A S Rawat v. Dawa Tashi

(I) Every public authority shall, within one hundred days of the enactment of this Act, designate as many officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. Section 6. Request for obtaining information.—(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed. Section 18. Powers and 'Functions of Information Commissions.—(1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person. …18. The appellant has a right to this information in two capacities. First, as an employee of Public Authority; second, as a citizen/person under RTI Act. The Public Authority, more specially the Director has an obligation, in his capacity as employer to provide the information to his employee. The Public Authority also has duty to give information under Section 6 & 7 of RTI Act. Information sought was relating to his employment and discrimination on governance caused by the Director and other officers. Appellant was a person affected by decisions of Director of Public Authority, and under Section 4 (1) (d), the Public Authority shall disclose the reasons for its decisions, to this affected person. Here, the question of his citizenship is irrelevant. By saying this Public Authority, Director and CPIO violated Section 4 (1)(d). By ignoring the fact that appellant was born in India and thus his citizenship was undisputed, PIO violated Section 3. If he used ’citizenship’ issue as a lame excuse to harass the appellant by denying information. Under Section 6 & 7 of RTI Act, PIO should have performed his duty to “person” of appellant, without bothering whether he was citizen or not. As an employee, he was entitled to information, even if he was not citizenship. Thus, PIO and First Appellate Authority have breached their duties. Alleging him as not citizen, without any effort to ascertain whether he was citizen or not.

19. The Commission holds that Public Authority cannot deny information simply on the suspicion that appellant might not be a citizen of India. If it is baseless suspicion, PIO’s action will be considered as malicious. Basically every person has right to information because Section 6 & 7 of RTI Act specifically mandated PIOs to give information to persons under RTI Act, Public Authority has to give information not only to citizen, but also to persons. Baseless doubting of ‘citizenship’ reflects malice. In these circumstances it cannot be a ground for denial of information. If PIO did not make any effort to examine his doubt about appellant’s citizenship, he will be guilty of malicious denial of RTI.

20. The questions raised by appellant relates to biased administration in the CTSA where the appellant is allegedly denied his due benefits. The Commission directs the CPIO Mr. A. S. Rawat, Education Officer, and Director Mr. Vineet Joshi FA considering him as deemed CPIO who obstructed the access to information, to show cause why maximum penalty should not be imposed against each of them and also why disciplinary action should not be recommended against them for this wrongful denial of information, within 21 days from date of receipt of this order. The Director Mr. Vineet Joshi is also directed to showcause why public authority should not be directed to pay compensation to the appellant, for loss and other detriments caused to him due to unreasonable response of the officers as reflected in their replies and contentions.”

9. In response to this notice which was issued by the CIC, the CTSA took the position that the penalty would not be liable to be imposed, as the RTI Applicant had, at the time of his appointment, clearly stated that he was a Tibetan National and had declared his nationality to be Tibetan.

