kashmir State Information Commission gave a very good order in tune with the principles of transparency and RTI Act, in Dr Raja Muzaffar Bhat/Dr Mushtaq Ahmad vs. PIO, G B Pant Hospital, Srinagar on 1st Dec 2015.

“5. Similarly, there was a question, whether information sought for the life and liberty of a person has to be by the same person whose life or liberty is at stake. The nature of the situations for these two eventualities and situations makes seeking of information directly by the affected persons very difficult and at times impossible. If a person is unauthorizedly incarcerated, he may not be in a position to use his right of seeking information. Similarly, if a patient is admitted in the hospital and is not in a position to invoke his right personally, any close member of his family or any other person who has bonafied interest in the preservation and maintenance of life and liberty of that person can invoke the right to information which may ultimately ensure safety of the life and liberty of any person. Therefore, if after establishing genuine interest in preserving life and liberty of a person, the information can be sought by any other person who is otherwise qualified to seek information under J&K RTI Act, 2009.”

The CIC in this case took up the matter and decided it with a positive direction to disclose information, but at the same time it stated that this decision should not be considered as a precedent.  Anyway, legally the CIC decision has no precedential value, a blessing in disguise. But the same CIC uses all decisions of earlier CICs though against RTI Act, to draw a conclusion, which it does not want to be a precedent. The Commission should broaden their view and understand that they are just giving information and not supplying real oxygen. The Commission should see whether the disclosure of information under this clause will help protecting lives and liberties, instead of insisting appellant to demonstrate the imminent danger to life and liberty, which is impossible for anybody. The Commission should go beyond their bureaucratic frame of mind and change the gear to travel to reach justice and humanity besides having a concern for rule of law, instead of concentrating only on protecting the interests of their political and administrative bosses. The CICs should think of people and their sufferings, deaths caused by lack of oxygen, need to spread the information about sanctions made but Government’s machinery is cruel in not pursuing the supply mechanisms. There is no justification for CIC to reject contention of Saurav Das that quick disclosure would have accelerated supply of oxygen and saved thousands of lives. India needs human beings at the decision making offices.

Also read: Government refuses to give Oxygen Information

(The end)

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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