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Why Did the Delhi High Court Say Non-citizens Have a Right to Information Under the RTI Act?

Tushar Kohli |
The Delhi High Court conducted an analysis of the whole of the RTI Act to arrive at the conclusion that it would be against the spirit of the Constitution.
Why did the Delhi High Court say non-citizens have a right to information under the RTI Act?

While the Delhi High Court has ruled for non-citizens’ right to access information under the RTI Act, it may not be the final word on the dispute.

Does the Right to Information Act, 2005 (RTI Act) extend to non-citizens? It does, as per a Delhi High Court ruling this week which held that there cannot be an absolute prohibition on disclosure of information to non-citizens.

A single-judge bench of Justice Prathiba M. Singh, after a perusal of the RTI Act in A.S. Rawat versus Dawa Tashi, concluded the Act uses the terms ‘citizens’ and ‘persons’ without any discernible distinction and, therefore, restricting the rights available under it to only Indian citizens would be contrary to the spirit of the Constitution as well as the Act.

However, a non-citizen may not be able to enjoy the same rights as a citizen, as the high court stated that the disclosure of information to non-citizens would depend on the kind of information sought and the recognition of the rights guaranteed to such class of persons under the Constitution of India.

The dispute regarding the applicability and ambit of the Act might not have been resolved authoritatively, since a single-judge bench of the Madras High Court delivered a contrary ruling in January this year.

Venkatesh Nayak, who heads the Access to Information Programme at Commonwealth Human Rights Initiative, an independent, non-partisan and nonprofit international non-governmental organisation, believes that the judgment in A.S. Rawat is in keeping with the international trend of good practices to provide fundamental human rights guarantees to all irrespective of citizenship status”, but adds that “it remains to be seen whether public authorities across the country will accept this interpretation of the RTI Act”.

Citizens, persons and public

To decipher whether the intent of the legislature was to limit the Act to citizens only, Justice Singh conducted a perusal of the provisions of the Act, the Preamble to the Act and the statement of objects and reasons affixed to it, which are technically not considered to be a part of the legislation, but are useful in interpreting it.

While the Act uses the term ‘persons’ in a majority of provisions, the terms ‘citizens’ and ‘public’ have also been employed, at times interchangeably.

For instance, the preamble uses the words ‘citizens’ and ‘informed citizenry’, as does Section 3, which confers the Right to Information upon citizens, as noted before.

Public authorities also have an obligation under Section 4(1)(d) to provide reasons for their administrative or quasi-judicial decisions to the affected persons.

In Section 4(2), the endeavour of public authorities has to be to take steps to ensure maximum availability of information to the publicso that the public has minimum resort to the use of the procedure under the RTI Act to obtain information.

Section 5 requires the central public information officers and state public information officers to be designated for providing information to persons requesting for information under the RTI Act, who shall deal with requests and render reasonable assistance to persons seeking information under the RTI Act.

Section 7 prescribes the time limit for providing information as 30 days. However, the proviso to Section 7(1) stipulates that if the information is sought in respect of life or liberty of a person, the same is to be provided within 48 hours of the receipt of the request.

The proviso is especially significant to the present debate since the Act places enormous emphasis on access to information, and this provision provides distinct importance to information that relates to the life or liberty of a person.

Article 21 of the Constitution of India, which encompasses Right to Life, is available not merely to citizens but to all persons,” the court notes, in light of the prevailing judicial precedents.

Considering the above, the court held, it would be inherently contradictory to hold that only citizens are entitled to the right to information. “Life or liberty could also relate to non-citizens including foreigners, NRI’s, OCI card holders and such other persons.

Crucial information that could be required by a non-citizen from an Indian ‘public authority’ may relate to travel-related permissions, visa applications, refugee- and asylum-seeking applications, property-related issues concerning persons of Indian origin who may not be citizens, and extradition-related information.

Hence, in light of the fact that a small bouquet of rights have also been conferred upon non-citizens and the interchangeable use of ‘citizens’ and ‘persons’ in the Act, the high court ruled that there cannot be an absolute prohibition on non-citizens to enjoy access to information under the Act.

But in a puzzling addition to the above ruling, the court held that whenever information is sought by non-citizens, it would be at the discretion of the authorities to disclose such information.

The full text of Section 3 reads as follows: “Subject to the provisions of this Act, all citizens shall have the right to information.

By focusing excessively on the use of the word ‘citizens’, the court appears to have ignored the first portion of the provision which subjects the rule laid down in the second portion to other provisions of the Act.

Having earlier concluded that the words ‘citizens’ and ‘persons’ have been used without discernible distinction in the Act and thereby blurring the difference between the two terms, it would have been only natural to read the term ‘citizens’ as ‘persons’ and interpret Section 3 to include ‘non-citizens’.

Maintaining the distinction, the court chose to impose a limitation on the disclosure to non-citizens by leaving it at the discretion of the public authority from whom the information is sought.

It would be at the discretion of the authority concerned to decide depending upon the facts, situation and the surrounding circumstances as to whether the information deserves to be disclosed,” the court stated, which would also depend on the rights guaranteed to non-citizens under the Constitution.