10. The reply dated 31st October 2016 addressed to the CIC and copied to the RTI applicant by the PIO- Petitioner is relevant and is set out below:- “(a) Regarding his confirmation: It is a fact that the appellant is an employee of the Central School for Tibetans (in short CTSA). He was appointed in Central Tibetan schools Administration (in short CTSA) vide CTSA Memorandum dated 16.9.1992 as a temporary employee (Annexure - I) as Tibetan Language Teacher. As per the Bio- data submitted by Sh. Dawa Tashi in CTSA i.e. at the time of his initial appointment in CTSA, he himself declared his nationality as "Tibetan" and mentioned the R.C. No. SJA/1551/84 (Annexure- II) being a Tibetan National (foreign national). At the time of appointment in CTSA, Sh. Dawa Tashi had submitted his Attestation form giving several mandatory declarations for appointment in Govt., through the Head Master, CST, Kharapathar, dated 18.12.92, wherein he declared his Nationality as "Tibetan" (Annexure - III). Sh. Dawa Tashi was appointed as PGT (Tibetan) w.e.f. 18.9.1995. (Annexure IV). Till the year 2001 all employees of CTSA (Indian and Tibetan) were in the capacity of regular employees but no one was kept in the substantive capacity…. ….The direction of Election Commission which is issued to their sub offices for enrolment in the voting list in India but Sh. Dawa Tashi declared himself as a Tibetan National at the time of appointment in CTSA and after that availing all facilities of Tibetan Refugee in India, hence the change of nationality automatically may not be done by the appointing authority. The Ministry of Home affairs vide letter dated 28.08.2011 had also mentioned the provision under para -(v) as hereunder "The children born to Tibetan Refugee in India will not be treated as Indian citizen automatically based on their birth in India before 01.07.1987 under Section 3(1)(a) of the Citizenship Act 1955. All such persons will have to submit an application, Individually under section 9(2) of the Citizenship Act,1955 to MHA and thereafter the nationality status of all such children born to Tibetan Refugees in India, will be determined by MHA as per prescribed procedure available under the Citizenship Rules, 2009. All such children, and when their nationality status as an Indian is decided by this ministry, will have to surrender their Tibetan Refugee Certificate and identity Card before accepting Indian Citizenship". The copy of the same is enclosed as (Annexure-VII)…. ….As per Service record held in CTSA, Sh. Dawa Tashi is a Tibetan National. As per the order of the Govt. of India, Tibetan Nationals cannot be given the confirmation status in service being foreigners. Due to this reason and order of the Govt. of India, as a matter of policy of the Govt. of India. Tibetan Nationals working in CTSA have not been given confirmation status in CTSA. As on date, there are 85 Tibetan nationals working in CTSA. Although these 85 employees are working on regular basis, but, confirmation letter have not been issued to them as a matter of policy of Govt. of India and directions received from the Govt. for this purpose in CTSA..”

11. The CIC after receiving the above reply, however, concluded that the PIOs conduct was mala fide and malicious and that it was founded on baseless suspicions about the citizenship of the RTI applicant. Accordingly, the CIC vide its Order dated 22nd November 2016 imposed a penalty of Rs. 25,000/- on the PIO, which is the order under challenge. The relevant paragraphs of the CIC’s order reads as under:-

8. The explanation of the CPIO is not satisfactory. He is trying to justify his denial; hence the Commission finds it is a fit case for imposing maximum penalty of Rs. 25,000/- on Mr. A. S. Rawat Education Officer/CPIO. Accordingly, Mr. A. S. Rawat, Education Officer/CPIO is directed to pay a sum of Rs.25,000/- in 5 equal monthly installment.”

12. A conjoint reading of the orders dated 5th October 2016 and 22th November 2016 shows that the CIC was of the opinion that the RTI Applicant was entitled to the information on two counts – • First, that the RTI Applicant was a citizen of India owing to the provisions of the Citizenship Act, 1955; • Secondly, that either way even if the RTI Applicant is considered as a Tibetan national, non-citizens cannot be deprived of information under the RTI Act. The reasoning given by the CIC is that under Section 3, all citizens are entitled to information under the RTI Act. However, there is no prohibition to provide the information to noncitizens.

13. In the present writ petition the challenge is only to the order dated 22nd November 2016, by which penalty has been imposed. When the present writ petition was listed before this Court on 12th April, 2017, the operation of the impugned order dated 22nd November, 2016 was stayed. Subsequently, the RTI-Applicant has appeared on a couple of occasions and has filed the counter affidavit. However, the appearance on behalf of the RTI-Applicant has been erratic.

14. A counter affidavit has been filed by the RTI Applicant. The primary ground taken in the counter affidavit is that the CIC had held that the question of citizenship is irrelevant in RTI applications when the information sought by the employee pertains to bad governance or biased administration by those responsible for governance and administration. Further, it is stated that the PIO’s reply shows that the administration was biased against him. He also claims that this a case involving bad governance on behalf of the CTSA.

