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By Venkatesh Nayak*
Rumour has it that the Registries of some Information Commissions established under The Right to Information Act, 2005 (RTI Act) are returning 2nd appeals and complaints submitted by aggrieved citizens without admitting them on the ground that proof of identity of the appellant/complainant has not been attached. This action is being taken purportedly under the influence of a judgement of the Punjab and Haryana High Court delivered in 2012..
Similarly, some High Courts have notified RTI Rules requiring the RTI applicant to prove his/her identity. When the National Human Rights Commission insisted on production of citizenship proof of the RTI applicant, the Central Information Commission (CIC) ruled that unless the Public Information Officer has credible material before him/her to suspect the identity of the RTI applicant he/she will not insist on production of such documents. There may be later decisions to the contrary from the CIC which I may not be aware of.
Earlier in 2013, under the United Progressive Alliance (UPA) Government, the Department of Administrative Reforms and Public Grievances (OM) had issued an Office Memorandum (OM) laying down this rule of self-certification. A copy of this OM was sent to all Ministries and Departments under the Central Government as well as the Chief Secretaries of all Union Territories and the States- Jammu and Kashmir included. So this rule of self-certification which was brought in under the UPA Government continues to apply under the NDA Government. As the Information Commissions are administrative tribunals, as per the interpretation of the Supreme Court of India in the Namit Sharma case in the same year, DARPG’s OM will apply to them also.
The lone exception to the general rule of not furnishing proof of identity at the RTI application stage within Government applies to Rajasthan. In the matter of Jaipur National University vs. The Rajasthan Information Commission & Ors the Rajasthan High Court directed the State Information Commission to issue instructions to all public authorities to insist on proof of identity to be attached with the RTI application. A major issue in this case was that the RTI applicant had given a false address and was unreachable. According to the status update on its website, this matter is still pending before the High Court. It is my firm belief that the RTI applicant in this case is solely to blame for this rule being issued by the High Court. One instance of ‘misuse’ of the RTI ends up ruining the system for others. This is why RTI must be used responsibly and not to cause undue vexation to any person.
In the matter of Fruit and Merchant Union vs Chief Information Commissioner & Ors, the Petitioner, being a “third party” to an RTI application filed by a citizen, complained that the Punjab Information Commission had ordered disclosure of information relating to its affairs through complaints procedure without hearing it first. The basic facts of the case are as follows:An RTI applicant sought the following information from the State Public Information Officer (SPIO) of the Punjab State Agricultural Marketing Board (PSAMB): “How many account checkings of the licence were made at Vallah Vegetable Market w.e.f. 1.4.2010 till today for the session 2009-10, i.e. Name of the firm, recovery of due fees/ amount as to R.D.F., amount as to recovered penalty and details of the record from which the due amount is calculated.”
The Petitioner “somehow got to know” of the RTI application and filed a petition before the designated first appellate authority (FAA) of PSAMB demanding the right to be heard before the PIO made a decision on the RTI application. The FAA agreed with the prayer and directed the SPIO to hear the Petitioner before making a decision on the RTI application.
During the pendency of the decision of the SPIO, the RTI applicant filed a complaint before the Punjab Information Commission (Punjab IC) under Section 18 of the RTI Act about the undue delay in the disposal of the RTI application. The Punjab IC decided that as no third party interests were involved in the information sought, it may be disclosed.
The Petitioner challenged the decision of the Punjab IC through a Writ Petition before the Punjab and Haryana High Court. The Court struck down the order of the Punjab IC holding that it had erred in not providing an opportunity to the Petitioner of being heard before disposing the complaint. It also said that the matter ought not to have been decided when the first appeal proceeding was pending before the FAA.
Then at para #23 the Court gives the following direction: “Further, in all complaints before the Public Information Officer, the appeal before the first appellate authority or any proceedings before the Commission, it should be ensured that the applicant files his proof of identity along with the application. It is for the reason that in some cases, it has come to the notice of this court that the applicants were not identifiable. It would ensure that only the genuine persons file applications.”