Malicious denial: Central Information Commission

The high court ruling arrived on a plea filed by a public information officer (PIO) at the Central Tibetan Schools Administration (CTSA) on whom the Central Information Commission had imposed a penalty of INR 25,000 for “malicious” denial of information to Dawa Tashi, a Tibetan born in India.

Tashi, who was a postgraduate teacher of Tibetan at the Central School for Tibetans, Darjeeling at the time, had filed an RTI application in July 2014, seeking information on his confirmation letter as an employee of CTSA and other benefits to which he was entitled. His application was denied on the ground that his nationality was Tibetan, and an appeal was also rejected thereafter.

In October 2016, the Central Information Commission ordered the PIO, A.S. Rawat, to provide point-wise information to Tashi and issued a show cause notice to Rawat as to why the maximum penalty should not be imposed against him, calling the denial “most deplorable”.

The commission held that a public authority cannot deny information simply on the suspicion that an appellant might not be a citizen of India, adding that “[b]aseless doubting of ‘citizenship’ reflects malice.”

In its order, the commission cited Article 5 of the Constitution, which declares that every person who has their domicile in the territory of India and was born in India would be considered its citizen, and Section 3(1)(a) of the Citizenship Act, 1955, which treats a person as a citizen based on their birth in India on or after January 26, 1950 and before July 1, 1987.

There are two facets of the right to information, the commission said. One is a component of the right to life, which includes the aspect of the right to know, which is guaranteed to all persons under Article 21 of the Constitution; and two, is part of the freedom of expression under Article 19(1)(a).

Upon analysing the various provisions of the Act, the commission was of the view that the use of the term ‘citizens’ does not imply a prohibition on providing information to others, and that “[g]iving a restricted interpretation to deny (information) to [an] applicant on this ground will obliterate the purpose of the Act”, which is to promote transparency and accountability in the working of every public authority, as per the Act’s preamble.

In response to the show cause notice issued by the commission, the CTSA took the position that the penalty would not be liable to be imposed as Tashi, at the time of his appointment, clearly stated that he was a Tibetan national and had declared his nationality to be Tibetan.

The reply cited a Union Ministry of Home Affairs letter from August 2011 which stated that children born to Tibetan refugees in India would not be treated as Indian citizens automatically based on their birth in India before July 1, 1987 under Section 3(1)(a) of the Citizenship Act.

The commission was of the opinion that Tashi would be entitled to the information sought on two counts: first, that he was a citizen of India owing to the provisions of the Citizenship Act, and second, even if he is considered to be a Tibetan citizen, there is no express prohibition against non-citizens under Section 3 of the RTI Act, which entitles all ‘citizens’ to information, subject to the provisions of the Act.

Upon receiving the reply, however, the commission held the conduct of the PIO to be mala fide and malicious, and imposed a penalty of INR 25,000 through an order delivered in November 2016, which was under challenge in the present case.

The Delhi High Court partially read down the commission’s order by stating that the PIO’s approach of assuming that a non-citizen would not be entitled to information under the RTI Act cannot be held to be maliciouand could be considered at best as a circumspect approach in these circumstances, especially in view of the wording of Section 3 of the RTI Act”.

The high court, therefore, set aside the commission’s order to the above extent and the INR 25,000 penalty imposed on the PIO, but upheld its finding that non-citizens, too, have the liberty to access information under the RTI Act.

Two high courts, two rulings

Prior to the Delhi High Court judgment in A.S. Rawat versus Dawa Tashi, a single judge bench of the Madras High Court arrived at the opposite conclusion.

The proposition that even a non-citizen can obtain information under the RTI Act is “untenable”, held Justice K. Kumaresh Babu of the Madurai Bench of the Madras High Court in K.K.C. Balaganesan versus The Managing Director, Tamil Nadu Generation and Distribution Corporation Limited on January 31 this year.

Justice Babu stated that it is the duty of the court to ascertain the intention of the RTI Act and the intended beneficiaries of the statute, and “in the present case, the Act has been enacted to provide information to a citizen alone. Any other person, who is not a citizen of India, cannot invoke the provisions of the Act and seek information,” citing the text of the RTI Act’s preamble.

In contrast, the Delhi High Court conducted an analysis of the whole of the RTI Act to arrive at the conclusion that it would be against the spirit of the Constitution — particularly Article 21 — and the Act to deny the right to information in toto to non-citizens.

Nayak believes that the Delhi High Court could have gone even a step further and “strengthened the rationale for recognising information access rights of non-citizens by permitting the exercise of their right to know under Article 21 of the Constitution through systems and procedures provided in the RTI Act”, noting further that the Supreme Court has deemed in at least two judgments the right to access information as a “part and parcel” of the right to life and liberty guaranteed to all persons irrespective of citizenship status.

Nonetheless, the issue over non-citizens’ right to seek information under the Act seeks an authoritative ruling, preferably by the Supreme Court.

Tushar Kohli is a journalist based in Delhi and Mohali.

Courtesy: The Leaflet

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