15. The RTI Applicant states in his counter affidavit that he was born on 1st July, 1965 which he claims to also have been mentioned in the bio-data submitted by him in 1992 and thus he is entitled to be treated as a citizen under Section 3(1)(a) of the Citizenship Act,1955. This fact was not considered by the PIO. The various allowances and other benefits which the RTI Applicant was entitled to, were not extended to him, leading to the filing of the RTI application. Since the PIO was aware of the date of birth of the RTI Applicant, the non-issuance of the information is mala fide.

16. The Court has perused the stand of the CTSA in respect of the reply to the CIC wherein, it is clearly claimed that the RTI Applicant was a Tibetan refugee. In this background, the question that arises in this petition is whether the PIO’s stand was malafide, deserving imposition of penalty.

17. The question of imposition of penalty has to be considered in the light of the legal issues that the CIC has determined, firstly, that the RTI Applicant is a citizen and secondly that the RTI Act extends to non-citizens as well.

18. Section 3 of the RTI Act reads as under:-

19. The RTI Act was preceded by the Right to Information Bill, 2004 (‘the Bill’) the Preamble of which reads as under: “to provide for setting out the practical regime of right to information for people to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and for matters connected therewith or incidental thereto.”

20. Clauses 3 and 6 of the Bill read as under:

21. The Statement of Objects and Reasons of the Bill are extracted herein below: “In order to ensure greater and more effective access to information, the Government resolved that the Freedom of Information Act, 2002 enacted by the Parliament needs to be made more progressive, participatory and meaningful. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the existing Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law. The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Officers; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc. In view of significant changes proposed in the existing Act, the Government also decided to repeal the Freedom of Information Act,

2002. The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India. The Bill seeks to achieve the above objects.”

22. The Notes on Clauses in respect of Clause 3 and 6 are extracted herein below: “Clause 3 seeks to confer on the citizens a right of access to information held by public authorities. Clause 6 specifies the manner in which requests may be made by a citizen to the authority for obtaining the information. It also provides for transferring the request to the other concerned public authority who may hold the information.”

23. A perusal of the above extracts from the Bill would show that there is no uniformity in respect of who can exercise the right to information. The Preamble uses the expression ‘for people’. Clause 3 uses the expression ‘all citizens’. Clause 6 uses the expression ‘a person’. The statement of objects and reasons is neutral to the person exercising the right. The notes on clauses, however, are specific to the effect that the rights are conferred on citizens and requests can be made by a citizen.

24. The Parliamentary Debates on the Right to Information Bill are also educative in the present context. A perusal of the debates would show that the expressions being used at the time when the Bill was moved, was for securing access to information for people. During the debates, the words ‘people’ and ‘citizen’ were being used synonymously.

25. When the Bill was debated in the Rajya Sabha it is seen that terms such as ‘citizen’, ‘people’, ‘persons’ etc. have been used interchangeably.

26. The Third Report on the Right to Information Bill, 2004 of the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, notes some important recommendations of the National Advisory Council (‘NAC’), at the relevant time. One of the recommendations was that the Right to information should be conferred on all persons, whereas the Bill restricts the right to citizens only.

27. Even the views put forward by organizations/individuals and the witnesses who deposed before the said Committee, as summarized in the said report, suggest that the applicability of the RTI Act should not be restricted to citizens but should cover non- citizens as well.

28. The Clause- by- Clause consideration of the Right to Information Bill, 2004 in its meetings held on 1st and 2nd March 2005, regarding Clause 3 reads as- “Clause -3

14. The clause confers the right to information on all citizens. 14.1The issue who can access information triggered an animated debate. Witnesses in their deposition favoured the idea of extending the coverage of the law to all persons. Examples of some foreign jurisdictions were placed before the committee, which permit the right to access to be exercised by all persons. 14.[2] The Committee took note that the Act of 2002 gives the access right to the citizens only. Not only this, the fundamental rights enshrined in the Constitution are exercisable by citizens and not by all. After some discussion, the Committee favored retention of the provision. 14.3The clause is adopted without any change.” Thus, the language in clause 3 to the effect that the right is conferred on citizens was not changed.

