Can Foreigners Seek Information From Authorities In India Under RTI Act? Explained

Section 3 of the Right To Information Act states all the citizens shall have the right to information. While dealing with a case related to the RTI request of a Tibetan refugee, the Delhi High Court this week considered the question whether a non-citizen or a foreigner can also seek information under the RTI Act.

Justice Pratibha M. Singh said that it would be inherently contradictory to hold that only citizens are entitled to the Right to Information, considering that the RTI Act accords information relating to life or liberty an important and distinct position. Justice Singh ruled that while Section 3 would have to be read as positive recognition of the right in favour of citizens, it cannot be seen as a prohibition against non-citizens.

However, the court emphasised that in case of non-citizens, it would be the discretion of the authorities to disclose such information or not. The ruling also does not seem to suggest that a foreigner can seek any information under the Act. In what situations can a non-citizen then seek information under the RTI Act?

Background

Dawa Tashi, a teacher at Darjeeling's Central School for Tibetans, in 2014 had filed an application seeking information related to his service. The Central Tibetan Schools Administration (CTSA) denied the information to Tashi saying that information cannot be disclosed to him as his nationality is Tibetan. The Public Information Officer cited Section 3 of the RTI Act.

In 2016, the Central Information Commission directed the CTSA to provide information to Tashi. It observed that CTSA ignored the “fundamental principle that a person born in India attains the citizenship of India, even if his parents are from Tibet”. It further said that the RTI Act Section 3 says all citizens are entitled to RTI Act “but there is no prohibition to provide information to others”. The CIC imposed a cost of Rs 25,000 on the CPIO for denying the information. The officer A S Rawat challenged the imposition of penalty in 2017. The CIC order was stayed by the high court in April 2017.

While considering the challenge against the imposition of penalty, Justice Singh considered the legal question regarding the extension of RTI Act to non-citizens.

History

The court in the ruling referred to the Right to Information Bill, 2004, that preceded the 2005 enactment, and observed that there was no uniformity in respect of who can exercise the right to information. While Preamble used the expression ‘for people’, Clause 3 used the expression ‘all citizens’, the court noted.

“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,” said the court.

The court also perused the Parliamentary debates on the Right to Information bill and observed that words ‘people’ and ‘citizen’ were used synonymously. It also noted that one of the recommendations was that the right to information should be conferred on all persons and not just citizens.

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, said Justice Singh.

“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,” the court said.

Non-Citizens and RTI Act

Justice Singh in the ruling said that the Constitution confers a large number of rights on citizens but there are some rights for non-citizens also. It referred to 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.

The court said in all situations, non-citizens would have some contact with the public authorities, and an absolute bar on disclosure of information “would be contrary to the principles enshrined in the Constitution of India which recognizes some rights of even non-citizens”.

Observing that Article 21 of the Constitution is not available merely to citizens but all persons, Justice Singh took note of the proviso to Section 7(1) of the RTI Act which states that information relating to life or liberty of a person is to be disclosed within 48 hours.

"Life or liberty could also relate to non-citizens including foreigners, NRI’s, OCI card holders and such other persons," said the court.

No Absolute Prohibition

The high court’s judgement does not seem to suggest that a foreigner can seek any kind of information from authorities in India. Justice Singh said in the case of such public authorities which deal 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 can’t seek 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,” said the court.

The court also said that the Parliamentary committee favoured retention of the right only to citizens apparently on the basis of a misconception that fundamental rights in India are only available to citizens.

“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,” Justice Singh said.

Contrary View

On January 31, the Madras High Court refused to interfere with a communication asking an RTI applicant to first prove he is a citizen of India. It ruled that citizens of India alone are entitled to seek information since the right under Article 19(1)(a) [freedom of speech and expression] of the Constitution of India is only available to a citizen of India.

Observing that a foreigner cannot invoke the provisions of the Act, Justice K. Kumaresh Babu said, “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.”

Justice Singh disagreed with the Madurai bench judgement. "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," said the court.