The Court also directed the Registry to furnish a copy of the order to the Respondent, the CIC and the Haryana IC apart from the Government of Punjab.
It appears that this is the inspiration for the identity proof column in the CIC’s checklist for second appeals filed before it.
The PIO at the initial stage was correct in their reading of Section 11 of the RTI Act which relates to third parties. Although in a general sense the Petitioner Union is a third party, it does not become entitled to the procedures of seeking a representation against disclosure as the information cannot be treated as confidential information about the Petitioner. An individual’s personal information was not being sought. Details of action taken against defaulting firms were sought and such information ordinarily does not attract any confidentiality. Also in the mere action of buying and selling fruits and other agricultural commodities, no trade secret is involved. So, as the conditions under Section 11 were not attracted, the PIO was correct in not issuing notice to the Petitioner Union in relation to the pending RTI application.
During the pendency of the RTI application before the SPIO, the Petitioner Union filed a first appeal with the FAA. This appeal ought to have been rejected as premature as no order of the SPIO had been passed. The FAA is not empowered by the RTI Act to interfere at the RTI application stage. A first appeal can be field under Section 19(1) only if a decision is given by the SPIO or if the time limit for issuing such a decision has lapsed. In the latter case it is only the right of the applicant to file a first appeal that gets activated. The third party has to wait for a decision of the PIO as without such a decision, it cannot demonstrate any grievance. Unfortunately, the High Court did not pay attention to this aspect either.
To the limited extent that the Puniab IC did not give the Petitioner Union an opportunity of being heard, the Court has correctly held that it ought to have been so done. Being an affected party it had the right to be heard in the complaint proceeding even though it does not attract any of the protection of Section 11 of the RTI Act. But it can always stake a claim to such protection. The Punjab IC ought to have heard the Petitioner Union as that is the intention of Section 19(4) in a second appeal proceeding as well.
Citing the Supreme Court’s characterisation of Information Commissions as quasi-judicial tribunals in Namit Sharma the Punjab and Haryana High Court directed the Punjab IC to decide such cases with more care. Case law on this issue was cited at length. However after the Punjab and Haryana High Court decided this case, the Apex Court recalled its judgement in Namit Sharma and characterised Information Commissions as administrative tribunals. So to that extent the paras of the Punjab and Haryana High Court as void as the basis for its findings is non est (does not exist).
What comes as a surprise is two directions of the Punjab and Haryana High Court that are given at the end of its judgement. Out of the blue, a direction is issued that all RTI applications, appeals and complaints at all stages must be accompanied by proof of identity of the applicant/appellant. Nothing in the facts of the case which was the cause of the Petition indicates that lack of identity proof was a material issue that was argued before the case. Instead the Court has imported its own experience of dealing with RTI applications without specifying any details. It is respectfully submitted that judicial discipline requires that Courts including Constitutional Courts rule only on such issues that are argued before them without traversing into other matters even though they may have knowledge of such matters. The High Court seems to have issued a direction on an issue that was not even argued before it. So it is difficult to accept this direction as a reasoned one in the absence of arguments and counter arguments placed before the Court. Several thousands of citizens do not have proper identity papers in their possession – a major reason why they are unable to vote during the elections to Parliament and State Legislatures and local bodies like panchayats and municipalities. To insist that RTI applications and appeals be accompanied with proof of identity amounts to preventing them from seeking information under the RTI Act on technical grounds. This is the unfair outcome of the Court’s direction.
Further, the direction to send copies of the judgement to the Haryana IC and the CIC is even more perplexing. These Information Commissions were not even parties to the case decided by the High Court of Punjab and Haryana. It is a cardinal principle of judicial process that no one shall be directed to act in a manner required until such party is heard, except when such directions must be issued in the interests of delivering justice in a situation of urgency as in habeas corpus writ petitions. So in my humble opinion such directions are not binding on the Haryana IC or the CIC as they were not parties to the case. Merely sending them copies of a judgement does not make it compulsory for them to comply with the directions. It is unfortunate that the CIC has not elected to seek a clarificatory order from the High court of Punjab and Haryana after receiving a copy of the judgement. Given its previous rulings that identity or citizenship proof will not sought as a general rule, it ought to have sought a clarification from the Court. However it does not seem to have taken this step. In my humble opinion as neither the Haryana IC nor the CIC were parties to the case, they do not have a duty to comply with the directions.