29. Annexure C to the meeting ‘Gist of the Suggestions received on the Right to Information Bill, 2004 alongwith the Comments of the Ministry’ on clause 3 reads - Clause Suggestions Comments of Ministry

3. Right to Information The word ‘citizens’ be substituted by the word ‘persons’ Government may accept this amendment in view of the similar laws being implemented in other countries

30. Finally, however, the Act which is now the Right to Information Act, 2005 has the following Preamble: “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic; AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.”

31. Further, Section 3 and Section 6 of the RTI Act read as-

32. A perusal of the RTI Act shows that the Preamble itself clarifies, in contrast to the Bill, that the right to information is sought to be conferred upon citizens. However, even in the RTI Act, the expressions used are not consistent and uniform. The RTI Act uses the term “citizen” in the Preamble.

33. In the backdrop of the above legislative material, there has clearly been a struggle as to whether the Right to Information ought to be conferred only upon citizens or on non-citizens as well. The Preamble uses the word ‘citizens’ and ‘informed citizenry’. Section 3 also confers the Right to Information upon citizens. Section 4 requires public authorities in 4(1)(b)

(xv) to publish the particulars of facilities available to citizens for obtaining information. In the same breath, however, Section 4 also requires public authorities to publish all relevant facts while formulating important policies or announcing the decisions which affect public. Public authorities also have an obligation under Section 4(1)(d) to provide reasons for their administrative or quasi-judicial decisions to affected persons. In Section 4(2), the endeavor of public authorities has to be to take steps to ensure maximum availability of information to the public so that the public has minimum resort to the use of the procedure under the RTI Act to obtain information. The form and manner of dissemination is also to be easily accessible to the public under Section 4(3). Section 5 requires the CPIO’s and State PIO’s 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.

34. Section 6 also prescribes the procedure for persons who desire to obtain any information under the RTI Act or who make a request in writing or through electronic means in such application process. The CPIO or the SPIO have also to render all reasonable assistance to persons making the request, in cases where the same cannot be made in writing. Section 7 prescribes the time limit for providing information as 30 days. However, the proviso to Section 7(1) interestingly stipulates that if 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. Section 7(3) records that intimation is to be provided to the person making the request, where a decision is taken to provide information on payment of any further fee representing the cost of providing the information. If the Applicants are below poverty line such persons shall not be charged any fee for the RTI-application in terms of the proviso to Section 7(5). The reasons for rejection are to be communicated to the persons making the request under Section 7(8). Section 8 provides all kinds of information which is exempted from disclosure and uses the word citizen in 8(1). The word person is used in Section 8(1)(e), (g), (j) and Section 8(3).

35. An appeal can be filed under Section 19 by any person who does not receive a decision within the timeline prescribed under section 7 or who is aggrieved by the decision of the CPIO or SPIO. Further, Section 18 deals with complaint from ‘any person’.

36. An analysis of the provisions of the Act does show that in certain provisions, the word “citizen” is used and in a majority of provisions, the word “person” is used. Clearly in the legislative history of the Right to Information Bill leading to the RTI Act, there was a debate as to whether the word citizen should be substituted with person or not. In respect of Clause 3, the conferment of the Right to Information was retained without change i.e. the word “citizen” was retained.

37. It is in the above background that the finding of the CIC, that the right to information is available to non-citizens, would have to be considered.

38. The purpose of the Right to Information Act is to promote transparency and accountability in the working of public authorities. The statement of objects and reasons makes it clear that it was enacted with an intention to ensure smoother and greater access to information.