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* Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
Rumour has it that the Registries of some Information Commissions established under The Right to Information Act, 2005 (RTI Act) are returning 2nd appeals and complaints submitted by aggrieved citizens without admitting them on the ground that proof of identity of the appellant/complainant has not been attached. This action is being taken purportedly under the influence of a judgement of the Punjab and Haryana High Court delivered in 2012..
Is identity proof required at the RTI application stage?
Nothing in the RTI Act passed by Parliament or the RTI Rules notified by the Central Government or most of the State Governments require an applicant to submit proof of identity or address along with the RTI application. In the case of State Governments, the lone exception that I can remember is that of Odisha which has stubbornly retained this requirement of proving one’s identity at the RTI application stage despite sustained and very vocal protests from civil society and activists from Odisha and outside. The Commonwealth Human Rights Initiative (CHRI) had also sent a recommendation to the State Government for deleting this provision from the Application Form which was inserted without any enabling provision contained in the RTI Rules.Similarly, some High Courts have notified RTI Rules requiring the RTI applicant to prove his/her identity. When the National Human Rights Commission insisted on production of citizenship proof of the RTI applicant, the Central Information Commission (CIC) ruled that unless the Public Information Officer has credible material before him/her to suspect the identity of the RTI applicant he/she will not insist on production of such documents. There may be later decisions to the contrary from the CIC which I may not be aware of.
BPL RTI applicants may submit only self-attested copies of identity proof
However, the only exception to this rule of ordinarily not insisting on the identity proof of the RTI applicant is when he/she seeks fee waiver on the ground that he/she belongs to below the poverty line (BPL) category. Even here there is no requirement on the BPL applicant to get the copy of the document proving his/her identity attested by any government officer. Some public authorities and even Information Commissions insist on such attestation. None other than the Prime Minister made it clear while inaugurating the Annual RTI Convention of the CIC that the government had decided to accept self-attested copies of all documents of identity or qualifications by trusting citizens and the originals may be verified only at the final stage of decision-making, if necessary.Earlier in 2013, under the United Progressive Alliance (UPA) Government, the Department of Administrative Reforms and Public Grievances (OM) had issued an Office Memorandum (OM) laying down this rule of self-certification. A copy of this OM was sent to all Ministries and Departments under the Central Government as well as the Chief Secretaries of all Union Territories and the States- Jammu and Kashmir included. So this rule of self-certification which was brought in under the UPA Government continues to apply under the NDA Government. As the Information Commissions are administrative tribunals, as per the interpretation of the Supreme Court of India in the Namit Sharma case in the same year, DARPG’s OM will apply to them also.
The lone exception to the general rule of not furnishing proof of identity at the RTI application stage within Government applies to Rajasthan. In the matter of Jaipur National University vs. The Rajasthan Information Commission & Ors the Rajasthan High Court directed the State Information Commission to issue instructions to all public authorities to insist on proof of identity to be attached with the RTI application. A major issue in this case was that the RTI applicant had given a false address and was unreachable. According to the status update on its website, this matter is still pending before the High Court. It is my firm belief that the RTI applicant in this case is solely to blame for this rule being issued by the High Court. One instance of ‘misuse’ of the RTI ends up ruining the system for others. This is why RTI must be used responsibly and not to cause undue vexation to any person.
Proving RTI applicant’s identity in Haryana
A round robin email circulated recently by an RTI activist indicates the use of a check list for second appeals by the Registry of the CIC which contains a tick box regarding proof of identity of the appellant. If this checklist template is indeed being used by the CIC, it is necessary to go into the basis of this column relating to proof of identity of the appellant. The template states that this item is included in compliance with the direction of the Punjab and Haryana High Court issued in November 2012. Nothing in the template states that attachment of proof of identity is compulsory. I have seven appeals currently pending before the CIC according to its “Status of Appeals and Complaints Page”. I have never attached proof of identity with my second appeals in the past and the CIC has never returned my appeal papers for this reason. However, the Punjab and Haryana High Court’s 2012 order deserves analysis in depth.In the matter of Fruit and Merchant Union vs Chief Information Commissioner & Ors, the Petitioner, being a “third party” to an RTI application filed by a citizen, complained that the Punjab Information Commission had ordered disclosure of information relating to its affairs through complaints procedure without hearing it first. The basic facts of the case are as follows:An RTI applicant sought the following information from the State Public Information Officer (SPIO) of the Punjab State Agricultural Marketing Board (PSAMB): “How many account checkings of the licence were made at Vallah Vegetable Market w.e.f. 1.4.2010 till today for the session 2009-10, i.e. Name of the firm, recovery of due fees/ amount as to R.D.F., amount as to recovered penalty and details of the record from which the due amount is calculated.”
The Petitioner “somehow got to know” of the RTI application and filed a petition before the designated first appellate authority (FAA) of PSAMB demanding the right to be heard before the PIO made a decision on the RTI application. The FAA agreed with the prayer and directed the SPIO to hear the Petitioner before making a decision on the RTI application.
During the pendency of the decision of the SPIO, the RTI applicant filed a complaint before the Punjab Information Commission (Punjab IC) under Section 18 of the RTI Act about the undue delay in the disposal of the RTI application. The Punjab IC decided that as no third party interests were involved in the information sought, it may be disclosed.
The Petitioner challenged the decision of the Punjab IC through a Writ Petition before the Punjab and Haryana High Court. The Court struck down the order of the Punjab IC holding that it had erred in not providing an opportunity to the Petitioner of being heard before disposing the complaint. It also said that the matter ought not to have been decided when the first appeal proceeding was pending before the FAA.
Then at para #23 the Court gives the following direction: “Further, in all complaints before the Public Information Officer, the appeal before the first appellate authority or any proceedings before the Commission, it should be ensured that the applicant files his proof of identity along with the application. It is for the reason that in some cases, it has come to the notice of this court that the applicants were not identifiable. It would ensure that only the genuine persons file applications.”
The Court also directed the Registry to furnish a copy of the order to the Respondent, the CIC and the Haryana IC apart from the Government of Punjab.
It appears that this is the inspiration for the identity proof column in the CIC’s checklist for second appeals filed before it.
What is problematic with High Court’s order and the CIC’s compliance with it
With deepest respect to the wisdom of the High Court it is difficult to accept its findings and directions as being reasonable and just in their entirety. My humble submission is as follows:A proper appreciation of the information sought by the RTI applicant makes it clear that it is required to be voluntarily disclosed by PSAMB under Section 4 of the RTI Act. It is in the nature of information that is required to be proactively disclosed under sub-clauses (viii) and (xiii) of Section 4(1)(b) of the Act. It is also in the nature of information required to be proactively disclosed under Sections 4(1)(c) and (d) of the RTI Act. Merchants do not obtain licenses to sell their products exclusively to their family members and relatives. They are in the business of selling their products to the general public and all matters relating to issue of licenses, verifying their authenticity, imposition and recovery of penalties are very much in the larger public interest. Regulating such business activities and imposing penalties, for not complying with the rules and regulations applicable, is in the public interest. Or else there would be no need for any law to regulate such activities. It is in order to protect the interests of the farmers and the consumers that the State steps in to regulate the buying and selling activities where merchants are intermediaries. So by no stretch of imagination can the information sought by the RTI applicant be treated as confidential or secret. Unfortunately, High Court did not go into this intricacy of the law and simply treated the Petitioner Union as a ‘third party’ in a general sense. As Section 2(n) defines “third party” as a term of art used specifically in the RTI Act, plain meanings of the phrase must not be imported unless there is a grey area in the law that requires external aides to interpretation.The PIO at the initial stage was correct in their reading of Section 11 of the RTI Act which relates to third parties. Although in a general sense the Petitioner Union is a third party, it does not become entitled to the procedures of seeking a representation against disclosure as the information cannot be treated as confidential information about the Petitioner. An individual’s personal information was not being sought. Details of action taken against defaulting firms were sought and such information ordinarily does not attract any confidentiality. Also in the mere action of buying and selling fruits and other agricultural commodities, no trade secret is involved. So, as the conditions under Section 11 were not attracted, the PIO was correct in not issuing notice to the Petitioner Union in relation to the pending RTI application.