39. The Constitution of India confers a large gamut of rights upon Indian citizens, but there also exist a smaller bouquet of rights which are also conferred and recognized in respect of non-citizens. Illustrative examples would include travel related permissions, OCI card, Visas, Refugees, Asylum seekers, property related issues concerning persons of Indian origin who may not be citizens, extradition related information, etc. In all these situations, non-citizens would have an interface with public authorities and to put an absolute bar, would be contrary to the principles enshrined in the Constitution of India which recognizes some rights of even non-citizens.

40. The RTI Act places enormous emphasis on access to information and such information could also relate 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 Proviso to Section 7(1) of the RTI Act, contemplates information relating to life or liberty of a person to be disclosed within 48 hours, thereby stressing on the need for disclosing such information with alacrity and promptness. Considering that the RTI Act also accords information relating to life or liberty an important and distinct position, 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.

41. The importance of rights under Article 14 and 21 qua non citizens can be appreciated in the light of the legal position enunciated in Durga Das Basu’s, Commentary on the Constitution of India[1], as under: “The words 'any person' in Art. 14 of our Constitution similarly extend the protection to aliens while within the territory of India. The use of the words "any person" in Art. 14, in the context of legislation in general or executive action affecting group rights is construed to mean persons are similarly situated. The classification of such persons for the purpose of listing the differential treatment must, of course, be intelligible and reasonable-the reasonableness being determined Durga Das Basu, 2 Commentary on the Constitution of India (8th edn, 2007, vol. 2) pp. 1714 – 1715. with reference to the object for which the action is taken. The benefit of Art. 14 is not confined to citizens alone, but is available to any person within the territory of India. It was held in the later case, that every person is entitled to equality before law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every "human being" be he a citizen or otherwise. The International Covenants and Declaration as adopted by the United Nations have to be respected by all signatory States and the meaning given to the provision of these Declaration and Covenants have to be such as would help in effective implementation of those rights. The applicability of Universal Declaration of Human Rights and the principles thereof may have be read, if need be, with the domestic jurisprudence. Our Constitution guarantees all the basic and fundamental human rights set out in Universal Declaration of Human Rights 1948, to its citizens and other person. The chapter dealing with fundamental rights is contained in Part III of the Constitution. The purpose of Part III is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties, who, by virtue of the, majority, may came to form the Government at the Centre or in the State. The fundamental rights are available to all "citizens" of the country, but a few of them are also available to all person....... The meaning of the word "life" cannot be narrowed down. According to the tenor of the language of article 21, it will be available not only to every citizen of the country, but also to a "person" who may not be a citizen of the country. Such a person is also entitled to the protection of article 21, even though not a citizen." What equal protection means in the case of aliens is that in matters in which aliens are under no constitutional disability, the State may not discriminate against a person simply on the ground that he is an alien. [See, further Entry 17, List 1, 7th Sch., post].”

42. Further, the Supreme Court in CA No. 639 of 2000 (Arising out of SLP (C) No. 16439 of 1998) titled ‘The Chairman Railway Board and Ors v. Chandrima Das and Ors.’ reiterates this position. The operative portion of the said judgement reads as- “…29. The fundamental rights are available to all the “Citizens” of the country but a few of them are also available to “persons”. While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would also include the “citizen” of the country and “non-citizen” both, Article 15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race, caste, sex, place of birth or any of them nor shall any citizen be subjected to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hostel and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Article 15, is therefore, restricted to “citizen”. So also, Article 16 which guarantees equality of opportunity, in matters of public employment is applicable only to “citizens”. The fundamental rights contained in Article 19, which contains the right to “Basic Freedoms “, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on any occupation, trade or business, are available only to “citizens” of the country. …35. On this principles, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to “Life” in this country. Thus, they also have the right to live, so long as they are here, with human dignity, just as the state is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.”