During the pendency of the RTI application before the SPIO, the Petitioner Union filed a first appeal with the FAA. This appeal ought to have been rejected as premature as no order of the SPIO had been passed. The FAA is not empowered by the RTI Act to interfere at the RTI application stage. A first appeal can be field under Section 19(1) only if a decision is given by the SPIO or if the time limit for issuing such a decision has lapsed. In the latter case it is only the right of the applicant to file a first appeal that gets activated. The third party has to wait for a decision of the PIO as without such a decision, it cannot demonstrate any grievance. Unfortunately, the High Court did not pay attention to this aspect either.
To the limited extent that the Puniab IC did not give the Petitioner Union an opportunity of being heard, the Court has correctly held that it ought to have been so done. Being an affected party it had the right to be heard in the complaint proceeding even though it does not attract any of the protection of Section 11 of the RTI Act. But it can always stake a claim to such protection. The Punjab IC ought to have heard the Petitioner Union as that is the intention of Section 19(4) in a second appeal proceeding as well.
Citing the Supreme Court’s characterisation of Information Commissions as quasi-judicial tribunals in Namit Sharma the Punjab and Haryana High Court directed the Punjab IC to decide such cases with more care. Case law on this issue was cited at length. However after the Punjab and Haryana High Court decided this case, the Apex Court recalled its judgement in Namit Sharma and characterised Information Commissions as administrative tribunals. So to that extent the paras of the Punjab and Haryana High Court as void as the basis for its findings is non est (does not exist).
What comes as a surprise is two directions of the Punjab and Haryana High Court that are given at the end of its judgement. Out of the blue, a direction is issued that all RTI applications, appeals and complaints at all stages must be accompanied by proof of identity of the applicant/appellant. Nothing in the facts of the case which was the cause of the Petition indicates that lack of identity proof was a material issue that was argued before the case. Instead the Court has imported its own experience of dealing with RTI applications without specifying any details. It is respectfully submitted that judicial discipline requires that Courts including Constitutional Courts rule only on such issues that are argued before them without traversing into other matters even though they may have knowledge of such matters. The High Court seems to have issued a direction on an issue that was not even argued before it. So it is difficult to accept this direction as a reasoned one in the absence of arguments and counter arguments placed before the Court. Several thousands of citizens do not have proper identity papers in their possession – a major reason why they are unable to vote during the elections to Parliament and State Legislatures and local bodies like panchayats and municipalities. To insist that RTI applications and appeals be accompanied with proof of identity amounts to preventing them from seeking information under the RTI Act on technical grounds. This is the unfair outcome of the Court’s direction.
Further, the direction to send copies of the judgement to the Haryana IC and the CIC is even more perplexing. These Information Commissions were not even parties to the case decided by the High Court of Punjab and Haryana. It is a cardinal principle of judicial process that no one shall be directed to act in a manner required until such party is heard, except when such directions must be issued in the interests of delivering justice in a situation of urgency as in habeas corpus writ petitions. So in my humble opinion such directions are not binding on the Haryana IC or the CIC as they were not parties to the case. Merely sending them copies of a judgement does not make it compulsory for them to comply with the directions. It is unfortunate that the CIC has not elected to seek a clarificatory order from the High court of Punjab and Haryana after receiving a copy of the judgement. Given its previous rulings that identity or citizenship proof will not sought as a general rule, it ought to have sought a clarification from the Court. However it does not seem to have taken this step. In my humble opinion as neither the Haryana IC nor the CIC were parties to the case, they do not have a duty to comply with the directions.
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* Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
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