43. In this context, it would be relevant to also consider the decision of the Supreme Court in ‘Chief Information Commissioner & Ors. v. State of Manipur & Ors., (2011) 15 SCC 1’ where the Supreme Court, also notices the difference between the terminology used in Sections 3 and 6 of the Act. Under Section 3 of the Act, the Right to Information is conferred upon all citizens. However, under Section 6, a person who desires to obtain information can file a request. The Supreme Court after noticing this distinction observes as under:

44. The Calcutta High Court in ‘Dr. Soumen Paul v. Union of India & Ors’ [2002 SCC Online Cal 62: (2002) 3 Cal LT 329: (2003) 1 Civ LT 502] decided on 6th February 2002 held that-

45. In contrast, the Madras High Court recently observed in W.P.(MD) No. 1981[1] of 2013 and M.P (MD) No. 1 of 2013 titled ‘K.K.C. Balaganesan v. The Managing Director, Tamil Nadu Generation and Distribution Corporation Limited & Ors’. [Decided on 31.01.2023] that the observation of the Supreme Court in Chief Information Commissioner (supra)is merely an observation and the same cannot be read in isolation. The Madras High Court goes on to hold as under: “21. When the Hon'ble Apex Court had traced the right to receive information is under Article 19(1)(a) of the Constitution of India, then it could be safely presumed that the persons, who are the citizens of India, alone are entitled to seek information, since the right under Article 19(1)(a) of the Constitution of India is only available to a citizen of India.

22. Further, if the contention of the learned counsel for the petitioner that the application under Section 6 of the Act cannot be restricted only to the citizens as adumbrated in Section 3, then would render Section 3 of the Act otiose/redundant. It is the cardinal principles of interpretation of statutes that while reading a statute, a provision of the statute cannot be made otiose or redundant. I am fortified to come to the aforesaid conclusion by placing reliance of the very same judgment (AIR 2012 SCC 864). The relevant paragraph in the aforesaid judgment is extracted hereunder: "It is well known that the legislature does not waste words or say anything in vain or for no purpose. Thus, a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. In the instant case there is no compelling reason to accept the construction put forward by the respondents.

23. Hence, the contention raised by the learned counsel for the petitioner that even a non citizen would be entitled to information under the Act, in my view, is untenable. It is the duty of the Court to ascertain the intention of the statute and to whose benefit such a statute has been enacted. The statute could be enacted for a class of persons for their benefit. 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.

24. The reason I come to this conclusion is clearly elucidated in the Preamble of the Act, which postulates that the democracy requires an informed citizenries and the Act was only to provide for furnishing of certain information to the citizen, who desires to have it. In that context, I find no infirmity in the impugned communication of the third respondent calling upon the petitioner to substantiate that he is the citizen of India. It is not known as to why the petitioner is shying away to produce such information.”

46. The Calcutta High Court in Dr. Soumen Paul (supra) clearly holds that information can be disclosed to non-citizens. The Supreme Court also notes in the Chief Information Commissioner (supra) that Section 6 is wider in its scope than Section 3. On the other hand, the decision of the Madras High Court in K.K.C. Balaganesan (supra) holds that only citizens are entitled to information. This Court respectfully disagrees with the Madras High Court. There are several areas where even non-citizens such as Tibetans in the present case, who was serving a teacher in India in a Tibetan School, seek information. It cannot be held that there is a bar on such persons to such information. Thus, the CIC was right in holding that there is no absolute prohibition if the authority deems it fit to disclose the information.

47. Public authorities as defined in the RTI Act, in India, deal with citizens and non-citizens. While as a general proposition, it would be correct to hold that the right to information is conferred upon all citizens, it cannot also be held that there is an absolute prohibition on disclosure of information to non-citizens. In the case of such public authorities dealing with issues concerning non-citizens, if there is an inaction or lack of transparency in their dealings, it cannot be held that such a non-citizen would be disabled from seeking the said information under the RTI Act. It would be left to 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 or not. Creating an absolute bar would be contrary to the purpose and object of the RTI Act itself, and such an absolute bar cannot be read into the RTI Act.

48. Restricting the Right to Information to only citizens in the light of both terms i.e., citizens and persons being used in the RTI Act without any discernible distinction would be contrary to sprit of the Constitution as well as to the RTI Act. The view of the Parliamentary Committee which discussed the Bill and favored retention of the right only to citizens appears to have been based on a misconception that Fundamental Rights under the Constitution are only available to citizens, which was a wrong premise. Thus, this Court is of the opinion that the Right to Information ought to be available to citizens and non-citizens depending upon the kind of information which is sought and the recognition of the rights guaranteed to such class of persons under the Constitution of India.

49. The safeguards/exceptions provided in the RTI Act, would apply qua any information which is sought, by either citizens or non-citizens in this context. Whenever information is sought by non-citizens, considering that the rights conferred under Section 3 is positively upon citizens, it would be on the discretion of the authorities to disclose such information or not.

50. Section 3 would therefore have to be read as positive recognition of the right in favor of citizens but not as a prohibition against non-citizens.

51. There is a second aspect in the present case. The RTI Applicant was a Tibetan national and stated as such in his RTI application. But he also claimed citizenship under the Citizenship Act, 1955. The PIO however, proceeded on the basis that Section 3 of the RTI Act would be mandatory, in terms of assuming that only citizens are entitled to information under the RTI Act. The PIO also considered the RTI Applicant’s stand declaring himself to be a Tibetan national. The question before this Court is not whether the RTI-Applicant was entitled to information or not. The information has already been directed to be provided and has, in fact, been provided by the CTSA before the CIC, as per the Petitioner. Certain grievances have been raised by the RTI Applicant that the order of the CIC has not been complied with and that he is not satisfied with the information provided. If so, the RTI Applicant is free to avail of his remedies in accordance with law.

52. It is stated that the RTI-Applicant had declared that he was a Tibetan National in several documents including in his bio-data where he has been recognised as a Tibetan national. The RTI Applicant is stated to have enjoyed privileges as a Tibetan refugee with an Identity card as a Tibetan. 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 malicious and 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. However, the PIO did not consider the applicability of Section 3(1)(a) of the Citizenship Act, 1955 whereby the RTI applicant born in 1965 is entitled to citizenship by birth, which has been decided by the CIC relying upon the decision of the Karnataka High Court in W.P. 15437/2013 titled ‘Tenzin Choephag Ling Rinpoche Vs. UOI’ dated 7th August 2013.

53. In the backdrop of the above position, the CIC’s finding that the approach of the PIO is malicious and mala fide is what is challenged before this Court. The information having already been stated to have been provided to the RTI-Applicant, the approach of the PIO cannot be faulted to such a great extent as to be considered as malicious and mala fide merely on the ground that information was initially rejected as the RTI-Applicant had declared himself to be a Tibetan national. The legal question raised was complex in nature, considering the legislative history of the RTI Act.

54. The judgment of this Court in WP(C)11271/2009 titled ‘Registrar of Companies and Ors. V. Dharmendra Kumar Garg and Anr.’ pertains to a case where, in a similar situation, this Court held that the PIO’s conduct of non-disclosure of information by the Registrar of Companies could not be held to be malicious. The relevant portion of the said judgment reads as under:-

55. In the present case, the finding of the CIC that the PIO’s conduct is mala fide and the imposition of penalty in these facts is not sustainable. Accordingly, the imposition of penalty is set aside.

56. However, considering that though the RTI Applicant has been described as Tibetan national, in view of the provisions of the Citizenship Act 1955 and the decision dated 7th August 2013 in ‘Tenzin Cheophag Ling Rinpoche (supra), the order of the CIC directing the Petitioner to give the point-wise reply in terms of the order dated 5th October, 2016 would be liable to be complied with by the Petitioner, if not already complied with. The said order dated 5th October 2016 is not the subject matter of the present writ petition. If the same has attained finality, the Petitioner is bound to comply with the same and furnish the information to the RTI applicant, if not already given.

57. The petition is, accordingly, allowed in the above terms. All pending applications are also disposed of.

PRATHIBA M. SINGH JUDGE MARCH 13, 2023 MR/rp